You are in: Home Page | About Thompsons | Publications | Law Bulletins | June 2007

Law Bulletin - June 2007

No liability for failing to ‘nose-poke’

The Court of Appeal has looked at the classic situation of a collision between a motor scooter and a car. The driver of the motor scooter had been driving along a main road intending to overtake a refuse wagon travelling in the same direction. The wagon was displaying its left indicator showing its intention to turn left into a side road. It had slowed down creating a gap in the traffic. This enabled a driver in the side road to drive out and turn right onto the main road. The car driver had advanced beyond the front offside of the wagon when the scooter, as it completed the overtaking, collided with the car.

The Judge held that the car had been moving continuously at about 5-8mph and that the argument that the car driver ought to have edged forward bit by bit (nose-poking) did not amount to negligence. The Judge held that the scooter driver had been travelling at 30mph and that that was reckless having regard to the nature of the manoeuvre he was carrying out and the lack of visibility to his left. Despite the claimant’s arguments that liability should be apportioned on a 50/50 basis, the Judge dismissed the claim.

On appeal the Court of Appeal said that the Judge’s finding that the driver of the car had emerged at about 5-8mph was difficult to reconcile with the finding that the driver was proceeding slowly and cautiously; however the real issue was whether it had been negligent of the driver to effect a continuous movement rather than to nose-poke. The Court held that it would be too much to expect a driver in that position to calculate the number of inches that would be prudent to nose-poke. Nose-poking carries its own risks, in particular that it might provoke an overtaking motorcyclist into a hazardous swerve.

The court went on to say that, while it was foreseeable that a motorcycle might be overtaking the wagon at modest speed, it was not foreseeable that the motorcycle would be overtaking the wagon in a reckless manner. The appeal was dismissed.

Farley -v- Buckley. Court of Appeal, 3 May 2007