Howard v Bemrose [1973]
- Reported: [1973] RTR 32
- Year: 1973
- Court: Court of Appeal
<h2>FACTS:-</h2>
A car and motorcycle collided in the dark. The cyclist was killed and the car driver recollection of the accident. There were no witnesses. The road was 26 to 28 feet wide and ran east to west. The accident occurred on a left hand sided bend on the near side of the motorcyclist who was driving east, being a right hand bend on the offside of the car driver who was driving west, and there was a broken white line in the centre of the road. The car driver was suing the defendant as personal representative of the deceased motor cyclist, claimed damages for personal injuries. The defendant counter claimed for loss of expectation of life, funeral expenses and damage to the motor cycle. The only evidence was that of the police officer who was called to the scene of the, and agreed photographs and a plan. The car was found in a ditch with the nearside front wheel sheered off and the motor cyclist’s body projected through the windscreen. The motor cycle was in the middle of the road, burnt out, just south of the central line. Marks were found by the police officer on the car driver’s wrong side of the road, the most easterly being 6 feet 9 inches from the north verge of the road, moving diagonally to the position where the car lay in the ditch.
The defendant contended that the evidence showed that the car driver was driving on the wrong side of the road and was wholly to blame for the accident. The car driver contended that any attribution of the blame to one driver only would be speculative and that each should be found equally to blame.
Caulfield J found that there had been negligence but felt unable to infer from the evidence that the collision occurred on the car driver’s wrong side or, even if it did, that the car driver was wholly to blame. He declared that each was equally to blame and awarded damages accordingly.
The car driver appealed from the award of damages against him as it was no more probable that a collision took place on a driver’s wrong side than that it took place in the centre of a road at a bend
<h2>HELD:-</h2>
The appeal was dismissed. After all the evidence was considered it was held that the Judge at First Instance, Caulfield J had come to the right conclusion in finding that the accident was caused by the negligence of both drivers equally.
<strong>Per Stephenson LJ</strong>: a collision between two vehicles when one driver is on the wrong side of the road prima facie calls for an explanation by him, and if he is incapacitated from explaining by death or injury it would be right to infer that he was negligent and might be wrong to infer that the other driver was negligent or that his negligence contributed to the collision on his proper side of the road.
Stephenson LJ held that Caulfield, J was right in considering this as a case of negligence, and the only question was whose negligence? Stephenson LJ agreed with Judge that this was a case of negligence on the part of both drivers, and therefore agreed with the judgment and dismissed the appeal.
<strong>Davies LJ</strong> dismissed the appeal and agreed with Stephenson LJ. Davies LJ found that it was not possible to come to a different conclusion from Caulfield J and was right to conclude that both must have been negligent for this accident to have happened and that the negligence was equally shared.
<strong>Buckley LJ</strong>, gave a dissenting judgment. Buckley LJ found that on the balance of probabilities the cause of the accident was that the car was cutting the corner, that the motor-cyclist, in an effort to take evasive action, hit the car on its nearside at the front, and that the motorcycle in consequence was left in the middle of the road when it fell and the car having lost its nearside front wheel, swerved across the road and eventually landed up in the nearside ditch. Buckley LJ took the view that this was not a case where, on the balance of probabilities, it should be said that the court is left in doubt where responsibility for the accident lay and applied the principle in <em><a href=”http://login.westlaw.co.uk.lawdbs.lawcol.com/maf/wluk/app/document?src=doc&linktype=ref&&context=3&crumb-action=replace&docguid=I6DDFEC60E42711DA8FC2A0F0355337E9″>Baker v Market Harborough Industrial Cooperative Society [1953] 1 W.L.R. 1472 CA</a></em>.
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