Hernandez v Acar

On 28 June 2014, a road crash occurred when Acar, driving a BMW motor vehicle, emerged from Redruth Road onto Victoria Park Road in Hackney, East London and into the path of a BMW R80 motorcycle driven by Mr Hernandez. There were parked cars on either side of the road meaning the driver of the BMW was unable to emerge safely.

The motorcycle struck the front offside wing of the BMW motor-vehicle. The motorcyclist was unseated and thrown 12 to 30 metres forward. His motorcycle collided with the rear bumper of a parked car on the north side of Victoria Park Road.

Mr Hernandez sustained life-changing injuries and was rendered paraplegic as a result of the collision.

In evidence at the civil case raised by the motorcyclist against the driver, it was found as a matter of fact that the motorcyclist had been travelling at 50mph in a 30mph zone.

The driver had emerged from a junction when it was unsafe to do so. Highway Code Rule 170 warns drivers to take extra care at junctions and to watch out for cyclists, motorcyclists, wheelchairs/mobility scooters and pedestrians as they are not always easy to see. Both motorcyclist and driver were at fault for causing this collision.

The case was finely balanced with regards to blame as on the issue of blameworthiness both motorcyclist and driver were negligent. However, "causative potency“ i.e. who brought most harm to the incident, was considered and then used to tilt the case back in favour of the motorcyclist. In collisions with larger road vehicles, it is the motorcyclist who is liable to suffer significant injury and not the driver. Causative potency acknowledges that motorcyclists are vulnerable road users and reflects how the Courts protect the most vulnerable road users when apportioning fault.

Motorcyclist 40% to blame.             BMW Driver 60% to blame.

The outcome meant the motorcyclist received 60% of the true value of his claim, despite travelling at excessive speed.

Remember, no two cases are the same: each case is fact sensitive but causative potency works in favour of the vulnerable and is a relevant consideration often overlooked as far as motorcyclists are concerned.

A link to the full judgement and decision can be found here.