PI Brief Update

Lakin v Lawrence: An Overtaking Case in the Court of Appeal - Jerome Burch, Bartletts Solicitors

21/04/15. Road traffic cases are notoriously difficult to appeal due to the generally factual nature of the disputes and a recent case only serves to highlight this point. In Lakin v Lawrence [2015] EWCA Civ 272, the Court of Appeal dismissed an appeal in a road traffic case in which a driver was found to have been negligent when he went to overtake another car on a country lane.

The background to the case was that on 27 July 2011 the claimant was driving a Saloon Subaru and the defendant a Suzuki Samurai along a narrow country lane which left only 0.68 metres of road width after the width of the two cars added together. Both cars were travelling around 35-40 mph and the speed limit was 60 mph. The claimant went to overtake the defendant but unfortunately the cars collided and ended up in the ditch on the near side. Both drivers were injured and their cars damaged.

The claimant’s case was that the defendant had drifted across the road and in those circumstances he considered it safer to take evasive action by moving to the right hand side of the road. It was argued that this meant the defendant was 100% to blame for the accident.

However, Her Honour Judge Lindsay Davies disagreed and found that for the claimant to have seen the rear tyre of the Suzuki as he described then he must have been behind it rather than alongside. In those circumstances the judge held that the claimant had overtaken when it was unsafe to do so and was wholly to blame for the accident.

The judge did note that the defendant hadn’t noticed the Subaru starting to overtake and in those circumstances was not keeping a proper lookout. The judge also considered that it was possible that the defendant did indeed ‘drift’ across to the centre of the road and said that “such drifting may have contributed to the Claimant's problem but in the circumstances as I have described them was not the cause of the collision”.

On appeal, Vos LJ (with whom the other two judges agreed), summarised the single ground for which permission to appeal was granted in these terms: “that the judge should, having found Mr Lawrence negligent in failing to notice the start of the overtaking manoeuvre and in allowing his vehicle to drift out of its own carriageway, have found Mr Lawrence partially if not mainly to blame for the collision.”

It was argued for the claimant that the defendant was negligent in drifting and “but for” this negligence the accident would not have occurred. The only way of getting around this it was said was for the defendant to show a novus actus interveniens through the claimant’s actions being wholly unreasonable. Analogy was drawn with Henderson v Cooke [2002] EWCA Civ 1557 and it was suggested that the defendant should be 75% to blame and the claimant only 25%.

Vos LJ noted that “in cases of this kind the Court of Appeal will rarely interfere with the findings of the judge as to questions of causation”. He also concluded that it seemed to him that “the judge reasoned that Mr Lakin was far enough behind the Suzuki when it wavered across the white line as to leave him time to abort his overtaking manoeuvre”. As to whether the defendant was also to blame, he went on to conclude that whilst the judge didn’t address the issue of causation head on, the overall conclusion was such that she found that the collision “was caused entirely by Mr Lakin’s decision to overtake”.

Above all else, this case emphasises quite how difficult it is to appeal these types of cases where judges are reluctant to interfere with conclusions as to fact which a judge has made having heard all of the evidence.

Another point arose in the judgment which concerned an issue which can arise in some road traffic cases. Specifically, the cases which deal with the concept of “agony of the moment”. Vos LJ mentioned Scott v. Shepherd [1773] 3 Wils 403 and Brandon v. Osborne, Garret & Co Ltd [1924] 1 KB 548 which he said is cited at paragraph 2-126 of Clerk & Lindsell on Torts 21st Edition 2014. In the instant appeal he noted that permission to appeal had not been given on this issue and that “In my judgment it was not open to Mr Lakin on this appeal to contend that this was one of those cases where there was an emergency decision to be taken occasioned by the defendant's negligence.”

So, whilst there was no further analysis of this issue here, it is a reminder that it might be an interesting point for further discussion by the higher courts in the future and in particular as to where the boundaries of any such argument may lie.

Please note that this article is correct as at 16 April 2015. It does not constitute nor is any substitute for legal advice. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland.

Jerome Burch (solicitor)
Bartletts Solicitors

Image cc flickr.com/photos/m-wolstenholme/8645174007/