McPherson v Smith & Ors [2018] EWHC 1433 (QB)

Case No HQ16P03354[2018] EWHC 1433 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 June 2018
Before
HIS HONOUR JUDGE ROBINSONsitting as a Judge of the High Court
Between
Gregory Stephen McPhersonClaimant(1) James Edward SmithDefendants(2) Rosedale Funeral Home LimitedDefendant(3) Markerstudy Insurance Company LimitedDefendant
Gordon Bebb QC and Benjamin Bradley (instructed by Stewarts Law LLP) for ClaimantNeil Block QC (instructed by Ellisons Solicitors) for DefendantsHearing Hearing dates: 5-7 June 2018
JudgmentHis Honour Judge Robinson:Introduction
[1]The Claimant claims damages for personal injuries and other losses arising out of a road traffic accident on 9 June 2014. A split trial was ordered. This is the judgment following the trial on liability. I must first acknowledge the assistance I have received from Counsel on both sides, Mr Bebb QC leading Mr Bradley for the Claimant and Mr Block QC for all of the Defendants. I must also say how useful I have found the live transcription service provided by the Claimant’s solicitors.[2]The Claimant was born on 17 October 1989. The collision occurred on Norwich Road, Wymondham, Norfolk. This road runs roughly east to west. The Claimant was riding his blue Yamaha YZF-R6 600cc motorcycle registration number KP02 UDT westward towards the town of Wymondham. The First Defendant was driving a black Vauxhall Insignia motor car registration number AU13 HNY in the opposite direction. He was doing so in the course of his employment with the Second Defendant. The Third Defendants are the relevant insurers. Henceforth I shall refer to the First Defendant simply as “the Defendant” unless the context requires otherwise.[3]The Defendant was intending to visit Sutherlands care home in order to drop off an invitation. He had not visited the care home before. To gain access to the private drive leading to it, he had to execute a right turn. As he was in the process of doing so, the Claimant rode his motorcycle into collision with the front offside of the Vauxhall motor car. He sustained extremely serious life changing injuries such that he is now a permanent wheelchair user. The other vehicle which features in this case is a double decker bus being driven in the same direction as the Claimant and which the Claimant overtook very shortly before the collision occurred. The collision occurred at about 2.35pm. The weather was fine – it was a clear bright day.[4]The brief description of the collision belies the complexity of the issues in this case.

Evidence

[5]I have had regard to the following witness evidence on behalf of the Claimant:(1) The Claimant, written and oral;(2) Mr C P Dawson, Expert Collision Investigator, written and oral;[6]I have had regard to the following witness evidence on behalf of the Defendant:(1) The Defendant, written and oral;(2) Natalie Anderson-Crowe, driver of the double decker bus, written and oral;(3) Daniel Mayers, top deck passenger on the double decker bus, written and oral;(4) PC James Hutchin, author of the Norfolk Constabulary Forensic Collision Investigation Report prepared in relation to the collision, written and oral;(5) Michael Craven-Romain, driver of a motor car who had observed the riding of the Claimant before he overtook the bus, written only;(6) Robert Hubbard, who observed from his front garden the riding of the Claimant before he overtook the bus, written only;(7) Ian John Harrison, driver of a motor car who had observed the riding of the Claimant before he overtook the bus, written only;(8) Simon Hall, expert collision investigator, written and oral.[7]I have also viewed certain CCTV footage from cameras located within the bus and had regard to materials referred to within the trial bundles. In making findings of fact I have had regard to the entirety of the evidence.

The Collision in More Detail

[8]Much of the evidence is not in dispute. The Claimant had been riding motorcycles from some years. On the day of the accident he was riding home from work as an oil salesman. There came a time when he was approaching the bus. I shall deal with his riding before this point in due course. The bus had stopped at a bus stop, but it had begun to move off when the Claimant commenced his overtaking manoeuvre. He overtook the bus at great speed – far in excess of the 30mph limit applicable to the road. For a distance he continued on what was to him the wrong side of the road.[9]At the same time, the Defendant was driving the Vauxhall towards the Claimant. The Defendant had not visited the care home before. He was looking for the turning to his offside. He located it. Whether or not the Defendant indicated his intention to execute the right turn is a matter of dispute which I shall have to resolve in due course. At all events, he began his right turn and crossed the centre white lines into his offside carriageway. He had seen the bus.[10]At a point about 17 metres from the point of impact, the Claimant’s motorcycle began to cross back into the Claimant’s correct carriageway. It is at this point that a tyre mark begins as a result of the heavy application of brakes by the Claimant. The mark runs diagonally across the carriageway ending when the motorcycle collided with the Vauxhall. The Claimant was flung from his motorcycle, bounced off two parked cars and landed on the footway.

Expert Evidence

[11]There is a large measure of agreement in the expert evidence. In part this has been possible because of the availability of CCTV footage taken from cameras located in and on the bus. I have seen some of that footage.[12]From the footage the experts have identified a drain cover which is 142 metres from the impact point. By using the footage Mr Dawson has calculated the average speed of the Claimant from the drain cover to the start of the tyre mark is 69mph. Mr Hall essentially agrees. He says: “not in excess of 69 mph” - see paragraph 5.7 of the joint statement.[13]Both experts agreed that the speed of the Vauxhall at point of impact was about 7 mph. Building on that, Mr Dawson thought the speed of the motorcycle at the point of impact was within the range 30 to 46 mph. Mr Hall thought the impact speed was 54 mph based upon an average speed of 64mph at the commencement of the tyre mark. Mr Dawson thought the speed at the commencement of the tyre mark was in the region of 45 to 57 mph. In the context of this case, the difference between the experts on these issues is of no consequence.[14]Given that 69 mph is an average speed, and that the speed at the commencement of the tyre mark was lower than 69 mph, it necessarily follows that the speed of the motorcycle at the position of the drain would have been higher than 69 mph. Mr Block in closing submissions submitted that it may have been 80 mph. It may have been, but I am unable to come to a finding, not least because the experts could not give a firm suggestion either, although Mr Dawson mentioned 72 to 78 mph as a possibility. The Claimant said that after he had overtaken the bus he throttled back, and this explains the reduction in speed at the point of the tyre mark. I accept that evidence. It is important to note that the Claimant did not commence active braking until the start of the tyre mark.[15]The likely time taken by the Defendant to respond to an unexpected event (reaction time) is agreed to be between 0.9 to 1.5 seconds, which is “generally accepted as the norm” – see paragraph 7.2 of the joint statement.[16]At paragraph 8.7 of the joint statement the experts agree that it is likely that the Claimant was between 40 and 65 metres away from the Vauxhall when the Defendant began to execute his right turn.[17]It is clear from the photographs and from the CCTV footage that Norwich Road is straight with only a slight bend which has no effect upon the sight lines of either the Claimant or of the Defendant.[18]The Defendant says in his witness statement that before he commenced his turn he saw the bus. He said:
“This was at the bus stop and may have been pulling out from behind the parked cars on the right.”
Earlier he had described the bus as being about 50 to 100 metres in front of him, but having regard to the measurements undertaken by the experts, it must have been at least 142 metres away.[19]Of perhaps more significance, Mr Dawson is of the view that that there was mutual visibility (or rather potential mutual visibility) between the Claimant and the Defendant for a period of 4 seconds before impact. Mr Hall does not expressly comment upon the 4 second period, but agrees that “if [the Defendant] had recognised the speed and presence of the approaching Yamaha in the 2 seconds prior to commencing his turn, or at any point prior to this, he could have avoided the collision by not turning” – see paragraph 12.3 of the joint statement. However, given that the Defendant could see the bus, it seems to me that the Claimant was visible and “there to be seen” as it has been put, so soon as he was clear of the bus following his overtaking manoeuvre. This distance was put at about 131 metres from the likely location of the Defendant before he began to turn.[20]In cross-examination Mr Dawson accepted that the Defendant would have to look ahead, see the motor cycle, assess the speed of the motorcycle, and consider that there is a real risk that if the Defendant attempted to turn right, there could be a collision. He also agreed with the proposition that to avoid such a collision the Defendant must do a full emergency braking procedure. However, as was later clarified, if the braking commenced before the turn had been initiated, the Defendant would be braking in a straight line on his correct side of the road. In my judgment, emergency braking would only be necessary if braking commenced after the turn had commenced.[21]There appears to be an issue between the experts as to whether the dual headlamps of the motorcycle were illuminated during the period when there was potential mutual visibility. The evidence for and against comes from three sources.[22]The first source is the CCTV footage. Mr Hall is of the opinion that the headlamps cannot be seen to be illuminated in the footage. Mr Dawson explains that away by reference to CCTV being a poor indicator of the presence of bright lighting on account of factors such as the presence of sunlight and reflections.[23]The second source is the setting of the lighting switch on the motorcycle post-impact. The switch is a sliding switch on the left handlebar. The left most setting is for the headlamps. Centre position is side lights. Rightmost position is off. On the right handlebar is a rocker switch to select full beam or dipped beam. Examination of the slider switch after the collision showed it to be in the centre position for sidelights. The Claimant’s evidence was that he always rode on dipped headlights. He suggested that the force of the impact may have caused the slider switch to be moved out of its original position.[24]The third source derives from examination of the headlamp bulbs. One headlamp bulb was intact. The other bulb was broken. The bulb is cylindrical in shape.[25]The intact bulb shows two coiled filaments supported between posts. The filaments are in line. The filament closest to the end of the cylinder is adjacent to a reflector. This is the dipped beam filament. When electricity is passed through the filament, it heats up and glows. This creates the light. A hot filament is very malleable. If it is subjected to force as a result of severe braking, the hot filament deforms. The phenomenon is called “hot shock deformation”. Such deformation can clearly be seen to have affected the dipped beam filament in the intact bulb. In contrast, the full beam filament is not deformed. The inference is that the dipped beam filament was hot, and thus the lamp was lit, at the moment of impact.[26]In the case of the broken bulb, the filaments are missing. However, parts at least of three posts are still present. One of the posts shows clear signs of oxidation. An intact bulb is filled with an inert gas, so that a hot post will not be subject to oxidation. The inference in this case is that upon the glass being broken, the hot post was exposed to the air and oxidation has taken place. This would not have occurred had the post been cold. Thus, it is argued, it can be inferred that one filament was heated via electricity conducted by this post. It is not possible to say which filament.[27]Mr Dawson’s position is the same as that of the investigating police officers, namely that the physical evidence provided by the bulbs points conclusively to the fact that the both headlamps were illuminated.[28]Mr Hall could not bring himself to draw that conclusion, since it was inconsistent with the evidence presented by the other two sources. I have no such difficulty. The strongest pieces of evidence are provided by the examination of the bulbs. There can be no other logical conclusions other than that the bulbs were illuminated at the moment of impact. The absence of evidence of light on the CCTV evidence can be explained away, as can the location of the slider switch.[29]I accept the evidence of the Claimant concerning his use of headlamps and I find that at all times when the motorcycle was potentially in the view of the Defendant, both headlamps were illuminated in the dipped position.[30]The written and oral evidence of the Defendant was to the effect that the first he knew of the presence of the Claimant was at the moment of impact. However, the experts are agreed that the Defendant did start to brake before impact. They opine that this was most likely to be in response to something that the Defendant perceived, with the most likely candidate being the Claimant. I agree with that analysis. It is likely that the Defendant, out of the corner of his eye, so to speak, saw the Claimant just before impact and reacted accordingly by applying his brakes.

Other Evidence

[31]There is a discreet issue concerning whether the Defendant indicated his intention to turn right, with which I propose to deal first.[32]The Defendant says he indicated his intention to turn right before commencing his turn. Whether any motorist has any genuine recollection of activating the indicator lights after an incident such as this is a matter of conjecture. In most cases, a motorist will rely upon his knowledge of his usual practice. When interviewed by the police under caution, he said that indicating was an automatic thing and that he would “probably” have been indicating 40 or 50 metres from the actual turning. He agreed with the interviewing police officer that it was an “automatic thing” for him to indicate. Nevertheless, it is the Defendant’s evidence that he indicated.[33]The bus driver, Mrs Anderson-Crowe told the police that:
“I could see that the Vauxhall was positioning to turn right although I cannot say that the car was indicating or not”
. That statement was made on 11 July 2014.[34]She made a witness statement for the purpose of these proceedings in July 2017. It appears that a representative of the Defendant’s solicitors visited her at home, probably on 5 July 2017, since that is the date at the top right corner of the first page of the typed statement. In passing, I note that the statements of Daniel Mayers and Robert Hubbard bear the same date. I infer that the representative, having visited Mrs Anderson-Crowe and the other witnesses took the notes of interview away and on the basis of those notes the witness statements were drafted. There is absolutely nothing unusual in such a process. Indeed, it is far better than a practice which I have observed developing in other cases whereby such statements are taken over the telephone.[35]However, in this case, something appears to have gone wrong. The witness statement signed by Mrs Anderson-Crowe and verified by a statement of truth contains this passage at paragraph 19 (emphasis added):
“the driver of the black estate car had already moved to their right and had positioned their vehicle towards the centre of the road whilst indicating to turn right into the entrance of a care home which was almost level with the black car. When asked about this discrepancy during cross-examination, Mrs Anderson-Crowe said: “I don’t actually recall seeing him indicating”
. She went on to explain that she did not “recall saying that he did indicate”. In answer to questions from me she described the process by which her witness statement had been taken, in the manner I have already described.[36]In my judgment, no useful purpose is served in seeking to explore how that error crept into the witness statement. Mrs Anderson-Crowe told me she had received the typed version through the post, she read it, signed it, and sent it back. I asked her “How carefully did you read it?”. She gave this candid reply:
“I probably scan-read it, to be honest.”
I suspect she is not alone.[37]At all event, Mrs Anderson-Crowe cannot assist on the issue of indicating. She cannot say if there was or was not any such indication.[38]Mr Daniel Mayers was seated on the top deck of the bus, on the centre of the back seat. Thus he could see straight out of the front top deck window of the bus, albeit from :a long way back. In a statement made to the police on 12 July 2014 he said:
“… I could see a black car slowing down and indicating to turn into Sutherlands care home.”
[39]In his witness statement made for these proceedings he says this at paragraph 13:
“I then saw the rear brake light of the bike come on at the same time as I noticed a dark estate car with its front offside indicator on which had started to turn right into the entrance exit close to a care home from the lane the bike was using to overtake us”
Thus Mr Mayers is consistent in his recollection and could not be swayed under cross-examination.[40]I understand why there may be a degree of scepticism about what can be seen from the rear seat of the top deck of a bus, but Mr Mayers also says he saw the rear brake light of the motor cycle. I have no real reason to doubt his evidence on that point.[41]The Claimant says he did not see any indicator, but there may be many reasons for that. His speed was such that he may well have been paying attention to other matters. The relevant indicator is on the offside of the car, farthest away from the Claimant once the car began to turn. I do not find that his evidence trumps that of Mr Mayers.[42]I find that on the balance of probabilities the Defendant was indicating his intention to turn right before he commenced his turn.[43]I turn next to the manner of riding of the Claimant before he overtook the bus. In one sense such riding is not relevant to the manner in which the collision occurred. However, I understand the desire of the Defendants to establish that the manner of riding of the Claimant during the overtaking of the bus and the subsequent collision was part of a pattern of riding which had been established before the overtaking manoeuvre.[44]As I explained during the hearing, I do not propose to use the term “dangerous driving”. That term has a particular meaning within the criminal law. The definition of the offence of dangerous driving is set out below: A person drives dangerously if and only if:(1) The way he drives falls far below what would be expected of a competent and careful driver; and(2) It would be obvious to a competent and careful driver that driving in that way would be dangerous.[45]At one point I intervened when it seemed to me that Mr Block was asking the Claimant to accept he was guilty of that offence. Mr Block asked:
“[Do] you accept your driving fell far far below the driving of a reasonable …?”
I gave the Claimant the privilege against self-incrimination direction whereupon he understandably declined to answer the question.[46]That said, there are other ways of describing the riding of the Claimant by reference to the evidence without using the word “dangerous”. The evidence is all one way. The manner of riding of the Claimant observed by the witnesses was truly appalling.[47]Mr Craven-Romain speaks of the Claimant first trying to undertake him and then moving to the offside to overtake and accelerate “hard away”. What he observed caused him to think “Bloody idiot … if they carry on riding in the same way they would not live very long”.[48]Mr Ian Harrison was in his car with his wife when he was overtaken by the Claimant. He says the Claimant “flew past us” and thought the Claimant was travelling at around 70 or 80 mph. He says he saw the Claimant “weaving in and out of the line of cars I was following”. In an earlier statement made to the police he had described the Claimant as weaving “at very high speeds and accelerating as he did so”.[49]Charlotte Gotts also made a statement to the police. It is dated 18 June 2014. The riding she observed caused her to say to her mother: “If he carries on like that he is going to kill himself”.[50]Having regard to the evidence from these witnesses I have no hesitation in concluding, that the driving of the Claimant was, as I have already said, truly appalling. I do not consider it necessary to determine with precision where on a hypothetical scale of bad driving the Claimant’s riding lies. I am content to accept that it is at or towards the upper end of the scale. Having said that, in my capacity as a Judge of the Crown Court, I have seen much worse cases.

Direct Evidence of the Overtaking Manoeuvre and Collision

[51]Mrs Anderson-Crowe, in her witness statement, describes stopping at a bus stop and then setting off again. There was a line of parked cars ahead of her. She continues: “12. Just as I had got myself straight and began to pass the line of parked cars, I heard what I presumed to be a motorcycle engine as the tone of the engine was a lot higher than my bus and the other traffic on the road around me.13. Because of the engine noise I instinctively looked in my offside mirror as I could sense that the bike was going to overtake from behind.14. As I went to look in my mirror, a sports bike of some description flew past me using the far side of the opposing lane so they were close to the offside curb in relation to my direction of travel.15. As the bike went by me I remember thinking, ‘idiot’ because I thought it was a very silly thing to do.16. When I subsequently spoke to the police about the accident I told the officer the bike was travelling at about forty (40) miles an hour but I was being very conservative when I said this.17. I now believe the bike was going a lot faster than this based on the sound of the engine and how quickly the bike overtook me.18. As the bike was overtaking me I looked straight down the road and saw the front of a black estate car about two (2) or three (3) bus lengths away from me in the opposite lane.19. The driver of the black estate car had already moved to their right and had positioned their vehicle towards the centre of the road … [evidence about indicator omitted]20. The car began to turn into the entrance of the care home at the same time as the bike started to move back onto the correct side of the road whilst still travelling at the same speed that it had overtaken me.21. I saw the brake lights of the motorcycle come on very briefly as the bike continued towards the front nearside of the car where the driver had started to turn. The rider then veered to the left before braking briefly for a second time.22. It was obvious to me the bike and the car were on a collision course and nothing either driver could do would have avoided what happened as the bike was going too fast.23. The motorcycle crashed into the front nearside corner of the car which by now was virtually broadside across my lane.[52]Daniel Mayers describes the motorcycle overtaking the bus. At paragraph 22 of his witness statement he says:
“As the motorbike began to overtake us, the driver of the car had already committed to the turn …”
. Having regard to the expert evidence, that cannot be correct. The Claimant had completed the overtake manoeuvre before the Defendant began to turn although the Claimant was, of course, still on the wrong side of the road from his perspective.[53]Of the collision Mr Mayers says this in his witness statement:
“11. … [A] motorcycle overtook us using the opposite lane and from where I was sitting I could see the bike begin to move back towards our side of the road when it was about one to one and a half bus lengths in front of us. 12. In the short amount of time that I saw the bike before it struck the car, it is difficult to estimate the speed of the bike with any degree of accuracy but it is fair to say it was going considerably faster than anything else on the road which accounted for the sound of the engine. 13. I then saw the rear brake light of the bike come on at the same time as I noticed a dark estate car with its front offside indicator on which had started to turn right into the entrance/exit close to a care home from the lane the bike was using to overtake us.”
[54]The Defendant himself has no recollection of seeing the Claimant in advance of the collision. I have dealt with the opinion of the experts that something must have alerted him to impending danger having regard to the evidence of the stat of his braking procedure.[55]The Defendant’s evidence of his driving before he began his right turn manoeuvre is important.[56]At 3.15pm on the day of the accident he is recorded as having said this to the police:
“I was coming out of Wymondham on the Norwich Road. I was indicating to turn right into Sutherland’s care home. I looked up and saw a bus and car coming from opposite direction but they were a good distance away so had plenty of time to turn in. As soon as I’ve turned right there was a bang and then I saw a motorcyclist in mid air. I put my foot on the brake. As soon as the car stopped I got out to attend to the motorcyclist.”
[57]The Defendant was interviewed under caution by the police on 20 August 2014. He described having identified the care home and continued:
“Put my indicator on, came over to the, you know centre lane as you would turning right, obviously looking up the road. I remember seeing the bus and I don’t remember see I don’t know where that other car came from, where I’d said about another car, I don’t remember seeing another car. I’ll say that now. Yeah saw the bus, there was nothing else so I started turning. I knew I had loads of time to turn into Sutherland’s Care Home and then the next thing I know is I’ve just, out of the corner of my eye I’ve just seen a blue blur and that, the car rocked and then I’ve just seen this individual cartwheeling over the front of the car basically.”
Later in the interview he said of the bus that “He had his indicator on and was moving, was just pulling away”.[58]During cross-examination he agreed that this meant that the bus had been at a standstill and was moving away.[59]In the course of answering supplemental questions in chief, the Defendant was asked why he had initially said he saw a car. The explanation he gave, which I found unconvincing, was that he felt shock “starting to kick in” and that there were “two guys there talking to me about cars, I think they were just trying to reassure me, and I think that is possibly, under the shock, why I mentioned a car because there was no car.”[60]The Defendant maintained this explanation during cross-examination.[61]Also during supplemental questions in chief the Defendant was asked if he had made any observations before commencing his turn. He said:
“I had looked up the road. There was a bus up the road and from what I can remember it was indicating to overtake some stationary vehicles. To that end I thought I was quite safe, loads of time to then commence my turn. I had started my turn and then I just felt the car rock and an almighty bang …”
[62]I consider the Defendant’s evidence concerning his observation of the bus to be important. This is because it is clear from the CCTV footage that the Claimant completed his overtaking manoeuvre very shortly after the bus had pulled away from the bus stop.[63]During cross-examination the Defendant agreed that any vehicle overtaking the parked cars would have to encroach upon the offside lane relative to the overtaking vehicle. However, he disagreed with the proposition that if the Claimant had overtaken the bus at about the time the bus was pulling away, then the Defendant would have seen the Claimant. He said:
“I disagree … Because the bus was pulling away so how am I supposed to have seen someone coming blind from behind a bus?”
Mr Bebb explained that for the purpose of this proposition, it should be assumed that the Claimant had completed the overtaking manoeuvre and that the Claimant was “coming down the other side of the road straight towards you”. The Defendant maintained that there “was nothing there”. He gave an explanation for not seeing the Claimant: “… I couldn’t envisage anyone coming past that bus, especially not at the speed they were doing”.[64]The Defendant was also asked about his pre-turn observation process in more detail by Mr Bebb. The Defendant agreed that having regard to the presence of the parked cars, there was a “relatively narrow corridor up ahead to ensure that there is no oncoming vehicle”. He said that he had looked up the road and agreed that if the motorcycle had been there, he would have seen it.[65]Mr Hall said that in his opinion a reasonable driver in the Defendant’s position should look up the road to make sure it is clear, then look at the entrance of the care home to make sure that is also clear. Finally, he should look up the road again before committing to the turn.[66]PC Hutchin complied the police investigation report. At the end of that report he gave his opinion on the cause of the accident as being “a combination of poor riding by [the Claimant] and lack of observation by [the Defendant]”.[67]In his witness statement prepared for these proceedings he said this at paragraph 29: “I took the view that [the Defendant] should have seen [the Claimant] travelling towards him. [The Claimant] was there to be seen, however, it is not reasonable for a competent and careful driver to expect a motorcycle to be travelling on the wrong carriageway, almost abutting the pavement, at approximately double the speed limit.[68]In oral evidence he repeated that view, but agreed with me that the question I must deal with is whether it is reasonable for a motorist nevertheless to see such a motorcycle.[69]Dealing with the evidence of the Claimant, he was unable to give a satisfactory explanation for his continued presence on the wrong side of the road after he had completed his overtaking manoeuvre. There were parked cars to the Claimant’s nearside, which the bus also had to overtake. Whilst I accept that the Claimant had been taught to give parked cars a wide berth to guard against the possibility of a door opening into the carriageway, that did not in my judgment explain his riding on this occasion and I agree with Mr Block’s submission that there was no justification for staying in the wrong lane for as long as he did.[70]He accepted during cross-examination that he could have overtaken the bus at a speed around the 20 to 30 mph mark.[71]Finally, there is a discreet issue concerning the noise made by the motorcycle. A non-standard exhaust had been fitted to the motorcycle. The result was that the motorcycle made a very loud noise. A number of witnesses remarked upon this very loud noise. However, the Defendant says he did not hear it. I accept his evidence on that point, but I am unable to conclude why he did not hear it. There may be a specific hearing deficit, although there was no evidence on that point. Mr Bebb conjectured that it was because the Defendant was concentrating on finding the care home and thus not paying sufficient attention to what was going on elsewhere – a matter he also relied upon in support of his case that the Defendant did not look for the Claimant. The Defendant himself said he thought it was because he had the windows up and the air conditioning on.[72]I am unable to come to a concluded view as to the cause of the Defendant’s lack or perception of the noise of the motorcycle. However, I accept his evidence that he did not hear it.[73]Pulling together the evidential threads I am able to make the following specific findings, which largely accord with those which Mr Bebb, during his closing submissions, invited me to make:(1) Norwich road over the relevant length was straight with a slight bend which did not interfere with relevant sight lines.(2) The Claimant’s motorcycle was displaying twin dipped beam headlamps. The Defendant’s Vauxhall was indicating an intention to turn right.(3) The Claimant’s riding before he began his overtaking manoeuvre was extremely bad, by reason of the matters described in my review of the evidence.(4) The Claimant’s speed as he overtook the bus was in excess of 69 mph.(5) The average speed of the Claimant from the drain cover to the start of the tyre mark was 69 mph. His speed when the tyre mark began was in the range 45 to 64 mph, and probably around 55 mph, closer to the upper range identified by Mr Dawson, but as I have said previously, it is not necessary to make a precise finding on this point.(6) The Claimant stayed on his wrong side of the road for longer than was necessary.(7) The Claimant was capable of being seen by the Defendant when the Claimant was about 131 metres away, and for about 4 seconds before impact.(8) The Claimant was between 40 and 65 metres away from the Defendant when the Defendant began his right turn.[74]I am entirely satisfied on the evidence, and having regard to those factual findings, that the Claimant was there to be seen by the Defendant. I am also satisfied that even though the Claimant was on the wrong side of the road, the Defendant ought to have seen the Claimant. I agree with Mr Hall that a reasonable driver in the position of the Defendant ought to have had a final look up the road before committing to the turn. Had he done so, he would have been bound to have seen the Claimant who was then a matter of only 40 to 65 metres away in what has been described as a fairly narrow corridor. Observation of the Claimant before committing to the turn would have caused a reasonable driver to brake. However, because the braking would have occurred before the Defendant had committed to the turn, braking would have been in a straight line and the Defendant wold not have crossed to the other carriageway.

Primary Liability

[75]Mr Block relies upon a number of cases and factual issues in support of the proposition that no liability at all should attach to the Defendant. He submits that whatever errors the court may attribute to the Defendant, nevertheless the Claimant was so grossly negligent and reckless as to his own safety and that of other road users that he should be held wholly to blame for the accident.[76]In Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274 a pedestrian positioned herself by a bollard. She was squashed when a bus executed a very tight turn by the bollard. It was held that the bus driver had no reason to think that anyone would be at the nearside of his bus by the bollard. It was observed that:
“There was no reason for him to expect a pedestrian to take the extremely dangerous path taken by the Claimant”
. Importantly, the claimant could only have been seen via a mirror. This was described as a counsel of perfection.[77]In Scott v Gavigan [2016] EWCA Civ 544 a pedestrian walked into the road into the path of a moped. This action was described by Christopher Clarke LJ as “an egregious folly” which could not reasonably have been foreseen by the moped rider. The Court of Appeal upheld the first instance decision that the Claimant had been the author of his own misfortune.[78]In both of those cases it was the pedestrian who had done something positive to create the initial danger. In the case before me, it was the Defendant who did the positive act, namely to cross his offside carriageway in order to turn right.[79]Reference was made to the old case of London Passenger Transport Board v Upson [1949] AC 155 (HL). That case concerned a collision between a pedestrian on a traffic light controlled crossing and a bus. The facts are not so important as the dicta upon which Mr Block relies. At Page 161 Lord Porter said:
“The fact that a driver could have seen something if he had looked up is, of course, conclusive against him when he was under a duty to look; to say that he was under a duty to look because if he had looked he would have seen is, with respect, entirely to misunderstand the nature and foundation of the duty to keep a proper lookout. At page 162: “a driver must, of course, keep a proper lookout even for negligent pedestrians but short of proceeding at a walking pace – and even that may not be enough – it is hardly possible to be certain of avoiding accidents where the injured party is guilty of gross negligence.”
[80]With respect to those dicta, I have determined that there was a duty on the Defendant to look again before he began his right turn and that, had he done so, he would have seen the Claimant.[81]Mr Block also cited a passage from the speech of Lord Uthwatt at page 172, the operative part of which reads “A driver is not of course bound to anticipate folly in all its forms”. That seems to me to be uncontroversial and touches upon the issue identified by PC Hutchin concerning whether it is reasonable for a driver to expect a motorcycle to be travelling on the wrong carriageway at speed. In my judgment, whether reasonable or not, in the circumstances of this case it was reasonable for the Defendant to have seen the Claimant on the wrong side of the road riding at speed and to braked accordingly.[82]The last case relied upon is Farley v Buckley [2007] EWCA Civ 403. In that case, a motor scooter was overtaking a line of traffic. A large refuse wagon was indicating an intention to turn left into a side road. The wagon could not do so until the Defendant’s car had pulled out of the side road. The Defendant intended to turn right. The wagon stopped, thus creating a gap in the traffic allowing the Defendant to pull out. As he pulled in front of the wagon, the Claimant rode into collision with the Defendant’s car. The Claimant had been overtaking the wagon and could not have been seen by the Defendant. In those circumstances it is understandable that Swift J, at first instance, found the Claimant wholly to blame for the accident. It is a very different set of facts to those in the case before me. I have found that the Claimant was there to be seen by the Defendant and should have been seen by him.[83]Having considered those authorities I find that, properly analysed, they do not justify a finding that the Defendant was without blame. In my judgment primary liability is established for the reasons given above. I conclude that the Claimant was there to be seen. He would have been seen if the Defendant had taken a final look up the road before commencing his turn. The Defendant should have looked and therefore should have seen the Claimant. Contributory Negligence.[84]Whilst the Defendant must bear some responsibility for the Claimant’s injuries, it is obvious that the Claimant is not blameless. He was on the wrong side of the road for too long and was riding much too fast.[85]Mr Block contends for apportionment of 80:20 in the Defendant’s favour. He relies upon two authorities in support of that contention, whilst recognising that such cases are illustrative only.[86]In Burton v Evitt [2011] EWCA 1378 (Civ) 1378 the Court of Appeal substituted an apportionment of liability of 80:20 in place of 66:33 in favour of the Defendant. In that case the Defendant car driver was turning right into a car park adjacent to his offside carriageway. The claimant motorcyclist was overtaking a row of slow moving traffic behind the Defendant. The Claimant collided with the Defendant as he was crossing the carriageway.[87]The Court of Appeal dismissed the appeal insofar as it related to the finding of primary liability. The car behind the Defendant had been a large 4 x 4 vehicle. It was positioned such that there was an area behind the Defendant which he could not see. It was determined that the Defendant should have inched out until he could see behind him.[88]However the Court described the riding of the Claimant as amounting to “gross negligence” in overtaking a line of cars that was slowing down at the speed he was riding.[89]In Ringe v Eden Springs (UK) Ltd [2112] EWHC 0014 (QB) the Claimant was again a motorcyclist. The road where the accident occurred ran north to south. The Claimant was riding south in a hatched area which separated the two lanes of traffic. He was overtaking traffic, including a long articulated lorry. The Defendant emerged from a side road to the East. He wished to turn right, so as to head north. He could not see the Claimant, who was shielded by the articulated lorry. The Defendant drove onto the hatched area and was struck by the Claimant.[90]The Judge held that the Defendant should have waited until the articulated lorry had passed before emerging from the side road. Had he done so, he would have had a clear view of the oncoming traffic.[91]The Claimant came in for severe criticism. He as driving in the hatched area of the road when he had no business being there. He was overtaking near a junction. He was riding much too fast – 60 to 70 mph. the speed limit was 40 mph. the Judge apportioned liability 80:20 in favour of the Defendant.[92]In both of those cases the Claimant could not be seen. In Ringe the Claimant was in the wrong in the three respects noted.[93]Mr Bebb referred to the case of Buchan v Whiting [2008] EWHC 2951 (QB). There are factual similarities with the case before me. The Claimant was a motorcyclist. He was riding his motorcycle at a speed between 50 and 70 mph on a road subject to a 30mph limit. He had his headlamp on, but the time of the accident was such that it was almost dusk. He was overtaking slower moving vehicles. The Defendant crossed the Claimant’s lane in order to turn right, whereupon the Claimant collided with the Defendant.[94]The Judge found that the Claimant was there to be seen and should have been seen. He apportioned liability at 50:50.[95]Liability apportionment is exquisitely fact sensitive. No two cases are identical.[96]In my judgment, the Claimant was not as much to blame for this accident as were the Claimants in Burton and Ringe. In those cases, as I have already observed, the riding of the Claimant was such that they could not have been seen by the respective Defendant, and in Ringe the Claimant was doing three things wrong.[97]Considering the case of Buchan the speed of the Claimant there was less than that of the Claimant in this case.[98]In this case the Claimant had been guilty of appalling driving for some time before he overtook the bus, but that driving was not causative of the accident. Although the Claimant was there to be seen, his speed was grossly excessive and he stayed on the wrong side of the road for too long. An apportionment of 50:50 is too favourable to the Claimant, but 80:20 is too harsh. The appropriate apportionment is two-thirds:one-third in favour of the Defendant, so that the Claimant will recover one-third of the full value of this claim.