The High Court has provided guidance on the apportionment of liability where the Claimant's speeding motorcycle collided with the Defendant, who was attempting to complete a right turn when exiting a car park.
Master Davison found that whilst both parties were to blame for the collision, liability would be properly apportioned 70/30 in favour of the Defendant. When assessing the blameworthiness and causative potency of each motorist, the Court found the Claimant's conduct by deliberately 'racing' at a "grossly excessive" speed was the most important consideration.
The Claimant had exited a roundabout where the speed limit was 40mph. The Defendant was attempting to exit a car park by making a right turn onto the carriageway.
The Defendant exited the car park, driving across the path of the Claimant, who collided with the offside rear of her vehicle. The Claimant suffered a serious injury to his right arm which removed all useful function from the limb. The Claimant issued proceedings.
At trial, CCTV footage established the Defendant's car accelerated slowly out of the car park intending to complete her right turn. She did not signal a right turn using the indicator at any stage. The Claimant's motorcycle came into view from the right. Despite applying emergency braking, the Claimant collided with the Defendant's vehicle.
The parties' respective accident reconstruction experts agreed that the CCTV showed the Defendant did not stop at the give way lines; instead she slowed from 8mph to 3mph as she reached the give way lines, before accelerating and reaching a speed of 13mph at impact.
The Claimant was held to be travelling at 70mph prior to emergency braking, and 55mph upon impact. The experts agreed that had the Claimant been travelling at the appropriate speed limit, he would have avoided the collision with the Defendant's vehicle.
It was found that the Defendant's view was obstructed when she moved off – her view before accelerating would have been 75 metres to her right. If she had waited at the give way lines, her view would have been unimpeded, and had the Defendant looked to her right before accelerating, she would have likely seen the Claimant on his motorcycle.
Master Davison found that both parties were responsible, "the Defendant for not looking properly to her right before she commenced her right turn and the Claimant for his grossly excessive speed."
On considering the level of contributory negligence by assessing the blameworthiness and causative potency of each party's negligence, Master Davison concluded the Defendant "put at risk even motorists who were only slightly exceeding the speed limit." She had not looked properly; had she done so, she would have seen the Claimant, and the accident would have been avoided.
However, the Claimant's speed "was (a) over double the limit, (b) grossly excessive for the circumstances and (c) calculated (in the sense that he was deliberately 'racing')."
Therefore, in the particular circumstances of this case, the appropriate apportionment of liability was 70/30 in favour of the Defendant.
What can we learn?
- Master Davison notes "previous decisions are of limited assistance" and the exercise of apportioning liability is "exquisitely fact-sensitive". The Claimant had sought to rely upon Master Davison's recent decision in Hernandez v Acar, (subject to appeal). Hernandez involved a vehicle exiting a minor road which collided with a motorcycle which was exceeding the speed limit on the major road. In this instance, liability was found 60/40 in favour of the Claimant. When referred to Hernandez, Master Davison highlighted the following differences:
- Mr Hernandez had exceeded the speed limit by a factor of 50%, the Claimant "was doing well over twice the legal limit".
- Mr Hernandez was 'inadvertently' speeding due to his relative unfamiliarity with his motorcycle, yet the Claimant was speeding in a "dangerous and irresponsible" manner.
- Parties need to be aware that each case will be judged on its own particular facts. A general template of accident circumstances based on precedent cannot be applied to collisions where both parties hold some degree of responsibility.