Burton v Evitt

When a driver turning right cannot see an area from which traffic may be approaching because another vehicle obstructs the view, reasonable care requires the driver to take other measures before turning. That may require inching out sufficiently to see beyond the obstruction. “Blind spot” is not a technical term; it means an area the driver cannot see. Such a requirement is not a counsel of perfection. In apportioning contributory negligence, the court must differentiate the parties’ relative blameworthiness and the causative potency of their conduct. Grossly unsafe speed and overtaking may justify a substantial reduction in a motorcyclist’s recovery, while the turning driver’s limited fault remains actionable.

On Boxing Day 2006, Burton’s motorcycle overtook a queue of traffic and collided with Evitt’s Vauxhall Vectra as Evitt turned right into a public-house car park. The motorcycle was travelling at about 45–50 mph, and a larger vehicle behind Evitt obstructed his view of the motorcycle.

At trial in Preston County Court, HH Nigel Howarth found Burton two-thirds responsible and Evitt one-third responsible. Evitt appealed, accepting the factual findings but arguing that his conduct was not negligent and, alternatively, that the apportionment was wrong. The central issues were whether Evitt had failed to take reasonable care before turning and, if so, the proper apportionment of responsibility.

Appeal allowed in part. The President of the Queen’s Bench Division gave the leading judgment. Lady Justice Black and Lord Justice Kitchin agreed.

1. Rules 179 and 180 of the 2007 edition of The Highway Code informed the standard of reasonable care. “Blind spot” was not to be treated as a technical reference to the area normally understood by that expression. It covered any area that the driver could not see. Where the positioning and size of a vehicle behind the turning driver created such an area, the driver had to take other measures before turning.
2. On the trial judge’s findings, the BMW 4 x 4 created a triangle of invisibility on Evitt’s offside. Although Evitt had slowed, signalled and checked his mirror twice, he could not see what was approaching. He should therefore have inched out towards, and potentially over, the centre line until he could see past the BMW. That was an elementary precaution in the circumstances, not a counsel of perfection. The finding that Evitt was negligent and that the omission was causative was upheld.
3. The apportionment required greater analysis. Burton’s riding at an unsafe speed while overtaking a slowing queue, together with his inability to deal with an emergency, amounted to gross negligence and had very substantial causative potency. Evitt had driven with care in slowing, checking and responding to a vehicle leaving the car park, but remained at fault in the limited respect identified above. The very different levels of relative blameworthiness and causative potency required greater differentiation than the trial judge had made.
4. The trial apportionment was set aside. Liability was apportioned 80 per cent to Burton and 20 per cent to Evitt. The appeal was allowed only to that extent.

• Court of Appeal (Civil Division) — In [2011] EWCA Civ 1378, the appeal was allowed in part. The finding that Evitt was negligent was upheld, but liability was re-apportioned 80 per cent to Burton and 20 per cent to Evitt.
• Preston County Court — HH Nigel Howarth found Burton two-thirds responsible and Evitt one-third responsible after finding both parties negligent.