On the 21st of October this year, the following case was heard at the court of appeal.
The case revolves around a motorcyclist who was passing stationary or parked vehicles (filtering) and is another case which has gone in favour of the filtering or overtaking motorcyclist.
CHRISTINE SMITH v BARRY KEMPSON (2011)
The appellant (Christine Smith) appealed against a decision that she had negligently caused a road traffic accident involving herself and the respondent motorcyclist (Barry Kempson). Smith had been sitting in her car at a junction, waiting to emerge from a minor road to a major road to turn right.
Her view to the right was obscured by parked vehicles. Due to those vehicles, any traffic driving up the road had to drive on the wrong side of the road in order to pass them. Smith emerged from the minor road and collided with Kempson’s motorcycle as it was overtaking the parked vehicles. It was accepted that Smith would have been unable to see Kempson until she emerged past the front of one of the parked vehicles.
At trial the judge found that, on the balance of probabilities, the accident was caused by Smith’s negligent driving in pulling out from a minor junction on to a major road in circumstances where it was not safe to do so. Smith submitted that the judge failed to make findings about what she failed to do or did which constituted a breach of the duty of care, and in doing so the judge failed to apply the correct legal standard and instead applied a test of absolute liability, or failed to make a primary finding of fact to support her conclusion.
HELD: The judge directed herself correctly when she said that the burden of proof was on the balance of probabilities and that it was sufficient to prove the case against Smith if she concluded that the chances were 51 per cent that the accident had occurred as a result of Smith’s falling below the standard of a reasonable driver. It was significant that she was able to, and did, reach the clear conclusion that Kempson had not driven below the reasonable standard required of a motorcyclist in the circumstances.
The judge did not make a specific finding of what it was that Smith did that she should not have done, or failed to do which she should have done, but that did not preclude her from reaching a conclusion that Smith failed to reach the high standard of care required.
It was open to a judge to conclude that a person had acted in breach of the standard of care, even if the judge was unable to say, or had not said, precisely what action or omission constituted the fault.