Jacqueline Kirk & Anor v Culina Group Limited & Anor

A driver owes other highway users the care reasonably expected of a competent driver. Because a motor vehicle has substantially greater potential to cause serious injury than a pedestrian, the expected standard of care is correspondingly high. Breach requires proof that the driver failed to take reasonable care in the circumstances, assessed without hindsight and without imposing the standard of an ideal driver.

Where factual uncertainty remains, the court should avoid unwarrantedly precise findings. Expert reconstruction evidence is a useful aid, but it must be assessed with the evidence as a whole. A claimant must prove both breach and causation on the balance of probabilities. A breach which did not cause or materially contribute to the accident will not establish liability.

The claimants, administrators of the estate of Neil Jones, claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and for dependants under the Fatal Accidents Act 1976. The deceased was struck and killed by an articulated lorry driven by the second defendant and owned by the first defendant.

The defendants admitted that the collision caused death but denied negligent driving. They contended that the deceased’s intoxication, impaired balance and unexpected presence on an unlit carriageway caused or contributed to the collision. The issues were breach of duty, causation and contributory negligence. The central question was whether the driver should have seen the deceased in time to avoid the collision.

1. Duty and standard. The driver owed the duty of a reasonably competent driver to take reasonable care to avoid loss or injury to others using the highway. The standard is commensurately demanding because a motor vehicle has far greater potential to cause serious injury than a pedestrian. The court applied the caution in Lambert v Clayton [2019] EWCA Civ 237 against making findings more precise than the evidence permits, and considered the guidance in Lunt v Khelifa [2002] EWCA Civ 801 and Stewart v Glaze [2009] EWHC 704.

2. Breach. The driver was travelling within the speed limit and did not breach his duty by using dipped rather than full-beam headlights. Rule 114 of the Highway Code supported the conclusion that full beam could have dazzled or caused discomfort to another road user. However, the driver should have kept a proper lookout on his side of the carriageway. On the accepted visibility evidence, the deceased would have been visible for approximately two seconds before impact. The driver therefore breached his duty by failing to see an obstruction ahead.

3. Causation. The claimant had to prove that, if the driver had kept a proper lookout, he would probably have avoided the collision. Braking alone would not have been sufficient. The court preferred the objective calculations of Dr Ash, finding that the deceased would have been visible at ranges of 41–59 m or 28–44 m, the driver’s theoretical perception-response time was 2.1–2.81 seconds, and steering would have required 20–32 m. Even using figures most favourable to the claimants, insufficient time remained to steer around the deceased.

4. The breach therefore was not a substantial cause of the collision. The claim failed on causation, and it was unnecessary to determine contributory negligence.