Case law about liability for road traffic accidents is sparse. Now, oddly, within the space of a month, no fewer than four cases have been reported concerning driving habits. They are instructive both for those of us who are drivers and also for those who have to deal with the legal fallout from such accidents.

Emerging from a junction

In Smith v Kempson [2011] EWHC 2680 (QB), Ms Smith was emerging gingerly from a side road into a main road. Her vision was greatly impaired by parked cars to her right, so she made sure that she was only inching forward until such time as she could clearly see the road to her right, which was the direction in which she was going. Unfortunately, she was unable to see a motorcyclist who was coming from her right and he hit her car as she emerged. There was no suggestion that the motorcyclist was speeding or driving recklessly.

Mr Justice Tugendhat, giving judgment in the appeal, stated that it would be only in very rare cases that no one would be to blame for an accident. As the motorcyclist had been found on the evidence to be blameless, the court had no choice but to uphold Judge Redgrave’s decision that Ms Smith was to blame for the accident. Most importantly, Mr Justice Tugendhat accepted the submission that it was open to a judge to conclude that a person had acted in breach of the relevant standard of care even if the judge was unable to say, or had not said, precisely what action or omission constituted the fault.

He had some words of (cold) comfort for Ms Smith: ‘I have some sympathy with the defendant in this case. She has been found to have acted in breach of a duty of care, but not been told precisely [what] she did or failed to do which gives rise to that finding. But that in itself is not a basis for allowing the appeal.’

Risky overtaking

In Pykett’s administrator v Clement & ors [2011] EWHC 2925 (QB), serious injuries were caused when Ms Clement attempted to overtake a car being driven by Mr Pykett on a twisting road and she ended up crashing headlong into an incoming vehicle. Her contention was that Mr Pykett had been deliberately speeding up and slowing down to prevent her from overtaking and that he should take some of the blame for the accident. She relied on paragraph 168 of the Highway Code. The case law also makes it clear that some liability may attach to the car in front if they deliberately and, without just cause, seek to prevent someone overtaking (see Ogden & Chadwick v Barber & Higgs [2008] EWCA Civ 1113 and Smith v Cribben [1994] PIQR 218).

But in this case, Mr Justice Coulson found that there was no evidence that Mr Pykett had been deliberately trying to prevent Ms Clement from overtaking. If his speed had varied it was because of the nature of the road conditions and not because he was trying to frustrate the other driver. Ms Clement was totally responsible for the accident which had occurred.

Tail-gating

In a recent survey, drivers said that their biggest complaint was tail-gating by other drivers - driving too close to the rear of their car. This is what happened in Ali v D’Brass, Lawtel 23 November 2011, but there was a twist - the car behind complained that the car in front had braked hard and for no good reason. How should liability be apportioned, if at all?

The claimant was driving at about 35-40mph on a dual carriageway with the defendant only half a car length behind. Inexplicably, the claimant suddenly braked and the defendant ran into the back of him. Usually, these rear-end shunts are clearly the responsibility of the car behind, but could any liability be attached to the car in front for braking so sharply?

Yes, said the Court of Appeal. Clearly, if the defendant had left sufficient space behind the claimant’s car, then an accident might have been avoided but some blame must also be attached to the claimant for braking so sharply and so unexpectedly. The claimant was found to be 40% liable for the accident.

Cyclist going through red light

Anyone driving through the centre of London cannot fail to notice the increased number of cyclists, including those on ‘Boris’ bikes, swarming around motor vehicles like wasps. The number of accidents involving cyclists in London has gone up considerably and, when one notices how many of them have little regard for road traffic regulations, perhaps this is not surprising.

In Malasi v Attmed, Lawtel 5 December 2011, a taxi driver had just passed through a green traffic light when a cyclist, coming through a red traffic light on his left, collided with his taxi and suffered serious injury. There were three important factors in the case - the taxi driver had been driving at over 40mph in a 30mph area, the cyclist had not braked in time to avoid the accident and, lastly, the cyclist had run the red light.

It had been dark at the time and the cyclist had been wearing dark clothing; but what ‘did’ for the cyclist though was his failure to comply with the red light and to brake in time. As a result Judge Seymour QC held the taxi driver to be liable only to the extent of 20%.

Lessons to be learned

Some of these cases may be straightforward, others less so. It is clear that the courts are prepared to examine the causes of accidents in order to apportion liability and not just rely on assumptions and preconceptions. In the first case, Ms Smith may feel a sense of grievance that, without being told what it was she had done wrong, the court nevertheless found her liable for the accident. Sometimes it will just come down to the court deciding who was more blameless and then finding against the other party.

Overtaking is always going to be a risky manoeuvre but clearly liability is going to be greatest for the car behind. That is not to say that the car in front is let off the hook if they are playing ‘ducks and drakes’ with the overtaker. Gone is the assumption that rear-end shunts are always going to be the fault of the car behind. Sudden and unexplained behaviour by the car in front may make a significant difference.

Lastly, those who choose to ignore clear and sensible warnings have only themselves to blame if it all goes horribly wrong.

District Judge Stephen Gerlis sits at Barnet County Court and is a contributor to Civil Court Service