Motorcycle update: apportioning liability

Considering liability in personal injury claims involving motorcyclists usually raise specific questions compared with other road traffic accidents. Three recent decisions appear to make the law increasingly unfavourable for claimants in such cases. Where do the parameters now lie and can any general principles be discerned from the decisions beyond the basic proposition that each case must be looked at on its individual merits?

Apportionments of liability

In a long line of Court of Appeal authorities, including Wells v Mutchmeats Limited [2006] EWCA Civ 963, the appeal court has made it clear that it will rarely interfere with a trial judge's decision relating to apportionments of liability. Wells concerned an individual involved in an accident at work but illustrates well the court's approach.

The claimant was held to be 40 per cent responsible for his accident and although the Court of Appeal expressed sympathy for the claimant the appeal was dismissed as the Court was not persuaded that the trial judge's decision had been wrong. Lord Justice Gage quoting Lord Justice Brooke from a previous decision (Plumb v Lisa Ayres (1) and Ryford Ltd (2)) stated: 'It is very firmly established that this court will not interfere with a trial judge's apportionment of responsibility unless it can be shown that he erred in principle, or misapprehended the facts, or he is clearly shown to have been wrong'.

Reluctance to interfere?

Despite the apparent reluctance to interfere with apportionments of liability, three recent motorcycle cases have seen exactly that outcome. In Burton v Evitt [2011] EWCA Civ 1378 the defendant was travelling along a busy road, indicating and intending to turn right into a car park. Behind the defendant was a queue of cars. A 4x4 BMW was directly behind him. The size and position of the BMW caused the defendant's rear view to be obscured. Consequently, the defendant at a very slow speed began his right turn manoeuvre and in doing so collided with the claimant motorcyclist who was filtering past the traffic in the same direction.

At first instance the judge found that both parties were at fault and apportioned liability, holding the claimant two-thirds responsible for the accident, the defendant one-third. The defendant appealed on the basis that he had checked his mirrors twice. In addition, the judge had wrongly interpreted the term 'blind spot' to mean a triangle of invisibility created by the 4x4. Further, there had been no reason for the defendant to inch out to cater for the possibility that there might have been a motorcyclist while he had been travelling at crawling speed. Finally, given the claimant's speed of between 45 and 50 miles per hour (the road was derestricted), the accident could not have been avoided.

The Court of Appeal allowed the appeal in respect of the apportionment of liability but dismissed it in respect of the finding of negligence against the defendant. The Court found that the claimant's speed amounted to negligence of 'a very high order' and was a substantial cause of the accident. However, although the defendant had acted in a way that would ordinarily be expected of someone in those circumstances, he had been at fault to a limited extent in that as he could not see due to the size and position of the 4x4 he needed to take the elementary step of inching out. Accordingly, liability was reapportioned 80 per cent to the claimant and 20 per cent to the defendant.

Overturning of the first instance decision may seem a little surprising given that the trial judge clearly decided that the motorcyclist was primarily responsible for the accident. However, the Court of Appeal found that there had been a failure by the trial judge to analyse properly the relative blameworthiness and causative potency of each party's actions. Given that the motorcyclist's speed was by far the main causative factor, to hold the claimant only two-thirds responsible was simply too low to reflect the extent of his culpability.

The decision in Burton v Evitt at first sight seems at odds with the earlier decision in Davis v Schrogin [2006] EWCA Civ 974 where the claimant recovered his damages in full having been involved in an accident while filtering at a speed of between 40 and 45 miles per hour. However, Mr Davis' speed was held to have no bearing on liability where the defendant simply attempted to execute a U-turn having only checked for oncoming traffic and the claimant was there to be seen (he had not been weaving in and out of the traffic). On the facts of Davis, it is hard to see how the motorcyclist could have been held to be culpable to any degree.

Further, the outcome in Burton v Evitt ?was less favourable to the filtering motorcyclist than was the case in Farley v Buckley [2007] EWCA Civ 403. Here the scooter rider and car driver were each held to be 50 per cent responsible for an accident where the driver emerged from a side road and collided with the scooter which was filtering at 30 miles per hour; the maximum speed for the road.

Disregarding foreseeability

The second recent case in which the Court of Appeal reapportioned liability is Woodham v Turner [2012] EWCA Civ 375. The case concerned a collision between the claimant motorcyclist and a bus driver. The bus was being driven down a side lane at the end of which the driver intended to turn right. Road works caused traffic to queue in both directions. A tractor had stopped before the junction allowing the bus driver to pull out to her right. Both the claimant, and his friend, filtered past the stationary or very slow moving traffic. The claimant's friend stopped behind the tractor but the claimant continued to filter. The bus emerged out of the junction but not at a right angle and a collision resulted.

Despite the bus driver's slow speed, she was found to be at fault for moving forwards into a gap when she could not see whether it was clear. A collision was reasonably foreseeable even if a motorcycle was overtaking at a very slow speed (probably around 20 miles per hour at the moment of impact). Had the bus driver emerged at a right angle then she would have had a view of the claimant. The motorcyclist, either knew or ought to have known that the tractor had left a gap from which vehicles turning right might emerge and that his speed substantially and foreseeably increased the risk of a collision. Liability was apportioned 70/30 in favour of the motorcyclist.

The defendant appealed. Allowing the appeal the court found that the actions of the motorcyclist were as much to blame for the accident as those of the bus driver and accordingly liability was reapportioned on a 50/50 basis.

Given the comments by the trial judge, which more than once referred to the motorcyclist's substantial contribution to the accident, the decision to hold the bus driver to be significantly more culpable could not be supported. The decision was therefore found to be wrong and highlights the fact that claimants will be held accountable for their actions in observing other road users and possible hazards that may contribute to an accident. Although a defendant's actions may inevitably cause an accident, a claimant will not escape blame for disregarding the foreseeability of an accident.

Speed as a factor

Finally, in Stangroom v Brown [2012] EWCA Civ 424 the Court of Appeal found that the claimant motorcyclist had been entirely responsible for the accident. Mr Brown and his friend were out on their motorcycles travelling on a road with a 60 miles per hour speed limit. The defendant had been in the process of exchanging trailers with an employee in a lay-by. Having done this, the defendant waved his employee out of the lay-by and, when in his own tractor, drove over the grass verge between the lay-by and the road to maximise his visibility. As the tractor and trailer were diagonally across the road, the claimant who had accelerated away from his friend, came round the bend colliding with the defendant's vehicle and was killed.

According to the police report anyone travelling at 71 miles per hour would have been able to stop, even assuming that the tractor and trailer were blocking the road. The deceased's speed was put by the trial judge at between 85 and 90 miles per hour and was a major factor in causing the accident. While primary liability was held to rest with the deceased, the judge found the defendant to be 25 per cent responsible for the accident.

In reaching this decision the judge found that the defendant's colleague ought to have waved the defendant out rather than the other way round. Further the defendant should have turned his hazard warning light on and sounded his horn. As for the actual manoeuvre, the defendant should not have crossed the grass verge as this slowed his progress and meant that he blocked the road for longer than would otherwise have been the case.

The defendant appealed on the basis that he had been right to wave his colleague off first as this tractor was travelling up hill, was heavier and would move more slowly. There was no evidence that any waving would have been seen by the deceased to enable him to have stopped. The light and horn would also not have served any useful purpose. As for crossing the verge, this was argued to have been evidence of the defendant's care as opposed to his negligence.

On appeal the deceased was held to be wholly responsible for the accident which is not surprising given that the motorcyclist was found to have been travelling between 85 and 90 miles per hour, significantly in excess of the speed limit. Even at 10 miles per hour above the speed limit he would have been able to stop - as did two other vehicles one of which was the other motorcyclist who was travelling with the claimant until the accident occurred ahead of him.

These decisions underline the principle that each case must be looked at on its own particular facts, but also demonstrate that what amounts to a relevant causative act might be considered differently, depending upon the tribunal. At the heart of these decisions though is 'speed'. Perhaps because of changing attitudes generally to vehicle speed and the notion, although often without substance, that motorcycles are ridden quickly and are keen to make progress over slower moving or stationary traffic the speed of the motorcyclist and ?its filtering behaviour appear to be increasingly significant.