Jessop v Nixon [2010] EWHC 3211 (QB)

[2010] EWHC 3211 (QB)

Case No HQ10X00703

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/12/2010

Before

THE HON. MRS JUSTICE SWIFT DBE

Between

Robert JessopClaimant

Mark Stuart NixonDefendant

Christopher Wilson-Smith QC & Matthew Phillips (instructed by Stewarts Law LLP) for Claimant

Patrick Vincent (instructed by Berrymans Lace Mawer LLP) for Defendant

Hearing Hearing dates: 17-18 November 2010

Judgment

[1]The claimant, Robert Jessop, who is now 37 years old, claims damages for personal injuries, loss and damage sustained by him as a result of a road traffic accident which occurred at about 22:22 hours on the evening of 20 March 2008. The accident happened when he was riding his Suzuki Bandit 600 cc motorcycle along the road where he lived, Highfield Lane, Southampton. His motorcycle struck the defendant’s Citroën Berlingo car which was emerging from a side road, Orchards Way, on the claimant’s left. The motorcycle struck the front nearside of the defendant’s car before travelling onto the wrong side of the road (first upright and then on its nearside), striking the kerb and hitting a lamp post which then fell onto the claimant.

[2]As a result of the accident, the claimant suffered a severe traumatic brain injury which has left him with marked cognitive and behavioural deficits affecting all aspects of his life. He does not have the capacity necessary to conduct these proceedings which he brings by his mother and Litigation Friend, Veronica Rundle.

[3]Proceedings were issued on 23 February 2010, alleging that the accident had been caused by the defendant’s negligent driving. A defence was filed, denying liability and alleging that the accident had in fact been caused wholly by the claimant’s own negligence. Alternatively, it was said that he had been contributorily negligent.

[4]On 26 May 2010, Master Fontaine ordered that the issues of primary liability and contributory negligence should be tried first. The hearing of those issues took place before me on 17 and 18 November 2010. The claimant himself has no recollection of the accident and took no part in the hearing. He was represented by Mr Christopher Wilson-Smith QC and Mr Matthew Phillips. The defendant was represented by Mr Patrick Vincent.

The site of the accident

[5]The site of the accident is illustrated in the photographs taken by the police shortly after the accident and on a scale plan prepared by a police officer. The site was subsequently inspected by two accident reconstruction experts (the experts), Dr Peter Jennings (for the claimant) and Mr John Johnston (for the defendant). Both experts took photographs, depicting the scene at the time of their inspections. They both prepared detailed Reports. Subsequently, they discussed the case and prepared a Joint Statement to which I shall refer in due course.

[6]The accident occurred at a T junction in a residential area of Southampton. The defendant was emerging from Orchards Way, a cul-de-sac, into Highfield Lane, intending to turn right along Highfield Lane in a south easterly direction towards Portswood. Traffic entering Highfield Lane from Orchards Way is governed by double broken white lines, indicating that the driver should give way to traffic travelling along Highfield Lane, which is the major road.

[7]The claimant was travelling along Highfield Lane from the direction of Portswood in a north westerly direction towards Lordswood. He approached the junction from the defendant’s right. Highfield Lane is a single carriageway road with one lane in each direction. The lanes are divided by dashed (i.e. the lines being longer than the gaps) white hazard warning lines. The road is subject to a maximum speed of 30 mph. There are 2-metre wide pavements on each side of Highfield Lane which are bounded by high hedges.

[8]Approaching the junction along Highfield Lane from the south east (Portswood) side, there is a mini roundabout located approximately 210 metres before the junction. On leaving the roundabout, Highfield Lane bends to the right, then to the left. On the right hand bend, there is a traffic island in the centre of the road, on which are sited two bollards and a “Keep Left” sign. The traffic island is located about 180 metres south east of the junction with Orchards Way. At the end of the double bend, there is a junction with Brookvale Road on the left. Immediately beyond that is a pedestrian crossing. The pedestrian crossing is about 115 metres south east of the junction with Orchards Way. Beyond the pedestrian crossing, the road has a slight uphill gradient and bends gently to the left towards the junction. Beyond the junction with Orchards Way, on the north west (Lordswood) side, Highfield Lane continues with a slight uphill gradient and left hand bend. The lamp post with which the claimant’s motorcycle collided was situated approximately 33 metres north west of the centre of the junction with Orchards Way on the opposite kerb.

[9]Between the pedestrian crossing and the junction with Orchards Way, Highfield Lane has parking bays on both sides of the road. The parking bay in the north west (Lordswood) bound lane tapers to an end shortly before the south east (Portswood) side of the junction. The overall width of Highfield Lane in this area is about 10.5 metres. However, the parking bay on the south east (Portswood) side of the junction with Orchards Way is about 2 metres wide. The width of the north west (Lordswood) bound lane available to traffic passing the parking bay is therefore reduced to about 3.2 metres. At the point where the parking bay tapers to an end, just south east of the junction, the width of the north west (Lordswood) bound lane increases to between 5 and 5.2 metres.

[10]The view of drivers emerging from Orchards Way into Highfield Lane can be significantly restricted by the presence of vehicles parked in the parking bay to the south east of the junction (i.e. to their right).

[11]At night, Highfield Lane is illuminated by low pressure sodium street lights mounted on the kerb on the opposite side of the road to the junction with Orchards Way.

The witness evidence

[12]I heard oral evidence from PC James Fibbens and Mr David Whiting on behalf of the claimant. For the defendant, I heard from the defendant himself, and from Mr Michael Young, Miss Leanne McMillan and Mr Bruce Chapman. The police report, which contained a number of statements (including a DVD and transcript of an interview with the defendant’s daughter, Naomi Nixon), was admitted in evidence by agreement of the parties.

[13]It is convenient to consider the evidence in the order in which events happened.

The evidence of Mr Young and Miss McMillan

[14]Mr Young and Miss McMillan made statements to the police and, subsequently, for the purpose of these proceedings. They also gave oral evidence before me although Miss McMillan was asked no further questions other than to confirm her witness statement. Mr Young and Miss McMillan were travelling in a silver Honda Civic car along Highfield Lane towards Lordswood in the north west bound lane. Mr Young was driving, with Miss McMillan as his front seat passenger. They joined Highfield Lane before the mini roundabout to which I have already referred. Before they got to the mini roundabout, Mr Young had become aware of the claimant’s motorcycle very close to the rear of his car with its headlight almost blinding him. He said that he commented to Miss McMillan about the fact that the claimant was riding so close to him and Miss McMillan observed that the claimant was an “idiot”. The claimant appeared to be in a hurry and to be trying to push Mr Young along. In fact, Mr Young’s speed was constrained by a black car (also a Honda Civic) which was travelling in front of his car at slightly less than the 30 mph speed limit.

[15]Mr Young described how, at the mini roundabout, both the black Honda and Mr Young’s Honda continued to travel along Highfield Lane with the motorcycle following them. As the cars left the mini roundabout, the claimant pulled out, crossed to the wrong side of the road (on the off side of the traffic island) and overtook both Mr Young’s Honda and the black Honda. Mr Young described how the claimant was “really pulling away quickly”. He estimated the claimant’s speed at “at least 50 mph and probably closer to 60 mph”. He said that he “heard him [the claimant] accelerate really hard and it sounded like he was taking it right around to the red line”. He saw the motorcycle return to its own side of the road at or about the point of reaching the pedestrian crossing. The motorcycle then began to round the left hand bend and Mr Young said that he lost sight of it at that stage because his view was obscured by parked cars on his left. Once he had driven around the left hand bend, he saw the motorcycle veering across the wrong side of the road, clearly out of control. This was plainly at a time after the impact between the motorcycle and the defendant’s car had occurred. Mr Young heard the crash of the impact of the motorcycle with the lamp post and saw the lamp post move and then fall.

[16]Mr Young said that he stopped to help. The black Honda which had been between him and the claimant’s motorcycle drove straight on without stopping and has never been traced. Mr Young parked his car on the south east (Portswood) bound lane of Highfield Lane. As he did so, he saw the defendant’s car positioned over the “Give Way” lines at the mouth of Orchards Way. He said that he did not take “particular notice” of the car because it looked like “a normal car waiting to come out of the junction”. He said that the car was “probably not beyond the line of parked cars to his right” but “possibly level with them”. It was pointing slightly as though to turn right. It had its lights on. There was, he said, still room for a car to get past the defendant’s car in the north west (Lordswood) bound lane. The black Honda had not, he said, swerved or gone onto the wrong side of the road in order to get past the defendant’s car.

[17]In her witness statement Miss McMillan said that she first noticed the claimant’s motorcycle when it overtook Mr Young’s car and the black Honda immediately after the mini roundabout and, in doing so, crossed onto the wrong side of the road. It was “very noisy”. She then lost sight of it. She said that she did not see the motorcycle again until Mr Young told her that he thought the motorcyclist had come off his motorcycle. Mr Young stopped his car and got out in order to assist the motorcyclist. He told Miss McMillan to telephone for an ambulance which she did.

[18]Miss McMillan said that she saw the defendant’s car in Orchards Way waiting to come out. She could not remember how far into Highfield Lane the car was positioned but said that she “would definitely have noticed if it had been sticking out too far”.

The evidence of the defendant

[19]The defendant, a professor of electronics and computer science at Southampton University, was 49 years old at the time of the accident. He has held a UK driving licence since December 1975. He has no current endorsements on his licence. His only previous endorsement was for speeding some years ago. He owned a car at the time of the accident but did not drive a great deal, preferring to walk whenever possible.

[20]The defendant spoke to police officers at the scene of the accident. He was interviewed at Southampton Central police station at 23:45 hours, i.e. within one and a half hours of the accident. A transcript of that interview was available. He made a witness statement for these proceedings dated 6 July 2010.

[21]The defendant’s evidence was that he had collected his 14 year old daughter, Naomi, and two of her friends from a swimming pool and had then dropped her friends off at their respective homes. The second girl to be dropped off lived in Orchards Way. The defendant turned into Orchards Way from Highfield Lane and stopped outside the girl’s home. He watched her until she was safely indoors, then turned his car round with the intention of turning right out of Orchards Way into Highfield Lane. He was going to his home, which was only a few minutes’ drive away. Naomi was sitting in the rear seat of the car.

[22]The defendant was familiar with the junction of Orchards Way and Highfield Lane since he walked past it daily and had occasionally negotiated it in his car. In his police interview, he described the accident in this way:

“I came to the end of Orchard (sic) Way and I stopped. I looked left and there was a car coming in front of me. I looked right and it appeared to be clear. I started to drive out and then I noticed the light of a motorcycle coming up, at what transpired to be quite high speed. I then stopped immediately and the motorbike, he saw me coming forward and he must have turned his handlebars. He wobbled. Then as he carried on he clipped the front of my car then he span off. … he almost recovered … but he didn’t and he went straight into a traffic light (sic). It was at such a velocity that the traffic light was knocked over”

. The defendant said that, after the impact, he thought his car was “in the way” so he reversed it back slightly, then went over to the motorcyclist to see if he could help him.

[23]The defendant was asked by the police about his reference to the motorcycle having “clipped” the front of his car. He was asked whether he knew there had been contact between the two vehicles because of something he had heard or because he had felt his car move. He said it had been “very slight”. He said he “might have heard something” but it was all “incredibly fast”. He went on: “All I knew there was afterwards a mark of a collision on the passenger side of the bumper. And I was surprised it was on the passenger side”.

[24]When asked about the time which had elapsed between him looking right, starting to “edge out” (the interviewing officer’s words) into Highfield Lane and becoming aware of the presence of the motorcycle, the defendant said it was “milliseconds”. He went on to describe visibility from the junction:

“In truth the visibility is not good. There were cars parked on this side of the road. You can’t see, and the speed he was going I couldn’t see. I would have needed to see the pedestrian junction, just after the pedestrian junction and you can’t see anything ’cause of the cars when you go down this side of the road”

. He said that the motorcycle’s speed was “incredibly fast”.

[25]In his witness statement prepared for the purpose of these proceedings, the defendant described how, as he reached the junction of Orchards Way with Highfield Lane, there were cars parked on both sides of Highfield Lane to his right which restricted his view. He said that he initially stopped his car slightly beyond the “Give Way” lines at the mouth of the junction. That was, he said, necessary “in order to have sufficient view down the road to be satisfied that the road is clear for you to commence your turn”. He said that the front of his car would certainly not have been near or beyond the edge of the line of parked cars. His view to the right was at that time “very restricted”; he had a good view to his left.

[26]The defendant said that he was certain that, when he stopped initially, he looked both left and right, although he could not now be sure in which sequence he had done so. He thought (though he could not be sure) that he had first looked to his right. He remembered that, when he looked to his right, he saw, down the pavement side of the line of parked cars, a white car (it is agreed that this must in fact have been Mr Young’s silver Honda) travelling towards the junction in the north west (Lordswood) bound lane. The car was some distance away and he did not consider that it would reach the junction in time to cause him any problem when turning right.

[27]The defendant said that he then checked the road to the left. There was a purple Jeep approaching from his left at about 30 mph. He waited in the same position until the Jeep had passed. He said that, once it had passed, he again checked to his right and then started to “edge forward”. He went on: “As I was edging forwards I looked to my right. I was not travelling very fast, certainly slower than walking speed. As I had moved about 3 or 4 feet, certainly no more than 5 feet, a motorcycle appeared from behind the line of parked cars”.

[28]The defendant estimated that the motorcycle was travelling in about the centre of its lane with its headlight on. He continued: “As soon as I saw the motorcycle I stopped. I stopped almost immediately. There was sufficient room between the front of my vehicle and the central white line on the road for the motorcycle to have passed safely in front of my vehicle. There was also nothing coming the other way and therefore the whole of that carriageway was free. The motorcycle was travelling at some speed and I watched him wobble and swerve slightly in an arc towards the front of my vehicle, the passenger front corner. My vehicle was stationary throughout this time and I remember him striking the front passenger corner (front nearside corner) and striking it a glancing blow. It was not a major impact at all, there was not even a crunch. I continued to watch the motorcyclist who then veered back towards the centre of the road and continued straight over that in a straight line, upright on his motorcycle, about 100 feet or so up the road, up onto the pavement and tragically straight into a lamp post”.

[29]The defendant acknowledged that it was difficult for him to estimate the motorcycle’s speed precisely. However, he said that he was confident that it had been travelling well in excess of the speed limit, at about 50 mph or so.

[30]The defendant said that, after the impact, he remembered that his daughter was in the back of the car and so he reversed his car back a short distance to a point “probably just behind the “Give Way” line”. As he was reversing, he remembered seeing the “white” car that he had previously noticed. It pulled over onto the other side of Highfield Lane near to the motorcycle. He left his car and ran over to assist the motorcyclist. The claimant left his daughter in the car. She called the ambulance service. Later, he moved his vehicle to a safer position in one of the parking bays on the south east (Portswood) bound lane of Highfield Lane. He said that he did that before the police arrived.

[31]When giving his oral evidence, the defendant said that he could not remember where at the junction he had stopped at first. He thought that he had stopped because of the approach of the Jeep. He could not remember whether he had seen the “white” car at the time he first stopped. He thought he had seen it before he saw the Jeep but he could not be sure.

[32]Mr Wilson-Smith suggested to the defendant that he had been in the act of turning right at the time of impact with the claimant’s motorcycle. The defendant agreed that his car had been at an angle at the time of the impact but said that it had not been at an acute angle. He described how the motorcycle had wobbled and moved in a curve towards his car. He said that his car was stationary at the time of the impact which had been only slight, with “hardly a bang at all”. He remembered going to the front of his car to see whether there was any evidence of damage.

[33]The defendant was asked about reversing his car. He said that he had done so after – but not, to the best of his recollection, before – the impact with the motorcycle. He assumed that he had reversed to the “Give Way” lines. He did not consider that, at the point where the impact occurred, his car had been blocking the north west (Lordswood) bound lane of Highfield Lane. He believed that, had the motorcycle been travelling at a reasonable speed, there would have been sufficient room for it to pass whilst remaining on its correct side of the road.

[34]The defendant was asked whether he had heard the noise of the motorcycle’s engine before the accident. He said that he had not. He had been driving with his windows closed and had not been aware of any traffic noise.

[35]The defendant did not agree that he had let the Jeep pass and then pulled out without looking to his right. He said that he looked to the right a second time. As he was edging out, he saw the motorcycle and stopped immediately.

[36]The defendant said that he did not remember seeing the black Honda car which Mr Young had described, either before or after the accident. He acknowledged that he had not mentioned seeing the “white” car when he was being interviewed by the police. However, he said that he had recalled it when making a statement to his solicitors. When he saw the “white” car, it was at a point near to the position of the further red car visible on Dr Jennings’ photograph 23 (TB3/59) although it was in the north west (Lordswood) bound lane (rather than in the south east bound lane as in photograph 23). It was on the junction side of the pedestrian crossing (i.e. something less than 115 metres from the centre of the junction). He said that his view of the “white” car was closer to the view of the driver in photograph 22 (TB3/58) but without the presence of the large blue vehicle to the right of the bus stop and the vehicle behind that.

The evidence of Naomi Nixon

[37]A police officer spoke to Naomi Nixon at 1.13 hours on 21 March 2008. She said that she had been “kind of” aware of the noise of a motorcycle when at the junction. She described how her father had come out of the junction and had not pulled out “more than an inch” when he braked “really sharply”. There was “a bit of a bump” when the motorcycle impacted with his car. She looked through the windscreen and saw the motorcycle.

[38]Naomi was interviewed by the police at greater length on 7 April 2008. A DVD and transcript of the interview are available. Naomi told the police that, at the time of the accident, she was “day dreaming”, “thinking” and in her “own little world”. At one point in the interview, she said that she had not been looking at the road before the accident and indeed may have been looking at her mobile phone. She described the accident in these terms:

“… we were coming out of the junction. I was like vaguely aware of the motorbike noise or whatever it’s called. I don’t know. And I wasn’t really aware of anything really I was just sitting there thinking as I don’t really talk when I am in the car, to be honest, unless I am spoken to. Yeah, I was sat in the back. And then we must have come about an inch out of the junction or whatever you call it I don’t know and then there was like this motorbike and it was like coming closer and it was like going really fast and it just like it crashed into our car, then it sort of the guy he must have like I don’t know lost you know but he sort of like swerved off and then went. I saw him flying through the air and then landing on lamp post and then the lamp post fell on him. And basically that was it.”

[39]Naomi went on to say that she was “pretty sure” that the defendant had reversed his car before the motorcycle hit it. At one point, she suggested that he might actually have been in the act of reversing as the motorcycle struck his car. She said that, as soon as the motorcycle hit the car, the defendant got out of the car and went to help.

[40]Naomi said that she had “heard a motorbike, but … didn’t know what road it was on … it was pretty loud and it sounded like it was going quite fast …”. She said that she did not see the motorcycle before the impact with the car. When she heard the impact, she looked up and saw the motorcycle swerving off across the road. Later, she said that she had seen the motorcycle’s headlight out of the corner her eye before the collision and it was going “really fast”.

[41]Naomi observed that her father was a very careful driver.

The evidence of Mr Chapman

[42]Mr Bruce Chapman gave evidence for the defendant. He made a statement for the purposes of these proceedings in October 2008, having spoken briefly to the police on the night of the accident. He lives at 2 Orchards Way, which is situated on the corner of Orchards Way and Highfield Lane on the north west (Lordswood) side of the junction. On the evening of 20 March 2008, he was walking through his garden to his garage. As he was doing so, he heard the sound of skidding in Highfield Lane. The sound went on for several seconds and was followed by the noise of a heavy impact (presumably the motorcycle striking the lamp post). Mr Chapman started to go to his gate, whereupon there was a second loud crashing sound (the lamp post falling). He went out of the gate and saw that the motorcycle had collided with the lamp post on the opposite side of Highfield Lane from his house. He said that he had not heard the sound of the motorcycle before the noise of skidding.

[43]In oral evidence, Mr Chapman said that it was notoriously difficult to exit from Orchards Way. When he saw the motorcycle and motorcyclist first, they were situated very near to each other; and he believed that the motorcyclist must have hit the lamp post head on.

The evidence of the police officers

[44]The accident was reported to the police at 22:23 hours. PC Fibbens, principal police investigator, attended the accident scene 13 minutes later at 22:36 hours. By the time he arrived, there were already officers from the local police station present. Both the vehicles involved in the accident had been moved from their original post-accident positions. PC Fibbens said that he spoke to the police officers who were already on the scene. They informed him that the accident had occurred when the defendant was “edging out” of the junction. PC Fibbens was told that the defendant’s view might have been restricted by parked cars. PC Fibbens did not question the defendant or any other witnesses at that stage. He administered a breath test on the defendant and also performed an impairment test designed to reveal the effects of drugs if present in the system. Both tests were negative.

[45]On his return to the police station at about 02:15 hours on 21 March 2008, PC Fibbens completed a collision report, recording information about the accident. On the basis of what he had been told by his colleagues, he recorded that the defendant’s vehicle had “edged out” before the collision occurred.

[46]Mr David Whiting, formerly a forensic collision investigator for Hampshire Constabulary Traffic Department and now retired, arrived at the scene at 22:41 (possibly 21:45) hours, i.e. within about 20-25 minutes of the accident. He noted that the weather was fine and dry, there were no relevant defects to the road and the street lighting was working and illuminating the road satisfactorily.

[47]Mr Whiting prepared a plan of the scene, incorporating his observations. He observed the presence of three cars in the parking bay on the south east (Portswood) side of the junction, to the defendant’s right as he emerged from Orchards Way. He could not, of course, say whether those cars had been present in the same locations at the time of the accident or whether other cars had been parked in the parking bay at that time and had subsequently been moved. Mr Whiting’s evidence was that there were other vehicles parked on both sides of Highfield Lane at the time. However, it seemed to him that the only vehicles relevant to the accident were the three cars already identified. Mr Whiting recorded the position of the three cars on his plan. The first car was parked with its front 17.3 metres from the centre of the junction, the second with its front 28.4 metres from the junction and the third with its front 34 metres from the junction.

[48]Mr Whiting found no marks left by the defendant’s car. However, he found a single wheel skid mark in the north west (Lordswood) bound lane of Highfield Lane to the south east of the junction. The mark was consistent with being created by the locked rear wheel of the motorcycle as a result of the application of emergency braking. The start of the mark was 10.7 metres to the south east (Portswood) side of the centre of the junction with Orchards Way and it extended for a distance of about 4.8 metres. The experts calculated that the mark finished about 6 metres from the centre of the junction.

[49]Mr Whiting also found a second single skid mark, about 8 metres in length, on Highfield Lane to the north west of the junction. It was angled across Highfield Lane leading towards the lamp post with which the claimant eventually collided. That mark was consistent with being made when the claimant was attempting to brake after colliding with the defendant’s car. There was then a gap of about 10 metres with no marks. Mr Whiting also noted intermittent scratch/scuff marks extending over more than 10 metres in the north west (Portswood) bound lane of Highfield Lane. They were consistent with being caused by the front wheel of the motorcycle sliding across the road after it had fallen onto its nearside.

[50]Mr Whiting concluded from the skid marks that, at the time of the impact, the claimant had been travelling on his correct side of the road and approximately in the centre of the north west (Lordswood) bound lane of Highfield Lane. He considered that the point of impact between the motorcycle and the defendant’s car was likely to have been towards the centre of the north west (Lordswood) bound lane between 1 and 2 metres north west of the centre of the junction.

[51]Mr Whiting said in oral evidence that, according to his recollection, the visibility of both the claimant and the defendant would have been partially obscured by cars parked on the south east side of the junction. He suggested that it might have been possible for the defendant to have seen the headlight of the approaching motorcycle between the parked cars or reflecting off those cars. In cross-examination, however, he agreed that, without knowing the strength and angle of adjustment of the motorcycle headlight – and the number and position of the parked vehicles – he could not say whether the motorcycle headlight would or should have been visible to the defendant.

[52]Both vehicles involved in the accident were examined at the scene and subsequently. Neither had any defects which would have contributed to the accident. The lights on both vehicles were capable of being illuminated. The claimant’s motorcycle had road grinding marks on its nearside and damage to the front which was probably attributable to the impact with the lamp post. The defendant’s car had scratches and scuffing across the front nearside of the bumper and valance, caused by the impact with the claimant’s motorcycle.

The expert evidence

[53]Dr Jennings took two series of photographs (numbered 16-24 at TB3/52-60), illustrating the viewpoint of a driver approaching and emerging from the mouth of Orchards Way into Highfield Lane. Photographs 16-19 show the driver’s viewpoint with a line of cars parked right up to within a few feet of the south east side of the junction. Photographs 20-24 depict the driver’s viewpoint with the nearest parked car in the position recorded on Mr Whiting’s plan, i.e. with its front 17.3 metres from the centre of the junction.

[54]The photographs show that, at a point with the front of the emerging vehicle situated 1 metre back from the mouth of the junction, the driver’s view to the south east is largely obscured by the presence of a hedge bordering the pavement of Highfield Lane. As the car moves further forward from that position towards and into the junction, the view along the pavement side of the parked cars to the south east of the junction opens up. However, the extent to which the driver’s view of traffic approaching along Highfield Lane from the south east is restricted will inevitably depend on the number, size and positions of the parked vehicles present in the parking bay.

[55]In their Joint Statement, the experts reflected this fact. They agreed that the precise visibility distance available to the defendant at the time of the accident would have depended upon the path taken by the claimant, the size, shape and position of the cars parked in the parking bay on the defendant’s right and the position of the defendant within the junction. However, the experts were able to reach agreement as to the approximate visibility distance which would have been available to the defendant based on the positions of the three parked cars in the parking bay recorded on the police plan. They agreed that: i) when the front of the defendant’s car was protruding 2 metres into Highfield Lane (at which point the defendant’s viewpoint would have been about 2 metres behind the front of his car, i.e. approximately level with the “Give Way” lines separating Orchards Way from Highfield Lane), the extent of the defendant’s view to the centre of the north west (Lordswood) bound lane of Highfield Lane to his right would have been 29-31 metres; ii) when the front of the defendant’s car was protruding 3 metres into Highfield Lane (the defendant’s viewpoint then being from about 1 metre over the “Give Way” lines), the extent of the defendant’s view to the centre of the north west (Lordswood) bound lane of Highfield Lane to his right would have been 35-42 metres; and iii) the corresponding visibility distances when the defendant’s car was parked at the “Give Way” lines and protruding 1 metre into Highfield Lane would have been 25 metres and 26-27 metres respectively. The experts agreed that, at the moment of impact, the front of the defendant’s car was just over 3 metres into Highfield Lane.

[56]Each of the experts carried out his own assessment of the likely speed of the claimant’s motorcycle as it approached the junction of Highfield Lane with Orchards Way. They agreed that the speed of the motorcycle when it collided with the lamp post was probably about 20-25 mph. From that starting point, they attempted to calculate the rate of deceleration of the motorcycle at the various stages of its progress from a point before the claimant first braked until its impact with the lamp post. They considered its likely deceleration rates(i) during initial braking by the claimant when he saw the defendant’s car;

(ii) during the skid before the motorcycle’s impact with the defendant’s car;

(iii) at the time of impact with the defendant’s car;

(iv) during its travel across Highfield Lane, first upright, and then when sliding on its side; and

(v) at the time of its impact with the kerb, the hedge and the lamp post.

[57]The experts’ calculations were based on a number of assumptions, about which they did not wholly agree. In his Report, Dr Jennings estimated that the minimum speed of the motorcycle’s approach was likely to have been about 36 mph and the maximum speed of approach was likely to have been in the region of 53 mph. Mr Johnston’s view was that the initial approach speed of the motorcycle would have been between 44 and 70 mph.

[58]After discussion, each expert amended his view somewhat to take account of the points made by the other. Dr Jennings’ final view, expressed in the Joint Statement, was that, on a balance of probabilities, the minimum speed at which could the motorcycle could have been travelling at the start of its first skid, was 40 mph. He accepted, however, that its speed could have been greater than the maximum of 53 mph estimated in his Report if it were assumed that deceleration had occurred at points in the motorcycle’s line of travel where there were no skid or slide marks evident on the road. However, he did not consider it likely that the motorcycle’s speed had been as high as 60 mph or more at the start of the first skid mark, or as high as 70 mph before the claimant began to brake at all. Mr Johnston accepted that, on a balance of probabilities, the lower end of the motorcycle’s speed range at the start of the first skid was around 42 mph with the upper end of the range at that time being about 59 mph. The speed of the motorcycle before the claimant first began to brake would, he said, depend on the extent of the deceleration caused by that braking. Mr Johnston believed that the lower end of the range of the motorcycle’s speed at the onset of the braking was about 44 mph and the upper end of the range about 65 mph.

[59]The experts agreed that the claimant’s motorcycle was between 38 and 64 metres from the point of impact with the defendant’s car when the claimant first reacted. They considered that there was a range of possible points along the road where the parties could first have seen each other, although the claimant would have had the opportunity to see the defendant’s car before the defendant was able to see the claimant’s motorcycle.

[60]The experts agreed that there was no physical evidence to identify the perception/reaction time of the defendant. If it were correct that he stopped before impact, then there was no evidence of an undue delay in reaction time. The parties’ cases The claimant’s case

The parties’ cases

[61]Mr Wilson-Smith conceded that, on any view, the claimant was travelling in excess of the speed limit for the road at the time the accident occurred. If he had been travelling at a proper speed, the accident would probably not have happened. Mr Wilson-Smith acknowledged that the claimant must inevitably bear some responsibility for the accident. However, he contended that the defendant bore a significantly greater degree of blame. The claimant was travelling on the major road whereas the defendant was emerging from a minor into a major road, turning to the right across the path of oncoming traffic. In those circumstances, it was encumbent on the defendant to take great care to perform his manoeuvre safely. This was particularly so in view of the restricted view to his right. In the event, he had, Mr Wilson-Smith argued, failed to take proper care when negotiating the junction.

[62]Mr Wilson-Smith relied on the evidence of Mr Young and Miss McMillan that, at they time they last saw the claimant’s motorcycle before the accident, it was accelerating away from them and was making a considerable amount of noise. He referred also to Naomi Nixon’s police interview in which she said that she had heard the motorcycle. He submitted that it was clear that the noise of the approaching motorcycle was there to be heard and that it should have alerted the defendant. It was, he commented, “extraordinary”, if the defendant had been paying proper attention, that he had not heard it.

[63]Mr Wilson-Smith submitted that the defendant’s evidence to the court had been “vague” and “unimpressive”, such that I could not have confidence in it. He pointed out what he submitted were discrepancies in various accounts given by the defendant. In particular, he drew attention to the averment in the defence that the defendant had not attempted to turn right into Highfield Lane, whereas the position of the damage to his car demonstrated that the car must have been at an angle at the time of the impact with the claimant’s motorcycle. He suggested that the defendant’s description of the motorcycle moving in an arc towards his car just before the impact was inconsistent with the path of the skid mark to the south east of the junction and with the experts’ evidence. He also pointed to the difference between the evidence of the defendant and Naomi as to whether the defendant had reversed before or after the impact with the claimant’s motorcycle.

[64]Mr Wilson-Smith submitted that, viewing the evidence as a whole, it was clear that the defendant had failed to keep a proper look-out to his right. He had seen Mr Young’s car approaching and decided that it was too far away to interfere with his manoeuvre. Mr Wilson-Smith criticised that decision because, he said, the defendant could not have properly assessed the speed of Mr Young’s car at that distance. The defendant’s manoeuvre was then delayed by the approach and passing of the purple Jeep. Mr Wilson-Smith said that the defendant then drove out – rather than “edging out”, as he claimed - without looking to his right again before doing so. He covered significantly more than the distance of 3-5 feet that he had suggested in his evidence. By the time that he next looked to his right, the motorcycle was almost upon him and an impact was inevitable. Mr Wilson-Smith said that, if the claimant had been looking to his right, the probabilities were that he would have seen the headlight of the motorcycle between the parked cars or through their windows. He said that the defendant could not have been “edging out” as he claimed. If he had, he would not have had to brake sharply as Naomi had described.

[65]Mr Wilson-Smith argued that the claimant was presented with a significant obstruction in the carriageway and little time to react to it. If Naomi was right that the defendant had reversed before the impact with the claimant’s motorcycle, his car would have presented an even greater obstruction to the claimant.

The defendant’s case

[66]For the defendant, Mr Vincent said that it was clear from the evidence of Mr Young and Miss McMillan that, prior to the accident, the claimant had been driving in an erratic and unsafe manner and at an excessive speed. Mr Young’s estimate of his speed at 50-60 mph was consistent with the defendant’s impression of the claimant’s speed. Mr Vincent accepted that Mr Young and Miss McMillan had been aware of noise from the motorcycle as it overtook them and accelerated away. There was, however, no evidence, he said, that the noise had remained audible when the motorcycle was out of their sight. Their evidence did not go so far as to support a contention that the noise must have been audible to the defendant at the junction. The evidence of Mr Chapman suggested that it was not.

[67]Mr Vincent submitted that, in essence, the defendant’s oral evidence remained as set out in his witness statement. He said that there was nothing to suggest that the defendant was doing anything other than “edging out” into the junction before the impact with the claimant’s motorcycle. That would not be inconsistent with him having braked sharply. It was only when the defendant reached a position where he could see beyond the parked car nearest to him that the motorcycle came into view. Mr Vincent observed that it was not possible to say how many vehicles were parked on the defendant’s right at the time of the accident or exactly where they were parked. The allegation that, if he had looked properly, he could have seen the motorcycle approaching between the parked cars or through their windows was completely unsupported by evidence.

[68]Mr Vincent submitted that there would at all times have been room for the claimant’s motorcycle to pass the defendant’s car whilst remaining in the north west (Lordswood) bound carriageway. If the claimant had been travelling at a safe speed he could have taken appropriate avoiding action.

[69]Mr Vincent argued that there was nothing more the defendant could have done to avoid the accident, which had, he said, occurred wholly as a result of the claimant’s own negligence.

Discussion and conclusions

[70]At the time of the impact with the claimant’s motorcycle, the defendant was attempting to negotiate a junction at which visibility was severely restricted by reason of the presence of parked cars in the parking bay to his right. Whilst it is not possible to say precisely how many cars were parked in the bay and in what positions, it is clear from the evidence of the defendant and from what PC Fibbens was told on his arrival at the scene of the accident that those cars which were present would have restricted the defendant’s view. Faced with that difficulty, it behoved the defendant to exercise particular caution when making his right turn onto Highfield Lane. The issue is whether, in all the circumstances, the claimant has succeeded in establishing, on a balance of probabilities that the defendant failed to exercise reasonable care when carrying out his manoeuvre.

[71]There is no doubt at all that the claimant was not exercising reasonable care. I accept the evidence of Mr Young and Miss McMillan as to his manner of driving before the accident. Mr Young in particular was an impressive witness. He was obviously an observant man who, while driving, took an interest in the road and vehicles around him. The defendant’s actions in “tailgating” Mr Young’s car and driving at an excessive speed and on the wrong side of the road in order to overtake suggests that he was in a hurry and was heedless of risk to himself and to other traffic.

[72]The speed of the claimant’s motorcycle as he approached the junction with Orchards Way is impossible to calculate with any real precision. Much depends on a number of variables, none of which are known. However, having regard to the evidence of Mr Young and the defendant – and the ranges of possible speeds calculated by the experts – I find that, on a balance of probabilities, the claimant was travelling at a speed not less than 50 mph. It is, I consider, quite likely that his speed was in fact a few mph greater than that. However, I do not consider it likely that the claimant’s speed was as much as 60 mph. Apart from any other consideration, I do not believe that, if the claimant had been travelling so fast, it would have been possible for Mr Young (who was travelling at less than 30 mph) to have arrived on the scene in time to have a view of the latter stages of the accident, when the claimant’s motorcycle was veering across Highfield Lane towards the lamp post.

[73]The speed limit for Highfield Lane was 30 mph. A speed limit is the absolute maximum speed for the relevant road. It does not mean that it is safe to drive at that speed irrespective of the road conditions. In the present case, there was a pedestrian crossing 115 metres south east of the junction with Orchards Way, followed by a section of road with cars parked on both sides. There was a junction just to the north west side of the pedestrian crossing, as well as the junction with Orchards Way, the mouth of which was set back and frequently obscured by parked cars. There were bends in the road. The accident happened at night, when visibility would not be as good as during the day.

[74]In the circumstances, I do not consider that it would have been safe for the claimant to travel at the maximum speed limit of 30 mph on the approach to the junction with Orchards Way. He should have been travelling significantly slower and should have been aware of the possibility that traffic might emerge from Orchards Way. He was a local man who would or should have been well aware of the dangers presented by that stretch of Highfield Lane. As it was, the claimant was travelling much faster than the speed limit, at a speed which was, I find, about twice that which would have been appropriate in all the circumstances. In driving at that speed as he approached the junction, I find that the claimant was acting, not just negligently, but recklessly.

[75]I turn now to the defendant’s movements. Contrary to the submissions made on behalf of the claimant, I did not find the defendant’s evidence vague or unimpressive. On the contrary, he struck me as a careful man who was making a genuine attempt to distinguish between what he actually remembered and what he thought (but could not be sure) had happened. It was clear that his memory of events had, in some respects, faded with time. However, he gave a clear account to the police very shortly after the accident. The account which he gave then about his movement had not deviated to any significant extent.

[76]The defendant was clearly surprised that, at the time of the impact with the claimant’s motorcycle, his car was slightly angled to the right, to the extent that the motorcycle hit the front nearside (rather than the front offside) of his car. He told the police that he was “surprised” that the mark of the impact was on the passenger side. He told them also that the motorcyclist “must have turned his handlebars” and that he “wobbled” before the impact. In his witness statement and in oral evidence, the defendant described the motorcycle wobbling and moving in an arc or curve towards his car immediately before the impact. The experts agreed that the first skid mark formed a straight line. Dr Jennings observed that it was virtually parallel to the centre white lines although Mr Johnston described it in his Report as being “angled slightly towards the nearside for north west bound vehicles”. The skid mark ended at a point when the front of the motorcycle would have been about 5 metres (or about ¼ of a second) from the defendant’s car. There would therefore have been little opportunity for the claimant to swerve to any significant extent after the end of the skid mark.

[77]I bear in mind that the incident happened very quickly. The defendant could have got only a fleeting impression of the path of the motorcycle. The fact that his car was at an angle to the motorcycle as it approached may have made it more difficult for him accurately to assess its path. Moreover, it is possible that there was a “wobble” – falling short of a swerve – in the last instant before the impact and that that “wobble” has remained in the defendant’s mind as an abiding impression. Whatever the position, I do not consider that the defendant’s evidence on this matter had the effect of rendering it unreliable in other respects.

[78]In some respects, the defendant’s evidence differed from that of his daughter, Naomi. Where it did, I have no hesitation in preferring that of the defendant. Naomi was able to give only a vague and somewhat incoherent description of what happened at the time of the impact: see, for example, paragraph 38,. It is clear that she was paying no attention to her father’s driving or to the road until the time of the impact or a point very shortly before. Her statement that her father had moved “an inch” into the junction was plainly inaccurate. Her description of the claimant’s motorcycle (or the claimant himself) “flying through the air” must have been wrong, in view of the skid mark going across the road and the fact that the claimant and his motorcycle ended up very close together after colliding with the lamp post. For understandable reasons, the defendant was reticent about labelling his daughter’s evidence as “wrong”. However, I accept his comment that there were a number of inaccuracies in her evidence.

[79]What then of the defendant’s movements? It is clear from the photographs taken by Dr Jennings that, at a point with the front of his vehicle at the “Give Way” lines separating Orchards Way from Highfield Lane and with cars parked in the parking bay to his right, the defendant would have had little or no view of traffic approaching from his right, save for vehicles which were already very close to the junction. Thus, I accept that, in order to obtain a view to his right, it would have been necessary for the defendant to position his car so that its front was over the “Give Way” lines. There would have been no danger in doing that since, unless it was protruding more than about 2 metres into Highfield Lane, the front of his car would have been “shielded” from any traffic approaching from his right by the cars parked in the parking bay.

[80]In oral evidence, the defendant said that, having moved over the “Give Way” lines, he was able to see the “white” car in approximately the same position as the red car in Dr Jennings’ photograph 23 (TB3/59). That photograph was taken to illustrate the viewpoint of a driver whose vehicle was positioned about 2 metres over the “Give Way” lines separating Orchards Way from Highfield Lane. The defendant said that his view was “closer” to that in photograph 22 (TB3/58), which illustrated the viewpoint of a driver whose vehicle was positioned about 1 metre over the “Give Way” lines into Highfield Lane. I find that, on a balance of probabilities, the defendant first came to a halt with the front of his car between 1 and 2 metres (probably about 1.5 metres) into Highfield Lane and that it was from that position that he saw Mr Young’s car approaching. It is clear that he did not at that stage see either the claimant’s motorcycle or the black Honda behind it. They would probably have been obscured behind the parked cars.

[81]I find that, having looked to his right and seen Mr Young’s car, the defendant looked to his left and saw the purple Jeep close to the junction. He told the police that he looked left and “there was a car coming in front of me”. I accept that description and find that the Jeep had passed within a very short time. If it had not, I am satisfied that the defendant, who was plainly aware of the approach of Mr Young’s car, would not have attempted to complete his manoeuvre. Moreover, we know that Mr Young’s car did not in fact reach the junction until after the accident had occurred. Therefore, the Jeep must have passed the junction very shortly after the defendant first saw Mr Young’s car.

[82]I accept the defendant’s evidence that, after the Jeep had passed, he began to “edge out” slowly. I attach no importance to his use of the words “drive out” in his police interview (see paragraph 22 above). It is quite clear that he had already told police officers who had first attended the accident scene that he had been “edging out”. The information given to PC Fibbens on his arrival must have originated from the defendant. It is agreed that, at the time of the impact, the defendant’s car was protruding about 3 metres into Highfield Lane. The short distance that I find he had covered from his stationary position prior to the accident – no more than 1.5 metres or about 5 feet (i.e. consistent with the defendant’s own evidence) – seems to me entirely consistent also with the fact that he had been doing no more than “edging out” slowly.

[83]I am quite satisfied that the defendant did not reverse before the claimant’s motorcycle struck his car. I find that Naomi correctly recalled that he reversed but was confused about the stage at which he did so. In fact, he reversed after the impact with the motorcycle. His decision to do so was entirely understandable and, given that Naomi was not concentrating on his driving before the impact, it is not surprising that she became confused afterwards. I accept the defendant’s evidence that his car was stationary at the time of the impact.

[84]That being the case, the defendant can only have proceeded rather less than 3 metres into Highfield Lane (and rather less than 1.5 metres from his previous stationary position) by the time he first saw the claimant’s motorcycle approaching. It must have taken him a little time to react to the motorcycle’s approach and to brake to a halt. I accept Naomi’s evidence that he braked “really sharply” which is, I consider, in no way inconsistent with his having been edging out very slowly prior to that time.

[85]I find that, as the defendant began to edge out, he was looking to his right. He was, as I find, a generally cautious driver who was well aware of the difficulties of the junction. The purpose of “edging out” was to enable him to gain a better view of the road to his right before completing his manoeuvre. To proceed beyond the parked cars without looking to his right would have been foolhardy in the extreme. I do not accept that that is what the defendant did. As his car moved beyond the line of the parked cars (i.e. beyond 2 metres over the “Give Way” lines), his distance of vision to his right would move from (according to the experts) about 29-31 metres towards about 35-42 metres – a little more if he was leaning forwards slightly. I find that it was at about that point that the claimant’s motorcycle came into his line of vision, whereupon the claimant stopped sharply.

[86]It is probable that the claimant saw the defendant’s car and began to react shortly before the defendant saw the claimant’s motorcycle. As the experts agreed, the claimant would have had the opportunity to see the defendant’s car headlights across the road before seeing the car itself. The defendant’s car would have become visible to the claimant only when it moved beyond the line of parked cars.

[87]There is, I find, no convincing evidence that the defendant should have been alerted to the approach of the claimant’s motorcycle before he first saw it. It is impossible to say with any degree of confidence whether the motorcycle headlight would have been visible between the parked cars, reflected off the parked cars or visible through their windows. As to noise, the motorcycle passed very close to Mr Young’s car and accelerated away. That does not necessarily mean that the noise was or should have been audible to the defendant, either at that time or shortly afterwards. Mr Chapman, who was in his garden nearby, had not heard the noise of the motorcycle’s approach before the sound of it skidding. Since he was outside in his garden, he was more likely to be aware of the noise of the motorcycle’s approach than was the defendant. Whilst I accept that Naomi Nixon was aware of the noise of the motorcycle at some point, I consider that this was probably at the very latest stage before - or at the time of – the impact with the defendant’s car and/or during the events that followed. I am not satisfied that she was aware of the noise before the motorcycle would have been visible to the defendant.

[88]What more could the defendant have done to avoid the collision? In his Report, Dr Jennings suggested that he could have adopted an “alternative strategy” by remaining stationary in a position where he could observe approaching traffic through a gap on the pavement side of the parked cars to his right (i.e. with the front of his vehicle 1-2 metres over the “Give Way” lines into Highfield Lane). He could have watched the gap for a sufficient period to ensure that no moving vehicle was within the obscured length of road to the south east of the junction. He could then have safely emerged and crossed Highfield Lane.

[89]I do not regard that strategy as realistic. Having watched for the required period (it is not clear how long that would be), a driver would then have to check for traffic approaching from his left. If traffic was coming from the left, he would then have to wait for it to pass and repeat the exercise of watching the gap to the right. If this was not done, he would run the risk of missing a vehicle which had passed the gap whilst he had been looking to his left. If cars were passing regularly from his left, the whole manoeuvre could take a very long time. Moreover, it would not take account of vehicles that might have emerged from a house or a parking space in the obscured area. It would not be safe for the driver, having watched the gap for the requisite time and then looked left, to then drive straight across the road, confident that no traffic could be approaching from his right. I certainly do not consider that a failure to adopt the “alternative strategy” amounted to a lack of reasonable care. Indeed, I can see that, in other circumstances, a driver may be criticised for adopting that strategy.

[90]The agreed evidence of the experts was that the claimant’s motorcycle was likely to have been between 38 and 61 metres south east of the impact point at the time when the claimant first began to react to the presence of the defendant’s motorcycle. Mr Johnston’s unchallenged evidence was that, had the claimant’s approach speed been 30 mph, the claimant could have stopped within 28 metres, i.e. well short of the point of impact with the defendant’s car, without the need for emergency braking. Alternatively, there may have been time for the defendant’s car to complete its manoeuvre before the claimant’s motorcycle reached the impact spot. Moreover, the remaining width of the north west (Lordswood) bound lane between the front of defendant’s car, and the centre of Highfield Lane would have been 2 metres or more, giving ample room for the motorcycle to pass in front of the defendant’s car whilst remaining in its correct lane.

[91]The defendant took all reasonable care when performing his manoeuvre. The precautions he took would have been sufficient to ensure the safety of vehicles being driven along Highfield Lane in a reasonably prudent manner. The accident occurred because of the claimant’s failure to drive in such a manner. Had he done so, he would have had ample time to stop before the impact or to steer around the front of the defendant’s car as it was stationary in Highfield Lane.

[92]The accident had tragic consequences for the claimant which must naturally attract sympathy. Nevertheless, his claim must fail for the reasons I have set out.