ANDREW EVANS v R&V ALLGEMEINE VERISCHERUNG AG

On the 22 September 2020 the claimant Mr Evans was on a motorcycling holiday in the Black Forest in Germany. At the time Mr Evans was an experienced motorcyclist who was well used to driving on the continent and hence on the right-hand side of the road. At about 3.30 in the afternoon, he was approaching a right-hand hairpin bend. It is his case that, as he did so, he became aware of a car driven by Mr Günther, who is insured by the defendant, approaching in the opposite direction. He believed that Mr Günther’s vehicle was on the wrong side of the road i.e., approaching in the claimant’s own lane, effectively cutting the corner. He therefore deemed it necessary to take emergency evasive action, applying his brakes hard, and turning to the left to avoid a collision. Unfortunately, despite this action there was a collision between the claimant and Mr Günther’s vehicle. The defendant in this matter is the insurance company of Mr Günther against whom a direct right of action is provided under German law. The issue of liability is very much in dispute between the parties. It is that issue which I now determine by this judgment following a trial of that preliminary issue this week.

It is the defendant’s case that their driver was in no way to blame. It is said that Mr Günther was at all relevant times on his correct side of the road and in fact the collision occurred on his side of the road. It is the defendant’s case that the accident was caused by the claimant effectively driving too fast for the road conditions and losing control of his motorcycle upon his approach to the hairpin bend. It is said that this accident was caused entirely by Mr Evans and not through any fault of the defendant’s insured.

It is worthy of note that this matter has had some procedural issues raised in the course of the trial. I mention them because, not only did they cause delay to the progress of the claim, but they also had an impact upon the evidence before the court.

Firstly, there was an application from the defendant before me to allow additional video evidence prepared by the defendant’s accident reconstruction expert in the weeks leading up to trial but after the joint statement of experts. I refused this application. However, in the light of issues raised within it the defendant, on the morning of day two of the trial, made an application to amend their defence and to specifically plead that the speed of the claimant was excessive for the road conditions. For reasons given in the judgment on that application I allowed that amendment. As a result of that amendment the claimant’s own reconstruction expert was permitted to provide further evidence in written and oral form to specifically address the question of speed which had not been a highlight of his evidence beforehand.

A further application was made by the defendant in relation to 2 of their witnesses namely Mr Günther the driver and the defendant’s German law expert Mr Tomson. On the first day of trial, I was told that neither of those witnesses (who are German citizens and residents) were present in the UK and the intention was they should give evidence by way of video link from Germany. In principle this was not objected to by the claimant, but it was said that the procedural requirements under Practice Direction 32 of the Civil Procedure Rules and specifically the practice note set out at page 1171 of the 2022 White Book needed to be complied with. The defendant reserved their position overnight particularly as I suggested that arrangements might be able to be made for those two German witnesses to fly into the United Kingdom so that they could give their evidence in the usual way before the court. On the morning of the second day it became apparent that the witnesses were not present and as such a formal application was made by counsel for the defendant to hear their evidence by video. It became clear as set out in my earlier judgment on this matter that the foreign office had indicated that they had a diplomatic objection to that; the German government had stated that they would not allow German nationals to give evidence by video in courts of foreign jurisdictions. As such the foreign office says (in an email that was read to me by counsel) that they too objected. Nevertheless, an application was made for me to ignore the diplomatic objection and hear such evidence. I refused that application. Nevertheless, it was agreed by all parties that Mr Günther’s evidence and the evidence of Mr Tomson could be admitted under the civil evidence act and the question then would be what weight ought to be given to it.

Having set out that procedural background by deal with the law in this matter.

This is a case where the accident happened in Germany. The claimant is British and resident in England, but the defendant insurance company and their insured are German. There have been attempts to reach agreement as to the principles of German law which need to be applied in this matter. In fact, in closing submissions, it became clear that what was described as a “sliver” of difference between the parties on the German law, was no difference at all. I therefore set out below what is the agreed position as to German law.

It is common ground that pursuant to Regulation 864/2007 (“Rome II”) the law applicable to the claim in tort arising out of the accident is German law. The approach in respect to this is illustrated in the judgment of Simon J in Yukos Capital v Oil Company Rosneft [2014] 2 CLC 162; [2014] EWHC at paragraphs 25 – 30.: specifically, the Court is required to determine the foreign law as a question of fact on the basis of the evidence deployed by the parties, according to the usual civil standard. This applies to all questions of liability including any question of contributory negligence. The burden of proof is therefore governed by German law pursuant to article 1(3) of Rome II.

It is also agreed that procedural matters are governed by the law of the forum i.e., the law of England and Wales. In light of the decision of Dingemans J in Marshall and Pickard v MIB and others [2015] EWHC 3421 (QB), paragraph 25, the standard of proof to be applied is that of the law of the forum, English and Welsh law i.e., the balance of probabilities

The defendant’s liability to the claimant as insurer of the car is dependent on the issue of whether the owner (and in this case driver) of the car (Mr Günther) would be liable to the Claimant under the law of Germany. The applicable principles of German law are now agreed.

The parties each had permission to rely upon expert evidence on the question of German law. I have had the opportunity of considering their experts reports and the very brief joint statement prepared. I had an opportunity of hearing the evidence of the claimant’s German law expert Mr Frese who gave evidence with the assistance of an interpreter. However, the reasons I have given above I have not heard nor been able to assess any oral evidence of the defendant German law expert Mr Tomson. I found the evidence of Mr Frese to be persuasive and measured. As the parties now reach agreement as the principles to be applied. I need to say nothing further however on that issue

Turning to the principles of German law against which I determine this matter: this summary is significantly taken from the skeleton argument of Ms Crowther QC which I understand to now be agreed.

It is against that legal background that I then determine the issues of liability in this matter. Essentially, the question for me to determine is whether the claimant has established, on the balance of probabilities, that the defendant’s driver, Mr Günther was on the wrong side of the road on his approach to the bend. If so, and that then caused the claimant to take emergency evasive action, the claimant’s case succeeds. If the claimant cannot establish this on the balance of probabilities, it is accepted that his case fails. The essential factual issue for me to determine is what caused the claimant to brake and brake hard, at what is referred to in the reports as the signal point, causing his wheels to lock and causing him to move across from his lane, into the opposing lane.

I had the opportunity of hearing Mr Evans give oral evidence and be cross examined. He impressed me as an entirely honest and straightforward witness. The key challenge to his evidence was as to what recollection he had in relation to the accident. This is based upon that that after the accident the Claimant was in an induced coma for three weeks. Further when he prepared his witness statement he stated (para 30) “Everyone around me was speaking in German. I did not really know what had happened or why I was there. They told me that I had been in a motorbike accident and I remember saying that I could not have been. I was allowed to speak to Sarah (his wife) on the telephone and she told me what had happened. I could not get the pieces together in my head and it all felt very surreal. I simply could not believe that I had been involved in an accident.”

It was therefore put to the claimant in cross-examination that insofar as he could recall any details leading up to the accident that was probably a reconstruction on his part not deliberately or consciously but from dreams or flashback images he may have had. The claimant in my judgment was very clear in relation to this and said that that was not the position. He had a clear recollection of the day leading up to the accident. This is set out in his witness statement and confirmed on oath. He simply could not remember the immediate circumstances of the accident when he was in collision with the defendant’s vehicle. His evidence was that matters came back to him and that he had a clear recall. I have weighed this up very carefully. I note that in his witness statement prepared for this case he made it clear in paragraph 31 that: “I get more and more recollections of what happened all the time, but I still cannot remember the point of impact or the fall. I can remember the manoeuvre and the car, but then I can't remember anything else, until I woke up in hospital”

As such it has always been his case that he remembered the circumstances and the manoeuvre of the defendant’s car but not the point of impact.

I have taken into consideration that the claimant’s wife, whose evidence was provided in written witness statement form only and was not called to give oral evidence, states at para 20/21: “I first spoke to him on the Friday of that week. It was very emotional from my part. He was just screaming, asking me to tell him what is happening, and he was utterly distraught. I told him he had an accident, but he did not know what had happened. I said I will tell you on Monday when I see you, but he was saying tell me now. I tried to tell him, but he was not really listening and was just in full panic mode.

Mrs Evans was not in Germany at the time; it very difficult situation for her with her husband being in intensive care. Of course, this all happened during covid lockdown and she was unable to visit her husband as she wished. However, her statement does confirm that she flew out when her husband had regained consciousness having previously visited when he was in a coma; her statement gives no further history of her husband’s recall of the accident. I take from that untested evidence that even at the outset the claimant was challenging the assertion that he had been on the wrong side of the road and was responsible for the accident. That would support the claimant’s assertion that he recalls and has always recalled the background to the accident but only had difficulty recalling the immediate impact.

Weighing all of these matter and having heard the claimant give his evidence I am satisfied that the claimant’s recall is a clear one. Of course, there is a possibility that anyone can reconstruct the circumstances of an accident over time and simply because someone gives a compelling account it does not mean that such an account is necessarily an accurate one. There is a natural tendency to retell a story in a way that is favourable for oneself. However even taking all of that into consideration, the Claimant impressed me as an honest and straightforward and credible witness. His detail recollection was impressive. Details about stopping to get a cherry cake and being unable to go into the shop because he didn’t have a mask was convincing and compelling. His explanation that he rode for pleasure not full speed again was persuasive. He said that he was perhaps selfish in that he enjoyed going away on his own and having in effect “me time”. He enjoyed the scenery and the journey of driving around the Black Forest and was he said in no rush. There is reference in the witness statements to him being out for a “trundle”. Further he is not a motorcyclist who he said rides for speed. He challenged, in I found a very persuasive way, the assertion made that the wear on his tyres indicated that he was a “risky” rider, responding in what I found be a measured and well-reasoned manner that he simply used all of the tyre as was good practice.

I therefore accept on the balance of the evidence of the claimant was a careful and experienced motorcyclist. That is supported by a number of witness statements prepared by friends of the claimant who were not called to give evidence but confirm this. Of course, even the most experienced and careful of motorcyclist can on occasions make mistakes. The question in this case is whether that is what the claimant did or not.

The point I take from the claimant’s evidence which I accept are as follows: –

The claimant’s clear evidence was that he saw the defendant’s vehicle driven by Mr Günther approaching him on the wrong side of the road i.e., on his side of the road. He said that he has a clear recollections to that. It was put to him that he would not have been able to see that because of the presence of trees, a traffic barrier on the side of the road and because he would have been focusing on the road itself. He, in my judgment, gave a clear and compelling answer when he explained the height of the vehicle would have been above the tarmac and so would have been clear to be seen. The claimant stated that the photographic evidence in the bundle from the experts does not accurately reflect his viewpoint as he was positioned on a motorcycle nearer the middle white line than the photographer: that, in my judgment is a forceful point. His recollection was that he did see the Defendant’s vehicle and assessed that it was on his side of the road.

In his witness statement the claimant stated; “I would estimate that I was about 100 metres away from the bend, when I first saw a Mercedes car coming towards me on my side of the road.” He accepted that his calculation of distance in his original statement of 100 metres may well not have been an accurate one and at that point he expressed some confusion as to whether he referred to distances in metres, yards or feet. In cross examination the Claimant stated that this was a “guesstimate” and that trying to remember details, yards, and feet was “not my forte”, he was trying to remember events not distances.

It may be that this was an adaptation of the claimant’s evidence taken into consideration the agreed fact within the reconstruction experts’ report that the claimant would not have been able to see the defendant’s vehicle from a distance of a hundred metres or yards. Nevertheless, the clear impression gained from the claimant’s evidence is that he did see the defendant’s vehicle approaching on the wrong side of the road and it was that which caused him to take emergency evasive action. I do not consider the Claimant’s evidence to be undermined by this mistake as to distance. This court is well used to witnesses guesstimating wholly incorrectly distances.

I am reinforced in my confidence as to the claimant’s recollection by the sketch plan he drew in the November after the accident which is contained in the bundle at p48. At that stage the Claimant did not have the benefit of photographs or reconstruction evidence: his illustration however is largely consistent with the positions subsequently plotted by the reconstruction experts. This is not a determinative point, but it adds credence to the claimant’s account that he had a good recollection.

Overall, I considered the claimant to be an honest and convincing witness who had good recall of the circumstances leading up to the incident if not the incident itself. If the claimant had wanted to mislead the court he could have of course and said that he recalled further matters. It is not suggested by anyone that the claimant was trying to mislead. On the question of whether his evidence was persuasive, on balance I found that it was.

Other lay witness evidence: as stated the claimant produced number of witness statements from other motorcyclists who stated that the claimant was a capable motorcyclist with considerable experience of riding in Europe. The defendant did not have the opportunity of testing this evidence by cross-examination but in any event I give it a limited weight only. There is unlikely to be any significant challenge that the claimant was an experienced cyclist. That does not of course mean, as stated above that he could not have made a mistake.

Turning to the lay evidence of Mr Günther who was the defendant’s driver. I set out the history as to why Mr Günther was not called to give evidence. I do not know why arrangements were not made for him to attend court in person. I do not draw any adverse inferences from his non-attendance given it seems the solicitors have made the brave assumption he would be able to give evidence by video. Nevertheless, the claimant has not had an opportunity to challenge Mr Günther’s evidence by cross-examination. There would have been significant challenge to what is said in his statement. It is said on behalf of the defendant that I should nevertheless place considerable reliance on Mr Günther’s evidence because he, according to his statement, knew the road well and the police accepted his version of events. It is correct to say that the German police investigation did not include any evidence gathering from the claimant and as such they appear to have been wholly unaware of his case that Mr Günther approached by cutting the corner. I cannot confidently rely upon the German police report therefore in respect of findings in respect of the accident cause.

It is correct to say that there was nothing in the physical findings on the road surface which supports the claimant’s assertion that Mr Günther was on the wrong side of the road (the experts agree the evidence is neutral on that point.)

However, insofar as it is directly contrary to the claimant’s evidence and not supported by any other evidence in the case (such as accident reconstruction evidence) I have to treat Mr Günther’s evidence with care and give it limited weight. I say that not only because it was unable to be tested in cross-examination but because there are a number of critical inconsistencies between the witness statement of Mr Günther and the police statement provided by him after the accident

In the police statement taken shortly after the accident Mr Günther’s account of the accident was as follows:

In his (untested by cross-examination) witness statements for these proceeding Mr Günther said that

I note that Mr Günther believed his vehicle was at a standstill at the point of collision. I also note that there appears to be a clear difference in the police account and the statement of Mr Günther as to the position and action of the claimant’s motorcycle when he first saw him. In his statement he asserts that the claimant was already on the carriageway having fallen over. This is markedly different from the account provided after the accident to the police. Further, there was a different position between the 2 accounts as to the speed that Mr Günther took when approaching the bend (whether he reduced his speed or not). In his police statement he made no mention of his position in the road (nor is there any evidence that he was asked as to this). These are all significant issues which, in the absence of explanation which could have been provided orally, I need to look at with care. I conclude that these issues are such that Mr Günther’s evidence is significantly flawed.

Conclusions I draw from this evidence: in so far as there is a direct conflict between evidence of the claimant and the defendant’s driver, I accept the evidence of the claimant. However, that evidence still has to be considered in the light of the accident reconstruction evidence in this case.

At this stage, it is appropriate to comment on the usefulness of accident reconstruction evidence in a case of this nature. This court is well used to assessing witness evidence as to road traffic accidents. In the case of Liddell v Middleton 1996 PIQR (an authority well known to these courts and often referred to), Stuart-Smith LJ gave some useful guidance as to the proper approach for a court to take in respect of such evidence.

I accept that this is the correct approach to take and is one which I adopt in respect of the expert evidence in this matter. That evidence is useful, but there are many aspects of the expert evidence in this case which do not help me. Fundamentally, where there is necessary scientific criteria and assistance beyond the skills of the ordinary lay man, I am entitled to utilise the expert evidence to assist me and to determine the factual evidence. However, in terms of findings that can be based on factual evidence alone, that is ultimately a matter for me to determine.

The claimant relies upon the expert evidence of Mr Mottram; the defendant on the expert evidence of Dr Weyde. They have each prepared a report and a joint statement (and an additional note in Mr Mottram’s case for reasons set out above). Dr Weyde’s evidence had been translated from its original German.

It is unfortunate that at this stage I need to mention how the defendant expert evidence of Dr Weyde was presented before the court. Dr Weyde is a German expert engineer who speaks English to a very high level. He did not seek the assistance of an interpreter to give oral evidence. His report had originally been written in German and then been translated and was certified as correct. However at the commencement of his oral evidence he was keen to make the point that he did not accept that the translation was wholly correct. Over the course of perhaps an hour he went through in significant detail some minor and some more significant amendments to the translated versions. He said that he had provided these corrections to his instructing solicitors. During a short adjournment it became apparent that there had been a discussion between the parties previously when the joint statement of the experts was being prepared and the defendant solicitors had confirmed that the certified translation was the correct one. How it came about therefore that Dr Weyde was seeking to amend or correct the certified translation remains unclear. The defendantäs solicitors had stood by the certified version. As such that is the one that I was bound to consider (it would not be fair on the claimant to do otherwise in circumstances where they had no opportunity to check that the translation was correct). I do not reflect upon this to conclude the Dr Weyde’s evidence is weakened by this unfortunate situation. I do however reflect that it was entirely unsatisfactory and caused delay in the conduct and progress of this trial.

A further point that should be made in relation to Dr Weyde’s evidence is that he is certified as an expert within the German courts; it was explained by him that the approach there is a different one. Dr Weyde explained that in Germany he would be appointed as a single expert for the court (as opposed, as he said, as an expert for the defendant) and in effect his conclusions are likely to be determinative. He therefore made assumptions in favour of the claimant rather than the defendant in such circumstances. Whilst Dr Weyde’s approach in this case was of course as a CPR Part 35 expert I recognise in assessing his evidence, that his evidence did appear to be seeking to be determinative.

It is useful to start by looking at what is agreed between the experts in this case. The experts joint report was prepared by exchange of emails and was apparently prepared in English and therefore no translation issues arose.

It is agreed:

Each of the experts were cross examined at some length and appropriate detail as to their reports and the difference between them.

Mr Mottram’s evidence: Mr Mottram had produced a report (and supplemental) plus video and photographic evidence of the scene. His conclusion in effect was that upon the claimant’s approach he would have been able to see that there was a hairpin bend ahead and he would have been able to see from his positioning the approach of Mr Günther. Re reiterates this in the joint statement: “when heading in the direction in which Mr Evans travelled, there is a clear view of the road on the right, around and ‘beyond’ the right-hand bend, at a lower level. That is, when approaching the bend in Mr Evans’ direction, the route of the bend can be seen clearly, and there is no doubt that the road is about to bend through about 180° to the right. Further, it is notable that there are no warning signs on the approach to this particular bend, that warn of a bend ahead, and there are no arrow signs on the bend. Mr Mottram suggests that is because it is obvious where the road runs, well before the bend is reached.”

He commented in evidence on the police photographs which he said showed the approximate claimant’s approach. He accepted that when he took photographs and videos there was more foliage on the trees and therefore there was a slightly different position albeit he reiterated that it was possible to see around the corner to the hairpin bend and see the approach of oncoming vehicles.

There was some discussion in his evidence as to whether the parties had agreed what the signal point was and Mr Mottram was content with the range the Dr Weyde put forward of 20 to 25 m away from the collision point albeit his precise calculation of 22 m. As stated the experts agreed that it would have been impossible for the claimant to see Mr Günther from 100 metres back but Mr Mottram asserted that he certainly was able to see him before the signal point; he said that Mr Evans had made a conscious decision to move before that point because the tyre marks on his side of the road showed a decision to make hard braking, it was on his lane and only afterwards did the hard braking go out of control. The experts had agreed that the motorbike was upright when it crossed the white line or in any event not a critical angle on its own side of the road. That suggested to Mr Mottram that the claimant had reacted to something which caused him to take emergency evasive action whilst he was still in control of his vehicle and on his side of the road.

Mr Mottram was vigorously cross-examined as to whether his calculations might be mistaken such that there ought to be a longer period between the reaction point and the signal point to reflect a period when the effect of braking had not yet had an impact. Mr Mottram was prepared to accept that that could be up to 1 second but noted that Dr Weyde had given a shorter period. He accepted therefore that both the claimant’s and defendant’s vehicle could be slightly further back on their approach. However, that did not cause him to conclude that they would have been out of each other’s line of visibility. He was also cross-examined at some length as to whether the defendant’s vehicle was stationary or not at the point of collision (albeit, the difference it made of perhaps 50cm may not have any real impact on decisions I need to make). He gave, what in my judgment was clear and compelling evidence that the damage to the car and motorcycle were consistent with the claimant hitting a stationary vehicle. The direction of marks on the road were compatible with the motorbike bouncing back from striking a stationary vehicle. Further the marks on the car tyre were consistent with the motorcycle hitting the tyre. The positioning of the scuff marks on the tyre was consistent with the vehicle being stationary. He did not accept the analysis by Dr Weyde that the vehicle was moving and said that if it had been moving the tyre would have rotated such that the impact point on the tyre would have been in a different position.

Taking his evidence as a whole I note that Mr Mottram was prepared to make sensible concessions for example in relation to the delay set out above and lines of sight et cetera. Nevertheless he retained his position that the balance of the evidence supported the claimant's position, and that it was much more likely that the claimant had reacted whilst on his own side of the road to a vehicle coming towards him on his side of the road. That also coincided with the angle of the defendant's car when it came to a stop.

Dr Weyde's oral evidence had the initial difficulties which I have set out above. Dr Weyde was less willing to make concessions than Mr Mottram. He was quite rigid in his interpretation of matters. An example of this is the perhaps peripheral issue as to whether the defendant's car was stationary at the point of impact. Both experts agree that it makes probably very little difference to the circumstances of the accident. Nevertheless, Dr Weyde was insistent that the positioning of the marks on the defendants car tyre justified his position that the car was still slightly moving at the point of impact. He introduced in cross-examination the assertion that the defendant's insured's tyres could have locked and the car could nevertheless have moved forward to explain the positioning of the scratch on the tyre. I'm afraid that I found that part of his evidence entirely unpersuasive.

Dr Weyde had relied upon a relatively poor-quality photograph within the police report of the claimant’s motorbike tyre to reach the conclusion that the tread on it was consistent with the claimant carrying out a sporting ride or risky riding. There was some discussion as to whether this was a correct translation. Dr Weyde then started commenting on his own experience as a motorcyclist. He said that the person riding this bike is more likely to have a higher inclination to lateral acceleration indicating a large worn pattern of tread on the edge of the tyre. He was asked whether he accepted the claimant’s comments that this was indicative that he was a confident and competent rider; he then said that it didn’t mean that the claimant was a risky rider, it was just typical of a person or indicated a person who would take risks. I am troubled by that aspect of the evidence. If the marking on the claimant’s tyre was said to be an important factor it is critical that that evidence was put clearly and objectively. It appears to me that Dr Weyde had raised the flag of the claimant being a risky driver but then appeared to pull back from that. I remind myself that an expert’s duty is to be objective, and I am concerned that in relation to this point Dr Weyde was not being so.

I have carefully reconsidered all of the experts' evidence in written, video and oral form for the purpose of this judgment. Having considered it overall I did not find Dr Weyde’s evidence of real assistance. I have to reach the conclusion, I am sorry to say, that Dr Weyde was making assumptions rather against the claimant rather than in favour of him. The conclusion I draw is that he appeared to be seeking to pick apart Mr Evans’ evidence rather than analysing things independently.

As against that I found Mr Mottram to be a more measured and careful expert in his approach to the court. His evidence corresponded, in my judgment with the photographic evidence on the day from the police. Having said all of that I have to take the evidence in the round in determining what happened in this case. Whilst expert calculations assist in certain cases, on the key determination in this case, as to the cause of the Claimant’s emergency braking the expert evidence has limited value.

As set out above I found the claimant to be a compelling witness and his recollection that he saw Mr Günther on his side of the road on approach was a forceful one.

Would he have been able to see Mr Günther? I have carefully considered the photographs. The photographs at p448 onwards from the police on the day in question of course do not show directly the claimant’s viewpoint (they are at a different position in the road) but they do provide a very good picture of what Mr Evans’ would have been able to see on the day: in fact if, as he said, he was more towards the white line than the photographer his view around the bend would have been rather better.

In my judgment having looked at photographs and to some degree the video taken a number of months later it is apparent that there is a sharp right turn ahead of the claimant on his approach. That can be drawn from the fact that the road disappears to the right. There are low level metal highway barriers again bending to the right that one can see through the trees. Also, one can to a more limited degree see between the trees as to where traffic is oncoming. The claimant’s point that he would have been riding towards the midpoint of the road where it was safe to do so means that his angle of view would be better. I therefore also accept the claimant’s position that he knew that there was a sharp bend ahead from consideration of his TomTom device. Accepting all of that the claimant’s account is that he saw Mr Günther coming on his side of the road.

It is said by the defendant that this could not possibly be in the position because Mr Günther’s vehicle would have been further around the bend. However, looking at the police photographs again in my judgment it is clear that a vehicle approaching on the wrong side of the road could be seen. Further I accept the claimant’s evidence that it would be capable of being assessed as to whether it was on the correct side or not. Looking at photographs at page 445 and 446 a police vehicle can be seen on approach and in my judgment it would be readily determined which side of the road it was on from its angle and positioning. I accept that my view looking at photographs in the cold light of a courtroom and that of a mobile motorcyclist at the scene is not directly comparable. The claimant would have had a dynamic view.

I am supported in this conclusion not only by the claimant’s own evidence but those parts of the reconstruction evidence which are agreed. It is accepted that the claimant’s reaction and brake marks start when his vehicle was upright on his side of the road. Therefore, it must have meant that there was something some distance back (adding in reaction time and some of the delay to have full braking effect) which would have caused him to apply his brakes. That was an initially controlled movement. It was only when the full application of the brakes was applied and the vehicle crossed the line that the bike slid onto its side. In my judgment that is wholly consistent with the claimant’s case and fits with the expert evidence.

I therefore find as follows:

In conclusion therefore in my judgment I find that the claimant took emergency evasive action because Mr Günther was approaching in his lane cutting the corner. I have considered the possibility that the claimant was simply going too fast and lost control of his vehicle going around a bend too quickly, however I reject that. First of all there is no witness evidence to support it. Neither the claimant nor Mr Günther make that assertion. Mr Günther himself in fact to the police said that the claimant’s vehicle was not travelling at excessive speed for the road conditions. Further the markings on the road do not indicate that the claimant was going at significant speed. Did he simply misjudge the bend and lose control? On balance I reject that assertion. I accept that the claimant knew that there was a bend ahead because it was there and obvious to be seen. In the absence of excess speed there would have been no reason for him to lose control. As Dr Weyde himself conceded on behalf of the defendant if the claimant was simply approaching the bend he could have reduced his speed by a couple of kilometres per hour and safely gone round it. There is therefore no cogent or persuasive evidence to support the defendant’s theory that the cause of this accident was the claimant losing control of his vehicle because of the sharpness of the bend or his speed on approach. The alternative scenario which is that as the claimant himself says Mr Günther was approaching on the wrong side of the road cutting the corner has forensic potency. I find that that is what caused this accident.

In all of the circumstances therefore I am satisfied on the balance of probability that the cause of this accident was the approach by Mr Günther, the defendant’s insured, for whatever reason going into the claimant’s lane. The claimant had no choice but to take emergency evasive action. The claimant prior to that had been driving within the speed limit and at appropriate speed for the road conditions. He was not to blame.

For the reasons set out above and applying the principles of German law as I do I find that this accident was caused by the actions of the defendants insured. In the light of the correctly conceded position that if I were to make such a finding there should be no division of fault for contributory negligence, or its equivalent, judgment should therefore be entered for the claimant for 100% of the value of this claim.