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Apportioning liability

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Published 18 January 2022


YYY and another v ZZZ [2021] EWHC 632 (QB)

Subject/issues: Whether apportionment between 2 drivers was required when pillion passenger injured

C’s claim for a contribution from D, following C’s settlement of a personal injury claim brought by another individual (XXX) was dismissed. The claim arose out of a road traffic accident in which D’s motorcycle had collided with the C1’s vehicle, as C1 had sought to do a U-turn on a two-lane highway. XXX, who had been D’s pillion passenger, had sustained serious injuries. The court held that the claimants had not established that the standard of the D’s riding had fallen below a reasonable standard, even bearing in mind that he had been carrying a pillion passenger. The court held that no blame attached to D and that the standard that had been asserted that they ought to have met, namely a 'counsel of perfection', was too high and, that, according to the authorities, that was not the test.

DACB Comment:

This case was a timely reminder of the standard of care applied to drivers. A claimant must prove, on the balance of probabilities, that a defendant’s driving falls below the standard expected from a reasonable driver. In this case, the claimant performed a U-turn on a dual carriageway in front of motorcyclist, causing serious injury to the pillion passenger. The speed limit was 60mph and the motorcyclist was travelling at 55mph. On seeing the claimant pull into the layby, the defendant checked his mirror, intending to move further out into the road, when the claimant pulled suddenly across his path. The claimant alleged that the defendant’s response was inadequate, in that he should have slowed to 40mph and not taken his eyes off the road to check his mirror. She sought a contribution to the claim of his pillion passenger. The court found that the defendant could not have known that the claimant intended to perform a U-turn and concluded that the standard of care asserted by the claimant was too high; to expect a driver to respond to a situation such as this by dramatically reducing his speed was a counsel of perfection, not the standard of a reasonable driver. Cases such as these are invariably very fact sensitive and require detailed accounts from drivers. However, it is certainly a reminder that when a driver has only moments to respond to a potential danger posed by another, the claimant must prove that his response was unreasonable.

Naomi Marshall, Associate