Beasley v Alexander [2012] EWHC 2197 (QB) (27 July 2012)

Neutral Citation Number: [2012] EWHC 2197 (QB) Case No: HQ114X03139 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 27/07/2012 B e f o r e : SIR RAYMOND JACK SITTING AS A JUDGE OF THE HIGH COURT ____________________ Between: Marcel Beasley (A protected party by, his litigation friend Cadell Beasley) Claimant - and - Paul Alexander Defendant ____________________ Christopher Melton QC (instructed by Fletchers Solicitors) for the Claimant Alan Jeffreys QC (instructed by Greenwoods Solicitors) for the Defendant Hearing dates: 11th and 12th July ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Sir Raymond Jack: On the afternoon of 22 May 2009 the defendant, Mr Paul Alexander, was stuck in a line of traffic some way back from a roundabout on the A453 just north of Barton in Farbis in Nottinghamshire. He was travelling north east to towards Nottingham. He decided to abandon his journey and to return to his home. He had not come far. On the opposite side of the road was a farm track. He was familiar with it. He decided to use it in which to turn. As he pulled out across the road towards the track his car was struck by a motorcycle ridden by the claimant, Mr Marcel Beasley. Mr Beasley was going in the same direction as Mr Alexander and was overtaking the line of cars in which Mr Alexander had been. Mr Beasley was thrown over the top of Mr Alexander's car. Most unhappily the strap to his helmet broke as a result of the impact and his helmet came off. He suffered severe injuries, including brain injuries. He is greatly incapacitated. He remembers nothing of the accident. The side of Mr Alexander's car was severely damaged. Mr Alexander escaped injury. The court is at this stage concerned with liability only. That involves the issue whether Mr Alexander was negligent in pulling across the path of Mr Beasley as he did, and the issue whether Mr Beasley contributed to the accident by his own fault. Mr Alexander was driving a Volkswagen Golf 3.2 litre 3 door hatchback. Mr Beasley was on a Yamaha R6, which also is a powerful machine. The A453 links the M1 motorway with Nottingham. It is subject to the national speed limit of 60 mph. The section in question has one lane in each direction separated by a broken white line. The section rises uphill in the direction of Nottingham. About 220 metres to the south of where the accident occurred there is a shallow bend and then staggered junctions on either side leading to Barton in Farbis and Goatley. The road bends slightly about 75 metres north from the scene of the accident. So there is a straight stretch with clear visibility of some 275 metres. Traffic going south is visible as it approaches the northern bend because the road continues up hill and there is no visual obstruction. The weather and visibility were good. At the scene of the accident the northbound lane is 3.69 metres wide, and the southbound lane is 3.7 metres wide. It was possible from the tyre marks left on the road as a result of the impact to see where Mr Alexander's Golf was at that moment. Its off side rear wheel was on the central white line. The off side front corner of the car was about two thirds of the way across the south-bound carriageway and a bit over a metre from the kerb. The point of impact between the car and the front wheel of the motorcycle was just in front of the off-side door pillar. That was one metre into the south bound carriageway (Mr Seston's first report, paragraph 4.20.5). A number of eye-witnesses gave evidence. Mr Gerald Doherty left the power station where he and Mr Beasley worked, very shortly after Mr Beasley. That was 2.6 miles to the south of where the accident occurred. Like Mr Beasley Mr Doherty was riding a motorcycle. Unlike Mr Beasley he had a pillion passenger. At one point he could see Mr Beasley ahead of him. He came to the queue of traffic and began to filter past it going down the centre of the road. He next saw a truck with flashing lights carrying a crane coming towards him. He then saw Mr Alexander's Golf across the road between him and the truck. He came to the scene of the accident. He spoke to somebody who he understood to be the Golf's driver. The man said that he had not seen Mr Beasley coming and that he had been turning right heading towards a recycling point. There is no recycling point down the track or in the close vicinity. Mr Doherty was puzzled because there was nothing in the Golf to recycle. Mr Alexander denied having any such conversation. I am satisfied that Mr Doherty was honest in his evidence. But my decision in the case is not affected by the reference to recycling, which I find an oddity. There was some reference by some one at the scene to 'racing'. The World Superbikes Championship was then being held at Donnington, 8 miles to the south. There is nothing to suggest that Mr Beasley was 'racing' on the A453, and I have no hesitation in rejecting any suggestion that he was racing or riding in a manner as if he was racing. Dr Andrew Clayton knows the local roads. He was driving along the A453 in the same direction as Mr Beasley, towards Nottingham. After passing the Barton in Farbis and Gotham turns, he came to the queue of traffic, bumper to bumper as far as he could see. The traffic was moving a few yards at a time. Then, after being stationary for a couple of minutes he heard a motorcycle approaching from behind. He had his window open. It was close to the centre line. In his statement to the police made a month later he put its speed at around 40 mph, but it might have been a little slower or faster. He said that the speed did not seem excessive for the circumstances: it was not out of the ordinary. In his witness statement made in May 2010 he put the speed at between 30 and 50 mph, probably 40. Immediately it passed, a black Golf pulled out of the line of cars about 4 or 5 cars ahead of him. The motorcyclist had no time to do anything. He was propelled into the air over the top of the car and landed in a ditch on the other side. From his position he could not see if Mr Alexander had put on his indicator to turn right. He said it was a sudden movement and Mr Beasley had no chance of avoiding the Golf. In his 2010 witness statement he said that he did not recall seeing Mr Beasley's brake light come on. He said 'There would have been no time for any one to react because the motorcyclist was so close to the VW when the car pulled out.' Dr Clayton got out and went to assist. He said he would have been aware if there had been any substantial gap in front of the Golf when it turned. He had no recollection of a black Mitsubishi coming south towards him prior to the accident. He said he was sure Mr Beasley did not have time to brake. He disagreed that immediately prior to the impact that the front forks of the motor cycle were compressed by braking. It seems to me that he was not in a good position to see that. He said that his car, which he had left where it was when he got out, was about 25 meters from the accident. That is consistent with the Golf being 4 or 5 cars ahead of him. Mr Andrew Lees also used the road regularly. He was travelling north and he joined the queue of traffic. He had been stationary for a short time when he heard the sound of a powerful motor bicycle behind him. He looked in his mirror. It passed him at a speed of between 50 and 60 mph. It was travelling 'way too fast' for what the rider was doing. That was in his statement to the police. In his witness statement made in January 2012 he said it could have been as little as 40 mph. His instinct had been that it was travelling too fast, but it was a big powerful motorcycle and loud, which influenced his decision. As the bike went past, a black Golf, perhaps 5, 6 or 7 cars ahead, suddenly pulled out of the queue and there was the collision. He said it was obvious to him that the Golf's driver had had a sudden impulsive reaction to pull out and try to turn round. That was how he interpreted what he saw Mr Alexander do. He did not see if the Golf indicated before coming out. He said the biker had no time to react or take evasive action. He did not see if his brake lights came on and he doubted if he had time to brake. He put his own distance from the collision as 80 yards. Even if he was 7 cars back that may be too much. He did not remember a Mitsubishi four by four coming towards him. Mr Depack Sandhu was in the car behind the Golf. He was a motorcycle rider and also very familiar with the road. His description was as follows. The traffic began to slow to a crawl. The Golf held back so a gap appeared between it and the vehicle ahead. They were travelling at about 5 to 10 mph when the Golf's right indicator came on. The indicator was on for 4 to 5 seconds when the Golf began to turn right and at almost the same time he heard a motorcycle approaching from behind. From the sound it was accelerating. He put its speed at 45 to 50 mph. As it overtook him it was rather over a metre across from the central white line (that is, on the far side of it from him). He heard the rider throttle off and he saw the front forks compressed under heavy braking. The rider was too close to avoid a collision but looked as if he was trying to steer to the right. He said he would not have felt comfortable overtaking a line of vehicles at that speed. That was all from his statement to the police. In his witness statement made in June 2010 he said before the Golf started to hang back he was two car lengths back from him. He said a gap may have started to open between the Golf and the car in front. He thought the indicator was on for about 3 seconds before the Golf started to turn. As it started to turn he heard the motorcycle behind him. He caught a glimpse in his wing mirror as it passed. He would have felt more comfortable doing around 30 to 40 mph. He did not think that the motorcyclist could have done anything to avoid the collision. In court he said to Mr Christopher Melton QC for Mr Beasley that the Golf never came to a halt; it turned very abruptly, the speed of the motorcycle was about 45 mph, as a matter of personal preference he would have felt comfortable at 30 to 40 mph. He told Mr Alan Jeffreys QC for Mr Alexander that the motorcycle should not sensibly have been doing more than 25 mph. But he added that he would go faster if there was a gap developing – it was as best to get past as quickly as possible if there was no danger in front. Mr Bradley Meek was the one witness coming in the opposite direction – from the north. He was driving a large black Mitsubishi 4 by 4. He has a serious interest in motorcycles. He described the traffic facing him as he came onto the relevant bit of road as bumper to bumper. But he had nothing ahead of him or behind him. He was travelling at about 50 mph. He saw Mr Beasley's motorcycle coming towards him, probably at about 45 mph. He thought he was going too fast. 'It was certainly a lot quicker than I would have felt confident doing.' He moved a little over to his left and Mr Beasley reduced his speed. As he went by Mr Meek kept an eye on his driver's door mirror. He thought the bike was starting to accelerate. At the same time he saw the Golf turn right. The rider had no time to react and went straight into it. He was then about 50 yards away. Mr Meek halted his car about 100 yards down the road from the accident and walked back to the scene. He heard some shouting something to the unconscious Mr Beasley about racing. As I have indicated, I do not find this evidence of any help. I find that all of these witnesses were honest in their evidence. I did, however, not feel confident that I could rely on the detail of Mr Sandhu's evidence. The accident happened at about 2.20 pm. At 5.20 that day Mr Alexander made a typed note to record what had happened. In it he said that he decided to abandon his journey and knowing of the track indicated to turn right. As he drew level with it he had to wait for on coming traffic. He checked his wing mirror before turning. When his front wheels were over the kerb beside the track he was struck by the motorcyclist. He was interviewed by the police on 14 September 2009. He said he had to wait for a gap in the oncoming traffic before he could turn. He checked his mirror, looked in the track and executed his turn. He was stationary for a couple of minutes before he turned. He could see the traffic backed up behind him for 200 metres. The traffic coming towards him was light compared to that he was in but otherwise was medium to heavy. He was aware of Mr Beasley in his peripheral vision a split second before the impact. He said he had been indicating to turn for about 30 seconds. In his witness statement signed on 20 October 2010 he said that he started to indicate about 50 yards before the track. He said that was just after he had passed the double white line section of the road. (That in fact ends just north of the Barton and Gotham junctions over 200 meters back.) When he got level with the track, he had to stop for on-coming traffic. Meanwhile a gap opened up of about 80 yards ahead of him. He made two checks of his mirror before starting to turn. From starting to indicate to starting his turn was15 to 20 seconds. In cross-examination he said that he distinctly remembered that he put on his indicator where there were pink lines across the road. That would have been over 150 metres before the track. He was asked to say how long it took to get from where he first indicated to the track and said it could have been up to 5 minutes: it was certainly of the order of minutes. He accepted that he could see behind him all the way back to the bend. The facts as I find them in relation to Mr Alexander's actions are as follows. The only on-coming vehicle preventing him turning into the track was Mr Meek's Mitsubishi. He turned immediately after it had passed. If he had been level with the track before Mr Meek came by, he could have turned. For Mr Meek had seen nothing ahead of him while he was on that bit of road. So Mr Alexander did not wait for any period and no gap of any appreciable size built up between him and the line ahead. He may have halted briefly for Mr Meek to go by, but it is more likely that his wheels kept turning. With Mr Meek out of the way he turned in a way which struck witnesses as sudden. He had a powerful and light vehicle. It is likely that he moved a good deal more quickly than the average vehicle. His evidence as to when he put on his indicator was contradictory. I have to ask why. I think that he did put on his indicator – I accept Mr Sandhu's evidence that far, but I think that he did it at the last minute after Mr Meek had passed. I have to conclude that he did not look in his mirror properly before crossing. Otherwise he must have seen Mr Beasley approaching. The headlight on the motorcycle would have been on, as it comes on automatically when the ignition is turned on. The probability is that, with Mr Meek out of the way, Mr Alexander assumed his passage was clear. There can be no doubt that Mr Alexander was negligent. While he made no admission, Mr Jeffreys did not address me to the contrary. My findings as regards Mr Beasley are as follows. When he came to the queue of traffic he pulled onto the right-hand side of the road a little across from the white line and began to overtake the stationary or nearly stationary line of cars. There was nothing coming the other way. When Mr Meek appeared he pulled in towards the line of cars he was overtaking and slowed somewhat. There was room enough for the Mitsubishi, the motorcycle and the line of cars. It is likely that he and Mr Meek passed at a distance of about 50 metres from the point at which the accident occurred. With Mr Meek passed he accelerated in order to regain his former speed and he would have moved across to regain his former position on the road. When he was a short distance from Mr Alexander, Mr Alexander pulled into his path. He had no chance of avoiding him. The point of impact shows that it is unlikely that he was able to deviate from his path by very much if at all. It is probable that he was able to apply his brakes. It is unlikely that he was able to reduce his speed by much. He left no skid marks on the road. The road traffic accident experts, Mr Sorton and Mr Seston, were unable to use markings on the road to arrive at an estimate of Mr Alexander's speed. Using the distances travelled after impact they arrived at an agreed speed at impact of between 40 to 50 mph. Mr Sorton thought it was at the lower end of that range. Mr Seston thought that the impact speed was a little higher than 40 mph, and that it was not possible to be precise where in the range the speed had actually been. I have concluded looking at all the evidence that Mr Beasley's speed when Mr Alexander first pulled out was most likely approximately 45 mph. I take into account that he was overtaking the nearly stationary cars on a big noisy machine and so the drivers were likely to over-estimate his speed rather than under-estimate it. Was 45 mph too fast; was it negligent? I find this a difficult question, and it is one on which opinions could differ. I think that the immediate reactions of the eye witnesses are something to take into account. It may sometimes be easier to say that a vehicle is travelling too fast for a particular situation than to judge its precise speed. I bear in mind that it is the relative speeds of vehicles which may in particular create danger in a situation such as here. On the other hand Mr Beasley and the Mitsubishi had passed without any difficulty and he again had clear road ahead of him. I have concluded that if he was going too fast it was not by much. I do not think that he could be criticised for travelling at 35 mph. Mr Sorton calculated that it would have taken Mr Alexander between 1.5 and 2 seconds to move from the line of traffic to point of impact. I think that the lower figure is appropriate because of the suddenness of the manoeuvre. If he was travelling at 45 mph Mr Beasley would have travelled 30 metres. That is broadly consistent with his having passed Mr Meek 50 metres from the impact and Mr Alexander pulling out as soon as Mr Meek was past. Table 1 on page 14 of Mr Seston's supplementary report sets out stopping times using a one second reaction time. Table 2 uses a 1.5 second reaction time. With a one second reaction time the stopping distances at 45 and 35 mph are 54.49 and 36.44 metres respectively, taking 4.42 and 3.66 seconds. With a 1.5 second reaction time they are 64.55 and 44.27 metres, taking 4.92 and 4.16 seconds. According to the experts Mr Beasley had only about 1.5 seconds. I am satisfied independently by the eyewitness evidence that Mr Beasley did not in fact have time to avoid a serious accident and that he had time only to reduce his speed by a small amount. I do not think that the situation would have been much different if he had been going some 10mph slower. So the calculations may give him more time than was in fact the case – though they do not suggest that there would not have been a serious accident. I conclude that Mr Beasley was travelling somewhat too fast. I also conclude that if he had been travelling at what I might call a top safe speed, namely 35 mph, there would nonetheless have been an accident in which he would have sustained serious injury. It was agreed between counsel that in this situation the allegation of contributory negligence must fail. I was referred by Mr Melton to the decision of the Court of Appeal in Davis v Schrogin [2006] EWCA Civ 974 . The facts were similar save that the defendant car driver was making a U turn and hung to his left before turning right. The claimant motorcyclist was travelling at 40 to 45 mph somewhere near the centre of the right hand lane. The judge had at first thought that the claimant had been travelling too fast, but after argument and further consideration had concluded that his speed could not be legitimately criticised. He also held that, if the claimant had been going appreciably slower, it would have made no difference because he was right on top of the point of accident when the defendant first did anything to excite anxiety. So, as Hughes LJ stated: 'In other words the judge held that even if there had been excess speed, it was not causative of the collision.' So there are similarities and differences between that case and this, but more similarity. There will be judgment for the claimant for damages to be assessed. 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