Court of Appeal asked to determine liability in a road traffic accident involving a motorbike overtaking in slow-moving traffic, which was not visible to the car he collided with

Burton v Evitt [2011] ALL ER (D) 147 (Oct)  

The claimant (C) who was a motorcyclist involved in a collision with the defendant (D) was held to be two-thirds liable for the accident that occurred as he tried to overtake D’s vehicle, which was attempting to turn.

D appealed on the following grounds:

• he was driving his car at the front of a queue of traffic
• he slowed and was almost at a standstill, and checked his mirrors before attempting to turn right into a car park
• C’s bike was not visible in his mirrors; all he saw was a larger vehicle behind him
• C was in the process of overtaking the queue of traffic at the time and was driving at an unsafe speed
• he did all that he reasonably could to check that his manoeuvre was safe before proceeding; anything more was a counsel of perfection.

The Court of Appeal held that there was a need to be particularly aware of the presence of bikes who might try to overtake a line of slow-moving cars. Although D had acted with considerable care, he could not see what was coming up on the offside because of the large vehicle behind him and therefore should have inched out. The issue of blameworthiness was greater for C than D and therefore apportionment of liability was changed to 80/20 in D’s favour.