Strictly speaking the recent decision in the case of Blair v Jaber (Case No: H56YY150) before Recorder Jack sitting in the County Court at Coventry is not a case involving either an emergency stop or an evasive manoeuvre but it could easily have been. County Court decisions are rarely reported and this one is worth consideration as outlined below.
The case
The claimants, Mr and Mrs Blair were passengers in a taxi driven by the defendant, Mr Jaber. It was the claimants' case that as the taxi reached a roundabout, the defendant slammed on the vehicle's brakes causing them to fall from their seats suffering injuries: Mr Blair broke his collar bone and Mrs Blair sustained pain and a laceration to her left shin which left a scar. Neither was wearing a seatbelt. The defendant did not dispute that the claimants fell but denied excessive braking and that whilst a car had come round the roundabout from his right as he approached it, he braked in a perfectly smooth, normal way.
According to the evidence of Mr and Mrs Blair, immediately after the accident Mr Jaber said that a car had cut him up causing him to slam on the brakes: Mr Jaber denied saying this.
To cut to the chase, the Recorder found for the claimants on liability saying "Standing back and looking at the evidence in the round, I prefer on the balance of probabilities the claimants' case to that of the defendant. I find that the defendant left it too late to brake safely at the Coton Roundabout and that this caused the accident." In relation to contributory negligence the Recorder concluded that the failure of Mr and Mrs Blair to wear seatbelts merited a 25% deduction.
But what if?
Although not part of the decision, one is left wondering what the findings of the court would have been had defendant's case been different, namely that he had accepted that he had braked heavily and late to avoid a collision with a speeding vehicle on the roundabout.
The requirements of the Highway Code include that one should "give priority to traffic approaching from your right, unless directed otherwise by signs, road markings or traffic lights" and should "watch out for all other road users already on the roundabout". It is axiomatic that if a driver observed another vehicle approaching at speed, then entering the roundabout should not be attempted until it is safe to do so.
However, what if the other vehicle had been travelling at such speed that another driver had been left with the "option" of performing the emergency stop, so beloved of the driving instructor and test inspector, or run the risk of coming into collision with the speeding vehicle? How have the courts reacted to emergency manoeuvres which have resulted in collisions and/or injuries?
Before the courts
As a starting point, the courts expect road users to be alert to the possibility of an emergency situation arising and to drive accordingly, a now somewhat aged example being the case of Clarke v Winchurch [1969] 1 All ER 275. While certain aspects of this decision have been questioned the Court of Appeal, the judgment noted the importance of road users ensuring that they can immediately deal with an emergency situation.
In Burton v Evitt [2011] EWCA Civ 1378 the claimant who was riding his motorcycle down the outside of a line of traffic collided with a vehicle driven by the defendant who, having looked in his wing mirror, had begun to turn right. The view of both parties had been obscured by another vehicle but in apportioning blame 80:20 in favour of the defendant, the claimant was found to have been travelling at an unsafe speed and was therefore unable to deal with an emergency.
A further example of the courts taking into account a failure to be in a position to deal with an emergency arose in the case of Melanie Whitehead (by her litigation friend Amy English) v (1) Steven Bruce (2) Sylvia Craig (3) Carl Baxter [2013] EWCA Civ 229. The third defendant had broken down close to a bend and when the second defendant was overtaking the stationary vehicle Ms Craig collided with the first defendant, a motorcyclist travelling in the opposite direction. The claimant was the pillion passenger on the first defendant's motorcycle. The issue of apportionment of liability between the defendants went to the Court of Appeal, agreeing that the trial judge had been right to find that a significant factor in the accident had been the first defendant's excessive speed which resulted in their having insufficient time to stop when confronted by an emergency situation.
These cases might be seen as giving the impression that a driver, or rider, will be at fault if they fail to drive or ride in a manner which enables them to avoid an accident should an emergency arise. That, however, would be an incorrect interpretation of the position as there are examples of the courts accepting that there are circumstances in which no fault can properly be placed on the driver.
In Fletcher v United Counties Omnibus Co Ltd [1998] PIQR P154 the claimant was a passenger on the defendant's bus. Having boarded, the claimant moved towards the rear of the bus to sit with a friend and, before she was seated the driver pulled out gently and at a reasonable speed. Before the claimant sat down the driver was obliged to make an emergency stop. The case reached the Court of Appeal on the issue of whether it had been appropriate for the driver to have moved off before the claimant had taken her seat but as far as the emergency stop was concerned there was no suggestion that the driver was at fault.
Of particular note is the case of Christian v South East London and Kent Bus Co [2014] EWCA Civ 944, another case in which the Court of Appeal found itself dealing with an injured bus passenger. The claimant was a passenger on the defendant's bus when she was thrown forward due to the driver braking heavily, another passenger fell on her, causing injury. The claimant alleged that the driver had been approaching a queue of traffic at too great a speed and it was that action which had resulted in his braking in a manner which had caused her injuries. The driver however asserted that he had been forced to perform an emergency braking manoeuvre when a red vehicle had cut in front of him. The trial judge was fortunate to have not just the oral evidence of the claimant and the driver but also video an CCTV footage from the bus's onboard camera. On the evidence the judge accepted that the red vehicle had moved into the path of the bus with the effect that the bus driver had been forced to react and brake quickly to prevent a collision. The claimant's allegation that the bus driver ought to have braked sooner was rejected.
The Court of Appeal rejected the claimant's appeal, holding that the trial judge had been entitled to reach the conclusion he had, having properly considered the facts and that the driver had acted on the spur of the moment to avoid a hazard by taking evasive action. Delivering the leading judgment Lady Justice Gloster said the following – " In my judgment the judge was perfectly entitled to conclude, on the evidence before him, that whilst, with the benefit of hindsight Mr Lawal, could or might have taken another course, he was not to be judged by too critical a standard when he acted on the spur of the moment by taking evasive action, pulling into the central reservation to avoid the red vehicle and then subsequently braking."
Where does all this leave us?
While the courts will always expect drivers and riders to anticipate the potential for an emergency situation to arise and to act accordingly, keeping an appropriate look out and driving at a speed which will enable them to respond in time to an emergency situation is expected.
However, such expectation is not an absolute and the courts are, as demonstrated by the decisions in Christian and Fletcher (see above), prepared to accept that there are circumstances in which a driver dealing with an emergency can take actions which result in injury to their passengers without incurring any liability for doing so.
There is, of course, a delicate balance to be drawn between anticipation of potential emergency situations and those arising in circumstances that could not reasonably be anticipated and the factual circumstances of any particular incident will be key in determining which applies.
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