Aaron John MacDonald v Amlin Corporate Member Limited

A driver who stops on a clearway may be negligent where the vehicle creates a dangerous obstruction and the stopping is unjustified in the circumstances. The assessment is one of the global conduct of a reasonably competent driver. It may be analysed by asking whether there was an obstruction, whether it was dangerous, and whether it was justified.

Drivers must anticipate foreseeable carelessness by other road users, but ordinarily need not anticipate grossly negligent or reckless driving. Where both the obstruction-creating driver and the colliding driver are negligent, liability is apportioned according to causative contribution, blameworthiness and causative potency.

The claimant suffered severe spinal and traumatic brain injuries when his scooter collided with the rear of a stationary tipper lorry in the Limehouse Link tunnel. The defendant insurer denied liability. The liability issue was ordered to be tried as a preliminary issue.

The lorry driver had heard a noise, activated flashing beacons, stopped in a single-lane slip road within an urban clearway, and left the cab. The claimant moved across two lanes into the slip road and collided with the stationary lorry. The central issues were whether the lorry driver was negligent, whether the claimant’s conduct was contributory negligence or the sole cause of the accident, and the appropriate apportionment.

1. Primary liability. The lorry was an obstruction because it blocked the slip road. It was objectively dangerous because it created a substantial risk of collision and serious injury in a tunnel where vehicles would not ordinarily expect a stationary lorry. The flashing beacons did not remove the danger. They could be confused with movement and did not necessarily indicate that the lorry was stationary.
2. The stopping was unjustified. The only evidence was that the driver had heard a noise. There was no objective evidence of an imminent mechanical or load-related danger. A reasonably prudent driver should have proceeded slowly and cautiously out of the tunnel and stopped in a safe place. Alternatively, if stopping in the tunnel had been justified, the lorry should have been stopped further along the slip road where it widened into two lanes. The claimant therefore established primary negligence.
3. Contributory negligence. The claimant was required to ensure that it was safe before moving into the slip road and should have treated the flashing lights as a warning of a potential hazard. He failed to consider that the lorry might be stationary. However, once the stationary lorry became apparent, his perception and reaction were within reasonable limits. His conduct was negligent but fell well short of gross negligence and did not break the chain of causation.
4. Apportionment. Under Law Reform (Contributory Negligence) Act 1945, section 1(1), the court assessed causative contributions and then determined a just and equitable reduction, taking account also of the parties’ departure from reasonable standards. The lorry driver created an extremely dangerous and unjustified obstruction and bore the greater responsibility. Liability was apportioned 60 per cent to the defendant and 40 per cent to the claimant.