McPherson v Smith & Ors

A driver turning right must make a proper final observation before committing to the turn. That duty applies even where an approaching motorcyclist is travelling unlawfully, at excessive speed or on the wrong side of the road, provided the motorcyclist is reasonably capable of being seen. A driver who fails to look and would have seen the motorcyclist may bear primary liability. The motorcyclist’s serious riding errors may nevertheless found substantial contributory negligence, assessed by reference to causative responsibility and the particular facts. Apportionment remains fact-sensitive.

The claimant suffered life-changing injuries when his motorcycle collided with the first defendant’s car as the defendant turned right into a care home. The claimant had overtaken a bus at very high speed and remained on the wrong side of the road. The defendant said that he had seen the bus but not the motorcycle before turning. The trial concerned liability only, including whether the defendant should have seen the claimant, whether the claimant’s riding was causative, and the appropriate apportionment of responsibility.

1. Primary liability. The defendant was under a duty to make a final look up the road before committing to his right turn. The claimant was visible for about four seconds and was between 40 and 65 metres away when the defendant began turning. Although the claimant was on the wrong side of the road and travelling at excessive speed, he was there to be seen. A reasonable driver who made the required observation would have seen him and braked before crossing into the opposing carriageway. Primary liability was therefore established.
2. The authorities relied upon by the defendants did not justify a finding of no liability. They concerned materially different circumstances, including dangers which could not reasonably have been anticipated or claimants who could not be seen. The relevant question was whether, on these facts, the defendant should have looked and should have seen the claimant.
3. Contributory negligence. The claimant’s riding was exceptionally bad. He overtook the bus at more than 69 mph, remained on the wrong side of the road longer than necessary and was travelling at grossly excessive speed. His earlier poor riding was not causative of the collision, but his speed and continued position on the wrong side materially contributed to it.
4. Apportionment is highly fact-sensitive. The cases involving 80:20 apportionments were distinguishable because the relevant motorcyclists could not be seen. The appropriate apportionment here was two-thirds to the defendant and one-third to the claimant. The claimant was therefore entitled to recover one-third of the full value of the claim.

First-instance liability judgment following a split trial. No prior appellate decision is stated in the judgment.