No presumption of fault where following driver collides

The decision in O’Donnell v Smith and Royal & Sun Alliance Insurance plc [2018] SC EDIN 68 (Sheriff McGowan, ASPIC, 18 December 2019) illustrates that the mere fact that a vehicle has collided with the rear of the vehicle in front does not, in itself, give rise to the presumption that the driver of the following vehicle has been negligent.

The pursuer, an experienced motorcyclist, suffered injuries when his motorcycle collided with the rear of the first defender's car. An action was raised and defended on the basis that there was no liability on the part of the first defender or that, if there was, there should be a significant finding of contributory negligence. Following a proof, it was held that liability had been established and that there had been no contributory negligence.

The pursuer had been travelling with two other motorcyclists. He had been at the front of the group and the first defender's car had been ahead of them. He had been approximately 50-60 metres away from the first defender's car and had slowed to about 50mph when first defender had performed what appeared to be an emergency stop and brought her car to a complete halt. The pursuer had been unable to avoid colliding with the car.

The first defender described becoming apprehensive when she saw the motorcyclists travelling behind her. She had intended to slow down, but she was unable to explain why she had brought her car to a sudden stop and, on her own evidence, that manoeuvre had not been appropriate. Sheriff McGowan found that there had been no legitimate reason presented to explain why the first defender should have been apprehensive. He held that, on her own evidence, the first defender had been in breach of duty. The defenders argued that there ought to be a significant finding of contributory negligence and suggested a reduction of 70% on the basis that the pursuer had been driving too close to the first defender's car and at speed.

Sheriff McGowan disagreed and made no finding of contributory negligence. He found that the pursuer had no reason to think that the car in front would stop suddenly and, in those circumstances, even a short delay in reaction would have compromised his ability to stop safely. The pursuer had done what he could to avoid an inevitable collision in what had been an emergency situation.