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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Easdon v A Clarke & Co (Smethwick) Ltd [2008] ScotCS CSOH_29 (15 February 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_29.html
Cite as: [2008] ScotCS CSOH_29

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OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 29

 

PD1929/04

 

 

OPINION OF LORD UIST

 

in the cause

 

MARK EASDON

 

Pursuer

 

against

 

A CLARKE & COMPANY (SMETHWICK) LIMITED

 

Defenders

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuer: D I Mackay QC, Christine; Andersons Solicitors LLP

Defenders: Stacey QC, Marney; HBM Sayers

 

15 February 2008

Introduction

[1] The pursuer, who was born on 13 June 1971, sustained serious injuries in a road traffic accident on 4 July 2003. He was riding his motorcycle registered number T267 CGB on an access road to an industrial estate off Netherton Road, Wishaw near to the premises of his employers J Danskin & Company Limited ("Danskin") when a head-on collision occurred between it and a Heavy Goods Vehicle (HGV) cab unit registered number SAO2 JBU owned by the defenders and driven by their employee Brian Conner acting in the course of his employment with them. As a result of the accident the pursuer was rendered tetraplegic.

[2] The case went to proof on the question of liability only. The following witnesses were led for the pursuer: the pursuer himself; Sergeant David Mitchell of Strathclyde Police Road Policing Department Crash Investigation Unit; Sergeant Stewart Hunter of Strathclyde Police, based at Motherwell Police Office; Keith Lloyd of Siemens VDO Training Limited, Birmingham; Brian Conner, the driver of the cab unit, and Dr John Searle, an expert in road traffic accident reconstruction.. The defenders led Constable Hazel Scott of Strathclyde Police and Steven Parkin and Douglas Bolton, both experts in road traffic accident reconstruction.

 

The scene of the accident

[3] The scene of the accident was within an industrial estate and is not easy to describe. I therefore append as Appendix 1 hereto a photograph (6/38 of process, photograph 18) showing it from the point of view of the pursuer shortly before the accident.

 

The factual evidence

(i) The pursuer

[4] The pursuer, who lives in Bothwell, explained that in 2003 he worked as a sales representative for Danskin at 1 Netherton Road, Wishaw. He was due to be promoted to sales manager on 21 July 2003. The defenders had premises across the road from his employers' offices. He had the use of a company car, which he used predominantly for going to and coming from work. He also had his own private motorcycle, a Kawasaki 750 cc registered number T267 CGB, which he also sometimes used to go to and come from work. He had passed the driving test to allow him to drive the motor cycle about 13 months before the accident. He thought he was a competent and diligent (sic) driver. He had undergone instruction in how to apply the brakes on his motor cycle. He had been taught how to brake and bring the motor cycle to a halt in a controlled manner.

[5] On 4 July 2003 the weather was warm, dry and very sunny. In the course of the morning he had left the office in his company car, driven to Glasgow to deliver samples to a client and then driven to his then home in Cambuslang for lunch. After lunch he left the company car at home and took his motor cycle back to the office because it was a nice day.

[6] The office of Danskin to which the pursuer was going is shown on the left in photograph 18. The premises of the defenders, who ran a haulage business, are shown on the right in photograph 18. The entrance and exit gate for lorries going to and coming from the defenders' premises was round the bend and out of view to the right. The pursuer had worked for Danskin for seven and a half years before July 2003 and had previously seen trucks entering and exiting the defenders' premises.

[7] The pursuer went on to relate that just before the accident he was driving his motor cycle towards Danskin's building as shown in photograph 18. As he approached the corner of the building shown on the left side of the photograph he saw the corner of a truck travelling towards him on the wrong side of the road. He braked. He remembered seeing the truck move towards him. He had braked heavily and collided with the truck. When he saw the truck he felt the situation was so dangerous he immediately braked heavily. He did not remember if he was still on his motor cycle at the time of the collision. His recollection is that he was travelling in "the mid 20s" mph when he approached the bend. He did not accept the allegation made by the defenders in their pleadings that he was travelling at at least 30 mph as he approached the bend. When he braked it was two wheel braking. When a speed of 27 mph was suggested to him as being his speed on approach to the corner, he said that he would accept that. He understood that the Highway Code laid down that he should travel at such a speed that he could stop in time if presented with an emergency. He could certainly have stopped if he had been presented with a stationary emergency round the corner. It was his intention at the time, had the accident not occurred, to have travelled up to Danskin's car park at the end of the access road.

[8] When the averment by the defenders at p 9A of the Closed Record that shortly after the accident he told a police officer that he had hit his brakes, that his back wheel had locked up and that he had "high sided" was put to him, the pursuer replied that he had no recollection of saying that: it was possible, but he did not remember that happening. He did not remember losing control of the motor cycle as a result of heavy braking. It was definitely not the case that he had braked heavily for no reason at all. He was aware that on a regular basis lorries turned out of the defenders' premises and then drove down the access road onto Netherton Road. He had in the past seen them turn onto the wrong side of the road, but only when they had a trailer unit attached. He had never before seen a cab unit on its own turn onto the wrong side of the road. The vehicle involved in the accident was just a cab unit on its own. The same situation as occurred on the day of the accident would not have occurred if the cab unit had had a trailer attached as it would have been possible to see the trailer from a greater distance back, he would have known that there was a trailer coming out and he would have braked earlier in anticipation of the cab of the truck being on the wrong side of the road. On the day of the accident he saw only the corner of the cab unit before the collision. He did not think it was correct to say that he should have anticipated that a vehicle would be on the wrong side of the road as he had only previously seen this when there was a cab unit with trailer attached. He had not been charged with any offence arising out of the accident.

[9] In cross-examination the pursuer stated that Danskin manufactured a range of acoustic equipment, some of which was manufactured to customers and delivered to customers. They had two trucks which were loaded at the side entrance. (At this stage Mr Mackay QC for the pursuer took objection to the line of evidence, which I allowed subject to competency and relevancy). On his way back from his home that afternoon he had driven along Netherton Road, stopped to allow a line of cars on the opposite carriageway to pass and then turned right into the industrial estate from a standing start. The entrance was quite wide.

[10] He accepted that the Highway Code stated that you had to drive so as to be able to stop within your range of vision. He had frequently seen vehicles exiting the defenders' yard. He knew that other vehicles parked in Danskin's car park and that members of the public went to the textile shop at the end of the road. He thought that Danskin's loading bay just round the corner on the left was used fairly infrequently. It was not possible that there could have been all sorts of things round the corner that he could not see. He accepted that the corner could be described as a blind corner: it would not be possible, on approaching the corner from the entrance gate, to see someone walking close to Danskin's building or traffic round the corner. He had thought he was travelling in the mid 20s   but had no reason to dispute the speed of 27 mph with which he had been provided. He would not accept that he was doing as much as 30 mph or even more than that. He could not accurately estimate the speed which the cab unit was doing at the time of the collision. "High-siding" meant that a wheel lost traction and then grabbed traction. The rear wheel caught and then threw you off. He knew of the term before the accident but did not know how he had found out about it. The advice which he had received about braking was to brake as quickly as you can and in a manner that you retain as much control as possible over the motor cycle. You moderate your braking. You try not to lock your brakes. If you do lock your brakes you are liable to skid because the wheels lose traction. If you put on your brakes too hard you might "high-side". Speed mattered when you were braking: the higher your speed the longer your stopping distance. If the brakes were applied with moderation the distance which the motor cycle travelled was dependent on its speed. This had consequences for riding within your range of vision. If there was no moderation in braking, the danger was that you would lose control and possibly come off your motor cycle and hit the road or any obstacle.

[11] Reverting to the day of the accident, the pursuer remembered stopping for the traffic in Netherton Road, turning right into the industrial estate, getting up to 27 mph at the blind corner and seeing the corner of the cab unit. He was unable to say with any accuracy where he was when he saw the corner of the cab unit. He accepted that if he had been travelling more slowly he would have been able to stop his motor cycle in a shorter distance. He did not think that his losing control of the motor cycle was necessarily linked to his speed. He put the brakes on hard because of the large cab unit travelling towards him on his side of the road: he had to do everything in his power to stop himself hitting it. He thought that speed was a factor, but not the main factor, in braking. He disagreed that if he had been doing 10-15 mph or 15-20 mph he would not have suffered the accident that befell him. He did not recall making a statement to a female constable in Wishaw General Hospital after the accident in the course of which he said, among other things, that he took the corner, saw a huge "artic" on his side of the road, hit the brakes and the back wheel locked up, the motor cycle "high-sided", he put it down and did not remember anything else after that.

[12] The pursuer accepted that it was possible that there were all sorts of things round the corner, but he had never seen people walking there, only vehicular traffic. If a cab unit with a trailer attached had come out of the defenders' yard he would have been able to see the trailer through the fence of the defenders' yard. Whether he was on a motor cycle or in a car he would have been looking for vehicles in the defenders' yard just the same. He thought that was the safest way of travelling round that corner. He agreed that the slower you go the easier it is to stop. He felt on the day his speed was safe enough for the conditions. He felt he had been travelling at a safe speed, but he was just not prepared for a truck to be on the wrong side of the road for no apparent reason. He was prepared to accept that he had been travelling at 27 mph because of the information he had received from Dr Searle, but his own impression was that his speed was in the mid 20s.

[13] In re-examination the pursuer stated that he would not have driven into Danskin's car park at a speed of 27 mph. He thought that at the time he was driving at a speed that would have enabled him to stop in an emergency. He did not agree with the proposition in 6/23 of process, para 12.5 that he would not have been able to stop for a pedestrian or stationary vehicle round the corner. He had no reason to suspect that there might be traffic coming from the textile shop on the wrong side of the road. As he was approaching the corner he would have been looking ahead and could not have avoided seeing a cab unit and trailer exiting from the defenders' premises. He was looking ahead at the time and saw nothing to alert a suspicion that there was something on the wrong side of the road. A warning sign was put up by Danskin's production director the day after the accident.

 

(ii) Sgt David Mitchell

[14] Sergeant David Mitchell of Strathclyde Police Road Policing Department Crash Investigation Unit was 41 years old with 23 years' police service, 18 of which had been in the Traffic Department. He was authorised to test vehicles. He was a class 1 Advanced Driver and had passed the police motor cycle examination. He had attended the course at Aberdeen University in reconstruction of road traffic accidents. He had attended the basic course about five or six years previously, the advanced course about four years previously and he had obtained his licentiate two years previously.

[15] He had arrived, along with Constable Stewart Bell, at the scene of the accident at about 4.40 pm on 4 July 2003. He there met Constable Hazel Scott, who informed him of the circumstances of the accident. He examined the scene of the accident, took measurements and examined both vehicles. He described the damage to the cab unit as light. The front offside auxiliary light was damaged, the number plate was cracked and the offside front bumper had scuff marks. The motor cycle had damage primarily to its offside. The upper and middle faring was cracked and had scuffing consistent with its having slid along the road surface on its side. He took photographs which showed, among other things, a locked wheel tyre mark on the road surface (6/38/7 of process) and the rear wheel of the motor cycle (6/38/24 of process) which had damage consistent with a locked wheel tyre mark due to the wheel having locked up and skidded along the surface. He made a sketch (6/40 of process, a reduced version of which forms Appendix 2 hereto) which showed two separate tyre marks which had originally been only one mark. There were also scratch marks on the road surface caused by the offside of the motor cycle as it slid along the ground and locked wheel tyre marks made by the front tyres of the cab unit.

[16] Sgt Mitchell attempted to calculate the pre-braking speed of the motor cycle. At the beginning of point A in the sketch it was no less than 23 mph. He believed that for the cab unit the tachograph gave a speed of just under 20 kilometres per hour. The cab unit had been mostly on its wrong side of the road. He did not find any debris. The motor cycle had been removed as it had been spilling fuel. His conclusion was that the motor cycle had been travelling north on the access road, as it approached the bend the driver's view was masked by the gable end of Danskin's building, the cab unit had turned left from the defenders' yard onto the right side of the road, the driver of the motor cycle saw the cab unit as he approached the bend, he braked, the rear wheel of his motor cycle locked and he lost control of his motor cycle, which fell onto its offside and slid along the road surface, the cab unit braked making tyre marks on the road surface and the motor cycle collided with the cab unit north of the gouge marks and south of the tyre marks made by the lorry.

[17] In cross-examination Sgt Mitchell explained that he had been called to the scene as an expert in accident reconstruction. Other officers had put the motor cycle in Danskin's premises and the cab unit had been moved into the defenders' yard. From memory he thought the cab unit's tyre marks were under two metres long. The tyre mark made by the motor cycle was in the region of 3.4 metres long. He was confident that it had been made by the rear wheel of the motor cycle. He explained that what happened was that the callipers stopped the disc rotating and heat built up between the tyre and the road surface, causing heat marks to be left on the road. The motor cycle had been travelling at not less than 23 mph at the start of tyre mark A. He could not say how much faster it had been going before that point.

[18] The scratch marks had been caused by the side of the motor cycle going along the ground. The same principle would have applied had a pedal cycle been involved. The scratch marks on the road surface were consistent with the marks on the motor cycle itself. The motor cycle would have ended up at the end of the scratch marks. When you applied the brakes on a motor cycle it began to "yawn". The motor cycle would have been slightly banked to its left. The banking did not go hand in hand with speed. He had taken into account the fact that the motor cycle was going along on its side. His calculation of speed assumed that the motor cycle had slid to a halt. He did not know the speed, if any, of the motor cycle at the time of impact and he could not tell if the motor cycle had just slid to a halt. He had travelled along with a colleague in a police car the route taken by the motor cycle and explained that before the corner you could not see round it because of the building line.

 

(iii) Sgt Stewart Hunter

[19] Sgt Stewart Hunter of Strathclyde Police based at Motherwell was aged 43 with 23 years' police service. He had attended the accident scene on 4 July 2003 as a supervisor. He thought that he had arrived shortly after 3 pm. He was told the accident had happened at 2.35 pm. The motor cycle had been moved and was upright at Danskin's premises. The cab unit was still in the position it had been in at the time of the accident. He observed tyre marks in the road after the cab unit was moved. A tyre mark and gouges in the road left by the motor cycle were also pointed out to him. He looked at the cab unit's tachograph chart: its speed at the time of the accident was around 20 kph. The photograph 6/38/18 of process (Appendix 1 hereto) showed the scene as he remembered it on the day. He requested that officers of the Traffic Department attend due to the nature of the accident and they in turn requested accident investigators to attend. He initially charged the driver of the cab unit and later submitted a report to the Procurator Fiscal. He believed that no proceedings were taken by the Procurator Fiscal against the driver of the cab unit.

[20] In cross-examination Sgt Hunter stated that the information he had received from the accident investigators was that the speed of the motor cycle was 23 mph. He included that information in his report to the Procurator Fiscal. On the day Constable Hazel Scott had arrived before him along with Constable Mackay. He himself had charged the driver of the cab unit and was of the opinion that he should be reported to the Procurator Fiscal for a contravention of section 3 of the Road Traffic Act 1988. There was no discussion about the matter and he was in a minority among police officers in taking the view that that was the appropriate course of action to take. As the senior officer his view prevailed. The officers initially on the scene, including PC Hazel Scott, and the accident investigators agreed with him. He thought that the fact that the speed of the motor cycle was 23 mph was partly relevant. If the motor cyclist had been travelling at an excessive speed he would have said that he was more to blame along with the driver of the cab unit. The area where the accident occurred was a cul-de-sac in an industrial estate. There were various businesses situated there and an element of traffic coming and going during the day. There were no road markings. There was no absolutely safe speed for the motor cycle. When he was asked whether 23 mph was all right or not objection was taken to the question on the ground that this was a matter for the court and I allowed the evidence subject to competency and relevancy. His reply was that 23 mph did not appear excessive to him, but "it was down to the Procurator Fiscal". He knew the speed had been not less than 23 mph, but not how much more it might have been. He did not know how the accident investigators did their calculations. The speed of the cab unit was around 12 mph. He had seen the sketch drawn up by Sgt Mitchell and used that to assist him. He did not think you could see round the blind corner as you entered the industrial estate as it was blind on the eastbound side of the road.

 

(iv) Keith Lloyd

[21] Keith Lloyd was a tachograph analyst aged 50 who worked for Siemens VDO Training Limited in Birmingham. He was a graduate metallurgist and held a certificate in accident investigation. He produced a report 6/35 of process. He had examined the cab unit's tachograph chart 6/34 of process. Recordings on it commenced at about 07:21 hours chart time and ended at about 15:20 hours chart time. During that time several periods of driving and short movements, covering a total recorded distance of approximately 214.5 kilometres (about 133.5 miles) had been recorded. He was led to believe that the time of the collision was 14:35. The chart showed a short movement between 14:31 and 14:32 hours, which seemed most likely to be the period during which the collision occurred. It further indicated that the cab unit had accelerated to a maximum speed of about 22 kph (14 mph), which it maintained only momentarily before slowing to a halt. In his opinion the duration of the movement could have been as little as about 18 seconds or as long as about 65 seconds, during which time the cab unit could have travelled as little as 50-60 metres or as much as 140-150 metres, but he thought that the duration of the movement and the distance travelled were towards the lower end of the ranges quoted, although he could not say precisely where within the range. There was nothing in the chart to identify the precise moment of impact and consequently it was not possible to determine the cab unit's precise speed at the moment of impact. Speeds below 4 to 6 mph would not be recorded on the chart. There was no indication on the chart that the cab unit had stopped at the yard gate: it simply showed a baseline to 22 kph, then it stopped. The chart in question was an electronically driven one.

[22] In cross-examination Mr Lloyd explained that his analysis was done on a specialised chart with the aid of a microscope. He rounded up or down to the nearest kilometre. The speed of the cab unit was rounded up to 22 kph and to 14 mph from just over 13.5 mph. He had to accept that the speed of the cab unit could have been 13 mph if rounding down were done. The yard gate was 30 to 40 metres from the point at which the cab unit had halted. The minimum distance for movement being indicated was 50 to 60 metres, so the cab unit could not have stopped 30 to 40 metres away from its final stopping position. When the cab unit was out of the gate it was almost certainly accelerating up to 22 kph before it came to a halt.

 

(v) Brian Conner

[23] Mr Conner, aged 54, was employed as an HGV driver by the defenders and was driving the cab unit in the course of his employment with them at the time of the accident. He was familiar with their premises at Netherton Road, Wishaw. About 14:35 hours that day he drove the cab unit into their yard. He later drove it out of the yard into the access road. There was a blind spot at Danskin's corner as a result of which he could not see oncoming traffic when he emerged from the gate. He was not doing any faster than 15 or 20 mph. He was 4 or 5 feet away from the kerb. As far as he was aware he did not cross over to the other side of the road when he came out of the gate. He did not think that he did. He supposed he could have. He did not really remember. He did not think so. It could have been that he did do so. He said that the (parallel) tyre marks were from his putting on his footbrake and handbrake. He might have crossed over to the other side of the road. He could not remember. It happened that fast. There was no reason for him to cross over to the other side of the road. He supposed he could have strayed on his own side of the road "if you put it that way". He asked the question: how far over was I meant to be? It must have been six inches on his offside, if it was that. He could not remember. A motor bike came flying in and an accident happened. He was maybe just off-centre: the centre of the truck would have been in the centre of the road. It was true that there was no necessity whatsoever for him to straddle the mid-line. He supposed he could have stayed on his own side of the road. He supposed his driving showed a complete disregard for oncoming traffic. He actually thought he was driving safely. (He had been driving for 33 years). He was past the blind spot and he saw the motor cycle coming in the opposite direction. The motor cyclist braked, the back wheel of the motor cycle came off the ground and his left handlebar went under the bike, trapping him under the motor cycle. He then came sliding along towards the cab unit and collided with the front of it. When the motor cyclist came in the entrance to the industrial estate he was on his own side of the road and when he braked and lost control of his bike he was in the centre of the road. He did not know if the motor cyclist had been distracted by people working on his (the motor cyclist's) left side. He braked the cab unit when he saw the motor cyclist was off his cycle: all he did was to stop the cab unit. The cab unit was stopped when the motor cyclist came sliding into it.

[24] In cross-examination Mr Conner explained that at the time of the accident he was heading for Livingston to pick up a trailer. This was not a manoeuvre which he had ever done before. He had previously driven a cab unit, but not for the defenders. He usually drove a cab unit with a trailer attached. When there was a trailer attached to the cab unit you had to straddle the centre of the road on coming out of the yard. It seemed that he came out of the yard that day driving the cab unit as though it had a trailer attached. He did not know why he went over to the other side of the road - if he did. Possibly he thought he had a trailer. The risky side for an HGV driver coming out of the yard gate was the near side. The hardest part with a trailer was to take a left turn as you could not see the trailer. It was not the same if there was no trailer attached. The tachograph chart should show his speed correctly. If it showed 13 mph he would accept that as being his speed. To him the motor cycle was doing just over 30 mph when it entered the industrial estate and travelled up the drive towards the Danskin building. He was just coming out the blind spot when he saw the motor cycle. The driver's helmet was "sidey-ways" looking to his left, as if he was not concentrating. When he saw the motor cyclist he said to himself "He's going too fast to see me." The next minute the motor cyclist looked up, saw him, braked, the back wheel of the motor cycle went up and the motor cyclist went between the left handlebar and the bike itself and slid towards him. He first realised an accident was on the cards as soon as he saw the motor cyclist losing control of the motor cycle. His (Mr Conner's) emergency stop was successful as he brought the cab unit to a halt. He was at a stop at the time of impact. He got out of the cab unit and asked the motor cyclist if he was all right. The motor cyclist, who was jammed between the motor cycle and the cab unit, dead centre touching the mid-bumper of the cab unit, answered "yes". The motor cycle was four inches back from the motor cycle. He agreed that it had not been necessary for him to swing out in the cab unit the way he did. When there was a trailer attached to the cab unit you always had to watch out for cars and pedestrians.

[25] In re-examination Mr Conner denied that he was making his evidence up and asserted that he was telling the truth. The motor cycle was doing 30 mph when it first came onto the forecourt. It could have been faster, he did not know. He had always said the motor cyclist was doing just over 30 mph. On being shown the sketch attached to 6/23 of process, which plotted a course described as "actual path" for the cab unit, he first said it was hard to say if that showed his actual path. Next he said that would have been his actual path if he had been towing a trailer. He then said yes, that was his actual path on the day of the accident, but thereafter went on to say that it was hard to say and he could not say for sure. He would say no, he did not know. He would say yes. It was hard to say. He was trying to fathom it out again. On looking at the sketch he said he was not sure. He would say yes, that was the actual path on the day. He could not remember speaking to the police after the accident or having to take a breath test: he could remember only an inspector taking his tachograph chart out. On being referred to a statement alleged to have been made by him which was noted in Constable Hazel Scott's notebook (6/53 of process) he accepted that he had said to her that the motor cyclist was travelling at 40 mph. He accepted that there was no mention in his police statement of the motor cyclist looking to his left and said that he had told that to his lawyer. He denied the suggestion put to him that he was "just making all this up". He would say the motor cyclist was going faster than 27 mph, between 30 and 40 mph. That was what he said in his police statement. He did not know.

 

(vi) Sgt Hazel Scott

[26] Sgt Hazel Scott (then a Constable) aged 38 with 13 years' police service and based at Strathclyde Police Headquarters, attended the scene of the accident on 4 July 2003 with Constable Scott Mackay. They were the first police officers in attendance. The motor cycle and the cab unit were just around the corner at the Danskin building. The motor cycle had been moved before their arrival and was later moved again inside the premises. The cab unit had also been moved. The motor cyclist, who was badly injured, was removed to hospital by ambulance. She took a brief statement from Mr Conner and obtained a negative breath test from him. Sgt Hunter arrived later.

[27] She and her colleague attended at the hospital, where she took a brief statement from the pursuer. She asked him what had happened. He replied that he cut off the main road to his office and that when he took the corner there was a huge "artic" on his side of the road. He went on to say that he hit the brake, his back wheel locked up, the bike "high-sided", he put it down and he did not remember anything else. When she asked him what speed he was doing he told her 20 mph.

[28] Sgt Scott accepted that there was a difference of opinion on whether Mr Conner should be prosecuted. She differed from Sgt Hunter as she thought that Mr Conner should not be prosecuted. A report went to the Procurator Fiscal but no criminal proceedings were taken against Mr Conner.

[29] In cross-examination Sgt Scott explained that at Wishaw General Hospital she was unable to obtain a proper statement from the pursuer because of his injuries. She had obtained permission from the hospital staff to speak to the pursuer when he was on a trolley in the Casualty Department. At 15:00 hours on the day of the accident she saw Mr Conner and obtained a brief statement from him in the following terms:

"I work for Clarke, North Pickering Works. About twenty five to three this afternoon I left my works and was driving my Scania lorry SA02 JBU. As I came out the yard and got to the corner I saw a motor cycle coming towards me. He was going very fast, about 40 mph. He braked and locked the front wheel of his motor cycle. I saw him going over the handlebars and then he put the bike on its side, its offside. He slid for about 15 or 20 feet towards my lorry. I heard the bike hit my lorry and come to a stop to the offside of my lorry. The cyclist was lying on the road in front of my lorry. I came out the cab. The motor cyclist couldn't move. He could talk but not move. Workers came out from the various works and someone phoned an ambulance. The motor cyclist stayed on the ground until the ambulance came. I am not injured, just a bit shaky. I do not know the motor cyclist. I would not be able to identify him as he never took off his helmet until he got in the ambulance."

 

The expert evidence

(i) Dr John Searle

[30] Dr Searle (68) was led as a witness for the pursuer. He is a Chartered Engineer, a Fellow of the Institute of Mechanical Engineers, Automobile Division, and a Fellow of the Institution of Highways and Transportation. He was awarded his doctorate in 1973. For 25 years he followed a career at the Motor Industry Research Association, a research institute set up jointly by the motor industry and the UK Government. He began by taking charge of human factors work, which encompassed reaction time, distraction, field of view and other topics related to driving. His work on crash injury began in the human factors area, which soon grew to be a separate crash research group. He headed that group, as well as the human factors group and was responsible for the Accident Investigation Team and Biomechanics studies. The group which he headed carried out thousands of crash tests of all kinds, including tests with cars, motorcycles and lorries either rolling over or colliding with other vehicles, barriers or pedestrians. He had been involved in about 5000 tests. Changes of responsibility gave him experience of vehicle handling, component failures and other topics. He eventually became Scientific Director, in charge of about 200 engineers, physicists, mathematicians, technicians and others. He had responsibility for the entire programme of scientific and engineering work and all reports or papers required his approval. After leaving the Motor Industry Research Association he remained chairman of the BSI Committee on occupant safety and continued his professional development by attending training courses and conferences. He also continued his personal input of scientific papers, which numbered about 50.

[31] Dr Searle spoke to his report 6/23 of process. In it he stated that before the motor cycle fell onto its side it left a tyre mark, which he thought was made by both wheels and on that basis he obtained a speed for the motor cycle at the start of its tyre mark of some 27 mph. He accepted that the initial speed of the cab unit, before braking, was around 13 mph. According to Dr Searle, the cab unit was travelling at some 13 mph on the wrong side of the road when the motor cycle came round the corner on its correct side of the road travelling at a speed in the upper twenties. At the site articulated lorries routinely went onto the wrong side of the road when emerging from the defenders' gateway: the driver had to do that, because if he turned more sharply the rear of the long trailer would contact the gatepost. Such a manoeuvre was carried out at a slow speed, perhaps some 6 mph or so. As Mr Conner had no trailer on the day of the accident, going onto the wrong side of the road was not a necessity for him. The turning circle of the cab unit was some 12.4 or 13.5 metres, depending on the type of front suspension. It was not at all difficult to drive a cab unit out of the gateway while remaining at all times on the correct side of the road, as illustrated on a plan which was an appendix to his report and a DVD recording which he had subsequently taken of a similar cab unit exiting the defenders' premises. The turning circle was 32 metres, so the cab unit would not be on full lock on anywhere near it. Mr Conner did not take such a path and he also adopted a speed far higher than an articulated lorry would normally adopt. It seemed that Mr Conner swung wide onto the wrong side of the road, not of necessity to keep his trailer from striking the gatepost, but in order to make the turn at a relatively fast speed. When the turn out of the gateway was made by a cab unit with trailer attached, a driver (such as the pursuer) coming along the access road could see what was going on because the rear of the trailer, when the cab unit was on the wrong side of the road, was still in the gateway and could be seen by the approaching driver. In this instance Mr Conner had gone onto the wrong side of the road in the cab unit, which was a short vehicle with no trailer, so that there was not the usual warning. An approaching driver could no more have expected to see Mr Conner's cab unit on the wrong side of the road than he could have expected to find a private car emerging in that way. The fact that Mr Conner was not pulling a trailer was therefore not some inconsequential feature of the accident, but the reason why the pursuer rode around the corner completely unsuspecting of the situation he would find. Mr Conner's view was, due to his position, particularly limited, more so than that of the pursuer. Mr Conner's driving position was on the offside of his cab unit, while it was the nearside of the cab unit which first came into the pursuer's view. As a result, Mr Conner was not able to start braking when the pursuer did. For a period, Mr Conner continued to maintain his speed of 13 mph, using up the braking distance available to the pursuer. Mr Conner managed to apply his own brakes only a fraction of a second before impact. As the pursuer worked at Danskin and was familiar with the stretch of road, he would know that cab units with their trailers attached had to use the offside of the road as they emerged from the defenders' yard and that, when that was being done, the trailer could be seen in the gateway. Believing that no vehicle would be coming towards him on his side of the road, the pursuer appeared to have ridden round the corner at Danskin at a speed in the upper twenties, a speed at which he could have stopped in the distance he could see to be clear. Had the pursuer encountered some stationary obstruction around the corner, he would have been able to brake to a stop. Indeed, had he encountered a cab unit with trailer attached manoeuvring out at the usual speed of around 6 or 7 mph, again he would have been able to stop. He would have been able to do that even if he had not seen the trailer in the gateway because, due to its slow speed, it would not have taken so much of his braking distance. The relatively fast speed of Mr Conner's cab unit increased the closing speed between the cab unit and the motor cycle. The pursuer met the cab unit at a closing speed of 40 mph instead of a closing speed in the lower thirties, which would have been the speed with a cab unit with trailer attached manoeuvring out slowly. That extra closing speed, with its implications for braking distance, resulted in the pursuer being unable to stop.

[32] At the scene there was no form of warning to warn drivers entering the access road of the danger of heavy lorries driving on the wrong side of the road round the corner at the Danskin building. An informal warning was available in that, if the length of the vehicle caused it to go onto the wrong side of the road, the rear of the vehicle would still be in the gateway and visible to an approaching driver. On the day of the accident Mr Conner was driving only a cab unit and had no need to go onto the wrong side of the road but chose to do so. His speed was faster than the normal exit speed for a long vehicle and he perhaps swung wide in the cab unit so that he could maintain a fast speed. As a result the pursuer had no warning as he approached the corner that there was an oncoming vehicle on his side of the road. Furthermore, when he encountered that vehicle, it was travelling at a relatively fast speed. To make matters still worse, that speed continued, because although the pursuer had seen the nearside of the cab unit, Mr Conner had not then seen the pursuer's motor cycle. Had the pursuer encountered a stationary obstruction, or even a slowly manoeuvring cab unit with trailer attached, he would have been able to stop. As it was, the pursuer applied emergency braking and slid into a collision. His speed at impact appeared to be relatively modest, about 7 mph. Mr Conner had by then started braking and his truck was travelling at a similar speed. The speed at which the pursuer was travelling appeared to have been somewhat below the 30 mph limit applicable in built-up areas. Had the pursuer seen the back end of a cab unit and trailer in the gateway, he would no doubt have adopted a slower speed, but even if he did not he would still have been able to stop. What the pursuer did not expect was a short vehicle travelling at a relatively fast speed on his side of the road.

[33] Dr Searle illustrated all the above points in his evidence by reference to photographs and sketches. In Appendix 1 to his report he drew a diagram of the collision in which the cab unit was about a metre from coming to a stop. The diagram showed that the impact took place on the motor cycle's side of the road. If the cab unit had been wholly on its side of the road the motor cycle would not have struck it. The motor cycle skewed 90 degrees to the left and made a gouge mark on the road surface on impact. The scratch mark preceding it, which also occurred on impact, went transversely across the road. He put the speed at impact at around 15 mph. The motor cycle and the cab unit had each contributed something like seven and a half  mph. The cab unit was going to come out better off in any collision, unless it collided with a similar vehicle. Conversely, when a motor cycle collides with another vehicle, the motor cyclist comes off worse as he is the vulnerable road user, not surrounded by a steel box.

[34] Dr Searle calculated the speed of the motor cycle when it fell onto its side at 20 and a half  mph. Assuming 100% breaking, the pursuer's speed at the start of the tyre mark was 27 mph. If the pursuer had not lost control in the emergency, he would probably have been able to stop just short of the cab unit. As it was, he stopped just beyond the cab unit. He would, as above stated, have easily been able to stop before a stationary object without anything like emergency braking, but the cab unit did not appear until half way down his line of vision and the fact that it was moving reduced his stopping distance. He was confronted with a moving cab unit coming from his near side partly along his line of vision. That made it an emergency and in reacting he lost control of his motor cycle. He was not to know the cab unit was about to stop. He could see the corner of the cab unit before its driver could see him, the cab unit was advancing and he would not know its driver would see him and stop. Not only was the cab unit coming towards him, it was coming across his path. It advanced until its driver brought it to a stop. Essentially the pursuer braked too hard in an emergency and his wheels locked. Had the pursuer remained upright on his motor cycle both he and the cab unit could have stopped in time. This was not a rare situation. A motor cyclist should in theory never lock a wheel on his motor cycle but skids in motor cycle accidents were extremely common. Dr Searle stated that he himself did not drive in the expectation that around the corner there would be somebody coming towards him on the wrong side of the road. He agreed that the collision would not have happened had the pursuer been driving a car. The further away you were from Danskin's building the less you could see: the closer you were, the more you could see, but that meant that you had a shorter stopping distance. The pursuer had sight along the bend for a relatively long distance.

[35] In cross-examination Dr Searle stated that the correct date for his report should be 30 June 2006 and not 30 June 2005 as stated on the report. He had visited the scene on 2 and 3 March 2006. Further photographs and the DVD recording were taken by him on 2 February 2007 but there was no report for that. He saw the reports from the defenders' experts after he wrote his report. When he wrote his report he did not have the statement of Sgt Hazel Scott dated 8 December 2006. The evidence "developed" after he had written his report. He had not altered his report or written a supplementary report after seeing the reports from the defenders' two experts as he felt that there was a large measure of agreement between all three experts.

[36] One of the photographs which he had taken (6/48/37 of process) showed a 10 mph speed limit within the premises of Bone Steel in the industrial estate. Netherton Road itself had a 30 mph speed limit. It was an industrial, rather than a residential, area. The average driver would think that there was a 30 mph speed limit within the industrial estate: Mr Parkin, one of the defenders' experts, thought that there was a 30 mph speed limit there. Had the industrial estate been owned by a local authority the speed limit would have been 30 mph. A 20 mph speed limit was for a residential area with children. The proper speed at which to drive was a matter for the court, but industrial estates were not nearly as hazardous as high density residential areas with parked cars and pedestrians. Although there were no road markings in the industrial estate, people would expect vehicles on the access road to have priority. If you were driving on the access road you would see a vehicle coming from your left and expect it to give way.

[37] Under reference to certain photographs and the plan Dr Searle pointed out that the skid marks of the motor cycle all ended before the inshot of Danskin's loading bay on its left. The cab unit offside skid mark was on the other side of the mid line of the loading bay. A reasonable reaction time for the motor cyclist in the circumstances was one to one and a half seconds. Both wheels of the cab unit were on the wrong side of the road before it made its marks with its tyres. The rear end of the motor cycle was first to collide with the cab unit. PC Mitchell had explained why the motor cycle had slid round 180 degrees. An abrupt 90 degrees turn could be produced only by abrupt impact forces. It was his belief that the motor cycle went down on its offside, slid on the road and rotated as it did so. The fact that the damage was to the rear of the motor cycle indicated that it had turned round. He did not subscribe to the theory that the cab unit had stopped and the motor cycle slid under it. The impact on the cab unit was at a fairly high level, about 0.3 or 0.4 metres. The rear of the motor cycle had struck the lights of the cab unit and broken them. There was not the slightest evidence that the motor cycle had wedged itself under the cab unit. There were no scratch marks under the cab unit and there was no evidence that the motor cycle had to be pulled out from under it. Had the motor cycle wedged itself under the cab unit you would not see the 90 degrees change of direction of the motor cycle: it would have left straight line marks. The motor cycle turned relatively gradually as it slid into contact with the cab unit and the marks became 90 degrees. It was his belief that the cab unit was moving at impact and continued for a metre or so over its scratch marks. So far as the speed of the motor cycle was concerned, he had allowed 2 mph for the effect of emergency braking. To get a maximum conceivable speed for the motor cycle you would have to add 1 or 2 mph, probably less than that. He felt 27 mph was a fair estimate based on maximum possible front braking, which might not have happened. The pursuer had not locked the front wheel of the motor cycle, so there must have been somewhat less than full braking on the front wheel, although the calculations assumed nothing less than full braking. It was fair to say that it was not known precisely where within the gateposts Mr Conner had come out of the yard, but it did not matter, because to produce the skid marks it would have been necessary for him to go wholly onto the wrong side of the road. It was known that Mr Conner had built up continuously to the speed at which he had braked.

[38] The distance from which the pursuer would have been able to see a trailer provided him with ample distance to stop in time at 30 mph or below. All he would have required to do would have been to slow up very gently as the trailer would have been seen at a comfortable distance. If a cab unit had no trailer it had no need to come out onto the wrong side of the road. The pursuer was aware that cab units with trailers came out of the yard, but if the cab unit had no trailer it had no need to go onto the wrong side of the road. The pursuer would have been able to stop for a cab unit with a trailer, which would have been moving much more slowly. He would have been able to stop with no problem at all for a packing case left in the middle of the road. It was known where the pursuer was when he braked because his motor cycle had left a mark: he was taking a path along the crown of the road. He was able to check that his path was clear for a long way ahead but the cab unit came from his near side. A hidden parked vehicle near Danskin's corner would have been to the nearside of his path but he would have had enough sight to stop in time. If it had been on his path he would have seen it a long way ahead. He could have stopped if something had come out from his nearside to the middle of the road as it would not have been using his distance. In this instance the object (the cab unit) came from his nearside and was moving and using his space. The speed of the motor cycle was that the pursuer could have stopped for any stationary obstruction. Had he been travelling at only 15 mph he would have had extra opportunity to stop. It could be said of almost any accident that it would not have happened if a vehicle had been travelling more slowly. The first question that had to be asked was whether the speed of the vehicle was excessive. Any reduction in speed would be beneficial.

[39] Dr Searle had not measured the distance from the entrance to the industrial estate at Netherton Road to the accident scene but he estimated that it was about 200 metres. A car driver would be able to accelerate to 30 mph in 40 or 50 metres. The motor cycle speed in this case was hardly "showing off". The pursuer would have to have slowed down in Netherton Road to turn into the access road. Dr Searle gave the length of the motor cycle skid as 4.3 metres, the motor cycle slide as 7.4 metres and the gap between them as 3.5 metres, making a total of 15.2 metres. If the motor cycle had been travelling at 27 mph and stopped with a braking co-efficient of friction of 0.7g, he calculated that it would stop in 10.5 metres, 4.7 metres short of the total distance. At 27 mph with 0.6g braking, stopping would take place in 12.15 metres, 2.8 metres short of the total distance. These were distances in which the motor cycle would have stopped if there had been no loss of control, but once it went down it slid further and collided with the cab unit. The pursuer lost control because he did not know what the cab unit was going to do. If he had not lost control in the agony of the moment seeing a large cab unit coming towards him at 13-14 mph he would not have collided with it. No motor cyclist should ever lock either wheel but in reality this was something motor cyclists did. Dr Searle thought that the reaction times were possibly one to one and a half seconds for both the pursuer and Mr Conner. The actual reaction times for each were not known. For the pursuer it would have taken of the order of two seconds to cover the 15.2 metres mentioned above plus one second for reaction. Drivers reacted at different times and one might have reacted more quickly than the other. There was nothing to suggest either was slow to react. The accident was not one which had been caused by slow reactions.

[40] In re-examination Dr Searle stated that if the cab unit stopped at impact it would have put up the pursuer's speed but not a lot. Sgt Mitchell had not taken account of the fact that the motor cycle was still travelling at the end of all the marks it had made. He thought that a cab unit drawing a trailer was always there to be seen. The time when an approaching driver would really look would be when he came to the corner and had to make a decision about it all. He thought that it was a bit unfair to the motor cyclist to assume full front braking right up to the collision.

 

(ii) Steven Parkin

[41] Mr Parkin (43) had been engaged in the reconstruction of road accidents since about 1987. He held the qualifications of BSc (Hons) in Mechanical Engineering, Chartered Engineer, Member of the Institute of Mechanical Engineers and Member of the Institute of Traffic Accident Investigators. He had previously been manager of the Accident Research Centre at Birmingham University for a period of ten years, studying how people were injured in road traffic accidents. He practised from Worcester and undertook accident reconstruction work nationwide. He had listened to the evidence of fact in court and read Dr Searle's report and also that of Mr Lloyd. He had considered on paper the causes of the accident and visited the scene.

[42] It appeared to Mr Parkin that the speed of the cab unit was 13 mph and that of the motor cycle 27 mph. When the pursuer braked the back tyre of the motor cycle locked and caused a skid mark 4.3 metres long, a gap of 3.5 metres when he fell to the ground and scrape markings 7.4 metres long before the impact. The motor cycle was upright when it made the skid mark 4.3 metres long. The pursuer must have been braking heavily at that point. During the gap the motor cycle was still travelling forwards and in the process of falling. It then hit the ground. The pursuer lost total control of the motor cycle and fell off it. It came to a halt when it hit the cab unit. The cab unit was most certainly stationary when the motor cycle hit it.

[43] The plan 6/40 of process showed the absolute positions of the vehicles. It was possible to project backwards in time as to where they were at any time before the markings were made. At 1.2 seconds before the start of the motor cycle skid the nearside of the cab unit was coming into sight, but the driver of the cab unit was not seeing the pursuer at that point. . Reaction time was normally 1 to 1.5 seconds. The pursuer had reacted appropriately. Travel from the beginning of the skid mark to the end of the scrape took two seconds. Mr Conner reacted in a very short time, in the order of a second, after seeing the motor cycle. His time to stop was a little over 0.8 seconds. The total time taken for Mr Conner to stop was therefore 1.8 seconds and the total time for the pursuer to stop was 3.2 seconds. We therefore knew that the cab unit was stationary for a little over a second before it was struck. If the cab unit were to be moved back three and a half seconds it would be out of sight. The motor cycle change of direction was going to happen anyway: it was rotating as it approached the cab unit and rotated further on impact. The scratch marks went through a 90 degrees left turn. That fact absolutely did not tell you whether the cab unit was moving or not at the time of impact. He would have expected the motor cycle to rotate once it hit the ground. Unless you were present to see the accident happening you could never say that the motor cycle marks showed that the cab unit was moving at the time of impact.

[44] On being referred to Dr Searle's report Mr Parkin accepted that on speeds they were not greatly in disagreement: the cab unit was travelling at 13 or 14 mph and a speed of 27 mph for the motor cycle at the start of its skid mark was likely to be accurate. It could have been 26 mph: the upper limit was plus one or two. He agreed with the statement in para 7.1 of Dr Searle's report that the pursuer applied emergency braking, locking the rear wheel of the motor cycle, which then went down onto its offside. Dr Searle was very probably not right to say (in para 7.3) that the cab unit could not have reached the end of its skid marks when the collision took place, but if you did not have the idea that you could move the vehicles back and check the sightlines it was potentially correct. The motor cycle could have gone under the cab unit. You could not say (as Dr Searle did in para 7.4) that it was apparent the cab unit was still moving from the 90 degrees change in direction of the motor cycle. There were other possibilities. He also did not agree with Dr Searle's statement (para 7.5) that the collision occurred about one metre before the cab unit came to a stop. Dr Searle had excluded the rear wheel going under the front bumper of the cab unit, but there was 1.25 metres between the motor cycle skid marks and the cab unit's tyre marks, and the overhang of the cab unit was 1.46 metres, giving a difference of about 8 inches. When the sightlines were checked what Dr Searle said was virtually impossible and could not be correct. Mr Parkin accepted that the closing speed at impact was the combined speed of the two vehicles. He thought the cab unit had been stationary at impact and had contributed nothing to it. It could not be said that the closing speed was 15 mph. He did not accept that the cab unit had travelled 1.1 metres after impact with the motor cycle. Whether the cab unit was moving at impact was a completely moot point.

[45] Mr Parkin opined that the motor cycle could have stopped before any collision if the pursuer had not skidded. It made no difference on this point if one took Dr Searle's figures or his own. It was losing control of the motor cycle that caused the impact to occur. Clearly this was speed dependent: the slower the speed at which you were travelling, the shorter the distance in which you could stop. Stopping distance increased rapidly with speed. If the pursuer had been travelling at 20 mph he would have been able to stop sooner: using 1 to 1.5 seconds reaction time he would have come to a stop on his skid mark with moderate braking. It was the combination of speed and (lack of) space which made the pursuer feel he was in an emergency. The risk of braking very heavily on a motor cycle was always that you could lose control and fall off it.

[46] In cross-examination Mr Parkin conceded that the driver could lose control of a motor cycle when braking heavily, even at 20 mph. You could lock your brakes at any speed above walking space, either on a motor cycle or in a car. He further conceded that, if the cab unit had not been coming up to the corner and the motor cycle had been approaching it at 27 mph, there was no reason to think that the motor cyclist would not have got round the corner perfectly safely. As it was, the pursuer was faced with a heavy goods vehicle coming towards him. The accident was due to a combination of factors - the cab unit being on the wrong side of the road, the speed of the motor cycle and the fact that the motor cyclist braked too heavily. If the pursuer had braked heavily without locking his wheels the accident would not have occurred. What happened was that he encountered a hazard coming towards him and cutting off his line of escape. This presented him with an enormous dilemma. Had he been travelling at 20 mph this would only have been an inconvenience as he would have had plenty of time to stop and if he had slammed on his brakes at 20 mph that would have been an over-reaction.

[47] Whether the cab unit was moving when the impact occurred might be largely academic. The 90 degrees deviation of the motor cycle occurred when the cab unit was at rest and the motor cycle was underneath it. That was no surprise as the front bumper of the cab unit was high. The motor cycle was rotating. Ordinarily you would expect arcs in the skid marks, but whether the cab unit was moving or stationary was irrelevant to whether there were arcs in the skid marks. According to the police officers the most obvious damage to the motor cycle was to the petrol tank. To the rear of the motor cycle he had in mind minor damage such as the bending of metal. He had not seen the damage itself, only seen descriptions of it. On being shown a photograph (6/38/28 of process) of damage to the motor cycle he asserted that it was far from obvious that it had struck the panel of the cab unit. It was just not possible for the cab unit to be moving at impact because looking at the timings it was definitely (a word he virtually never used in court) stationary.

 

(iii) Douglas Bolton

[48] Mr Bolton (55) was employed by a firm of accident investigators in Stoke-on-Trent. He had served in Staffordshire Police for 23 years until November 1993. He had been employed in accident investigation while a police officer, just like Sgt Mitchell. He was in the Accident Investigation Unit until 1993. He had attended courses in accident investigation from 1991. He had been a police patrol car driver and a police motor cyclist. When in the police he had examined and weighed vehicles. He had been an approved police photographer. He was a Grade 1 Advanced Motor Cyclist, which was the highest qualification you can obtain. He had been an examiner for the Institute of Advanced Motorists for over 25 years, examining drivers of cars, motor cycles, heavy goods vehicles and buses at advanced level and he had trained motor cyclists in voluntary schemes, both in the classroom and on the roads. He had advised Triumph on their motor cycles and road safety in general. He held a class 1 Heavy Goods Vehicle licence and a Public Service Vehicle licence. He had a certificate Grade 2 in tachograph analysis. He held membership of three institutes, including the Institute of Traffic Accident Investigators. He was registered with the Council for Registration of Forensic Practitioners On retirement he had started his own business. He did over 100 accident investigation reports a year for both claimants and insurers in the criminal and civil courts in the United Kingdom, Europe and the Far East. Much of his evidence was led under reservation as to competency and relevancy following objections by Mr Mackay, with which I deal below at para [75].

[49] Mr Bolton stated that he had been asked to investigate the circumstances of this accident. He had listened to the evidence of fact given in court, read Dr Searle's report and visited the scene of the accident in January 2007 and taken certain photographs of it (7/22 of process). He stated first of all that the motor cycle driven by the pursuer was a powerful one. He agreed that the speed of the cab unit before braking was 13 to 14 mph and that the speed of the motor cycle was around 27 mph. He explained that as the pursuer was riding along the access road he perceived something in front of him which caused him to brake rather heavily, with such force that the rear wheel of the motor cycle locked, causing it to want to rotate. This might have been exacerbated a little bit as the pursuer was approaching a left bend, so that the front wheel continued to go straight and the rear wheel moved to the right. The rear wheel left tyre marks 4.28 metres long, something which would have happened in a second. The pursuer realised what had happened, let go of the rear brake and the rear wheel gripped the road again but went back out to its right. In that situation the motor cycle lifted to its right - something known as "high-siding". The pursuer was then thrown to the road and the motor cycle followed him and they both slid into the cab unit. The instruction given to motor cyclists about braking was that the first rule was that you did not skid and that to avoid skidding you had to apply varying pressure to the front and rear brakes. The front brake had 75% efficiency on it and caused you to stop. The rear brake was for balance. A motor cyclist should apply the front brake before the rear brake and vary the pressure accordingly. Two words which should always be in a motor cyclist's mind were "self preservation". The idea was not to get into an emergency situation if possible, but if you did do so to apply the front brake and then the rear brake. When a motor cyclist went into a skid he had lost control of his motor cycle and it wanted to turn round. Once the pursuer had applied the rear brake he was in a "no win situation". If he had kept the rear brake on he would have fallen to his near side and the accident might have been just as bad. He would have expected a motor cycle instructor to tell motor cyclists that they must not skid. He would have expected motor cyclists to know about high-siding only if they had watched motor cycle racing on television, when motor cycles were driven to their limit. So far as speed was concerned, motor cyclists were taught to ride within the speed limit and to drive at the correct speed for every situation: they had to take into account self preservation and the existence of other road users and not put themselves into emergency situations. What was said by an instructor depended on the individual instructor, but motor cyclists should be told that the speed limit was the maximum, not the target, and that they should ride at the correct speed.

[50] Mr Bolton said that the entrance to the industrial estate was quite open and had no sight lines: it was not really till you travelled towards the Danskin building that the road closed in on you. The building completely blocked your view of what was round the left bend. It had to be borne in mind that the pursuer's motor cycle was not a car - all you had to do to get up to 30 mph was flick the accelerator. The Kawasaki motor cycle could be described as "a rocket on two wheels". Bearing in mind the principle of self preservation which applied to a motor cyclist, it was always necessary for him to exercise caution when he could not see round a corner. The faster the speed at which a motor cyclist was travelling the more distance he required to stop. He accepted that the pursuer would have been able to see a cab unit with trailer attached coming out of the yard, as for him that would have been local knowledge. Local knowledge could also be a dangerous thing and could never be relied on 100%: you should never say never.

[51] Mr Bolton expressed the opinion that what should have happened is that at 27 mph the pursuer should have rolled off the accelerator and gradually lost speed as he went round the corner. Mr Bolton would not himself have gone round the corner at 27 mph. He would have thought a speed of 20 mph would have been more appropriate. If the pursuer had braked in a moderate manner he would have avoided a collision. For the pursuer to brake as hard as he did do was to Dr Bolton a panic measure. The pursuer had over-reacted. If he had just lost speed and kept going the cab unit would have cleared his path without any problem, but the pursuer had passed his test only 15 months earlier and was not an experienced motor cyclist. The cab unit in the position which it occupied must have caused him to over-react. Mr Bolton accepted that you do not have to expect something coming towards you on the wrong side of the road round a blind bend, but said that you should not drive or ride to the limit of what you can see: you should have a driving plan thinking forward which allows you not to brake so heavily.

[52] In cross-examination Mr Bolton accepted that it would be acceptable for the pursuer to stop six feet in front of a stationary packing case round the bend. You should not drive to the limit of your emergency braking. It was appropriate driving if you could stop before a stationary object which was round the bend. The pursuer would have been able to stop in the circumstances which did arise if he had been able to remain in control of the motor cycle, even at a speed of 27 mph. He accepted that there was nothing in the Highway Code about motor cyclists not locking their wheels, but it enjoined all drivers and riders to keep to their left. The cab unit was at the very least straddling the middle of the road. The pursuer would undoubtedly have seen its nearside corner and its coming towards him. To go round the cab unit on the wrong side of the road was no option whatsoever, but there was room to go round it on his left side.

 

Submission for the pursuer

[53] Mr Mackay submitted that the averments about the circumstances of the accident in statement 4 of the Record had been amply proved by the evidence. He proceeded to review the evidence. He submitted that it had been proved on the unchallenged and uncontradicted evidence of Dr Searle, as illustrated by his DVD recording, that the cab unit without a trailer could have completed the left turn out of the defenders' yard without going onto the wrong side of the road. It was accepted that it was known to the pursuer that cab units with trailers attached coming out of the defenders' yard required to make a circle which took them onto the wrong side of the road, but in this instance the vehicle was a cab unit without a trailer which the pursuer would not have been able to see, whereas he could have seen from right back at the beginning of the industrial estate a cab unit with a trailer emerging from the yard. Mr Conner had never previously driven a cab unit without a trailer out of the yard and the pursuer had never previously seen one coming out of the yard.

[54] So far as the defenders' allegation of contributory negligence was concerned, their primary case against the pursuer was that he was travelling too fast to stop within his range of vision. It was accepted that the pursuer braked heavily before the bend. The defenders' averment in answer 4 that the pursuer was travelling at at least 30 mph, an excessive speed in the circumstances, as he approached the bend had not been proved. The huge weight of the evidence was that his most probable speed was 27 mph. It did not matter whether the cab unit was stationary or not at impact, and it was not necessary for the court to make any finding on that matter. At the critical point the cab unit was entirely on the wrong side of the road. There should be no difficulty in making a finding on primary liability, which was a straightforward element in the case. The burden lay upon the defenders to prove contributory negligence. The evidence showed that the pursuer was driving at a speed at which he could have stopped in an emergency in respect of all foreseeable circumstances - even, at the very extreme, a vehicle coming to wards him on his side of the road at 14 mph. The only possible contradiction on this point came from Mr Bolton, whose evidence was that there should have been a higher standard of driving than that which was put to the pursuer (drive at a speed at which you can stop in time for an emergency). The entire proof had been conducted on the basis of what had been put to the pursuer about the standard of driving to be expected and it was only during the evidence of the defenders' last witness that a higher standard (forward planning) was suggested. Mr Bolton's evidence amounted to mere assertion of an opinion by a highly qualified police motor cyclist and not of an ordinary motor cyclist. It was never suggested to the pursuer that he even knew about the "forward planning" theory, far less been taught about it in order to pass his test. Legal objection to that evidence was maintained, and in any event it was of no weight at all.

[55] The expert evidence was unanimous that the pursuer's speed alone would not have resulted in a collision and that it was the loss of control that inevitably led to the collision. The pursuer was suddenly confronted with an emergency as a result of Mr Conner's negligence and the "agony rule" applie