The court was required to determine, as a preliminary issue, liability for a road traffic accident involving the claimant (C) and the first defendant (D).

 

C and D had been out on their motorbikes. C led the way, as he knew the road and D did not. At one point the road curved to the right, as it was joined by a side road. Immediately prior to that junction, there was a slight left curve, a slight right curve, and then a straight stretch of road. At some point along the straight stretch, D overtook C. As they approached the right hand bend, D realised that he was going too fast. He panicked and applied emergency braking. C's brakes locked and he left the road. The court had to determine whether or not C would have successfully negotiated the corner at the speed he was travelling, regardless of the presence of D.

 

HELD: D overtook C shortly before the corner. C was not following D too closely; the gap between them was so small because D had just overtaken him. Therefore, C was not contributorily negligent. D created an emergency which resulted in his crossing the path that C would have taken had he been able to do so. D was travelling faster than C prior to braking. On the balance of probabilities, C would have negotiated the bend safely but for D's panic application of his brakes, which then distracted and frightened C. D then passed across the path which C would have taken, and he was, in effect, forced off the road. D caused C's injuries, as C would not have left the road in any event.

 

Preliminary issue determined in favour of claimant.

Counsel for the claimant: Paul Rose QC.

Solicitors for the claimant: McCool Patterson Hemsi.