Personal Injury Claims Arising Out of Road Traffic Overtaking Accidents

PERSONAL INJURY CLAIMS ARISING OUT OF ROAD TRAFFIC OVERTAKING ACCIDENTS IN BEXLEYHEATH, KENT & LONDON

I have dealt with a huge number of successful personal injury claims arising out of road traffic accidents.  In many cases, liability is admitted at an early stage because the circumstances of the accident clearly show that the injured claimant wasn’t responsible for the accident.  Claimants injured in a road traffic accident generally recover compensation for their injuries without any deduction for contributory negligence except, for example, where a passenger was not wearing a seatbelt and the injuries could have been prevented by wearing a seatbelt.  There are however some road traffic accident claims that are less straightforward and a good example are claims arising out of accidents involving vehicles being overtaken.

The Highway Code provides general advice on precautions which should be taken when overtaking.  The Guide requires vehicle users to ensure that the road is sufficiently clear ahead, road users are not beginning to overtake you, there is a sufficient gap in front of the road user for you to plan to overtake.  The Guide confirms that the road user should only overtake when it is safe and legal to do so and when overtaking you should not get too close to the vehicle you intend to overtake, use your mirrors, signal when it is safe to do so, take a quick sideways glance if necessary into the blind spot area and then start to move out.  The Guide recommends that you should not assume that you can simply follow a vehicle ahead if it is overtaking as there may be only enough room for one vehicle to overtake.  The Guide further recommends that you should move quickly past the vehicle you are overtaking and allow plenty of room to move back to the left hand side of the carriageway as soon as you can and not to cut in in front of the vehicle being overtaken.  The Guide advises that extra care should be taken at night or in poor visibility when it is harder to judge distance and to give way to oncoming vehicles before passing parked vehicles or other obstructions at the side of the road and not overtake on the left side of the vehicle, if the vehicle in front is signaling to turn right and only when there is sufficient room to do so.  The Guide further recommends that road users should stay in their lane when traffic is moving slowly or in queues and if the queue to the right of the vehicle is moving more slowly then you should pass on the left.  Where a vehicle is overtaking a motorcyclist, cyclist or horse rider, they should be given as much room as a car when carrying out an overtaking manoeuvre.  When overtaking a large vehicle, the Guide recommends that you should allow additional room behind the vehicle to allow sufficient forward visibility and warns that getting too close to vehicles, including agricultural vehicles such as a tractor with a trailer, could result in the view of the road ahead being restricted when overtaking a large vehicle and should always be certain that the overtaking manoeuvre can be completed safely before starting to pass a large vehicle.  If in doubt, you should not overtake at all.  The Guide cautions against following another vehicle which is overtaking a long vehicle as that vehicle may have to abort the manoeuvre and pull back in.

The Highway Code advises that you should not overtake at all if you have to cross or straddle double white lines, enter an area designed to divide traffic surrounded by a solid white line, or to overtake a vehicle that is close to a pedestrian crossing especially if the vehicle has stopped to allow pedestrians to cross.  Further, vehicles should not overtake if it results in them entering a reserved bus, tram or cycle lane during hours of operation or it contravenes an overtaking sign, near a bend, a hump-back bridge, the brow of a hill, an approach to a road junction where the road narrows, on the approach to a school crossing or where traffic is queuing at junctions or roadworks.  The Guide advises that you shouldn’t overtake if it would force another road user to swerve or slow down, at a level crossing, where a road user is indicating to turn right even if you believe that the signal should have been cancelled, if you are following a cyclist approaching a roundabout or junction and you intend to turn left, or where a tram is standing at a kerb side tram stop where there is no clearly marked passing lane for other traffic.

Clark v Wakelin (1969) 109 SOL 295.  In this case a cyclist turned right from the nearside of the road and was struck by the defendant who was about to overtake a motorcycle.  The cyclist claimed that he looked behind, put his hand out to turn right but the car driver stated that as he was about to overtake the motorcyclist the cyclist put his hand out and didn’t give him a chance to avoid the accident.  The court accepted the car driver’s account of the accident and noted that a driver was entitled to assume that he could overtake without danger if what was being overtaken had not given the slightest sign that he was going to do something other than what an ordinary careful motorist might expect.  The court therefore held that the cyclist was solely to blame.

Goke v Willett (1973) PTR 422 117 SOL 468.  In this case the accident occurred on a busy three lane road during the day.  A van pulled out into the centre lane to overtake a lorry and trailer travelling on the inside lane.  The van then slowed down and indicated to turn into a service station on the opposite side of the road.  The van was then struck from behind by a heavily laden lorry which was travelling in the centre lane about a hundred yards behind the van when the van braked.  The van driver’s claim was successful but the court applied a deduction for contributory negligence of one third.

Barry v Pugh (2005) EWHC 2555 ALL ER 239.  In this case the claimant was riding a motorcycle along an undulating country lane that was only 2.8 metres in width.  The defendant was driving an SUV towing a trailer which occupied most of the width of the road.  The defendant was travelling in the opposite direction towards the motorcyclist and as she saw the motorcyclist approaching she pulled over onto a verge as far as she could do so.  The motorcyclist however collided with the mudguard of the trailer being towed by the SUV.  The motorcyclist contended that the driver should have stopped earlier but the court concluded that the motorcyclist had been travelling too fast and that the driver had done everything she could have done to avoid a head-on collision, therefore this claim was dismissed.

Brown v Patterson (2010) EWCA Civ 184.  In this case the claimant was riding a motorcycle which was not fitted with indicators.  The accident happened late at night and there were no streetlights in the area.  The motorcyclist intended to turn right; the defendant saw the motorcyclist ahead of him but assumed that the motorcyclist was proceeding straight ahead so decided to overtake the motorcyclist.  Whilst the car driver was overtaking the motorcyclist, the motorcyclist moved into the path of the car to turn right and was struck by the car.  The accident happened close to a junction; however, the motorcyclist’s claim was dismissed at first instance as the court concluded that the accident was caused by the motorcyclist suddenly moving across the carriageway into the path of the driver without indicating.  The motorcyclist’s appeal was dismissed.  The appeal court noted that there wasn’t an absolute prohibition on overtaking a vehicle approaching a junction.   The court was therefore satisfied that the motorcyclist wasn’t in breach of the Highway Code.  The motorcyclist’s position in the road, speed and lack of indication to turn right created the impression that the motorcyclist was heading straight ahead.  The court therefore concluded that a reasonably careful driver would have carried out the same overtaking manoeuvre and the appeal was dismissed.

Clarke v Winchurch (1969) 1 ALL ER 275 1 WLR 69 112 SOL JO 909.  In this case the claimant was riding a moped that overtook a line of slow moving traffic.  The defendant was parked at the side of the road facing a line of slow moving traffic.  The defendant driver intended to proceed onto the opposite side of the road.  A bus which was at the front of the slow moving traffic indicated to the car driver that he could pull across the road in front of the bus.  The car driver then moved slowly across in front of the bus to proceed onto the opposite carriageway.  The car driver was about a yard beyond the outside of the bus.  He was struck by the claimant’s moped.  The claimant’s claim was successful at first instance but the court held that he was substantially to blame for the accident and applied a contributory negligence deduction of two thirds.  The decision was appealed and on appeal the court held that the moped rider was wholly to blame for the accident.  The court noted that a motorcycle or moped rider was entitled to overtake a line of slow moving or stationary traffic but when they did so they had to exercise a very high degree of care to ride in such a way that they could deal with any emergencies.  The court held that when the bus stopped, the moped rider ought to have realized that something was going on in front of the bus and driven accordingly.  The bus driver wasn’t under a duty to give a signal to the moped as another vehicle was pulling out in front of him.  The court noted that the defendant driver was moving very slowly as he moved past the front of the bus and was not negligent.

Harding v Hinchcliffe (1964) Times Law Reports.  In this case the claimant was riding a motorcycle along a B-road and came up behind a bus travelling in the same direction.  The bus driver signaled to turn left into a minor road, the claimant wished to proceed along the main road so overtook the bus as it was turning.  As he overtook the bus, he was hit by the defendant’s car which came out of the minor road as the bus was turning into the road.  The defendant driver had waited at the junction before turning, had seen the bus about 150 yards away and waited for the bus driver to start turning before he proceeded out from the minor road.  He hadn’t seen the motorcyclist because the motorcyclist had been concealed by the bus.  The motorcyclist’s claim was dismissed but the motorcyclist appealed and the appeal was successful.  The court concluded that the driver should have waited to let the bus turn completely into the side road as there was always a possibility of another vehicle travelling behind the bus and being concealed by it.  The claimant’s claim was therefore successful in full without any deduction for contributory negligence.

Worsfold v Howe (1980) ALL ER 1028 1 WLR 1175.  In this case the claimant was riding a motorcycle and was travelling along a main road.  The defendant turned out of a minor road to travel onto the opposite carriageway.  His vision of approaching traffic was obstructed by a tanker lorry.  The defendant drove slowly out of the minor road in front of the tanker and when he was about one to two feet beyond the edge of the tanker, the motorcyclist collided with him.  The claim was initially dismissed as the judge relied on the decision of Clarke v Winchurch (referred to earlier).  The motorcyclist appealed and his appeal was successful.  The Court of Appeal concluded that there was no principle in law that entitled a driver to emerge blind from a minor road into a major road by inching forwards beyond his line of vision if he did so slowly.  The claim was successful but was subject to a deduction for contributory negligence of 50% as the court held that the motorcyclist overtaking the stationary tanker lorry was equally to blame for the accident.

Hamled v Eastwick (1994) Bingham and Berrymans Personal Injury and Motor Claims Cases.  In this case the claimant was driving along Streatham Road, a busy urban main road when the defendant turned out of a minor road into the path of the claimant’s car.  The claimant couldn’t remember anything about the accident and did not challenge the fact that he must have been travelling about 35 to 40 mph in a 30 mph limit.  The judge decided that the defendant had driven out of the minor road and probably paused and then started to move forward again, slowly. The claim was successful but the court made a deduction of 20% for contributory negligence.  The decision was appealed to the Court of Appeal and the Court of Appeal upheld the judgment.  The court noted that a prudent driver must bear in mind the real possibility that someone may emerge from a side road and because the claimant was driving faster than he should have done in the circumstances, he had deprived himself of the opportunity of taking avoiding action by braking or swerving when the defendant’s vehicle turned in front of him.

Farley v Buckley (2007) EWCA Civ 403 ALL ER 54.  In this case the claimant was riding a motor scooter along a busy road near to a junction to the left, a refuse truck that was 34 feet in length and 8 foot 4 inches in width and was turning left into the side road.  The refuse lorry waited for the defendant to turn out from the side road so that he could then turn into the minor road. The claimant was riding a motor scooter and overtook the refuse lorry and collided with the defendant’s car as it turned across his path.  The claim was dismissed as the judge held that the claimant was travelling too quickly and carried out a reckless manoeuvre.  The judge also concluded that the defendant driver had been driving slowly with caution when he pulled out of the minor road and had not been negligent.  The claimant’s appeal was dismissed by the Court of Appeal who concluded that when the defendant car pulled out of the side road it was unforeseeable that a motorcyclist/scooter rider would be overtaking a refuse lorry on an urban street.  The accident was caused by the claimant’s lack of anticipation and serious lack of care.

Bucham v Whiting (2008) ERHC 2951 QB.  In this case the claimant was travelling along a main road whilst the defendant driver was in the process of completing a left hand turn. The defendant claimed that he passed a bollard and moved into a hatched area before making the turn.  The claimant was travelling in the opposite direction at speed and had overtaken a number of vehicles before the accident and had not seen the defendant driver until he entered the junction.  The court held that the claimant had been traveling at 60  mph before the accident, had his lights on and therefore would have been visible to the defendant about 200 metres away.  The court therefore concluded that the collision was caused by the defendant’s failure to keep a proper lookout as well as his failure to stop in the hatched area before making the turn.  However, the claimant’s speed was excessive, the court therefore found both parties equally to blame for the accident, so the claimant only recovered 50% of  his compensation claim.

Woodham v J M Turner (trading as Turners of Great Barton) (2012) EWCA Civ 375 2012 ALL ER D 164.  In this case the claimant was riding a motorcycle travelling towards a junction.  The defendant drove his coach out of a minor road to turn right into the major road.  The motorcyclist had been overtaking a queue of traffic which included a tractor.  The accident occurred as the defendant’s coach turned right across the motorcyclist’s path.  The claimant’s claim was successful subject to a deduction for contributory negligence of 30%.  The court held both parties to blame as the coach driver’s view was obstructed as he turned out of the road and could not properly see anyone overtaking the tractor, whereas the claimant who was familiar with the road and the T-junction should have been aware that a vehicle could emerge into his path as he overtook the tractor.  The defendant appealed and the Court of Appeal noted that the claimant, contrary to the Highway Code, overtook the queue of traffic on the offside at speed in a situation where there was a foreseeable risk.  The Court of Appeal held both parties equally to blame, therefore the claimant’s award was reduced as the deduction for contributory negligence was increased to 50%.

Challoner v Williams & Covey (1975) 1 Lloyds REP 124.  In this case the defendant was driving in front of two cars being driven by his friends along an unlit country road.  He realised that he’d taken the wrong route and saw a turning to the right.  He indicated to turn right and slowed down and moved towards the centre of the road.  He checked his mirror before he indicated and looked in the mirror again before turning.  He thought that it was clear and began to turn without actually stopping.  The claimant was travelling in the same direction and had overtaken two cars behind him but hadn’t seen the defendant’s car until it turned across his path.  The claimant’s claim was initially successful but subject to a deduction for contributory negligence of 50%, however the decision was appealed and the Court of Appeal held that the claimant was fully to blame for the accident as the defendant had done nothing wrong before making his turn.

Moss v Dixon (1998) Bingham and Berrymans Personal Injury and Motor Claims Cases.  In this case the claimant was cycling towards a junction on the right.  She gave a hand signal that she intended to turn at the junction and cycled to the centre of the road.  The defendant then overtook the cyclist as she started to turn.  The cyclist’s claim was successful and no deduction was made for contributory negligence.  The defendant’s appeal was dismissed.  The Court of Appeal noted that in accordance with paragraphs 193 and 198 of the Highway Code, the claimant was only obliged to signal and look behind her during the course of her manoeuvre from the nearside to the centre of the road.  Once she was in the centre of the road, the paragraphs no longer applied and the claimant then only had to concentrate on crossing the line of oncoming traffic.  The claimant’s position in the centre of the road should have made it obvious to the defendant that she intended to turn right, therefore the defendant should not have overtaken the cyclist.

Brooks v Ward (1997) Citation 1341 Binghams Personal Injury and Motor Claims cases. In this case the claimant was driving a Post Office van around a very sharp left hand turn and collided with the first defendant’s Ford transit van being driven on the wrong side of the road. The Ford transit van had been forced to overtake the second defendant’s Ford Sierra which was stationary on the road just prior to the bend, blocking most of the first defendant’s carriageway. The Ford Sierra developed a sudden electrical fault which caused it to breakdown. The court held that both the first and second defendants were equally to blame for the accident. The driver of the Ford Sierra should have made more of an effort to give vehicles approaching from the claimant’s direction some advanced warning of the serious hazard around the sharp left hand bend, whereas the first defendant ought to have stopped and, if necessary, assisted other drivers to remove or reduce the hazard.

Pell v Mosley (2003) EWCA Civ 133. The claimant was riding his motorcycle along a single lane carriageway, the speed limit was 60mph. The claimant was travelling behind the defendant, the claimant’s motorcycle started overtaking the defendant’s car and as the motorcyclist overtook, the car driver turned right into a field to attend a motocross event. The court held that both parties were equally to blame for the accident. The motorcyclist for not taking into account the possibility of the defendant turning into the entrance to the motocross event and overtaking when it was unsafe to do so. The defendant driver for failing to indicate before turning.

Burton v Evett EWCA Civ 1378. In this case the claimant was riding a motorcycle and the defendant was driving a car on a busy road intending to turn right into a pub car park. The defendant started turning when the motorcyclist was overtaking a line of slow moving cars and the motorcyclist collided with the defendant’s car. There was a large four-wheel drive car immediately behind the defendant which restricted the defendant’s vision when making the turn and the defendant couldn’t see the motorcyclist travelling on the outside of the line of moving cars. The Court of Appeal held that the defendant could not see the oncoming motorcyclist but should have inched out more slowly to get a better view when turning, however the main cause of the accident was the motorcyclist overtaking the line of slow moving cars at an unsafe speed which meant that the motorcyclist was unable to deal with an emergency and was held to be 80% to blame for the accident.

Ringe v Eden Springs UK Ltd (2012) EWHC 14 QBD.  In this case the claimant was riding a motorcycle and had overtaken an articulated lorry in a hatched area of the road in excess of the speed limit. The defendant was driving a van which emerged from a junction onto the main road. The motorcyclist collided with the van in the hatched area whilst overtaking the lorry. The court held that the motorcyclist was 80% to blame for the accident. The van driver bore some responsibility for pulling out as he did not have a clear view of approaching traffic and was therefore unable to see the lorry being overtaken although the court concluded that the lorry shouldn’t have been overtaken in the hatched area at the junction.

Laken v Lawrence (2015) EWCA Civ 272 Court of Appeal. In this case the claimant overtook the defendant’s car when the defendant’s car had already moved across the centreline of the road prior to the claimant overtaking the car. The car collided with the defendant’s car whilst overtaking it and both cars ended up in a ditch at the side of the road. The claimant’s claim was dismissed and the Court of Appeal upheld that decision. The Court noted that whilst the defendant had crossed the white line before being overtaken, the claimant had sufficient time to react and should have aborted the overtaking manoeuvre and therefore overtook when it was unsafe to do so.

Shakespear v Martin (2018) EWHA 2114 QBD. In this case the motorcyclist was overtaking a stationary line of traffic at about 10-15mph. The defendant intended to turn right out of a side road across the claimant’s line of travel. The driver of another car stopped just before the turning allowing a gap to open and waved the defendant across so that the defendant could turn out. The defendant proceeded slowly and cautiously and the claimant’s motorcycle collided with the defendant’s car as it turned. When the collision occurred, the defendant’s car was either stationary or hardly moving. The court held that the motorcyclist was fully to blame for the accident and that there was no lack of care on the part of the driver.

Kirby v Ageas Ltd (2021) 6W LUK 413 QBD. In this case the claimant was a passenger on a motorcycle which had overtaken a van. In doing so, it collided with a lorry being driven in the opposite direction. The court held that the rider of the motorcycle was totally to blame for the accident. The rider of the motorcycle was liable for the claim of the pillion passenger but there was a 10% deduction for contributory negligence because the claimant’s helmet had not been properly secured before the accident and came off in the collision.

Kyriacou v Vinch (2021) 1W LUK 359 QBD.  In this case a motorcyclist was seriously injured when attempting to overtake a van. The defendant car turned right at the junction and cut a corner whilst turning. The court held that the motorcyclist was primarily to blame for the accident and the award was reduced by 80% due to contributory negligence. The motorcyclist had driven at twice the speed limit and had ridden dangerously when overtaking the van next to a junction.

Powell v Moody (1966) SOLJO 2015. In this case the claimant was riding a motorcycle along a busy road and was overtaking a line of stationary vehicles on the outside. The defendant drove out of a side road and turned right through a gap in the traffic to go onto the opposite side of the road. The defendant had been given a signal to turn out by a lorry driver waiting at the gap. The defendant driver had inched forwards before being struck by the claimant’s motorcycle. The Court of Appeal upheld the trial judge’s decision to allow the claimant’s claim subject to a deduction of 80% for contributory negligence as the motorcyclist was primarily to blame for the accident. The Court concluded that jumping a queue of stationary vehicles was undertaking an operation fraught with great hazard and which should be carried out with great care. It noted that there was always a risk of other vehicles emerging from gaps in the traffic.

Hillman v Tomkins (1995) LEXIS Citation 3401. In this case the defendant was driving a Ford Sierra in slow moving traffic next to temporary traffic lights. The claimant was riding a motorcycle. The defendant turned and collided with the motorcyclist overtaking slow moving traffic. The defendant had indicated before turning. The court held that both parties were equally to blame; the motorcyclist for overtaking the line of traffic and the defendant for failing to see the motorcyclist as he approached.

Bingham v Fuller (1997) 11 WLUK 604 Court of Appeal. In this case the claimant car driver did a U-turn on a main road. The claimant checked his mirrors before doing the U-turn. The claimant couldn’t see the defendant motorcyclist who was overtaking slow moving cars on the wrong side of the road when the motorcyclist collided with the claimant when doing the U-turn. The Court held that the motorcyclist was totally to blame for the accident and that decision was upheld by the Court of Appeal.  The witnesses to the accident confirmed that the motorcyclist was travelling at an excessive speed and was on the wrong side of the road at the time that the motorcyclist collided with the defendant’s car although the Court did accept the claimant had contravened the Highway Code by doing a U-turn, that was not the main cause of the accident.

Jenkins v Holt (1999) RTR 411 Court of Appeal. In this case the claimant collided with the defendant who had done a U-turn in the path of the claimant’s approaching vehicle causing a collision. The Court of Appeal reversed the original court’s decision to dismiss the claimant’s claim on the basis that the defendant had created a danger by doing a U-turn although the claimant could have avoided colliding with the defendant’s car. The Court of Appeal held that both parties were equally liable for the accident. The claimant was therefore awarded compensation but subject to a deduction of 50% for contributory negligence.

Whittle v Bennett (2006) EWCA Civ 1538 Court of Appeal. In this case the claimant was seriously injured when doing a U-turn on a main road. The defendant’s car collided with the claimant’s car. The Court dismissed the claimant’s claim and concluded it was counsel of perfection to expect drivers to anticipate that other drivers would do a U-turn into their path. The defendant was travelling at 60mph within the speed limit on the main road and the defendant’s failure to keep the recommended distance behind the claimant’s car when he did the U-turn was not the reason for the accident.

Nadarajah v Sotnick (2013) EWHC 2389. In this case the claimant motorcyclist was travelling in the opposite direction to the defendant’s car. The defendant stopped at the central reservation to allow the vehicle in front to carry out a U-turn. The defendant then intended to do a U-turn as well. The court held that the defendant was entirely to blame for the accident as the defendant pulled out onto a major busy road when it was unsafe to do so and created a hazard that the claimant could not avoid.

Luxton v Raja (2019) EWHC 644. In this case a motorcyclist was seriously injured whilst either turning across the carriageway to go onto a minor road or doing a U-turn at the junction. The defendant’s vehicle had been travelling at about 44mph in excess of the 30mph speed limit. The court concluded that both parties were equally to blame for the accident. The motorcyclist should not have attempted her manoeuvre when she did and the defendant was travelling at an excessive speed.

Davis v Schrogin (2006) EWCA Civ 974. In this case the claimant was riding a motorcycle and was overtaking a queue of traffic. There was excellent visibility in the area. The defendant made a U-turn without looking properly, colliding with the claimant’s motorcycle. The Court of Appeal upheld the lower court’s decision to give judgment for the motorcyclist without any deduction for contributory negligence as the motorcyclist had no time to react to the defendant’s U-turn.

YYY v ZZZ (2021) EWHC 632 Queens Bench Division. In this case the motorcyclist was carrying a pillion passenger and collided with a car that did a U-turn in front of the motorcyclist. The motorcyclist claim was successful without any deduction for contributory negligence as the court held that it was counsel of perfection to have expected the motorcyclist to have anticipated the driver would do a U-turn in those circumstances.

Palmer v Timms (2024) EWHC 2292 KB. In this case the claimant was riding a motorcycle and was filtering through traffic on the nearside. The motorcyclist was driving along Holloway Road, a busy road in London during the rush hour and the defendant was driving a lorry. The road had one lane in each direction. The accident occurred as the motorcyclist was overtaking the lorry on the inside to pass through a narrow gap only 1.3 metres in width and as he did so, the defendant braked and steered to the left, clipping the motorcycle, throwing the rider off his bike. The motorcyclist died as a result of his injuries and the claim was brought by his widow as a fatal accident claim against the driver of the lorry. The defendant contended that the claimant was 75% to blame for the accident but at trial, the judge applied a much lower deduction of one-third on the basis that the defendant was driving a large vehicle in an urban environment and was likely to encounter two-wheeled road users overtaking on the inside, there was an obvious destructive disparity between the amount of harm a lorry or other large vehicle could cause and the damage caused by a motorcyclist and therefore the lorry driver should bear a greater degree of responsibility for the accident.

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