Heaton v Herzog

A driver turning right from a side road into a major road must take extreme care before and during the manoeuvre. The duty continues while entering the major road and requires a proper lookout, particularly where visibility is restricted and speeding traffic is foreseeable. Failure to maintain that lookout may constitute contributory negligence where a timely response would probably have avoided or reduced the collision. Precise reaction times and avoidance mechanics need not be established with complete certainty before responsibility is apportioned. An appellate court may make the apportionment itself where the evidence permits.

A motorcyclist travelling on a main road collided with a car turning right from a side road. At first instance, HHJ Yelton found the motorcyclist wholly at fault and ordered damages to be assessed in favour of Mrs Heaton. The Court of Appeal considered whether the judge had sufficiently addressed Mrs Heaton’s continuing duty to observe traffic to her right while turning, given restricted visibility and the motorcyclist’s excessive speed. It also considered the proper division of responsibility and whether to remit that issue. The central question was whether Mrs Heaton’s driving materially contributed to the collision and, if so, the appropriate apportionment.

The appeal was allowed. Sir William Aldous gave the leading judgment, with Lord Justice Stanley Burnton and Lord Justice Ward agreeing.

1. Continuing lookout duty. A driver turning right from a side road into a major road owes a duty to take extreme care before and during the manoeuvre. The duty is continuing. The driver must maintain observation of traffic to the right, especially where the line of sight is restricted and the driver knows that vehicles may travel too fast. This was consistent with the principle discussed in Dolby v Milner [1996] 2 CLY 4430.
2. Contribution to the accident. Mrs Heaton had an opportunity of approximately two seconds to see the approaching motorcycle and take braking action. Her failure to maintain a proper lookout probably deprived her of an opportunity to avoid the collision or prevent her car from straddling the road. She was therefore contributorily negligent, notwithstanding the motorcyclist’s excessive speed.
3. Apportionment. Although the precise point at which Mrs Heaton would have seen the motorcycle, her speed and her reaction time were uncertain, the court could still make a fair apportionment. The available plans and evidence were sufficient, and both parties agreed that the Court of Appeal should decide the issue rather than remit it. Responsibility was apportioned 25% to Mrs Heaton and 75% to the deceased motorcyclist.

• Court of Appeal (Civil Division). The appeal was allowed and responsibility was apportioned 25% to Mrs Heaton and 75% to the deceased motorcyclist: [2008] EWCA Civ 1636.
• Cambridge County Court. HHJ Yelton found Mrs Heaton not at fault, held the motorcyclist wholly responsible and ordered damages to be assessed in her favour.