Buswell v Symes & Anor [2015] EWHC 1379 (QB)

[2015] EWHC 1379 (QB)Case No HQ14X01014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 May 2015
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
WARWICK BUSWELLClaimant(1) ROBERT SYMESDefendants(2) THE MOTOR INSURERS BUREAUDefendant
Mr John Foy QC (instructed by Trethowans LLP) for ClaimantThe First Defendant was unrepresentedMs Nina Goolamali (instructed by BLM) for Second DefendantHearing Hearing dates: 5-7 May 2015
JudgmentMr Justice Supperstone :Introduction
[1]At about 11am on Sunday 24 July 2011 a collision occurred on the B3399 Newport Road between a Yamaha motorcycle owned and ridden by the Claimant and a New Holland T8080 tractor and Gurak 2 axle trailer driven by the First Defendant. The First Defendant was executing a right-hand turn from a field known as Hanging Prospect (“Field A”) onto the B3399 when the Claimant’s motorcycle proceeding east along the road collided with the tractor.[2]The Claimant claims damages for the injuries, loss and damage he sustained.[3]This trial is concerned with liability only.

The Evidence

[4]The B3399 Newport Road is a rural road. It has a speed limit of 60 miles per hour. It is regularly used by slow moving agricultural vehicles, in particular in the vicinity of Tapnell Dump which is approximately half a mile from the accident scene.[5]At all material times visibility was good and the road surface was dry.[6]The Claimant, aged 40 at the time, suffered severe injuries in the accident including a head injury. As a result of his injuries he has no recollection of the accident. The last thing he can remember from before the accident is going out with his wife and some friends the previous evening.[7]He is an experienced motorcycle rider. He said he was a safe rider and never raced on the road.[8]He has been told that on the day of the accident he had gone out early for a ride on his bike and met up with a group of friends, including Mr Warren Godfrey, for breakfast before coming back home to prepare for a track day later in the week. He said that this is typical of what he used to do at weekends.[9]Mr Godfrey (who’s date of birth is 25 May 1963) confirmed that he and the Claimant, who are good friends, used to go out on their bicycles together. He said that he too was an experienced rider.[10]When the accident occurred he was riding his motorcycle behind the Claimant. He was also involved in the accident and sustained some injuries. He too has brought a claim against the First Defendant. He has agreed to be bound by the findings of fact in the present claim.[11]Mr Godfrey said that they were travelling in single file along the road, the Claimant in front of him. They had overtaken a tractor and a car, the car having overtaken the tractor. He said that when they overtook the car they were not going much above 60mph and not more than about 70mph. They then came to a slight bend in the road when they slowed down a bit. The road then goes up a hill. He said there was no visibility over the brow of the hill until you get near the top and can then see down the other side. He estimated that he was travelling about 60mph when he got near the top of the hill. He said that the Claimant was going at a similar speed.[12]Mr Godfrey said that the Claimant was in front of him as they went up the hill. As the Claimant reached the brow of the hill he saw the Claimant’s brake light suddenly come on. This was his first warning that something was happening. In response he also braked and slowed down. As he came over the brow of the hill he saw a large tractor and trailer in the road. The tractor was pulling out from the left-hand side and was across the road, blocking the carriageways. As soon as he saw the tractor he braked hard. He tried to steer to the left to avoid the tractor but the trailer that the tractor was pulling also blocked the verge. He went onto the grass and lost control. His bike slid under the trailer between the wheels and came out the other side.[13]Mr Godfrey said that he blacked out when he hit the ground but he did not think he was out very long because he was able to get to his feet and walk round to see what was happening with the Claimant.[14]Mr Godfrey said that he spoke to the tractor driver who told him that he was an ex-biker. The tractor driver said that as he was turning out into the road he thought to himself that he hoped no bikes were coming along the road whilst he was turning. He said that he tried to get some speed up so that he could turn quicker but he could not get any speed up whilst turning. Mr Godfrey said he did not understand the tractor driver to be accepting blame; he was just concerned.[15]Some time after the accident Mr Godfrey returned to the location. He said he noticed a number of things. The turning on the left-hand side of the road that the tractor was coming out of was not a side road nor was it a gravel track. It was really just a hole in the hedge, a grassy area from the fields. Mr Godfrey said that he knew this road extremely well and had been along it very many times. He had never noticed the grassy turning before.[16]Mr Godfrey said that he and the Claimant were definitely not racing.[17]The Claimant was familiar with this stretch of the road. He used this stretch of the B3399 almost every Sunday through the summer since he moved to the Isle of Wight in 2003. He described it as very much a farming area and knew the road was used by agricultural vehicles, including tractors. He had never noticed the exit from where the tractor had emerged before. There is a “slow” sign before the bend, which he thought was for the bend. He said one should slow to about 50mph. He said one cannot see over the brow of the hill but you do not expect anything to be over there. He said he would be going up the hill at 40-50mph, having shut the throttle off and letting the bike roll as it was going up the hill. That would make it easier to brake, if necessary. The Claimant said that any speed over 60 would be fast and 63mph would be too fast. He said 63mph is obviously not a safe speed.[18]Mr Godfrey said that he would slow to about 50mph to take the bend. He would then continue at that speed or increase a bit, going up to the top of the hill at about 55-60mph. With hindsight he accepted that there is a hazard over any brow of a hill. There were many hazards which included there being something in the road, a parked car and gravel. He said that 45mph would be a safe speed to go over the brow of the hill. He just did not think there would be anything over the brow. He took a risk, but not a big risk.[19]If he had known there was an exit from the field Mr Godfrey said that would have affected his speed as he would have known that there was a hazard or something possibly pulling out from the field.[20]Mr Reed was driving the car that was overtaken by the Claimant and Mr Godfrey. He is very familiar with this road. He estimated his speed at about 55-60mph when they overtook. He then followed behind the motorcyclists. He slowed down to 40-45mph when he went up the hill. He said he was not sure why he slowed down because normally he would actually have driven up the hill at quite a reasonable pace, nearer to the speed limit of 60mph. However on that day he said fortunately he was going slower.[21]As he came over the brow of the hill at about 40mph he said he was suddenly confronted with the tractor and a trailer across the road and saw a motorcyclist lying on the road in front of the tractor’s wheel. He immediately braked hard and came to a stop a short distance (7-10ft) from the tractor.[22]Mr Reed said that from the way the motorcyclists had been driving he thought that they were experienced riders, not “boy racers” or doing anything that concerned him.[23]He too said that prior to the accident he had never been aware of there being a turning out from the fields at the point that the tractor was joining the road.[24]Mr Symes, the First Defendant, is a self-employed farm contractor, who on the morning of the accident was undertaking come contract work, forage harvesting, for Turney’s Farming at East Afton Farm. This involved collecting and hauling grass silage from the harvester and hauling it back to the clamp at the farm.[25]The tractor he was driving was owned by Langmead Farms Ltd from whom he leases five tractors and one telehandler on an annual basis. He arranges the appropriate insurance for these vehicles, and other agricultural vehicles. However due to “a clerical oversight” this particular vehicle did not have valid insurance at the time of the accident, for which he accepts responsibility. He was issued with a fixed penalty notice for driving without insurance.[26]Mr Symes said that he drove the tractor towards the road with the intention of leaving the field and turning right towards Freshwater. Shortly before he reached the road he switched on the tractor’s twin amber beacons which are set approximately 4m above ground level. They were switched on and flashing at the time of the collision. The track from the field runs 90 degrees towards the Newport Road, the view of which is un-obscured. As you get nearer the road the track bends to the right slightly so that the actual exit is approximately 45 degrees to the Newport Road facing in the direction of Freshwater. The exit from the field is simply a gap between a wire fence and hedgerow. He said the exit was frequently used and there is a clearly defined track.[27]Mr Symes said that as he left the exit he was moving very slowly and at no more than 4-5mph. The front of his tractor was just about in the middle of the road when a motorcycle came over the brow of the hill at speed. He jammed on his brakes and came to an immediate stop. He said that “in a split second” the motorcycle hit the tractor’s fuel tank in front of the back wheel. Almost immediately after, a second motorcyclist came off his machine, sliding along the road and under the trailer. He said that he could not have done anything to have avoided the accident. It was caused solely by the speed of the motorcyclists.[28]In response to an allegation of negligence made against him that he should have used an alternative access point to and from the field, Mr Symes said in his witness statement made on 7 October 2014 as follows:
“31. … This was not an option. There was, and still remains, no alternative access to or from the field. 32. Specifically, it is alleged that I should have used an access point at the rear of the field onto Broad Lane, rather than the Newport Road access. There is no access point. 33. At the time of the accident the perimeter of the field was fenced off by barbed wire and the entrance/exit from the Newport Road was the only access. This remains the case. 34. If I was to exit onto Broad Lane as alleged, not only would I have to remove several sections of barb wire fencing owned by the farm, but once done so it would involve driving the large tractor and heavily loaded trailer over a grass bank which is raised from the road. 35. I have seen and agree with the statement of James Knight which exhibits several recent photographs showing the field adjacent to Broad Lane, the fence and the bank. Broad Lane, the fence and the bank have changed little since the accident. 36. Even if I could have removed the fence, which I couldn’t, the narrow width of Broad Lane coupled with the width of the tractor and loaded trailer would mean that I would need to approach at a very acute angle. Any attempt to drive off the field and down the grass bank at such an angle would put the tractor and, more likely the trailer, at risk of damage or may well cause the trailer to topple over, especially when loaded. 37. In addition, at places along Broad Lane there is a trench on the opposite side of the road which would also have presented a further risk. 38. Even if it was safe, practical and possible to have driven the tractor and trailer onto Broad Lane, which I deny, the tractor and trailer would have taken up almost the entire width of the two-way road. 39. Finally, even if I could have practically and safely reached the junction of Broad Lane with Newport Road, which I deny, the junction has very poor visibility to the right and presents a greater hazard for slower moving agricultural vehicles. Visibility to the right is severely restricted by a fence, with the road bending uphill and slightly to the right. Newport Road has a 60mph limit and vehicles approaching from the right of Broad Lane travel downhill with no sight of the junction. 40. The fence remains in place and the entrance/exit used remains the only access to this day. 41. I had no alternative other than to use the entrance/exit that I did. … 46. I have used this exit without incident on many occasions and I am therefore very familiar with it. In fact I have worked in this field for the last 10 years or so.”
[29]In a second statement dated 23 April 2015 Mr Symes states:
“2. I refer to paragraphs 33, 34, 35, 36 and 40 of my statement dated 7 October 2014 and specifically to the comments made regarding a fence separating the northern edge of the field in which I was working with Broad Lane, referred to as Field A. 3. Prior to the accident, I had not worked in that field for at least two years. I’m not always invited to be part of the foraging team but I have worked in that field about half a dozen times before. … 7. As I have previously stated, I exited the field at the same point that I had entered, where it meets the B3399. Having used it before and not considered it dangerous, there was no reason for me to have thought differently and no reason for me to have considered circumnavigating the field for an alternative access when I believed no other access existed. 8. Field A and the fields around it are typically bordered by wire fencing and I had assumed that the Northern Edge was also. Since speaking with the farm manager, Daren Moore, I have learned that this was not the case. There was in any event a raised grass bank making any potential exit with a tractor and loaded trailer dangerous. 9. I therefore accept that I was mistaken that there was a fence at the Northern Edge of Field A. 10. I must also accept that I have previously incorrectly identified the field referenced at paragraph 35 of my first statement. Having now seen an aerial photograph of the fields, I am able to correctly identify Field A. 11. I maintain that I did not consider the exit used by me at the time of the accident dangerous.”
[30]Mr Symes was asked about the inconsistency between paragraph 46 in his first statement and paragraph 3 in his second statement. He said that he had visited that field (Field A) about half a dozen times in more than ten years.[31]He said the tractor he was driving on the day of the accident was powerful. He agreed that when moving right onto the road it would block the whole road very briefly. He said it took about 3-4 seconds from the edge of the field to where the tractor stopped. He accepted there was still some way to go before he could complete the turn. However he said it did not occur to him that there was a hazard with cars coming over the brow of the hill. He estimated that his view to the right to the brow of the hill was approximately 75m from the field exit. He remembered talking to Mr Godfrey but he had not said anything about thinking about bikes coming down the road. He did not think there was any danger at all in doing what he did. He did not see the need for a banksman as he did not deem the exit he used to be dangerous.[32]Asked about how he could have been confused about the fencing, he said that when he last went to Field A a few weeks back, which was the first time for some time, it was clear there was no barbed wire fence. It was a surprise to him. It was a Dairy Farm and you would expect fencing.[33]He now agreed that there were other exits from Field B, but he did not accept that the other options put to him were safer; if any were, it was only marginally so.[34]Mr Hayward, aged 20 at the time, was a farm worker. He was employed by Turney’s Farming between 2008 and 2014. On the morning of the accident he was driving a tractor and trailer, travelling at approximately 20-30mph. He was very familiar with this road. He said that he had just turned out of the Tapnell Dump gates, when he became aware of two big powerful-looking and sounding motorcycles passing him very quickly on his off side. He estimated they were travelling at a speed well in excess of the 60mph speed limit and still accelerating. He said the motorcyclists appeared to be racing one another. He described their riding as dangerous due to the close proximity that they were riding to each other, their speed and the approaching hazards in the road.[35]At paragraphs 51-56 of his first witness statement dated 1 October 2014 Mr Hayward gives very similar evidence to the evidence of Mr Symes at paragraphs 31-41 of his first witness statement. Mr Hayward says that at the time of the accident Field A was fenced off by barbed wire and the entrance/exit from the Newport Road was the only access. He also says (at para 54) that the fence remains in place and the entrance/exit used remains the only access. In his second witness statement made on 23 April 2015 Mr Hayward says, as does Mr Symes in his second witness statement, that he was mistaken about this. He states (at para 5) that the fields in the area are bordered by wire fencing and he had incorrectly assumed that the northern edge of Field A where it meets Broad Lane was also bordered by a wire fence.[36]Police Constable Gunby was the forensic investigating officer on the scene. He said the complete cab of the tractor would have been visible to the Claimant from 93.6m. He stated that if the motorcycles were being ridden at a constant 60mph, the speed limit, it would take approximately 3.5 seconds to cover the 93.6m of available view afforded to the tractor driver.[37]Police Constable Turner was the senior investigating officer on the scene. He said that Newport Road passes through an area of busy farm land. It is common to see farm vehicles working in the area.[38]He himself is a keen motorcyclist. He knows that the Newport Road is a favourite for motorcyclists, particularly on a Sunday. He is aware of numerous complaints about speeding by motorcyclists along the Newport Road.[39]Dr Walsh and Mr Parkin gave expert evidence for the Claimant and the Second Defendant respectively. Dr Walsh’s report is dated 12 November 2014 and Mr Parkin’s report is dated 6 November 2012. They produced a Joint Statement dated 15 January 2015 and a Second Joint Statement dated 17 April 2015.[40]On the basis of the evidence of PC Gunby that the Claimant could see the cab from a distance of 93.6m (see para 36 above), and the parties agreeing that that was a fair measurement to adopt, Dr Walsh re-calculated the likely speed of the Claimant’s motorcycle when he came over the brow of the hill as being 65mph. Mr Parkin, on the evidence he had heard during the course of the trial, calculated the likely speed as being a little in excess of 70mph.[41]The main issue between the experts which accounts for the difference between these two estimates of speed relates to what has been described as “rise time”. Dr Walsh, relying on the Kasanicky research, suggests that it takes quite a long time for full braking to take effect after braking has commenced. Dr Walsh deals with this in his report at paragraphs 59 and 60:
“59. Kasanicky et al have published a series of test results relating to the braking of modern motorcycles under emergency braking conditions. In addition to measuring the average deceleration rates, the average delay in the braking effect was also measured. This is a delay which occurs not only through the process of pressure building up in the hydraulic braking system on the motorcycle, but also because the front forks initially compress, and it is only when they have reached an equilibrium position that there is a full transfer of the braking force. 60. Of eight tests of modern motorcycles the average delay was 0.7 seconds. The range was between 0.496 seconds and 1.01 seconds. The delay in the efficacy of the brakes on motorcycles is often referred to as the rise time, and it is the period where, after application of the brakes, the weight shifts forward onto the forks. As this happens, the braking efficacy rises to the maximum after the rise time is complete.”
[42]Mr Parkin’s response to this point is set out at paragraph 23 of the Joint Statement, in particular at sub-paragraph (b):
“Research on reaction times has been based on car drivers. The reaction time for car drivers including the times for perception, decision, and movement of the foot from the accelerator to the brake, followed by application of the brake. Motorcycle riders have the same perception time, decision times, and application of the brake time, but they do not need to move from one part of the machine to the other before applying the brake. Their hand is already on the brake and therefore this represents a significant amount of saved time compared with the driver of a car. In Mr Parkin’s opinion that amount of time saving is probably about equivalent to the time that the front forks take to sink and for force to transfer for braking. In effect, the delay in braking effect should probably be ignored and considered to exist within the standard reaction time (as it generally is by other accident reconstruction experts).”
[43]By the use of the word “ignored” what Mr Parkin intended to convey is that one cancels out the other.[44]Mr Parkin said that he had never previously come across reference to the Kasanicky research on this issue. He noted that page 159 of the research document relied upon by Dr Walsh states:
“All the used motorcycles were rented from private owners, with an average wearing of all components, especially of tyres and brakes. The testing rider was a 34 years old male with seven years of experience, in total about 60,000km, with no experience in motorcycle sports. Before the actual experiments the rider performed a 2km long test ride with repeated braking.”
[45]Mr Parkin observed it must therefore be borne in mind that the research is based on a single rider with limited experience, riding rented machines that he would be concerned not to damage. The delay in braking effect of 1.23 recorded for the Kawasaki motorcycle is an astonishingly long time. By contrast the Claimant is a very experienced motorcyclist, riding his own machine. Mr Parkin said that from his experience of in excess of 25 years motorcycles are not known to take significantly longer than cars to stop in brake tests.[46]At paragraph 11.5 of his report Mr Parkin sets out stopping distances from different speeds (the ranges incorporating a reaction time of 1.0 to 1.5 seconds). “(1) Total stopping distance from 60mph: 75.7 to 89.1m (9.9 to 23.3m short of the point of impact). (2) Total stopping distance from 55mph: 65.7 to 78.0m (21.0 to 33.3m short of the point of impact). (3) Total stopping distance from 50mph: 56.3 to 67.5m (31.5 to 42.7m short of the point of impact).”

Findings of Fact

[47]I find the evidence of Mr Symes to be unsatisfactory in material respects: i) In his first witness statement (at para 46) he said that he had used this exit without incident on many occasions and that he had worked in this field (Field A) for the last ten years or so. In his second statement (at para 3) he said that prior to the accident he had not worked in that field for at least two years, but that he had worked in it about half a dozen times before. I agree with the observation of Mr John Foy QC, for the Claimant, that Mr Symes appears to change his tune depending on the context. The first statement was made in the context of showing that the exit was safe; the second statement was made in the context of showing that he did not know about the fencing. ii) Mr Symes said that he did not think there was any danger at all in driving his tractor and trailer onto the road (see para 31 above). However in his first witness statement (at para 49) he said that he approached the exit very slowly, at a speed slow enough to stop if traffic appeared over the brow of the hill. This suggests that he was being very careful because he appreciated the potential risk. iii) This appreciation is consistent with the statement that Mr Godfrey said he made to him that he thought to himself that he hoped no bikes were coming along the road whilst he was turning (see para 14 above). I reject Mr Symes denial that he said this. iv) Mr Symes stated repeatedly at paragraphs 31-41 in his first witness statement that there was no alternative access to or from the field in which he was working. That is plainly not correct, as he now accepts. v) In his first witness statement he stated, again repeatedly, that Field A was fenced off by barbed wire at the time and that this remained the case when he made his statement on 7 October 2014. This was not so at the time of the accident. The Google map shows that there was no fencing in 2009. Mr Symes now accepts there was no fencing at the time of the accident or when he made his first statement, nor has there been since that time. vi) His excuses for not using the alternative exits, if he had wished to do so, are not supported by the evidence:(a) he could have taken the north exit from Field A onto Broad Lane and turned left towards the farm;(b) he could have gone out the north exit from Field A and turned right and down towards the junction. Mr Foy accepts there is a limited restricted view to the right when coming out of Broad Lane, but this is a designated junction with a warning sign and therefore less of a risk than the exit he used;(c) there are three exits from Field B. He could have gone into Field B through the gate from Field A. The three exits are 62m, 206m and 334m west of where the accident occurred and therefore posed less of a risk than the exit he used. Mr Symes said that he was concerned about driving over the crops in Field B, however he later accepted that Field B is grazing land and he could therefore have used those exits. It was not part of Mr Symes’ case that he was in a hurry and that there would be delay in taking any of the other exits. It was his case that the exit he took was safe and therefore he had no need to consider other exits.[48]I consider that that Mr Symes exaggerated the problems that he said existed in driving the tractor and trailer out of other exits (if he had thought it necessary to do so). I am not satisfied that there was any real difficulty in driving the tractor and trailer over the various grass verges.[49]Mr Symes is in his mid-fifties. He has lived and worked in the area for many years. He has run his farm contracting firm since 1977 and has over 45 years’ experience of driving tractors and other such vehicles. It is difficult to understand how he could have made so many mistakes about the fencing and layout of the field in which he was working on the day of the accident. His statements in his first witness statement that “there was, and still remains, no alternative access to or from the field” (para 31) and that the perimeter of the field was fenced off by barbed wire and “this remains the case” (para 33, and see para 40) suggest that he had checked since the accident what the position was and that it had not changed. This was plainly incorrect.[50]Paragraph 35 of his first witness statement referring to the statement of Mr Knight and the photographs exhibited thereto suggests that the photographs are of the field in which he was working. However that is not so. In the foreground is Field B (albeit that Field A can be seen in some photographs in the background).[51]I am driven to the conclusion that Mr Symes appreciated the risks that he was taking when he drove his tractor and trailer out onto the B3399 from the exit he used. When he was just about in the middle of the road he saw a motorcycle come over the brow of the hill at speed, he jammed on his brakes and “in a split second” the motorcycle hit his tractor (see his first witness statement at paras 52-54; and see the evidence of PC Gunby at para 36 above as to the time it would take to cover the distance of available view afforded to the Claimant). He knew motorcyclists used that road, in particular on Sundays in summer. I accept Mr Foy’s submission that either he foresaw the danger and took the risk or he did not foresee it when he should have done. Whichever it was he was negligent.[52]In his closing submissions Mr Foy accepted, in the light of the evidence, that the Claimant was contributorily negligent. He submitted that the Claimant and the First Defendant were equally to blame. Ms Nina Goolamali, for the Second Defendant, in her submissions on behalf of both Defendants, contended that, if contrary to her primary submission, the First Defendant was negligent, then the Claimant was contributorily negligent to the extent of 80%.[53]I reject the suggestion that the Claimant and Mr Godfrey were racing one another, but in my view the Claimant was driving much too fast. On the evidence of his own expert he was driving at 65mph. The range of speed advanced in the expert evidence is between 65 and a little in excess of 70mph. On the issue of “rise time” I prefer the evidence of Mr Parkin to that of Dr Walsh for the reasons put forward by Mr Parkin (see paras 42-45 above). I consider the likely speed of the Claimant when he came over the brow of the hill to be closer to 70 than 65mph.[54]The dangers associated with driving at speed over a blind summit are obvious. Both the Claimant and Mr Godfrey knew, or should have appreciated, the hazards. I do not accept Mr Godfrey’s evidence that he was not taking a big risk. In my view he and the Claimant were running a very great risk of colliding with anything that may have been in the road over the hill. I accept that they did not know of the exit from which the First Defendant’s tractor emerged, but as Jackson LJ observed in Hames v Ferguson and others [2008] EWCA Civ 1268 (at para 17) “When driving along country roads in the summer, it is not unusual to encounter slow-moving agricultural vehicles driving into or out of fields”. (See also Arnott v Sprake and another [2001] EWCA Civ 341, per Kay LJ at paras 36 and 38; and Lambert v Jenny Natasha Clayton (Administratrix of the Estate of Paul Michael Clayton, Deceased) [2009] EWCA Civ 237, per Smith LJ at para 33).[55]In my judgment the Claimant was at fault in driving much too fast under the circumstances. I consider that he was two-thirds to blame for the collision that occurred.

Conclusion

[56]For the reasons that I have given, in my judgment,(1) the collision was caused by the First Defendant’s negligence,(2) for which the Claimant was two-thirds contributorily negligent.