Gregory Stephen McPherson v James Edward Smith
| Jurisdiction | England & Wales |
| Judge | Robinson,His Honour Judge |
| Judgment Date | 11 June 2018 |
| Neutral Citation | [2018] EWHC 1433 (QB) |
| Docket Number | Claim No: HQ16P03354 |
| Court | Queen's Bench Division |
| Date | 11 June 2018 |
[2018] EWHC 1433 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Robinson
sitting as a Judge of the High Court
Claim No: HQ16P03354
Gordon Bebb QC and Benjamin Bradley (instructed by Stewarts Law LLP) for The Claimant
Neil Block QC (instructed by Ellisons Solicitors) for The Defendants
Hearing dates: 5–7 June 2018
Introduction
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.
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.
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.
The brief description of the collision belies the complexity of the issues in this case.
Evidence
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;
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
There...
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