Personal Injury Claims Involving Motorcyclists Richard Cole Barrister, Civitas Law www.civitaslaw.com Introduction Case law emanating from the appellate courts concerning road traffic accidents often involve claims brought by motorcyclists. This may well be because injuries suffered by motorcyclists are more serious and therefore the parties involved in these cases are more likely to want to test the liability decisions made in the lower courts at a higher level. In any event, motorcycle claims are seeing increased exposure. Solicitors firms often have departments which specialise in claims involving motorcyclists. Indeed some firms deal solely with such claims. In recent months I have lectured to solicitors (including those who specialise in motorcycle claims) on the development of personal injury case law involving motorcycles. This article is intended to encapsulate the main general points that I have sought to present in those lectures. The article does, however, concentrate on the more common cases which involve motorcyclists, namely accidents which occur through overtaking and at junctions (often with a combination of both). The article - and indeed the lectures I have given - are intended as a practitioner s guide to the case law I have chosen to highlight. This is no replacement for the reading and analysis of the cases themselves. The Basics Whilst motorcycle claims have, it seems, gained a reputation as being a niche area of personal injury practice, it is important to remember that the basic tenets of negligence remain. The Claimant has to prove: a. that a duty of care existed; b. that that duty was breached; and c. that the loss was foreseeable.
Whether the Claimant can establish negligence depends on the facts of each case. Given the wide range of circumstances in which road traffic accidents can occur, including road conditions, weather conditions and the types of vehicles that may be involved, this is, in my view, a very fact sensitive area of personal injury law. In Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, Lord Denning stated : speaking generally, the questions in road accidents are simply these: What faults were there which caused the damage? What are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault? Times have not changed. Those are the essential issues that the court has to deal with in assessing liability in a claim involving a road traffic accident. That is true of any claim involving a motorcyclist. The Highway Code The Highway Code is an important tool in helping to assess liability. When I was a pupil barrister, a senior District Judge teaching on a training course I attended said that it was a publication that one could not be without in presenting and deciding such cases. My copy has been well used. In my experience potential breaches of the Highway Code are often pleaded in particulars of claim and defences/counterclaims. The importance of the Highway Code in assessing liability was recently highlighted in the Court of Appeal decision in Brown v Paterson [2010] EWCA Civ 185. In that case the Court of Appeal assessed whether there had been a breach of rule 142 (overtaking) and 143 (conflict with other road users) by a motorcyclist. The accident had occurred at night on an unlit main road. B and P had been travelling in the same direction, with B ahead of P. B slowed down and moved from the nearside to the offside of the carriageway, intending to turn right into a minor road. He was riding an off-road motorcycle that had no indicators. He carried out his manoeuvre without indicating or signalling. P had been gaining on B and had moved out in order to overtake him, and B had turned into his path. P gave evidence that there had been nothing to alert him that B was not going to proceed straight on. He was unaware that B had slowed down and he had seen no brake lights or signal. The trial judge concluded that P s driving could not be criticised. The Court of Appeal agreed. They held that there was no breach of rules 142 and 143. It is important to be aware that their Lordships stated that even if there had been a breach of either of the two rules, that would not have been sufficient by itself to establish or to create a presumption of negligence. It would simply be one of the circumstances on which B could rely in establishing negligence. Many of the cases involving motorcyclists involve overtaking, particularly at junctions, and often when in collision with larger vehicles. As stated above, the focus of this article is on cases which fall into that category. The starting point is the well referred to case of Powell v Moody (1966) 110 Sol Jo 215, The Times, 10 March, CA. The Claimant was riding a motorcycle on a busy road. He came up to a stationary line of traffic consisting of two vehicles abreast. The Claimant proceeded along the offside of the line of traffic, overtaking the vehicles. The Defendant was driving a car which came out of a side road on the nearside of the line of traffic to pass through a gap and turn right onto the main road. The car was given a signal by the driver of a milk tanker to enter the main road. As the car was inching his
way out the Claimant, who had not seen the side road, collide with him. The judge at first instance held both parties at fault but held the motorcyclist 80% to blame. This apportionment was upheld on appeal. It was held that any vehicle which jumped a stationary queue of traffic was undertaking an operation fraught with great hazard and which had to be carried out with great care. It is important to remember that the Court of Appeal will only rarely interfere with a trial judge s assessment of the respective degrees of blame to be attached to those involved in road traffic accidents. In Hillman v Tompkins, 22 February 1995, unreported (but summarised at Chapter 9.11 of Bingham and Berrymans Motor Claims Cases) Lord Justice Simon Brown stated that something quite exceptional would be needed before the court would think it appropriate to adjust respective contributions in such a case. In my opinion it is those contributions which define cases emanating from road traffic accidents, and particularly those involving motorcyclists. It is only reference to the case law and experience gained through dealing with cases of this type which allows practitioners to advise their clients accordingly and persuade judges as to where the contributions lie. An interesting case where such experience and judgment was needed in persuading the court is Farley v Buckley [2007] EWCA Civ 403, Maurice Kay LJ giving the leading judgment. In that case the Claimant was riding his scooter along a main road. The Claimant approached a side street to his left. As he did so he was in the process of overtaking a large refuse wagon, which was travelling in the same direction and indicating to turn left into the side street. The wagon was unable to turn left into the side street until a Ford Escort driven by the Defendant had turned out of the side street onto the main road. The Defendant s Ford Escort had advanced beyond the front offside of the wagon when the scooter, as it completed the overtaking manoeuvre, collided with the car. The judge at first instance held that the Defendant had been moving continuously at 5-8mph but proceeding slowly and cautiously. The Court of Appeal held that whilst those two findings were difficult to reconcile, the real issue was whether it had been negligent of the Escort driver to effect a continuous movement rather than to nose poke (edging forward bit by bit). The Court of Appeal analysed the dimensions of the carriageway and the respective vehicles involved in the accident. The Court of Appeal held that given the short space between the offside of the wagon and the centre of the main road, the difference between continuous movement and nose poking was extremely slight. It would be too much to expect a driver in the position of the Defendant to calculate the number of inches that it would be prudent to nose poke. The Court of Appeal also concurred with the trial judge s description of the Claimant s driving as being reckless, in overtaking stationary traffic at 30mph. The Court of Appeal made it clear that this was not authority for the proposition that a driver who failed to nose poke would avoid a finding of negligence and that emerging from a minor road at 5 to 8 mph was generally an acceptable manoeuvre. In Buchan v Whiting [2008] EWHC 2951 (QB), W had been in the process of completing a right hand turn when a motorcycle driven by B collided with his vehicle. B had been travelling at very fast speeds and had overtaken a number of vehicles. W had been indicating properly. Visibility was good and the weather fine. W stated that as he slowed to turn he could see that the first car coming
towards him (from the opposite direction) was between 50 and 100 metres away but he did not see B. Mr Justice Blake distinguished the instant case from the Farley decision. He held that in that case, and in another case, Houghton v Stannard [2004] EWCA Civ 107, the key parties could not actually see what was happening on the road, so their duty had been to make an assessment of probability on the information available to them. In those circumstances they did not foresee truly reckless driving. By contrast, the duty on W had been to assess that it was safe to cross before he did so. B should have been observed. W was therefore held negligent. However, B s conduct in travelling at manifestly excessive speed, was more than mere carelessness, he was reckless. A finding of 50% contributory negligence was held to be just and equitable. In Woodham v JM Turner (T/A Turners of Great Barton) 2011, EWHC 1588 (QB), T s employee was driving a coach which emerged at a T junction through a gap headed by a tractor and a trailer in stationary or slow moving traffic. The coach driver started to turn right to drive to the opposite side of the main road. W was driving a motorcycle along the main road towards the junction and overtaking on the outside of the slow traffic. The motorcycle struck the front offside corner of the coach and W sustained serious injuries. Mr Justice Kenneth Parker held that the coach driver was 70% liable on the basis that the view of oncoming traffic was obstructed and she should have waited for a more safe and secure opportunity to emerge. The motorcyclist shouldered 30% of the blame for the accident because it was held that there was a real possibility that a vehicle could emerge through the gap in his path. The motorcyclist s speed of 20mph was held to be too fast for the overtaking manoeuvre he was carrying out. It is hoped that these cases illustrate the fine lines involved in assessing where the contribution for the cause of road traffic accidents, involving motorcyclists lay. Please also see the following interesting cases involving overtaking and minor roads: Eric Davis v Schrogin [2007] EWCA Civ 974 where the Court of Appeal considered the actions of a motorcyclist in colliding with a vehicle which was undertaking a U turn. Anne Marie Hamilton v O Kane and Perry [2009] EWCA Civ 931 where the Court of Appeal considered an accident involving a motorcyclist carrying a pillion passenger who was over the drink drive limit and collided with a vehicle emerging from a minor road. Other Types of Motorcycle Accident resulting in Claims Whilst this article has concentrated on recent cases where collisions occur due to overtaking and at junctions, there are some other instances which are common and perhaps more specific to motorcyclists rather than other road users. Accidents and Debris Ahead on the Carriageway Clift v Hawes and MIB, 1999, unreported, Court of Appeal (helpfully summarised at Chapter 9.58 of Bingham and Berrymans Motor Claims): An accident occurred on the dual carriageway. Debris was left on the road, as a result of an accident caused by the First Defendant, which ultimately led to the second accident. The Claimant was riding a motorcycle following a Renault Clio. The Clio was being driven at 60-70mph in the offside lane and
on approaching the debris, braked and slowed to 10mph or possibly came to a halt. The Claimant then struck the Clio violently, was thrown from his bike and suffered serious injuries. On appeal it was held that the First Defendant who had caused the debris to be on the road was primarily liable for the Claimant s accident. However, contributory negligence on the part of the Claimant was assessed at 30% (at first instance the First Defendant was held entirely responsible). The Court of Appeal held that the motorcyclist should have been driving at a safe distance behind the Clio thus being able to be prepared for foreseeable emergencies which may arise. No negligence was attached to the Clio driver. Vision Affected by the Sun Greenwood v Cummings (2008) QBD Winchester (Nelson J) 9/4/2008 The Claimant had been crossing a slip road, on a crossing designated for pedestrians. She was hit by the Defendant s motorcycle. The motorcyclist maintained that he had not seen the Claimant, except for the split second before impact, because he was blinded by the sun. Mr Justice Nelson held that the Defendant was negligent in failing to keep a proper look out or driving in accordance with the road conditions. The Defendant was negligent in failing to stop or slow down as soon as he became aware that the sun was affecting his visibility or that it was likely to affect his visibility. Contributory negligence of 33% was assessed against the Claimant because independent witness evidence suggested that she walked into the road without stopping or pausing. However, it could not be said that the Claimant had given the Defendant no opportunity of avoiding a collision with her. Conclusion It is hoped that this article has provided some assistance for practitioners as to the case law which can be used in order to help formulate opinions as to where the causes and contributions for road traffic accidents involving motorcyclists lay. This will no doubt be beneficial in both advising clients and persuading judges.