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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dorning v Personal Representative of Paul Rigby (Deceased) [2007] EWCA Civ 1315 (13 December 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/1315.html Cite as: [2007] EWCA Civ 1315

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BURNLEY COUNTY COURT
MR RECORDER FREEMAN
4MA006366

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th December 2007

Lord Justice Ward:

Introduction

1. This appeal arises out of a somewhat unusual road traffic accident. Some facts are beyond dispute. Others give rise to uncertainty. The questions are whether the judge properly analysed the facts, decided the issues that had to be decided and gave good reasons for those decisions.

The incontrovertible facts

2. On a clear Sunday morning, on 28th July 2002, a convoy of four motorcycles was travelling at speed westward on the A588 Lancaster to Blackpool road. Paul Rigby was leading on his yellow Fireblade Honda motorcycle. Following him was the appellant, Andrew Dorning, on his 747cc green Kawasaki. Then came the appellant's father, Philip Dorning, and bringing up the rear was Mark Gillespie. They were all experienced riders.
3. They came to a point where the A588 swings sharply to the left and there were painted signs on the road warning of the need to slow down and two chevron road signs on the verge emphasised the looming danger. At the apex of this sharp angle was a T-junction formed by Pilling Marsh Lane as the stem of the T coming down from the north. Mrs Rebecca O'Callaghan was driving with her mother and two children towards the A588. Across the fields to her left she saw the speeding motor cyclists. To her right on the A588 was a BMW motor car driven in its correct lane by Mr Alfred Astbury. His statement to the police was admitted and it is convenient to recite from it:

"I wasn't in a hurry and was driving about 30 mph along the road. I was heading along the road approaching the turning for the picnic area. Just before the turning I saw a yellow object appear in front of me. I had no warning of its approach and hadn't seen it before this point. Almost immediately it hit the front of my car. I thought it was probably a motorcycle and it all happened very fast. At this point I can only say there was an explosion in front of me. My car's airbag inflated and I saw a yellow object, which I now believe was the motorcyclist going into the air and over the top of the car. I then remember looking through the smashed windscreen of the car. A man appeared by my car and then I got out of the car. I could see my car was badly damaged and two motorcycles near to a field. I could see the two motorcyclists in the field."

4. He was not the only one to refer to "an explosion". Mrs O'Callaghan, who was called by the defendants, said in her witness statement prepared for the trial:

"The first motor cycle, which I now know was driven by Mr Paul Rigby, collided head on with the BMW motor car. There was just an explosion as the two vehicles came together. I saw Mr Rigby thrown through the air and he went over a fence and into the field at the side of the road."

Mark Gillespie who was also called by the defendant said in his statement to the police made on 6th September 2002:

"27. I followed Phil along the road and as I approached the shallow left hand bend I saw a large cloud of dust thrown into the air. At first I thought that it was a tractor working on a field.

28. When I approached the second, more sharp left hand bend however, I could see across the crown of the bend and on the opposite side of the road, there was a stationary BMW motor car which appeared to have been travelling in the opposite direction to ourselves. The car was at an angle in the road with the front pointing towards my right hand side of the road. The car was badly damaged at the front.

29. Paul's motorcycle was straddling a wire fence at the side of a field and Andy's bike was leaning against the same fence.

30. It was obvious that this was the scene of a serious road traffic accident and the cloud of dust had been caused by it."

5. The appellant made a statement to the police under caution on 6th September 2002. Asked, "What happened then?", he replied, "There was just a yellow explosion". His father told the police at the same time:

"Although I could see Paul and his bike I could not see the road surface or centre line because of the dips in the road so therefore I couldn't say if Paul actually crossed the white line. The next thing I saw was what I would describe as an explosion. Paul's bike just seemed to explode on the bend. I knew he had hit something but I didn't know what. I now know it was a BMW car but I didn't see it at all prior to the collision …"

Under cross-examination he gave an equally graphic account [transcript p. 33]:

"Can I just explain something? … When it happened it was an explosion. This bike just exploded in front of us. I was a lot further away than Andy and it scared me and I've been driving 30 years on motorbikes, and to say that you'd do this or you'd do that in that situation doesn't always apply."

6. So we know what had happened. Paul Rigby failed to negotiate the bend, crossed onto the wrong side of the carriageway and collided head on with the BMW motor car. He was flung over the car and landed in the adjacent field. The impact was tragically fatal. He probably died instantly. Mr Astbury, saved by his airbag, suffered some cuts and a broken arm. The appellant also failed to take the bend and slid across the road, avoiding the BMW. He ended up in the field injured, but fortunately not too severely.
7. That evidence is not disputed. One may, therefore, safely and without fear of contradiction, draw three conclusions from it:

(1) the deceased was negligent in that he failed to control his motorcycle so as to prevent it crossing the carriageway into the path of an oncoming vehicle;

(2) his negligence caused the collision with the BMW; and

(3) the collision caused the explosion.

The issues which arise and the decision on them

8. Taking a moment's imagination to visualise the events unfolding before Andy Dorning's eyes, one can easily anticipate the issues that would inevitably arise in the claim which he makes against the personal representative of Paul Rigby's estate for damages for personal injuries which he suffered. Those issues were bound to be:

(1) did the deceased's collision with the BMW, and the resultant explosion, create an emergency situation for the claimant which caused or contributed to his losing control of his motor cycle; and/or

(2) did debris from the collision cause or contribute to that loss of control; or

(3) was it entirely the claimant's own fault that he failed to negotiate the bend safely?

9. District Judge Freeman, sitting as the recorder, heard the action over two days in the Burnley County Court at the end of which on 1st December 2002 he found against the claimant and dismissed his claim, the quantum of which had been agreed at £80,000. Refusing permission to appeal the Recorder stated:

"… the reason given by the claimant for the accident was debris on the road. There was no such debris and so the claimant must fail on that alone. [Emphasis added by me.]

In any event the evidence of an independent witness that the claimant was following too close to the leading motorcyclist was preferred. It concurred with the opinion put forward by the defendant's expert. The evidence of the defendant's expert was preferred. In any event the claimant was not in a position to show that he himself as the following vehicle was wholly to blame or in breach of his duty of care to the deceased."

10. Rix L.J. gave permission to appeal observing:

"The judge concluded that the appellant was entirely the cause of his own accident but, given the respondent's negligence and the experts' evidence, whatever criticism may be made of the appellant's own driving, such a result may arguably seem counter-intuitive. It might be said that Mr Sutcliffe, the respondent's expert, accepted, both in the Joint Report and in his own evidence, that the respondent's negligence was itself part of the cause of the accident."

The judgment

11. The judgment was delivered ex tempore. One must, therefore, be slow to criticise any infelicity of expression. Delivered in what was at times an almost conversational style, it speaks eloquently of the recorder's kind handling of a difficult case, but it must, nonetheless, stand the test of analysis.
12. The recorder began with this summary of the claimant's case:

"3. It is alleged in the particulars that by reason of this collision it caused the claimant to take emergency evasive action and due to the presence of debris, which was scattered across the road in his path, the claimant lost control of the motor bike. The motorcycle slipped from underneath the claimant, colliding into a wooden post. The claimant ended up in an adjacent field. It is alleged that this collision was caused by the negligence of the deceased and the particulars allege … that he was negligent and that he rode onto the wrong side of the road and into collision with the BMW, and thereby creating a dangerous emergency situation for the claimant and afforded the claimant no reasonable opportunity of avoiding the accident."

13. Unfortunately there was no full analysis in the judgment of the way the case was being pleaded and put by Mr Nowland on the claimant's behalf and I venture to think that if the recorder had spared a few moments to undertake that exercise and pose the questions to be decided, then he may not have fallen into the fundamental error which, as I will explain, undermines his conclusion. That error was to confine his consideration of causation to the presence of debris on the road (see, for example, the highlighted passage in the reasons given for refusing permission to appeal). In fact, as ought to have been obvious, (see [8] above) and as was explicit in counsel's written opening statement, there were two separate causes being advanced for the accident, namely:

"The claimant's case

5. The claimant contends that he lost control of his motorcycle due to the occurrence of the collision ahead of him. More particularly, it is his case that:

5.1. the collision created a situation which caused him to take emergency evasive action and, in so doing, he lost control of his motorcycle;

5.2. debris from the collision which was scattered across the carriageway, caused him to lose control of his motorcycle."

14. True it is that the claimant himself, supported by his father, blamed the debris for his loss of control but, nonetheless, the collision with the BMW and the resultant explosion creating an emergency in which he had to react in the agony of the moment remained very much in play. That was the preferred view of causation advanced by the claimant's expert, Mr Boulton.
15. The judge meandered a bit in paragraphs 5 and 6 of his judgment and Mr Nowland submits, with some justification, that this supports his submission that the judge had lost focus, especially since it led immediately to his announcing his conclusion in the opening sentences of paragraph 7:

"5. The question of duty of care appeared, popped up, during submissions, and I say that I am satisfied that every road user owes a duty of care to another road user, but it is quite clear that it is only in very unusual circumstances that a vehicle which is ahead of another vehicle can be said to have acted in breach of that duty of care if a collision occurs involving his and the vehicle behind it. People say, well if you hit somebody from behind, you are always liable. Well you nearly always are, but there are circumstances where you might not be, and so one does not dismiss out of hand the question of duty of care here …

6. … Now, there are a number of possibilities that might have occurred which could have led to legal proceedings. One is that if there had been a car following the BMW and as a result of this had crashed into the rear of the BMW where would liability have lain then? Would have lain with the BMW? Would it have lain with the motorbike, Mr Rigby, or would it have lain with the gentleman or lady driving the car behind the BMW? There is another possibility, suppose that by great good fortune Mr Rigby had not hit the BMW but had skimmed across the front of it and gone into the fence. What if then the claimant, then panicking, doing all the things that the claimant's counsel has said, lost control and crashed into Mr Rigby, where would the blame have lain then? Well it is an interesting thought, is it not? I will not make any comment for the moment, but it is in that context that one has to think of these things, and what it does, I think, is to demonstrate what a very difficult task it would have been for Mr Nowland to persuade me that the defendant was liable in this case.

7. As I have made up my mind there is no point in keeping people in suspense. I think this claim falls to be dismissed. I will now go through the evidence and explain why that is. …"

16. So he began his tour through the evidence. He accepted that the plaintiff was "quite an experienced motorcyclist". He recited the claimant's witness statement made on 20th July 2005:

"All of a sudden I saw an explosion in front of me. It seemed that Paul made no effort to turn his bike to the left. I could see his bike as it approached the left-hand bend. I could see his brake lights but they did not come on at all. I do not think he even touched the brakes. I saw Paul's yellow Honda bike go round the corner, then I saw the explosion. Paul's bike had hit a BMW which had been driving in the opposite direction. I saw bits of Paul's bike go all over the road. Straight away I panicked. I should say I was about 50 yards behind Paul at this point. I said to myself, "Shit", and when I looked I saw the debris on the road. I started to brake as quickly as I could. I could just see the yellow from Paul's bike from the explosion in front of me.

I remained on my own side of the road whilst braking. I was slowing down and slowing down. I had been slowing down for the bend on approach before I saw Paul's bike explode. I thought I was going to be okay and that I would be able to stop in time. I was in the centre of my lane preparing to go round the left hand bend. As I would have got nearer the bend I would have moved slightly over, more towards the centre of the road and then swung in to go round the corner. At the time I saw Paul's bike explode in front of me I was pretty much in the centre of the road approaching the corner. As I got nearer and nearer to the scene where the accident had occurred I hit all the glass and bits on the road and was thrown off my bike. The road at that point where the accident happened was totally blocked. It was a weird experience, almost like slow motion. It is certainly something I never want to experience again."

Then the judge added:

"That is a clear statement from the claimant blaming the debris on the road for the loss of control of his bike. It is also stated that the road was totally blocked. That cannot be correct. Indeed it is not correct. The photographs and all the other evidence show quite clearly that the road was not totally blocked. The BMW was (inaudible) almost halfway off the road on the far side and Mr Rigby's motorbike was clearly off the road and up against a fence where it appears in the photographs:

"I did not hit the BMW. My bike seemed to skid from under me on the glass and debris [again blaming the glass and debris] that was on the road from both the car and Paul's bike. My bike just went from under me. I ended up in the field on the opposite side of the road. My bike ended up in the ditch." [The emphasis was added by the recorder].

17. The recorder then recited at length from the statement of the claimant made to the police under caution. I will not repeat it all. These seem to me to be the pertinent points:

"PC: At the end of this straight stretch is a bend to your left, where you collided. Do you remember what happened, what you did, on the approach to the bend?

D: Before I could see the bend Paul was pulling away from me. I didn't know the roads so I was a bit dubious anyway.

PC: Did Paul pull away from you quickly?

D: Just accelerated away.

PC: Just before he went into the bend how far was he in front of you?

D: About 50 yards in front of me.

PC: Could you say what speed he was doing?

D: No, fast enough.

PC: In excess of 70 mph?

D: Yeah.

PC: In excess of 80 mph?

D: I don't know about that.

PC: Just prior to the bend did you see him brake?

D: No.

PC: You didn't see a brake light come on?

D: No.

PC: Is that he definitely didn't brake or slow down?

D: No, he didn't brake, definitely.

PC: What about the bike as it went into the bend? Was it under control?

D: It looked like it.

PC: Did the bike begin to lean over for the left hand bend?

D: No, not at all. It just looked like it was going straight off.

PC: So it was as if there was no reaction at all from Paul for the bend?

D: I would say that.

PC: So at the start of the bend Paul just went straight on across the centre?

D: Yeah.

PC: What happened then?

D: There was a yellow explosion.

PC: Is that as the bike hit the oncoming car?

D: Yeah.

PC: About how far behind Paul were you at this point?

D: About 50 yards.

PC: And your speed then.

D: Less than 60.

…

PC: What happened to Paul then?

D: I don't know, I didn't really see, just the explosion.

PC: What did you do?

D: I remember shouting "Fucking hell" and I was so stunned that for a split second or so I didn't react. I then began to brake hard. I didn't skid. I thought I was alright and could stop. I wasn't going fast by the time I was on the scene but then I got into the debris of the accident.

PC: Did you hit the debris?

D: Yes, definitely.

PC: What happened then?

D: Because I hit the accident debris it caused me to lose control. The bike dropped from underneath me and I skidded along the floor into the field.

PC: Was there any way you could have avoided colliding with the debris or steering round it?

D: No the road was blocked by the accident completely …

PC: Did you collide with the other car?

D: No, just the debris of the vehicles.

PC: Did you skid or lock your wheels at any point?

D: No.

PC: Could you say at what speed you were travelling when you hit the debris and lost control?

D: Less than 20 mph."

18. The recorder continued:

"10. So based on his statement made in relation to these proceedings and in the statement made to the police the claimant himself categorically states that the reason he lost control of his bike was because he hit debris on the road. He does not talk about having gone (inaudible) or had to panic or anything of that nature. He says it was the debris, and we look at the evidence that he gave in relation to this. He was questioned quite closely about it. He said, "I panicked and slammed the brakes on. I lost control because there was debris on the road and my bike came from under me." That is a direct quote. "It seemed to me at the time", he said, "that there was debris over both lanes", and it was put repeatedly to him what he had said in his previous statement. "I can't say", he said, "that I would not have come off but for the debris. I did say, I accept I said to the police, "but for the debris I would have been ok". … "It was both the explosion and the debris that caused my reaction. I did say it was only the debris but I panicked when I saw the explosion, I was 50 yards behind." So really that is the claimant's case. That is what he says. "I panicked and I braked", he said, "I didn't skid or lose control because of that. I lost control because of the incident and the debris." The incident is not mentioned prior to today. … He says, "it is the debris that caused it", and he said it more than once …" (underlining added by me).

19. It is undoubtedly the case that the claimant blamed the debris but as the emphases I have added makes plain (and I will later highlight other passages in his evidence), he was also saying that he panicked and slammed the brakes on, that it was "both the explosion and the debris that caused my reaction. I lost control because of the incident and the debris." It is not at all clear to me why the judge observed in the second sentence (which may be corrupted by the inaudibility) that he had not had to panic or, towards the end, that he had not mentioned the incident previously. The alternative way the case was being put was maintained in that evidence and the judge ought to have appreciated that but seemingly did not.
20. The recorder then dealt with the claimant's father's evidence which I need not repeat because it dealt mainly with debris on the road.
21. In paragraph 10 he recited from the statement made on the very day of the accident by Mrs O'Callaghan and, being the only contemporaneous account of the events, that is well worth repeating:

"I stopped at the give way lines and had already seen some motorcyclists coming towards me on the main road. The first two motorcycles were in single file and there was a space between them. There were some other motorcycles some way behind them. When I saw the motorcycles they were on the left hand side of the road, in the correct lane for the direction they were travelling. They were travelling very fast. In my opinion they were going too fast to get around the bend. The two motorcycles were by now almost on the bend and I looked to my right and saw a BMW car approaching. The BMW appeared to be travelling at normal speed in its correct lane and approaching what to it, would have been a right hand bend. Literally at that point the first motorcycle came into my view. At this point the rider was clearly struggling to keep in its correct lane. The motorcycle continued to come across the road, in to the opposing lane and hit the BMW almost head on. The motorcycle clearly hit the BMW and its rider appeared to be thrown over the top and landed in a field. The second motorcycle was now also in my view. I'm not sure what happened next but the second motorcycle also ended up in the field. I believe that he had been travelling too fast and had ridden wide at the bend. … In my opinion the motorcyclists caused the collision because they were driving too fast around the bend and couldn't keep control of their motorcycles."

22. The account Mrs O'Callaghan gave the defendant's solicitors on 14th June 2006, nearly two years later, differed in some material respects. The recorder dealt with it in this way:

"13. … She says at paragraph 11 of her statement:

"Approaching along the A588 from my left were four motorcyclists. They were in two groups of two with the front most pair being considerably closer to my junction than the following pair of riders. The front pair of motorcyclists were riding behind one another and they were very close together."

It has been pointed out that in her previous statement she said that there was a distance between them.

"They were approaching the bend at a very fast speed. As I had experience of riding motorcycles I was aware that the two machines were going much too fast for the bend they were approaching, even though they were towards the centre of the road."

Again, there is a discrepancy here where she says: "they were to the centre of the road", when both experts agree that that cannot have been the case, that they would be in the centre of their lane, but she says:

"I knew they were not going to get round the bend at that speed. They were going too fast. I said to my mother, "Oh, God, mad motorcyclists coming down excessively fast for this bit". The motorcyclists stayed very close together as they entered the bend."

"Very close together" she says.

"In the meantime the BMW car continued to get closer to the bend and I then saw both motorcycles travel in a straight line across the road. The first one collided head on with the BMW. There was just an explosion as the two vehicles came together. I saw Mr Rigby thrown through the air and he went over a fence and into the field. Almost immediately after Mr Rigby passed across the front of my car the second motorcycle, which I now know to be ridden by Andrew Dorning, followed the first motorcycle on the same course. I assume Mr Dorning made efforts to swerve to avoid the car. The second motor cycle then went up into the grass verge and Mr Dorning was ejected from it."

14. In her evidence she said she had come to the junction, looked left and right and when she looked back she said the first motorcycle came into view. "He had never been out of my view except when I looked right. He was struggling to keep in his correct lane. … As I watched the first one finishing what he did the second came across the road into my view. Was not in my view at the impact but almost immediately after it the second one slid across the road at almost the same point and on the same line. It was virtually instantaneous." She said the second motorcycle travelled along the same path as the first and she wondered whether that indeed was going to hit the BMW.

15. Obviously in cross-examination various things were put to her where there was some degree of inconsistency. But she says it came across her vision instantaneously, almost instantaneously, and that they were very close together and I think her evidence is very important because she sat there and watched the situation evolve. … She is wholly independent and although there is always some degree of inconsistency in certain points we all know that there is always some degree of inconsistency in people's recollections and so on. It's the totality of it that counts. I do not think that those inconsistencies are sufficient to enable me to do other than to find her evidence reliable."

23. The recorder then dealt with other witnesses saying, and it is important to note this:

"16. … So let us just have a look at what else is said about debris, which is the central plank of the way the claimant himself put his case", (with the emphasis added by me).

He went on to find that there was no debris lying in the road in the path taken by the claimant's motorbike at the time and there is no appeal against that finding.

24. He then made another finding of fact:

"19. In relation to the path taken, where the vehicle started from and so on and so forth, we have heard so much evidence I have to say as a matter of plain common sense it seems to me that Mr Sutcliffe's conclusion that the Kawasaki ridden by the claimant must have hit the post on the opposite side of the road before the BMW reached its final position is correct, and that the photograph, the aerial photograph which we have …makes this abundantly clear …"

25. He then dealt with the expert evidence, Mr Boulton for the claimant and P.C. Sutcliffe for the defendant, paying tribute to both experts for "the very thoroughness in which they investigated the matter", but then he concluded:

"Mr Boulton's difficulty is that his opinion does not really fit with the claim as put forward with the claimant himself because the claimant blames the debris and that is not Mr Boulton's view."

26. The experts had met and recorded points of agreement and set out their respective views on the points of disagreement. The judge quoted extensively from this document and I shall do my best to summarise it. There was agreement that the speed of the claimant's Kawasaki as it entered the left hand bend was no more than 40 mph. Because it was stopped by the fence it must have been doing a low speed when it hit the road and the scrape marks suggest that its speed as it hit the road was in the region of 36 mph. Both motorcycles entered the left hand bend in a position that approximates to the centre of their lane, a position which conforms with the advice given in the DSA motorcycling manual, although police advance motorcyclists would negotiate such a bend from a position towards the centre line.
27. Each had a different theory as to what had happened. Much of this was inference from marks left on the road. The photographs show three marks. One was a single locked sliding tyre mark which started about .9 m from the nearside kerb and curved away to the right hand side crossing the white line in the middle of the road but ending about half a metre afterwards. The carriageway itself was 7.75 m wide. About 11 m further on from the start of the tyre mark was a scrape mark beginning near a cat's eye in the middle of the road and going across the road in the direction of the wooden fence post against which the claimant's motorcycle came to rest. This mark had traces of green paint and was undoubtedly caused by the Kawasaki. That was common ground. The third was a scrape mark commencing 3.9 m after the tyre mark, 1.5 m from the nearside kerb. This scrape mark curved away to the left and was 14.2 m in length crossing the centre white line after 12.75 m. So this mark extended only 1.45 m over the centre white line. It was heading in the direction of the BMW motor car. Mr Sutcliffe was of the opinion that this scrape mark was caused by the gear lever of the Honda, the other two being the front tyre mark of the Kawasaki and the obvious scrape mark made by it. Mr Boulton disagreed because he could not see how the Honda inclined so low as to cause a scrape mark could have been manoeuvred into an upright position over a very short distance and within a very short time in order to collide in an upright position with the BMW motor car as the reconstruction plainly shows must have happened. This point was firmly put to Mr Sutcliffe in cross-examination and, as the judge noted, he could give no satisfactory explanation as to how that could have happened. He also conceded that the scrape marks on the gear lever was the sort of damage that was commonplace and would happen when motorcyclists take sharp bends or roundabouts and they go round on their knee.
28. Mr Boulton considered that this third scrape mark was caused by the claimant's Kawasaki. He was of the view that the tyre mark was the rear tyre of the Honda. That explained how the Honda collided with the BMW: when the brake was released the bike would lift and travel straight on to the offside of the road to the point of impact. He explained the cause of the claimant's accident in this way:

"It would be a combination of seeing the accident evolve in front of him, coupled with an immediate reaction to brake hard that caused the bike to fall to the road."

Noting that evidence, the recorder added, "again, you see, that is not what the claimant says happened." Nonetheless he repeated Mr Boulton's opinion:

"The only reason why the claimant broke so hard is that he lost control of his bike because he saw the accident in front of him. Had he not braked he should have been able to negotiate the bend."

29. Mr Sutcliffe's view was this:

"I am of the opinion that, although the speed of the two machines may not in itself have been too fast for the corner, it is that the bend had been misread by either the first or even both riders which resulted in their positioning on the road being incorrect in order to negotiate the bend without difficulty. … In my opinion the loss of control by the Kawasaki motorcyclist was a direct result of seeing what was occurring in front of him and that he was not in a position to bring his machine to a safe stop … It is not due to excessive speed of the two motorcycles or upon seeing the BMW car approaching from the opposite direction, but as a consequence of this incorrect positioning at the bend, which is far too close to the nearside of the road in order that the bend could safely be negotiated at a speed of 36 mph."

30. These were the judge's conclusions:

"25. I do not intend to go into a great dissection of the experts' views upon this speed and that speed and the other. I have to say that I prefer the opinions put forward by Mr Sutcliffe. It seems to me that what he puts forward accords more comfortably with what we see in the photographs. In particular it seems to me much more probable that the scrape marks on the road were made by two different machines and not by the same machine. It also seems to me more probable than not that had one or other of them been spinning there would have been marks indicative of that on the road, so I prefer Mr Sutcliffe's opinions in this matter and I prefer his evidence. Even without it it seems to me quite clear that the evidence that is put forward, the lay evidence, is sufficiently clear to show what actually happened, and particularly the evidence of Mrs O'Callaghan who, as I say, saw the events unravelling and was apprehensive as to what was happening and saw what indeed did happen.

26. I am satisfied, as I am advised by Mr Sutcliffe, and indeed by the evidence which has been put to me, that this is a case where the claimant was relying on Mr Rigby's eyes, as Mr Sutcliffe said and, as Mr Sutcliffe said, you must not do that, you have to be your own eyes. We know that Mr Rigby was leading because he knew the road. We know that the claimant did not know the road, and Mr Sutcliffe's opinion is that Mr Dorning, unfortunately, relied too heavily on his friend and had been too close and was driving too close. The result was that he had to react and that it is not the positioning alone of the second bicycle." [I interpose to comment that I do not understand this sentence.] "He said, "They both entered the bend on the wrong line and because the claimant was too close he had insufficient time to deal with the situation." He says, "I think it is unlikely, highly unlikely, highly unlikely that debris would have been deposited on the claimant's side of the road which could have had the effect claimed by the claimant", and I think that this arose precisely in the manner that Mrs O'Callaghan said it did, that these two motorcyclists were riding close together, that Mr Rigby, sadly, misjudged the situation when he approached the bend and he lost control of his motorbike, and almost immediately afterwards, almost instantaneously, as Mrs O'Callaghan says, the claimant came on the scene and, as he was doing much the same as Mr Rigby, it is not in the least bit surprising that he also lost control, nor is it in the very least surprising that the path taken by both bicycles is clearly, very similar. There is not a big diversion in the path taken, and this is ignoring entirely the claimant's own case that it was the debris that caused the accident.

27. I find there was no debris which could have caused this accident on his side of the road and, therefore, the claimant's version of events and the cause he gives to the accident is wrong. It is not sustained in any event by his expert, and I prefer the evidence of Mrs O'Callaghan as to what happened. It seems to me that the opinions that have been put forward by Mr Sutcliffe are entirely consistent with the first hand evidence and for these reasons I have to dismiss the claim.

28. If I may say that the claimant's counsel seemed to me to spin an elaborate and complicated web over the expert evidence but not sufficient, I think, to divert me from the central point, which is to go back to where I started. Who would have sued if the claimant had actually crashed into Mr Rigby's motorbike? I think the answer is probably Mr Rigby would have been suing the claimant, but we do not know. If I am wrong about everything else, it seems to me that, going back to the first point (inaudible) made it is virtually impossible in these circumstances for the claimant to prove that the circumstances were such that he is relieved from his own obligations as the following vehicle such as to create a situation where it could be argued that there was a breach of duty of care to him by the unfortunate Mr Rigby.

29. I am done. It could have been more elegant had I sat down and done a reserved judgment. It ain't what we do."

Discussion and analysis

31. I have already commented on a possible loss of focus which blighted the judgment from its opening paragraphs where the Recorder speculated about the irrelevant question of the respective negligence of the drivers in a collision between one vehicle following behind the other. The recorder returned to this in paragraph 28 at the end of his judgment and one cannot escape the conclusion that he was so fixed on the "virtual impossib(ility)" of the following vehicle ever establishing that the vehicle ahead of him was at fault that he failed to analyse the claimant's case properly.
32. He does not appear to have taken on board the fact, as already pointed out in [13] and [19] above that although the claimant undoubtedly was describing his loss of control to sliding on debris, nonetheless his case was being presented in the alternative as a loss of control caused by his reacting to the explosion and braking hard in the emergency unfolding before him. That was the way it was presented in opening. In his written closing submissions the claimant's counsel said this:

"8. The claimant's case has been put forward on the basis that the loss of control was because of the claimant's natural reaction to the emergency situation created or because of the debris from the collision.

9. As stated in the claimant's opening/skeleton argument, the court will no doubt appreciate that the whole incident occurred in a very short time frame and that, in reality, either or both of those factors could have been responsible. That said, the court can be satisfied that the loss of control would not have happened without the collision."

Counsel's closing submission, which would have been ringing his ears as he started his judgment was to this effect:

"That collision [with the BMW] caused a situation of immediate danger for the claimant. The claimant reacted to that danger, unfortunately panicked, unfortunately applied his brakes, but if that collision had not occurred ahead of him he would, in my submission on the basis of the evidence, have been able to get round the bend safely without being involved in any accident. Because of the collision ahead of him he was not able to stop. The only argument that, in my submission, the defendants could properly pursue would be one of contributory negligence on the basis of proximity, that by travelling too close, which, of course, is not accepted, he deprived himself of an opportunity of not being involved in a further accident, but, in my submission, the evidence in terms of proximity is not in favour of the defendant, rather it is in favour of the claimant. Unless I can assist you further those are my submissions."

33. Paragraph 27 of the recorder's judgment makes it clear how he approached the claimant's case having found there was no debris on the road his conclusion was: "therefore the claimant's version of events and the cause he gives to the accident is wrong", with emphasis added by me. Making every allowance for the infelicities of language that might appear in an extempore judgment, the conclusion remains inescapable that the recorder completely misunderstood the claimant's case to be that it was debris or nothing. I am driven to infer from the passage I have quoted that he wholly failed to recognise the alternative case. That he so failed is made clearer by:

(1) His reference in paragraph 16 of his judgment to the debris being "the central plank of the way the claimant himself put his case.";

(2) the reason given for refusing permission to appeal confirmed that because there the recorder reiterates that "the reason given by the claimant for the accident was debris on the road. There was no such debris and so the claimant must fail on that alone," my emphasis added.

34. Not to have dealt with this alternative case is a fatal flaw in the judgment. The claimant is entitled to a reasoned judgment and is entitled to know why he lost a claim worth £80,000. He knows that the recorder found against him on the question of debris but he simply has no idea why he lost on the alternative ground. It was a fundamental plank in the argument, certainly as advanced by counsel on the claimant's behalf and it deserved an answer. The failure to deal with it renders this judgment unsafe and I would allow the appeal accordingly.
35. The question then is what should this Court do? One option would be to remit the matter but there is a comparatively small amount at stake and I am satisfied that we have enough material before us to enable us to resolve the question.

The disposal of this appeal

36. It seems there are five questions which have to be answered:

(1) was the claimant confronted with a state of emergency?

(2) If so, how did the claimant react to it?

(3) What was the consequence of his reaction?

(4) Was he driving too close to the Honda motorcycle in front of him?

(5) Whether or not there was a state of emergency would he have failed to negotiate the bend safely so that his accident was caused entirely by his own fault?

(6) What if any contributory negligence was there?

Was the claimant confronted with a state of emergency?

37. The evidence is overwhelming that there was a state of emergency created by the deceased's head on collision with the BMW motor car. I have set out at [3] and [4] above the same description by several witnesses of "an explosion", such that Mr Gillespie thought the cloud of dust was caused by a tractor in an adjoining field. This explosion occurred in front of the claimant. Precision about time and distance is impossible in a case like this but it is sufficient to give the feel for proximity to adopt Mrs O'Callaghan's description of the head on collision and the claimant's accident being virtually "instantaneous".

How did the claimant react to the emergency?

38. The recorder made no finding about this. Significantly he did not reject the claimant's evidence and that evidence has a ring of truth about it, the expletive springing to his lips, the initial stunned disbelief, or as he said in his evidence:

"I've just seen an explosion in front of me and it's not an everyday happening and your mind doesn't work how it should."

His father felt the same way (see [5] above). The instinctive reaction was to slam on the brakes.

39. There is corroborative evidence of the fact that the claimant braked heavily. It comes from the defendant's own expert's report:

"74. In photograph 38 can be seen the front forks of the [Kawasaki] motorcycle, and towards the alloy section can be seen a line around the fork itself. This indicates that at some stage heavy braking has been used, causing the front forks to dive forward, leaving these marks around the forks themselves, caused by the fork seals wiping the dirt from the fork as it compressed.

75. I am of the opinion that this was a result of the rider applying emergency braking at the left hand end of the scene. [My emphasis.]

76. I have found no such suspension travel on the Honda machine … which would suggest that the Honda was the lead machine of the two, followed very closely by the Kawasaki, and I say this because it would appear that the rider of the Kawasaki machine saw what was happening ahead of him and applied emergency braking." [My emphasis again.]

In his witness statement he said:

"… The rider of the Kawasaki was confronted with a life or death situation and as such, was more likely than not, to be braking, as hard as possible, with both front and rear brakes." [Yet more emphasis from me.]

40. Mr Boulton's opinion set out in paragraph 20 of the expert joint report was:

"The claimant would have seen the Honda in front of him fail to negotiate the bend, and possibly even saw the BMW before impact occurred. It would be a combination of seeing the accident evolve in front of him, coupled with an immediate reaction to brake hard that caused the bike to fall to the road."

41. There is, therefore, clear evidence and little to contradict it that the claimant reacted to the fact of the collision and its aftermath by braking hard.

What the consequence of the claimant's reaction?

42. Again there is little real difference between the experts as to the effect of braking when the motorcycle would be leaned over to the left in order to take the left hand bend. Mr Boulton said in his report:

"32. Whether it was the debris or just because he braked too hard when he saw what was happening in front of him, he did lose control and the bike fell to the road leaving the scrape marks."

43. PC Sutcliffe was of the opinion that it was the claimant's proximity to the Honda which led to the accident but his account of the mechanics of the sliding does not differ in essence from that of Mr Boulton. There are various passages in his cross-examination which demonstrate this and I shall set them out at length.

"Q. Could one explanation be that the Kawasaki rider, the claimant, was distracted by what was going on in front of him immediately before he applied his brakes?

A. Yes, I suppose that could be a case, I'm happy that and I think both motorcyclists were travelling very very closely together as they came to the bend, and I think that it's the actions of Mr Rigby on his Honda that has caused the then actions of Mr Dorning on his for whatever reason that might be. I think its most likely the initial cause of loss of control was solely due to the incorrect positioning of Mr Rigby at the bend and I think that Mr Dorning on his Kawasaki has simply followed his friend, obviously incorrectly. Maybe he thought he knew the road and because Mr Rigby took that line into the bend Mr Dorning just followed him. Just suddenly as there into the turn, suddenly it became all to apparent that the lead bike had got it all wrong and that something was going to happen, a loss of control, and then Mr Dorning took the action of applying basically emergency front braking either to avoid being embroiled in the front bike, i.e. hit the back of the front bike, or then lose control himself, but, unfortunately, by applying the aggressive front braking locked the front wheel, which caused the machine then to because it was banked over to the left, it caused the front wheel to slide away to the right and, of course, with the ultimate result that it fell onto its nearside and slid across the road." (Transcript p. 22.) [My emphasis].

44. Cross-examined about his theory that it was the position the motorcyclists had taken in their lane as well as the proximity between the motorcycles that was relevant, Mr Sutcliffe said at Transcript p. 34:

"He applies aggressive front braking to the point he locks the wheel, and it's the locking of the wheel that deprives the front wheel of friction on the road and eventually he has basically a skid and the front wheel then drives away and he slides across the road."

45. At Transcript p. 50 there is this passage in the cross-examination:

"Q. He applied his brakes, you would certainly agree with this, he applied his brakes too suddenly too hard?

A. Yes, yes certainly so, yes.

Q. And that was was it not, a natural reaction to the horrific scene in front of him? It was not a car in front of him suddenly applying its brakes, it was his friend, his riding partner, who had suddenly, inexplicably driven straight across the road onto the other side and ploughed head on into a BMW such that there was an explosion, that there was a cloud of dust that could be seen a good distance back at the next bend and that all happened in front of him?

A. Mmm-hmmm.

Q. Not so easy to react textbook in those circumstances is it?

A. I don't know. I think if you're faced with say a life and death situation –

Q. That is the (inaudible)?

A. Then you would react completely differently to, say, something unusual happening in front of you."

46. The conclusions I draw from the evidence so far has to be that the claimant was placed in an emergency in which his reaction in the agony of the moment was to brake hard and that caused the bike to slide away from under him across the road.

Was the claimant driving too close to the Honda motorcycle in front of him?

47. The recorder accepted Mr Sutcliffe's theory that he was. He rejected Mr Boulton's opinion. I have to warn myself how difficult it is for the appellate court to interfere when we have not had the advantage of seeing and hearing the witnesses. I am, however, less inhibited in this case because the recorder does not explain his preference for Mr Sutcliffe on the impression they created, their demeanour, or the way they gave their evidence. In paragraph 20 of his judgment he rejected Mr Boulton's evidence because of his "difficulty" in squaring his opinion with the claims put forward by the claimant himself attributing all the blame to the debris on the carriageway. Once the judge's analysis is shown to be faulty, his reason for rejecting Mr Boulton must fall with it. In paragraph 25 the recorder explains that he prefers Mr Sutcliffe's explanation of the scrape marks being made by two different machines and not by the same machine. Because the marks go off in different directions this does support of Mr Sutcliffe's view. On the other hand Mr Sutcliffe had the greatest difficulty in explaining how the Honda could have scraped along the road causing wear to the gear lever, which could only have happened if the motorbike had been inclined over to an angle of more than 20^o, yet have sprung upright only feet before impact with the motor car. He simply could not explain how that had happened and the recorder noted he had no explanation but in his judgment he does not carry this through to the obvious conclusion that it must be highly improbable that the Honda motorbike could have performed that gyration.
48. The basis for Mr Sutcliffe's conclusion that the motorbikes were too close to each other seems to rest upon the fact that the claimant had slid across the road in front of the BMW before it came to a final rest. The experts had agreed that the Kawasaki was travelling at 36 mph when it hit the tarmac at a point near to the cat's eye in the middle of the road. So it did not have far to travel. There was no clear evidence as to the speed of the BMW and how long it would have taken that vehicle to come to a rest. Without precise information about time, distance and speed it is not possible to draw a firm conclusion about how close the motorcyclists were at differing points around this bend.
49. The recorder placed reliance on the evidence of Mrs O'Callaghan. She was clearly an honest witness but it is still a bit surprising that he felt able to rely on detail of this kind. The recorder notes but does not explain the crucial change in her evidence from that given on the day when she described there being a gap between the two motorcycles to her much later statement and evidence that they were very very close together. One would think her impression at the time was more reliable than her re-creation of events years later. Moreover, she ascribed the blame for the accident to the fast speed the motorcyclists were travelling, not to their proximity. She was wrong about speed as the experts agreed. She was wrong about their being positioned close to the centre of the road when the experts were agreed they were in the centre of their carriageway. If she was wrong about central aspects of her evidence, how can she be right about aspects which have changed? At best her evidence was impressionistic. As she approached the T-junction she saw the motorcycles. Looking right she saw the BMW and she saw the yellow Honda fly across the road and collide head on with it. All of that was happening to her right. To her left was the claimant. He would have flashed into view very very shortly before that dreadful collision. At 40 mph he was travelling 27 yards a second and she could really only have become aware of him when she saw him sliding across the road. This, too, seems a scant basis on which to make a crucial finding that the motorcyclists were dangerously close together.
50. The only conclusion I can draw from this is that the claimant was close enough to the Honda to have been affected by what happened to the Honda. Had he been further away he would not have had to react to the emergency and would have passed by in safety. Proximity has had some part to play in this accident.

Would the claimant have negotiated the bend safely but for the accident?

51. This is the critical question. The recorder found that he would not because he was travelling too close, using the line taken by the deceased as his line of travel, using him as his eyes when he should have been keeping his own eyes on the road and taking his own decisions for his own safety, not just following his leader.
52. The reasoning which leads to the conclusion that the claimant would have failed to take the bend is that if the deceased failed to do so safely, the claimant who was following him would have suffered the same fate. The logic in that depends not only upon the assumption that they were very close together but also, and crucially, that they were doing the same speed. There is no justification for the latter conclusion. There is no evidence at all about the deceased's speed. There are, on the other hand, many indications that they were driving in very different manners.

(1) The evidence of the claimant, his father and Mr Gillespie was that as they approached the bend the deceased seemed to be pulling away and the gap between them had opened. One would have expected a different impression because ordinarily the lead motorbike would brake approaching a bend and at that moment and before it became necessary for the second motorbike to brake, the gap would be narrowing. The recorder makes no findings about this. Not having rejected this evidence of these witnesses, some credence must be given to it.

(2) This impression is confirmed by objective evidence. The Honda was in fifth gear but the Kawasaki was in third gear. The recorder makes no comment about this, yet this was the evidence from Mr Sutcliffe, Transcript p. 55:

"Q. Paragraph 58 the Honda was in fifth gear?

A. Mmm-hmm.

Q. Do you think there is anything significant in that?

A. Not particularly, no.

Q. Would you say it was because these are high-powered motorcycles and they could both get round the bend in third or fifth?

A. Yes, I suppose it depends on the attitude of the rider for that.

Q. Well quite.

A. I mean they are quite torquey and the engines so, yes, even at the speed we're talking about, although you wouldn't probably expect a rider to go round the bend in fifth gear, he could do so if he wanted to. It's a six speed gear box on a Honda.

Q. So what you are saying is on these particular motorcycles whether you are in third or fifth you can get round this bend?

A. Yes.

Q. Although the gear you are in may well provide some indication as to the attitude that you have when you are negotiating the bend?

A. Mmm possibly.

Q. As you said just moments ago. You would not, although the bike could get round –

A. Yes.

Q. Either of these bikes can get round in fifth, you would not really expect someone to be in fifth going round this bend, would you?

A. I wouldn't personally, no.

Q. Earlier, looking at photograph 1, you have got a long straight?

A. Yes.

Q. How many gears do these bikes have?

A. Well the Honda has six. I'm almost certain the Kawasaki has -

Q. Well you do actually say. Forgive me. Paragraph 34 you say six. In paragraph 38 you say 6. So 6 gears and on this straight you would expect them to be in fifth or sixth.

A. Yes.

Q. And you do not necessarily need to drop down, I would imagine, for the first bend?

A. No, no no, no, no.

Q. No, but by the second bend, the material bend, you would expect the motorcyclist, if the motorcyclist is properly preparing himself for the sharper bend would drop down the gears?

A. Yes.

Q. Would you not say that third gear is a sensible gear to take this bend in?

A. Maybe so, third or fourth.

Q. Third or fourth?

A. In a machine like that, yes.

Q. So fourth would be acceptable and the claimant happens to be a gear below?

A. Yes.

Q. But, for whatever reason, Mr Rigby is in fifth?

A. Yes."

The disparity in gears is strongly suggestive of a disparity in speed.

53. The experts were asked their view about the ability to negotiate this bend safely. There was, therefore, a body of evidence about this to which again the recorder made scant or no reference. Mr Boulton, despite not knowing the road, had been able to drive around the bend in his motor car at the speed agreed to be relevant, 36 mph. It is much more difficult to do that in a motor car than on a motorbike. Mr Caine, called by the defendant, an experienced motorcyclist and instructor, considered that a competent motorcyclist could get through the bend at 60 mph provided he took the correct line of approach but he thought it was "perfectly safe for a novice motorcyclist to pass through the bend at 30 mph … along the middle of the traffic lane". The claimant is not a novice though he may not be as expert as the police witnesses.
54. In Mr Boulton's written evidence he expresses the opinion that a motorcyclist "should easily be able to take this bend at 40 mph". Asked to comment about that in writing Mr Sutcliffe agreed "that is a possibility". In his report he stated:

"122. The cause of the accident is not excessive speed alone."

55. Cross-examined about these matters Mr Sutcliffe said this:

"Mr Nowland: And it is right, is it not, that beginning in the middle of the centre of the lane, as you have agreed, on entering the bend at 40 mph sorry, well 40 mph and 36 when the bike hits the floor, taking account of Mr Dorning's experience and ignoring what happened ahead of him, would you not agree that he should have been able to take, you would have expected him to have been able to take that bend safely?

A. Yes, yes, at 40 mph if he'd positioned himself correctly to go round at that speed, yes, I would have expected him to go round without a problem.

Q. Just so we are absolutely clear you put the rider on there, 'if he positioned himself correctly'. I am saying on the basis that –

A. Yes, that he keeps in the centre of the lane.

Q. He is in the centre of the lane when he is entering the bend.

A. All the way round.

Q. Yes, so at that point where he is entering the centre of the lane and is travelling at no more than 40 mph.

A. Yes.

Q. If you were freeze that for a moment and ask yourself, do I expect this man with the experience that he had to get round the bend? Your answer would be, 'yes'?

A. Yes."

[Transcript p.30.]

"…

56. Taking up the cross-examination at p. 43:

Q. There are two separate points there, are there not though? One is position and one is proximity between the motorcycles?

A. Oh, yes, I think you're right because I think the two definitely go together. I think if, well most certainly if there would have been a greater distance between the two motorcyclists the accident may still have happened because –

Q. Yes, quite -

A. Of the positioning of the bikes.

Q. Yes, quite. So can I put it this way to you then, that if it is down to the positioning then what you would say is that, regardless of what happened in front of Mr Dorning he was going to come off anyway?

A. Well I wouldn't say he was going to come off. I would say there was a possibility he could have come off.

Q. Right.

A. I think that, if my version of events is right, it's the close proximity between the two machines that compounds the problem of the position. …

A. It doesn't necessarily follow that because his initial positioning is wrong that he will lose control of his bike."

57. On this evidence alone, the recorder erred in finding that on the balance of probabilities the claimant would have fallen. The balance of probabilities points the other way: entering the bend at the speed he did in the position he took up in the middle of his lane, then it was more likely than not that he would have got around the bend safely. The crucial question is whether his fall occurred because he reacted to the emergency or because he was following too close behind his leader. There is scant support for the latter and there is every reason to believe that his reaction to the explosion in front of him was alone the reason for his wheels being taken from under him and his sliding across the road.

What, if any, contributory negligence is there?

58. There is a strong argument for saying there is no contributory negligence. In paragraph 3-63 of the 19th edition of Clark and Lindsell On Torts the editors state:

"Contributory negligence in an emergency or dilemma

Where the conduct of the defendant has placed the claimant in personal peril he may be found to have taken reasonable care for his own safety in the "agony of the moment" albeit hindsight shows that he would have been safe had he acted differently. Provided that he acted reasonably in the emergency or dilemma created by the defendant's wrong-doing, his conduct will not amount to contributory negligence."

59. I cannot avoid the conclusion that the claimant was too close in the sense that had he allowed a few more yards of space or more precisely a few milliseconds of time to react to the emergency, then he may have been able to recover from his fright in time to avoid the necessity for the instinctive reaction of slamming on his brakes.
60. The question then is what is the measure of contributory negligence? I take the test to be: "What was the relative blameworthiness and causative potency of the parties' respective faults", per Lord Hoffmann in Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360, 371.
61. I have already set out why I conclude that the two motorcyclists were driving differently. The deceased was pulling away from the claimant, he was in fifth gear, he seemed to make no attempt to brake at all, there was no physical sign of his having braked, he went straight across the road into the path of the BMW. The claimant entered the bend in a position and at speed which would on the balance of probabilities have enabled him to get round the bend in safety. He was confronted with an emergency. He braked aggressively. That caused him to slide across the road. He was seen by Mrs O'Callaghan to be sliding across the road and she does not use that description of the deceased which justifies an inference that he was not sliding but drove headlong into the oncoming motor car. He was the cause of the emergency which caused the braking which caused the claimant's fall. He bears much greater causative responsibility than the claimant. He was so negligent he drove across the lane into the pathway of the BMW. The claimant was probably not negligent at all in the speed at which he was driving nor in the positioning of his vehicle on the bend. His only blameworthiness was being so close that he was affected by the urgency of the tragedy unfolding before him.

Conclusion

62. I said at the beginning of this judgment that it was an unusual road traffic case and I have not found it easy. It is probably impossible to be certain about precisely what happened. Doing the best I can I would allow the appeal and reduce the agreed damages by 20% for the contributory negligence of the claimant.

Lord Justice Lawrence Collins:

63. I agree.

Lord Justice Toulson:

64. I also agree.