Sinclair v Joyner

On Sunday 3 July 2011 the Claimant, then aged 58, sustained severe injuries when, as the Defendant now concedes, a collision occurred between the Claimant’s bicycle and the Defendant’s Volvo XC 90, causing the Claimant to fall sideways on to the road. The accident happened just after 6 p.m. in a rural location, the Claimant cycling along Broadwater Forest Lane towards Tunbridge Wells and the Defendant driving along the road in the opposite direction towards Groombridge.

The Claimant’s case is that the Defendant failed to keep a proper look out, in that she failed properly to assess the hazard presented by this Claimant, who was cycling in the middle of the road and standing up on her pedals. She failed to appreciate that, in driving on past her, she would not allow the Claimant sufficient room; and she failed to stop her car, when she had time to do so, to enable the Claimant to pass safely by. As the Defendant drove past the Claimant there was a collision between the offside of the bicycle’s front tyre and the rear offside tyre of the Volvo, a glancing blow which deprived the Claimant of the opportunity to regain control of her bicycle and caused her to fall to the right and on to the road, striking her head and suffering serious injuries.

The Defendant’s case, as at the end of the trial, is that, as she approached and drove past the Claimant, she was driving slowly, safely and appropriately, as far over to her nearside as was possible. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down to drive past her. The Claimant then lost control of her bike and deviated unexpectedly into the Defendant’s side of the road as the Volvo went past, so that contact between the vehicles occurred and she then fell on to the road. No fault can properly be attributed to the Defendant for this accident.

There is no dispute that the Claimant fell to the right. The consultant orthopaedic surgeons, Professor Fairbank and Mr Crawshaw, are agreed that the Claimant, who was not wearing a helmet, sustained injuries which are consistent with a fall sideways off her bicycle on to a hard road surface. Tragically, she suffered multiple injuries, including traumatic frontal and temporal sub-arachnoid haemorrhages, haemorrhagic cerebral contusions with diffuse axonal injury, multiple skull fractures and rib and spinal fractures. She has a permanently impaired conscious level and is fully dependent for all her care needs.

This hearing was to determine liability only. The Claimant could not give evidence, due to the severity of her brain injuries, and I heard oral evidence from the following witnesses: the Claimant’s husband, Eric Sinclair; Simon Lane, (PC Lane at the time, a forensic collision investigator with Sussex Police), who attended the scene and prepared the police report; the Defendant; her husband, Stuart Joyner, who was a front seat passenger in the Volvo; Ross Ashdown, a cyclist at the scene who first saw the Claimant as she was falling from her bicycle; and Barbara Plumb, who was in her car and came upon the scene shortly after the accident.

The parties also obtained reports from accident reconstruction experts, Damian Mutch for the Claimant and Rob Newton for the Defendant, who both gave evidence at the hearing. At the start of the trial the Defendant’s case, relying on the reports of Mr Newton, was that there had been no contact at all between the vehicles. It was said that the Claimant lost her balance and began to fall from her bike without any contact with the Volvo, so that the Defendant’s actions had no causal relevance. Much of the cross-examination of the factual witnesses sought to establish that there had been no contact at all between the vehicles and to explore other possible causes for the Claimant’s fall.

The evidence given by Mr Newton at trial was, however, unsatisfactory in a number of respects, which I shall describe later on. In his closing submissions on behalf of the Defendant Mr Freeman no longer relied upon Mr Newton’s evidence. He conceded, in my view rightly, that on the balance of probabilities the evidence showed contact to have occurred. The case advanced by the Defendant at the end of the trial was therefore as set out above.

As is well known, in determining liability I have to apply to the Defendant’s actions the standard of the reasonable, prudent driver in the circumstances which existed at the time. Mr Freeman draws attention to the need to avoid a ‘counsel of perfection’ when evaluating the evidence relating to an accident which, as is agreed, occurred within a very short space of time. As Laws LJ pointed out in Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274, the duty to take reasonable care can sometimes look more like a “guarantee of the Claimant’s safety” when evaluated by reference to “…..fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight.” Mr Freeman submits that fault for this accident cannot properly be attributed to the Defendant, who was driving reasonably and safely along the road at the time, was keeping a proper look out and was presented with a sudden hazard, which was due entirely to the Claimant’s own actions.

On the other hand Mr Martin QC, for the Claimant, draws attention to the fact that a car is “…potentially a dangerous weapon,” as Latham LJ observed in Lunt v Khelifa [2002] EWCA Civ 801, and submits that those who drive cars owe clear duties of care to those around them. In addition to complying with speed limits, a proper assessment of hazards with which they are presented on the road can often be critical. The negligence in this case, he contends, arises from the Defendant’s failure properly to assess the hazard which the evidence shows was presented by this Claimant on the road ahead when she first came into view, and to stop her car in time to allow the Claimant to pass safely by, when there was time for her to do so. The collision deprived the Claimant of the opportunity to regain control of her bike, causing her to fall to the road. Primary liability is therefore established.

On all the evidence I find the following facts. At the time of the accident the Claimant was a fit, healthy and active woman, who worked full time and who went running and attended the gym regularly. She was also an experienced cyclist, who would sometimes cycle long distances and who regularly cycled for pleasure, often in the area where she was on the day of the accident, near her home in Tunbridge Wells. She knew Broadwater Forest Lane well.

Sunday 3 July 2011 was a hot, sunny day and the Claimant left home at about 2 p.m. to go for a bike ride along the disused railway line near Groombridge, which was now a cycle track. She rang her husband at about 3.30 p.m., telling him that she was at Hartfield and was thinking of riding to Forest Row, where the track ends. She also referred to wanting a drink and, since Mr Sinclair said that she always took a bottle of water with her, she may have drunk it all by then, as the Defendant suggests. Nevertheless, I accept Mr Sinclair’s evidence that she sounded well on the phone and sounded as if she were enjoying herself. She made no reference to being tired or to feeling unwell.

The Claimant was out all afternoon. At about 6.08 p.m. she was cycling along Broadwater Forest Lane back towards Tunbridge Wells. It is agreed that it was still bright daylight and that visibility was good.

The Defendant and her family had driven to a family BBQ at Dunloran Park that day, arriving at about 2.30 p.m. They left at about 5.45 p.m. and at about 6.08 p.m. the Defendant was driving the Volvo home to Groombridge, travelling along Broadwater Forest Lane in the opposite direction to that of the Claimant, with her husband in the front passenger seat and their three young children in the rear seats. The Defendant had been driving regularly for many years. She had owned the Volvo since 2010 and was familiar with the car and its controls. Since it is a large ‘4 x 4’ car she states that she had a good view ahead of her from her raised seating position. She was wearing her contact lenses and sunglasses. She too knew this road well and had driven along it many times before.

Broadwater Forest Lane is an unclassified road with a speed limit of 60 mph at the location where the accident occurred, near Little Quarry Farm. The photographs of the scene show the road to be typical of a single carriageway, country road of this kind, as PC Lane stated. The road surface was worn in places, but the police accident report noted no deep ruts or other defects in the surface such as to cause concern, and there were no other carriageway hazards at the site of the accident, where the road was level and on a curve with good visibility.

A number of agreed measurements are helpful in determining the issues. The reconstruction experts agree in their joint statement that, in the area of the accident, the road is 5 metres wide. The width of each carriageway (there are no lane markings) is therefore 2.5 metres. The Defendant’s Volvo is 2.1 metres wide. The Claimant was heading from the straight of the road towards the left hand bend at this point and the Volvo, travelling in the opposite direction, was coming around the same bend from the right. Based on the measurements taken by Mr Mutch at the scene, the experts are agreed that the Claimant and the Defendant would have had a mutual line of sight of at least 60 metres and PC Lane agreed with this estimate, based on his own inspection of the scene. This agreed evidence is, in my view, of some significance in this case.

There is little physical evidence that assists with the reconstruction of this accident and none from which the speed of the Volvo can be assessed, as it approached and then passed the Claimant. There is, however, no evidence of excessive speed and the Claimant does not allege that the car was being driven too fast. Nor is there any physical evidence that assists with determining the Claimant’s speed, or her lateral position as she approached the car. The court therefore has to rely on the primary factual evidence in relation to these matters. No criminal proceedings were brought against the Defendant in respect of this accident.

The Defendant’s evidence is that she was driving along the road at about 35 mph before she came round the bend and saw the Claimant. Mr Joyner estimated a similar speed and I accept that evidence. I also accept that, when the Defendant first saw the Claimant, she slowed down to 20 mph, and that she was travelling at that speed when she passed her. The Claimant does not challenge the evidence as to speed. It is alleged, rather, that there was a failure by the Defendant properly to assess the hazard presented by this Claimant in the road ahead and to stop to allow the Claimant to pass safely by.

The Defendant states that the account she gave to the police in her witness statement, dated 2 September 2011, was an accurate account upon which she now relies, save for what is said to be some clarification provided in her statement prepared for this litigation in February 2014. Mr Joyner’s statement to the police was made on 18 July 2011 and he too relies upon it as his evidence to the court, also with some clarification in his litigation statement.

The Defendant’s evidence is that she first saw the Claimant when she had just come round the right hand bend. She saw that the Claimant was in the middle of the road and said that she was about “two or three car lengths away,” an estimate which she said was the best she could give at the time. She noticed that the Claimant was in the position “…where you would expect an oncoming driver to be if they were in an approaching car, and not over to the edge of the road as you’d expect a cyclist to be.” She accepted in cross-examination that it was an odd position for the Claimant to be in, to be as far over to the middle of the road as she was. The Claimant also looked as if she was standing up whilst cycling. She struck the Defendant as a “casual” cyclist, rather than someone who was serious about cycling and wore the proper clothing.

The Defendant said that she immediately slowed down, as she would do when faced with “any hazard in the road.” Mr Joyner said that this was by taking her foot off the accelerator rather than braking, and I find that is what she did. Cross-examined about the extent of the hazard the Claimant presented, the Defendant said that although the Claimant was in the middle of the road and standing up on the pedals, this did not raise any alarm bells or cause her concern. She saw no signs of discomfort in the Claimant’s face and the Claimant did not strike her as presenting any more of a hazard than a normal cyclist would. Although the Claimant was in the middle of the road, she did not consider her to be a hazard requiring her to do more than slow down. It did not cross her mind that the fact the Claimant was standing up on her pedals meant there was a greater risk of imbalance, or of her deviating from her central position in the road.

Just as the Volvo was about parallel with her, the Defendant states that the Claimant appeared to lose control of her bike, and that she looked as if she was fighting to keep it under control. Then she started to fall to her right and she literally “toppled down like a rag doll towards the car.” The Volvo was already as far over as possible towards the nearside verge when the Claimant fell, and she didn’t actually fall before the car passed her. The Defendant could not see where she had gone. She neither heard nor felt any contact between the bicycle and the car. She felt there was room for the car safely to pass the Claimant. She was positive that the Claimant just fell from her bicycle on to the road, and believed that “she was going to fall off her bike whether I was there or not.”

Mr Joyner’s account to the police was that he too caught sight of the Claimant as the car came around the right hand bend, at which point he estimated her to be about 20 – 30 yards away. Cross-examined as to this estimate, given the agreement between the experts as to the mutual line of sight, he described himself as a pretty good judge of distance and stuck to it. He saw that the Claimant was in an upright standing position on her bicycle as she approached, which he immediately regarded as strange, and he also saw that she was cycling in the centre of the road.

Cross-examined as to what he meant by “strange” he said that when he first saw the Claimant he just had a “sixth sense” that something was not quite right. He also noticed her face and saw that there was something wrong because she looked as if she were in discomfort or pain. As soon as he saw that said that his senses were alerted and that he was “one hundred per cent focussed on it.”

His description of the accident was somewhat different from that of the Defendant. He said in his police statement that, as they were about “one second way” from passing her, the Claimant had “toppled over to her right hand side.” There was no prior warning of this “in as much as she didn’t wobble,” and she “literally fell like a pancake” to her right, without putting out her arms or legs to save herself from falling.

He accepted in cross-examination that it was misleading to say in his police statement that the Claimant fell to the right when they were still “one second away,” and that his account could suggest that she had fallen in front of the car and that he saw her fall. He makes it clear, in his litigation statement, that the Claimant did not actually fall from her bike until they had passed her. He felt it was clear that she was going to fall, however, because she began to topple to her right when she was about 1 – 2 metres from the front offside of their car. He did not at any stage see, hear or feel any contact between the car and the bicycle. He accepted in cross-examination that he did not himself see the Claimant fall. In describing the fall in the terms he did in his police statement, he said that he was reacting to suggestions being made to him by the police at the time as to the nature of her fall.

I note that in his litigation statement Mr Joyner now states that the Claimant was not “in the geometric centre of the road” when he first saw her, but was “around 10% away” from it, on her side. It is not possible to say precisely where the Claimant was but I find on all the evidence, including the account given by Mr Joyner nearer the time, the Defendant’s own evidence and the evidence of Ross Ashdown referred to below that, although the Claimant was not actually on the wrong side of the road she was cycling very close to the centre, as the Volvo approached her and then started to drive past her.

There is no dispute that, after the car had passed her, the Claimant fell to her right on to the road, as described by both Mr and Mrs Joyner and as indicated by the injuries the Claimant sustained, and by the damage it is admitted was caused to the bicycle at the time, including twisting damage to the basket, the handlebars and the saddle.

After the accident the Defendant stopped the car straightaway and she and her husband went over to the Claimant, who was now lying in the road. It soon became apparent that her injuries were very serious and both of them were, understandably, deeply shocked and distressed by what had happened.

Various statements were made by the Defendant and her husband to others who arrived at the scene within a short time of the accident. The witnesses who give this evidence provided their accounts in statements given to the police in July 2011 and therefore very soon after these events occurred. The Defendant and her husband accept, save where indicated otherwise, that they may have said what is attributed to them at the time and I find on the balance of probabilities that they did. Some of what they said then is relevant in assessing the reliability of the accounts they give now, and in determining liability in this case.

The witness Ross Ashdown was also cycling along that road, in the same direction as the Claimant. He first became aware of the incident as the Volvo was slowing down to stop, having passed the Claimant, and he first saw the Claimant as she was leaning at about 45 degrees to the right and was therefore in the process of falling from her bike on to the road. He too noted that the Claimant was positioned very close to the centre of the road, “much further over than I would have expected her to be,” and he saw that she did not put out her hands or do anything to break her fall.After the Defendant got out of her car, he heard her say “I didn’t hit her” several times.

Barbara Plumb is a nurse, who was driving along this road and arrived on the scene shortly after the accident had occurred. The Claimant was lying on her right side on the road and was “tangled up” with her bicycle. Ms Plumb was able to provide some assistance to the Claimant, together with another passer-by, Dr Alasdair Clark, while waiting for the emergency services to arrive. For that reason she asked the Defendant and her husband some questions about what had happened, in order to understand what injuries the Claimant might have sustained.

Ms Plumb wanted to know if the Claimant had been run over and they said no, though Mr Joyner said that he had heard a scraping or grating noise. The Defendant said “…there was nothing I could do, I couldn’t have avoided her.” The Defendant accepts that she may also have referred to the Claimant appearing to wobble before she fell, as Ms Plumb recalls, but this wobble, says the Defendant, would have happened just a split second before the Claimant fell and as she was parallel with the car. She cannot now recall anything else about this wobble or say what caused it.

There is a dispute as to whether the Defendant and her husband both told Ms Plumb, as she recalls, that the Claimant “…fell right in front of the car.” Both of them deny that this was said, on the basis that this is not what happened. What exactly was said to Ms Plumb as to the timing of the Claimant’s fall is therefore unclear. As I have already stated, Mr Joyner’s initial account to the police tended to suggest that the Claimant had toppled and fallen in front of the car and he has accepted that this was misleading. If he or the Defendant said something similar to Ms Plumb she may well have formed that view herself. However, no-one suggests that this is what happened and in my view it does not take matters any further.

Dr Clark also spoke to both Mr and Mrs Joyner at the scene and he recalls them both being very concerned that they may have accidentally injured the Claimant with their vehicle. He also recalls being told that the Claimant was seen to “grimace”, as she was standing up on her pedals, which Mr Joyner accepted in cross-examination was a good description of what he saw on the Claimant’s face at the time.

By the time PC Lane arrived on the scene the Claimant had been taken to hospital, and her bicycle had been moved. The only evidence on the road surface as to her original position was an area of blood-staining near the centre of the road, which he marked on the plan and which, as is agreed, indicates the position of the Claimant’s head on the road when she came to rest. The distance from the rear of the stationary Volvo to this area of blood was about 13.3 metres, and the front of the car was therefore about 18.1 metres beyond the blood. This in itself was insufficient to indicate the location of the point of impact that PC Lane concluded had occurred, and which it is now accepted had occurred.

During his examination of the scene, PC Lane found scuffing on the side wall of the Volvo’s rear offside tyre, close to the shoulder of the tyre, which consisted of striations. This series of linear marks can clearly be seen on a number of photographs, in particular the original photograph produced at trial, labelled C2. He found a similar and corresponding area of contact, consisting of a marked area of matching sideways striations, on the offside of the front tyre of the Claimant’s bicycle, seen most clearly on the original photograph C1. He concluded that there had been contact between the two tyres, in that the front offside tyre of the bicycle had struck the rear offside tyre on the Volvo, and that this was the only point of contact between the vehicles, as is now accepted. It is agreed that there was no contact between the Claimant herself and the car, or between any other part of her bicycle and the car.

PC Lane originally considered that the Claimant would have fallen to the left when this contact occurred. Since there was no evidence of any other contact between the car and any other part of the bicycle, he thought that the bike would have been angled away from the car in order for just the tyres to make contact. He accepted, however, that he had not conducted any forensic analysis of the evidence from the scene, and nor was he asked to interpret his findings in order to prepare a report on this accident. He was called as a factual witness in this case, but he accepted that Mr Mutch’s opinion as to how the tyre to tyre contact and the Claimant’s subsequent fall to the right had occurred was certainly feasible, and there is now no dispute about it.

Damian Mutch has a BSc degree in applied physics and an MSc in Forensic Science. He also holds the Cert Maths qualification from the Open University and has many practical, RTA related qualifications. He worked in the traffic department of Kent Police for many years and was Forensic Collision Investigator in their Crash Division for 5 years until 2007. Since 2007 he has worked at Hawkins & Associates in the field of RTA investigation and reconstruction. He has written numerous reports and has appeared in many cases as an expert witness in the criminal, civil and Coroner’s courts.

He therefore has considerable and relevant expertise and experience, and he is well qualified to express an opinion on the mechanism of this accident and the nature of the contact that occurred. His reports reflect the scientific analysis and assistance which the court is entitled to expect from an expert in this field. They are clearly written and they properly acknowledge the boundaries between matters appropriate for expert analysis and opinion and matters of evidence which are for the court to decide. These observations apply with equal force to the oral evidence he gave at this trial, which stayed within the proper parameters and was helpful in relation to interpreting the factual evidence.

Mr Mutch concluded in his report that the scuff mark on the Volvo’s tyre matched the tread pattern of the bicycle’s front tyre. The patterns of these scuff marks on both tyres are the ‘classic’ marks of contact, due primarily to the friction between rubber on rubber, and he has seen such marks on a number of occasions. There is therefore little doubt, in his view, that the offside tyre wall of the bike’s front tyre had contacted the outer side wall of the Volvo’s rear offside tyre.

Further, the nature of the marks indicated that the scuffs would probably have been made when the scuffed area of the Volvo’s tyre was in the 9 o’clock position and the scuffed area of the bicycle tyre was between the 3 – 4 o’clock position, viewed from the bicycle’s offside. In his opinion, given the lack of any other coincident damage to the Volvo in the collision and the fact that the bike was seen to fall to its offside, the bicycle would have to have been predominantly upright when it collided with the Volvo, with the front of its front wheel angled in towards the car at an angle of not less than about 25 degrees.

He therefore concluded that the front wheel of the bicycle moved laterally into the Volvo’s path after the front of the car had passed the bicycle. Whether the bicycle fell on to its offside as a result of the impact between the tyres or following a period of the Claimant’s response to the tyres colliding whilst she tried to maintain her balance was a matter of evidence for the court.

He demonstrated in his supplementary report and in the witness box, at a time when contact between the two tyres was still in dispute in this case, the precise mechanism of this contact and of the Claimant’s consequent fall to the right, rather than to the left. Since this is no longer in dispute I will summarise the mechanism he described.

As the vehicles passed each other, the tyres would have “slid” past each other, resulting in minimal loss of speed for either vehicle. If the Volvo were travelling at 20 mph when this collision occurred, and assuming the Claimant was travelling at about 5 mph, the period of contact would probably be less than 1/100^th of a second. As a result of this glancing impact, the bicycle’s front wheel would have been caused to be steered to the left of its position at the point of impact, while the movement of the “central mass” (the rider and bicycle) would still be at the initial approach angle relative to the car. In such circumstances the combined centre of gravity of this central mass will move from being directly above the line passing through the central points of the tyres and the road, towards the offside of that line. The bicycle will in consequence start to lean to the right, which Mr Mutch considers is what happened in this case.

It is understandable, in his view, that the Defendant would have passed the Claimant before she did fall to her right. He explained, in this respect, that a bicycle will not fall over immediately in such circumstances. After a glancing collision of this kind there is often a period during which a cyclist tries to regain control of the bicycle before it capsizes, and during that period the bicycle can be seen to weave, even if only momentarily.

By the end of this trial the fact of contact and the mechanism of contact advanced by Mr Mutch were no longer in dispute. Mr Freeman made it clear in closing that he was no longer submitting that no contact had occurred, and he did not rely upon the evidence given by Mr Newton. I accept on all the evidence that there was a collision and I accept Mr Mutch’s evidence as providing the most likely explanation, indeed a compelling explanation for the way in which that collision occurred. After the impact, the Claimant was unable to regain control of her bicycle and she fell to her right and on to the road after the Volvo had passed.

While a possible mechanical fault with the bicycle, or a possible health related problem for the Claimant as a result of the heat, were both explored in evidence as providing an explanation for the Claimant’s fall, they amounted to no more than speculation. There is no evidence that either of them caused this accident and Mr Freeman now accepts that.

It is therefore unnecessary to consider the different theories advanced in this case by Mr Newton. However, his reports and his evidence at this hearing raise matters of concern which I consider it necessary to refer to, having regard to criticisms made by the Court of Appeal in Liddell v Middleton[1996] PIQR P 36 and by Coulson J in Stewart v Glaze[2009] EWHC 704 (QB), as to expert accident reconstruction evidence exceeding its proper parameters.

As Stuart Smith LJ emphasised in Liddell, the reconstruction expert’s role is to provide the judge with the necessary scientific criteria and assistance based upon his or her specific skills and experience, which the lay judge will not usually possess, to enable the judge to interpret the factual evidence. It is not, as Mr Newton described it in the witness box, “…to discover the facts and to use my expertise and experience to give an opinion as to what happened.”

Unfortunately, this wholly erroneous view of the reconstruction expert’s role led Mr Newton to express comments and opinions throughout his reports, adopted as his evidence in chief, as to the facts and as to his view of “the most likely scenario” on the evidence. There are references, for example, to the Claimant having “struggled up the long, slow hill in a low gear”, and to her having “stood up on the pedals too fast” and “fainted”, which amount in any event to no more than assumptions or speculation on his part, unsupported by evidence.

In addition to expressing inadmissible views on the factual evidence in his report, he was further disadvantaged in the witness box in not having attended the trial on the first day, as did Mr Mutch, to hear the factual evidence being given and tested in cross examination. His evidence that he was told not to attend, as a costs-saving exercise, raises further concerns given the issues in this case.

In relation to providing scientific assistance, while robustly concluding that there “cannot have been any contact” between the Volvo and the bicycle, Mr Newton made no reference at all in his report to the scuff marks found on the tyres, upon which Mr Mutch based his views as to contact. In the joint statement, in disagreeing with Mr Mutch’s reasoned conclusions as to contact, he expressed the view, unsupported by any analysis or reasoning, that there was “no likelihood that the scuff marks to the cycle and car tyres were caused by contact with each other.” He described such marks as more often caused by contact with kerb or road surfaces, without providing any evidence or analysis in support of these opinions. Yet in cross-examination he said that he agreed with Mr Mutch’s explanation in the witness box as to why the marks seen on these tyres could not have been made by a kerb stone or road surface.

I accept that Mr Newton has had “many years of experience looking at thousands of crashes”, as he said when questioned as to his qualifications and expertise. It emerged, however, that most of that experience was gained when he was working as part of a multi disciplinary team of academic experts and professionals at Loughborough University’s Vehicle Safety Research Centre, to whom he could and did defer on matters beyond his own expertise, Mr Newton’s academic qualifications being limited, on his own admission, to the military equivalent of the core O’level subjects.

He identified in his report three individuals with academic qualifications in the fields of medicine and engineering, who were consulted by him for the purposes of preparing his report. Their involvement was, however, not documented and there is no information as to the questions they were asked or the answers they gave. The “two wheeler” consultant identified was consulted, Mr Newton said, as “someone who knows a great deal about two wheeler accidents”, who had “checked my report to check its scientific validity” and who was consulted “mostly to confirm that what I thought about the case was true.”

This is clearly unsatisfactory. Most of the criticisms made by the Court of Appeal in Liddell seem to me to apply to the accident reconstruction evidence called on behalf of the Defendant in this case. Wisely Mr Freeman placed no reliance upon it in his closing submissions.

Mr Freeman is right in submitting that the courts must not fall into the trap identified in Ahanonu and impose a counsel of perfection upon car drivers, thereby distorting the duty upon them to take reasonable care in the circumstances. I bear well in mind that the Defendant was driving at a reasonable speed along a road she knew well, with her family in the car, on a warm summer’s evening in a quiet rural location; and that, after she came around the bend, the tragic events that occurred did so within a very short time frame.

On all the evidence, however, I find that in the particular circumstances of this case the Claimant has established to the requisite standard that the Defendant failed properly to assess the hazard that I am satisfied this Claimant presented as she drove around the bend and saw her; and that she failed to stop when it was necessary to do so, and when I find she had time to do so, to allow the Claimant to pass safely by.

In the section dealing with “Road users requiring extra care” the Highway Code (Revised 2007 edition) draws attention, at paragraph 204, to cyclists as among those who are to be regarded as “the most vulnerable road users.” Mr Martin places particular reliance upon the advice given to motorists at paragraph 212, namely “When passing motorcyclists and cyclists, give them plenty of room.” While there then follows a bracketed reference to earlier rules dealing with overtaking, as Mr Freeman observes, the advice in this paragraph is, in my judgment, not confined to cases of overtaking, set as it is in the section of the Code addressing in general terms the vulnerability of these categories of road users, and the need for extra care.

This advice is particularly pertinent in this case. The Defendant’s carriageway was just 2.5 metres wide and the width of the Volvo was 2.1 metres. Even if she were right over to her nearside, and I accept that she was very close to it, that leaves at best 0.4 of a metre between the car and the Claimant who was, on the evidence, riding her bicycle still on her own side of the road but only just. She was very close to the centre as the Volvo approached and then passed her. The Claimant cyclist’s close proximity to the centre of the road was noted by the Defendant as soon as she saw her, and in my view, for the reasonable prudent driver in those circumstances, alarm bells would have sounded instantly.

The evidence also shows that the Claimant’s proximity to the centre of the road was not the only hazard she presented to the oncoming driver. She was, according to both the Defendant and her husband, standing up on the pedals of her bicycle when they first saw her and not sitting firm on the saddle cycling normally. The Defendant saw enough of her to form the view that she was not a “serious cyclist.” Mr Joyner also saw from her face that she was in some discomfort and he noted this as soon as they came around the bend.

The obvious question is why the Defendant did not see this discomfort herself if, as she states, she did see the Claimant as soon as she came round the bend. Clearly, this additional pointer to the hazard the Claimant presented was there to be seen. Her appearance was such as to lead Mr Joyner to focus upon it from the moment he saw her standing up on her pedals in the centre of the road, and to form the view that there was something wrong.

I consider that the Defendant’s failure to see this, together with her estimate that the Claimant was only two to three car lengths away when she first saw her, indicates that she was not in fact keeping a proper lookout as she came around the bend. At this point Mr Mutch’s evidence, agreed by Mr Newton and not disputed by Mr Freeman, is that the Defendant’s line of sight was at least 60 metres. Two to three car lengths, as the Defendant accepted, is no more than 8 to 15 metres.

Given the agreed line of sight, Mr Joyner’s estimate that the Claimant was only 20 – 30 yards away when he first saw her is also incorrect, in my view. Further, the descriptions they both give of seeing the Claimant fighting to keep control of the bike and of her starting to fall, toppling down towards the car and falling like a rag doll, or like a pancake, would not be capable of being seen and processed if those distances were accurate. I find their evidence as to time and distance to be unreliable in the circumstances and I cannot accept it.

On the evidence, the hazard presented was an oncoming cyclist who was standing up on her pedals, grimacing or looking uncomfortable and cycling very close to the centre of the road.In circumstances where the Volvo was already as far over to the nearside as it could go, and where the margin to pass the Claimant safely should have been recognised as extremely tight, the Defendant’s evidence that she saw nothing to raise any alarm bells, that she saw no risk of the Claimant deviating off line and that she considered her to present no more of a risk than any normal cyclist indicates, in my judgment, a negligent assessment of the risk that was present on the road ahead.

Motorists have to anticipate hazards in the road, particularly from vulnerable road users, and to be ready to react to them. In my judgment the Defendant cannot be relieved of that duty of care by seeking to blame the Claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre, after the front of the car had gone past her. The fact that a collision occurred demonstrates that there was not sufficient room for her to pass the Claimant safely, and that the Defendant’s assumption to the contrary was in error. She ought to have appreciated that her car was too close to the centre of the road for her to have passed this cyclist safely.

In my judgment, the reasonable prudent driver in these circumstances would have applied the brakes immediately and stopped, in order to allow the Claimant sufficient room to ride past her. Based on the available fields of view the experts agreed in their joint statement that, if the Defendant had assessed the Claimant as a hazard requiring her to stop before reaching her, there was sufficient time and distance for her to do so before she drew level with the bicycle. Mr Freeman did not seek to challenge this evidence. Mr Martin drew attention to the tables showing the ability to use emergency braking and the relevant stopping distances, produced by Mr Mutch in his report, and which provide helpful evidence in this respect.

The Defendant’s evidence is that she slowed down to 20 mph as soon as she saw the Claimant. As Table 1 (at paragraph 7.2.2) demonstrates, allowing the Defendant the reaction time of 1.5 seconds, the stopping distance at 20 mph is 19.3 metres. The stopping distance at 25 mph is 25.9 metres. There was therefore ample time for the Defendant to stop if she had properly assessed the risk that this Claimant presented. Her failure to do so in these circumstances was, in my judgment, negligent.

I accept Mr Martin’s submission that the causal effect of the collision was to deprive the Claimant of the opportunity to regain control of her bicycle. There is no evidence that the Claimant, as the Defendant suggested, would have fallen over anyway without there having been any contact. As I have already stated, various possible theories for her loss of control and for the fall were advanced in this respect, but Mr Freeman now accepts that there was contact and accepts that there is no evidence to support the alternative theories. It is clear on the evidence that she fell after the collision occurred and, in my view, the fall was the result of the collision, in the way that Mr Mutch described. Primary liability is therefore established.

In relation to contributory negligence, Mr Martin accepts that a finding that the Claimant bears some responsibility for what happened is appropriate in the circumstances of this case. That is plainly right. She should not have been riding her bicycle in a central position in the road. Her conduct in doing so materially contributed to the damage caused and is properly to be regarded as negligent.

There is no other respect in which I find her to have been negligent. There is no evidence to support the pleaded allegation that the Claimant failed to maintain her bicycle and was riding in a public road on a defective bicycle.

The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant’s injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case.

In relation to the admitted contributory negligence, for the purposes of assessing apportionment the emphasis is on fault, requiring an overall appreciation of the Claimant’s blameworthiness, taken with the causative potency of what she did.

In this case, I accept Mr Martin’s submission that the causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her, as in fact it did. In all the circumstances, having regard to the respective positions and conduct of the parties, I accept Mr Martin’s submission that the appropriate apportionment of fault for the Claimant in this case is 25 per cent. Her damages will therefore fall to be reduced accordingly.