Hernandez v Acar & Anor

A driver emerging from a minor road must take extreme care and obtain a sufficiently comprehensive view of the major road before proceeding. It is insufficient to look only far enough to detect traffic travelling at ordinary speeds. The driver must allow for motorcyclists and other road users who may be travelling faster than the limit or acting dangerously.

A motorcyclist’s excessive speed may be both negligent and causative, even where the emerging driver is also at fault. Contributory negligence is apportioned by evaluating the culpability and causative potency of each party’s negligence. The vulnerability of a motorcyclist and the likely severity of injury are relevant to that evaluation.

The claimant was seriously injured when his motorcycle collided with the first defendant’s car as it emerged from a side road onto a major road. The claimant alleged that the defendant failed to obtain a proper view before turning. The defendants alleged that the claimant was travelling at excessive speed and that his speed was the sole cause of the collision.

The court determined preliminary liability issues, including the reliability of CCTV and accident-reconstruction evidence, the duties of each road user, causation, and the appropriate apportionment of responsibility.

1. The claimant was travelling at approximately 45 to 50 mph on a road subject to a 30 mph limit. His speed was negligent and causative. At a prudent speed below 30 mph, the collision would probably have been avoided.
2. The first defendant was also negligent. A driver emerging from a minor road must edge forward sufficiently to see down the line of parked vehicles and to give an approaching motorcyclist an opportunity to see and react to the emerging vehicle. The defendant’s limited, oblique sight line was inadequate. The duty was consistent with the Highway Code and the description of the duty in Heaton v Herzog [2008] EWCA Civ 1636.
3. The defendant’s negligence was causative. If he had edged out as required, he could have stopped when the motorcycle became visible. The court rejected the submission that the claimant’s speed was the exclusive cause. The facts differed materially from Jessop v Nixon [2010] EWHC 3211 (QB), where the claimant’s driving included excessive speed, tailgating and overtaking on the wrong side of the road at night.
4. Apportionment required an evaluation of culpability and causative potency. The claimant bore slightly greater blameworthiness because he was travelling at about twice a safe speed for the conditions. The defendant’s failure to obtain a proper view had greater causative significance, and the claimant was a vulnerable road user likely to suffer the greater injury. Applying the approach reflected in Jones v Lawton [2013] EWHC 4109 (QB), liability was apportioned 60% to the claimant and 40% to the defendants.
5. There was judgment for 60% of the claim and 40% of the counterclaim, with damages to be assessed. Medical causation remained in issue in relation to the counterclaim.