Robert Moore v Maurice Bell [2023] EWCC 2

Neutral citation: [2023] EWCC 2Case No H78YX452Venue IN THE LEEDS COUNTY COURT, The Combined Court Centre, Oxford Row, LeedsDate 27 th October 2023
Before
HIS HONOUR JUDGE DARREN WALSH
Between
ROBERT MOOREClaimantMAURICE BELLDefendant
Miss Fiona Ashworth (instructed by Brian Barr Solicitors) for ClaimantMr Darrel Crilley (instructed by DWF Law LLP Solicitors) for DefendantHearing Hearing dates: 28 th February 2023, 1 st March 2023, 20 th and 21 st June 2023
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.His Honour Judge Walsh:Introduction
[1]This is a claim by the Claimant, Robert Moore, against the Defendant, Maurice Bell, for damages for personal injury and other consequential loss suffered as the result of the alleged negligence of the Defendant arising out of a serious road traffic collision that took place at approximately 14.50 on 24th June 2018.[2]The collision occurred on Wheldrake Lane, Escrick in North Yorkshire. The Claimant was riding his 6-speed red coloured 1100cc Ducati Panigale V4 Supersport motorcycle. He collided with the Defendant’s manual Vauxhall Vectra motor vehicle which was emerging onto Wheldrake Lane via a gravelled track (“the access road”) from Tileshed Farm on the Claimant’s left-hand side (“the junction”).[3]The Claimant’s motorcycle and body struck the front of the Defendant’s vehicle before he was thrown and slid along the road and verge until he came to rest. As a result of the collision, the Claimant suffered multiple severe injuries including abelow the knee amputation of the left leg.[4]The Defendant denies that the collision took place as a result of his negligence. Alternatively, he pleads that the collision was caused or contributed to by the Claimant’s negligence. Deputy District Judge Barnes directed that the Claim be listed for a trial of a preliminary issue as to liability.[5]That trial took place before me over 4 days. I heard oral evidence from the Claimant and his partner, Miss Shaw, from the Defendant, and from an independent witness called on behalf of the Defendant, Miss Louise Bedford. Miss Bedford was not directly involved in the collision but was travelling along Wheldrake Lane at the material time and made certain observations the relevance of which I will come to shortly.[6]Mr Corrigan provided expert evidence on behalf of the Claimant, and Mr Sorton on behalf of the Defendant. Both are Consulting Forensic Collision Investigators. Both prepared reports in advance and a joint statement, and gave oral evidence at trial.[7]I also heard briefly from PC Green, a police forensic collision investigator, who attended the scene on the day of the collision and carried out certain investigations. He took a series of photographs and measurements and later provided a report and a calculation document. PC Green, who was called on behalf of the Defendant, was not called as an expert witness. The police report, which contained a number of statements was admitted in evidence by agreement of the parties.[8]In addition, I received written arguments and written submissions from both Counsel, Miss Ashworth for the Claimant, and Mr Crilley for the Defendant. Both Counsels’ written submissions, filed on 2nd August 2023, were exceptionally well structured and impressive, and were of great assistance. This is my reserved Judgment. Locus[9]Wheldrake Lane is an unclassified country road that connects the villages of Escrick and Wheldrake. It is a single carriageway with two lanes, one travelling in either direction that follows a winding path through open countryside in a generally east to west direction. The carriageway is bordered by grass verges of varying widths followed by an assortment of hedges. The road is subject to a national speed limit of 60mph.[10]The collision occurred at the junction on Wheldrake Lane. The lanes at this point and on approach are separated by a series of long broken centre hazard warning lines painted upon the surface of the road indicating that a junction or other hazard may be present that is not immediately obvious.[11]The Claimant was travelling along Wheldrake Lane from the direction of Wheldrake in a south-westerly direction towards Escrick. On his approach, therefore, the junction appeared on his left-hand side. Before reaching the junction the road led through a final shallow lefthand bend.[12]Before the junction, in the Claimant’s direction of travel, the Police Forensic Collision Investigation Report references a home-made ‘Slow Concealed entrance’ sign on the nearside verge. However, I was not alone in being unable to identify it from the images contained within the trial bundle.[13]The Defendant was emerging from the junction intending to turn right along Wheldrake Lane in a north-easterly direction towards Wheldrake. The Claimant approached therefore from the Defendant’s right-hand side.[14]The Defendant travelled to the junction along the access road from the farm along a loose gravel track. The track meets Wheldrake Lane across a notional give-way line where the track finishes. There are no painted give way markings.[15]Before reaching the junction in the Defendant’s direction of travel, the access road bends slightly to the left then right. In the same direction, the road is bordered by open arable fields to the left, and at the mouth of the junction, a large mature tree to the same side.[16]To the right, at the material time, was an 8-foot-high mature hedge preventing an early view of Wheldrake Lane on approach. In addition, there are fingerboard and public bridleway signs also restricting the view to the right. At the mouth of the junction, the hedge is set back. The view to the right-hand side therefore opens as the grass verge widens providing an agreed field of view to the Defendant of 85 metres.[17]The width of Wheldrake Lane varies between 4.95 and 5.52 metres. The width of the carriageway at the scene of the collision is 5.07 metres. The width of the south-west lane measuring 2.43 metres and the north-east lane 2.64 metres. It is common ground that the collision occurred just over the centre white line. Police Evidence[18]The collision was reported to the police at 14:53. PC Green attended the scene. He noted that the weather was fine with good clear visibility, and the road surface was dry. At the point of his arrival, the Defendant’s vehicle had already been reversed off Wheldrake Lane back onto the access road.[19]PC Green noted a rolling tyre mark deposited by the Defendant’s front nearside tyre as it left the junction prior to the collision. He also recorded a pool of fluid from the Defendant’s vehicle cooling system at the point of impact trailing back to the Defendant’s post collision position on the access road.[20]PC Green also identified a single locked tyre mark starting in the offside of the south-west bound lane of Wheldrake Lane towards Escrick. The mark crossed the centre white line onto the opposite lane leading up to the point of impact ending just to the north-west of the centre line of the road.[21]The mark therefore was consistent with being deposited by the locked rear tyre of the Claimant’s motorcycle while performing emergency braking, and extended for a distance of 23.87 metres, and was consistent (and this was accepted by both experts) with evidence that the Claimant reacted to the presence of the Defendant’s vehicle.[22]The damage to the Claimant’s motorcycle was catastrophic. The front forks and headstock were separated from the rest of the motorcycle (though not during impact with the Defendant’s vehicle). On examination, the motorcycle was found to be in its highest 6th gear, and setting 1 of its anti-lock brake system, which is appropriate for racing on high-grip surfaces and racetracks.[23]In his report (at paragraph 8.2.4), PC Green incorrectly stated that the motorcycle was in setting 3, but confirmed in his witness statement, dated 8th April 2022, at paragraph 7 that the same was at typographical error and setting 1 was the correct position.[24]During cross-examination, PC Green acknowledged that the gear operation on the Claimant’s motorcycle was badly damaged and accepted the possibility when it was suggested to him that the gear setting could have been affected by the impact i.e., it may not have been in 6th gear before the collision occurred.[25]The damage to the front of the Defendant’s vehicle was extensive. The vehicle sustained damage starting near to the centre of the front of the vehicle intruding progressively more towards the nearside.[26]The Defendant’s vehicle front chassis cross-member was also buckled and pushed backwards. Black material transfer was identified on the bonnet consistent with the Claimant’s clothing. Rubber transfer was noted on the front number plate consistent with deposits left by one of the motorcycle’s tyres.[27]PC Green calculated the speed of the Claimant’s motorcycle at the commencement of braking at 61-67 mph. Both experts took into account the report and observations of PC Green when forming their opinion as to the Claimant’s speed. Pleaded Positions Claimant’s Case[28]There are a number of pleaded allegations of negligence. During evidence and in her closing submissions, Miss Ashworth narrowed the substantive allegations to the following:(1) That the Defendant emerged out of the junction without stopping or making any observations;(2) Even if the Defendant did stop at the junction, he emerged when the Claimant was approaching and when it was unsafe to do so;(3) In any event, the Defendant did not react quick enough to the presence of the Claimant’s motorcycle. Defendant’s Case[29]The Defendant maintained that he complied with his duty of care in stopping at the junction and making appropriate observations to the right before emerging. Moreover, he averred that he maintained those observations to the right as he emerged, and that the Claimant’s motorcycle only came into view after he commenced his manoeuvre. He asserted that he reacted to its presence by braking and bringing his vehicle to a stop at or at about the point of collision.[30]Therefore, the Defendant denied negligence. Alternatively, a greater share of responsibility should be attributed to the Claimant to reflect his greater culpability in riding his motorcycle at an excessive speed and in an erratic manner. In such circumstances, should primary liability be established, contributory negligence was submitted to be 40%. Issues[31]The issues can be defined as follows:(1) What was the speed of the Claimant’s motorcycle prior to braking?(2) Did the Defendant emerge out of the junction without stopping or making any observations?(3) Did the Defendant emerge when the Claimant was approaching and when it was unsafe to do so?(4) Did the Defendant react quick enough to the presence of Claimant’s motorcycle?(5) If the Claimant establishes negligence, should the damages recoverable be reduced by reason of any contributory negligence on his part? Preliminary Observations[32]I will deal with the facts in this case incorporating any witness and expert evidence, along with Counsels’ submissions as necessary. Both Counsel criticised the opinions of the other party’s expert’s evidence at some length. I will again deal with those criticisms below as necessary.[33]However, before that, I will deal with Miss Ashworth’s criticism of Mr Sorton and her overarching submission that he has failed in his duty to the Court, the status of his evidence as a result, and the role of expert evidence in this case in any event.[34]Miss Ashworth correctly submitted that Mr Sorton failed to identify in part of his written evidence that he was relying upon the hearsay evidence of his colleague, Mr Simpson. I accept that to do so was a breach of Mr Sorton’s duty to the Court. I do not accept that it was done deliberately or recklessly as suggested, and accept that the said failure was a genuine error.[35]Mr Sorton explained that due to the fact he uses a standard form layout for his reports, he failed to notice that the relevant paragraph regarding Mr Simpson had not been amended. This does not taint the totality of Mr Sorton’s evidence as suggested. However, I give no weight to the hearsay evidence contained in his report as to the observations made of the tyre prints left by other vehicles observed by Mr Simpson.[36]I also reject the argument that Mr Sorton was ostensibly partisan and was “batting for the Defence”. I would accept that at times Mr Sorton had a tendency to answer questions during cross-examination in a slightly confrontational and defensive manner, and certainly less so than Mr Corrigan, who maintained a pleasant demeanour throughout.[37]However, Mr Sorton answered all questions put, even if they required repeating, and did so in a clear and logical way. He was also fair in his analysis and made relevant concessions, sometimes even before he was pressed to do so.[38]For example, during cross-examination, he conceded without being prompted, but as he put it to “shorten matters”, that at an approach speed of the Claimant’s motorcycle between 56 and 69 mph (ignoring brake lag) as suggested by Mr Corrigan, the motorcycle would have been within the Defendant’s field of view immediately prior to him emerging out of the junction. This does not strike me as an expert witness who was ostensibly partisan and who was batting for the Defence.[39]I also consider that there is nothing in the point that Mr Sorton did not include the mathematical formulae for his calculations. The experts are familiar with these calculations and the mathematics behind them and the formulae to be applied. Their duty is to provide the Court with reasons for their opinions not to provide the actual formulae as to how they reached their calculations to form those opinions. Role of Expert Evidence[40]Quite properly, both Counsel highlighted that while the expert evidence assists in determining matters such as the speed of the Claimant’s motorcycle, it is for the Court to determine the circumstances of the collision attaching appropriate weight to the lay evidence. Both made reference to Taylor v. Raspin [2022] EWCA Civ 1613, and the caution to be had in placing too much weight on the expert evidence when there are witnesses of fact. Lay Evidence[41]As to my impressions of the parties and witnesses, I will say at this point that though the Defendant accepted that he did not have a 100% recollection of events, I formed the view that he was a straight-forward witness and was doing his very best to provide the Court with an accurate account.[42]For reasons that will become clear below, I did not form the same favourable impression of the Claimant and his partner, Miss Shaw. Again, for reasons that will become clear, I consider that Miss Bedford was an important witness in this case, and I found her a straightforward, measured and credible witness. It is convenient to deal with her evidence first. Miss Bedford[43]On 26th June 2018, Miss Bedford gave evidence to the police by way of section 9 statement. She confirmed that on the day of the collision at about 14.45 she left her home address in her motor vehicle and turned left onto Wheldrake Lane heading in the direction of Wheldrake (in the opposite direction to the Claimant’s direction of travel).[44]She described negotiating a set of bends to a point where the road straightened out. At this stage, she asserted that she was confronted on her side of the road by a red coloured motorcycle travelling at what appeared to her to be in excess of the speed limit and going “very fast”.[45]Miss Bedford contended that the motorcycle was “well into the middle” of her side of the road and appeared to be overtaking two other motorcycles. As a result, she had to “brake pretty sharply to avoid hitting” the motorcycle. She confirmed in oral evidence that she did not see any other motorcycles on her route through Wheldrake to Elvington and Sutton upon Derwent.[46]In her witness statement, Miss Bedford exhibited the said statement she made to the police, and added that when she described having to “brake pretty sharply” she was braking for an emergency stop, and that the red motorcycle swerved back towards its side of the road. She asserted that she “thought that if I did not brake in an emergency fashion there was going to a be an accident.”[47]She continued that while she was at work in the afternoon her father telephoned her to inform her that there had been a collision on Wheldrake Lane and that the road had been closed by police. In short, she asked her father if a motorcycle was involved as, in essence, given what had gone before, she believed that the red motorcycle might have a collision. Her father attended the scene and provided the police with her contact details.[48]Quite properly, during cross-examination, Miss Ashworth did not attempt in any way to suggest that Miss Bedford was an untruthful witness. There was no suggestion either that Miss Bedford was not an independent witness and in some way known to either of the parties.[49]In short, Miss Ashworth suggested to Miss Bedford that the motorcyclists she saw on Wheldrake Lane were not in fact the Claimant and his fellow riders, but possibly some other motorcyclists. Her reasons for doing so was due to the fact that the Claimant asserted that he and his fellow two riders, Miss Shaw, and a Mr Harrison (the latter of which they had met at a bikers café in Fridaythorpe), had ridden at all times in the same formation with the Claimant leading, followed by Mr Harrison and then Miss Shaw.[50]Therefore, it was the Claimant’s case that he had not, before the collision occurred, overtaken any other motor vehicle or motorcycle. Miss Shaw also maintained this account and also suggested that perhaps Miss Bedford was confused due to the fact she also had a red motorcycle.[51]In relation to the motorcycle travelling on Miss Bedford’s side of the road, Miss Ashworth challenged Miss Bedford as to the fact that she did not know the make of the motorcycle, or the colours of the helmet and leathers of the rider, and that she did not note in her evidence that there were in fact two red motorcycles travelling within the Claimant’s party of three.[52]Miss Bedford stated that the motorcycle on her side of the road was “just a bright red bike”, and that the other motorcycles didn’t appear to be as bright. She did not know whether the other motorcycles were the same colour or not, that they could have been, but just that they were not as bright as the one that appeared on her side of the road. She accepted that she did not really focus on the other motorcycles, and all she knew was that they were a darker shade and not as bright.[53]Miss Bedford accepted that it was difficult to estimate the speed of oncoming motorcycle, that the whole incident occurred within a couple of seconds, and that the incident was some years ago. However, she confirmed when suggested that all she had was an impression of a motorcycle on her side of the road, that “it was still quite a vivid memory though.”[54]I found Miss Bedford a most straightforward witness who seemed to be doing her level best to provide the Court with an accurate account of what she saw that day. She made relevant concessions when required and at no point did she seek to embellish her evidence.[55]To the contrary, as Mr Crilley submitted, Miss Bedford did not even suggest that the red motorcycle that she saw on her side of the road carrying out the overtaking manoeuvre and riding at an excessive speed was in fact the Claimant. This is something naturally that she could not have known.[56]I am satisfied, therefore, and find that having left her home address on Wheldrake Lane at around 14.45, and while driving on Wheldrake Lane, having negotiated a set of bends to a point where the road straightened out, Miss Bedford was confronted on her side of the road, and well onto her side of the road as she described, by a red coloured motorcycle forcing her to brake sharply due to the risk of a collision. It is difficult to imagine that she could be mistaken in this regard.[57]The same is also consistent with the fact that Miss Bedford was so concerned with the manner in which the red motorcycle was being ridden that when her father telephoned her on the afternoon of the index collision to inform her of the same she asked him if it involved a motorcycle.[58]I am also satisfied and find that the reason the red motorcycle appeared on Miss Bedford’s side of the road was due to the fact that the motorcycle was in the process of overtaking or had just overtaken the two other motorcycles on the opposite carriageway.[59]I am further satisfied that the red motorcycle on Miss Bedford’s side of the road was travelling at a fast speed as she stated. Such a finding is also consistent with the fact that the red motorcycle was overtaking the other motorcycles, and the fact that, as one would expect in such circumstances, Miss Bedford had to brake sharply to avoid colliding with the motorcycle.[60]In addition, I also satisfied that the three motorcycles that Miss Bedford saw on Wheldrake Lane were those being ridden by the Claimant, Miss Shaw, and Mr Harrison. The Police Report records that the index collision was reported to them at 14.53. As noted, Miss Bedford informed the Police on 26th June that she left her home on Wheldrake Lane on the date of the index a collision at about 14.45. She confirmed that she did not see any other motorcycles on her route other than the ones described. I accept this evidence.[61]Given the close proximity to the time of the index collision when Miss Bedford witnessed these three motorcycles on Wheldrake Lane, it would be a most remarkable coincidence for it to have been three completely different motorcyclists at least one of whom was riding a red motorcycle.[62]It is common ground that Mr Harrison was riding a green coloured motorcycle. Therefore, I am further satisfied the red motorcycle Miss Bedford witnessed travelling at speed on her side of the road could only have been either the Claimant or Miss Shaw.[63]Given the relative inexperience of Miss Shaw to that of the Claimant and the fact that at the time of the index collision, the Claimant was obviously the lead motorcyclist, I consider that, on a balance of probabilities, that the red motorcycle Miss Bedford witnessed travelling at speed on her side of the road must have been the Claimant.[64]Therefore, I find that a short time before the index collision occurred, the Claimant was riding on the wrong side of the road and travelling at a fast speed likely to be in excess of the speed limit. I will deal with the Claimant’s speed in more detail further below.[65]Miss Ashworth highlights that Miss Bedford did not note the make and model of the motorcycle, its registration number, or the colours of the helmet and leathers of the rider. Further, that she did not note in her evidence that there were in fact two red motorcycles travelling within the Claimant’s party of three, and that the one she saw appeared brighter than the other two.[66]The incident Miss Bedford witnessed took place over a couple of seconds. As she came out of the bends, she was faced with a motorcyclist on her side of the road travelling at speed causing her to take immediate avoiding action. I consider it hardly surprising therefore, that she made no mental note of these things. However, the same in no way undermines the findings I have made.[67]I found the Claimant’s attempt to cast doubt on what Miss Bedford saw as illogical. At paragraph 37 of his witness statement, he stated:
“The only thing I can possibly think of is that she got confused due to there being two red bikes which were very similar. I was riding the Ducati V4 and Lindsey was riding the Ducati V2. Perhaps she had gotten the two bikes confused. I really do not know, but I am 100% certain that I was riding in the lead the whole time and it is impossible for her to have seen me overtaking the other two motorcycles because it just did not happen.”
[68]If not the Claimant, the only reasonable conclusion from this paragraph is that one of the red motorcycles that was seen by Miss Bedford on her side of the road overtaking two other motorcycles was in fact Miss Shaw. However, that version of events does not sit well with either the Claimant’s case, or Miss Shaw’s evidence as they both deny any such incident even took place.[69]Miss Ashworth submitted, in essence, that even if Miss Bedford’s evidence was accepted and a finding made that the motorcyclist that confronted her on her side of the road was indeed the Claimant, then the same was of no real relevance to the issues to be determined. I respectfully disagree.[70]There are several disputed facts not least of which relates to whether the Defendant stopped as the junction before emerging as the Claimant asserts, and the speed of the Claimant’s motorcycle on approach. The findings I have made have an impact on my assessment of the credibility of the Claimant and Miss Shaw.[71]I am driven to the conclusion that both were misleading in the evidence they gave in relation to what Miss Bedford witnessed. While it does not follow that they have misled the Court as to other parts of their evidence, or that they are wrong as to the same, I am driven to approach the remainder of their evidence with a degree of caution. Claimant[72]The Claimant is an exceptionally experienced rider. He was 67 years of age at the time of the index collision and had been riding motorcycles since he was 16. He was interviewed by the police on 13th September 2018, a little under 3 months after the date of the index collision. He informed them that he was travelling “around 60mph” had come out of the last bend and straightened up.[73]The Claimant stated that all he could recall was the Defendant just pulling out onto his side of the road and that he did not recollect seeing him at all prior to him emerging. He did not see the concealed entrance sign, and confirmed that he could not stop within the distance that he could see to be clear.[74]In his witness statement, he described being extremely familiar with Wheldrake Lane (incorrectly recorded as Wheldrake Road) as he had ridden the same numerous times for more than 30 years. He also indicated that he was extremely familiar with the bend where the collision occurred.[75]Despite the same, he accepted that he could not say that he specifically knew of the access road, but that he had never had any issues with the road before. That evidence was inconsistent with the response the Claimant gave in his oral evidence to a question I asked where he confirmed that he was in fact aware of the concealed entrance before the collision occurred.[76]The Claimant asserted in his witness statement that as he entered the final bend he eased off the throttle and allowed the engine to brake, he gently accelerated when coming out of the bend. He stated that the next thing he remembered seeing was the Defendant emerge from the junction and the collision occurred. He did not recall any more regarding the lead up to and the collision itself, but again maintained that he was travelling at around 60 mph and was in 4th gear.[77]At paragraph 23 of his witness statement, he asserted that before the collision occurred the three riders were proceeding in close proximity with the Claimant leading and using hand signals to indicate to the riders behind him to slow down if he saw hazards such as gravel on the road (due to the resultant risk of skidding).[78]At paragraph 11 of her witness statement, Miss Shaw also described the sequence of the riders as the Claimant leading, Mr Harrison behind him and Miss Shaw behind Mr Harrison. She stated that that had been the “way we had been riding the whole time from Seaways to the Squires”.[79]However, in her statement to the police on 13th September 2018, while claiming the same sequence of the three riders with the Claimant leading, Miss Shaw seemed rather less adamant that the sequence was always maintained:
“this generally was the same throughout the journeyand we stayed together only losing sight of them when we went around bends in the road.”
[80]Miss Shaw also confirmed that when she exited the final left-hand bend the collision had already occurred with debris all over the road. She asserted that Mr Harrison was just getting off his motorcycle to assist the Claimant, and that the Defendant’s vehicle was off the road and in the mouth of the access road. She reiterated the same during her oral evidence under cross-examination that the Defendant’s vehicle was “back off the road”.[81]Therefore, there is a clear time lag between the three riders from the point of impact and Miss Shaw’s first observation of the aftermath of the collision. Mr Crilley submits that on a common-sense basis, it is unlikely to be in the region of just 5 seconds. He suggested to Miss Shaw that it would be not less than 10 seconds.[82]Miss Shaw did not agree or disagree with that suggested time estimate of not less than 10 seconds as she did not know, but given the Defendant had reversed his vehicle completely off the carriageway, and even if he did so immediately following the collision, I consider that Mr Crilley is correct that it is unlikely to be a time difference of a mere 5 seconds and more likely to be 10 seconds or a little more.[83]I consider that Mr Crilley is also correct that this evidence of significant separation between the Claimant and Miss Shaw casts doubt upon the cogency of the Claimant’s account of how fast he was riding and the manner in which he was riding.[84]I consider that this evidences the fact that, at some point shortly before the collision occurred, the Claimant was riding considerably faster than the other two motorcycles and certainly far faster than Miss Shaw who he had clearly pulled away from before the collision occurred.[85]During his oral evidence, having managed negotiate the final bend and straighten up, the Claimant stated for the first time that he “got halfway down the street” before the Defendant’s vehicle appeared straight out of the junction. He repeated this more than once further stating:
“…when I come around the bend, there was no car visible at the junction, and then halfway down the street, the vehicle appeared…”
[86]At no point, either in his account to the police or in his witness statement, did the Claimant mention that he was halfway down the road (after the left bend) when the Defendant’s vehicle appeared.[87]In any event, and importantly, as Mr Crilley correctly submitted, such evidence is demonstrably unreliable. If the Claimant had reached a point after the final bend, straightened and was half way down the road, the same would place him some 40-50 metres away from the point of impact before the Defendant emerged.[88]Taking the experts’ agreed perception reaction time (“PRT”) of 1-1.5 seconds, even at the Claimant’s suggested speed of about 60 mph (26.8 m/s) there would have been insufficient time and distance for him to have skidded over a distance of 23.87 metres and then into collision with the Defendant’s vehicle. Miss Shaw[89]Miss Shaw did not witness the collision. At its highest, she relies on the Claimant as to his account of how the collision occurred. Her evidence, therefore, does not greatly assist with the issues that require determination.[90]In any event, to the extent her evidence may be relevant, for the reasons noted above, I have already made clear why I approach the evidence of Miss Shaw with a degree of caution. I have already rejected her account of the Claimant not performing the overtaking manoeuvre described by Miss Bedford, and the account provided by both the Claimant and Miss Shaw that the three riders were proceeding in close proximity prior to the index collision.[91]The concern I have of Miss Shaw as a witness is further amplified by other parts of her evidence. I need only provide one further example. In her witness statement at paragraph 15 she described coming upon the scene of the collision and the first thing she saw was “the horrendous image of Rob skidding down the road and then coming to a stop.”[92]That evidence was inconsistent with her evidence to the police that when she came out of the bend she saw the Claimant “further down the road and he was on the floor on the right-hand side of the road”, and moreover, her oral evidence where she agreed that the first time she saw the Claimant, his body was static on the verge on the offside of the road. Defendant[93]The Defendant is 83 years of age, and at the time of the index collision was 77. He is exceptionally familiar with the junction, having lived at Tileshed Cottage from 1964 to 2007, and Wheldrake Cottage for a number of years, both of which are in close proximity to the junction.[94]He is also an experienced driver, and significantly, had used the access road for approximately 60 years pulling out of the junction with both tractors and cars. He confirmed during crossexamination that at the time of the index collision, he was living 2-3 miles from the junction and that he would drive along Wheldrake Lane on a regular basis and still visited Tileshed Farm (where he used to work) probably once per week.[95]On the day of the collision, the Defendant indicated that he had been to Tileshed Farm and was intending to travel into Wheldrake to pay an electricity bill. He states that he was not in a rush. He describes it being a very hot day and that his windows were wound down.[96]He asserted that he travelled slowly along the access road and stopped at the end of the road at the junction while covering the footbrake. He was in 1st gear and claimed that he looked right, then left and then right again.[97]As there were no approaching vehicles he began to move out of the junction. He describes emerging in a “normal way – not particularly quickly or particularly slowly”, and still looking to his right when he saw the Claimant’s motorcycle. He described that the Claimant came from round the bend at high speed. As a result, he asserted that he slammed on his brakes, and was travelling at no more than 5mph when he did so, remaining in 1st gear.[98]The Defendant described hoping that the Claimant would avoid his vehicle using the remaining gap in the road ahead of him. However, the Claimant collided with the front of his vehicle. At the point of collision, he averred that he was already stationary.[99]The Defendant gave a brief account to the police at the scene of the collision. He described pulling out with both windows open, and that he would have heard a motorcycle if it was coming at a “normal speed”. He continued that he just started to pull out when the Claimant’s motorcycle came “flying round the corner”. 100.The Defendant was formally interviewed by the police the following day after the collision. He stated that he believed that the speed limit for the road was 50 mph but that “he was not 100%”. He asserted that he was pulling out of the junction when “all of a sudden this motorbike came out of nowhere”. He asserted that he “just slammed on” and “that there was nothing I could do the speed he came out of the bend”.[101]Finally, the Defendant was asked whether he heard the Claimant’s motorcycle approaching. He responded as follows: “No, I’ve done it many times, you can always hear a vehicle coming”.[102]In relation to his accounts to the police, the Defendant agreed with them, but clarified that whilst he said that he would have heard a motorcycle coming if he was travelling at a normal speed, he did not mean that he was relying on his hearing to know if it was safe to exit the junction. He stated he was looking to see if the road was clear.[103]As noted, I found the Defendant a most straightforward and reliable witness. He made relevant concessions when required even when they may be to his detriment. For example, he accepted that he did not hear the motorcycle’s engine or see its headlight on approach, and agreed that it would be careless not to be aware of the speed limit for Wheldrake Lane, and that he was careless in not knowing the same.[104]The Defendant was heavily criticised by Miss Ashworth for mistakenly believing that the speed of the road was 50 mph as opposed to its actual 60 mph limit. While it was a surprise that the Defendant did not know the actual speed limit, in my judgement, it has no causative impact on the five substantive issues to be determined.[105]True to the straightforward nature in which he presented his evidence, the Defendant also accepted when pressed by Miss Ashworth that if he had started to brake sooner, he would have stopped earlier, and as a consequence stopped further back. He agreed that the Claimant would then have been able to ride around the front of him.[106]I will return to this issue later, but it was clear from the line of questioning that led to these responses, that Miss Ashworth was suggesting to the Defendant that he had acted negligently. Despite the same, and to his credit, the Defendant was quite candid in his reply. Analysis Issue 1 Claimant’s Speed before braking[107]I am satisfied that the Claimant was riding his motorcycle at an excessive speed and well above the speed limit of 60mph before the collision occurred. I say so for 6 substantive reasons:[108]First, while it is difficult for drivers to give accurate estimates of the speed of other motorists particularly those travelling towards them over a short period of time, it is clear that Miss Bedford was taken by not only the way in which the Claimant was riding but also his speed. She estimated that he was travelling very fast and in excess of the speed limit.[109]Second, not only are the observations of Miss Bedford consistent with the Claimant proceeding at a fast speed and in excess of the speed limit, but the Defendant’s perception of the Claimant’s speed is also consistent with such a finding.[110]In his most contemporaneous account, the Defendant informed the police that the Claimant’s motorcycle came “flying round the corner”. When formally interviewed by the police the following day after the collision, he stated that “there was nothing I could do the speed he came out of the bend”.[111]The Defendant maintained that position during cross-examination:
“He come like a bat out of hell” and “I saw the thing come flying around the corner…At excessive speed”
. The Claimant’s assertion that he was riding at about 60mph is wholly inconsistent with the clear impressions of his speed witnessed by the Defendant and Miss Bedford.[112]Third, as noted above, there is clear evidence of significant separation between Miss Shaw as the third rider in the group and the Claimant. I consider that this again evidences the fact that at some point shortly before the collision, the Claimant was riding considerably faster than the other two motorcycles and certainly far faster than Miss Shaw who he had clearly pulled away from before the collision occurred.[113]While Miss Ashworth submits that the Claimant had no reason to be speeding at the time of the collision, that he was simply on a leisurely ride with Mr Harrison and Miss Shaw, and accordingly, had no reason to accelerate away from the rest of the group, the evidence of the Defendant and Miss Bedford, and the time lag between the Claimant and Miss Shaw suggests something quite different.[114]Fourth, it is common ground that on the day of the index collision it was a dry, warm day, and that the roads were, on the Claimant’s own account to the police, “very quiet” due to an international football match that was on. Therefore, as Mr Crilley put it, the riding conditions were conducive to the Claimant proceeding quickly.[115]Fifth, while Miss Ashworth quite properly points out that PC Green agreed that the Claimant’s motorcycle gear could have been altered in the collision, and Mr Sorton also agreed that there was no evidence to gainsay that the Claimant was in 4th gear and on the antilock brake setting 3, on a balance of probabilities, I am satisfied that prior to the point of impact, the Claimant was riding his motorcycle in setting 1 and gear 6.[116]While in isolation such evidence could never be determinative one way or the other, taken with the all the other evidence noted above, it is again corroborative with the Claimant riding at an excessive speed and above the legal speed limit. As the Claimant admitted himself, if he was going to ride in the manner described by Miss Bedford, as I have found he did, he would “have put the brake setting at one or two”.[117]Sixth, as will be seen, in my judgement, the fact that Claimant was riding his motorcycle at an excessive speed and well above the speed limit of 60 mph before the collision occurred is supported by the expert evidence which I will consider now.[118]Based on the pre-impact skidding and post impact movement of the Claimant’s body, Mr Corrigan calculated the speed of the Claimant’s motorcycle at the commencement of skidding at a range of 56-69 mph.[119]Having found that the Claimant was travelling well above the speed limit of 60 mph, even if I were to accept Mr Corrigan’s range, I would place the Claimant’s speed toward the higher end of that bracket.[120]However, unlike Mr Sorton who having also considered the Claimant’s speed on the basis of pre-impact skidding and post impact movement of the Claimant’s body, Mr Corrigan did not consider brake lag or the issue of retardation of the Claimant’s body brought about by the impact until the point of the joint report. In that report, he accepted that his opinion underestimated the Claimant’s true speed due to the absence of these additional factors, though he formed the view that the further loss of speed would have been minimal.[121]In the joint report, Mr Corrigan was of the opinion that the papers of Muttart - “Driver’s responses in Emergency Situations” and the “Interactive Drivers Response Research” showed a brake latency of 0.25-0.3 of a second. Mr Corrigan was further of the opinion that the contact was a glancing blow, and that it was not possible to form any opinion as to the amount of reduction in speed for retardation.[122]Based on the work of Kasanicky et al, involving tests carried out on a number of motorcycles, Mr Sorton put the brake latency range at 0.5 to 1 second, and was of the opinion that the contact was more than a glancing blow, and while it was not possible to determine with accuracy the retardation of the Claimant’s body, given the very significant injury to his left leg as a consequence of the contact with the front of the Defendant’s vehicle, it must have been more than a few miles per hour.[123]Mr Sorton was of the opinion that taking all these factors into account, the speed of the Claimant’s motorcycle at the commencement of braking was well in excess of 60 mph, but less than 80 mph given the limitation on the field of view the Claimant could have achieved of the Defendant’s emerging vehicle, and opined a most probable speed of 75 mph.[124]As Mr Crilley pointed out, it is doubtful whether Mr Corrigan had been aware of the research concerning motorcycle brake lag presented by Kasanicky. Even if he was, when presented with Mr Sorton’s opinion which relied upon such research, he informed the Court that he hadn’t read the Kasanicky chapter in the book, but merely the abstract.[125]However, Mr Corrigan did agree that he did not have any basis for suggesting that the research in Kasanicky which attached a special device to motorcycles (Honda, Suzuki and Kawasaki) to measure the time differential between the application of brakes and maximum braking force being applied was unreliable.[126]In contrast, Mr Sorton took issue with the Muttart evidence relied upon by Mr Corrigan, as he asserted that it did not, in essence, distinguish motorcycles from other vehicles, and that the brake latency from Muttart of 0.25 to 0.3 of a second was exactly what Grieb and Hague and Lambourn estimated for motor cars. On the evidence, I am in no position to determine whether Mr Sorton is correct about the same.[127]However, Mr Corrigan failed to exhibit the relevant parts of the Muttart’s research upon which he relied to either his report or the joint report to allow Mr Sorton, the Parties’ lawyers or the Court, to make any relevant assessment. Therefore, as to this issue, I prefer the evidence of Mr Sorton to that of Mr Corrigan.[128]Miss Ashworth correctly submitted that there are no figures for brake latency of the Claimant’s Ducati, and the same was a state-of-the-art machine which would be expected to have a highly sophisticated braking system.[129]However, as Mr Sorton explained, every set of forks on any motorcycle would have to compress before full braking was achieved. Accordingly, in essence, the efficiency of the braking system even on the most advanced motorcycles like the Claimant’s Ducati is nothing to the point.[130]During cross-examination, Mr Corrigan also accepted that there is no precise correlation between how fast and powerful a motorcycle was and the amount of brake lag that would be applied (due to fork compression) before maximum brake efficiency is applied.[131]Taking Mr Sorton’s adjustment for brake latency but at the lower end of his range of 0.5 of a second, adds a loss of speed of 4.72mph. Therefore, rounding up, Mr Corrigan’s range of 56 to 69 mph increases to 61 to 74 mph before adjustment for retardation and a change in velocity of the Claimant at impact.[132]Though it could not be done with any real precision, Mr Sorton suggested that a few mph should be added for retardation. When it was suggested to him, Mr Corrigan didn’t truly agree or disagree with this stating that it might be as high as 5mph, but that it could be lower because he believed that the impact was a ‘glancing blow’.[133]Even though the Defendant accepted when put to him during cross-examination that the collision was a ‘glancing blow’, it is clear that extensive damage was suffered to the Defendant’s vehicle across its front, not merely at the nearside corner, including the front chassis member buckling and being pushed backward.[134]While PC Green found evidence of rubber transfer from the wheel on the Claimant’s motorcycle on the Defendant’s vehicle number plate, as Mr Crilley noted, neither expert contended that that damage to the Defendant’s vehicle was caused by contact between the Claimant’s motorcycle and the Defendant’s vehicle.[135]In fact, during cross-examination, Mr Corrigan stated the impact damage to the front wheel and front forks of the Claimant’s motorcycle was caused post impact and not with the Defendant’s vehicle.[136]I consider it clear taking into account the position and severity of damage to the Defendant’s vehicle that the impact was more than a glancing blow, and that all, or most of the damage was generated by the Claimant’s body consistent with PC Green’s finding of black material transfer on the bonnet of the Defendant’s vehicle from the Claimant’s clothing. Accordingly, I am satisfied that there had to be a material change in speed as a consequence of the impact and probably at least a few mph as suggested by Mr Sorton.[137]Therefore, to totally ignore the issue of retardation of the Claimant’s body brought about by the impact, would underestimate the true speed of the Claimant’s motorcycle, a position even Mr Corrigan accepted though he refused to make any adjustment to his range of speed.[138]Miss Ashworth criticised Mr Sorton for stating during cross-examination that he was sure that the loss of speed due to impact was substantially higher than the estimate he provided in his report. However, Mr Sorton explained, quite properly in my judgement, that the reason he provided a conservative figure of a few mph was because he could not quantify it above the same.[139]Miss Ashworth also submitted that it is not sensible on the evidence to say that the impact by the Claimant’s leg caused the damage nor is there any evidence that it slowed him down. However, Mr Corrigan accepted during cross-examination that an allowance for retardation of the Claimant’s body at impact should be added to his calculations of speed but “we don’t know what figure you want to put in”.[140]Taking the issue of retardation into account, in addition to brake latency, Mr Corrigan’s range shifts from 56 to 69 mph to 66 to 79 mph. Having regard to all the evidence, and having found that the Claimant was riding significantly above the speed limit, doing the best I can, I find that, on a balance of probabilities, the Claimant was travelling at a speed not less than 70 mph, but no more than 80mph, and most likely at around 75 mph before braking.[141]In making that determination, I have not lost sight of the fact that Miss Ashworth submitted, in essence, that there was a fundamental flaw in Mr Sorton’s analysis as it appears in his table at paragraph 365 (TB 269) of his report which I reproduce here: Speed PRT Think Dist Lag Dist Skid Dist Total Dist 85 1 38 36 23.87 97.87 85 1.5 56.99 36 23.87 116.86 75 1 33.53 24 23.87 81.4 75 1.5 50.29 24 23.87 98.16 65 1 29.06 14 23.87 66.93 65 1.5 43.58 14 23.87 81.45[142]Miss Ashworth submits that at 75 mph there would have to be a 1 second reaction time to put the Claimant within the sight distance. Given that Mr Sorton suggests a higher PRT of 1.25 seconds, the total distance would be a mid-point figure between 81.4m and 98.16m i.e., “over the 85-metre sight distance”. During cross-examination, Mr Sorton calculated it at 89.4m.[143]Therefore, Miss Ashworth submits that Mr Sorton’s figure does not, in essence, sit right as there would be no reason for the Claimant to react before he came to the bend. Therefore, it is argued that even on Mr Sorton’s own evidence, the speeds that he puts forward for the motorcycle do not fit in with the overall sight distance and the need to react.[144]Despite the skill with which this submission was developed, I am afraid it is not one that I can accept. In his report, at paragraph 360, Mr Sorton explained that because the Defendant was approximately 2 metres back from the front of his motor vehicle, the Claimant would have seen the Defendant’s vehicle “at a slightly earlier stage than Mr Bell could have seen the motorcycle. However, the difference is only a few metres”.[145]At paragraphs 366-7, Mr Sorton continued that at an approach speed of 75 mph was entirely consistent with the field of view, and “for example, Mr Moore would probably have been able to see the car emerging when the motorcycle was around 90 metres from the point of impact”.[146]At paragraph 2.2 of the joint report, Mr Corrigan and Mr Sorton stated:
“The experts agree that the field of view for the parties is 85m.”
On its face that makes little sense given what Mr Sorton said in his report in the said paragraphs, but both experts qualify that sentence on the following two paragraphs: 2.3 “Mr Corrigan will say, that the Claimant may been able to observe the front of the motor car marginally earlier than the Defendant would have been able to see the motorcycle. The layout at the end of the Tileshead (SIC) Farm Lane is such that the hedge is set back from the road. This allows an open view to the right for the Defendant before the front of the Vauxhall Vectra would reach the end of Tileshead (SIC) Farm Lane at Wheldrake Lane”. 2.4:
“In Mr Sorton’s opinion, it was inevitable that the Claimant would have been able to see the front of the motor car before the Defendant could have seen the approach of the motorcycle given that Mr Bell would have been seated approximately 2 metres back from the front of his vehicle.”
[147]While not quite agreed, the weight of the expert evidence would support a finding, and so I find, that the line of sight is not the same for the Claimant and the Defendant. Mr Sorton’s opinion is logical, and Mr Corrigan did not truly disagree with it. Therefore, the Claimant’s field of view was a little more than the 85 metres available to the Defendant, and on the evidence, closer to 90 metres.[148]Accordingly, the Claimant would have been able to see the front of the Defendant’s vehicle, before the Defendant could have seen the approach of the Claimant’s motorcycle. During cross-examination on this point, the following exchange took place between Miss Ashworth and Mr Sorton:
“Q: Let us just go back, because you have not answered the question, with respect. At 75 miles per hour, with a perception reaction time of 1.25, the figures in your document would come to nearly 90 metres for the total distance. Do we agree? A: Agreed. Q: And that is outside the field of view, is it not. A: Outside the field of view to a car stationary – Q: Yes. A: Sorry, stationary at the mouth of the track. Not outside the field of view on the basis ofthe claimant's evidence as when he said he saw the car.”
[149]Therefore, I do not read Mr Sorton’s evidence that at a speed of 75 mph, and PRT of 1.25s, the same would suggest that the Claimant would have to have reacted before he came to the bend. Accordingly, I do not accept that his evidence does not fit in with the overall sight distance and the need to react. At a PRT of 1 or 1.25s, Mr Sorton’s calculations remain consistent with an approach speed of 75 mph.[150]According to the Claimant’s witness statement, and his initial position, he was unaware of the concealed entrance, and stated that he could not stop in time because he had not envisaged a vehicle pulling out into his path, and therefore made no allowance for the possibility of a vehicle emerging. The Claimant also informed the police that he could not stop within his field of vision.[151]I agree with Mr Crilley, therefore, that riding at speed, unaware of the concealed entrance at the junction, and in such a manner that he could not stop within his field of vision is entirely compatible with the Claimant’s actual PRT not being at the lower end of the range.[152]However, I also take into account that the Claimant was a very experienced rider and the hazard in front of him was an obvious one, and accordingly, the Claimant’s actual PRT was unlikely to be at the upper end of the range, and median figure of 1.25s is most likely. Issue 2 Did the Defendant emerge out of the junction without stopping or making any observations?[153]I am satisfied and find that the Defendant stopped at the junction before emerging. During cross-examination, he was pressed, quite fairly by Miss Ashworth on a number of occasions as to the Claimant’s assertion that he did not stop. His reaction to this when first suggested was immediate and clear:
“Q. The claimant’s case is you pulled straight out –A. No. No way. Q. – into the road. A. No way.”
A. No way.”[154]Having used the junction for over 60 years, the Defendant knew better than most of the obvious dangers of emerging from the junction onto Wheldrake Lane without first stopping. He acknowledged that Wheldrake Lane was a popular road with motorcyclists, that there was a high possibility of oncoming vehicles, and that the main danger especially due to the hedge that was level with his head, came from his right due to the limited view. As he stated, that as a result of the hedge “you have a job seeing”. He also accepted that the exit from the junction was a concealed entrance.[155]When questioned during re-examination about how he generally navigated his way through the junction when driving different vehicles during his working life, he stated:
“Well, just normal. I mean you just stop and look both ways,” and that he “was in first gear, ready tosetoff.”
[156]Given the limited sightlines on approach, the obvious inherent dangers of the same, and obvious risk of vehicle approaching from the right, all of which the Defendant was aware of, I consider it near inconceivable that the Defendant with his over half a century of using the junction would simply emerge without having first stopped to check that it was clear to do so.[157]The only lay evidence to potentially contradict the Defendant’s assertion that he stopped at the junction is the evidence of the Claimant. I have already set out my caution in approach to his evidence, but in any event, in his most contemporaneous account to the police he informed them that he didn’t “…recall seeing him at all prior to him pulling out”.[158]In his witness statement, the Claimant did not assert that he saw the Defendant approach or move across the notional give way line at the junction. In cross-examination he affirmed this position. Therefore, as Mr Crilley submitted, the Claimant’s evidence does not assist with his primary case that the Claimant emerged from the junction without stopping. To the extent the Claimant did assert the same, for the reasons given, I reject that assertion.[159]I have not lost sight of the fact that Mr Corrigan was of the opinion that the lack of displacement of the gravel showed that the Defendant pulled straight out without stopping. However, Mr Crilley made four substantive criticisms of Mr Corrigan’s analysis that I consider are well made out.[160]First, Mr Corrigan has no real expertise in this area. He accepted that he has no engineering or material science background upon which to form an opinion as to the precise nature of displacement left by rolling car tyres in gravel surfaces. At best, he relied upon his experience as a retired police officer serving in the traffic division specialising in collision investigation. In my judgement, that is insufficient.[161]Moreover, and in any event, Mr Corrigan did not seem to consider the variability of gravel or establish the composition of the gravel on the access road other than to note that it was a loose gravel surface.[162]Second, having formed the opinion that the type of tyre marks which a stationary vehicle would leave or the type of marks which a vehicle then setting off at low speed would generate on a gravel surface such as at this junction, Mr Corrigan failed to test the veracity of this opinion against other objective evidence.[163]For example, as Mr Crilley pointed out, Mr Corrigan did not make any observations of what other vehicles utilising the access lane did or did not deposit, or by considering the tyre imprint that his own vehicle left despite visiting the locus twice. Therefore, there is no evidence of the difference made in tyre imprints as between vehicles that stopped and those that did not.[164]Third, Mr Crilley quite rightly questions the exact parameters of Mr Corrigan’s opinion in any event. Mr Corrigan used the word “may” in his report when forming his opinion that when a vehicle comes to a halt on a gravel surface it would leave a mark or skid.[165]Therefore, Mr Corrigan utilises the language of a possibility as opposed to a probability. During cross-examination, Mr Corrigan used the word “possibility” on more than one occasion.[166]As Mr Crilley submits, as an experienced expert, Mr Corrigan understands the difference. Therefore, at its highest, Mr Corrigan’s opinion is that he was asserting no more than a mere possibility that different marks would have been left if the vehicle had been brought to a halt.[167]Fourth, as Mr Crilley highlights, Mr Corrigan did not cross-reference the contention that the Defendant did not stop at the junction with the actual known facts concerning the Claimant’s reaction.[168]If, as Mr Corrigan contends, the Defendant’s vehicle travelled 4.5 metres and did so at a notional 5 mph, so travelling at 2.24 metres per second, it would have taken just over 2 seconds to reach the point of impact. At a travelled distance of 4 metres, it would take approximately 1.8 seconds, and if the distance was 3.5 metres (as Mr Sorton contends), it would have taken 1.6 seconds.[169]It is common ground that the Claimant skidded over a distance of 23.87 metres. It is also common ground between the experts that the Claimant had a PRT between 1 and 1.5 seconds. On the Claimant’s own account, he was travelling at 60mph (26.8 m/s).[170]In addition to Mr Sorton’s analysis of brake lag a further time of 0.5-1 second between application of brakes and commencement of braking sufficient to cause a skid, at any distance travelled from 3.5 to 4.5 metres there is insufficient time available for the Claimant to have perceived the Defendant’s vehicle as a hazard, react to it and then brake/skid a substantial distance with some brake lag interceding between the end of PRT and the commencement of the skid mark.[171]In short, therefore, it would take the Claimant in excess of 2 seconds to see the Defendant’s vehicle, react to the same, for brake lag to elapse and for the skid time to cease. Therefore, Mr Crilley is correct that the Claimant’s motorcycle would have taken considerably longer to reach the point of impact from point of first perception than the Defendant’s vehicle ever could have done moving out continuously into the carriageway whether the distance is 3.5, 4 or 4.5 metres.[172]Accordingly, I consider that Mr Corrigan’s evidence in no way undermines the Defendant’s account. Issue 3 Did the Defendant emerge when the Claimant was approaching and when it was unsafe todoso?[173]Having found that the Defendant stopped at the junction before emerging, I consider that the only logical reason for doing so was to enable him to gain a better view of the road to his right before emerging from the junction. Therefore, I am satisfied and find that the Defendant not only stopped at the junction but looked in both directions.[174]Miss Ashworth relies on the following exchange during cross-examination of the Defendant as undermining that position (Day 1 page 62-63 of the Transcript):
“Q. Because I suggest that you did not look properly to your right, and that explains why you did not see the motorbike, even though it was approaching and it has headlights on. A. I don’t know, I just pulled out and the motorbike was there, and that was it. I couldn’t avoid it. Q. So is that saying you don’t know if you looked or not, you just pulled out and the motorbike was there? A. Yes”
[175]It is not clear to me whether the Defendant fully understood the final question that was being put. I say so due to his clear replies in the three exchanges during cross-examination before this later exchange took place (Day 1 page 62-63 of the Transcript):
“Q. Nowhere in your account to the police, in the two accounts that we have been through, do you mention looking both ways. A. Well, I did do. Q. Well… A. Because that is what you do. Q. Yes, that is exactly the point, is it not. A. Yes. Q. What you are saying in January ’22 is what you assume that you do at a junction. A. Uh-huh. Q. Yes. So what you are saying there is what you believe you would have done, not necessarily what you remember. A. I did do. Q. There is no mention – you have two accounts to the police, and we have been through both of them. There is the pocketbook with the terrible writing, and the record of interview we have just looked at. In neither of those accounts do you say that you looked both ways, did you? A. I did look both ways.” … … “Q. So you do not say in that account that you have looked right, left, right again, do you? A. Well, I did do. Q. Forgive me, that’s not the question, forgive me. You didn’t say that at the time, did you? A. Well, I did. I did check. … Q. Right. Just, if you could just bear with me and I will ask the question again. A. Okay. Q. You did not tell the police at the time that you had looked both ways, did you? A. Well, I had [SIC] have done. Q. No. A. Which I did. I looked left and right.”
Q. Well… A. I did look both ways.” A. Which I did. I looked left and right.”

Q. Well…

[176]Therefore, on no less than seven occasions did the Defendant assert that he looked both ways. I accept this evidence.[177]As seen, Miss Ashworth highlighted the fact that the Defendant made no mention of making such observations to the police at the scene of the collision or when subsequently interviewed. However, the respective accounts given were short, and it is clear from the same that the Defendant’s main focus was highlighting to the police the speed that the Claimant’s motorcycle came around the bend and, in essence, the fact that there was little that he could do to avoid a collision.[178]I am also satisfied that the Defendant kept making appropriate observations as he emerged. Not only during re-examination did he maintain that he was looking to the right as he emerged, “Because obviously your traffic is coming from the right,” but it is common ground that he braked when the Claimant’s motorcycle appeared. The only logical reason for doing so was due to the fact he observed the Claimant’s motorcycle approaching.[179]Miss Ashworth also relies on the following exchange during cross-examination as evidence of the Defendant’s negligence:
“Q. You don’t. But you are saying it appeared from nowhere. You did not see it approaching. A. Yes. Q. That is what you are saying. A. Yes.”
[180]That exchange needs to be put into context by what followed:
“Q. Now, you see, what I suggest is that the reason you did not see it approaching, is because you were not looking, and that is why you did not see it. A. I saw it come around the bend. Q. You saw it too late. You saw it come from nowhere, because you were not observing to your right, and you did not see where, you did not see the motorbike approaching. A. Yes, I was, yes.”
[181]I am also satisfied that the Claimant had not yet rounded the bend and was not in the Defendant’s field of view when he made his last observation and committed to his manoeuvre to emerge from the junction.[182]First, having found that the Defendant stopped and made appropriate observations, I find it inherently unlikely that he would have emerged if the Claimant had rounded the bend and was on approach.[183]Second, during cross-examination, the Defendant also stated, and I accept, having emerged that he was still looking to his right when he saw the Claimant’s motorcycle, and that he saw “the thing come flying around the corner”. This was consistent with the first account he gave to the police.[184]Third, the Defendant’s response during cross-examination when questioned about not hearing the motorcycle approach is also corroborative of this finding: Q.“But instead, you only started to respond to the motorbike when you saw it coming out of nowhere. That was the time you responded, is that right? A. Well, exactly, yes. Q. Yes. A. Because he came into view.”[185]Miss Ashworth submitted that the Defendant had provided several different versions of events as to this issue. In his first account to the police, she highlights that the Defendant stated that he had “just started to pull out this bike came flying around the corner”. Miss Ashworth suggests that the only interpretation here is that the Defendant was just starting to pull out when he saw the motorcycle some 85 metres away.[186]However, in the second account that he gave to the police the Defendant stated that he was “pulling to the right…all of a sudden the motorbikecame out of nowhere”. Miss Ashworth suggests that the only possible interpretation of that account is that the Defendant did not see where the motorcycle came from, and had not seen the motorcycle on its approach from some 85m away.[187]For my part, I can see nothing inherently inconsistent between these two accounts. I consider that the first account lends weight to the fact that he had emerged to some degree before the Claimant’s motorcycle appeared, and the second account indicates nothing more than the Claimant’s motorcycle appeared suddenly and unexpectedly. It does not, in my judgement, equate to the Defendant stating that he did not see where the motorcycle came from.[188]At times, it did seem as if the expert evidence on this issue generated more heat than light. That is of little surprise given the number of variables and limited known values, and the inherent margin of error in the calculations both experts considered.[189]Mr Corrigan’s calculations are based on the premise that the Defendant’s vehicle did not stop and continued out of the junction at a constant speed, therefore suggesting that the time taken for the Defendant to reach the point of impact (other than the slowest speed and quickest reaction time), was shorter than the time which would have been required by the Claimant to react and stop suggesting that when the Defendant exited the junction, the Claimant must have been under the Defendant’s field of view of 85 metres.[190]However, Mr Corrigan’s calculations made no allowance for the Defendant’s vehicle having been brought to a complete stop before emerging out of the junction and being braked to a stop by the point of impact. Therefore, to that end his evidence really does not assist.[191]In cross-examination, Mr Sorton accepted that if the Court adopts Mr Corrigan’s range of 5669 mph (therefore ignoring brake lag and retardation), the Claimant’s motorcycle was within the Defendant’s field of view before he emerged from the junction (though an approach speed of 69 mph was on the cusp of the Defendant’s field of view). Adopting brake lag and going beyond 69 mph (but below 85mph and using the figures in the table in his report at para 364 on TB 259) then the Claimant’s motorcycle was outside the Defendant’s field of view when he emerged.[192]Therefore, at a speed of 75mph, Mr Sorton was of the opinion that the motorcycle was outside the field of view of the Defendant when he committed to his manoeuvre to emerge out of the junction. Mr Corrigan seemed to accept this evidence when cross-examined as to Mr Sorton’s figures in the said table:
“Q: But you would accept that if the court adopts Mr Sorton's analysis of speed at 75 miles an hour as the most likely assessment, then the bike was out of the field of view for Mr Bell when he made the observations and set off into the junction. A: On them figures in that table, yes.”
A: On them figures in that table, yes.”[193]Along with the evidence of the Defendant, which I accept, this corroborates the finding that the Claimant’s motorcycle was not within the Defendant’s field of view when he made his last observations. Therefore, I find that the Defendant did not emerge into the Claimant’s path as he approached. Issue 4 Did the Defendant react quick enough to the presence of Claimant’s motorcycle?[194]I am satisfied and find that the Defendant was stopped at the point of collision. Mr Corrigan accepted during cross-examination that the debris pattern and the position of the vehicles was, in essence, consistent with the Defendant’s assertion that he “slammed on” and was stationary when the collision occurred.[195]He also accepted later in cross-examination that the pool of fluid on the road had been deposited by the Defendant’s vehicle radiator, and that the same was another piece of evidence that the Defendant’s vehicle was more than likely stationary at the point of impact, though he then qualified that following a further question by stating:
“Could be, yes. Or moving very slowly, yes.”
[196]During cross-examination, the Defendant stated, and I accept, that he braked as soon as he saw the Claimant’s motorcycle. He also asserted that he “stopped straightaway”, and “stopped as soon as he put the brakes on”. When pressed as to the assertion that he did not stop but kept going forward to about 4.5 metres into the road, he replied: “No. I actually stopped”.[197]Of course, it would not, even at a very slow speed, have been possible for the Defendant to have stopped straight away, but it is clear that his perception was that having braked straightaway he stopped more or less instantaneously.[198]Due to the number of variables, the experts agreed that it was not possible to determine when the Defendant reacted, braked and stopped, and whether he reacted promptly or should have reacted sooner once he saw the Claimant’s motorcycle.[199]In my judgement, it is also not possible to determine what speed the Defendant reached, though he believed he reached approximately 5 mph, which from a standing start does not seem unrealistic.[200]I agree with Mr Crilley that Mr Corrigan’s diagram as to the position and orientation of the Claimant’s motorcycle and the Defendant’s vehicle at impact is clearly wrong as it ignores damage to the centre of the Defendant’s vehicle which included the deformation of the cross member, and rubber transfer onto the registration plate compatible with impact towards the centre. This has a bearing on Mr Corrigan’s opinion that the Defendant’s vehicle travelled 4.5 metres out of the junction to the point of collision.[201]However, I also agree with Miss Ashworth that the orientation of the Defendant’s vehicle by Mr Sorton does not look to be the natural curving position of a vehicle turning right out of the junction. This is consistent with the fact that the Defendant accepted that the path he took had more of an arc to it.[202]I consider that the likely path taken by the Defendant’s vehicle to the point of collision is likely to fall somewhere between Mr Corrigan’s suggestion of 4.5 metres and Mr Sorton’s 3.5 metres. Doing the best I can on the evidence, I find that the Defendant travelled a distance of 4 metres to the point of impact.[203]I have found that the Claimant was travelling at approximately 75mph on approach (or 33 metres per second) before he braked. It is common ground that the line of sight for the Defendant was 85 metres. Therefore, the Defendant having emerged when the Claimant was not within his field of view, he had very limited time to perceive the Claimant’s motorcycle, and react to the danger and stop.[204]Having found that the Defendant stopped within approximately 4 metres from his starting position, I consider that the Claimant has failed to establish that the Defendant did not react quickly enough and could and should have stopped sooner.[205]Miss Ashworth relied upon an exchange with the Defendant during cross-examination (at page 69 of the Transcript [Day 1]), as evidencing on the Defendant’s own account that he was negligent and could and should have stopped sooner:
“Q. Would you agree with me, that if you had been a little further back from the centre white line, then you (SIC) would have been able to go around it. A. Probably, yes. Q. If you had stopped a little further back, the collision would have been avoided, would you agree with that? A. I’m trying to think, because it’s a long while since… Q. I know, it is difficult to remember. A. I don’t think I could have avoided it. Q. Well, he could have gone past you, is what I am saying. If you had been, say, 50 centimetres further back, he would have gone around you, would he not? A. Probably, yes. Q. Yes. If you had braked a little earlier, you would have stopped sooner, would you not? A. I think it was difficult to stop. Q. That was not my question. A. Because the way of the speed he came around the corner. Q. If you had brought your vehicle to a halt a little earlier, he would have been able to go around. That must be right. A. Yes, all right, yes. Q. On that basis, if you had started braking sooner, you would have stopped earlier, would you not? A. Probably, yes. Q. So if you had reacted to the oncoming motor vehicle, the oncoming motorbike sooner, you would have stopped further back. A. Yes. Q. Yes. And he would have been able to go past you, wouldn’t he? A. Yes.”
A. I’m trying to think, because it’s a long while since…

Q. Yes. And he would have been able to go past you, wouldn’t he?

[206]In my judgement, all this exchange evidences is that if the Defendant braked sooner, he would have stopped sooner, and would have been further back from the collision point. If he was further back, the collision may well have been avoided. That stands to reason.[207]I do not consider, however, to the extent it is being suggested, that this was some kind of admission that the Defendant could and should have stopped sooner, or in short, that he had time to react quicker.[208]In fact, to the extent it is being implied by the line of questioning that the Defendant could and should have stopped sooner, and was negligent in not doing so, he resisted the same when he stated for example that “I don’t think I could have avoided it”.[209]Further, and in any event, even if there was such an admission, I am less than satisfied that, in isolation, the Defendant’s subjective view that he could and should have reacted sooner would suffice.[210]A party to a fatal collision may feel riddled with guilt to the extent they convince themselves that they could and should have done more, but the expert evidence may establish that it was scientifically impossible for them to do so.[211]There would need to be some clear evidential basis for finding that it was feasible for the Defendant to have reacted quicker and stopped sooner. However, there is no expert evidence to support any argument that the Defendant could and should have reacted sooner and to what degree.[212]Miss Ashworth highlights that Mr Sorton accepted that if the Defendant stopped only 20cm further back then the collision would have been avoided. This is not the same as evidence that the Defendant could and should have done so.[213]In any event, I am unclear on the evidence what difference it would have made if it was the case that the Defendant reacted too late. I accept Mr Crilley’s submission that even if the Defendant was a third of a second too late, there is no evidence as to what precise difference that would have made not only to the position of the Defendant’s vehicle, but to the extent to which the collision could have been avoided given that the ABS on the rear of the Claimant’s motorcycle was inoperative/had failed leaving the rear wheel locked up to produce a skid.[214]I have considered carefully the Defendant’s candid evidence that he did not hear the approach of the motorcycle. He stated to the police that he would have heard the motorcycle if it had approached at a “normal speed”.[215]However, whether the Defendant should have been able to hear the motorcycle on his approach seems to me to be an issue of expert evidence. The only expert evidence in relation to the same came from Mr Corrigan.[216]However, I found this part of Mr Corrigan’s evidence rather ill-conceived and unhelpful. First, Mr Corrigan accepted that he has no engineering or acoustic engineering background or qualifications and the figures in his report are not his own but from colleagues who work within his engineering firm.[217]Second, Mr Corrigan’s opinion that the approach of the Claimant’s motorcycle would have been audible to the Defendant was premised on the basis of decibel readings attributed to a Ducati motorcycle riding in 3rd gear, with 6,500 revs per minute equivalent to a little under 36.6 km/h (22.8 mph). However, the Claimant’s case, even if accepted, was that he was travelling at around 60 mph in 4th gear.[218]Third, post collision, the Claimant’s motorcycle was found to be in 6th gear, and Mr Corrigan accepted in the joint report that a motorcycle cruising in 6th gear would not be emitting noise levels approximating to those which he had cited within his report.[219]Therefore, there is no expert evidence that assists with the way in which the Claimant was riding and the noise his motorcycle would have emitted, whether cruising in 6th gear, travelling at 60mph in 4th gear, or significantly exceeding the speed limit.[220]Fourth, as Mr Crilley pointed out, Mr Corrigan failed to mention less still analyse any noise attenuation from the distance between the position of the Defendant, the adjacent hedgerows or the angle and curvature of the carriageway as he accepted he did not have the expertise to do so. Nor did he consider the potential separation of the three riders, appearing as Mr Crilley put it “to treat them grouped together”.[221]Therefore, given that I found that there is a time lag between the Claimant’s motorcycle and the other two motorcycles, there is no expert evidence as to what level of noise would be emitted by the three motorcycles in those circumstances. Accordingly, the fact that Mr Corrigan stated that the Claimant’s motorcycle can be “a loud machine” is unhelpful and does not assist.[222]There is no persuasive evidence that the Defendant should have been alerted to the approach of the Claimant’s motorcycle before he first saw it. The fact that the Defendant stated that he could always hear motorcycles that were coming does not assist due the number of such variables. Therefore, even if this was not a matter of expert evidence, there is no cogent evidence that the Defendant did not hear the Claimant’s motorcycle due to inattention.[223]I have also considered the fact that the Defendant did not see or did not remember seeing the motorcycle’s headlight as it approached. Mr Corrigan recorded in his report that although Ducati motorcycles are fitted with automatic headlights on function, the police did not establish on examination whether the motorcycle’s headlight was on or not, and the position of the light switch. However, as far as I understood, the Defendant did not challenge the assertion that the headlight on the motorcycle would have been automatically illuminated.[224]I have found that the Claimant was riding at an excessive speed, and the incident therefore took place over a number of seconds. After he emerged from the junction, the Defendant was faced with a motorcyclist travelling at speed causing him to take immediate avoiding action. He had little time to do so. I consider it hardly surprising therefore, that he cannot recall whether he saw the headlight or not. However, the same in no way undermines the findings I have made. Issue 5 Contributory Negligence[225]While it is not surprising that the Claimant did not see the concealed entrance sign (as the same was placed in a hedge and was not even discernible from the photographic evidence), the Claimant was a very experienced rider, was very familiar with the road, and according to his oral evidence, was aware of the concealed entrance.[226]That being so, and even if the Claimant wasn’t aware of the concealed entrance as asserted in his witness statement, given the obvious risk of concealed entrances on such roads, and given the lanes on approach to the junction are separated by a series of long white centre broken hazard warning lines indicating that a junction or other hazard may be present that is not immediately obvious, it is unfortunate that the Claimant paid little to no heed to the same or to Rule 154 of the Highway Code.[227]While speed of itself does not necessarily equate to negligence, it is obvious that the faster a vehicle travels, the less time it has to deal with an emergency. Therefore, in my judgement, even if a safe speed of 61 mph is adopted as preferred by Mr Corrigan, rather than the 50 mph as contended for by Mr Sorton, a finding of 75 mph is a substantial margin above both the legal and safe speed limit (25%), and which offered little opportunity of avoiding a collision once the Defendant’s vehicle appeared in his path.[228]Accordingly, had I found that the Defendant had been negligent in emerging from the junction when it was unsafe to do so, I would have found that the Claimant had equally contributed to the cause of the same. Conclusion[229]It is impossible to have anything but sympathy for the Claimant who suffered severe life changing injuries as a result of the index collision. However, I am satisfied that the same did not arise as a result of the Defendant’s negligence.[230]Accordingly, for the reasons given, the Claim is dismissed.