Louise Jane Palmer v Russell Timms & Ors

A driver of a large vehicle travelling through busy city traffic must maintain a high level of awareness of cyclists and motorcyclists who may filter past on either side. Before changing course, the driver must make basic checks and maintain a steady course if it is not possible to establish that the manoeuvre is safe. A failure to do so may be negligent even where the movement is slight and made in response to another road user.

Contributory negligence is assessed under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 by a fact-sensitive, just and equitable evaluation of relative causative potency and blameworthiness. The vulnerability and destructive disparity associated with a large vehicle may substantially outweigh a motorcyclist’s decision to filter through a narrow gap.

The claimant, the widow of Simon Palmer, brought a fatal road traffic claim against the lorry driver, his employer and the insurer. Mr Palmer was filtering through slow-moving traffic on a motorcycle when the lorry moved left, causing contact and fatal injuries.

The claimant alleged either an intentional obstructive act amounting to trespass to the person or negligence. The defendants denied liability and alleged substantial contributory negligence. The principal issues were whether the movement was deliberate, whether it was negligent, and the appropriate apportionment of responsibility.

1. Primary case. The court rejected the allegation that the lorry driver deliberately moved left to block Mr Palmer. The driver was an unreliable historian, but that did not justify the further inference that he intentionally obstructed the motorcycle. The deliberate blocking case was the least likely explanation on the evidence.
2. Negligence. The driver was negligent in steering, or allowing the lorry to move, to the left when it was unsafe to do so. He should have been aware that a motorcyclist travelling close to the pavement might catch up and pass on the nearside. Before changing course he should have checked the nearside or, if unsure whether it was clear, maintained a steady course. The manoeuvre was unnecessary and was not an emergency or a standard requiring an ideal driver.
3. The accident would have been avoided if the driver had thought about the manoeuvre, checked the nearside, or maintained his line. The claimant therefore succeeded on the alternative negligence case.
4. Contributory negligence. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the court undertook a fact-sensitive and evaluative assessment of relative causative potency and blameworthiness. The motorcyclist chose to enter a narrow gap and bore some responsibility. However, the lorry created the hazard, had much greater destructive potential, and left the motorcyclist no realistic opportunity to avoid the collision once it moved left. The appropriate apportionment was one third to the claimant and two thirds to the defendants.
5. There was judgment for the claimant on liability, with damages reduced by one third for contributory negligence.