Smith v Finch

At about 7.40 pm on Wednesday 8 June 2005, Robert Smith (“the Claimant”) was riding his bicycle on Samson’s Road, Brightlingsea Essex when he was involved in a collision with a Yamaha 600cc motorcycle ridden by Michael Finch (“the Defendant”). He sustained serious head injuries and has no recollection of the events. He was not wearing a cycle helmet. His case, based on circumstantial evidence, is that at the moment of collision he was in the centre of the road intending to turn to his right into the driveway of a house called ‘Oakwood’. He was a member of a local operatic society which had planned to rehearse that evening at ‘Oakwood’ but there had been a last minute change of venue and he was going to the drive-way entrance to re-direct other members as they arrived for the rehearsal.

The Defendant, who was the only witness to the accident and who suffered a fractured left forearm, was riding his Yamaha motorcycle along Samson’s Road. He contends that the Claimant emerged from Maltings Road to his left and diagonally opposite the driveway to ‘Oakwood’ and pedalled into Samson’s Road at a time when it was too late for the Defendant to avoid the collision. Each party claims against the other damages for personal injury, loss and damage. This is the trial of liability only.

Samson’s Road is an unclassified road to the north of Brightlingsea which runs through a built-up area from Red Barn Road to the southeast to the main Church Road to the northwest and so in the direction of Colchester. The road is subject to a 30 mph restriction. Travelling along Samson’s Road from Red Barn Road in the direction of Colchester, there is Morses Lane on the right and then again on the right, the Five Ways Co-op Supermarket and the Five Ways Garage. Once past the garage, the road bends to the left and then on the left is the junction with Maltings Road. The centre of that junction is some 135 metres from the entrance to the garage. At the junction, Samson’s Road is 7.5 metres wide, with two lanes of equal length and so each 3.75 metres wide. Once the left bend has been negotiated, Samson’s Road is straight all the way towards its junction with Church Road.

The Claimant lived in Ladysmith Avenue. A route from his house to ‘Oakwood’ would be along Ladysmith Avenue into Church Road and then right off Church Road into Maltings Road and along its length to Samson’s Road. Another route would be along Ladysmith Avenue, right into Seaview Road, left into Red Barn Road and then right into Samson’s Road. The Claimant’s case is that he took the second of these routes; the Defendant’s case is that he took the first route.

The Claimant’s case is that the Defendant rode his motorcycle along Samson’s Road at an excessive speed, failed to keep a proper look out and failed to see the Claimant, who was on his proper side of the road at all times, in time or at all and so collided with him. In the Defence, verified by a CPR Part 22 statement of truth, it is alleged that the Claimant pedalled out of Maltings Road into Samson’s Road into the path of the Defendant and gave the Defendant no reasonable opportunity to avoid a collision.

At the start of the trial, Mr Hoskins, counsel for the Defendant, indicated that if, on the evidence, the Court was to find that the Claimant had not ridden out from Maltings Road but had been cycling along Samson’s Road, the Defendant may seek to advance an alternative case that the collision was caused by the Claimant’s own negligence in moving into the Defendant’s path so that the Defendant had no reasonable opportunity to avoid a collision. At the conclusion of the evidence, Mr Hoskins applied for leave to file an Amended Defence and for leave to dispense with the requirement that the Amended Defence be verified by a statement of truth (CPR 22.1(2)) because the Defendant cannot verify the truth of an alternative case which is factually inconsistent with his case.

Mr Hoskins cited Binks –v- Securicor Omega Express Limited [2003] 1 WLR 2557 and relied in particular upon the observations of Maurice Kay J (as he then was) with which Pill and Cornwath LJJ agreed, at paragraphs 8 and 9 on pages 2562D-2563E:-

“… rule 22.1(2) enables the court to dispense with verification by a statement of truth when a statement of case is amended. It does not specify circumstances in which the power of dispensation might arise but I take the view that amendment to plead in the alternative a case derived from an opponent’s documents, pleadings or evidence is capable of being such a case. To the extent that the Practice Direction to Part 17 suggests otherwise, I give precedence to the rule over the Practice Direction. Moreover, I do not accept that the purpose or effect of Part 22 is to exclude the possibility of pleading inconsistent factual alternatives. In this I take comfort from the judgment of Patten J in Clark v Malborough Fine Art(London) Ltd [2002] 1WLR 1731, 1745-1746, para 30. It is true that Patten J was not concerned with a dishonest Claimant who was clinging to a false account and a Defendant whose witnesses, at least on one view, were providing evidence for an alternative factual basis of liability. Nor was he concerned with other possible scenarios that readily spring to mind – for example, a Claimant in a personal injury case who simply does not know what happened but relies on an independent witness who proves unreliable in circumstances where the Defendant’s evidence nevertheless provides him with a positive case; or the Claimant who honestly believes in, because he has wrongly convinced himself of, the truth of his case, but who can nevertheless advance a case on the basis of the Defendant’s pleadings or evidence. Such scenarios and the history of the present case dispose me to the view that it is necessary to adopt a broader approach to Part 22. In my judgment, it does not in all cases prevent a party from submitting or amending a pleading which includes an allegation which he is not putting forward as the truth, provided that there is an evidential basis for it. If it is in the form of an amendment then, as I have said, it may be appropriate for the court to permit it without requiring a statement of truth. Moreover, I do not consider it objectionable in principle for a Claimant to advance an alternative case based on material put forward by his opponent. In such circumstances, it may be possible for him to append a statement of truth, suitably drafted. Making it clear that whilst his primary case is not an assertion of the truth of his opponent’s account, if the court finds that to be the truth, he will seek to rely upon it as an alternative basis for liability…

9.

Although I accept that the purpose of Part 22 is to deter or discourage Claimants from advancing a case which is inherently untrue or wholly speculative (a purpose which will never be wholly achieved), I do not accept that its purpose extends to the possibility of relieving of liability a Defendant whose own evidence may establish a cause of action against him. That would not be consistent with the overriding objective of dealing with a case justly (CPR R1.1(1).”

Mr Hoskins expressly stated that the amendment was not related in any way to the Defendant’s own case - which remains that the Claimant pedalled from Maltings Road – but addresses the Claimant’s case and so raises an issue of contributory negligence as well.

Mr Glancy QC, counsel for the Claimant, objected to so late an amendment; he submitted the averment could have been pleaded at the outset but his principal objection was on the ground that there is no evidence to support it and it is based upon no more than speculation.

I am satisfied there is some evidential basis for the amendment in the evidence of the Defendant’s expert witness Dr Searle and as no prejudice will be occasioned to the Claimant by so late an amendment, I give leave to file an Amended Defence with a new paragraph 3A – “In the event that contrary to his case the Court finds that the Claimant was, prior to the accident, cycling along Samson’s Road the Defendant will aver that the accident was caused by the Claimant’s own negligence in moving into the Defendant’s path so that the Defendant had no reasonable opportunity to avoid a collision” - and order that the requirement of a statement of truth, drafted in the terms suggested by Maurice Kay J at page 2562H, be dispensed with.

The Claimant was born on 4 July 1953 and so was 51 years old at the date of the accident. He was then employed as a service manager by a local NHS Trust. Pauline Smith, his wife of many years – they met when they were 17 years old – said that they have bicycled together for many years, not just around Brightlingsea but elsewhere. They both have cycle helmets, which they wear but their practice is not to wear them when cycling around the village of Brightlingsea because they feel reasonably safe there. The Claimant’s helmet is seen in photographs [223-225]. It was some 20 years old – a detail to which I shall return. Mrs Smith said they avoid cycling on Church Road whenever possible because it is a bus route, quite narrow and congested because cars tend to be parked on both sides of the road. When using Church Road, she and her husband wore cycling helmets. Her evidence was that on 8 June 2005, the Claimant left the house wearing white chinos and a pink striped top to cycle to ‘Oakwood’ to wait outside in case members of the operatic group had not heard about the change of venue for that evening’s rehearsals. She said the quickest and safest route from their house to ‘Oakwood’ is to travel up Ladysmith Avenue, turn right into Seaview Road, left into Red Barn Road and then right into Samson’s Road. Her evidence is that she has cycled that route to ‘Oakwood’ with her husband on previous occasions and that they have also taken that route when cycling from their home in Brightlingsea to Colchester in order to avoid the main traffic on Church Road. She said that her husband was very familiar with this route having attended previous rehearsals at ‘Oakwood’ and she can think of no reason why he would not have taken that route that night. He did not say he was going anywhere else and he was in no particular rush. The route is a shorter one than the route via Church Road – that was borne out by the evidence of the Claimant’s expert witness Mr Runacres who measured the Church Road route at 1.5 kilometres and the Red Barn route at 1.4 kilometres.

Sherrelle Fields was driving her Toyota motorcar with her friend Nicola Riordan as her front seat passenger; they were driving to visit a friend in Colchester who had just had a baby. They called at the Five Ways Co-op supermarket so that Miss Fields could buy some cigarettes. Miss Fields parked her car not far from the road, facing the road and with no cars in front. When she left to buy cigarettes, Miss Riordan remained in the car from where she saw the Claimant passing on his bicycle. He was somebody she recognised as a fellow resident of Brightlingsea, where she has lived for over 20 years. Her recollection is that he was wearing shorts and a brightly coloured top, with different colours. It was a further 3 – 4 minutes before Miss Fields returned to the car and they resumed their journey, turning right into Samson’s Road.

They had not gone far before they came upon the scene of the accident, and had to stop. Miss Fields got out of the car and Miss Riordan remained in the car from where she heard a motorcyclist saying that he had not been going fast. She saw the injured Claimant and knew straight away that he was the same person who had cycled past at the supermarket. The evidence as to the Claimant’s position after the collision came from the agreed evidence of a blood mark in the roadway and close to the low kerb at the entrance to the driveway to ‘Oakwood’ [52]. As the only part of the Claimant to bleed was his head, his head was clearly in or close to that blood mark. The Defendant’s evidence was that when he went to the Claimant after the accident, he was lying in the entrance to the driveway at a point which he marked on a sketch plan [106] as ‘G’ and so in the roadway. I accept that evidence because it is confirmed by the blood mark and the evidence of Claire Wheeler (see below). Miss Fields said that when she returned to the car, Miss Riordan told her that she had seen the Claimant cycling past when she (Miss Fields) was in the supermarket.

Anthony Newman lived at No.39 Samson’s Road on the opposite side of the road to the garage and on the Colchester side of the garage. Between his house and the junction with Maltings Road, were Nos 41 and 43. By reference to the photographs, it is apparent that No.39 Samson’s Road is on or near the crown of the left-hand bend for those travelling along the road in the direction of Colchester. By reference to the scale plan [252], the end of the driveway to number 39 nearest the garage is some 50 metres from the centre line of the junction of Maltings Road. On the day of the accident, his Isuzu Trooper car was parked on his driveway close to the pavement and to the road. Parked outside No.41 and almost completely on the pavement, was his neighbour Martin’s, white van [52].

Mr Newman said it was about 7.45pm when he set about preparing to wash his car. He ran the hose from his back garden to the car before returning to the back garden to collect a bucket and other items. It was as he was in the process of running the water hose out that he heard the sound of a motorcycle engine revving very high; he saw a motorcycle coming from the junction of Maltings Road to his left and being ridden along Samson’s Road before turning left into the garage.

It was some 5 to 7 minutes later when he was using the hose to water his car that he heard the sound of that same motorcycle; he saw the motorcycle pull out from the garage and drive past him in the direction of Colchester. He described the engine as “revving up very quickly”. Mr Newman, who was then employed as a transport manager, said that he had been involved in the garage trade since he was 15 years old and had owned a motorcycle in the past. He did not say how old he was, but by appearance he is clearly more than 50 years old. His evidence was that the motorcyclist “was quickly winding up his motorcycle at speed”. He said that in his opinion he was travelling well in excess of the 30 mph restriction. He said the motorcyclist was crouched in a racing position and he described him in evidence as sitting on the bike with his head and arms down and his backside in the air. He said he saw no cyclist passing his house but it could have happened whilst he was at the back of his house or when he was using the hose pipe on the car, with his back to the road. He would not have heard a cyclist.

Claire Wheeler, who is now 23 years old, lives in Brightlingsea. She is a regular jogger, who listens to her i-pod as she jogs at a volume which enables her to hear traffic noise. On 8^th June 2005, her route took her along Samson’s Road which she joined at its junction with Bateman Road and Red Barn Road. As she ran across the junction with Maltings Road, she noticed no bicycle – this detail in her evidence is neutral in its effect because she had jogged a considerable distance along Samson’s Road before the collision happened. Her evidence was she had just crossed the junction with Fordwich Road – shown on the plan [240] and seen in the far distance beyond the parked motor vehicles in the photograph [58] – when she heard the sound of a motorcycle “revving very loud”; she thought it was in second gear and travelling at about 50 mph; she said it was “revving very high and needed a gear change”. She glanced very quickly over her shoulder, expecting to see a motorcycle but saw nothing. I am satisfied that this was not because of any obstruction but because at that moment, the motorcycle had not yet passed the bend at the south eastern end of Sansom’s Road. She carried on and then heard the sound of a crash. She looked back and saw the motorcycle sliding along the road; there was an object close to the motorcycle and an object to the left of the motorcycle. I have concluded on the balance of probabilities that Miss Wheeler witnessed the events immediately after the collision – she saw the motorcycle on its side as the Defendant lost control of it (see below), the front part of the motorcycle which became detached and ended up in the middle of the road [35] and the Claimant in the roadway. Her evidence was that although she does not ride motorcycles, her friends do and she is interested in them and attends motorcycle meetings.

The Defendant who was born on 26 November 1978 and so was 26 years old at the date of the accident, was a licensed doorman, and had been for some 10 years. He had owned and ridden motorcycles for some 7 years before the accident. He bought the Yamaha 600 cc. sports motorcycle in February 2002 and rode it most days. He described it as “a big bike”.

On the day of the accident, he worked until lunchtime and spent the afternoon in his home at Brightlingsea. After dinner, he left to attend a bike meeting at Great Bentley. As he needed petrol, he rode to the Five Ways Garage. He did not challenge the evidence of Mr Newman that he drove past his house both to and from the garage.

His evidence was that after leaving the garage, the roadway both behind and ahead of him was clear as far as he could remember. He pulled away in first gear and once on the road engaged second gear. His normal practice was to ride in the middle of his side of the road. He said he felt uncomfortable in his leathers and wiggled his body to get comfortable. He said that this was as he was leaving the garage although in cross-examination he accepted that it would have been as he drove past Mr Newman’s house. He said he then took his normal seat position on the motorcycle. As he approached the junction with Maltings Road, he noticed a cyclist coming to a stop at the junction of Maltings Road with Samson’s Road. The cyclist stopped in Maltings Road, near to the give-way broken lines at the junction. He had both hands on the handlebars and gave no hand signals. He said that he was about 20 ft or so away although it is difficult to be sure about exact distances. He was travelling at no more than 25 mph. He kept his eye on the cyclist and he is as sure as he can be that they made eye contact. He was confident the cyclist had seen him. The cyclist then looked to his left and without looking again to his right, to the Defendant’s amazement, he pedalled forward across the give-way lines and directly into the Defendant’s path. He said the cyclist had one push of the pedals and achieved “probably walking pace”. He said that at that point he was no more than 6 or 7 feet away from the cyclist and travelling at fractionally more than 25 mph. He stressed that he was not accelerating hard. To try and avoid the collision, he counter-steered, leaning over to his right. He thought that he had missed the cyclist but he believes his lower foot or his knee hit the front wheel of the cycle. He carried on but the motorcycle hit the kerb and he was propelled off the motorbike into an adjoining field. The motorbike continued on eventually coming to a rest in the hedge on the side of the road. He was shown his witness statement [102] in which he explained how he had tried to control the motorcycle after the collision – he had stated “I had not used the brakes at this point as this would cause the bike to become unstable but I had come off the accelerator”. I shall return to this detail in his evidence later (see paragraph 32).

He agreed that the motorcycle was very noisy but he denied that that provides evidence that he was driving at an excessive speed. He said the noise was explained by the fact that he had bought and had fitted a ‘Micron’ exhaust. He agreed that he did not mention that in any of the witness statements he made (on 28 June 2005, 14 June 2006 and 19 August 2008). He agreed that in his first statement he had said “as the bike is a sports bike it makes a relatively loud noise even when being ridden at a relatively low speed and without high acceleration”. He denied riding at an excessive speed or riding the cycle as described by Mr Newman. Asked if he wanted to revise his estimate of distance, he said he did not want to. He then demonstrated how good his estimate of distance was by pointing to someone in the court room who, by agreement, was some 20 feet away from the Defendant. When the improbability of his evidence was demonstrated – at his claimed speed and over so short a distance, there was not the time for the Claimant to behave as he, the Defendant, had claimed – he said he must have got his distances muddled up. He said the collision occurred near to the centre of the road and the Claimant seemed completely oblivious to his, the Defendant’s, presence.

I accept the evidence of Mrs Smith; I am satisfied the route to Samson’s Road via Seaview Road and Red Barn Road was the obvious route bearing in mind the Claimant’s previous cycled journeys to ‘Oakwood’ along the same route. A study of the map [240] lends further support for this conclusion, if any such support is needed.

Mr Glancy QC submitted there is no reason to disbelieve the evidence of Nicola Riordan that she saw the complainant, whom she recognised. I agree. In that regard, it is not without significance that she told her friend, Miss Fields at the scene of the accident that the cyclist who was lying injured on the road was the same man she had seen cycling past the garage. Her evidence is in no way undermined by discrepancies between her description of the clothing worn by the cyclist and the evidence of Mrs Smith in that regard – these were details which would not have mattered at the time and so there is scope for mistake or misrecollection. There is force in the submission of Mr Glancy that, if Miss Riordan is wrong, then it is a remarkable coincidence that another middle-aged cyclist on a mountain bike not wearing a helmet rode along Samson’s Road at the same time as the Claimant, unseen by anyone other than Miss Riordan but in particular not seen by Miss Wheeler. This is by no means determinative of the issue but it adds weight to my conclusion, reached on the positive ground that she was clearly a credible and accurate witness.

The fact Mr Newman did not see the cyclist is of no consequence – it certainly does not permit an inference that the Claimant did not ride past his house. Mr Newman was busy washing his car; he would have had his back to the road on occasions; he would have no reason to be looking out for a cyclist and a passing cyclist would make no noise. His evidence was that a cyclist could have passed without him noticing.

I reject the Defendant’s evidence that the Claimant rode from Maltings Road. Mr Hoskins rightly pointed out that the Defendant has been consistent in his assertion that the Claimant pedalled out of Maltings Road but his account in his first witness statement [25] was made some 3 weeks after the accident. The ambulance report [73] completed after the accident records “Pt was cycling along road, no helmet. Was struck by motorcyclist at approx 25 mph”. As Miss Fields did not know the Claimant had been seen by Miss Riordan until she returned to the car and the only witness who asserted a speed of less than 30 mph was the Defendant, I have concluded on the balance of probabilities that this information came either directly or indirectly from the Defendant. I have concluded that there is no reliable support for his evidence from the evidence of his expert witness, Dr John Searle (see below).

Although the Defendant has certainly been consistent in that account, his evidence cannot be correct not only because his account conflicts with the more credible and reliable evidence of Miss Riordan and Mrs Smith but also because it was, in my judgment, inherently unreliable. The distance between the garage and the point of collision was only some 135 metres; on the Defendant’s own account, it would not have taken him long to cover that distance. If he was not accelerating and had reached a speed of about 25 mph as he approached the junction with Maltings Road, he would have been travelling at some 12 yards per second. As the photographs clearly demonstrate the distance between the bend and that junction would have been covered in a time which would have been insufficient for the Claimant to have behaved as the Defendant contended. I am not prepared to conclude that the Defendant was a poor estimator of distance when his own demonstration in the court room proves otherwise. My conclusion is that he has lied about the circumstances of the accident – in all probability because he was worried the Claimant might die.

I consider next the evidence about the Defendant’s speed. I have concluded on the balance of probabilities that he was riding the motorcycle at a speed well in excess of the 30 mph restriction. I have concluded that the addition of the detail in the Defendant’s evidence about the exhaust (see paragraph 21 above) was to explain the noise of the motorcycle and in an attempt to rebut the allegation that he was riding at speed. The evidence of Nicola Riordan was that she heard the motorcyclist saying that he had not been going fast. The Defendant agreed he had said that but his explanation for his comment was that it was made in reply to an accusation made by a lady who was at the scene after the accident that he should not have been going so fast. As he was the only witness to the accident, if that explanation is correct, that lady may have been referring to the noise the motorcycle made, but Mr Newman, with all his experience of motorcycles, said that from what he saw, the Defendant was riding at a speed well in excess of 30 mph as he passed 39, Samson’s Road and so 50 metres from the junction with Maltings Road. I accept that evidence. I found Mr Newman an impressive witness and I am satisfied on the balance of possibilities that he has the necessary experience to provide a reliable estimate of the motorcycle’s speed.

I am satisfied that Miss Wheeler, whose attention was drawn to the approaching motorcycle by its engine noise, knows enough about motorcycles to give reliable evidence about speed. I am satisfied the fact she heard the motorcycle from a considerable distance and before it was in view, supports the conclusion that the Defendant was accelerating hard in second gear. I accept her evidence that the collision happened “within 4 or 5 paces” [112] – which I do not interpret literally but as meaning within a very short time - of her brief glance backwards; in my judgment the inference is clear; the Defendant was driving at such a speed that he covered the 135 metres or so in a matter of seconds.

The two expert witnesses gave evidence as to the Defendant’s speed and the Claimant’s direction of travel at the moment of collision. They are agreed that the Claimant was heading towards ‘Oakwood’; that the collision between the motorcycle and the bicycle happened at or towards the centre of the road; that the collision was of a glancing nature, causing little by way of damage except the black mark on the offside fork of the pedal cycle, which was probably caused by the left boot or the knee of the Defendant; that the offside end of the handlebars of the bicycle may have been struck by the Defendant; that the Claimant was propelled from the bicycle and across the road to the driveway entrance; that as the Defendant was, himself, taking evasive action, the motorcycle was angled to the right and so hit the kerb some 21.4 metres from the datum line from the centre of the junction with Maltings Road, at which point the Defendant was thrown off the motorcycle; the motorcycle struck the kerb a 2^nd time, some 23.7 metres from that datum line before crossing the verge, passing in front of the gateway and coming to a halt in the hedge beyond a gateway [60 and 67] at a point of some 60 metres from the datum line; that the motorcycle would have been travelling at 25 – 30 mph as it passed the gateway; that the motorcycle can reach speeds of 90 mph in second gear. They disagreed as to the direction of travel of the bicycle at the moment of collision, the speed at the time of the collision and the mechanics of the collision.

Mr Adrian Runacres, who is a principal consultant with the Transport Research Laboratory and who has 10 year’s experience in collision investigation, gave expert evidence on behalf of the Claimant. He was cross-examined by Mr Hoskins about his experience and expertise. Although his experience and expertise is, in particular, in the field of climatic and road surface effects in road accidents, I am satisfied that he has the necessary experience and expertise to express an opinion as to the issues of speed and the mechanics of the accident. He impressed me as a careful and objective witness, a conclusion I am unable to reach in the case of Dr John Searle, the Defendant’s expert. Although he is undoubtedly very experienced in his field, I was left with the clear impression that he was more of an advocate for the Defendant’s case, trying to explain away obvious errors in his evidence and lacking the objectivity of an expert witness. Two examples will suffice – he said in his report that the extended holding of second gear “appears to have have been due to him (the Defendant) standing on the footrests while he adjusted his leathers to make himself more comfortable” when this was not the evidence and had not been the Defendant’s explanation in his police witness statement or his statements for these proceedings; he gave an explanation for the deceleration of the motorcycle after the collision which was premised upon it being upright until it fell over crossing the area in front of the gate and so not travelling faster than about 30 mph at the time of the collision, when the Defendant’s own evidence was that he laid the motorcycle over to avoid the collision and so it was not upright when it hit the kerb for the first time; I consider it wholly improbable that the motorcycle could have continued on its way in an upright position after the Defendant had been propelled from it when it struck the kerb. These two examples demonstrate the witness’ tendency to make assumptions of fact in the Defendant’s favour, without regard to the evidence. It was concerning that he did not hear the Defendant’s evidence or the evidence of the other witnesses. I should add that Miss Wheeler’s evidence (which was given after the experts had given evidence and which I accept) was that she saw the motorcycle scraping along the road.

Mr Runacres’ opinion was that the motorcycle was travelling at 41- 43 mph at the time of the collision, Dr Searle’s opinion was it was travelling at about 30 mph. Each reached that opinion by working back from the agreed speed at the gateway of 25-30 mph. I have already said that I found Dr Searle’s evidence to the effect that the motorcycle would not have gone over on to its side until it reached the area in front of the gateway to the field unconvincing. The evidence, for the reasons I have given, points clearly to the conclusion that the motorcycle was on its side for some time before it came to a stop in the hedge. Of course, the longer it travelled on its side, the greater the loss of speed and so the faster it was going at the moment of collision. In determining the speed of the motorcycle at the moment of collision, I am not prepared to accept Mr Runacres’ evidence of a rate of deceleration of some 0.3g and 0.35g or his calculations [191A]. My conclusion is that it is not possible with any degree of accuracy to calculate the collision speed scientifically – there are too many variables and little by way of physical evidence at the scene upon which to base scientific conclusions.

In evidence, the Defendant said he didn’t think he had come off the throttle because he kept it on to make the motorcycle manoeuvrable but in his statement (see above) he said he had come off the throttle. That it seems to me would have been the obvious thing to do to slow the motorcycle down after the collision and that, I conclude, is what he did. Bearing in mind the evidence of Mr Newman and Miss Wheeler, I am in no doubt whatsoever that Dr Searle’s opinion that the collision speed was about 30 mph is wrong and that it was appreciably more than that.

As to the point of collision, the differences between them were based on their differing views of the angle between the cycle and the direction of travel of the motorcycle at the moment of collision. Mr Runacres’ evidence was that the angle between the front wheel of the bicycle and the direction of travel of the motorcycle at the moment of collision could not have been more than 30º or so and could have been shallower. The likely scenario was that the collision occurred when the Defendant overtook the Claimant at the same time as the Claimant was turning to his right towards the driveway entrance of ‘Oakwood’, the collision took place around the centre line of the road and it was the sudden turning of the bicycle’s front wheel to the left that stopped it, imparting a movement from the rear wheel and the right handlebar to the right to propel the Claimant from the bicycle and across the road. Dr Searle’s opinion (which I am satisfied was premised on the scenario of the Claimant emerging from Maltings Road not from the centre of the road, as the Defendant claimed, but from the nearside of the junction) was that the Claimant was heading at a steeper angle than 30º of the front forks and that explains why he ended up in the driveway after he braked and turned the front wheel as an avoidance action, his own momentum causing him to pitch over the handlebars to end up at the driveway entrance. The absence of physical evidence at the scene of the collision introduced a measure of supposition into the expert evidence and so it was of limited value to me; even so, I prefer the opinion of Mr Runacres to that of Dr Searle.

I should add that the two expert witnesses, whose evidence was relevant to the issue of the wearing of a safety helmet – Dr Bryan Chinn (for the Claimant) and Dr Nigel Mills (for the Defendant) - also expressed views about the mechanics of the collision, with Dr Mills agreeing with Dr Searle’s explanation and Dr Chinn broadly agreeing with Mr Runacres but as their expertise is not in accident reconstruction but in motorcycle safety, I have not had regard to those views. In particular, I place no reliance upon the use by Dr Chinn of the paper by Mizuno and Ishikawa (2001) which studied the effect of impact speed on head injury severity for pedestrians struck by motor cars; I have concluded there can be no safe comparison between the two types of accident so as to use the statistics in that paper to support an opinion as to the speed of the motorcycle.

I have concluded on the balance of probabilities that the collision occurred in this way – the Claimant was riding his bicycle properly along Samson’s Road; as he approached the junction with Maltings Road, he moved towards the centre of the road and remained at all times on his correct side of the road; he would have been travelling at a normal speed for a cyclist but he would have been preparing to slow down to cross the other carriageway towards the entrance to the driveway to ‘Oakwood’; his bicycle would have been at a slight angle across the road; he would have known of the approach of the motorcycle because of its noise and so he would not have crossed on to the other side of the carriageway; the Defendant, who was riding considerably faster than the 30 mph limit, would have had the Claimant in view as he rounded the slight left hand bend and so for more than 50 metres but he was closing fast; the Defendant was low down on the motorcycle, as described by Mr Newman and accelerating; he chose to overtake the Claimant on the offside but he left insufficient room and so there was a slight collision with the Defendant’s knee coming into contact with the front fork of the motorcycle and leaving the contact mark and the body of the Defendant brushed against the side of the Claimant; the effect of the collision caused the Claimant to stop – this may well have been because the front wheel was turned sharply to the left – and to propel the Claimant to the other side of the road where he landed on his back. I cannot rule out as a possibility that the effect of the collision was to cause the bicycle to turn more to its offside before it stopped suddenly.

What has concerned me in particular is the need for evidence of speed to explain how the Claimant was propelled from the agreed collision point at or near the centre of the road. The Defendant was insistent that the Claimant was not travelling at a fast speed – evidence which I am prepared to accept because the Claimant would have been slowing down as he approached the driveway – and so the speed must have come from the motorcycle; in the absence of evidence of a significant collision between the motorcycle and the pedal cycle, that speed must have come from the Defendant himself and/or contact with the right handlebar of the pedal cycle; I have concluded it came as he brushed past the Claimant and some of the motorcycle’s speed was transferred to the Claimant.

Of one matter, I am entirely satisfied – the Defendant has not told the truth about this collision, his account was designed to shift the blame and so whatever happened was his fault. Had the actions of the Claimant in riding along Samson’s Road caused or contributed to this accident, I would have expected the Defendant to have said so. It follows that the Defendant has not given credible and reliable evidence in support of his own Part 20 claim or in establishing any contributory negligence on the Claimant’s part to the circumstances of the accident.

I am satisfied on the balance of probabilities that the fault for this collision was entirely that of the Defendant by reason of his excessive speed and his riding much too close to the Claimant as he tried to overtake him. On any view of the evidence, there was ample space on the other part of the carriageway to overtake on the offside or even on the Claimant’s nearside.

The Claimant sustained the severe head injuries particularised in the report of Professor Schapira [123]. A CT scan, following his admission to hospital, showed a left extradural haematoma and a left occipital fracture, traumatic subarachnoid haemorrhage and multiple cerebral haemorrhages. A CT scan following his transfer to Oldchurch Hospital showed a left occipital small extradural haematoma; there was a left caudate anterior capsule and globus pallidus haematoma, right temporal contusions and multiple petechial haemorrhages in the bifrontal regions, more on the right than the left and a small subdural haematoma in the right tentorium. The Claimant was taken to theatre on 9^th June and underwent a right fronto-temporal craniotomy; a temporal lobectomy was performed and haematoma evacuation undertaken. He was returned to theatre and the inferior frontal lobe was removed as far as the falx for further decompression. He was discharged home in August 2005. He has made a good physical recovery from his injuries but the major impact of the head injuries has been upon cognition, behaviour and speech function; there are significant problems with memory, concentration and expressive dysphasia; he needs help with every day tasks but most importantly, he has developed post traumatic epilepsy.

The Defendant’s case, relying upon the provisions in the Highway Code is that these injuries were sustained wholly or in part by reason of the Claimant’s failure to wear a safety helmet. The 2004 edition of the Highway Code provided the following guidance to cyclists – “you should wear a cycle helmet which conforms to current regulations”. Mr Hoskins submitted that as a motorist or a passenger can be guilty of contributory negligence for his/her failure to wear a seatbelt, so a cyclist can be guilty of contributory negligence for failing to wear a safety helmet. He relied upon the decision of the Court of Appeal in Froom and others –v- Butcher [1976] 1 QB 286 and in particular the following passages from the judgment of Lord Denning MR:-

“It is compulsory for every motorcar to be fitted with seatbelts for the front seats… Seeing that it is compulsory to fit seatbelts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seatbelt. Everyone is free to wear it or not as he pleases. Free in this sense, that if he does not wear it he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.

Much material has been put before us about the value of wearing a seatbelt. It shows quite plainly that everyone in the front seats of a car should wear a seatbelt. Not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only by fast drivers, but also by slow ones. Not only on motorways, but also on side roads…

… the provision of the Highway Code which contains this advice”; Fit seat belts in your car and make sure they are always used”. This advice has been in the Highway Code since 1968, and should have been known to the plaintiff at the time of his accident in November 1972.” 293 B-H.

and

“The governments view is also plain. During the years 1972 to 1974 they spent 2½ million pounds in advertisements telling people to wear seatbelts. Very recently a Bill was introduced into Parliament seeking to make it compulsory. In this respect England is following the example of Australia where it has been compulsory for the last three or four years. The Bill here has been delayed. And so it will not be compulsory yet a while. But, meanwhile, I think the judges should say plainly that it is the sensible practice for all drivers and passengers in front seats to wear seat belt whenever and wherever going by car. It is a wise precaution which everyone should take.” 294 C-D.

and

“In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe.” 294 G.

and

“Whenever there is an accident, the negligent driver must bear by far the greatest share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seatbelt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear a seatbelt was entirely inexcusable or almost forgivable? … But we live in a practical world. In most of these cases, the liability of the driver is admitted, the failure to wear a seatbelt is admitted, and the only question is: what damages should be payable? This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.

Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seatbelt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seatbelt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damage is attributable to the failure to wear a seatbelt should be reduced by 15%.” Page 295 H-296D.

Mr Glancy submitted that the burden of proof is on the Defendant to prove that the Claimant failed to take “all such precautions as a man of ordinary prudence would observe” and that his failure was a contributory cause of his injuries. He submitted the decision and the reasoning behind the decision in Froom and others –v- Butcher should not be applied so as to equate the guidance to wear safety helmets with the requirement to wear seat belts. He submitted that whereas Parliament intended in 1976 that the use of seat belts should be compulsory, there is no intention to make the wearing of safety helmets compulsory. He placed particular reliance upon the evidence of Dr Chinn that the Government’s response to an Early Day Motion that the wearing of safety helmets by pedal cyclists should be compulsory was to commission a major study undertaken for the Department of Transport – “Cycle helmet wearing in 2004” by Inwood, Whitley and Sexton, which showed that the overall percentage of adult male pedal cyclists wearing helmets whilst riding on ‘major built up roads’ was 28.7% and that this was very much higher than the overall percentage of adult male pedal cyclists wearing helmets whilst riding on ‘minor built up roads’ which was only 9.0%”. The Government then decided there should be no compulsion. It must follow, he submitted, that even though the Highway Code recommends the wearing of helmets, it cannot be negligent not to wear one. He submitted that it is perhaps not surprising that the argument that it is negligent not to wear a cycle helmet has never been pursued in any Court up to this case. If the Court is against that submission, he submitted it was not negligent of the Claimant not to wear a helmet when riding along quiet, minor roads in a residential area.

Dr Bryan Chinn, who has many years’ experience in the field of motorcycle safety, head injuries and the use of cycle helmets, said he would advise the wearing of cycle helmets because at certain speeds and in certain conditions, they offer protection from head injuries.

I remind myself that I am concerned to decide what standard of care should have been required of a pedal cyclist in 2005. My conclusion is that the study by Inwood, Whitely and Sexton in 2004 (see above) does not support an argument that as the majority then was not using helmets, it would be wrong to impose a requirement that they should be worn. As it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road. The introduction to the Highway Code stated that “Knowing and applying the rules contained in the Highway Code could significantly reduce road accident casualties. Cutting the number of deaths and injuries that occur on our roads every day is the responsibility we all share”.

In my judgment the observations of Lord Denning MR in Froom and others v. Butcher above should apply to the wearing of helmets by cyclists. It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be “a sensible thing to do” and so, subject to issues of causation, any injury sustained may be the cyclist’s own fault and “he has only himself to thank for the consequences”.

I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries. I observe that if there is to be a repeat in 2008 of that study, the statistical evidence may show a higher degree of compliance with the guidance in the Highway Code, now that there is a much increased use of pedal cycles.

That said, the burden is on the Defendant to prove (i) that the Claimant failed to take ordinary care of himself, or in other words, to take such care as a reasonable man would take for his own safety by not wearing a helmet and (ii) that his failure was a contributory cause of the damage – Lewis –v- Denye [1939] 1 KB 540 at 554 per Parcq LJ. The evidence of Mrs Smith is they both owned a cycle helmet and wore them on busy roads; this is an acknowledgement that both (but more significantly, the Claimant) understood that a helmet may afford a measure of protection for the head.

Dr Bryan Chinn and Dr Nigel Mills enjoy good reputations in the field of motorcycle safety and the use of helmets but neither has any medical qualification, although Dr Chinn spent 10 years working with medical practitioners in Glasgow on the effects of head injuries.

Both experts agree that the point of impact was the Claimant’s occipital bone. As the burden is on the Defendant to establish that the Claimant’s head injuries would have been reduced by the wearing of an approved helmet, it is to the expert evidence called on his behalf that I now turn.

Dr Mills’ opinion is that the vertical velocity at which the Claimant’s head struck the ground was lower than the speed at which helmets are tested in accordance with BSEN 1078, that a modern helmet would have provided protection to the occipital region because the design would have prevented the back of the head striking the ground and the thickness of the polystyrene foam in the helmet would have provided significant protection even though the protection at the edges of a helmet is reduced. He said it is difficult to estimate the velocity of rotational force as opposed to vertical velocity but modern helmets provide protection from rotational force because they reduce the peak force of impact. Importantly, to return briefly to issue of causation, Dr Mills agreed in cross-examination that contact between the body of the Claimant and the body of the Defendant would have increased the Claimant’s speed.

Dr Chinn examined the Claimant’s Nolan CY-1 helmet. While it was in sound condition, Dr Chinn’s opinion is that the strap mechanism was badly worn and so the helmet was “virtually useless” as a means of protecting the wearer from head injury. Dr Mills’ opinion was that the helmet was about 20 years old and so offers significantly lower protection than a modern helmet, conforming to European standards.

Dr Chinn’s evidence is that both this helmet and a modern helmet would have afforded the Claimant no protection from head injury because of the speed at which the Claimant hit the ground. I stated earlier that I rejected Dr Chinn’s use of the Mizuno and Ishikawa paper as a basis for determining the speed of the motorcycle; I reject its use also as a basis for calculating the speed at which the Claimant hit the ground. That said, I am satisfied, however, that the Claimant (who is a well built man) must have been propelled at some speed from the pedal cycle in order to travel through the air and land on the back of his head some 3.75 metres from the pedal cycle. While I am unable, on the evidence to conclude what the speed of impact with the ground was, I am satisfied on the balance of probabilities that it was faster than 12 mph.

Dr Chinn said that if a helmet in good condition which satisfied EU regulations had been worn, it would have given good protection if the Claimant’s head had struck the ground at a speed of about 12 mph or less, provided the head impact location was above the test area, that is above the area from and above the plane RR shown in the diagram at Appendix D [227]. Dr Chinn said the collision was faster than 12 mph and that as the fracture was in the occipital region (at the back of the head) the contact would have been below the lower edge of a cycle helmet and so the helmet would not have provided the necessary protection. He said that at the same time as the head hit the ground, there would have been a rotation injury. He said that a modern type helmet (with a protuberance at the back) available in 2005 would not have protected the occipital bone.

I have decided, on balance, that the evidence of Dr Chinn is to be preferred because I am not satisfied on the balance of probabilities that the Claimant struck the ground at the low speed necessary for an approved helmet to have protected him from the severe head injuries. The mechanics of the collision, I am satisfied, necessarily involved a much higher speed than that contended for by Dr Mills (and Dr Searle); my conclusion is that that speed was in excess of 12 mph and so the wearing of a helmet would have made no difference. Further, the scalloped design at the back of the helmet, on the evidence of Dr Chin would have exposed to back of the head; there is also the real possibility that the back of the Claimant’s head came into contact with the raised kerb of the driveway [52] and the helmet design would not, on that scenario, have protected the back of the head.

The Defendant has not discharged the burden of proving contributory negligence on the part of the Claimant for another, more fundamental reason – the Defendant has failed to persuade me that an approved helmet would have prevented or made less severe the head injuries sustained by the Claimant. Dr Chinn said in the course of his evidence that the occipital fracture with the left extradural haematoma overlying it and the right temporal contusions may have been caused by the impact with the ground whereas the traumatic subarachnoid haematoma at the front of the head, which had to be evacuated surgically, was probably caused by a contre-coup effect or by rapid rotation of the skull as the Claimant was propelled through the air, causing blood vessels to rupture. Neither he or Dr Mills were able to express any view as to what injury or injuries was responsible for the long term consequences of the severe head injuries.

Both Dr Chinn and Dr Mills made the point that they are not medical doctors and that is a fundamental evidential omission. If a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that. There was no evidence to prove that any particular injury and residual disability was or may have been avoided had a helmet been worn. The occipital fracture and overlying haematoma may not have been responsible for the more serious consequences of the head injury; it may be that the injury which was responsible for the more serious consequences was that to the front of the brain - I observe that Professor Schapira reported [129/130] that “Memory abnormalities are common particularly in patients who have suffered moderate to severe head injury including frontal and anterior temporal lobe damage” and “Neurological factors associated with aphasia after head trauma are right hemiplegia and primary left hemisphere damage”. There is no evidence to link any particular injury with the post traumatic epilepsy.

It follows that the state of the evidence is such that I am not persuaded by the Defendant, on the balance of probabilities, that any of the injuries sustained by the Claimant may have been reduced or prevented by the wearing of the helmet, even if the impact speed was a low enough speed for the helmet to have afforded protection. I cannot exclude as a possibility even if the impact was low enough that the injuries responsible for the Claimant’s residual disabilities were caused by a contre-coup injury – an injury from which a helmet would not have protected the Claimant. Accordingly I make no finding of contributory negligence against the Claimant and so subject to damages to be assessed if not agreed, there will be judgment for the Claimant on both the claim and the Part 20 claim.