Liam Swan v The Estate of Drew Docherty (Deceased) & Anor

A driver on a major road is judged by the standard of the reasonably careful driver in the actual circumstances, without hindsight or a requirement of perfection. The duty does not ordinarily require precautionary braking or reduced speed against a mere possibility that a vehicle will emerge dangerously from a minor road. A driver need not anticipate conduct which is wholly unexpected and extraordinary.

A temporary excess over the applicable speed limit does not by itself establish negligence. The court must assess whether the speed was excessive in the circumstances and whether the alleged breach caused the accident. Where the other driver’s conduct was reckless and unforeseeable, and the defendant’s speed was not excessive in context, no contribution is recoverable.

The claimant was catastrophically injured when a car driven by Drew Docherty crossed a give-way junction without stopping and collided with a recovery lorry driven by Craig Heal. The estate of Mr Docherty and his insurers were defendants. The insurers sought a contribution from Glendinning Brothers, the employer of Mr Heal, alleging that Mr Heal had driven too fast and had otherwise driven negligently.

Liability had been admitted in the claimant’s proceedings against the estate, but the quantum of damages remained unsettled. The contribution claim concerned whether Mr Heal owed and breached a duty in relation to Mr Docherty’s conduct, whether his speed was negligent, and whether any breach caused the collision.

1. The contribution claim was dismissed. The court held that Mr Docherty’s driving across the junction at approximately 40 mph without stopping was reckless and dangerous, and that this conduct was wholly unexpected and extraordinary in the circumstances.
2. The applicable duty was the general duty to drive as a reasonable motorist would drive in the actual circumstances. The court was required to avoid hindsight and a counsel of perfection. A driver was not required to take precautions against risks amounting only to mere possibilities or to anticipate acts of sheer folly.
3. The scope of the duty was determined by the kind of harm which the driver reasonably had to take care to avoid. Mr Heal could not reasonably have inferred from any fleeting view across the valley that vehicles were approaching dangerously. The junction was not shown to be unusually hazardous. A reasonable driver was therefore not required to slow down or place a foot over the brake merely as a precaution.
4. Although the lorry’s tachograph indicated that it may have exceeded its 50 mph limit for about four seconds before braking, that did not establish negligence. There were no adverse weather conditions, the road was suitable for the speed, and the speed was not excessive in the circumstances. The court also found no criticism of Mr Heal’s perception-response time or braking response.
5. The court reached the same conclusion on causation. The expert evidence showed that a materially lower speed might have avoided the collision, but the relevant question remained whether Mr Heal’s actual driving was negligent. Since no actionable breach was established, the claim for a contribution failed. The proposed amendment concerning Mr Heal’s alleged view of vehicles across the valley was rendered redundant by the factual findings.

This was a first-instance contribution claim. The judgment records that judgment had previously been entered for the claimant against the estate after liability was admitted, with damages to be assessed, and that the claim against a further party had been dismissed on summary judgment. The present court dismissed the contribution claim against Glendinning Brothers.