Baker v Market Harborough Industrial Cooperative Society [1953]
- Reported: [1953] 1 W.L.R. 1492
- Year: 1953
- Court: Court of Appeal
<h2>FACTS:-</h2>
On 7<sup>th</sup> January 1952 at approximately 7am when it was still dark, a motor lorry driven by the husband of the first Claimant, Mrs Eva Phyllis Baker collided straight on a road with an Austin van, the driver of which was the husband of the second Claimant, Mrs Doris Evelyn Wallace. Both drivers were killed. The two vehicles had collided whilst the offside front wheel of one or the other, or perhaps both was over the ‘cats eyes’ marking the centre of the road.
Mrs Baker claimed damages from the Market Harborough Industrial Cooperative Society, the owners of the van, alleging negligence on the part of their deceased driver.
The action was dismissed by Omerod J on the ground the widow had not discharged the onus of proving that the other driver was negligent.
The Claimant appealed from the decision of Ormerod J.
<h2>HELD:-</h2>
On appeal the evidence made it more likely that both drivers were to blame, than that only one was to blame. As both were to blame there was no means of distinguishing between them and therefore blame should be cast equally on each.
It was found in the case of an accident where one or other of two drivers is to blame, but clearly not both the judge must make up his mind between them. But when both drivers may be to blame, the judge is under no compulsion and can cast the blame equally on each. Where the evidence established that a collision between two-motor vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of darkness, when both drivers were killed the inference, in the absence of any other evidence enabling the court to draw a distinction between them, was that each driver was committing almost the same acts of negligence. That was failing to keep a proper look out and to drive his vehicle on the correct side of the road, and accordingly both were equally to blame.
Somervell, LJ allowed the appeal to 50 percent of the damage. Denning LJ, agreed with Sellers J. Denning found that Ormerod fell into error when he thought the Claimant in order to succeed had to prove the other vehicle was over the white line. Denning agreed with Somervell.
Romer LJ agreed with Sellers J in that the reasonable and probable inference to draw from the facts as found by both judges is that both the drivers were at fault.
Sellers, J held it was clearly established that ‘these vehicles came together with the offside of one vehicle against the off side of the other in the centre of the roadway. Sellers J held both drivers were negligent in failing to keep a proper look out and therefore both equally to blame for the accident.
The appeal was allowed and a new trial was ordered as to damage.
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