Colin Mendoza successful in important trial involving the respective liabilities of a motorist and a
motorcycle rider in Jones v Lawton (2013) EWHC 4108 (QB)
Colin Mendoza represented the Claimant Philip Jones in a three-day trial before Mr Justice Burnett.
Mr Jones was riding his motorcycle along a main road in Plymouth on the offside of two slow moving
lanes of traffic. The Defendant was turning right from a side road and the traffic in the two lanes
stopped to let him out. He emerged and collided with Mr Jones. Mr Jones’ left leg was seriously
damaged during the impact and he underwent an above-knee amputation. He now advances a
substantial claim including claims for pain and suffering, loss of earnings, care, single storey
accommodation and prosthetics.
The Defendant contended the collision was entirely the fault of the Claimant. He argued he had no
option other than to pull out as he did, inching out very slowly to try and get a better view of the
road off to his right hand side and he was in no way negligent and the claim should fail in its entirety.
There was considerable independent evidence from various witnesses relied on by the Defendant
that the Claimant had been travelling considerably above the speed limit of 30 mph.
In what should prove to be an important case for cyclists and motorcyclists generally in cases such as
this, given the Judge’s refusal to regard himself as bound by the old Court of Appeal authority of
POWELL v MOODY (1966) 110 SJ 215 to find either entirely for or substantially for the Defendant,
Mr Jones was found to be entitled to an award of two-thirds, with a reduction of only one-third in
respect of his own contributory negligence. This was so, despite his finding of fact Mr Jones was
riding at 30 mph or a little bit more as he overtook the stationary motor cars across the junction.
The Judge held the Defendant should have been aware of the possibility that a motorcycle was
proceeding along the outside of the slow moving line of traffic. It was exactly what any driver should
expect of a motorcyclist in such traffic conditions. A motorcyclist would be unlikely to stop and start
in line with that traffic when it was clear for him to pass. The Defendant was at fault because he
failed to take into account the possibility that a motorcycle might be approaching and began to
execute his right turn without taking the precautions necessary to reduce the risk of a collision. His
failures caused the collision. The Judge refused the Defendant’s invitation to treat the case as
analogous to JESSOP v NIXON (2010) EWHC 3211 (QB) in which a speeding motorcyclist struck by a
car turning right out of a side road had his claim dismissed. He also made no reference in his
Judgment to the ambitious submission advanced before him on behalf of the Defendant that the
Court of Appeal decision in WOODHAM v TURNER (2012) EWCA Civ 375, in which the Court of
Appeal had substituted a finding of 50:50 in place of the 70:30 in the Claimant’s favour as found to
be appropriate by the trial judge had been wrongly decided.
The case is important because of the Judge’s treatment of the apportionment issue. Insurance
companies for just short of fifty years now have been relying heavily on the case of POWELL v
MOODY to argue that in circumstances such as this, where a motorcyclist overtaking at a junction is
struck by a motor car turning right out of a side road, any apportionment of liability should strongly
favour the emerging motorist. The Court of Appeal in POWELL had held a motorcyclist overtaking a
line of stationary traffic across the mouth of a junction was engaged in a manoeuvre fraught with
danger and should bear 80% liability when struck by an emerging motor car.
The Judge observed that in a case such as this, the underlying principles involved an evaluation of
the culpability and causative potency of the negligence found against each motorist. After referring
to the speech of Lord Reid in BAKER v WILLOUGHBY (1970) AC 467 at 490, in which Lord Reid had
confirmed there were two elements of liability, causation and blameworthiness, he held that in
terms of causative potency, two features heavily tilted the balance decisively in favour of Mr Jones.
The first was that it was the Defendant’s motor car crossing the path of the motorcycle which
created the hazard. Secondly, as the Highway Code notes, motorcyclists are vulnerable road users:
“In collisions with other motor vehicles, it is the motorcyclist who is liable to suffer significant injury
and not the driver.”
Having taken account of those features in the context of the underlying blameworthiness, the Judge
concluded that there should be an apportionment of two-thirds to one-third in favour of Mr Jones.
Such an outcome indicates the approach of the Court of Appeal some 50 years ago in POWELL v
MOODY is unlikely to be given as much weight going forward. The Highway Code back then probably
failed to give the same emphasis to the vulnerability of motorcyclists relied on by the Judge to arrive
at the apportionment he did in the present case.
Colin Mendoza was instructed by Mr Alistair Tawse, Associate Partner, of Chris Kallis Solicitors,
Plymouth.