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Cite as: [2013] EWHC 4108 (QB)

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Neutral Citation Number: [2013] EWHC 4108 (QB)
Case No: 1PL04174

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLYMOUTH DISRTICT REGISTRY

Exeter Combined Court Centre
Southernhay Gardens, Exeter
20/12/2013

B e f o r e :

THE HON MR JUSTICE BURNETT
____________________

Between:
MR PHILIP JONES
Claimant
- and -

MR MICHAEL JOHN LAWTON
Defendant

____________________

Colin Mendoza (instructed by Chris Kallis Solicitors) for the Claimant
Patrick Vincent (instructed by Messrs Greenwoods) for the Defendant
Hearing dates: 14, 15 and 25 November 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Burnett :

    Introduction

  1. At 16.00 on Friday 28 May 2010 a collision occurred in Outland Road, Plymouth between a motorcycle ridden by the claimant, Philip Jones, and a Ford Mondeo driven by the defendant, Michael Lawton. Outland Road (the A386) is one of the main routes in and out of Plymouth. Mr Jones was riding out of Plymouth in a roughly northbound direction. At that time the traffic leaving the city was very heavy. Outland Road is divided into four lanes, two each way, and subject to a 30 mph speed limit. Both northbound lanes were solid with traffic moving very slowly in a stop-start fashion. To the offside of Mr Jones was a park; to his nearside a series of residential side turnings.
  2. Mr Jones was riding along the offside of the two slow moving lanes of traffic. He was in the outside lane available for southbound traffic. There was an issue about how far into that lane he was riding, but there was no oncoming traffic nearby. Mr Lawton was turning right from Belair Road, one of the side turnings. The traffic stopped to let him out. He emerged and the collision occurred. As the photographs show, the front of the Ford Mondeo was damaged as the motorcycle crossed its path in the course of the collision. Mr Jones' left leg was very seriously damaged during the impact between the two vehicles. Unhappily the leg could not be saved. He underwent an above knee amputation.
  3. This judgment follows a trial on liability alone. Each party contends that the collision was entirely the fault of the other. As the evidence unfolded over the course of three days it became clear that neither was free from responsibility. For reasons which I shall explain, Mr Jones has established primary liability but with a reduction for contributory negligence of one third. There is a small counterclaim.
  4. Outland Road is essentially straight either side of the scene of the accident. The weather was fine and visibility excellent. All four lanes are marked by dividing broken white lines. Drivers leaving Plymouth pass a speed camera about 140 metres before reaching the junction with Belair Road. There is another camera about 130 metres beyond Belair Road. Beyond that is a set of traffic lights. It was towards those lights that the traffic leaving Plymouth was crawling.
  5. Mr Jones' case is that Mr Lawton pulled out of Belair Road quickly and without any thought for the possibility that a motorcycle might be passing along the offside of the stationary and slow moving traffic. He was riding slowly and had no opportunity to avoid the collision. Mr Lawton's case is that he was exercising all reasonable care and emerged slowly, as he was entitled to do. The collision was caused by Mr Jones riding too fast along the offside of the traffic. Mr Lawton says he could not be expected to anticipate the possibility of a motorcycle coming at speed on the wrong side of the road.
  6. The Evidence

  7. Photographs of the scene and the vehicles immediately after the collision provide incontrovertible evidence against which the accounts of the parties and of the several witnesses can be tested.
  8. The Ford Mondeo came to a stop at an angle of about 45 degrees with its rear end still in the outside lane of the northbound carriageway. Its front was contained entirely within the outside lane of the southbound carriageway. The impact had occurred when that car was moving (of that there is no doubt). It is therefore clear that between impact and coming to a halt the car had travelled at most half a car's length. Mr Jones readily accepted that he would not have been passing very close to northbound traffic. The southbound carriageway was clear. Some of the traffic in the outside lane of the northbound carriageway was close to the white lines and he needed to leave some space between that traffic and his handlebars. The overwhelming inference is that after impact the car travelled only a handful of feet. The evidence is that it stalled. As the photographs show, the damage to the front of the car was very extensive. The bumper, grill and offside headlight were ripped off and the bonnet dislodged as the motorcycle passed across its front. Photographs of the motorcycle show clear evidence of impact damage to the front nearside fork and along much of its length on the nearside.
  9. There was a good deal of time and energy devoted during the trial to the question of who hit whom. I am bound to say that I found that debate rather sterile. Even if the motorcycle was travelling as slowly as 15 mph (as Mr Jones contended) it would cover 22 feet per second. So the answer to the question whether the motorcycle caught the car on its front off side corner, or the front of the motorcycle was perhaps a foot further forward so that the bumper hit the front wheel or fork of the motorcycle is found in fractions of a second which do not illuminate issues of fault.
  10. A number of uncontroversial features of the vehicles at the time of the collision merit mention. The driver's window of the Ford Mondeo was wound down. The motorcycle had a loud throaty sound (commented upon by a number of witnesses). Its headlight was on. The motorcycle itself had a low-slung seat, of the sort described during the trial as an "Easy Rider" type. The claimant was not as high as he would have been on many other motorcycles.
  11. In addition to the parties, evidence was called from a number of witnesses. Danielle Graham was the driver of a car immediately behind the defendant in Belair Road. Angela Fox was the driver of a car going towards Plymouth. Thomas Kaldeck was the driver of the Vauxhall Vectra which can be seen in the photographs. It had stopped in the outside northbound lane to let the defendant out. A small van had stopped in the inside lane. Michael Howell was driving a 4 x 4 Daihatsu in the outside lane about eight cars behind Mr. Kaldeck. Christopher Lavers was in the inside lane two or three cars back from the junction with Belair Road. Jamie Durrant-Fellows was in the offside lane about 20 vehicles back from the scene of the accident. Written evidence from Robert Frier was relied upon by both parties. He was driving in the inside lane someway from the junction with Belair Road. His statement was made on the day after the collision. The police report contains abbreviated accounts given to officers at the scene or shortly afterwards from most those who gave evidence. There was also written evidence form Caroline Holland who provided dimensions of the Ford Mondeo. The bonnet from the front of the bumper to the base of the windscreen is 1160mm. From the same point to the defendant's head (if not leaning forward) would have been about 2600mm and to the top of the steering wheel about 1800mm.
  12. Mr Jones was too seriously injured to be able to provide an account at the scene. He made a number of statements for the purposes of proceedings. The first was made on 29 June 2010. In that statement he said that he did not believe that he was going more than 30 mph and that he was "overtaking both lanes of traffic as there was nothing coming down the opposite direction and there was plenty of room." He explained that his view of the emerging car was obscured by the line of traffic. He remembered little of the circumstances of the accident because it happened so quickly. He applied his brakes hard and then there was an impact. Mr Jones made a further statement on 16 November 2010. He described passing the two lines of traffic, but explained that he was 'filtering' and only going at 1520 mph. He said he was on the hazard lines (meaning the lines in the centre of the road) or slightly to the offside. He added that the Ford Mondeo came out very fast. In this statement he indicated that he had no time to swerve or brake. In a supplementary statement signed on 14 June 2012 Mr Jones said that "the car came at me so fast that it was a bit of a blur." He went on to say that he believes he instinctively braked and swerved.
  13. In a more detailed statement signed on 12 June 2012 Mr Jones described the scene in detail and repeated his belief that he was travelling at between 15 and 20 mph. He confirmed that he did not notice that vehicles had stopped to allow the car to emerge from Belair Road and that he could not see over the tops of vehicles from where he was sitting. He saw the Ford Mondeo a split second before the impact. Mr Jones elaborated upon his use of the words 'filtering past' rather than 'overtaking' the lines of slow moving or stationary traffic. Motorcyclists filter through slow moving traffic and that is what he was doing, he said. The difference in language founded a submission made on behalf of Mr Jones that because he was filtering, rather than overtaking, the warning contained in rule 167 of the Highway Code not to overtake at junctions had no application. In this statement Mr Jones once again suggested that he would have tried to brake or swerve.
  14. In oral evidence Mr Jones confirmed that he knew the road very well indeed, travelling along it perhaps 10 or 20 times a week. He was not travelling to close the cars he was passing, but was not in the middle of the road. He emphasised that the presence of the speed cameras would have kept him within the speed limit, and doubted whether he was going even as fast as 15 to 20 mph although he was not looking at his speedometer. He said that he was not aware of the car at all before it hit him. Mr Jones considered his position in the road by reference to the photographs of the Ford Mondeo after the collision. He thought that he was travelling to the offside of the white lines roughly in line with where the Mondeo's wing mirror can be seen (that is very roughly a metre over the line). After the impact the Mondeo travelled the length of its bonnet. He did not look left at Belair Road, he was looking ahead.
  15. Mr Lawton gave a very short account under caution of events at the scene:
  16. "I just dropped my daughter to 16 Belair Road and was just on my way to pick my granddad up. I came to the junction with Outland Road and indicated right. A Vauxhall Vectra driver and a van driver let me out by stopping. I looked left and nothing was coming so I pulled out and the motorbike overtook the waiting cars on the wrong side of the road and he hit the front of my car."
    That explanation was expanded upon in a statement made on 19 June 2012. Mr Lawton described the scene and explained how he moved into the gap left by two vehicles to enable him to turn right. Mr Lawton said that he checked left and right constantly and moved forward in first gear at 2 or 3 mph. He was edging forward when his car was hit when its front was clear of the stopped vehicles. He did not see the motorcycle before the accident and could not say how fast it was going.
  17. Mr Lawton gave further detail in his oral evidence. He said that he did not accelerate hard and was doing only 3-4 mph. He did not expect anything from the right and saw nothing. On impact the car stalled and the airbag deployed. He thought he had gone forward only about a foot after impact.
  18. Mr Lawton was cross-examined upon his first account, and in particular the absence of any reference to looking right. He explained that he was in shock and that the account was not a full one. He agreed that he was taking a chance in turning right as he did and said that it did not occur to him that a motorbike might be coming along the outside of the slow moving and stationary cars. Once he could see that it was clear to the left, he did not stop but began to execute the manoeuvre. He did not think he bent forward to look over the steering wheel, he did look to the right but was concentrating on whether there was anything coming from the left. Mr Lawton was asked why he did not hear the motorbike coming. He did not know, but volunteered that the engine of the Ford Mondeo was itself noisy.
  19. Danielle Graham made her statement in these proceedings on 29 May 2012. She said that she had waited behind the Ford Mondeo in Belair Road for perhaps a minute. She intended to turn left. She described the Ford Mondeo crossing the first lane slowly and then accelerating "very fast in order to cross the second lane and the central white lines." She heard the engine squeal and high revving. She did not see or hear the motorcycle. She heard the impact before she saw it and had a vague recollection of hearing the sound of a horn. She left the scene and went to her mother's house nearby, from where her mother made a 999 call. In a short letter to Mr Jones' solicitors dated 15 October 2010, Danielle Graham noted that the car "pulled out fast".
  20. The police report contains a short statement attributed to Danielle Graham in these terms:
  21. "Was behind Mondeo coming out of Belair Road into Outland Road. Mondeo travelling at slow speed, did not see m/c."
  22. Miss Graham had no recollection of having spoken to a police officer although she must have done. In her oral evidence she maintained that although the Mondeo started moving slowly it then moved off fast. However, she was unable to recall the Mondeo stopping in the road after the accident directly ahead of her. She turned left as the traffic cleared.
  23. Thomas Kaldeck made a long statement to the police two days after the accident. He was a regular user of Outland Road which he described in detail. His driver's side window was open and the car radio was on. He approached Belair Road and noticed the car wishing to turn out. As the traffic ahead of him moved away, both Mr Kaldeck and the driver of the vehicle next to him waited to allow that car to turn. He went on,
  24. " the Mondeo slowly came across lane one and lane two, as the Mondeo was in front of me I heard a loud engine noise approaching from behind me.
    I have looked in my driver door mirror to see a motorcycle travelling along lane 2 of the inbound carriageway but towards me. I cannot say exactly where the motorcycle was positioned in the lane.
    As the motorcycle has gone level with my car I have raised my head to see it come into collision with the front driver's side corner of the Mondeo which was approximately a metre or so into lane two of the inbound carriageway."
    He added that he was unable to estimate the speed of the motorcycle or whether its rider took avoiding action.
  25. Mr Kaldeck's statement for the proceedings exhibited and adopted his contemporary account. He said that there were no vehicles in the southbound carriageway and confirmed that the Mondeo had only just crossed the central white lines when the collision occurred. In his oral evidence he said in cross examination that he thought the car was moving slowly.
  26. Christopher Lavers provided a condensed account to the police which was summarised in this way:
  27. "Travelling outbound, inside lane third car back from junction with Belair Road, traffic solid stopping in front of me allowing blue Mondeo out of Belair Road. Motorcyclist drove past car on the outside of me. Mondeo creeping out of junction. Collision puff smoke rider and bike in air."
    In his witness statement dated 15 February 2012 Mr Lavers indicated that whilst he was unable to say how fast the motorcycle was going, the sound it was making indicated it was accelerating. Out of interest he turned round to look at it, so he did not have the Mondeo in view for a few moments. He also did not see the impact from where he was positioned in the inside lane because other cars blocked his view. In oral evidence Mr Lavers explained that he twisted round to look at the motorcycle, having heard it coming, and saw it as it passed his car and the car next to him. The noise made him curious. He turned round to the front as it passed and could see the Mondeo moving. He could not say whether it accelerated at the end. Nothing about the Mondeo had caused him concern save that he was immediately able to appreciate that there was going to be a collision.
  28. Michael Howell's thumbnail sketch at the scene was,
  29. "Outbound carriageway approx 8 vehicles behind in outside lane. Window open radio on and heard m/c approaching from behind in inbound carriageway. Estimate speed to be approx 30 to 40 mph, saw collision and rider flying through the air."
  30. In his statement dated 23 February 2012 Mr Howell explained that he was in a high Daihatsu vehicle. The inbound lane was clear of traffic. He described the loud throaty sound on the motorcycle. He looked in his wing mirror and saw the motorcycle being driven in the middle of the outside lane of the southbound carriageway. He immediately thought it was being ridden dangerously. As it went past, Mr Howell followed it with his eyes and then noticed a car edging out of a side turning up ahead. The car's bonnet was over the white line and just in the outside lane of the southbound carriageway when the impact occurred. He did not see any sign of braking from either vehicle. In his oral evidence Mr Howell said that he only saw the Mondeo a split second before the impact; his eyes were fixed on the motorcycle. He was pressed by Mr Mendoza on the speed of the motorcycle and agreed that it was difficult to judge. Mr Howell thought that the motorcycle was being ridden fast. If it was less than 30 mph it could not have been much less. In the end Mr Howell suggested a range of between 25 and 40 mph.
  31. Jamie Durrant-Fellows is recorded at the scene as saying that he was in the outside lane in the outbound carriageway and then,
  32. "Motorcyclist travelling outbound in outside lane of inbound traffic, travelling 40 mph. Blue Ford Mondeo creeping out of Belair Road, collision."
    He made a full statement to the police two days later. He was driving his Volkswagen car in the outside of the northbound lanes. He had both front windows and the sunroof open, and the radio was on. He heard a loud motorcycle coming from behind which passed him travelling in the middle of the outside lane of the southbound carriageway. Mr Durrant-Fellows described the manner of the riding: it was stupid and at an inappropriate speed. He reached this conclusion because of the volume of traffic and the presence of side turnings. He describes reaching those conclusions instantly, that is before he was aware of the Ford Mondeo or appreciated that there would be a collision. He continued to watch the motorcycle when "all of a sudden" a car crossed the centre white lines. He did not see the motorcycle take any avoiding action.
  33. Mr Durrant-Fellows' statement for the proceedings made on 19 June 2012 adds a little more detail. He thought he was about 20 vehicles back from the point of impact, he heard the motorcycle but when he looked in his rear view mirror he could not see it. So he looked over his right shoulder and at that moment the motorcycle went past. He estimated its speed at 40 50 mph. It was the manner in which the motorcycle was being ridden that attracted his attention and shocked him. There was no reduction in the speed of the motorcycle before impact. Mr Durrant-Fellows was asked about the speed of the motorcycle. He agreed that estimating speed is difficult but that his memory was that the motorcycle was going "very fast". He had "an impression of speed". He thought that the motorcycle was in the centre of the outside lane on the other side of the road, and that is where the collision occurred, although he could not be sure. He saw no brake lights.
  34. Angela Fox signed an entry in the police notebook recording her account as follows:
  35. "Travelling towards city centre. Two lanes of slow moving traffic, motorbike was slowly moving in lane two outbound. Car came out of Belair Road in front of two lanes of traffic, hit green car and then hit motorbike. Motorbike was in lane two city bound."
    Mr Kaldeck's Vauxhall Vectra was green but was not hit. Mrs Fox was mistaken about that. Something has also gone awry in this short account concerning the position of the motorcycle, although the obvious explanation of the reference to 'lane two outbound' is that it should have been 'lane two inbound'. The account then makes sense.
  36. In her statement dated 5 April 2012 Mrs Fox said that she was in slow moving traffic going towards Plymouth and had stopped. All concerned in this litigation understood that to mean that Mrs Fox was stationary at the traffic lights further down Outland Road, waiting to move forward. She described seeing the motorcycle weaving slightly in the middle of the lane she would shortly be driving in. She did not think it was going fast. Then the car 'flew out' of Belair Road. In this statement Mrs Fox said that the police officer must have made a mistake when he recorded her as saying the Mondeo collided with another car. In a statement dated 21 November 2013 Mrs Fox said that she was not stopped but came to a stop as the accident unfolded before her. She said she had gone through the traffic lights, in other words the motorcycle was coming towards her on its wrong side of the road.
  37. In her oral evidence Mrs Fox had difficulty remembering what had happened at the time of the accident but did, at least at one point, confirm that the account recorded by the police was accurate and also that the account in her most recent statement was the evidence she wished to give. She indicated that the motorcycle was right over towards its offside, in other words riding in the nearside southbound lane. However, on looking at the photographs Mrs Fox recognised that she must be wrong. She was only aware of the motorcycle when it was hit or a split second before. She was not stopped at the traffic lights and she was not the only vehicle travelling in the southbound carriageway. She remained confident that the car shot out, but of little else.
  38. I have no doubt that Mr Fox was doing her best to recollect the events of 28 May 2010 after a long delay, but her conflicting accounts, demonstrably inaccurate in a number of important respects, makes me doubt whether she had anything other than a fleeting glance of the impact some way ahead of her. She saw very little and immediately had an impression of events which was wrong. None of the other witnesses support her account that she had driven through the traffic lights, in the company of other vehicles. The consistent evidence of others was that the southbound carriageway was free of traffic for a considerable distance. That, after all, is why Mr Jones felt it was safe to ride in it and why Mr Lawton thought he could turn right into the southbound carriageway from Belair Road.
  39. Robert Frier, who is himself a motorcycle rider, was driving his Citroen motor car out of Plymouth and was in the inside lane of the northbound carriageway of Outland Road. He had his radio on quietly with his windows up. His attention was drawn to the sound of a high-powered motorcycle. He thought that it might have been filtering between the two very slow lines of traffic. He looked in his wing mirror but could not see it. He saw the motorcycle ride past at about 30mph to the offside of both lines of vehicles. The speed did not give him cause for concern. Mr Frier described himself as being four cars back from the junction of Belair Road, and also being about 50 metres back. After the motorcycle went past, he heard the sound of a collision and saw the rider in the air.
  40. Findings of Fact

  41. The physical evidence of the position of the Ford Mondeo after the collision coupled with the various descriptions of where in the road Mr Jones was riding his motorcycle suggests that he was riding in the outside lane of the southbound carriageway about a metre beyond the centre white lines. But what speed was he riding at? It is notoriously difficult for drivers to give accurate estimates of the speed of other vehicles particularly as they overtake when that driver is stationary. But it is of note that two witnesses, Mr Durrant-Fellows and Mr Howell, were both struck by the speed at which the motorcycle was travelling. It was one of the reasons their attention was drawn to it. They thought it remarkable enough to call for comment. Their initial estimates have Mr Jones riding at well above the 30mph limit. Both were careful and measured witnesses. There is no sign in Mr Jones' own original statement of the suggestion that he was going as slowly as 15-20 mph. He said he did not believe he was going more than 30mph, a very different proposition. The reality is that the low speed of which Mr Jones has convinced himself is inconsistent with the vivid impression that both those witnesses had of the way in which he was riding. Mr Frier estimated the speed of the motorcycle at about 30mph. I do not accept Mr Jones' suggestion that he was riding at 15 20 mph (or less). I conclude that Mr Jones was riding at 30mph or a little more. I consider it unlikely that he was going as fast as 40 because, as he explained, he had passed a speed camera 140 metres before and would encounter another 130 metres after Belair Road. There was some doubt in the evidence about whether the camera in advance of Belair Road was set to catch speeding motorists driving towards it as they left Plymouth, rather than those going the other way. But I accept that Mr Jones thought that it was.
  42. The statements of Mr Jones paint an uncertain picture about whether he braked before the collision. However, none of the witnesses who were behind him and watching his passage noticed the brake lights come on. It is improbable that he did manage to brake before impact.
  43. A substantial part of the debate in this case centred on the manner and speed with which Mr Lawton emerged from Belair Road and began to execute his right turn. His own evidence suggests that once he saw it was clear to his left he immediately began his turn without a thought for the possibility of a cyclist or motorcyclist coming along the offside of the slow moving traffic. As he moved forward from Belair Road the traffic to his left was moving on. Mr Kaldeck explained that the traffic ahead of him had moved forward, so he and the van driver paused to let Mr Lawton out. As the traffic moved, the vista to Mr Lawton's left opened up and he saw it was clear to go. It was also clear for Danielle Graham to turn left and follow the northbound traffic. Mr Lawton does not suggest that after he saw it was clear to his left he crept or edged forward to check that there was nothing coming from his right. I accept that he came out of Belair Road slowly to begin with, but thereafter he began a seamless manoeuvre to execute a right turn from some way before he reached the centre white lines. I do not accept that he checked to the right beyond satisfying himself that the van and Vauxhall Vectra had stopped. That is the essence of what he said to the police at the scene. The suggestion in a later statement that he checked left and right constantly is, I am afraid, wishful thinking. The Ford Mondeo cannot have been travelling at any great speed because it came to a stop so shortly after the impact. It may be that a stalling engine will bring a vehicle to rest more quickly that an application of brakes (there was no evidence about that) but nonetheless, the position of the Ford Mondeo is not consistent with Mr Lawton putting his foot down and shooting forward, as Mrs Fox and Danielle Graham described. The probability is that Mr Lawton accelerated into his turn in the way in which most would do believing the road was clear. He did not need to nip quickly in front of a vehicle coming from his left. However, he was not creeping or edging forward as he moved across the outside northbound lane and emerged into the path of the motorcycle. He was accelerating into his right turn in the belief that the road was clear.
  44. Mr Lawton's own oral evidence suggested that his look to his right was perfunctory, not least because he was not concerned with traffic coming from that direction. His view to the right was severely restricted. Mr Jones would not have been visible above the stationary line of traffic. His approach would have become visible to Mr Lawton through the windscreens and windows of the waiting cars but only shortly before impact. The approach of the motorcycle was clearly audible. The noise it was making was something which alerted a number of witnesses to its approach.
  45. Mr Jones was in a position to see and appreciate that a gap had opened up in the traffic at the junction with Belair Road as he rode towards it. His view of the emerging Ford Mondeo was restricted because his motorcycle was low-slung. It was there to be seen through the windows of the stationary vehicles as it passed slowly across the first lane and then accelerated into its turn. Mr Jones was unaware of the gap in the traffic or of the emerging Ford Mondeo because he was focussing on the road ahead.
  46. Obligations on Road Users in These Circumstances

  47. The basic features of this accident are replicated on countless occasions across the country on a weekly basis. They arise in litigation and have regularly occupied the attention of the Court of Appeal. Emerging through heavy traffic to turn right entails risk because of the possibility of motorcycles or bicycles passing along the outside of stationary and slow moving vehicles, or moving between lines of vehicles. There is an obligation on those turning out, and those on two wheels, to be alert to the possibility of a collision of precisely this nature and conduct themselves in a manner which minimises the risk.
  48. That basic proposition is reflected in a number of provisions of the Highway Code. Rule 88 warns motorcyclists when in traffic queues to look out for pedestrians passing between vehicles and vehicles emerging from side turnings.
  49. "Additionally, when filtering in slow-moving traffic, take care and keep your speed low."
    Rule 151 advises drivers to allow access to and from side roads and to be aware of cyclists and motorcyclists. Rules 160 requires drivers to
    "be aware of other road users, especially cycles and motorcycles who may be filtering through the traffic. These are more difficult to see than larger vehicles and their riders are particularly vulnerable."
  50. Rule 167 provides:
  51. "DO NOT overtake where you might come into contact with other road users. For example
    Rule 170 advises drivers to take extra care at junctions and to watch out for motorcyclists and rule 172 requires those emerging onto a main road to give way to traffic on the main road. Rule 180 emphasises the need to take great care when turning into a main road. Rule 211 provides:
    "It is often difficult to see motorcyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully."

    Discussion

  52. Mr Lawton should have been aware of the possibility that a motorcycle was proceeding along the outside of the slow moving lanes of traffic. It is exactly what any driver should expect of a motorcyclist in such traffic conditions. A motorcyclist would be unlikely to stop and start in line with that traffic when it was clear for him to pass. It became abundantly clear during the course of Mr Lawton's evidence that this possibility did not occur to him. Indeed, at times he was rather indignant at the suggestion that he should have thought about it. The obligation upon Mr Lawton was to edge forward past Mr Kaldeck's Vauxhall Vectra to alert any approaching cyclist or motorcyclist to his presence, and to give himself the best chance to see an approaching motorcycle. In that way, a rider can take avoiding action, in particular by slowing down or stopping. There was also an obligation upon him to look to his right, having satisfied himself that there was nothing coming from his left, as he turned so that he would get some warning of the approach of a motorcycle. Mr Lawton did none of these things. Furthermore, his lack of awareness of the possibility that a motorcycle might be approaching extended to failing to appreciate the significance of the loud noise Mr Jones' motorcycle was making. He has no recollection of hearing it, but he must have done because his driver's window was open. This is another indication of how far from his mind the possibility of an approaching motorcycle was. Although it was not Mr Lawton's explanation for why his window was open, it is commonplace for drivers to lower a window when executing a turn with restricted visibility to provide additional protection by listening for vehicles.
  53. In short, Mr Lawton was at fault because he failed to take into account the possibility that a motorcycle might be approaching and began to execute his right turn without taking the precautions necessary to reduce the risk of a collision. His failures caused the collision.
  54. Whilst I accept that Mr Jones was entitled to ride past the lines of slow-moving and stationary vehicles (and it does not matter whether one describes that as filtering or overtaking) he was under an obligation to do so slowly and with particular awareness that vehicles might emerge from side turnings. He was not overtaking in the way that the word is usually used, nor was he filtering between vehicles. But it is a mistake to read the Highway Code like a statute. The rules I have summarised advert to the clear risks of riding between lines of slow moving and stationary vehicles, or past them, in the vicinity of a junction, to the need to take care and to ride slowly. By riding at or about 30mph Mr Jones was going far too fast. He should have been riding at a speed which would have enabled him to slow down or stop should a vehicle emerge unexpectedly from his left. This is no counsel of perfection. It is what road users observe on a regular basis. Mr Jones did not notice the gap in the traffic at Belair Road and he did not see the Ford Mondeo as it emerged from Belair Road. He should have seen both. That lack of awareness resulted from his focus being on the road ahead. The reality is that Mr Jones was not alert to the possibility of emerging vehicles as he should have been and rode his motorcycle at a speed which denied himself the opportunity of reacting when one did. His failure to keep a proper lookout and his excessive speed were causative of the accident.
  55. The question of apportionment then arises. Counsel produced a number of authorities from both the High Court and the Court of Appeal stretching from 1966 to 2012, all of which concern collisions of this or an allied nature.[1] All of these cases illustrate the differences in apportionment which can flow from fine distinctions in the circumstances of an accident. They also show that a driver might emerge from a side turning and exercise all reasonable care, but a collision still occurs. If that is the case, the driver will be absolved from responsibility. The underlying principles involve an evaluation of the culpability and causative potency of the negligence found against each motorist. That approach was stated shortly by Lord Reid in his speech in Baker v Willoughby [1970] AC 467 at 490:
  56. "The Court of Appeal appear to have thought it impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. I am unable to agree. There are two elements in an assessment of liability, causation and blameworthiness."
    That case concerned a driver and a pedestrian each of whom failed to see the other. Lord Reid noted that a pedestrian is little danger to anyone other then himself if he makes a mistake when crossing a road, by contrast with the driver of a car.
  57. As regards blameworthiness there is an element of broad symmetry between what each party did. Stripped to the essential, each proceeded in circumstances where he should have been alive to an obvious risk of precisely what happened but ignored it, albeit that the nature of the errors made was different. Mr Lawton should have edged out, and looked to his right alert for the approach of a motorcycle in circumstances where he should have appreciated from the noise that one was in the vicinity. It was he who was crossing the path of the motorcycle. Mr Jones was riding too fast and not keeping a proper lookout. However, in terms of causative potency two features tilt the balance decisively in favour of Mr Jones. First, it was the Ford Mondeo crossing the path of the motorcycle which created the hazard. Secondly, as the Highway Code notes, motorcyclists are vulnerable road users. In collisions with other motor vehicles it is the motorcyclist who is liable to suffer significant injury and not the driver. That is an unhappy feature of riding bicycles and motorcycles.
  58. Having taken account of those features in the context of the underlying blameworthiness I have concluded that there should be an apportionment of two thirds to one third in favour of Mr Jones. There will be judgment for two thirds of the claim with damages to be assessed, and one third of the counterclaim with damages to be assessed. I invite counsel to draw an appropriate order together with such ancillary matters as the parties are able to agree. I will determine any unresolved issues on paper.

Note 1   Powell v Moody 110 SJ 215 (1966); Clarke v Winchurch [1969] 1 WLR 69; David v Schrogin [2006] EWCA Civ 974; Jessop v Nixon [2010] EWHC 3211 (QB); Burton v Evitt [2011] EWCA Civ 1378; Woodham v Turner [2012] EWCA Civ 375.    [Back]


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