Liam Swan v The Estate of Drew Docherty (Deceased) & Anor [2025] EWHC 2577 (KB)

[2025] EWHC 2577 (KB)Case No KB-2023-000198
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/10/2025
Before
KAREN RIDGE SITTING AS A DEPUTY HIGH COURT JUDGE
Between
MR LIAM SWANClaimant
Mr Tim Horlock KC for Second DefendantMr Winston Hunter KC for Fourth PartyHearing Hearing dates: 9, 10 and 11 June 2025
APPROVED JUDGMENT

Deputy High Court Judge Karen Ridge:

[1]This claim arises out of a road traffic accident which occurred on 2 February 2022 during which the Claimant was catastrophically injured in a road traffic accident in Northumberland. The Claimant was a passenger in a car driven by Drew Docherty who, very sadly, was fatally injured. The estate of Drew Docherty is the First Defendant in this case. The Second Defendants (D2) are the insurers of Mr Docherty. The car driven by Mr Docherty was in collision with a recovery vehicle driven by Craig Heal during the course of his employment with Glendinning Brothers, a recovery firm and the Fourth Party (4P).[2]The Claimant commenced proceedings against the First Defendant and, after liability was admitted, judgment was entered on his behalf with damages to be assessed. The quantum of damages within those proceedings has not been settled and approved but it is anticipated that the damages will be substantial. Other claims for personal injuries arising out of the accident will be made against the First and Second Defendants.[3]This action is a claim on behalf of D2 for a contribution from the 4P. It is made on the basis that, whilst it is acknowledged that the Claimant’s driving was negligent and that he bears a greater burden of responsibility for the accident, nonetheless D2 contends that Mr Heal was negligent during the course of his employment. This is my judgment in relation to the issue of the 4Ps’ liability to contribute towards the D2s’ liability to the Claimant.

Factual Background

[4]The accident occurred at approximately 21.24 on 2 February 2022 at a crossroads junction between the main B6309 road and Lead Road at Stocksfield in Northumberland. Lead Road, as the minor road, has obligatory ‘Give Way’ markings and warning signs on the approach to the B6309.[5]Drew Docherty was driving a Mazda motor vehicle west along Lead Road with two occupants. In the front passenger seat was Dylan Murray and in the rear nearside seat was Liam Swan. Craig Heal was driving a Renault recovery lorry along the main road in a south-easterly direction. The Mazda was therefore approaching the crossroads junction from the nearside of Craig Heal’s recovery vehicle. It is not in dispute that Drew Docherty drove into the crossroads junction without stopping, and into the path of the recovery vehicle resulting in a severe impact.[6]Lead Road and the B6309 are both subject to the national speed limit of 60 mph. The speed limit was a lower speed limit of 50 mph for the Renault lorry that Craig Heal was driving. The accident occurred during the hours of darkness and there were no streetlights on either road. Both vehicles were displaying dipped headlights. James Robinson (the Fifth Party) was driving a Ford Fiesta on Lead Road in the same direction as Drew Docherty. Drew Docherty’s sister was a passenger in his car and they arrived at the accident scene shortly after the collision.[7]On the night in question Mr Docherty had picked up his passengers after a football training session at the local school and the apparent plan was to visit a local reservoir popular with teenagers. He was the leading the way and Mr Robinson was following in his Fiesta. Mr Heal had been using this route for some three months and was familiar with the junction.[8]It is common ground that Mr Docherty drove across the junction rather than giving way as he was required to do. It is not known why he drove in that manner. The speed at which he approached the junction and then attempted to drive across the junction is also unknown. An investigation into the collision was conducted by PC Hall and a report prepared by him. A coroner’s inquest reached a finding that the cause of Mr Docherty’s death was due to the manner of his driving.[9]The D2 case for a contribution is put on the basis that, at a point approximately 150 metres and 7 seconds before reaching the junction, and as he was passing a sign warning of the upcoming junction, Craig Heal accelerated to an excessive speed of 53 mph. D2 alleges that, rather than slowing, Mr Heal maintained that speed until, approximately 20 metres from impact when he reduced his speed by braking. Thus D2 alleges that, but for his excessive speed on approach and/or at the start of his reaction to the Mazda, the Mazda would have cleared his path and the accident would have been avoided. D2, as the insurers of Mr Docherty, accept that they bear the greater responsibility but submit that the 4P should be liable for a proportion of up to 40%.[10]Subsequent to the accident, Craig Heal was convicted of two offences at Newcastle Magistrates Court in connection with his driving on 2 February 2022. He was convicted of driving with a proportion of a specified controlled drug, being cocaine, above the specified limit; and of driving at Gretna Green using a hand-held mobile phone.[11]On a post impact examination of the Renault lorry, its anti-lock braking system was found to have a fault which caused the vehicle tyres to lock upon Mr Heal applying his brakes in an emergency manner. The Proceedings[12]The claim for a contribution was rejected by both the Fourth and Fifth Parties and the present proceedings were commenced, pleading that Mr Docherty and Mr Robinson had been engaged in a common purpose to drive in a reckless and dangerous fashion. The claim by D2 against Mr Robinson, the Fifth Party, has previously been dismissed following an application for summary judgment.[13]The particulars of negligence pleaded in the contribution proceedings against the 4P were in the following terms:
“ 5. The fourth party’s servant or agent, Mr Heal, for whose actions the fourth party is vicariously liable, was negligent in that he: (a) drove too fast in the circumstances; (b) failed to brake, swerve or take any evasive action; (c) failed to appreciate that Mr Docherty’s vehicle was not slowing down or going to stop; (d) failed to control his vehicle; (e) failed to drive according to the road conditions; (f) failed to take reasonable care for other road users; (g) drove under the influence of drugs, which contributed to (a) to (f) above. (h) Failed to take steps to draw to the attention of the fourth party that the ABS fault light was showing in the vehicle 6. Further or in the alternative, the fourth party was negligent in that it: (a) Failed to maintain its vehicle, specifically in relation to a fault showing with the ABS system.”
[14]In the light of the drug conviction of Craig Heal, the parties were each granted permission to obtain toxicology reports. The Joint Statement of the toxicology experts records no points of disagreement. In particular, they agree that the blood sample taken from Craig Heal some 2 ½ to 3 hours after the accident confirmed that he had previously used some form of cocaine but that there was nothing to suggest that he exhibited signs of intoxication or impaired driving ability on 2 February 2022.[15]Given the toxicology results D2 confirmed that it did not wish to pursue the claim under paragraph 5(g). The claim under 5(h) and 6(a) in relation to the ABS warning system was abandoned at trial. However, D2 maintained that the use of drugs by Craig Heal and his failure to note the warning light on the ABS system are indicative of his general attitude to road safety. During the trial Mr Horlock, on behalf of D2, confirmed that the allegation in 5(b) was not being pursued. That allegation was that Craig Heal failed to brake, swerve or take any evasive action.[16]During submissions, and in response to a submission by Mr Hunter that D2s evidence did not match its pleaded case, to the extent that the Court deemed it necessary, Mr Horlock made an application to amend particulars of claim in relation to 5(a) of the Particulars so that 5(a) alleges that Mr Heal “drove too fast including Craig Heal having seen the lights of the vehicle across the valley before he reached the junction”. I shall deal with this application later in my judgment.[17]D2 relies upon the expert evidence of their reconstruction expert, Mr James Manning who provided a written report and attended to give oral evidence. The 4P has served a witness statement from Craig Heal which exhibits to it statements from PC Hall, James Robinson and PC Lant. In addition, the 4P also relies on the expert evidence of the reconstruction expert, Mr Peter Davey. At the trial the Court heard oral evidence from Mr James Manning, Mr Peter Davey, Mr Craig Heal and PC Hall.[18]On the 9 May 2025 the 4P made an application to rely upon a further statement from Craig Heal and a further statement from PC Hall. In response to those statements D2 provided a supplementary letter from Mr Manning. There were no objections to the introduction of the new evidence. The evidence is helpful in resolving key issues in the trial and I granted permission for it to be relied upon. Agreed Expert Evidence[19]The two reconstruction experts each attended the scene of the accident and undertook a series of laser scans from which they prepared separate 3D models. They have provided a joint statement which sets out matters upon which there is agreement.[20]A number of matters are agreed about the context in which Craig Heal was driving along the main road. The B6309 ascends a gradient until approximately 180 - 200 metres from the junction, where it levels and Lead Road comes into view. A warning sign, warning of a crossroad junction with the words “Reduce Speed Now” is positioned on the offside verge, 140 metres from the junction. Although the warning sign was present at the time of the collision, the sign has been replaced and wording has been added post-collision. Approaching the junction, the view of Lead Road to the left, is restricted by the mature hedgerow on the nearside which ends around 60 metres north of the incident locus and tapers away from the carriageway. The view into Lead Road after the end of the hedge the view widens over the grassy verge area.[21]Driving along Lead Road from the perspective of Mr Docherty, it is agreed that Lead Road descends from the village of New Ridley until it crosses a stream known as, ‘Lynn Burn’. The bridge over the stream is approximately 190 metres from the junction with the B6309. After the bridge, Lead Road ascends steeply towards the junction with the B6309. The junction is marked by a give way sign and painted give way markings on the road surface. It is understood that the Council repainted the road markings at the junction within 24 to 48 hours after this incident occurred and the markings were replaced prior to the experts conducting their site inspections.[22]It is further agreed that travelling along Lead Road, during the hours of daylight, the junction and road surface of the B6309 first comes into view around 140 - 150 metres prior to the give way line. On the nearside verge there is an advance warning sign of the give way 100 yards ahead. The view of the B6309 does not open out fully (i.e. to be able to see the full length along the B6309) until 2 metres from the give way line, i.e., the approximate position of a car driver when the front of the car would have been at the give way line.[23]There was also agreement about the tachograph data obtained from the recovery vehicle of Craig Heal. The experts were agreed that with a digital tachograph, speed data is also recorded. The speed is calibrated to be within a range of ± 6 km/h (3.7 mph). An analysis of the recovery truck tachograph data confirmed that the lorry had been accelerated, momentarily, up to a recorded speed of 53 mph after accelerating over a distance of about 158 metres from a speed of 48 mph. Applying the range for the tachograph recorded speed, the lorry would have attained a speed of between 49 and 57 mph (when the tachograph recorded a speed of 53 mph). There was no information disclosed by the Fourth Party regarding the calibration records of the tachograph. I am therefore satisfied, on a balance of probabilities that the data can be relied upon in terms of calibration ranges.[24]The Mazda Agreed Evidence: In terms of Drew Docherty’s Mazda vehicle, the speedometer was recovered and it had frozen showing a speed of approximately 37 to 38mph. Both experts agreed that that may or may not be an accurate indication of the vehicle’s speed at the time of impact for reasons detailed in their respective reports. The Mazda had travelled about 5.4 metres (± 0.3 metres) beyond the Lead Road give way line and was fully across the width of the B6309 at the point of impact.[25]The speed of the Mazda at impact was calculated by Mr Manning using a momentum analysis in which he considered different post impact rates of deceleration (0.5g and 0.67g) to extrapolate the likely ranges of the speeds of both vehicles at the point of impact. He calculates that the Mazda was likely to be within 46 to 54mph and the speed of the lorry at the point of impact was likely to be within 38 to 45mph, with the lorry having been travelling at approximately 50 to 56mph at the point when Craig Heal started to brake.[26]Mr Davey has urged caution about whether the momentum exchange calculations can be relied upon given that one of the fundamental principles of applying the methodology is that the masses of the vehicles are broadly similar. In this case Mr Davey points out that calculation conducted by Mr Manning uses a vehicle mass ratio of more than 1:5 which renders the calculations more unreliable when trying to calculate the initial velocity of the smaller vehicle AiTS training manual for the University Certificate in Forensic Science. .[27]Mr Davey has assumed an approach speed of 40mph for the Mazda when approaching the junction. That is based on the witness evidence of Mr Robinson who was driving the Fiesta which was travelling behind the Mazda. Both experts agree that the Mazda continued across the junction without stopping at the give way lines.[28]The Renault Lorry Agreed Evidence: the lorry’s tachograph recorded it accelerating from 48mph, momentarily reaching a speed of 53mph over a distance of around 158 metres. The lorry’s speed was therefore between 49mph and 57mph as it approached the junction, but before braking was applied. The tachograph speeds recorded show the lorry travelling above 50mph for about 4 seconds before it started to slow down. In those 4 seconds the lorry would have travelled about 2.7 metres further along the road, than if it had maintained a constant speed of 50mph. If its speed had remained at a constant 50mph, the lorry would have arrived at the braking location about 0.1 seconds earlier.[29]The issue of whether it was reasonable or negligent of Craig Heal to have accelerated above 48mph is central to D2s case. In undertaking their respective reconstructions, the experts used different methods to assess the speed of the lorry. Mr Davey relied on the tachograph reported speed whereas Mr Manning relied upon his range of speeds calculated within his momentum analysis.[30]The Tachograph Agreed Evidence: the tachograph data was provided to both experts following the submission of their reports. On reviewing the data Mr Manning was of the opinion that at the point of collision Between 21:24:13.25 and 21:24:13.75. the lorry was travelling at 39 to 48mph and had decelerated at a rate of 0.8g which is a higher rate generated through the normal braking of a lorry. After this point the rate of deceleration increases to 1.01g which is not possible by braking alone and therefore points to the collision having occurred.[31]Mr Davey believes that the collision occurred at the end of the likely 0.5 second range during which the collision is identified by Mr Manning in the tachograph data. At that point Mr Davey believes the lorry was travelling at 39mph. Because Mr Manning believes it is not possible to be more precise than specifying the 0.5second range during which the collision occurred, he has calculated the lorry speed within the 39 to 48mph range. He points to this being similar to his calculations using momentum analysis where he calculated the speed of the lorry to be between 38 to 45mph.[32]Mr Davey agrees that the lorry slowed from 48mph to 39mph as depicted in Mr Manning’s momentum calculations and he says this equated to a deceleration rate of about 0.8g which suggested that the impact occurred during this identified 0.5 second period. Mr Davey opined that the tachograph data suggests that the impact occurred towards the end of the 0.5 second period (at 21:24:13.75) when the lorry was travelling at 39mph which was consistent with his analysis of the lorry’s speed at impact.[33]On the approach to the point of impact there is a locked tyre mark from the lorry. There was a difference between the experts as to the actual tyre which caused that mark. Mr Davey believes it is from the front nearside tyre of the lorry whilst Mr Manning believed that it was the rear nearside tyre. Both experts produced their reports based on their respective assumptions.[34]Based on his deductions Mr Davey was of the opinion that the front nearside tyre had been locked for a distance of 24 metres at the point of impact. Mr Manning believed that the rear nearside tyre caused the locked tyre mark prior to collision and as a result, he concluded that the rear tyre had been locked for a distance of around 16 metres at the point of impact. The Evidence Mr Craig Heal[35]Mr Heal has provided two witness statements to the Court and he gave oral evidence. In addition, there is a record of his interviews with the police and a transcript of the evidence he gave to the Coroner’s Court. In his oral evidence to this Court, Mr Heal confirmed that he was familiar with the road and he travelled it on a daily basis driving the same recovery vehicle. On the day of the accident he had completed a number of jobs before he took a vehicle up to Gretna Services before setting off on his journey home which he estimated would take some 90 minutes. When the accident occurred he was some 15 minutes away from home.[36]Mr Heal said that generally he would not slow down when on a main road approaching a crossroads junction but that he would be cautious. He said that when he approached the junction he was below the speed limit, just before the accident he said he “came around two bends at 43mph and accelerated up the bank”, he said he was doing about 48mph as he was going up the bank and he saw that on the speedometer. In response to questions Craig Heal said that he was travelling at 42mph around the bends in the valley and at 48mph going up the bank and he saw those two speeds on the speedometer.[37]In his first witness statement Mr Heal said that when he was driving on the A68 he could see:
“the headlights of two vehicles off in the distance on the Lead road which is a minor road that eventually joins the B6309. I would say that these vehicles were a mile or two in the distance as the crow flies and although I have previously stated that I thought they were travelling at high speed very close to each other, it is clear from the evidence that was given at the inquest, that I could only have seen them very fleetingly and I now accept therefore that I could not have seen them for long enough to judge their speed nor how close they were to each other but I do recall seeing the headlights of two vehicles on that road.”
[38]In his police interview the day after the accident, Mr Heal told the police that he pulled over on the B6309, did something on his phone and then he pulled away and he can remember seeing two sets of car lights coming across the top road and he remembered thinking ‘that’s the road from Stockfield’ and that:
“I come down, come round through the bends and what have you and I was just driving, just well just I was, just driving away, and then all of a sudden I just seen headlights to the left of coming of like Stocksfield where the crossroads is and then I thought these are not stopping then the next, I can remember seeing two sets of headlights and I just went ‘shit’ and the next thing is was just bang”
[39]During that police interview he went on to say that the two cars were racing and “the way they came round it looked like they were going straight over the crossroads”.[40]Mr Heal also gave evidence to the Coroner’s Inquest. When questioned, he gave the following account: “THE CORONER: So when you have seen two sets of headlights. Can you recall what sort of distance and what location they were from you? MR HEAL: I, I -- if you are looking at the clock, they were like 11 o'clock from my direction coming across the valley towards the crossroads. Which I will be approaching. Which I was on the through road. And I set off and just the speed of the cars coming across the valley, I knew they were sort of racing in my own head. Obviously, I deal with that sort of like recovering them and stuff. And I just had a feeling they weren't going to stop. So I held back, and I was only down for approximately 29 mile an hour. Then the next thing I just seen lights and it was a bang”.[41]During the course of giving evidence to the Coroner about events following the accident, Craig Heal told the Coroner that:
“THE CORONER: So, would you accept it is possible or likely that the two cars weren't there at the same time? MR HEAL: Well, when it all come to rest and everything like stopped, there was a girl screaming. I could hear a girl screaming. And within seconds my door opened. Well, I pushed the door open and the driver of the second vehicle appeared at the door, apologising. THE CORONER: Apologising? MR HEAL: Yeah. Like saying, shit I am sorry, I am sorry. I am sorry. I says, "What was yous doing?" I said, "You was racing." and he admitted to me he was, he says, "Yeah, we were, sorry. I am sorry."”

THE CORONER: Apologising?

[42]Following a break in the evidence the Coroner asked Mr Heal to repeat the events after the accident and he repeated his evidence:
“THE CORONER: Okay. Take a seat. Are you okay to continue? Mr Heal, just continuing your evidence, you continue to be under oath. Dealing with the events of shortly after the collision. You were telling me in evidence today that the driver of a vehicle came up to you and said, just repeat in your own words what your recollection is. MR HEAL: Come over saying, "I am sorry. I am sorry." I repeat -- like I said to him, "What are yous doing? You were racing or something?" Later on, he did admit they were racing. But he had held back because the similar kind of thing happened the night before on the crossroads further up with the van”
[43]In his oral evidence to this Court, Mr Heal said that he had told the police what had been said to him by Mr Robinson. It was pointed out that there was no record of him making such a statement in either of his police interviews, he said he could not remember whether he told the police. He then went on to say that he accepted that the two cars were not racing.[44]Craig Heal was then asked why, in the immediate aftermath of what was a very serious accident, he did not call the emergency services but chose instead to call his boss. His reply was notable in terms of Mr Heal’s lack of insight and empathy, he said nobody came to help him, he panicked and telephoned his boss. His boss arrived at the scene before the emergency services[45]Craig Heal was also asked about what he had told police about the ABS warning light on the dashboard. He maintained that he was not aware of any warning light on at the time of the accident. He was taken to the evidence he had given to the Coroner’s Court to the effect that the warning light came on on his way to Gretna and that the light had come on previously and been taken to the workshop. Mr Heal told the Court that he could not remember if the ABS warning light had been on prior to the accident. Two or three questions later, he then said that there was a light which came on and he could not remember what it was for, then he said he knew the ABS light had come on, he had telephoned his boss who has said just get back from Gretna and bring the lorry into the workshop the next day.[46]In his oral evidence Craig Heal accepted that he made a lengthy call to Chloe for about an hour during the drive home from Gretna. He said he did that on a blue tooth headphone set with his mobile phone on the passenger seat. When asked about sending messages he said that he stopped in a junction on the top road, sent the message and then pulled out. It was put to him that the tachograph did not show his vehicle stopping at that point about a mile before the accident. He maintained that he did stop to send the message. Given that the tachograph does not record him stopping at this point and I have found Mr Heal to be an unreliable witness, I prefer the evidence of the tachograph and I am satisfied that that he did not stop to send that message. Whilst this finding is indicative of Mr Heal’s attitude towards using his phone and sending messages when driving, it is material to note that there are no records of messages being read or sent in the 10 minutes prior to the accident. Therefore these matters have no direct bearing on causation.[47]The evidence which Mr Heal gave about the speed of his vehicle at various points was inconsistent and contradictory to other evidence he had previously given elsewhere. In his oral evidence he said he travelled at 42mph and 48 mph, saying that he noted those speeds after looking at the speedometer. However, during his police interview he said he was travelling at between 45 to 50mph before the accident because it was uphill. At the inquest he gave evidence that at the time of the collision he was travelling at the following speeds:
“MR HEAL: I thought it was 40 to 45 to 50. But later on it was about 29 mile an hour. Once they'd done all the Tacho and everything on the wagon”
[48]Mr Heal told the Court that his boss’s wife told him his speed was 29mph from the tracker data.[49]In his latest witness statement Mr Heal notes that the tachograph recorded his speed on the approach to the accident as between 48 and 52mph and that in his initial statement he has said that he was driving at 50mph and that if he exceeded this speed it was only momentarily. He said that the vehicle was fitted with a speed limiter at 56mph and the maximum that it could reach would be 55mph. He believes that where the tachograph data showed 52mph it was been on a downhill gradient before the vehicle approached the bank which is a climb up hill. He goes on to say that it was necessary to change down a gear and to press harder on the accelerator to climb the hill. As he got to the top of the hill and started to descend he did not believe that his speed would have increased more than about 1 or 2mph.[50]Finally, Craig Heal was asked about his use of cocaine, which again he has provided inconsistent accounts of. Initially he told the police that he had only taken cocaine some weeks prior to the accident; then he had accepted that he had taken it the night before and in his oral evidence to the Court he accepted that he was a regular user of cocaine but he was not proud of it. In his oral evidence he accepted that if he started work at 10am the following morning, that would not prevent him using cocaine the night before working.[51]Mr Craig Heal was a singularly unimpressive witness. Mr Horlock rightly conceded that the overall impression of him was that he was defensive, utterly unsympathetic about what had happened and that a feature of his evidence has been his desire to exonerate himself. I find that he was generally unreliable and he has been dishonest about certain matters. I am going to treat his evidence with a degree of caution where it is not directly corroborated. PC Hall[52]PC Hall is a police collision investigator who prepared the Forensic Collision Investigation Reconstruction Report and gave evidence at the Inquest before the Coroner. He has provided two witness statements in these proceedings and he attended to give oral evidence to the Court.[53]PC Hall had taken photographs of the scene and produced a plan depicting the tyre marks as part of his investigation report. The tyre marks would have occurred at the point at which maximum braking occurred and the wheels became locked due to the ABS fault. There was a difference between the parties in interpreting the tyre marks on that plan. Those different interpretations were put to PC Hall who was asked to review his scale plan and confirm the tyre markings. His witness statement of 6 May 2025 sets out his opinion in relation to the scale plan drawing. On reviewing that drawing and the collision scene photographs, PC Hall acknowledges that the plan drawing incorrectly records the start and finish point of tyre mark 1.[54]The clarification to PC Hall’s evidence was that the continuous single tyre mark, marked tyre mark 1 on the plan, was in fact two separate markings. The start point of tyre mark 1 related to a mark from a single tyre which stopped a few metres short of the point depicted by marker 3. There is then a twin tyre mark (which forms the remainder of tyre mark 1) which begins in the vicinity of marker 3 and continues to the point marked ‘the finish of tyre mark 1. The recovery vehicle front axle was a single wheel with the rear axle being a twin tyred axle. Identification of the tyre making the marks is important in making deductions the point at which tyre lock-up occurred and the subsequent point of impact.[55]PC Hall was the Officer who attended the collision scene and prepared the plan depicting the markings based on the scene and photographs. His clarification of the tyre marks was fully explained. I am of the view that his opinion that the tyre mark was generated by the front nearside tyre is most likely to be an accurate account of the markings on the ground and I shall proceed on this basis.[56]PC Hall explains the view which Mr Heal might have had of the Mazda on Lead Road as it travelled towards the junction. He said that because of the vegetation and topography the cross views available to Mr Heal of vehicles on Lead Road were obstructed until approximately 35 metres before the junction Lead Road when the view toward the nearside and into Lead Road begins to open. At a speed of 53mph PC Hall estimates that that would afford Mr Heal approximately 1.5 seconds to identify a hazard, begin to react by braking in order to try to avoid a collision.[57]Within PC Hall’s second witness statement he explains the steps he took to investigate Craig Heal’s allegation that he had seen two cars racing across the top road when he was travelling on the B6309. He exhibits to that statement a plan of the cross view looking east from the B6309 towards Lead Road which is where Mr Heal allegedly saw the vehicle headlights. PC Hall’s evidence is that the two saloon cars were a significant distance away from where Craig Heal allegedly saw the vehicles on Lead Road when he was on the B6309. PC Hall’s opinion is that Mr Heal would have “been afforded a temporary view towards his nearside (left) due to the spaces in between the trees/hedgerows and the rural location. I would estimate this to be a split second view due to the topography of the B6309, the bends and the rural location and a driver looking towards the front in the direction of travel of the vehicle rather than looking towards the nearside for any length of time.”[58]PC Hall’s evidence is independent evidence from an experienced road traffic officer who travelled around the surrounding area when the allegations were made and was familiar with the collision details. Whilst it is not expert evidence, I place significant weight upon it in that it provides valuable information as to the views across the valley.[59]In his oral evidence he confirmed that, as part of the investigation process, deceleration tests had been conducted by PC Phelan using a device known as a ScenePro which is GPS connected and has two magnets which sit on top of the test vehicle. That vehicle is then driven at a speed of 30mph in direction of one of the vehicles involved in the collision and the brake pedals are applied to lock up the tyres and the ABS enabled vehicles and speedometer will print out the recorded results.[60]The tests were carried out using an offroad Toyota Hilux SUV. Three separate tests are done and the mean deceleration rate was calculated to be 0.666g. That result was within 7% which is within the reliable range. I am further satisfied, having regard to the photographs of the accident scene and the evidence of PC Phelan and PC Hall that the road test was conducted in the similar conditions to those existing at the time of the accident. The written evidence of James Robinson[61]Mr Robinson was driving the car behind Drew Docherty. He informed the police that he was 100 to 200 yards behind Mr Docherty’s care and his speed was 40mph or 45mph. At a traffic control measure on New Ridley Road both cars slowed down to negotiate the traffic control and Mr Docherty pulled ahead such that his car was about 200 to 300 yards ahead. He did not see the collision but arrived on the scene after the collision had occurred.[62]In his written statement Mr Robinson explained that he had passed his driving test one week prior to the accident and he was fairly cautious. He describes driving along Lead Road following Mr Docherty as they travelled to an agreed meeting point. He could see Mr Docherty’s tail lights in the distance along Lead Road and he estimates that he was some 200 metres behind him on the approach to the right hand bend. Mr Robinson describes slowing his vehicle again to allow a large white parcel sprinter van to pass. At this point he could no longer see Mr Docherty’s tail lights on the approach to the junction. He describes approaching the junction and realising that something was wrong, then coming across the collision. The Expert Evidence of Mr James Manning[63]Mr Manning was the expert witness instructed on behalf of D2. His report was produced prior to the receipt of the tachograph data. In preparing his report he had a series of documents including the Collision Report of PC Hall. Mr Manning laser scanned the area to produce a three dimensional view of the scene. He begins his written analysis with consideration of the point of impact which is deduced from the physical evidence recorded in the photographs and scene plan made by PC Hall, as well as the damage to the vehicles involved.[64]After identifying the point of impact Mr Manning then considers the likely speed of the vehicles involved. He does this by reference to all of the available evidence. He provides detailed reasons for his conclusion that the frozen needle position on the speedometer of the Mazda may show the correct speed at the point of impact but they could not be relied upon and he did not rely upon this data in his analysis.[65]Because Mr Manning did not have the tachograph data he used momentum principles to calculate the likely vehicle speeds. The principle is that the momentum before the collision must equal that after the collision provided there are no external forces involved. The data to be input into his calculation included the point of impact, the final location of the vehicles involved and the paths which they travelled before coming to a stop.[66]The rate of deceleration of each vehicles was unknown. The recovery truck rotated on the road surface before coming to rest on the highway verge causing a large furrow in the ground. Similarly, after impact the Mazda was considered to have slid sideways after impact before striking the kerb which caused furrows in the ground. Mr Manning opines that the Mazda either became airborne and landed where it came to rest or it slid across the grass surface without causing further furrowing.[67]Given that he did not know the rate of deceleration of each vehicle he applied two possible post impact deceleration rates of 0.5g (scenario 1) and 0.67g (scenario 2) for the vehicles, applying the same rate to each vehicle. The calculations rely on inputs in relation to the distance travelled post impact; and the respective weights of each vehicle to calculate post impact momentum.[68]Mr Manning then calculates post impact momentum vectors by considering the angle at which the Mazda travelled away from the point of impact. Using these deductions he then calculated the speed of the Mazda at the point of impact and then the north/south component of its pre-impact momentum. Using the momentum exchange principle he then calculates the speed of the Renault at the point of impact.[69]Scenario 1: Post-impact deceleration rate of 0.5g : in this scenario Mr Manning calculates the Renault to have been travelling at approximately 38 mph and the Mazda at approximately 46mph at the point of impact.[70]Scenario 2: Post-impact deceleration rate of 0.67g: in this scenario Mr Manning has calculated that the speed of the Renault at the point of impact was around 45mph and the Mazda was around 54mph.[71]PC Hall did not identify locked tyre marks for the Mazda and the experts agree that there is nothing to indicate that the Mazda was braking prior to collision. The assumption is that it was travelling at a constant speed to the point of impact. By contrast, the Renault lorry was found to have braked on approach to the point of impact. Mr Manning considers that the tyre marks reveal that the rear nearside tyre of the lorry locked for a distance of 16 metres prior to the point of impact. Braking would have caused deceleration at the rate of 0.67g over the 16 metre distance.[72]In scenario 1 the speed of the Renault lorry at the point of impact was 38mph, extrapolating backwards in time, it is possible to calculate that the speed of the Renault at the start of the locked tyre mark was 50mph. In scenario 2 the speed of the Renault at this point would have been 56mph.[73]I pause here to observe the effect of even a relatively small change in a single variable input into the model. The deceleration rate is not known but Mr Manning’s expert analysis applies a number of deductions, to it to arrive at an assumed 0.5g. There is a 6mph difference in the speed of the recovery truck before the point of braking dependant on the different deceleration rates applied.[74]In his report Mr Manning’s overall conclusion was that if the rate of deceleration was 0.5g or higher, then it is likely that the Renault recovery vehicle was travelling at a speed above the 50mph speed limit along the carriageway before the commencement of braking. Mr Manning believes that the tachograph recording of 53mph was recorded during the 16 metre period of braking or at some point before this braking. It would take the vehicle between 0.8 and 0.7 seconds to travel the 16 metres to the point of impact, during this deceleration period.[75]The new evidence on the tyre mark: the above calculations were, in part, based on the assumption that the tyre mark 1 was generated by the rear nearside tyre. I have found that PC Hall’s evidence that it was generated by the front nearside tyre represents the correct analysis. Mr Manning addressed this in his additional letter to the Court and the implications of it for his calculations. The change in the tyre mark does not affect his calculations as to the speed of the vehicles at the point of impact. However it does affect the calculated speed of the Renault recovery truck at the point of braking.[76]In his supplementary analysis Mr Manning accepted that the change in the cause of the tyre mark affected the calculated speed of the Renault at the commencement of braking. His supplementary analysis assumes a speed of 40mph at the point of impact (his calculations put it at 38-45mph and Mr Davey suggested 40mph). Based on a deceleration rate of 0.67g, Mr Manning calculated the speed of at the start of the tyre mark as 54mph.[77]Perception Response Time (PRT): In his written report Mr Manning goes on to consider PRT. Research suggests that most drivers respond to an emergency situation in about 1.5 to 2.0 seconds. He notes that in the situation faced by Mr Heal the response time is likely to have been between 0.75 seconds and 2.0 seconds. Because the accident occurred during hours of darkness, Mr Manning believes that it is likely that both drivers may have had some earlier indication of the oncoming vehicle due to light spreading from the headlights.[78]Mr Manning illustrates the consequences of various different PRTs for Mr Heal’s in his table 2.[79]Scenario 1: approach speeds: Renault 50mph, Mazda 46mph and post-impact deceleration of 0.5g. That assumes the recovery vehicle approached at 50mph before braking at 0.67g commenced and the Mazda was travelling at a constant 46mph. Mr Manning’s figure 46 illustrates the calculated position of the two vehicles based on varying PRTs. It is only in the 0.75 PRT scenario that Mr Heal would have had a direct line of the actual Mazda car. If he had reacted any quicker than this, it would mean that he reacted before seeing the Mazda car.[80]Scenario 2: approach speeds, Renault 56mph, Mazda 54mph, post-impact deceleration 0.67g. In this scenario Mr Manning notes that Mr Heal’s PRT would likely have been required to be marginally less than 0.75 seconds to have obtained a direct line of sight. In other words, if it was concluded that Mr Heal had reacted on seeing the Mazda, his PRT would have been slightly less than 0.75. Mr Manning believes that this is unlikely based on the available research and that in this scenario Mr Heal would have had to have been braking due to the presence of the flare of the Mazda headlights on the road.[81]He notes that a PRT time of 0.75 is towards the quickest end of the quoted PRT range but hypothesises that either Mr Heal was on alert because of some prior event or because the headlights of the Mazda were illuminating the carriageway ahead and that light spillage alerted Mr Heal to the presence of a vehicle. Mr Manning queries whether a driver such as Mr Heal would have been able to identify the speed of the Mazda and the hazard it presented based on the spread of headlights in front of it and then to initiate his PRT at that point.[82]Both experts agree that Mr Docherty did not stop at the give way junction and had he done so, the accident would not have occurred. In the incident if the Mazda had travelled an additional 4.0 metres, it would have cleared the path of the Renault. If the Mazda was travelling at 46mph, it would have taken an additional 0.20seconds. Had the Mazda been travelling at 54mph it would have taken an additional 0.17seconds to clear the path of the Renault. Consequently, had the Renault arrived at the point of impact some 0.20 seconds later, then the collision would have been avoided.[83]Mr Manning’s supplementary evidence contains a table which explores the effect of a different speed of the lorry at the point at which the locked tyre commenced at a point 20.7metres from impact and assuming a deceleration rate of 0.67g. In the case of the assumptions applied, the table demonstrates that all other things being equal, the accident would have been avoided had the lorry been travelling at a speed of 48mph or less. The Expert Evidence of Mr Peter Davey[84]Mr Davey prepared a written report in these proceedings. His report details the road description, the witness evidence and the vehicles involved. His analysis considers the point of impact having regard to the documented evidence of PC Hall. That evidence details the gouges on the surface of the road at the point of impact when parts of the vehicles were forced downwards. Using that information he has prepared a depiction of the vehicles at the point of impact showing the Renault lorry slightly across the centreline of the road and the Mazda being hit sideways on as it is positioned at the midway point across the junction.[85]Mr Davey considered Mr Heal’s evidence about stopping prior to joining the B6039 and seeing the headlights of vehicles leaving new Ridley across the valley. He estimates that a direct measurement of the distance between the two is around 910 metres.[86]In his report Mr Davey also considered the tachograph data which established that the Renault lorry was travelling at 53mph prior to the collision (allowing for the range of +3.7mph). For the purposes of his reconstruction he utilised the speed of 53mph.[87]Mr Davey noted the locked tyre mark on the approach carriageway of the main road to the junction. That mark started before the junction and extended for 45.9 metres through the point of impact and to the final resting point of the Renault lorry. After impact the Renault lorry rotated through 180 degrees before coming to reast on the offside grass verge some 21.9 metres beyond the point of impact.[88]Speed of the Mazda: Mr Davey analyses the written statement of witnesses, the frozen speedometer and the damage to the vehicle in assessing the movement and speed of the Mazda. He relies on Mr Robinson’s evidence that the cars were travelling at around 40 to 45mph and deduces that at a constant speed of 40mph it would have taken 65 seconds to drive from the layby to the junction. At 45mph it would have taken 58 seconds for the same journey. Mr Robinson gave credible evidence that he did not see the collision and that he was around 200 yards behind the Mazda when it reached the junction.[89]In addition, Mr Davey notes that the frozen speedometer showed a speed of approximately 37 to 38 mph. He sets out a detailed analysis as to the mechanical operation of the speedometer and the factors which mean that the frozen speedometer speed should be treated with caution. He does however note that is it similar to Mr Robinson’s estimate of 40 to 45mph. His analysis and explanations are well reasoned.[90]Speed of the Renault lorry: In terms of the Renault lorry, Mr Davey noted the point at which the emergency braking locked the wheels and caused a mark of 24 metres from the start to the point of impact. He assumed a rate of deceleration for the lorry under emergency braking of 0.5g. Applying that rate to the speed of 53mph meant that the lorry was travelling at 40mph at the point of impact. He then uses these assumptions to reconstruct the relative positions of the vehicles in the 3D models in order to examine the views available to both drivers.[91]In Mr Davey’s reconstruction the model shows that the first opportunity that each driver would have had to see the other vehicle was approximately 1.4 seconds prior to impact. At that point by his calculations the Mazda was around 25 metres away from the point of impact and the Renault lorry was some 30 metres away. Mr Davey believes that the views obtained would not have been full views of the other vehicle due to the intervening vegetation but Mr Davey also points out that the headlights would have been visible.[92]In relation to the assumed deceleration rate of 0.5g for the lorry, Mr Davey explained that the police tests provided a mean deceleration rate of 0.666g for a car/SUV which will have a ‘stickier’ tyre than a lorry so the lorry deceleration rate cannot be greater than 0.666g. Mr Davey explained during his oral evidence that he accepted the 0.8g deceleration rate for the lorry after the point of impact and he maintained that he lorry deceleration rate prior to impact was 0.5g.[93]This contrasted with Mr Manning’s assumption that the rate of deceleration for the lorry was 0.67g prior to impact. Mr Manning believed that the tyres fitted on a SUV would be similar to commercial tyres so the deceleration rate for the lorry would be similar to that of the tested vehicle. Mr Manning pointed out that the tyres were locked at this point and sliding because they had reached the maximum co-efficient of friction.[94]PRT of Mr Heal: Mr Davey estimates that Mr Heal applied emergency braking when he was 24 metres from the impact. That equates to 0.3 seconds after the Mazda first became visible. Mr Davey considers the PRT in light of studies on driver response times in emergency situations. He explains how the PRT depends on the scenario they are presented with in which a hazard emerges. Mr Davey also explains the variability in response times within a population of normal, attentive drivers.[95]Mr Davey then inputted the specific factors which applied in the circumstances of this collision into the Response program software. That software calculates that the average PRT of a driver in Mr Heal’s situation would be 1.0 seconds with the 15th centile figure being 0.6 seconds and the 85th centile figure being 1.3 seconds. In the context of this data, Mr Davey’s estimate of Mr Heal’s response time of 0.3 seconds would be extremely fast. Mr Davey explains that it is possible that the Mazda’s speed across the junction was lower than he had previously assumed.[96]Implications of the ABS fault: Mr Davey speculates that had the ABS been functioning properly it is possible that the lorry may have been able to achieve a greater deceleration rate in which case it would have taken the lorry 0.1 seconds longer to reach the point of impact. He notes that even if the ABS had allowed Mr Heal to steer the lorry, the Mazda was positioned across 4.76 metres of the 6 metres carriageway and there was no safe route to avoid the Mazda without steering off the carriageway. His conclusion is that the difference with the functioning ABS system, instead of the faulty system, means that there would still not have been sufficient time for the Mazda to clear the path of the lorry and the collision would not have been avoided. That conclusion is fully reasoned and supported and I accept it.[97]Avoiding the Accident: Mr Davey concludes that had Mr Heal been travelling at 50mph instead of 53mph when he reacted to the Mazda and engaged emergency braking, he would have slowed to around 36mph at the point of impact, taking some 1.2 seconds longer to reach the point of impact. However in that time he calculates that the Mazda would have travelled 1.8 metres further across the junction but the impact would have still been unavoidable.[98]During cross-examination he explained that he used the speed of 50mph in his counterfactual scenario because that was the speed limit for the lorry on that road and he accepted that it was a matter for the Court to determine what speed would have been reasonable.[99]In order for the accident to have been avoided, Mr Davey estimates that from the moment that the brakes were activated 24 metres away from impact, the speed of the lorry at the commencement of braking would have had to be travelling at or below 34.7 mph or 38 mph if the ABS had been working. This would have provided the additional 0.2 seconds before which the Renault lorry would have arrived at the point of impact, during which time the Mazda would have travelled the necessary 3.8 metres to clear the path of the lorry. That was based on a Mazda speed of 40mph. Findings of Fact[100]I preface these findings by noting that the courts have cautioned against making precise findings of fact based on unproven assumptions and speculative calculations.[101]Lights on the top road: Mr Heal has said to this Court, to the police and to the Coroner’s Court that he saw lights on the top road. He was an inconsistent and unreliable witness. I bear in mind that he first mentioned the allegation that the two cars had been racing in his statement to the police in the immediate aftermath of the accident. The comments which Mr Heal made about seeing lights on the top was made in this context when he was alleging that the two cars had been racing.[102]It is likely that Mr Heal would have been conscious of having taken cocaine the night before the accident and he knew that the ABS warning light was on, having come on during the journey back from Gretna (he accepted this in later evidence). In addition, I am satisfied that he had lied about pulling over to answer a message from his girlfriend, so he may also have been conscious that he had been using his phone whilst driving. Those matters did not have any bearing on the causation of the accident but Mr Heal would not have known that at the time of his police interview. I consider that he was behaving defensively in those initial interviews and seeking to deflect blame for a very serious accident on to other drivers.[103]PC Hall gave evidence as to what Mr Heal could have seen when looking across the valley. PC Hall’s plan depicts Mr Heal having an oblique view across the valley from his nearside when travelling on the main road. That view was at a distance of some 910 metres with intervening vegetation and undulating topography. PC Hall’s estimate is that it would have been a temporary or split second view.[104]In these circumstances I find that it would not have been possible for Mr Heal to have formed a view as to anything other than the presence of headlights on a road in the distance. It is unlikely that Mr Heal would have been able to come to a view as to the speed at which the vehicle or vehicles were travelling. Mr Heal accepted that in his first witness statement in these proceedings. He further now accepts that the cars were not racing.[105]Having considered all of the evidence, on a balance of probabilities, I find that Craig Heal did not see anything of note across the valley on his approach to the accident. If he did have a fleeting view of car headlights, he would not have drawn any conclusions about the manner in which that car or cars was/were being driven. As such I have concluded that there was nothing which would reasonably have alerted him to an increased risk that a driver would come across the crossroads without stopping. In other words, the journey towards the crossroads on the night of the accident was not eventful and there were no events which should have caused Mr Heal to exercise more vigilance and caution than would ordinarily be expected of any driver driving along that road in those conditions at that time.[106]The Deceleration Rate: PC Hall gave evidence about the testing of the SUV and the mean deceleration of 0.667g. Prior to impact Mr Manning has applied two different deceleration rates of 0.5g and 0.67g but he advocates a rate of 0.67g. Mr Davey gave evidence that a rate of 0.5g was more appropriate. On balance I find that the deceleration rate was more likely to be towards 0.67g than towards 0.5g for the reasons which follow.[107]Firstly, I am not making a finding that it was precisely 0.67g because I remain conscious that a different vehicle was used in testing and there is no evidence that the tyres were the same. I believe the deceleration rate to be more towards 0.67g because I accept that is it supported by the independent testing evidence and that the rate is being measured at the point at which the tyres locked in extreme braking. If the rate had been 0.5g I accept Mr Manning’s evidence that moderate to strong braking, short of emergency braking, is likely to have caused the tyres to lock.[108]Speed of the Mazda: one of the key differences between the experts is in relation to the reliability of the momentum exchange analysis conducted by Mr Manning. The reliability of any outputs as a result of such an analysis is dependent on the reliability of the input data but also the sensitivity of the model to variations in that data. The joint experts’ statement contains excerpts from the AiTS Training Manual and that sets out limitations of the technique.[109]One of the limitations of the application of momentum exchange is where there is a disparity between the masses of two colliding vehicles. The worked example is in relation to two vehicles with mass ratio of 1:30. In the calculations it is demonstrated that the calculations relating to the velocity of the larger vehicle are relatively stable but the calculations relating to the smaller vehicle are very sensitive to the ratio of the two masses. Consequently, caution is urged about trying to find the initial velocity of smaller vehicles when mass ratios are greater than 1:2.[110]In this case Mr Manning calculated the assumed mass of the Renault lorry to be 8590kg and the Mazda car to have an assumed mass of 1650kg giving a mass ratio of around 1:5. I accept therefore, with regards to the different mass ratios that the extrapolated outputs in relation to the Renault lorry are likely to be consistent but that outputs with regard to the speed of the Mazda need to be treated with caution. The tachograph data in relation to the Renault lorry does not therefore validate the model in relation to its outputs for the Mazda.[111]The momentum exchange is also reliant on other assumptions about unknown variables. The deceleration rate of the Mazda as it travelled across different surfaces, the tarmac road and the grass verge is unknown as is the deceleration rate of the lorry across the grass verge. The distance travelled by both vehicles post impact can be reasonably deduced but may not be entirely accurate. Assumptions have been made about the mass of the Mazda, the mass of the Renault lorry and separate assumptions about the mass of the occupants of both vehicles.[112]There is of course the police data about the effects of friction on the road surface. Three separate tests are done and the mean deceleration rate was calculated to be 0.666g. In his oral evidence Mr Manning gave evidence about his assumptions relating to the Mazda striking the kerb and vehicle being launched into the air. He said he had made an assumption of 0.5g deceleration on the basis that the kerb strike would reduce it, there would be negligible effect on a reduction in momentum when the vehicle was in the air and an increased effect when the vehicle skidded across the grass. He therefore applied an assumption of 0.5g for those events. Again these assumptions are calculated assumptions but they add to the number of the variables and the risk of a disproportionate effect on the outputs in relation to the Mazda.[113]As the number of unknown variables and the number of assumptions increases in terms of the inputs into a momentum exchange analysis, it must follow that the outputs are more susceptible to variations. Therefore I treat the outputs from the momentum exchange analysis, and in particular those with regards to the speed of the Mazda, with some caution.[114]Mr Davey uses the witness evidence as to the speed of the Mazda leading up to the collision and then examines the positions of the vehicles. He assumes a speed of 40mph for the Mazda up to the point of impact. Mr Manning calculated the speed of the Mazda between 46mph and 54mph at the point of impact. This is dependent on his momentum analysis and whether deceleration rates post impact are 0.5g or 0.67g.[115]At this point it is sufficient to note the speed of the Mazda was likely to be between 40 and 50mph and potentially up to 54mph.[116]Mr Docherty’s Driving: Neither of the experts can say definitively whether braking was applied to the Mazda as it travelled through the junction. There is no physical evidence of braking on the road surface. It is clear that the Mazda came through the junction, without stopping and at some speed. The evidence also indicates that, as the Mazda came to the junction, had Mr Docherty looked to his right he would have had the opportunity to see Craig Heal’s vehicle. The point at which he would have seen the lorry is different dependent on the differing speeds assumed for each vehicle as they approach the point of impact. The experts have agreed mutual visibility parameters. Mr Manning’s Figures 4 and 5 sets out the differing speeds of the vehicle and their respective locations when there would have been a direct line of sight between the two vehicles.[117]I am satisfied that Mr Docherty was familiar with the road network in the vicinity of the junction. The evidence of Mr Robinson indicates that the cars were travelling from Prudhoe High School to a meet up point on at Minsteracres or Derwent reservoir which were common meet up points. Mr Robinson followed Mr Docherty but said that he knew where they were going. He was travelling with Mr Docherty’s sister who had recently become his girlfriend and was on the phone to the occupants in Mr Docherty’s car. Mr Docherty was local to the area as his parents attended the scene of the collision shortly after the accident. I therefore infer that he was familiar with the junction.[118]In terms of the accident it not possible to deduce whether Mr Docherty saw the lorry on looking to his right and applied his brakes. Given the range of possible speeds at which Mr Docherty travelled, I am satisfied that he did not stop at the junction. Thay may have been as a result of a deliberate decision or it may have been the result of a miscalculation on his part as to the location of the junction. Relevant considerations are Mr Docherty’s familiarity with the road network; the fact that both minor and major roads were unlit; the fact that Mr Docherty was travelling with young friends in the car and may have been distracted. In addition, the road on the immediate approach to the junction ascends steeply and the road markings were such as to require repainting in the opinion of the Council immediately after the accident.[119]I have noted the presence of the first “Give Way” sign on Lead Road some 100 metres from the junction and then shortly before the junction a reflective warning sign about the junction and the presence of road signs on the opposite side of the junction. In the dark, those signs would have been illuminated by the Mazda’s headlights on the junction approach. I reiterate however that I am unable to make a finding as to the reason for Mr Docherty proceeding across the junction in the way he did. Notwithstanding that, I conclude that driving across the junction at the speeds indicated was a reckless and dangerous act.[120]The Speed of the Renault Lorry: on the B6309 before the junction there is a steep gradient which levels out around 180-200 metres before the junction. At 143 metres before the junction there was a crossroads warning sign with the word “SLOW” painted on the carriageway some 88 metres before the junction.[121]It is agreed that the vehicle’s tachograph recorded it accelerating from 48 mph, to momentarily reaching a speed of 53 mph over a distance of around 158 metres. With the required range applied to that data, the lorry’s speed was between 49 and 57 mph as it approached the junction, but before braking began. The tachograph recorded the lorry travelling above 50mph for about 4 seconds before it began to slow as a result of braking before the collision.[122]Mr Heal’s evidence as to his speed on the approach has been inconsistent each time he has given evidence. In his oral evidence he did describe driving around two bends and then accelerating up the bank where he had to go down a gear and press on his accelerator. He said that where the tachograph had recorded a speed of 53mph it had been on the downhill gradient on the approach to the bank. He said as he got to the top of the incline and started to descend he believed his speed did not increase by more than 1 or 2mph.[123]At that start of braking in response to the Mazda, Mr Davey estimates that the speed of the lorry was 53mph. Mr Manning’s calculations put the lorry’s speed at this point at 54mph if deceleration was 0.6g. Those values sit within the tachograph calibration tolerance range of 49 to 57mph. Taking all of the evidence into account I conclude that the speed of the lorry at the start of braking was between 49 and 57mph but it was more likely to be towards the middle of this range on the basis of the expert analysis.[124]PRT of Mr Heal: I shall examine Mr Manning’s proposition that Mr Heal’s PRT commenced on noticing the flare of the Mazda headlights. In his oral evidence to this Court Mr Heal said that he would not slow down when on a main road and when approaching a crossroads junction, but that he would be cautious. In Mr Manning’s 0.75 PRT scenario, on a balance of probabilities I accept that Mr Heal could have initiated emergency braking in response solely to the spread of approaching highlights across the crossroads.[125]The counter factual situation: The experts gave evidence as to what each of the drivers could have done on a scientific bases in the counter factual situation when a collision did not occur. Based on a range of speed for the Mazda of between 30 and 60mph, the experts agree that if the Renault lorry was travelling at around up to 10mph less on its approach then it would have arrived at the point of impact after the Mazda had cleared the carriageway Paragraph 117 Joint Statement . The slower the Mazda travelled across the junction, the longer the period required to clear it.[126]I accept the expert’s agreed position that had the lorry arrived at the point of impact some 0.2 seconds later, then the accident would have been avoided. Mr Davey’s conclusions that had Mr Heal been driving at 50mph at the point he started braking that the accident would not have been avoided correlates with Mr Manning’s supplementary analysis. His analysis is that if the lorry had been travelling at 48mph or less with all other matters remaining the same, then the accident would have been avoided. I accept those propositions. Submissions[127]Mr Horlock, on behalf of D2 asks the Court to find that Mr Heal was negligent in that his speed on the approach was around 50mph before deceleration by braking. The issue is whether Mr Heal was at fault for driving at an excessive speed at the point he applied his brakes in response to the hazard which became apparent. Mr Horlock says he was at fault because of a number of factors. Those factors include the “slow” sign on the approach, the warning sign on the side of the road and his thoughts regarding the racing vehicles he said he saw across the valley and his knowledge of the junction.[128]In terms of causation, Mr Horlock submits that the experts agree that the Mazda required 0.2 seconds to clear the path of the lorry. If the lorry arrived at the point of impact 0.2 seconds later, then the table in Mr Manning’s supplementary evidence is important. That table looks at the different periods of time the lorry would have taken to decelerate over the locked tyre mark at 0.67g deceleration. It does so by applying different speeds for the lorry at the point of tyre lock up. It can be seen that, at a speed of 48mph or less when the tyres locked, in all of those situations the lorry would have arrived 0.2 seconds or later and the crash would have been avoided. Mr Horlock submits that somewhere in the range of 43-44mph would be reasonable and that 45mph would be too fast.[129]Mr Horlock seeks a contribution of 25% to one third and has referred me to the cases of Truscott v McLaren [1982] RTR 34 in which the Court of Appeal made a finding of a 20% contribution against a defendant on a major road when a car had emerged from a minor road. Mr Horlock submits that Mr Heal’s negligence in this case is worse because he was aware that a driver might emerge from the junction.[130]On behalf of the 4P, Mr Hunter submits that the accident was caused solely by the dangerous and deliberate conduct of Drew Docherty. As such, in this case there was no breach of the general duty owed by Mr Heal to other road users. In any event, to the extent that there was a breach of duty then Mr Hunter says that it cannot be demonstrated that it was causative of the accident. Mr Hunter criticises D2’s assumption that Mr Heal’s speed at the time of the accident is proof of the breach of duty. He disputes the rationale for the assumption that had he been travelling at a slower speed, the accident would not have occurred since all other relevant factors would have remained the same[131]Mr Hunter notes that D2 have pleaded that there was a reckless and dangerous act on the part of Mr Docherty in driving across the junction and that is significant because the Court needs to find that there was a duty on the part of Mr Heal to protect against such conduct. He draws support from the dicta of the Court of Appeal in Whittle v Bennett [2006] EWCA 1538. That was a case in which a defendant was speeding and driving close to the vehicle in front which performed an “unexpected and extraordinary manoeuvre” by executing a U-turn after pulling out from the nearside carriageway. There was found to be no duty on the defendant in relation to the actions of the claimant. The Law[132]Mr Hunter drew my attention to the Court of Appeal’s decision in the case of Sam v Atkins [2005] EWCA Civ 1452 which cautioned against applying a compartmentalised approach to the question of negligence which is a composite concept. The court endorsed the need to look at the scope of the duty owed by reference to the kind of damage which the Defendant must take care to avoid causing to the Claimant. That approach had been previously enunciated in Murphy v Brentwood District Council [1991] 1 AC 398 by Lord Oliver of Aylmerton:
“The essential question which has to be asked in every case, given that that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such... that it imposes upon the latter a duty to take care to avoid or to prevent that loss which has in fact been sustained.”
[133]The Sam v Atkins judgment also made it clear that, if a defendant acts without reasonable care but that failure does not cause the accident, the defendant is not negligent.[134]The relevant legal principles are helpfully set out in AB v Main [2015] EWHC 3183 at paragraphs 8-14. These are:• It is for the Claimant to prove that the Defendant was negligent.• The standard of care was that of the of the reasonably careful driver armed with common sense and experience (of the way pedestrians and children are likely to behave).• If a real risk of a danger of emerging would have been reasonably apparent to such a driver then reasonable precautions must be taken.• If the danger was no more than a mere possibility which would not have occurred to such a driver then there is no need to take extraordinary precautions.• The Defendant is not to be judged by the standards of an ideal driver, nor with the benefit of hindsight; see Coulson J in Stewart v Glaze.• Drivers must always bear in mind that a motorcar is a potentially dangerous weapon.• Drivers are to be taken to know the principles of the Highway Code.• Judges should not make findings of fact of unwarranted precision when that was not justified by the evidence.• Trial judges should exercise caution in relation to the evidence of accident reconstruction experts and will guard against them opining on matters beyond their expertise or acting as advocates.• You cannot judge the Defendant’s driving in a vacuum. Have regard to the actual circumstances of the actual collision. Per May LJ in Sam v Atkins Discussion and conclusions[135]The general duty is to act in accordance with the standards of a reasonable driver. I bear in mind that the Court should avoid the use of hindsight and must not require a counsel of perfection. Moreover, the duty upon Mr Heal did not require him to take precautions against risks that are no more than mere possibilities or to anticipate acts of sheer folly. Mr Hunter has directed me to the judgment in Humphrey v Leigh 1971 RTR 363 CA where a defendant driving along a main road was not required to take his foot off the accelerator and poise it over the brake so as to be prepared to stop in the event that a car emerged dangerously out of a side road.[136]I have made a finding that Mr Heal could not have seen anything of note when looking across the valley. It follows that he was not under any higher or enhanced duty of care to the occupants in the Mazda vehicle to anticipate any reckless driving on the part of Mr Docherty. His duty of care was that of acting with the standards of a reasonable motorist when driving along the main road at that time and in those circumstances. The possible views from the top road were not sufficiently close in time or location to the crossroads to draw any possible inferences as to how that/those driver/s might continue on his/their journey.[137]Similarly, I have found that Mr Heal was familiar with the road network and the crossroads junction. There is no evidence to suggest that the junction is more hazardous than other crossroads junctions or that extra care needed to be taken. As such I conclude that the standard to be applied to a reasonable driver on the main road on the approach to the crossroads would not require that driver to slow down or to place his foot over the brake on a precautionary basis.[138]I accept Mr Hunter’s proposition derived from the relevant caselaw that the question is not whether the driver was in breach but whether there was a duty to avoid action or conduct said to have caused the accident and if the conduct is such that is outside the scope of what could reasonably have been anticipated, then the finding will often be that there was no duty owed.[139]Mr Heal was familiar with the junction and the Lead Road approach. He knew that Lead Road was a minor road with the usual give way and warning signs. The conduct of Mr Docherty in proceeding directly across the junction at a speed in the order of around 40mph was a wholly unexpected and extraordinary action. D2 has accepted in pleadings that Mr Docherty’s driving was reckless and dangerous. It cannot be argued that that conduct should reasonably have been in the contemplation of Mr Heal on his approach to the junction. As such I agree that he did not owe a duty of care in relation to that conduct in any event. I shall however go on to consider the question of Mr Heal’s driving.[140]There is no criticism as to the speed of Mr Heal’s response to his realisation that the Mazda was travelling at speed across the junction. His PRT is at the upper end in the opinion of each of the experts. The crux of the matter lies in a consideration of whether Mr Heal’s speed was negligent at the point when the hazard reasonably became apparent.[141]Mr Hunter resists any suggestion that Mr Heal’s driving should be assessed bearing in mind that he was aware, or thought, that Drew Docherty was racing because he saw the lights on the top road. Mr Hunter submits that this matter was not the pleaded case of D2. I have already made findings to the effect that Mr Heal could not have come to a view as to any headlights across the valley and that this is not a factor when considering his speed at the point that he realised there was a hazard at the crossroads. This renders that issue, and the question of amending the pleadings, redundant.[142]The remainder of the pleaded case in issue comprises of the allegations that Mr Heal drove too fast in the circumstances; failed to appreciate that Mr Docherty’s vehicle was not slowing down or going to stop; failed to control his vehicle; failed to drive according to the road conditions and failed to take reasonable care for other road users.[143]I have made findings about the likely speed which Mr Heal was travelling at the point the hazard became apparent and when braking was effected. The tachograph show the highest speed was reached for around 4 seconds before braking was applied. Whilst the speed was likely to have been above the speed limit for those 4 seconds, given the possible range, that does not mean that Mr Heal’s driving was negligent. There were no adverse weather conditions, Mr Heal confirms that he pressed the accelerator as he went up the incline and was then descending which is when the speed in excess of 50mph was recorded. I note that the speed limit for other vehicles on the road was 60mph.[144]The forward view from the main road at a point some 180m north of the junction was that of a straight road with the upcoming junction and a view beyond the junction of the B6309 carriageway travelling downhill. Mr Heal should reasonably have had in mind that there may be vehicles waiting at the junction to emerge when it was safe to do so or in the process of emerging from the junction from a stationary position. It cannot be said that he should reasonably have contemplated a car travelling at speed across the junction without stopping.[145]Whilst Mr Heal may have momentarily been in breach of the speed limit on his approach I am satisfied that, all things considered, his speed was not excessive for this road in these circumstances. As such I conclude that it was not negligent.[146]Given that I have concluded that a duty of care was not owed to Mr Heal in relation to the manner of Mr Docherty’s driving across the junction and given that I have, in any event, concluded that his speed at the point of braking was not negligent, I do not consider it necessary to go on to consider other matters. For all of the above reasons the claim for a contribution fails.[147]That concludes my judgment on the issue of a contribution.