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Stimpson v Excel Logistics Ltd & Others, Court of Appeal, 30 September 2004

5 October 2004
The issues

Road Traffic Accidents – Road Vehicles (Construction And Use) Regulations 1986 – Whether Driver’s Failure To Check Tyre Pressures Before Commencing Journey Was Negligent – Whether Accident Caused By Negligence Of Appellant Company Which Assembled Wheel And Tyre

The facts

The Claimant was a passenger with 9 others in a Land Rover 12 seater vehicle driven by Wayne Curran, the First Defendant and provided by his employers, Land Rover, the Second Defendant. As Mr Curran pulled out to overtake a bus on the M6 after about 40 miles into the journey the Land Rover swerved to its left then its right and rolled along the motorway before coming to rest on its roof causing serious injuries to the passengers and in one case, fatal injuries. There were a number of alleged causes.

The first was the fact that the two rear tyres were seriously under inflated. Land Rover acknowledged at Trial that it had been negligent in providing a vehicle with under inflated rear tyres and that the under inflation was one of the causes of the accident. Secondly, it was alleged against Mr Curran that (a) he had failed to check the pressures of the tyres before setting off and (b) that in driving he should have become aware of the effect of the under inflation upon the handling of the vehicle, and (c) that he had overtaken in a negligent manner. Finally, allegations were made against Exel who had assembled the front offside wheel and tyre. After the accident the front offside tyre was found to have a split inner tube and to have become seriously deflated. It was alleged against Excel that the split and resultant deflation had occurred in the course of the journey combining with the pre-existing instability of the under inflated rear tyres to cause the accident.

Excel acknowledged at the Trial that it fitted the tyre negligently by leaving dirt and grit between the inner tube and tyre casing but denied that negligence was causative either because the inner tube did not split before the accident but was caused by it or that if it did split before the accident because the deflation did not contribute to the accident.

The Judge found that the front offside tyre tube split before the accident and that the split, in combination with the under inflated tyres caused the accident it and apportioned liability two thirds against Excel and one third against Land Rover. Excel appealed against the finding that Mr Curran was not negligent and in respect of the apportionment of liability against themselves.

The decision

1. Was Mr Curran negligent?

a) In respect of failing to check his tyre pressure. The Road Vehicles (Construction and Use) Regulations 1986 created an absolute duty not to use a vehicle on a road if its tyres were not inflated as to be fit for use. Breach of that duty was an offence under Section 41A of the Road Traffic Act 1988 although it did not give rise to a civil cause of action. However, the Regulations could provide no guidance as to the standard of duty of care applicable in the circumstances nor did they give an individual a private right of action. The fact that Mr Curran had accepted in evidence that he should have checked the tyres did not fix him in law with negligence. The Judge had applied the “reasonable man” test to absolve Mr Curran on the basis that he had been supplied with a well maintained vehicle in good condition and in his failing to check tyre pressures had done no more and no less than the vast majority of people would have done.

The application of that test was not vitiated by the existence of the statutory duty in the 1986 Regulations. Nobody in the real world would suggest that Mr Curran should have checked the correct tyre pressures of a company vehicle seemingly in immaculate condition and which he knew was maintained by a Land Rover employee highly conscientious about the condition of the vehicle.

b) In respect of his failure to notice the unstable condition of the vehicle; other than a slight buffeting the Judge found that there was nothing to put Mr Curran on notice that the Land Rover was not handling properly. On the basis of the Judge’s findings there was no reason for the Court of Appeal to interfere with his decision in this respect.

2. Whether the cause of the accident was driving error and/or failure of the front offside tyre.

a) Driving Error – The Judge found that the loss of control Mr Curran had suffered when overtaking was entirely due to the unsafe condition of the tyres, the front offside tyres causing the “fish tailing” which had been exacerbated by the condition of the rear tyres. There was nothing that Mr Curran could have done to prevent the accident and no reason for the Court of Appeal to interfere.

b) In respect of the front offside tyre failure it was common ground that a seriously deflated front offside tyre would not normally effect the handling of a vehicle when being driven in a straight line or when turning to the right. The Judge found that the expert evidence established that the front offside tyre had been leaking air during the course of the journey as the result of its negligent assembly and that the speed of the leak accelerated as the journey progressed and that the split in the tube grew so that the tyre became seriously deflated and that in that condition the vehicle would have been unmanageable once the loss of control began to occur.

For Excel it had been argued that there was no evidence of a right hand turn immediately prior to the accident which would have precipitated a loss of control as a result of the under inflation of the front tyre. It was also alleged by Exel that Mr Curran had contributed to the accident by driving too close to the coach when overtaking. The Judge made a finding of fact that Mr Curran had not driven too close to the coach or otherwise negligently to cause the loss of control.

Therefore the only candidate for some sideways movement one way or the other bringing into play the feature of instability from the under inflated rear tyres was failure of the offside front tyre, which failure precipitated fish tailing and over turning of the vehicle.

The Judge on the evidence was entitled to find that this was the case. He had considered a range of possibilities as to why an initial right hand pull or movement was not evident in the case. This was not as had been argued an instance of the Judge deciding the case on speculation or on a balance of improbabilities. The Judge’s finding was supported on the evidence.

c) Apportionment

The Trial Judge had a wide margin of discretion with regard to apportionment. Although rear tyre pressure alone would not have caused loss of control so long as the vehicle continued in a straight line there was bound to come a time on a journey when there would be a significant turn to the right or left at some speed and the problem would come to life. At that point the consequence of under inflated rear tyres was far more serious than previous under inflation of one or both front tyres. In this case it was hard to choose between the “causative potency” of the precipitating cause (the failure of the front tyre) and that of the dangerous and underlying instability at the rear. Exel should not be regarded as twice as much to blame as Land Rover. The causative negligence of each was substantial and the Court could see no intellectually respectable basis for distinguishing between their respective blameworthiness. The apportionment would be set aside and replaced with a 50/50 split.

Appeal allowed in respect of apportionment only.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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