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||Neutral Citation Number:  EWHC 279 (QB)
||Case Nos.: 9MA90485 and 9MA90798
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
||Heard at: Liverpool Civil and Family Courts
35, Vernon Street,
Liverpool L2 BX
Judgment handed down at: Royal Courts of Justice,
London WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE McCOMBE
|| TREVOR FROST
||- and -
||DAVID FRANK OLDFIELD
Richard Lynagh QC and Jason Evans-Tovey (instructed by Jacobs) for the Claimant
Augustus Ullstein QC and Shirley Hennessy (instructed by Irwin Mitchell) for the Defendant
Hearing dates: 20-22 January 2010
(last written materials received on 4 February 2010)
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice McCombe:
- In these consolidated actions Mr Trevor Frost ("Mr Frost") and Mr David Frank Oldfield ("Mr Oldfield") claim damages for negligence against each other as a result of a road traffic accident that occurred when their two motor cycles collided on the A537 road (commonly known as "the Cat and Fiddle" road) between Macclesfield in Cheshire and Buxton in Derbyshire. Mr Frost was riding a Kawasaki ZXR750 motorcycle (registration number G863 TEA) and Mr Oldfield was riding a Moto Morini 1200cc motorcycle (registration number KX56 KXP). Mr Frost was travelling in a westerly direction towards Macclesfield and Mr Oldfield was travelling in the opposite, easterly direction, towards Buxton. It is also common ground that this scenic, hilly and twisting road is a popular venue for recreational motorcyclists. Both parties are experienced and keen motorcyclists. The accident happened on 11 June 2008 at about 1945 hours. It is agreed that it was still daylight; the weather was fine and the road surface was dry. Each rider sustained serious injuries in the collision. It is my task to decide the issues of liability raised between the parties in the claims which they have brought against each other. Any questions of damages will be decided on another occasion.
- It is accepted on behalf of each party that, in all likelihood, one of them was in the "wrong" lane when the collision occurred. The issue for me to decide is which of the two that was. On that question liability for the action depends. At the outset of the trial it appeared to be common ground that this is an "all or nothing" case and that there was, therefore, no question of apportioning blame. However, in their submissions in reply, Mr Ullstein QC and Miss Hennessy for Mr Oldfield submitted, in the alternative, that it was open to me to conclude that both experts (to whose evidence obviously I shall come later in this judgment) were wrong and that the accident occurred because both parties were too close to the centre line and inadvertently hit each other, albeit while both were still on their own side of the road
(B) The Background and Lead Up to the Accident
- Mr Frost was born on 16 February 1966 and was, therefore 42 years of age at the time of the accident. He is 5 feet 9 inches tall and weighed about 14 ½ stones. (His height and weight are briefly material to one issue of recognition that arises in the case.) Mr. Oldfield was born on 28 March 1958 and was 50 years old at the time. Mr Frost has held a full driving licence for motor cars for 25 years and has held a motorcycle licence for about 15 years. His licence is "clean" and he has not been charged with any motoring offences. In recent times, he had only been riding on the roads for about two years prior to the accident, but had throughout been active in riding "off-road" in trials and scrambling. Mr. Oldfield has held his motorcycle licence for about 30 years. He has had two fixed penalty speeding offences while driving a motor car, giving rise to 6 penalty points, dating back to 2004 and 2006 respectively. Both men, therefore, for present purposes, have good driving records. Both men knew the Cat and Fiddle road, although Mr Oldfield's experience of it was probably greater than that of Mr Frost. Both wore appropriate motorcycling clothing and their machines were in good order and condition.
- On the evening of 11 June 2008 both had decided to undertake recreational rides.
- Mr Frost, who lives in Chesterfield, arrived home from work at about 5 p.m. and left for his ride on his motorcycle at about 5.30 p.m. He was not expected back at home until about 8.45 p.m. He drove first the full length of the Cat and Fiddle road from Buxton to the outskirts of Macclesfield; he stopped there for a short time and smoked a cigarette. He then drove back towards Buxton on the same road, stopping for a short while at the Cat and Fiddle public house for a drink of coffee at about 7.30 p.m. He then decided to ride back to Macclesfield, turn round and complete the full length of the Cat and Fiddle road once more before returning home to Derbyshire. With this in mind, he set off from the public house towards Macclesfield.
- Mr Oldfield had arranged to meet four other riders at a garage on the A56 near Dunham in Cheshire. It appears that this group often met in the summer to have rides together. This was one such occasion. The group consisted of Mr Oldfield, his brother Philip Daniel Oldfield ("Philip Oldfield.") (40 years old), Mr Daniel Maher (34 years old), Mr Carl Gilbert (42 years old) and a man who throughout the proceedings, until the second day of the trial, had simply been called "Johnny".
- Mr. Philip Oldfield, Mr Maher and Mr Gilbert all state that Mr Oldfield was the group member who was the most experienced and respected as a motorcyclist. The group met at about 7 p.m. They proceeded along the Cat and Fiddle road in line. At the time of the accident Mr Maher and Mr Gilbert were essentially together at the front and they were followed by Philip Oldfield. Behind these three, there then followed a gap of perhaps as much as 50 or 60 metres before Mr Oldfield's bike, with Johnny bringing up the rear some distance behind Mr Oldfield; it may be that Johnny had become stuck behind a car during some stage in their progress. He was, however, it seems, frequently at the rear of the group on rides such as this.
- I have heard evidence from two other motorists who were on the Cat and Fiddle road that evening who came upon the scene of the accident shortly after it had occurred. Mr Michael Mohr ("Mr Mohr") is another keen motorcyclist who was travelling on his Yamaha FX1 1000cc motorcycle some distance behind Mr Frost in the direction of Macclesfield. He is 6 feet 3 inches tall and weighs 21 stones. (The possibility arises that he was confused with Mr Frost by one or more of the witnesses shortly before the accident.) Mrs. Susan Murgatroyd ("Mrs. Murgatroyd") was driving her silver Peugeot 307 motor car in the direction of Buxton.
- Mr Mohr comes from Crewe in Cheshire and had ridden in the direction of Buxton before turning round, before reaching the public house, and returning to Macclesfield. He did this once and drove back up the pass towards Buxton again where he was to turn again before reaching the pub. As he approached his turning point travelling east he saw Mr Frost on his Kawasaki cycle pass him in the direction of Macclesfield. Mr Mohr then proceeded a little further along the road and turned for the second time to follow westerly in the direction of travel of Mr Frost.
- Mrs. Murgatroyd was travelling from her son's home in Macclesfield to her home in Derbyshire. She was travelling on the lower, residential section of the Buxton/Cat and Fiddle road when she first became aware of Mr Oldfield's group behind her. She estimated her own speed as being up to 30 m.p.h., which is the relevant speed limit at that point. The motorcyclists were overtaking vehicles behind her. The first three went past her at speeds which she estimated at about 40 to 45 m.p.h. Two others then followed a little afterwards at speeds between 35 and 40 m.p.h. They then disappeared from her view.
(C) The Scene of the Accident
- The scene of the accident is a single carriageway road providing one lane of travel in each direction. When travelling eastwards, as Mr Oldfield was, the road has a steady and continuous upward gradient and is governed by a 50 m.p.h. speed limit. As one proceeds east from Macclesfield towards the crash scene the road goes through a series of bends. On the immediate approach the motorist travelling east negotiates a very sharp right hand bend, followed by a series of further turns ending with a left hand bend before eventually turning into a straight section of about 230-250 metres in length with an upward gradient of 2.5 degrees. The carriageway is about 6.8 metres wide. Somewhere on this straight section of road the impact occurred.
- When travelling west, as Mr Frost was, the road also passes through a series of bends, with a general downward gradient. On immediate approach to the scene, the westerly traveller also negotiates a left hand bend before entering the 200 + metre straight.
- I have been shown a helpful DVD recording the approaches to the crash scene, as filmed from a motorcycle. This assists one to understand the nature of the approaches and the scene itself.
- The northern side of the road, to Mr Oldfield's nearside, is bounded by a concrete kerb and a footpath which in turn is bounded by a stone wall with open fields beyond. The southern side, to Mr Frost's nearside, is bounded by a grass verge sloping upwards to a barbed wire fence and open fields beyond.
- There is annexed to this judgment a copy of a plan, initially prepared by the police, but with overlain annotation, initially by Mr Frost's advisers and expert witness and latterly by Mr Oldfield's expert witness. This plan enables the location to be understood more readily and indicates the rival contentions of the parties as to where the initial impact of the two motorcycles occurred.
- Mr Frost's case is that the impact occurred in the Macclesfield-bound lane, in the area marked as "Area A". Mr Oldfield's final case, relying principally upon the evidence of his expert witness, is that the impact was in the Buxton-bound lane, marked as "Area E".
(D) The Accident
- Eye-witness evidence of the impact is minimal. Mr Frost's account to a police officer on 13 July 2008 was as follows:
"On my way back to Macclesfield, after passing through Walker Barn I remember going through two or three bends then coming onto a straight. At this point I recall seeing coming towards me, two or three bikes in the distance. They were on the correct side of the road doing nothing wrong. The rear of the three (I could only see the riders helmet) then moved from a position central in his lane towards the centre lines. Basically that's it – my next recollection was staring at the sky."
Mr Oldfield's statement to the police on 30 September 2008 was:
Q. "Ok, what do you remember next.
A. Coming round a series of bends with a triangle of grass on the left, then after that a series of bends which go, left right left, then its straight to where the accident happened.
Q. So you went through the series of bends ok and got onto the straight.
Q. What did you see ahead
A. Phil was about 40 feet in front, a car had passed us going the other way and that was it, the bike was straight into me.
Q. Had you seen it at all before this.
- In his witness statement in the proceedings, made on 7 October 2009, Mr Frost says:
"When I left the Cat & Fiddle I road [sic] eastwards, towards Macclesfield.
The A537 is a single carriageway which one lane in each direction. It has a number of tight and sweeping bends.
The traffic on the road was sparse. There were no vehicles in my sight ahead or behind me.
My twin headlight was on dipped beam and I was riding slightly to the offside of centre of my lane.
I actually recall riding around a left hand bend prior to the accident. I cannot be precise as to my speed around the bend as I was not looking at my speedometer but I had slowed to negotiate the bend. I came around the bend and recall the road ahead. There was no car in my sight in front of me.
The road ahead was relatively straight and I recall accelerating in a controlled way. My speed was not in excess of 50 mph because, as I have said, I know the road well and knew I would be approaching a right hand bend, followed by a sharp left hand bend.
I was maintaining my position within my lane, slightly to the offside of the centre of my lane.
I have been shown some police photographs. Looking at photograph 74, I was about level with the double-bend warning signs when I saw some motorcycles coming towards me. They were upright, not banking and were on their correct side of the road. They appeared to be staggered, not side-by-side.
Almost immediately I saw the crash helmet of a rider at the rear move towards the centre of the road. I had not changed my position or speed.
My memory of seeing the crash helmet coming towards the centre of the road is clear. Indeed, it is the last thing I remember prior to the collision.
I have no recollection of the collision itself or of taking any evasive action or even bracing myself.
The next thing I remember is lying on the road looking up at the sky and it was all very quite [sic]."
In his statement of 16 June 2009 Mr Oldfield says this:
"Just a few minutes into the journey across the Cat and Fiddle just after the first of a sequence of right hand bends, the accident occurred. I can say that I am absolutely certain I was riding on my side of the carriageway, i.e. the left hand lane of the single lane carriageway. I believe that the accident occurred on a short straight piece of road between two bends. Phil was in font of me, perhaps by 15 or 20 metres. It all happened so very quickly but I remember in a split second an oncoming motorcyclist coming towards me and then striking me and my motorcycle. I cannot remember exactly where he struck my motorcycle, all I know is that it was likely to have been on my right hand side given that I have now sustained major injuries to the right hand side of my body.
As I have said, I am absolutely certain that I was on my side of the road and I have no idea why the third party motorcyclist was on my side of the carriageway."
- The other witnesses of fact can only speak to events immediately before and immediately after the collision had occurred.
- Mrs. Murgatroyd, who had been overtaken by Mr Oldfield's group on the outskirts of Macclesfield, came upon the scene shortly after the accident. She said this to the police on 26 June 2008:
"I continued along Buxton Road into the rural area which is subject to a 50 mph limit and built my speed up to maximum of 40/45 mph speeds suitable for the conditions there. I remember passing the garden centre on my left and then taking a sharp right hand bend with a lay by and a junction to its nearside. The road conditions were still light and I am not aware of anything passing me in the direction of Macclesfield. Having negotiated the right hand bend I continued uphill towards the Cat & Fiddle Public House itself. A short distance from the sharp right bend the road bends to the right and then the left and as the road straightened up I was aware of an incident ahead of me. Initially I wasn't quite sure what had happened. I slowed and stopped and saw the following, ahead of me in the Buxton bound lane stood upright was the same green motorcycle that had overtaken me a short time earlier. Almost opposite it in the Macclesfield bound lane was a prone red motorcycle facing the general direction of Buxton. Fifteen feet or so the Buxton side of the red bike I saw a body lying in the Macclesfield with his feet facing the centre of the road. …" (Quoted with errors as in the original.)
"… No-one was with him. I was aware that further along the road in the direction of Buxton was another prone motorcycle in the Buxton bound lane facing the centre lines. Just ahead of it I could see a second body lying in the road again in the Buxton bound lane."
Perhaps the only significant feature of that part of her evidence is her absence of recollection of any vehicle passing her in the Macclesfield direction before she arrived at the scene. It is also material to note from her witness statement the following passage:
"I am familiar with the road and I know it quite well, using it very regularly. I turned onto Buxton Road and the lower portion of it is residential and subject to a 30 mph. I accelerated up to 30 mph and I hadn't travelled very far along Buxton Road when I became [sic] of a group of three motorcyclist coming up behind me. I first noticed them because of the noise they were making and the fact they were overtaking traffic behind me. The group of three overtook me quite soon and I estimate that they passed me doing speeds between 40 and 45 mph. I then became aware of a second group of motorcycles coming from behind. This group contained 2 motorcyclists and although I gained the impression the 5 motorcyclists were travelling together they overtook me in two separate groups. The second group weren't travelling quite as fast as the first and I would say when they passed me these were travelling between 35-40 mph. The rear two motorcyclists were distinctive in that one was a red bike and the other, the last one of five, was green in colour. All five motorbikes disappeared from view by the time I reached the top of Buxton Road where it becomes wider."
- Mr Mohr, the motorcyclist travelling towards Macclesfield, who had seen Mr Frost passing him a few minutes earlier as he (Mr Mohr) was travelling in the Buxton direction, said this in his statement of 16 October 2009:
"Approximately 100 to 200 yards before turning around the second time, I recall being passed by a red Kawasaki motorcycle, which I now know was being ridden by Mr Frost and which was subsequently involved in the accident.
I paid attention to the bike. This was because it was not being ridden very quickly and because I identified it as an older motorcycle which I could see had been kept very clean. The rider was riding quite steadily on his correct side of the road. (Many bikers who use this road ride like idiots and far too fast.)
Having seen the Kawasaki and having turned around for the second time, I rode back towards Macclesfield. Shortly before a straight section of road where the accident occurred, and before what was for me a right-hand bend immediately followed by a left-hand bend, I came up behind a silver series 3 BMW (older shape), which I later realised was being driven by a man. Its speed was approximately 40 to 50 mph.
As is my usual practice I was riding close to the centre white line, and, having caught this car up quickly, I positioned my bike close to the rear offside corner of the BMW, preparing to overtake a soon as it was safe to do so. As far as I could see, the only vehicle ahead of me on my side of the road was the BMW.
As I entered the double bends, two sports bikes flashed passed me travelling in the opposite direction at speeds I would put at 60 to 70 mph plus.
As the bikes passed me, I remained in the same position close to the centre white line, close behind the BMW preparing to overtake. I was negotiating the second bend and preparing to pass the BMW as soon as it was safe to do so, when another motorcycle travelling in the opposite direction to me also flashed passed, chasing, at a similar speed to the two bikes which had passed me a few moments before.
As the BMW came out of the left-hand bend, it suddenly braked. This took me a bit by surprise and I remember thinking, "what's wrong?" I instinctively braked, the BMW moved towards its nearside, and ahead of me, along the straight, was the mayhem of an accident which had obviously just occurred.
The BMW stopped in the Macclesfield-bound lane to the east of the slow sign in the Buxton-bound lane, about opposite a rider I now know to be Mr Oldfield. He was lying in the gutter parallel with the kerb, with his head towards Buxton and his feet towards Macclesfield. I could see a broken bone sticking out of his leg. It was obvious that he had suffered a very serious leg injury. I pulled my motorcycle into the Buxton-bound carriageway and parked it just to the east of Mr Oldfield. I took off my helmet and gloves. The driver of the BMW got out of his car and took something from his boot, possibly a first aid box, which he gave to a motorcyclist who had by then arrived on the scene from the direction of Macclesfield. He then got back in the BMW and drove off, having only stayed at the scene for a minute or so.
As Mr Oldfield was being attended by this motorcyclist, I decided to go to the other rider involved, who I now know to be Mr Frost. As I walked towards him, I could see he was being attended to by a lady."
- On 22 June 2008 Philip Oldfield told the police the following about the accident:
"I then became aware of a saloon car travelling along the straight section but in the opposite direction. Try as I might I can't recall the make, model or colour of this car. I remember it was in its own lane and then I saw a motorcycle behind it. It was quite close to the rear offside corner of the car (say 6 to 10 feet) and the rider's body shape suggested to me he was looking to overtake the car. I say this because as I approached the car and motorcycle the rider was banking over to his right as if to prepare to overtake. When he saw me approaching he sat up again as if to cancel the overtake. We then passed one another and the last time I saw the oncoming motorcycle it was positioned on the white line. I then looked in the offside mirror to see smoke and debris flying."
In that statement, Philip Oldfield said that he and his brother had been about 15 metres apart. However, in his later witness statement in these proceedings he states that the gap between them was about 50 or 60 metres. In the witness statement, Philip Oldfield says this:
"I did mention in my police witness statement that I thought that we were about 15 metres apart. In fact and having considered these distances the gap would have been significantly greater than that, possibly 50 or 60 metres. I would say that I was actually closer to Carl and Danny in front of me than Dave was to me behind me.
Therefore the sun would have been in the eyes of driver's travelling westbound towards Macclesfield.
I do recall the motorcyclist being bent down as if he was going to overtake but as I mentioned in my police statement the cyclist elevated himself slightly when he saw me approaching as if to cancel an overtaking manoeuvre."
- Mr Maher's evidence in his witness statement about the crucial few minutes was this:
"There is a straight section of road where I believe the accident had occurred and there is a right hand bend at the end of it for if you are travelling towards Buxton as we were. I recall that as we were going around the bend a motorcycle coming in the opposite direction seemed to be travelling very fast and was right on top or very close to the white line. I remember the headlight of this motorcycle being very close to us. I do not remember specifically passing any other vehicles but it was the proximity of this motorcycle which made me remember it.
I would say that the speed that that motorcycle was travelling in appeared to be too fast which meant that the rider was in the middle of the road."
- He knew nothing of the accident until he was informed of it by a telephone call from Philip Oldfield as he reached the Cat and Fiddle pub, some 5 miles or so further in the direction of Buxton.
- Mr Gilbert's witness statement said this about the minutes before the accident:
"Whilst I did not see David's accident as I was at the front of the group I do recall that whilst I was going over what I now know to be the material piece of road where his accident occurred, I reached the end of the straight which has a right-hand bend on it and whilst going round the bend there was an oncoming motorcyclist. …
When I went round that right hand bend I was positioned in my own lane, possibly 2/3 into my own carriageway. I had passed an oncoming car and then there was an oncoming bike who was either on the white line or very close to it coming in the opposite direction. I remember thinking along the lines that he was either out of control or certainly travelling too fast and too close to the white line as he looked like he was going to encroach on to my side of the road. I remember it very well because I recall that he was not wearing leathers. I remember the sight of flapping clothes in the wind. He was not very far behind the car in front of him that I had previously just passed but unfortunately I cannot recall the colour or the model of that car.
I have ridden this road many times and everybody with an ounce of sense knows that you do not go down a road like that riding in that fashion or without wearing leathers. I also remember he looked like quite a big guy riding on what looked like a small bike."
Each of the witnesses that I have mentioned gave oral evidence at the trial and supplemented their written evidence in the following material respects as I shall shortly summarise.
- It had not been expected that evidence would be given by "Johnny". It had been said that his surname was not known. However, on the second day of the hearing, Mr Ullstein QC applied to call him as a witness. We heard that he had been contacted by Mr Maher after court on the first day of the hearing. He had then contacted Mr Oldfield's solicitor and material was taken from him over the telephone to enable a witness statement to be prepared for him. That statement was served upon Mr Frost's advisers at court on the following morning, although Mr Ullstein had done the courtesy of informing Mr Lynagh of the new development on the previous evening. Mr Lynagh did not object to the late introduction of this evidence and I admitted it accordingly.
- "Johnny" turned out to be Mr Jonathan Pendlebury ("Mr Pendlebury"). His statement contains only a few short matters of note. He explained how the group had collected on the evening of 11 June 2008. His evidence about the minutes before the accident was:
"David and I were at the back of the group and as we approached the Arighi Bianchi junction where we were to turn left onto the A537 towards Buxton, David and I were caught by the traffic lights whereas the other three managed to get through the lights before they changed.
When the lights changed we turned left towards Buxton and continued up the hill at a speed of perhaps 30-35 mph. As we continued up the hill, we came up behind a silver coloured car. I remember that David was in front of me and he overtook the car first. I could not immediately overtake because I got caught behind the silver car for a few seconds until I could safely overtake the car, which I did. I remember the road had a number of places in that area where there was no overtaking markings, which also influenced the short delay in overtaking as I wanted to make sure it was safe to overtake.
I would estimate I was about 20 to 25 seconds behind David but he was out of sight of me and I did not see him again until I came across the scene of the accident.
I do not recall passing an oncoming car between the time of overtaking the silver car and coming across the scene of the accident."
- In his oral evidence Mr Pendlebury described running over to Mr Frost who as rolling around and trying to get up. Mr Pendlebury said that he saw Mr Frost remove his own helmet and place it beside him.
- I turn to the other oral evidence.
- In cross-examination by Mr Ullstein QC, Mr Frost accepted that his memory of the moments of impact was slender, as indeed he had told various medical attendants while in hospital. However, he said that he did have memory of coming round the left hand bend into the straight and travelling some distance down it. He saw no car in front of him at that stage and it was some distance down the straight when he first became aware of the group of motorcyclists coming towards him. His last recollection was seeing the helmet of one of these riders (which he thought was the third in the group) moving towards the centre of the road. The distance he estimated as being a little further than the width of the court room when viewed from the witness box.
- Mrs. Murgatroyd said a little more about the motorcycles passing her in the outskirts of Macclesfield. She said that the second group of two passed her very quickly after the first group and seemed to be catching up with the first group. She confirmed her written evidence that nothing passed her in the opposite direction before she reached the accident scene. She gave this evidence by reference to having had a sinister feeling about the quietness of the road as she passed through an area with trees. This was because it was relatively dark for a fine summer evening and the absence of traffic contributed, in her view, to her having this sinister feeling. She believed that she was the first to arrive on the scene from the Macclesfield direction, although she had confirmed the evidence in her statement that the green motorcycle, which it is accepted belonged to Mr Pendlebury, was there when she arrived. She said she saw Mr Frost on the ground with his helmet off. This surprised her (she was "gobsmacked" as she put it) because she had been taught not to move people in this sort of incident. For his part, Mr. Frost had no knowledge of who had removed his helmet. We now know that Mr Pendlebury saw him remove the helmet himself. I accept that evidence; Mr Frost has, not surprisingly, simply forgotten doing it.
- Mrs. Murgatroyd could see that Mr Frost's ankle was "badly mauled". The boot was on, however, but had a hole in it. There was drying blood on his right hand. She said she saw blood on the carriageway nearer to Macclesfield which suggested that Mr Frost must have been moved if the blood was his. In my judgment, any such displacement was likely to be by Mr Frost's own movements in the immediate aftermath of the accident before he succumbed to the effect of his injuries and subsided to the ground. Mrs Murgatroyd told me that she had been amazed to see perhaps three or four cars come down the road towards Macclesfield which slowed down at the scene but did not stop to assist.
- Mr Mohr was cross-examined. He said, in answer to Mr. Ullstein QC for Mr Oldfield, that he had reached the BMW car, which he had described in his statement, some 200 yards before the bend leading onto the crash scene. It was going at about 40 to 50 m.p.h; he slowed down as he approached it. He was riding near the centre line of the Macclesfield bound carriageway. He braked waiting to get past the car. But, as he said in the statement, he stopped when the BMW stopped. The driver stayed in the car except briefly to retrieve something from his boot and then he got back into the car and drove off. After a short while he walked down the road to where Mr Frost was and found that a lady, presumably Mrs Murgatroyd, was with Mr Frost.
- In his oral evidence Mr Oldfield insisted that he had been travelling at no more than 50 m.ph. at any time on this journey. In the 30 m.p.h. zone, at the beginning, he had also kept to the speed limit. He said that he had been able to overtake Mrs. Murgatoryd since he believed that she had slowed down to let a car in front of her turn to the right, although he said he had no specific recollection of this. He said he was a keen motorcyclist and had engaged in competition and endurance racing. He rode frequently with this group of five, although the riding group was not always the same. He said he was still in touch with all the group but he did not give "Johnny's" surname. He said he did not remember any other bikers travelling ahead of them travelling in the same direction. He said that the group had got spread out on the route as each was "doing his own thing". He did not believe that the order of riders changed often; it would only have done so at traffic lights, for example. In contrast to his brother's evidence, he said he believed that the distance between the two of them had been only 15 metres and not 40-50 metres. As for the moments before impact, he said all he remembered was the bike itself; he saw a car which "went through" and then the bike hit him. He could not say, he said, why he had not mentioned the car in his witness statement. There was indeed no mention of it in the statement.
- Mr Oldfield seemed to me to be reluctant to accept, as he eventually did, that he had discussed the accident with other members of the group. In the end, he said he had discussed "the basics" with his brother and/or the others, but said that he could not remember what had been discussed. He said that his brother had mentioned another motorcycle about to overtake a car. He said he saw the car and the bike hitting him. The car he said was "just a car passing"; he did not recollect the colour or anything else about it. He would not accept Mr Lynagh's suggestion, on behalf of Mr Frost, that he was trying to reconstruct the accident and had adopted an account, derived from his brother, about a car which had not been there at all. He said, "the car was not important. All I saw was the motorbike". When asked again why the car had not been mentioned in the witness statement. He said, "What can I say?"
- Mr Oldfield was asked about his position in relation to Johnny. He said that he could not see him in his mirrors. He must have pulled away from him to some degree. He did not recall the last time that he had seen him. He agreed that, if Mr Frost had been trying to overtake a car immediately before the accident, Johnny would have to have met that car as he followed up the road. In answer to my own question, he said that he did not believe that Johnny had seen anything. As it turned out, Mr Pendlebury said that he did not recall an oncoming car between overtaking Mrs Murgatroyd and the accident scene.
- Philip Oldfield was referred to his description of the moments before the incident given in his statement, where he mentioned the car with a motorcycle close behind it. In paragraph 15 of the statement he had stated that he remembered "going over the brow and seeing a car travelling towards us". In supplementary answers to Mr. Ullstein he said that the car was "about two-thirds down the hill, coming towards us". He said that he had "just" gone "past the farm" when he saw that there had been an accident. This was a reference to an access road or track to a farm to the right of the straight section of road, when going towards Buxton, at a point close to the beginning of the right hand bend; it can be seen in photographs 61 to 63 in the police photographs. (From a map of a larger area, it appears that the farm is called Brink's Farm.) Mr Oldfield's own bike came to rest after the accident, shortly beyond that track to the east.
- Philip Oldfield, in cross-examination, said he had ridden with the group for a long time, but he could not remember Johnny's surname. He said they were all experienced and careful riders who did not break speed limits. He remembered coming out of Macclesfield that evening. He did not remember overtaking any vehicles there but accepted that he might have overtaken one or two. He said that there were no other motorcycles heading towards Buxton; he did see the odd motorcycle coming down towards Macclesfield.
- He was asked about the difference in his statements concerning the distance between him and his brother as they rode towards Buxton: 15 metres in the police statement and 50-60 metres in the witness statement in this action. He said it was hard to tell distances when judged through rear view mirrors and that he was not particularly sure of either figure.
- He was asked about a comment made in his witness statement that the sun would have been in the eyes of drivers travelling to the west. He was referred to the view of PC Binns, the police accident investigator, who had said that sun was not an issue in this accident. Philip Oldfield then said that they only went out on dry evenings and that his comment about the sun had only been an assumption on his part.
- Philip Oldfield said that he passed the car and motorcycle which were travelling in the Macclesfield direction at some point on the straight where the accident happened. It was not after the bend at the end of the straight. The motorcycle, he said, was near the centre white line behind the car. In re-examination, with reference to photograph 11, Philip Oldfield said that when he saw the car he was between the black tarmac infill in the road and the right hand bend sign (these can be seen in photograph 15); the car and the other bike were near the sign itself. The rider of the bike, he said, was hunched over as if to overtake and just missed him. Then, as the bike went past, he looked back in his mirror and saw smoke and devastation. All he could see was smoke and steam. He had not, however, seen the contact itself. He said he saw all this before going round the bend. He turned round and stopped his bike. He said that Mr Mohr had not arrived by this time; Mr Mohr had arrived later after he himself had parked and gone to see to his brother. He then called either Mr Maher or Mr Gilbert. He said that he did not recall what had happened to Johnny.
- Philip Oldfield denied the suggestions made to him by Mr Lynagh QC for Mr Frost that he was simply reconstructing things after the event, without a true recollection, and may have perhaps confused the approach of the BMW and Mr Mohr with a car being followed by Mr Frost.
- Mr Maher gave brief evidence in chief confirming his statement and added that at no stage was he travelling at more than 70 m.p.h., as might be inferred from Mr Mohr's evidence, nor was any other member of the group doing such a speed. Immediately, in cross-examination, he had to accept that he was well ahead of the rear riders and could not speak of the speed of those behind him.
- He said that the first he heard of the accident was by way of a telephone call. On the way up to the Cat and Fiddle pub all he saw was one motorbike. It was on the bend at the end of the straight. He did not remember seeing a car. He said he would have expected to see the same traffic as Carl Gilbert as he was close to him. (As already mentioned, Mr Gilbert had spoken in his statement of seeing a car travelling in the other direction in the passage quoted.) He had not seen any other traffic to his rear as he proceeded towards the Cat & Fiddle. He did not know how far behind Philip Oldfield had been. He said that by the time he got back to the scene an ambulance was already present. He said that he did recall one motorcycle going in the opposite direction; it was close to the centre line and going too fast which had unnerved him, but he had no recollection of that bike being near a car. In short re-examination, Mr Maher said that the group were not riding with a competitive spirit. He insisted again that Mr Mohr had not been correct if he was attributing a speed of 60-70 mph to him and Mr Gilbert. He had said in cross-examination that he had not seen any other bikes travelling in his own direction ahead of him.
- Mr Gilbert at the start of his evidence acknowledged what he described as an "incredible mistake" in thinking that a motorcyclist who he described in his statement as following a car, close to the accident scene, had not been wearing leather clothing. He had described this rider has riding too fast or out of control and seemed to have his jacket flapping in the passing air-stream. He had described the rider as "quite a big guy riding on what looked like a small bike". In court he described the man as looking like "the Michelin man". In cross-examination, he agreed that this rider may have been Mr Mohr who is indeed a large man. He said that he had seen a car followed by this motorcycle. In his statement he said the motorcycle was close to the centre line. In oral evidence he said that it had not been particularly close to the car, perhaps 50 yards behind. He had no recollection of any detail about the car.
- In cross-examination Mr Pendlebury told the court that there were regular meets of the motorcycle group in the summer. They would usually meet in the same place. Any contact otherwise was usually by telephone. He said that the only person who had his contact number was Mr Maher. He said he had not been contacted to make a statement at any time between June 2008 and the previous evening. That had been the first time that he had been asked formally to recall the events of 11 June 2008, although he had discussed the matter informally with Mr Maher in the intervening period.
- He said that he and Mr Oldfield had become separated from the others at some traffic lights and had then overtaken the car driven by a lady, presumably Mrs. Murgatroyd. Mr Oldfield had overtaken first but he (Mr Pendlebury) had been held back. He did not think that he or Mr Oldfield had overtaken her before the road had passed through the residential area with the 30 mph limit; he thought that he had gone past her when in the area where a 50 mph limit applied. He accepted, however, a small possibility that he might be wrong about that. He agreed that he had no reason to recall when precisely he had overtaken this vehicle before being asked about these events on the previous evening before giving evidence. He thought that he had been perhaps 20 – 25 seconds behind Mr Oldfield after the overtaking of the car. His recollection was of coming upon the accident scene very quickly after he had overtaken the car. He did not accept the suggestion from Mr Lynagh that he and Mr Oldfield had overtaken Mrs Murgatroyd fairly close together and that a gap had then developed as Mr Oldfield had pulled away more quickly than he had done. He said that they had simply overtaken at separate times and this accounted for the gap. He said in re-examination that Mr Oldfield had not started off after the overtaking manoeuvre at a substantially increased speed. He did not accept that the group was trying to keep up with each other.
(E) PC Binns and the Expert Witnesses-Mr John Manderson and Dr. Bryan Chinn
- PC Steve Binns is a Collision Investigation Officer with Cheshire Constabulary with qualifications and experience well up to the tasks of his position. He was a careful and impressive witness. He visited the scene of the accident at about 2045 hours on 11 June 2008, i.e. about an hour after the accident occurred. Over the next four hours he carried out a meticulous investigation of the scene itself. He took 89 photographs and prepared the basic plan from which all have worked in the course of these proceedings. He provided a witness statement to each side and each relied on his evidence.
- The plan which he prepared from his findings is the basis of the plan which I have annexed to this judgment. On that annexed plan the small rectangular boxes with round edges containing words such as "lens", "glove" and "paint", the indication of road markings, outlines of the fallen motorcycles and the words "body fluid" were made by PC Binns. The larger rectangular boxes denoting marks made by the motorcycles after the impact (Marks A, B and C), "Scuff on verge…", Clod of grass…" etc. are derived from Mr Manderson's additions to the plan. The observations made by PC Binns, noted on his plan and recorded in his statements, were not disputed by anyone. Area A on the plan denotes the area which Mr Manderson considers included the impact point. Areas D and E are those which Dr Chinn variously gave as his preferred sites of impact during the course of the trial.
- PC Binns did not carry out detailed calculations to determine a precise point of impact; he was not instructed to do so. However, in his statement given to Mr Frost's solicitors, in paragraph 12, he said:
"… it is my opinion that the collision occurred at some point on the carriageway between the eastern edge of the first "slow" marking in the Macclesfield bound carriageway some 40 metres east of the rest position of the Kawasaki as can be seen in the foreground of photographs 15 and 16 and a point opposite the fresh area of disturbance within the grass verge almost adjacent to the first white post on the south verge as can be seen in the same photographs and photographs 17, 18 and 19."
(When PC Binns says "…the first "slow" marking in the Macclesfield bound carriageway…". It is clear from his evidence as a whole and the photographs that he means "first" when proceeding from the direction of Macclesfield in the easterly direction – it was in fact the second in the direction of travel of Mr Frost.) In his statement given to Mr Oldfield's solicitors he said this in paragraphs 53 and 55:
"I cannot establish an exact point of collision for this incident. Based upon the field of debris and the marks found at scene I consider that the most likely area of impact was between the 2nd 'SLOW' sign within the Macclesfield bound lane and the area of disturbance in the nearside grass verge left by the detached Moto Morini front wheel. I cannot be more precise than that. …
… It appears that both motor cycles occupied an approximate central position within the carriageway at impact."
- PC Binns was of the view, to which both experts also subscribed, that the disturbance of the grass verge to the south had been caused by the detached wheel of the Moto Morini as it proceeded after impact to the point where it was found as indicated on the plan. PC Binns also found fresh traces of grass between the tyre and the wheel flange on that wheel. There are photographs showing these traces clearly. Some of the grass taken by the wheel was found on the Macclesfield carriageway as marked on the plan.
- It was agreed that Mr Binns should be open to cross-examination by both parties and he amplified his statements in that process. He said that many collision scenes that he has seen easily disclose where the impact area has been. This scene was not, in his view, straightforward to analyse and it was difficult to pinpoint the place of impact. However, in his view, the most significant feature in assessing this question was the track of the detached wheel from the Moto Morini. In Mr Binns' judgment, the impact must have been to the west of where the mark of disturbance in the southern grass verge was found.
- PC Binns was also of the view that in this type of "side-swipe" accident between motorcycles not a lot of debris from the vehicles would be deposited at the point of impact since the principle debris would tend to be carried a little distance by the cycles themselves. In questioning by Mr Ullstein PC Binns was challenged about this with reference to photographs annexed to Dr Chinn's report, showing a test collision between a motorcycle and a car, which (it was suggested) indicated substantial debris at the point of impact in such a collision. Mr Binns' view was that this was a different type of accident involving a car and that most of the debris shown there was glass from the car's broken window. He did accept, however, that there was (in the present case) some debris in what he took to be the most likely area of impact. Everyone recognised that debris may well have been disturbed by traffic passing afterwards, e.g. the three or four cars observed by Mrs. Murgatroyd and the two ambulances that attended to assist Mr Frost and Mr Oldfield.
- So far as the detached wheel was concerned, Mr Binns' view was that when it crossed the southern verge, it was not possible to say whether it was wholly upright. However, it was not on its side entirely because it was the tyre, rather than the wheel itself, that had made the mark in the grass; it rolled into the verge and then out of it.
- I turn now to a summary of the principle findings of the two experts, Mr Manderson and Dr Chinn.
- Mr Manderson, as I have already said, considered that the collision occurred within area A on the plan, i.e. in the westbound carriageway.
- Both experts agree that mark A is a post impact mark caused by the Kawasaki and mark C is a post impact mark caused by the Moto Morini. Mr Manderson considers that Mark B was caused by the Moto Morini whereas Dr Chinn's view was that it was caused by the Kawasaki.
- Mr. Manderson's report gave a helpful summary of his reasoning for his conclusions in paragraphs 69 to 92. The reasoning was based in part upon observations from the scratch marks made in the road and in part from deductions arising from the track of the detached wheel and the scuff mark in the southern verge.
- Mr Manderson took the view that, immediately following the offside to offside impact of the motorcycles, there would be a time during which each would cover some distance before falling to the ground and where there would be no scratch marks or debris. He considered that area A met this description. (I have questioned whether the same might be said of the interval between mark B and mark C. However, that gap is not so pronounced particularly when one has proper regard to the fact that mark B also comprises the mark directly upon the central white line which does not show on my annexed plan but appears very clearly on the black computer screen prints, from which the plan was derived and which were produced by Mr Binns during his evidence.)
- Mr Manderson then considers that mark B "commences" in the westbound lane. Of course, this rather raises the question of the end of the mark from which one starts. He then went on to say that,
"75. The mark was made by the nearside of a motor cycle and, if the Court accepts my contention that it was made by the Moto Morini, then it follows that prior to the collision the whole width of the Moto Morini was to the right side…of the mark".
- I was concerned that to an extent this paragraph made an assumption of what Mr Manderson was seeking to prove. However, he went on to make the further point that for mark C to have been made by the Moto Morini that cycle would have had to be in the westbound lane before it was made (given the proximity, one assumes, of the first component of mark C to the centre line itself).
- Mr Manderson considered that his conclusion from the scratches was confirmed by what he derived from the scuff on the southern verge, which was indubitably caused by the detached wheel of the Moto Morini. Mr Manderson took this scuff to be about 3.4 metres from the eastern end of mark B (as shown on the plan – or directly opposite that eastern end if one includes in B, the single mark directly on the centre line as shown on Mr Binns' screen prints). Mr Manderson's view was that, for mark B to have been made by the Kawasaki, the front wheel of the Moto Morini would have had to cross the westbound lane at about 90 degrees to its direction of travel, or to take a westerly path back towards Macclesfield. In either case, said Mr Manderson, it would not be capable of depositing a clump of grass (as it clearly did) 12 metres in an easterly direction. This was further support, he considered, for mark B having been caused by the post impact path of the Moto Morini.
- Mr Manderson also derived support for his conclusion from the debris distribution, i.e. that there was little of it in his favoured collision area A- a point which I have already mentioned. In oral evidence he also said that he considered that marks B and C aligned linearly whereas marks B and A did not.
- In cross-examination Mr Manderson accepted that there was some debris to be found in area A but not a great deal. There was also much debate about what one could derive from simply aligning a ruler along the scratch marks shown on the plan and upon Mr Binns' screen prints. Much depends upon how one went about this apparently simple task and the results differed. I have discounted it in reaching my conclusions.
- Dr Chinn's report considered the "Accident Mechanism" in section 6 and gave the opinion that the impact occurred "a short distance before the centre red mark as discussed in 6.18". This is a reference to the centre mark of the three very short marks to the left/west of the long continuous stretch of mark C, and therefore to the east of area D on the annexed plan. As it emerged at the trial there was an immediate problem in this assessment because Dr Chinn was proceeding on the basis that there was an error in Mr Binns' plan because Dr Chinn said that he could not identify any road mark adjacent to the annotation "bone" on Mr Binns' plan. By reference to his computer screen print Mr Binns was able demonstrate clearly that there had been such a mark, which was depicted in photographs 22 and 85 and was immediately adjacent to the bone fragment found directly on the central white line, itself depicted in photograph 87. The clear identification of this mark caused Dr Chinn to change his preferred area of impact from Area D to Area E.
- Dr Chinn also approached his task by endeavouring to calculate the speeds of the two motorcycles before doing anything else, as he said expressly in paragraph 6.2 of his report. In cross-examination he was asked whether he accepted that it was necessary to find a point of impact before one could begin to assess speed at all. He said that that was "part of it". He said he had worked out an approximate point of impact and had then identified it more carefully after making an estimation of speed. He said he wanted to try to establish whether either rider was travelling at excessive speed.
- It appeared from paragraph 6.4 of the report that Dr Chinn had made an assessment of the distances slid by each cycle. Thus, speeds were computed on the basis of an assumed point of impact before any precise calculation of that point had been made. It was not stated in that paragraph that such an assumption was being made.
- In exchanges between the experts leading to their joint report, Dr Chinn then produced a "Google map" view of the crash scene with a point marked on it as "Approximate impact location". It emerged in evidence that the point so shown was considerably to the east of either Area D or Area E which were Dr Chinn's penultimate and final candidates for the impact location.
- Whichever of the three points mentioned in paragraph 68 above is adopted, it has as its corollary that the detached wheel from the Moto Morini would have had to travel backwards in a westerly direction after the impact, then to pass through the grass and then change direction once more to the east and travel a further substantial distance back in that direction before coming to rest, as it did, against the northern footpath to the east of Dr Chinn's areas D and E.
- By a late addition to his report (which one can see from the addition of section 7 dealing with, amongst other matters, "Wheel Detachment", not reflected in the contents page of the report) Dr Chinn explained his view of how the wheel became detached so as to have the result that it tracked backwards after detachment in the manner described above. His conclusion was that, "…the only likely mechanism is that the nearside front wheel spindle of the Kawasaki struck the nearside wheel rim of the Moto Morini…" (italics added by me). He also suggested that the front wheel of the Moto Morini crossed the front of the Kawasaki on its post impact path. He described this theory himself as "very unusual".
- I would note that Mr Manderson considered that the speed of the Kawasaki when it started sliding would have been in the range of 33 to 38 mph; he thought that the Moto Morini's initial sliding speed would have been between 62 and 69 mph. Both cycles would, he said, have lost speed in the collision and it would follow that they were travelling at higher speeds prior to collision. He thought that the Moto Morini was approaching the scene at a speed around 30 mph greater than that of the Kawasaki.
- Dr Chinn estimated the pre-collision speed of the Kawasaki at between 41.5 and 47 mph and that of the Moto Morini at between 45 and 52 mph.
- My findings in this case derive from an interaction of my views on the factual and the expert evidence taken together. In my judgment, the more persuasive elements of the factual evidence assist me in forming my views of the expert testimony and vice versa.
- On the factual evidence, I am much assisted about the lead up to this accident by the evidence of Mrs. Murgatroyd and Mr Mohr, whom I accept as entirely truthful and accurate witnesses. I am satisfied that Mrs. Murgatroyd accurately describes Mr Oldfield's group of motorcyclists overtaking her at the location she identifies and at the approximate speeds that she describes. I accept her evidence also that the first three cycles passed her at speeds higher than those of the second group and that this latter group seemed to be trying to catch up the first three.
- I accept Mr Mohr's evidence that three motorcycles, travelling at speed in the opposite direction, "flashed" past him on his approach to the accident scene. (The "flash" impression is more significant than the speed itself, which may be an overestimate.) In my judgment, it is clear that these were the three cycles ridden by Mr Gilbert, Mr Maher and Philip Oldfield. Mr Mohr also had the impression that the third motorcyclist was "chasing at a similar speed to the two bikes which had passed a few moments before" (italics added).
- Consistently with Mrs. Murgatroyd's evidence I consider that it is probable that on the approach to the scene, Mr Oldfield at least was also endeavouring to catch up with the three cycles in front of him. I am assisted in reaching this conclusion because I consider that the members of Mr Oldfield's group were unrealistic in their oral evidence in insisting that at no stage did they exceed the speed limits, even when passing Mrs. Murgatroyd, in the 30 mph limit at the edge of Macclesfield. I am satisfied that they did exceed the speed limit at this stage of their journey and did so on other occasions as the made their way towards the Cat & Fiddle pub, as Mr Mohr said. Mr Mohr also said that when the Kawasaki (Mr Frost's machine) passed him in the opposite direction he noticed it as being an older type of motorcycle (it was in fact a "G" registration, as already noted) and that it was not being ridden very quickly.
- I am supported in my view of the speed of Mr Oldfield's group by certain conclusions that I draw hereafter from the expert evidence. As will become apparent (if it is not apparent already) I distinctly prefer the evidence of Mr Manderson to that of Dr Chinn, for reasons to which I shall return.
- Mr Manderson's evidence as to the initial slide speed of the Motor Morini (62-69 mph) and his uncontroversial view that the pre-impact speed must have been higher than the slide speed indicate to me that Mr Oldfield must have been exceeding the speed limit, and probably by some margin, at the point of impact.
- I find that there was no car travelling immediately ahead of Mr Frost in the moments before the impact; he was not trying to overtake any such vehicle. First, Mr Frost has a continuing memory of turning the final left hand bend and travelling some distance down the straight; he then saw Mr Oldfield's group. He says that he saw no car in front of his at that stage. Mrs. Murgatroyd has no recollection of seeing any vehicle pass her travelling towards Macclesfield before she reached the crash scene. Mr Pendlebury had no such recollection either. Each would, in all likelihood, have seen such a vehicle if there had been one. Further and significantly, Mr Oldfield himself made no mention whatsoever of any such car in his witness statement in the action; it was a crucial factor if there had been such a car. He was unable satisfactorily to explain this omission in his oral evidence.
- I have taken into account the evidence of Philip Oldfield and Mr Gilbert about seeing a car being followed by a motorcyclist, both travelling in the direction of Macclesfield. I do not consider that the motorcyclist was Mr Frost.
- Mr Gilbert speaks of seeing these two vehicles when he "went round that right hand bend". This was, of course, some distance ahead of Mr Oldfield, who would have been some distance away from the scene at this stage. He also describes the motorcyclist as being a large man who appeared not to be wearing "leathers" and with the wind in his clothing; in cross-examination he described him as being like the "Michelin man". That description (with respect to him) suits Mr Mohr much more closely than Mr Frost. He accepted in cross-examination that it was possible that the rider he saw might have been Mr. Mohr.
- Philip Oldfield also said that he saw a car being followed by a motorbike. I have set out his evidence about this. In oral evidence he said that he had seen this on the straight before reaching the right hand bend at the end. He said that after that he had looked in the mirror and saw "steam and smoke". He had then gone back to see his brother. He said Mr Mohr was not there at the time. He told the court that his cycle was a "Honda Fireblade".
- Mr Mohr's evidence about this is different. He says that the third cycle in the group passed him as he was negotiating the second bend before the straight. Then the car braked and he could see the "mayhem" of an accident in front of him. The car stopped; he stopped and pulled off his helmet and gloves. The driver of the BMW went to the boot of his car and took something out which he gave to a motorcyclist who by then had arrived from the Macclesfield direction; this must have been Mr Pendlebury. He says that as Mr Oldfield was being attended by this motorcyclist (only one), he decided to go to Mr Frost. He met Mrs. Murgatroyd and then returned to Mr Oldfield. He then says, "…More people had gathered. Parked closely to my motorcycle was a "Fire-Blade" motorcycle… [I interpolate, clearly Philip Oldfield's bike]… I asked if anyone knew who the riders were. One motorcyclist said that Mr Oldfield was his brother…". The clear implication of this is that Philip Oldfield arrived at the scene after Mr Mohr.
- I do not think that this impression is altered by certain answers given by Mr Mohr in re-examination. These were transcribed, at my direction, after the trial. The questions and answers were as follows:
"Q. And so which of the two riders did you go to first?
A. The first person was actually where… was Mr. Oldfield was actually where I stopped and parked me bike up in the middle of the road.
Q. You put your bike there, did you?
A. Sorry …?
Q. You put your bike ---.
A. Yeah, I parked me bike up, took my helmet and gloves off and then went over to Mr. Oldfield then.
Q. Yes, I follow. And you later mentioned going down towards Mr. Frost .
Q. Do you know how long it took you to …?
A. It was only a couple of minutes just to see if the other person was okay and that.
MR. JUSTICE McCOMBE:
Q. You say it took you a couple of minutes to walk down or after a couple of minutes?
A. Yeah, after a couple of minutes I went back and everyone I'd spoken to, Mr. Oldfield, I think his brother was with him and I think I asked him if he'd spoken to any of the emergency services, and then the guy in the BMW got a first aid kit or a blanket out of his boot and then he drove off. That's when I walked down to see if Mr. Frost was okay then. That's when I realised there was a lady with him as well."
The punctuation of the answer to my own question is not entirely accurate on any reading. However, I believe that it is clear that at the beginning of the answer he was describing what happened after going back to Mr Oldfield having briefly walked over to Mr Frost. It was at that stage that he asked Philip Oldfield if he had spoken to the emergency services. I do not think that the last sentence of the answer affects the clear effect of the rest of Mr Mohr's evidence.
- If this evidence is accurate, which I consider it is, it is clear that Philip Oldfield returned to the scene between (a) Mr Mohr stopping, looking briefly at Mr Oldfield, going to see Mr Frost and then (b) returning to Mr Oldfield. If the car spoken of by Philip Oldfield had been a car which was being followed closely by Mr Frost, then Philip Oldfield would have had to have been on the scene before Mr Mohr. In my judgment, on Mr Mohr's evidence, he was not.
- The car Philip Oldfield saw was the BMW near the bend. He returned after the initial series of events at the scene described by Mr Mohr. There was no car travelling in front of Mr. Frost.
- Thus, in my judgment, there is no reason available, on the factual evidence, for thinking that Mr Frost was travelling down this straight piece of road in the wrong lane. This is supported by the view that I have taken of the expert evidence (see below).
- I accept Mr Mohr's evidence that Mr Frost was travelling at a moderate speed as he passed in the opposite direction (and this is supported by Mr Manderson's evidence of his slide speed – and indeed, by Dr Chinn's). It is clear on both parties' cases that he had travelled a significant distance down the straight before the impact. (The straight, from Mr Frost's perspective, is well shown in the photograph at the bottom of page 3/43/3098.)
- On the other hand, Mr Oldfield had negotiated a left hand bend, in my view at high speed, as he came into that straight. The bend and the start of the straight are shown well in Dr Chinn's figures B1 and B2 on page 3/43/3097. Taking that bend at excessive speed could clearly result in the rider drifting into the opposite lane.
- Turning to Mr Binns and the experts, all are agreed that the track of the displaced wheel of the Moto Morini and the mark in the southern grass verge are of great significance in this case.
- Mr Binns' conclusion was for the wheel to have tracked as it did "the impact must have been to the west of where the mark in the grass was". Both Area D and Area E favoured by Dr. Chinn are to the east of that mark.
- In writing his report, Dr Chinn did not discuss Mr Binns' stated view at all. Mr Manderson said in cross-examination that his view was that the mark in the verge was "directional" and that the wheel had been travelling from the west before going across the road. Mr Lynagh in his closing submission wrote (in paragraph 44a ) that Mr Binns had also said that the grass had been flattened in a west to east direction, but I have no note of that answer. If that was indeed his evidence, observed at the scene, it would be forceful support for the contention that the wheel's direction after travel was west to east. I agree, however, with Mr Lynagh's submission that the curvature of the scuff mark on Mr. Binns' black screen prints supports an easterly path of travel; it is difficult to see how a curve of that radius could have been made by a wheel travelling from east to west from Areas D or E to the point on the verge where the scuff mark is found.
- As has already been mentioned, Dr. Chinn's view is that the wheel of the Moto Morini became detached and then travelled backwards towards Macclefield and through the verge before turning again and proceeding westerly in the Buxton direction before coming to rest on against the northern footpath. He said in paragraph 7.6 of his initial report that the only likely mechanism for the wheel's detachment was by the nearside front wheel spindle of the Kawasaki contacting the nearside wheel rim of the Moto Morini and that the Moto Morini's wheel passed in front of the Kawasaki. Given that both experts agreed that the two motorcycles collided offside to offside (paragraph 2.2 of the Joint Report), this theory seems to be entirely fanciful. In cross-examination Dr Chinn insisted that the only possible contact was wheel to wheel and nearside to nearside. I do not accept Dr Chinn's theory; it makes no sense at all.
- I accept each of the written submissions of Mr Lynagh and Mr Evans-Tovey on this point as set out in paragraphs 52 to 54 of their written closing argument and I will not set out here all the points made. The following is a summary.
- The collision has always been accepted as being an offside to offside "side swipe" collision. The idea that the two front nearside wheels should have made contact in such a collision and then crossed back so that the cycles passed offside to offside is absurd. If Dr Chinn was right, the bikes would have been displaced to their offsides and would have fallen to their offsides. However, it is agreed that the bikes fell to their nearsides and all the damage is consistent with an offside to offside impact. Dr Chinn did not successfully address this fundamental inconsistency in his theory in the Joint Report.
- Mr Manderson inspected the nearside front wheel of the Kawasaki on 24 December 2009 (when Dr Chinn's theory had emerged) and obtained photographs. The photographs disclose no damage to that wheel consistent with Dr Chinn's theory. Yet in the joint report Dr Chinn alludes to "evidence of missing paint". However, this is merely superficial and the damage does not reflect a contact at closing speeds of 100 mph or more. There was no material damage to the forks of the Kawasaki. I also accept the consequences of a nearside to nearside collision as set out in sub-paragraph 52 m, i-viii in the written submissions for Mr Frost. In particular, as Mr Lynagh submits, it is fanciful to suggest that the motorcycles would within 1/135th of a second and when travelling in opposite directions have swapped sides, travelling about a metre laterally, without the forks or the fronts of the bikes colliding.
- I agree with Mr Manderson that the evidence indicates the following mechanism for the detachment of the wheel and its subsequent travel. The impact was offside to offside. Something hit the fork of the Moto Morini from the front and the wheel was released. The metal footrest of the Kawasaki is the likely candidate. Such an impact would have turned the wheel to the right. Once released the wheel was still spinning forwards and that spinning would have propelled it forwards (not backwards). With the wheel turned to the right by the impact, it would have continued forward and to the right to the point where it clipped the southern grass verge and continued onwards in the line of the curve indicated by the scuff mark to its resting place.
- Apart from the obvious deficiencies in Dr Chinn's theory about the displacement of the wheel and its path to its resting place, there are other aspects of concern about Dr Chinn's evidence and how it evolved. There are small points of sloppiness. First, I note again the failure to correct the contents page of the report when section 7 was added. Secondly, paragraphs 8.7 and 8.8 were mere duplicates of each other. Thirdly, there was the statement by Dr Chinn that he had been supplied with various documents including "Witness Statement of Andrew Bassam dated 13 March 2006" (emphasis added), a date over two years before the accident. No witness of this name had ever been involved in the present case. (I return to a more disquieting feature of this below.)
- Next, there were other concerns about the quality of the evidence. First, there was Dr Chinn's attempt to gauge the speeds of the motorcycles before fixing the likely impact point, an impossible task. Secondly, there was the failure to deal with PC Binns' opinion which, although made without detailed calculations, obviously deserved respect and was contrary to the view to which Dr Chinn was inclined. Thirdly, there was the production of the Google map with the identification of an impact area well away from anything that even Dr Chinn ever sought to justify in writing. Fourthly, in seeking to explain this away, he claimed not to have identified the scuff in the verge on PC Binns' plan, an inexplicable omission. Put another way, given the accepted importance of the wheel trajectory, it is very surprising that Dr Chinn did not ask for this point to be clarified, either by PC Binns himself or by Mr Manderson, if he was unsure about it. In any event, by the time that the Google map was produced, the site of the scuff had been clearly identified in Mr Manderson's report. Finally, there was the final opinion about the nearside/nearside wheel detachment mechanism and the travel of the wheel post-impact which was wholly implausible. It was never satisfactorily explained in the context of this impact which was accepted by him and by everyone else to have been offside to offside.
- For these reasons, I conclude that Dr Chinn's theory as to the detachment of the wheel and its path to its final resting point can be wholly discounted. For this reason and because of the other unsatisfactory aspects of his evidence, I reject his opinion as to the point of impact between these two motorcycles. I prefer the view of Mr Manderson even if it stood alone. It is also supported by the initial impression taken by PC Binns after his long and careful inspection of the site. These views are in accord with the factual evidence that I have accepted.
- There is one final aspect of Dr Chinn's evidence that needs to be mentioned further. That relates to the witness statement of "Andrew Bassam" referred to by him in his report. There was solicitors' correspondence on this subject. After instructions from Dr Chinn, the explanation from Mr Oldfield's solicitors was that the reference was a typographical error. Dr Chinn was cross-examined about it. He claimed to be unable to explain how the reference had got there. It was suggested to him by Mr Lynagh that this may have been a rogue reference to a witness statement from another case which had crept in by accident. Dr Chinn said that he could find no reference to the name in his database; it meant nothing to him. He said he could not explain it and that if it had been a reference to another case it should have appeared in his records.
- Dr Chinn was the last witness and when his evidence concluded the case adjourned overnight for final submissions on the following day. Over the adjournment, researches by Mr Frost's solicitors revealed the case of Powell v Auden  EWHC 98 (QB), a case decided by Sir Robert Nelson, sitting as a judge of this Court, on 23 January 2009. This was another motorcycle accident case. A Mr Bassam was one of the witnesses and a Dr Chinn gave evidence as an expert for one of the parties. It seems, therefore, that this was the same Dr Chinn and the erroneous reference in Dr Chinn's report to a statement from Andrew Bassam was a reference to a statement given in Powell v Auden. The trial before Sir Robert Nelson was only a year ago and it is difficult to see how the name "Andrew Bassam" meant nothing to Dr Chinn when the matter was put to him in this case. However, by the time that this information surfaced, evidence had concluded and it was not possible either for Mr Lynagh to cross-examine further on it or for Dr Chinn to give his explanation.
- For the reasons given above, I conclude that the impact between these two motorcycles occurred in the area of the Macclesfield/westbound carriageway contended for on Mr Frost's behalf. The consequence is that it was a collision for which Mr Oldfield was wholly responsible because of his negligence. Mr Ullstein's alternative contention for equal responsibility, on the basis that both experts might be found to be wrong, does not arise. There will be judgment for Mr Frost on his claim and Mr Oldfield's claim will be dismissed.
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