Whiteford v. Kubas UAB

This judgement of the Court of Appeal of the 9th of May 2012 caused a great deal of anger amongst motorcyclists.

I declined to comment until the full judgement was given by the Court of Appeal and it has now been published and the full judgement is available on Bailli website. http://www.bailii.org/ew/cases/EWCA/Civ/2012/1017.html.

Mr Whiteford was a novice rider on a 750 cc motorcycle but was otherwise an experienced road user with experience of driving lorries. He was riding through a series of bends and at the end of a left hand bend he collided with a Lithuanian registered lorry, and tragically lost his leg. The evidence was that the lorry driver in a left hand drive lorry and the motorcyclist had about three seconds with each other in view but due to the road layout, the position of each vehicle in the road would not be clear until a second later. The motorcyclist accepted he could and should have moved over, and he should have been in the centre of his lane. The judgement makes no mention of the road positioning style adopted by Police Roadcraft, but I note that the experts called by the Claimant was Mr Robert Seston, who is a highly experienced collision investigator with some 24 years of collision investigation experience with West Midlands Police, and he is also a Police class 1 advanced motorcyclist. Mr Seston is somebody I have come across before, and he is a serious professional who knows what he is doing.

It appears that neither vehicle was speeding even though this does not appear to have been explored by the Court. Whilst the judgement does not say it may well be that the speed of the lorry was proven by the Tachograph, because the Barrister who represented Mr Whiteford in this case, Andrew Axon, is also known to me professionally, and he is a serious and very competent Barrister. I would be astounded if this point had been missed.

Therefore the case was heard on the basis that neither vehicle was speeding and the weather was not a factor. The Court and the experts called by the parties all agree the lorry’s front wheel was on the central white lines at the moment of impact and there was plenty of room for a motorcycle rider to pass on his own carriageway without collision. The Claimant’s own expert simply said the “the Claimant had got his corner wrong”.

The Court of Appeal said that without the wisdom of hindsight it is difficult to criticise the driver of the lorry. It also found that it was reasonable for the driver of a large lorry to marginally cross over the white line. Lord Justice Richards could not find any reason as to why the rider had reacted so badly to the minor encroachment into his lane, so the key points from this judgement are;

  • The lorry marginally crossing the white line was not negligent driving where the road made it necessary or close to unavoidable;
  • The obvious inference is that the Court found the rider’s reaction to the minor encroachment was the cause of the accident.

So far as I am aware, no appeal has been lodged. In light of this judgement, I cannot see an appeal to the Supreme Court even getting off the ground, with leave to appeal.

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