Nolan v Mitchell & Anor

Nolan v Mitchell & Anor [2012]

This case involves personal injuries claim by a motorcyclist who was injured in a collision between his motorcycle and a vehicle that was turning left onto the main road from the entrance of a house. The Court found that while the driver had not kept a proper look out at the time of the accident and failed to yield right of way to the motorcyclist, Mr Nolan (the motorcyclist) was travelling at excessive speed and also contributed significantly to the cause of the accident. As a result, Mr Nolan was found to be 40% responsible for the accident.

The following are extracts from the case:

An independent witness, Mr. John Kelly, was travelling the stretch of road leading up to the dip and bend at the same time and in the same direction as the plaintiff. Mr. Kelly gave evidence that he had been driving since he was 16 or 17 years of age and that he is now 52 years of age. Mr. Kelly stated that, as he came to the bend, a motorbike passed him at high speed on the right hand side of the road. Mr. Kelly said that he was travelling at about 65 mph at the time, with another car in front of him about 20 yards ahead. He said the position of the motorbike was between the ditch and his car on the right hand side. I understood Mr. Kelly to be saying that the motorbike was on its incorrect side of the road as it travelled around the bend. He noticed there were two men on the bike. It seems that Mr. Kelly then lost sight of the bike, as after it passed him out, it overtook the other car ahead of him.

Mr. Kelly said the bike was gone “out of sight in seconds” and was “definitely speeding”. Having looked at his speedometer, he estimated the bike speed to have been 90 mph. Mr. Kelly said that he did not see the motorbike after that.

The Judge said:

There is no getting away from the indisputable fact, that Mr. O’Neill, who was not the driver at the time, was able to see the bike before the accident. Mr. Mitchell did not see the bike until Mr. O’Neill (his passenger) alerted him of its presence.

Therefore, I am satisfied, as a matter of probability, that Mr. Mitchell, the first named defendant, failed to keep any or sufficient or proper lookout at the time and that this was a major contributing factor to the accident. In the circumstances, he clearly failed to yield right of way to the plaintiff, in breach of the Road Traffic Act 1961 and regulations made thereunder. The first named defendant was coming out of a private entrance and was bound to yield right of way to traffic on the road.

Nevertheless, I am also satisfied that there was contributory negligence on the part of the plaintiff, in that on the occasion in question, he was probably driving at a very excessive speed, close to 90 mph if Mr. Kelly’s estimate is correct.

It is also of note that, in the Rules of the Road (Road Safety Authority, 2007) motorcyclists are advised to slow down, and if necessary to stop, if they are dazzled by oncoming headlights. This, the plaintiff clearly failed to do, for the obvious reason that he was driving too fast.

However, the primary responsibility for this accident in law must rest with the defendant because of his failure to yield right of way. Accordingly, I propose to apportion liability respectively as against the defendant at 60% and as against the plaintiff at 40%.


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