Description
The Claimant was a pillion passenger on a motorbike being ridden by the First Defendant. The Third Defendant's car had broken down and was parked close to a bend on the opposite side of the road to the motorbike. The Second Defendant's car was overtaking the Third Defendant's car on the wrong side of the road. The First Defendant, believing that there might be a collision, took evasive action - first braking sharply then laying down the motorbike. Both the Claimant and First Defendant skidded along the road and were seriously injured.
At first instance, the judge apportioned liability for the Claimant's injuries as 50% to the First Defendant, 20% to the Second Defendant and 30% to the Third Defendant. The First Defendant appealed the judge's decision that he was liable at all, and in the alternative challenged the apportionment of liability between himself and the Second Defendant. The Second Defendant cross-appealed, challenging the judge's finding that she was liable at all.
The Court of Appeal held on the facts that all three Defendants were liable. However, the Court did alter the apportionment of liability, so that the First Defendant's portion was reduced to 35%, the Second Defendant's increased to 35% and the Third Defendant's remained at 30%. The Court of Appeal considered authorities including The MacGregor [1943] AC 197, in which the House of Lords emphasised that only in exceptional circumstances would an appellate court interfere with a first instance judge's apportionment of liability.
