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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> McPherson v Smith & Ors  EWHC 1433 (QB) (11 June 2018)
Cite as:  EWHC 1433 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
sitting as a Judge of the High Court
| Gregory Stephen McPherson
| - and -
|(1) James Edward Smith
(2) Rosedale Funeral Home Limited
(3) Markerstudy Insurance Company Limited
Neil Block QC (instructed by Ellisons Solicitors) for The Defendants
Hearing dates: 5-7 June 2018
Crown Copyright ©
His Honour Judge Robinson:
(1) The Claimant, written and oral;
(2) Mr C P Dawson, Expert Collision Investigator, written and oral;
- I have had regard to the following witness evidence on behalf of the Defendant:
(1) The Defendant, written and oral;
(2) Natalie Anderson-Crowe, driver of the double decker bus, written and oral;
(3) Daniel Mayers, top deck passenger on the double decker bus, written and oral;
(4) PC James Hutchin, author of the Norfolk Constabulary Forensic Collision Investigation Report prepared in relation to the collision, written and oral;
(5) Michael Craven-Romain, driver of a motor car who had observed the riding of the Claimant before he overtook the bus, written only;
(6) Robert Hubbard, who observed from his front garden the riding of the Claimant before he overtook the bus, written only;
(7) Ian John Harrison, driver of a motor car who had observed the riding of the Claimant before he overtook the bus, written only;
(8) Simon Hall, expert collision investigator, written and oral.
The Collision in More Detail
"the driver of the black estate car had already moved to their right and had positioned their vehicle towards the centre of the road whilst indicating to turn right into the entrance of a care home which was almost level with the black car.
When asked about this discrepancy during cross-examination, Mrs Anderson-Crowe said: "I don't actually recall seeing him indicating". She went on to explain that she did not "recall saying that he did indicate". In answer to questions from me she described the process by which her witness statement had been taken, in the manner I have already described.
"I then saw the rear brake light of the bike come on at the same time as I noticed a dark estate car with its front offside indicator on which had started to turn right into the entrance exit close to a care home from the lane the bike was using to overtake us"
Thus Mr Mayers is consistent in his recollection and could not be swayed under cross-examination.
A person drives dangerously if and only if:
(1) The way he drives falls far below what would be expected of a competent and careful driver; and
(2) It would be obvious to a competent and careful driver that driving in that way would be dangerous.
Direct Evidence of the Overtaking Manoeuvre and Collision
"12. Just as I had got myself straight and began to pass the line of parked cars, I heard what I presumed to be a motorcycle engine as the tone of the engine was a lot higher than my bus and the other traffic on the road around me.
13. Because of the engine noise I instinctively looked in my offside mirror as I could sense that the bike was going to overtake from behind.
14. As I went to look in my mirror, a sports bike of some description flew past me using the far side of the opposing lane so they were close to the offside curb in relation to my direction of travel.
15. As the bike went by me I remember thinking, 'idiot' because I thought it was a very silly thing to do.
16. When I subsequently spoke to the police about the accident I told the officer the bike was travelling at about forty (40) miles an hour but I was being very conservative when I said this.
17. I now believe the bike was going a lot faster than this based on the sound of the engine and how quickly the bike overtook me.
18. As the bike was overtaking me I looked straight down the road and saw the front of a black estate car about two (2) or three (3) bus lengths away from me in the opposite lane.
19. The driver of the black estate car had already moved to their right and had positioned their vehicle towards the centre of the road … [evidence about indicator omitted]
20. The car began to turn into the entrance of the care home at the same time as the bike started to move back onto the correct side of the road whilst still travelling at the same speed that it had overtaken me.
21. I saw the brake lights of the motorcycle come on very briefly as the bike continued towards the front nearside of the car where the driver had started to turn. The rider then veered to the left before braking briefly for a second time.
22. It was obvious to me the bike and the car were on a collision course and nothing either driver could do would have avoided what happened as the bike was going too fast.
23. The motorcycle crashed into the front nearside corner of the car which by now was virtually broadside across my lane.
"11. … [A] motorcycle overtook us using the opposite lane and from where I was sitting I could see the bike begin to move back towards our side of the road when it was about one to one and a half bus lengths in front of us.
12. In the short amount of time that I saw the bike before it struck the car, it is difficult to estimate the speed of the bike with any degree of accuracy but it is fair to say it was going considerably faster than anything else on the road which accounted for the sound of the engine.
13. I then saw the rear brake light of the bike come on at the same time as I noticed a dark estate car with its front offside indicator on which had started to turn right into the entrance/exit close to a care home from the lane the bike was using to overtake us."
"I was coming out of Wymondham on the Norwich Road. I was indicating to turn right into Sutherland's care home. I looked up and saw a bus and car coming from opposite direction but they were a good distance away so had plenty of time to turn in. As soon as I've turned right there was a bang and then I saw a motorcyclist in mid air. I put my foot on the brake. As soon as the car stopped I got out to attend to the motorcyclist."
"Put my indicator on, came over to the, you know centre lane as you would turning right, obviously looking up the road. I remember seeing the bus and I don't remember see I don't know where that other car came from, where I'd said about another car, I don't remember seeing another car. I'll say that now. Yeah saw the bus, there was nothing else so I started turning. I knew I had loads of time to turn into Sutherland's Care Home and then the next thing I know is I've just, out of the corner of my eye I've just seen a blue blur and that, the car rocked and then I've just seen this individual cartwheeling over the front of the car basically."
Later in the interview he said of the bus that "He had his indicator on and was moving, was just pulling away".
"I had looked up the road. There was a bus up the road and from what I can remember it was indicating to overtake some stationary vehicles. To that end I thought I was quite safe, loads of time to then commence my turn. I had started my turn and then I just felt the car rock and an almighty bang …"
"I disagree … Because the bus was pulling away so how am I supposed to have seen someone coming blind from behind a bus?"
Mr Bebb explained that for the purpose of this proposition, it should be assumed that the Claimant had completed the overtaking manoeuvre and that the Claimant was "coming down the other side of the road straight towards you". The Defendant maintained that there "was nothing there". He gave an explanation for not seeing the Claimant: "… I couldn't envisage anyone coming past that bus, especially not at the speed they were doing".
"I took the view that [the Defendant] should have seen [the Claimant] travelling towards him. [The Claimant] was there to be seen, however, it is not reasonable for a competent and careful driver to expect a motorcycle to be travelling on the wrong carriageway, almost abutting the pavement, at approximately double the speed limit.
(1) Norwich road over the relevant length was straight with a slight bend which did not interfere with relevant sight lines.
(2) The Claimant's motorcycle was displaying twin dipped beam headlamps. The Defendant's Vauxhall was indicating an intention to turn right.
(3) The Claimant's riding before he began his overtaking manoeuvre was extremely bad, by reason of the matters described in my review of the evidence.
(4) The Claimant's speed as he overtook the bus was in excess of 69 mph.
(5) The average speed of the Claimant from the drain cover to the start of the tyre mark was 69 mph. His speed when the tyre mark began was in the range 45 to 64 mph, and probably around 55 mph, closer to the upper range identified by Mr Dawson, but as I have said previously, it is not necessary to make a precise finding on this point.
(6) The Claimant stayed on his wrong side of the road for longer than was necessary.
(7) The Claimant was capable of being seen by the Defendant when the Claimant was about 131 metres away, and for about 4 seconds before impact.
(8) The Claimant was between 40 and 65 metres away from the Defendant when the Defendant began his right turn.
"The fact that a driver could have seen something if he had looked up is, of course, conclusive against him when he was under a duty to look; to say that he was under a duty to look because if he had looked he would have seen is, with respect, entirely to misunderstand the nature and foundation of the duty to keep a proper lookout.
At page 162:
"a driver must, of course, keep a proper lookout even for negligent pedestrians but short of proceeding at a walking pace – and even that may not be enough – it is hardly possible to be certain of avoiding accidents where the injured party is guilty of gross negligence."