Hernandez v Acar & Anor

Factual and Procedural Background

Shortly after 3pm on Saturday 28 June 2014, a road accident occurred when the Defendant, driving a BMW motor car, emerged from Redruth Road onto Victoria Park Road in Hackney, East London, colliding with a BMW R80 motorcycle driven by the Plaintiff. The motorcycle struck the front offside wing of the car, causing the Plaintiff to be thrown approximately 12 metres forward. The motorbike then hit a Ford Focus parked on Victoria Park Road. The Plaintiff sustained severe injuries resulting in paraplegia. The Defendant counterclaimed for psychiatric injury.

By an Order dated 6 February 2018, the court directed a preliminary issue on liability. The Plaintiff contended the Defendant failed to look properly before pulling out, while the Defendant alleged the Plaintiff was riding at an excessive speed (around 50mph in a 30mph zone), preventing the Defendant from seeing or avoiding the collision. The court ultimately apportioned liability 60/40 in favour of the Plaintiff.

Victoria Park Road runs roughly east-west and is one-way westbound with a 30mph speed limit at the time (later reduced to 20mph). It is a single carriageway with parked cars on both sides, restricting sight lines at junctions. Redruth Road joins from the south at a "T" junction requiring traffic to give way. Parked cars obstructed the Defendant’s view, necessitating edging out to see up Victoria Park Road before turning left.

CCTV footage from number 151 Victoria Park Road played a significant role in the investigation. Police and paramedics attended the scene, taking statements from the Defendant and witnesses. The Defendant described stopping at the Give Way line and pulling out slowly, hindered by parked vehicles blocking his view. The Plaintiff had limited recollection but was an experienced motorcyclist who denied reckless speed despite evidence suggesting otherwise.

Expert evidence, including CCTV analysis and accident reconstruction, was presented. CCTV experts disagreed on the reliability and speed calculations, but the court favoured the Defendant’s expert, concluding the Plaintiff’s speed was approximately 49mph. Accident reconstruction experts estimated the speed at impact around 30mph and concluded the Defendant’s view was obstructed, making the collision unavoidable given the circumstances.

The legal framework included relevant Highway Code provisions emphasizing the duty of care when emerging from junctions, especially regarding vulnerable road users such as motorcyclists.

Legal Issues Presented

1. Whether the Defendant was negligent in failing to obtain a proper view before pulling out onto Victoria Park Road.
2. Whether the Plaintiff’s speed constituted contributory negligence or recklessness sufficient to absolve or reduce the Defendant’s liability.
3. The appropriate apportionment of liability between the parties given their respective faults and the causative potency of those faults.

Arguments of the Parties

Defendant's Arguments

• The Defendant asserted he emerged from the side road in a normal, careful manner at a low speed (3-4 mph).
• He claimed he did not see the Plaintiff but even if he had, the collision would have been unavoidable due to the position of his car after the accident.
• The Defendant argued that he looked sufficiently and was under no duty to guard against reckless driving by the Plaintiff.
• If liable, the Defendant submitted that the majority of blame lay with the Plaintiff due to excessive speed.

Plaintiff's Arguments

• The Plaintiff contended the Defendant failed to edge out sufficiently to see the motorcycle approaching, thereby breaching his duty of care.
• The Plaintiff urged caution in attributing excessive speed as causative, emphasizing the speed recorded was a snapshot and the relevant speed was that at the moment of reaction.
• He argued that his speed was inadvertent and that the Defendant’s failure to obtain a proper view was the primary cause.
• The Plaintiff suggested an apportionment of liability heavily in his favour, proposing an 80/20 split.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the facts, witness evidence, expert reports, and CCTV footage. It found that the Plaintiff was exceeding the speed limit significantly (approximately 50mph in a 30mph zone), which was negligent and causative of the accident. However, the Defendant was also negligent for failing to secure a proper view before pulling out onto Victoria Park Road.

The court accepted the Defendant’s expert evidence on CCTV speed analysis over the Plaintiff’s expert, finding the speed estimates reliable and rejecting criticisms of the methodology and data integrity. Accident reconstruction evidence supported a speed at impact around 30mph and confirmed the Defendant’s limited sight lines due to parked cars.

The Defendant’s strategy of edging out slowly while hugging the left side of the road was insufficient to gain a proper view, leaving a blind spot to his immediate right. The court rejected the Defendant’s submission that the accident would have occurred regardless of his negligence, reasoning that had the Defendant properly edged out, he would have been able to stop immediately upon seeing the Plaintiff’s motorcycle.

The court also rejected the notion that the Defendant’s achieved sightline was adequate to discharge his duty of care, noting that road users must anticipate others may exceed speed limits or act unsafely. The Plaintiff’s speed, while excessive, was not reckless to a degree that would exclude the Defendant’s liability.

Balancing culpability and causative potency, the court found a "broad symmetry" in fault but noted the Plaintiff’s greater blameworthiness in terms of speed, while the Defendant’s fault had greater causative potency given the vulnerability of motorcyclists and the circumstances of the collision.

Holding and Implications

The court apportioned liability 60/40 in favour of the Plaintiff. Judgment was entered for 60% of the claim with damages to be assessed and 40% of the counterclaim with damages to be assessed (noting medical causation issues on the counterclaim).

The decision directly affects the parties by establishing shared fault and respective liabilities but does not set new legal precedent. It underscores the importance of drivers exercising adequate care when emerging onto major roads and the risks posed by exceeding speed limits, particularly for vulnerable road users such as motorcyclists.