Hugh Mercer QC sitting as a Deputy Judge in the Queen’s Bench Division of the High Court handed down his judgment in the case of Arthur Deller (a child) v Ms Deborah King and Mr Guy McGarvey on 17 December 2021 [Deller v King & Anor [2021] EWHC 3398 (QB) (17 December 2021) (bailii.org)]

The Claimant’s claim arose out of a road traffic accident on 29 August 2016 on the southbound carriageway of the M5. The First Defendant, Ms King, was driving her Audi A2 when she suffered a puncture to her rear offside tyre. She attempted to move her vehicle onto the hard shoulder of the motorway but lost control and ended up re-entering the motorway and coming to a halt across lanes 2 and 3. Her vehicle was then struck by Mr McGarvey’s Volkswagen Bora at high speed. The Claimant is Ms King’s son, and he was 4-years old at the time of the accident. He was a rear seat passenger in Ms King’s vehicle along with his father and older sister. The matter was listed for a trial of liability and contributory negligence only and was heard over 4 days in November and December 2021. The Claimant was obviously an innocent party and the trial only looked to resolve the issue of who was liable for the accident; Ms King or Mr McGarvey.

The parties all relied on expert accident reconstruction evidence on the accident circumstances and the likely cause of the puncture. The Claimant and Second Defendant instructed one expert to deal with both issues (an accident reconstruction expert) while the First Defendant relied on evidence from two experts; an accident reconstruction expert and a specialist tyre expert.

Ms King gave evidence that she was driving in lane 1 and was just about to move into lane 2 to overtake a lorry when her vehicle started vibrating (as a result of the puncture) and a warning light lit up on the dashboard. As a result, she aborted her overtaking manoeuvre and remained in lane 1. Ms King’s husband gave evidence that she then made a sharp turn to the left (turning the wheel 60 degrees to the left) onto the hard shoulder at which point she had reduced her speed from 60/70mph, to 40/50mph. Ms King lost control of her vehicle on the hard shoulder, and it started fishtailing. She fought to regain control but was unable to do so and she turned right and re-entered the motorway coming to rest in a stationary position straddling lanes 2 and 3 of the motorway. Ms King’s tyre expert gave evidence that any turn to the left with a rear offside puncture was likely to give rise to oversteer which meant a greater turn than intended. The Second Defendant’s reconstruction expert also gave evidence saying that after losing control in such a manner, you would need to be lucky or have specialist training to recover it.

Mr McGarvey was driving along lane 2 of the motorway and when he noticed Ms King’s vehicle start to wobble as it if were driving on an uneven surface and he then saw that the rear offside tyre was deflated. He was about 100 yards behind her at this point and he stated that he saw her immediately turn onto the hard shoulder and then saw the rear of Ms King’s vehicle swinging left and right. Mr McGarvey gave evidence that he was driving at around 60 to 70 mph when he witnessed this and that he took his foot of the accelerator and Deputy Judge Mercer found that he was travelling at around 40 to 50mph most likely at the upper end of his estimate. Despite witnessing Ms King’s vehicle fishtailing, Mr McGarvey considered that she would regain control of her vehicle as she slowed further in the hard shoulder. He did not attempt to slow further or put his hazard lights on.

Importantly the accident reconstruction experts gave almost agreed evidence that it took a minimum of 3.5 seconds from when Ms King turned right back onto the hard shoulder until she came to a halt on the motorway. Both Ms King and her husband gave evidence that they turned to each other to express a brief exchange of relief before they saw Mr McGarvey’s vehicle approach just before the collision Deputy Judge Mercer found that this added a further 1 to 2 seconds from the time when Ms King turned right back onto the hard shoulder, thus giving Mr McGarvey a minimum of 4.5 seconds to react to avoid a collision.

After reaching these findings of fact, Deputy Judge Mercer then considered whether Ms King was liable for the accident, and this focussed on her initial sharp turning manoeuvre onto the hard shoulder as she could not be criticised for turning back onto the motorway once she lost control of her vehicle. He found that “Thus although the oversteer effect will have been more severe due to the sharpness of the turn, the sharpness of the turn onto the hard shoulder at a speed of 40-50mph in a vehicle which clearly had a problem affecting its handling as demonstrated by the considerable vibration is in my judgment negligent”. He did not accept the submission from Ms King’s barrister that “it is only possible to maintain control of a car in these circumstances if you steer so little that it is almost a drift towards safety”. The expert evidence on this issue suggested that a gradual steering to the hard shoulder should not give rise to loss of control. He found that the sharp 60 degree turn to the left was negligent.

Deputy Judge Mercer then considered Mr McGarvey’s liability for the accident. He found that Mr McGarvey had witnessed Ms King’s vehicle start to vibrate, her turn onto the hard shoulder, and then her loss of control. His reaction was to slow to 40-50mph but he did not put his hazard lights on and he did not contemplate stopping. He wrongly assumed Ms King would regain control as she slowed down. Deputy Judge Mercer found that Mr McGarvey was negligent in seeking to pass a vehicle which he had witnessed being out of control and stated that he should have been carefully tracking Ms King’s vehicle as he approached it and had he done so he would have seen it re-enter the motorway from the hard shoulder. He found that had Mr McGarvey seen Ms King’s vehicle re-enter the motorway that he had sufficient time to react (a minimum of 4.5 seconds) and bring his vehicle to a safe stop to avoid the collision.

After finding that both drivers were negligent for the accident, Deputy Judge Mercer had to deal with the appointment between them. This required him to assess the causative potency of their respective actions and its blameworthiness. He found that Ms King’s sharp left-hand turn had greater causative potency than Mr McGarvey’s decision to overtake a vehicle which was out of control. In respect of blameworthiness, and he found that Mr McGarvey’s decision to pass/overtake a vehicle observed to be out of control to be more blameworthy than Ms King’s actions. He found that Mr McGarvey was 60% liable and as a result Ms King was 40% liable for the accident.

On first blush, the finding that both drivers were liable for the accident will have little consequence to the Claimant who as an innocent passenger will recover 100% compensation irrespective of who was liable. I assume one of the relevant insurers has been providing funding for the Claimant’s rehabilitation and care needs, given so much time has already passed since the accident so he should have been well cared for. However, a finding that the Claimant’s mother (Ms King) was also negligent for the accident will have quite stark emotional consequences for the family. His mother will have to deal with the emotional turmoil that she has been found to have partially caused her son’s injuries, especially if such injuries are enduring and life changing.

The finding of liability against the Claimant’s mother seems quite harsh in the circumstances where she was driving within the speed limit on a motorway and then had to react to a serious vehicle malfunction which it does not appear she could have prevented (she gave evidence that she regularly checked her tyre pressure). Her reaction to turn onto the hard shoulder is obviously a reasonable one and the only criticism of her driving is that her turn was too aggressive or harsh. The analysis of her actions does not seem to consider the stress and trauma of such a situation and desire to reach the safety and refuge of the hard shoulder as quickly as possible.

It is clear that the evidence of the accident reconstruction experts was hugely persuasive in this case, particularly in relation the oversteer caused by Ms King’s sharp turn onto the hard shoulder and the time available to Mr McGarvey to react to Ms King’s vehicle re-entering the motorway.