Motorist in breach of his duty of care leads to claimant’s injuries

A motorist had been in breach of his duty of care in failing to keep a proper lookout and reversing into the claimant’s car, and his breach had caused the claimant’s injuries. The amount of damages was reduced by 60% for the claimant’s contributory negligence, as his injuries had been sustained by trying to stop his car from rolling down a slope with his children still in the car, and it would not have done so if he had put it in “park” mode, or applied the foot brake, or switched off the ignition.

The claimant claimed damages for personal injury and consequential loss arising from an accident involving the defendant.

The claimant and the defendant had both been manoeuvring in the crowded car park at a club when the rear of the claimant’s car collided with the rear of the defendant’s car. The claimant got out of the car to inspect the damage. The defendant moved his car away and the claimant’s car rolled backwards down a slope towards the entrance to a service area. Fearing for the safety of his children who were in the car, the claimant attempted to hold the car back, but he was overwhelmed, and the car crushed his left leg against a metal gate post. His injuries were so serious that his leg had to be amputated. The claimant maintained that his injuries were the result of the defendant’s negligence. The court was required to determine preliminary issues of breach of duty and causation.

HELD

1. The defendant had conceded that he was in breach of his duty of care by failing to keep a proper look out and reversing into the claimant’s car. Although the defendant had been driving more quickly than he had claimed, reversing at the low speed of 6 to 10 miles per hour (which was the speed one would expect in a car park) was not of itself negligent. He could have driven safely at that speed if he had kept a proper lookout (see paras 57-58 of judgment).
2. The first step in establishing causation was to eliminate irrelevant causes and to apply the “but for” test. The claimant had satisfied that test, since but for the defendant’s breach of duty which had caused the collision the claimant’s car would not have been obstructed by the defendant’s car from completing its manoeuvre and leaving the car park; the claimant’s car would not have been left stationary at a dangerous position at the edge of the slope in the service area; the claimant would not have got out of his car at that point, as he only did so to inspect the rear damage to his car; his car would not have rolled backwards down the slope and hit the gate post; he would not have been trying to prevent his car from rolling down the slope and he would not have been injured in the collision with the gate post (paras 57-60).
3. However, even if the test were satisfied and the defendant’s breach of duty was established as a cause of the damage, the court had to determine whether there had subsequently been an intervening cause of the damage, namely a novus actus interveniens. The defendant was liable only if the damage caused by the breach was foreseeable as a matter of law, in the sense that it was not too remote, Simmons v British Steel Plc [2004] UKHL 20, 2004 S.C. (H.L.) 94 followed. It was reasonably foreseeable that by failing to keep a proper lookout and reversing into another vehicle, personal injury to the occupants could be caused. Provided the chain of causation had not been broken by a novus actus interveniens the defendant was liable for the personal injury actually suffered in consequence of the breach. Where there was an intervening act on the claimant’s part between the breach of a defendant’s duty and the damage complained of, such conduct might result in the breaking of the causative chain and amounted to a novus actus interveniens. The defendant fairly and reasonably ought to be held liable for the entirety of the incident which on the facts flowed directly from his negligent act, Spencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd) [2009] EWCA Civ 1404, [2010] P.I.Q.R. P8 followed. Although there was negligence on the claimant’s part it was secondary to, and arose in the context of the defendant’s primary breach of duty (paras 61-64, 68).
4. The defendant had established that the claimant’s negligence was a material cause of his injury’ and his award of damages should be reduced accordingly, pursuant to the Law Reform (Contributory Negligence) Act 1945. The claimant’s car would not have rolled down the slope and injured the claimant if he had engaged the car in “park” mode, or applied the foot brake, or switched off the ignition. Although it would usually be foolhardy to stand behind a car rolling down a slope, in the unusual circumstances of the instant case the claimant felt obliged to take that dangerous course of action to protect his children who were in the car. He was fearful that his children might be injured if his car hit the electrical switch room and large propane gas cylinders in the service area so that he ran to the back of the car and attempted to hold it back with his hands. However, as the car increased in speed he was overwhelmed by it and could not get out of the way in time to avoid being crushed against the metal post. The appropriate reduction by reason of contributory negligence was 60% (paras 69-70, 72-73).

Jacob Levy QC, instructed by Russell Cooke LLP acted for the claimant.