Failure to observe road markings increased culpability

[2013] EWCA Civ 782

CA (Civ Div) (Moore-Bick LJPatten LJUnderhill LJ) 09/07/2013

 In the particular circumstances, a police constable who had failed to slow and negotiate a mini-roundabout in accordance with the road markings was found more liable than a driver who had entered the roundabout late and in her path.

 The appellant driver (S) appealed against the apportionment of his liability for a road traffic accident in a claim against the respondent Chief Constable (H), who was vicariously liable for the tort of one of his officers (R) while acting in the course of her duty.

S's car had been in collision with R's police car at a mini-roundabout. Both were injured but S much more seriously and he claimed damages. Accident experts had established that, although S had entered the roundabout in R's path, she had failed to slow down at all and, in breach of the Highway Code para.88, had driven straight over, instead of around, the painted roundel. The judge had found both drivers liable and assessed S's culpability at 55 per cent.

R submitted that (1) she had had priority because S should have given way to traffic from his right; (2) even though R had breached the Code, both experts had observed that the majority of drivers drove over the roundel; (3) the experts had not been able to agree a safe maximum speed for the roundabout and, even if R had correctly followed the road markings, she would not have needed to reduce her speed; (4) even if R had slowed down, the accident would not have been averted because of the short time-frame. 

HELD: (1) Where two drivers were approaching a mini-roundabout and one was closer, but the other was travelling faster, the rules about priority might not give a clear answer and the question of priority might become a matter of judgement (see paras 10-11 of judgment). (2) The Code was emphatic and explicit and clearly contributed to road safety, so it was irrelevant that it might often be broken (para.12). (3) Although the experts had not been able to agree a maximum, the judge had found that a speed substantially less than 30 mph was appropriate. In fact R should not have been travelling at more than 20 mph irrespective of the presence of another vehicle (para.13). S should have seen R's vehicle approaching and should not have pulled out into her path, but he had been entitled to expect R to slow down and negotiate the roundel correctly (para.15). (4) Both experts were agreed that if R had been driving at 15 mph the accident would have been averted; at 20 mph she would have either missed him or hit only the rear of his car. Both drivers had been seriously at fault in failing to properly appreciate what the other driver might do, but the fact that R had wholly ignored the roundabout's existence made her the more culpable and blame was consequently apportioned 65 per cent to her. Apportionment required assessment of causal potency but in the instant case there was no distinction between the parties' culpability and their responsibility for the accident (para.17).

Appeal allowed