Factual and Procedural Background
This judgment follows a trial on liability arising from a road traffic collision involving the Plaintiff, an employee of Company B, who was injured while crossing a rural main road. On 23 June 2020, the Plaintiff had finished working in the fields and boarded a bus provided and operated by Company B to return to a caravan site owned by Company B. The bus stopped on the side of the road to pick up other employees waiting at a farm some distance away. The Plaintiff alighted from the bus and began crossing the road to inform the other workers of the bus's arrival when he was struck by a car driven by the Defendant. The Plaintiff suffered serious injuries and has not worked since the collision.
The Plaintiff alleges negligence against the first Defendant driver for failing to meet the standard of a reasonably competent driver and against the second Defendant employer for breaching its duty of care. Both Defendants deny liability. The first Defendant contends he had insufficient time to react due to the Plaintiff's actions and potential obstructions to his view. The second Defendant denies being the Plaintiff’s employer at the time of the incident and argues the Plaintiff acted voluntarily and was contributorily negligent.
Legal Issues Presented
- Whether the first Defendant driver was negligent in causing the collision by failing to meet the standard of a reasonably competent driver.
- Whether the second Defendant employer owed a duty of care to the Plaintiff at the time of the collision despite the Plaintiff having ceased paid work and whether it breached that duty.
- The extent to which the Plaintiff was contributorily negligent in causing or contributing to his injuries.
Arguments of the Parties
Appellant's Arguments (Plaintiff)
- The first Defendant drove below the standard of a reasonably competent driver by failing to keep a proper lookout and react appropriately.
- The second Defendant breached its duty of care as the employer by requiring or expecting the Plaintiff to cross a busy road without a designated safe crossing point, contrary to its own risk assessment.
- The Plaintiff was expected by the employer to inform other workers of the bus arrival by physically crossing the road, as no alternative communication means were provided.
First Defendant's Arguments
- The first Defendant driver did not have sufficient time to react to avoid the collision due to the Plaintiff running across the road and obstructions to visibility caused by other cars and the bus.
- The collision was caused entirely or partly by the Plaintiff's contributory negligence in failing to look both ways before crossing.
Second Defendant's Arguments
- The second Defendant denies being the Plaintiff’s employer at the time as the Plaintiff had finished work and was in his own free time.
- The Plaintiff crossed the road voluntarily and was not instructed by the employer to do so.
- The Plaintiff should have used a phone to contact other workers rather than crossing the road physically.
- The Plaintiff was contributorily negligent for failing to look both ways when crossing.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Gestmin v Credit Suisse [2020] 1 CLC 428 |
Inaccuracy of witness memory and caution in assessing witness evidence. |
The court acknowledged witnesses’ imperfect memories and did not infer unreliability from isolated inaccuracies. |
| Chan v Peters & Advantage Insurance [2021] EWHC 2004 |
Standard of care for drivers is that of a reasonably careful driver considering the likely behaviour of pedestrians. |
The court applied this standard to assess the first Defendant’s conduct and duty to keep a proper lookout. |
| AB v Main [2015] EWHC 3183 (QB) |
Reasonable precautions must be taken if a real risk of danger is reasonably apparent. |
Reinforced the standard that a driver is not judged by hindsight or ideal standards. |
| Lambert v Clayton [2009] EWCA Civ 237 |
Caution against making precise findings of fact when evidence is uncertain. |
The court exercised caution in findings where evidence was approximate, applying the balance of probabilities standard. |
| Stewart v Glaze [2009] EWHC 704 |
Dangers of rigidly applying expert evidence and the importance of factual evidence. |
The court relied primarily on factual evidence and treated expert opinion as an aid rather than conclusive. |
| Sam v Atkins |
Negligence requires causation; negligence without causation does not establish liability. |
The court found no causative negligence by the first Defendant despite possible lapses. |
| Jackson v Murray [2015] UKSC 5 |
Apportionment of responsibility in contributory negligence is inherently imprecise. |
The court applied a 65/35 apportionment of liability between employer and Plaintiff. |
| Weaver v Tredegar Iron & Coal [1940] AC 955 |
Employment may extend beyond the actual work time and place if reasonably incidental. |
The court held the employer owed duty as the Plaintiff’s activities were incidental to employment. |
| Staton v National Coal Board [1957] 1 WLR 893 |
Employment continues where the worker has not broken the chain of employment activities. |
Supported the finding that the Plaintiff was still under employer’s duty at the relevant time. |
| Bell v Blackwood Morton & Sons Limited [1960] Scots Law Times 145 |
Employer’s duty extends beyond working hours and places if activities are connected to employment. |
Confirmed employer liability for injuries during incidental activities outside formal work hours. |
| Vaughan v Ministry of Defence [2015] EWHC 1404 |
Activities reasonably incidental to work fall within the scope of employment. |
Applied to hold employer liable for Plaintiff’s activity in transporting workers. |
| Smith v Stages [1989] 1 AC 928 |
No fixed rule for determining when travel is in the course of employment; depends on circumstances. |
Supported fact-specific analysis of employer’s duty in this case. |
| Ahanonu v SE London and Kent Bus Company Limited [2008] EWCA Civ 274 |
Courts must avoid hindsight bias when evaluating negligence. |
Court applied this caution in assessing the first Defendant’s conduct. |
| Eagle v Chambers [2003] EWCA Civ 1107 |
Consideration of contributory negligence and relative blameworthiness in apportionment. |
Informed the court’s assessment of contributory negligence and apportionment of liability. |
| TUI v Griffiths [2023] 3 WLR 1204 |
Restrictions on challenging expert evidence without cross-examination. |
The court refused permission to cross-examine experts but assessed expert evidence appropriately. |
Court's Reasoning and Analysis
The court carefully considered the factual and expert evidence, noting inconsistencies and limitations in witness recollections due to the chaotic nature of the incident and language barriers. It found the Plaintiff was injured while crossing a rural road after alighting from a bus parked on the opposite side from the workers he was to inform. The bus was parked in a position on the main road not designated as a safe pick-up point, contrary to Company B’s own risk assessment, which highlighted high risks of injury if workers were collected from unsafe locations.
The Plaintiff was expected by the employer, explicitly or implicitly, to notify other workers of the bus arrival by crossing the road physically, as no alternative communication means were provided. The court accepted that the Plaintiff was still under the employer’s duty of care at this time because the activity was reasonably incidental to his employment and under the employer’s control.
Regarding the first Defendant driver, the court found that although he reduced speed and was attentive to other hazards, he did not see the Plaintiff crossing the road until the collision. The presence of a vehicle obstructing the view further reduced the driver’s visibility of the Plaintiff. The court accepted expert evidence that the Plaintiff was likely running and was in the road for about two seconds before impact, which was insufficient time for a reasonably competent driver to perceive the hazard and take effective evasive action, including braking or swerving, given typical reaction and braking times.
The court found that the first Defendant did not breach the standard of care required of a reasonably competent driver because the collision was not avoidable within the time available given the circumstances and visibility obstructions. The Plaintiff’s contributory negligence in failing to look both ways before crossing was acknowledged but did not fully absolve the employer’s liability.
The employer was found negligent for breaching its duty by failing to ensure workers were collected at safe designated points as required by its own risk assessment, by permitting or expecting the Plaintiff to cross a fast-moving road without safe crossing facilities, and by failing to take reasonable steps to remove obstructions or communicate with workers. The employer’s failure was a significant cause of the accident and injuries.
On contributory negligence, the court found the Plaintiff 35% responsible for the accident due to his failure to look properly before crossing, but the employer bore 65% responsibility due to its greater control and failure to mitigate risks.
Holding and Implications
The court held that the first Defendant driver was not liable for negligence as the collision was not avoidable by a reasonably competent driver under the circumstances.
The court held that the second Defendant employer was liable in negligence for breaching its duty of care to the Plaintiff by failing to ensure safe pick-up arrangements and by placing the Plaintiff in a dangerous position.
The court apportioned liability with the employer responsible for 65% and the Plaintiff 35% due to contributory negligence.
The direct effect is that the employer must compensate the Plaintiff for the injuries and losses caused, subject to the contributory negligence reduction. No new legal precedent was established, but the decision reinforces established principles regarding employer liability for activities incidental to employment and the application of reasonable care standards to drivers.