Keoghs Insight

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Joanna Grieve

U-turn if you want to: Court rejects the claimants’ “Counsel of perfection” and “the fallacy of coincidence of location”

Client Alerts29/04/2021

The case of YYY (1) & others v ZZZ [2021] EWHC 632 (QB) (contribution proceedings) came before the High Court on 16 March 2021 on the seventh anniversary of the relevant road traffic accident. Keoghs acted for the defendant’s insurer in this case.

The accident circumstances:

In 2014 ZZZ (the defendant) had been riding his motorcycle with his then partner XXX as pillion passenger. They were being followed by a further motorcyclist (wearing a head cam which captured critical footage) and were returning, as a group, from a day out riding.

They were travelling along the A642 Wakefield Road, Rothwell at around 55mph which was below the 60mph speed limit. It was 8pm and the road was quiet and getting dark.

As the defendant came round a sweeping bend he saw YYY (the contribution claimant) move from the carriageway in front of him into a layby. He found the way she drove “suspicious” and made the assessment that the most likely scenario was that she was going to either (i) stop and open her car door or (ii) rejoin the carriageway. Having made that assessment he decided to ease off the throttle and move towards the centre white lines. Accident reconstruction experts confirmed that if the contribution claimant had opened her car door or re-joined the carriageway these actions would have been sufficient to avoid collision. Before moving towards the centre white lines the defendant went to look over his right shoulder to check the following motorcycle would not be affected by the manoeuvre. He caught a glance of him in the right wing mirror and looked back to the road ahead without completing the shoulder check. In that second of checking, the contribution claimant had moved from the layby out onto the carriageway and in front of the defendant’s path. She was executing a U-turn without indication.

A violent collision occurred a second later at about 50mph. The defendant impacted the offside, level with the driver’s door. The pillion passenger was thrown some distance and suffered a life changing brain injury (settled by the contribution claimant’s insurers). The defendant and the contribution claimant also suffered significant but not life changing injuries. The headcam footage showed that the entire manoeuvre from entering the layby to collision only took 5.5 seconds. It took two seconds or less from the point of leaving the layby to impact. The experts and the court agreed it had been a ‘hook turn’ in one continuous motion.

The defendant had told the police in interview that he slowed to 40mph on seeing the car enter the layby due to its suspicious driving. The experts agreed that if he had done that the accident would have been avoided either by him being able to stop or by the car having sufficient time to clear his path. The contribution claimants alleged that the defendant was negligent in failing to slow to his stated speed of 40mph and for taking his eyes off the car to mirror check at a critical moment when he had already assessed her as driving suspiciously.

Mr Patrick Vincent QC (representing the defendant) argued that the defendant’s driving had not fallen below that of the reasonable driver; he had exercised his duty of reasonable care by responding as he did. He had identified the car as a hazard, assessed the risk posed and responded in two ways (easing the throttle and moving to the centre of the road). Those actions would have avoided collision if the contribution claimant had acted as he expected her to. Vincent QC argued the court could not find the defendant negligent in failing to anticipate that the car was going to execute a U-turn when there was no indication that was what it was going to do. He argued there was nothing about the circumstances which made 55mph an unreasonable speed at which to travel on a 60mph road in the prevailing conditions.

Vincent QC referred to the case of Ahanonu v South East Longon & Kent Bus Company Limited (2008) EWCA Civ 274 and the caution from the court in that case not to: “evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant’s safety than a duty to take reasonable care”. The court was to steer clear of imposing a Counsel of Perfection.

Vincent QC also referred the court to Whittle v Bennett (2006) EWCA Civ 1538 para 24 and the “fallacy of coincidence of location”. He argued that it cannot matter that the accident would not have happened if the defendant had been travelling more slowly i.e. 40mph (equally the accident would also have been avoided if he had been travelling much quicker). That was a “fallacy of coincidence of location” because what mattered was whether there was anything about the case which made travelling at the actual speed of 55mph sufficiently unreasonable to fall below the standard of the reasonable driver.

The Judgment:

The defendant’s arguments succeeded, HHJ Saffman agreed that the “conduct of the defendant cannot be judged with the benefit of hindsight or, in my view having regard to nice calculations done by experts with the benefit of computer models and calculators. What matters is whether, having identified a potential hazard the claimant has established that the steps taken by the defendant to mitigate it were not reasonable steps or a reasonable response in the agony of the moment”.

Saffman found that the speed of 55mph was reasonable in the circumstances and that there were no ‘clues’ that should have indicated to the defendant that a U-turn was coming. It was reasonable for the defendant to do a mirror check in order to protect the motorcyclist travelling behind before he moved to the centre of the carriageway.

Saffman noted that braking wasn’t always going to be a reasonably necessary response: “in the agony of the moment a motorcyclist may justifiably conclude that the safest thing to do is get the motorist behind them. Such a course only becomes untenable if the driver intends to carry out a U-turn but… there was insufficient reason for the defendant to believe that that was the intention”.

HHJ Saffman concluded no blame attached to the defendant and the claim for contribution was dismissed with costs awarded to the defendant.

Analysis

Keoghs represented the successful defendant.

The case is a helpful reminder that there is likely to be a range of reasonable responses for a driver to take when faced with a hazard and an “agony of the moment” choice. The defendant in this case would only have been found negligent if the actions he took were deemed not to have been reasonable; this was a high bar for the claimants to reach, particularly where he had perceived a hazard and responded and where there was no evidence showing a U-turn was on the horizon.

The defendant motorcyclist did two things after seeing the car pull into the layby; he eased off the throttle and moved to the centre of the carriageway. These actions would have been sufficient to avoid collision if the car had acted as the defendant expected it to (i.e. to re-join the carriageway or open its door). It was insufficient for the claimant to simply prove that a different choice would have been successful. Interestingly, it was also insufficient for the claimant to use the defendant’s own evidence against him i.e. he had told the police that he reduced his speed to 40mph as the car pulled into the layby; accident  evidence showed that he had not done that, but that if he had he would have avoided collision.

The claimants were critical of the inconsistencies between the defendant’s first police interview and his later civil statements. The court was much less critical but more persuaded by the contemporaneous account, not the account which had been taken after the benefit of reflection and gathering of evidence. It is a reminder to those taking statements to ensure consistency between the fine detail of accounts or if the earlier statement was incorrect (for whatever reason) to address that openly in later versions to limit the scope for cross examination. The court is almost always going to prefer the contemporaneous account as being the most accurate.

In this case the defendant came across to the court as a straightforward and openly imperfect individual who was just trying to do his best after a delay of seven years in relation to an accident which took less than six seconds to play out.