An Inner House decision prompts a discussion of the duties that may be owed by a driver being overtaken
In the recent Inner House decision of Davis v Catto  CSIH 85, the question of whether a motorist being overtaken has a duty to slow down was addressed in light of advice in the Highway Code that it may be necessary to “slow down for reasons of safety”.
Stephen Skinner was the driver of a Ford Focus which was being driven very quickly, well in excess of the speed limit, along a country road. Rachel Davis was a passenger in another car, a Honda Civic, which was being driven even more rapidly and was overtaking Mr Skinner’s Ford. After overtaking, the Honda driver cut in very sharply in front of the Ford, despite there only being a slight bend ahead and no oncoming traffic. The bend could have been easily negotiated by the Honda. Unfortunately the Honda had an under-inflated rear tyre and, as it pulled in sharply, the tyre suddenly deflated leading to a loss of control.
As with all such cases, the decision was highly fact-dependent. At first instance the Ford driver was found to be 20% responsible for failing to slow down to allow the overtaking car “a greater margin of safety”. That apportionment was appealed. As part of a cross appeal to introduce joint liability, there was some discussion of whether the two drivers had been racing. This was dismissed on the evidence.
In the reclaiming motion, however, causation for the accident was placed squarely with the Honda driver who had been overtaking. Both drivers were driving at excessive speed, but this alone did not bring liability onto the car being overtaken. There was nothing to prevent the overtaking driver from continuing his manoeuvre and gradually returning to the left hand side of the carriageway.
When someone else appears
But what would the story have been if there had been an oncoming car? Only a month before the judgment in Davis, this question was addressed in the English case of Pykett v Clement  EWHC 2925 (QB). This was a serious accident which resulted in lifechanging injuries. Ms Clement, driving a Fiat Punto, attempted to overtake Mr Pykett, who was driving a Vauxhall Corsa. Whilst there was competing evidence about the circumstances of the accident, the evidence of a van driver travelling behind the two vehicles and who saw the accident was accepted.
The cars were travelling along an undulating country road with a number of bends. Ms Clement had attempted to overtake a first time on a blind bend but failed and had to brake hard and pull in behind Mr Pykett in order to avoid an accident. She tried to overtake again and was on the wrong side of the road for some distance trying to gain speed over Mr Pykett’s car when a van coming the other way approached around a curve – sadly by then there was no way to avoid a very serious collision.
Should Mr Pykett have slowed down to prevent the accident? It was found that Mr Pykett had maintained a steady course and speed – he had done nothing to contribute to the crash. Following Smith v Cribben  PIQR 218, it was held that the duty on him was not to “slow down or to take other steps merely to assist Ms Clement to avoid the manifest dangers that her driving had created”. Ultimately Ms Clement was found to be wholly at fault for creating the dangerous situation which led to the collision.
There may be good reason for maintaining a steady course. In Ogden & Chadwick v Barber & Higgs  EWCA Civ 1113, a motorcyclist attempted to overtake a Subaru car. On his first attempt the Subaru driver accelerated and the motorcyclist aborted his manoeuvre. The motorcyclist again attempted to overtake – which was perhaps foolhardy given what he knew the Subaru driver might do. This second attempt was on a straight stretch of road approaching a solid white line before a bend. The Subaru driver again accelerated. Just before the bend the Subaru decelerated; as a result there was nowhere for the motorcyclist to pull in to abort his overtaking manoeuvre, as he was still alongside the Subaru. He found himself stuck on the wrong side of the road at the bend just as another motorcyclist approached from the opposite direction, resulting in a collision. As with many such accidents, this innocent oncoming party was badly injured.
So can a motorist drive along steadily and ignore whatever perils face a vehicle overtaking them? It may seem so at first glance, yet arguably any driver sensing an imminent collision may not be faulted for taking whatever action thought necessary to avoid or minimise that collision. It is clear from Davis that all undoubtedly rests on the circumstances. Whilst it would be morally repugnant to intentionally force an overtaking car into danger, the courts have consistently shown that the overtaker should be left the chance to abort their manoeuvre and pull in behind a steadily driven vehicle. Just as predictability and consistency in decision making is highly prized by the judiciary, the predictability of a vehicle’s position that comes from maintaining that steady speed and course also appears to court judicial favour.
Barry Berlow-Jackson is a solicitor with Digby Brown LLP, Glasgow