The Court of Appeal judged that while breaking the Highway Code
may be evidence of negligence, every case must be assessed on the
evidence. But the judgement was not unanimous.
The case
Goad v Butcher [2011] EWCA Civ 158
The issue
In this case, the Court of Appeal was asked to consider a
question which is often posed in road traffic accident cases: does
a breach of the Highway Code constitute proof of negligence?
The facts
The claimant, Mr Goad, was riding a motorcycle along a B-road in
Cambridgeshire when he collided with a tractor and a low-loader
trailer driven by the defendant, Mr Butcher. As a result, Mr Goad
was seriously injured. He sued Mr Butcher for damages for personal
injury. The accident occurred while Mr Butcher was turning right
into a lane off the B-road. The layout and road markings of the
junction clearly identified an entrance and exit to the lane on
either side of a triangular island of grass. It was common ground
between the parties that Mr Butcher 'cut the corner', entering the
exit rather than the entrance to the lane. When Mr Butcher
commenced his right turn, he could see for a distance of more than
100 metres along the road and at that point Mr Goad was not in
sight. Had Mr Butcher started his turn by the entrance to the lane,
he would have extended his view by a further 20 metres. Mr Goad was
travelling towards the junction from the opposite direction. Expert
evidence established that he was travelling in excess of the speed
limit, at 55-65mph. Mr Goad braked, skidded, lost control and
collided with the tractor. Mr Butcher had almost completed the
turn. Only the rear of the trailer protruded approximately halfway
across one lane of the B-road. The experts concluded Mr Goad would
have had room to pass around the trailer safely had he not
lost control.
The decision
At first instance, the trial judge found that the accident had
not been caused by a breach of the Highway Code in cutting the
corner, but by Mr Goad's excessive speed. The claim was dismissed.
Mr Goad appealed on grounds that Mr Butcher had been negligent in
starting the turn too early, in failing to turn at the point where
he had maximum visibility, and in failing to observe the road
markings at the junction; and that by doing so he had failed to
comply with paragraph 156 of the Highway Code (as in force in June
2006). The Court of Appeal held (by majority) that although a
breach of the Highway Code had clearly been established, as Mr
Butcher had cut the corner, this was "little more than an
unfortunate red herring." Lord Justice Moore-Bick said: "A failure
to observe the Code may be evidence of negligence, but whether it
is will depend very much on the circumstances in which the act in
question was committed and who is the claimant." In the
circumstances of this case, cutting the corner would have been an
act of negligence on the part of Mr Butcher towards any road-user
seeking to leave the lane from the exit slip road, but it was not
negligent in respect of a road-user seeking to leave by the other
slip road, being the intended entrance to the lane. The real
question was whether it was negligent of Mr Butcher to make the
turn into the lane at the time and place that he did. The Court of
Appeal held that, with a view of 110 metres down the road, this was
sufficient distance for a reasonably prudent and careful driver of
a slow moving and lengthy vehicle of the kind Mr Butcher was
driving. Accordingly, Mr Goad's appeal was dismissed.
Morag Baird
It is noteworthy that the Court of Appeal did not speak with
one voice on this issue. In a dissenting judgement, Lord Justice
Jackson considered that the breach of the Highway Code was of
considerable significance. He placed reliance on Section 38(7) of
the Road Traffic Act 1988, which states that breach of the Highway
Code may be relied upon in criminal or civil proceedings as tending
to establish any liability which is in question. Although a breach
of the Highway Code does not give rise to a presumption of
negligence, it was a relevant circumstance which the Court should
take into account in determining whether the driver was negligent.
This judgement provides that although a failure to observe the
Highway Code may be evidence of negligence, it is not determinative
of the issue. Each case must turn on its own facts. In this regard,
Mr Goad's claim was less attractive because he was travelling at
excessive speed and this element of his own culpability clearly
influenced the findings of the Court.