Zen And The Art Of Motorcycle Evidence

1. Zen And The Art Of Motorcycle Evidence Norfolk & Norwich Medico-Legal Society 21st September 2006 Jonathan Dingle MCIArb Barrister Mediator 199 Strand London Clerksroom Taunton

2. Eicdence is tested on the balance of probabilities But what does that mean? How is a judge “satisfied”? Why does a judge “find as a fact”?

3. Key influences Research suggests judges look for evidence that is: • Consistent • Contemporary • Independent • Common sense; and often most of all • Concordant with their own experience … but

4. Evening all • Police reports are popular – but they are like G.P. notes – not intended for civil lawyers to paw over later • Police are gathering prosecution evidence • Parties unlikely to want to incriminate themselves • Police are likely to focus on the most obvious cause • Police are unlikely to be interested if no prosecution • If one party is unconscious, evidence is often unbalanced • Police reports often do not follow if no prosecution • Police officer did not see events • Police, like all human witnesses make mistakes… and may carry preconceptions

5. Remember.. • Honest witnesses are often mistaken • How many planes or shots? • The human mind can persuade itself • By repetition, or outside influence • Those in error can delude themselves • Cognitive dissonance

6. But often they are – but only 20%? • POWELL v MOODY • An insurer’s favourite - but is it from a different age? • The Court of appeal stated that any vehicle which “jumped the queue” was undertaking a hazardous manoeuvre which had to be carried out with great care; there was a high degree of care required by the motorcyclist and effectively the burden was on the motorcyclist to make sure it was safe to overtake. • The concept of queuing goes deep into the national psyche, and there is a subconscious objection to those that “jump the queue”: if an accident happens where someone is doing this, then the natural reaction has been to blame the person who is in breach of the natural order of queuing.

7. Righteous decision?

8. Pell v Moseley - 50:50 The CA held: • P knew that there was a motor cross event in the field at the time of the accident. P should have realised that a vehicle might take a right turn into the field. To have overtaken in such circumstances without fully assessing the situation negligent. • Bearing in mind the fact that M knew where the gate entrance was, it was clear from the evidence that she was handling her vehicle in such a way so as to slow down in order to make the turn. M's vehicle must have been travelling in such a way so as to show that she was intending to turn into the field. • Accordingly, the judge was bound to ask himself, even without the indicator, whether there was significant material for P to have noticed the possibility of a vehicle turning right. On the basis of the evidence, there was enough material to reach a finding of contributory negligence. • Neither party was more to blame than the other, and accordingly liability was split evenly between the parties.

9. More Powell to your elbow… POWELL v HANSEN [2001] EHWC 4964 (Mr R Thorn QC) • At 0745 on 16th April 1998, P was riding his Honda 750 along Middle Street, Lower Nazeing. The limit was 30 but he was above the limit: had he been going at or below it, the collision would have been avoided. • Cars driven by the first and second defendants were waiting to turn right at traffic lights. This meant crossing the Claimant’s path. The second defendant had completed his turn when the first defendant was run into by the claimant on his motorcycle. The claimant, sustained severe injuries in the collision and was unable to give an account of what happened. HELD: • (1) The first defendant had gone forward beyond the stop line when he could not clear the junction and when he was not taking up a safe position to turn right (thereby being in breach of Rule 114 of the Highway Code). • He also failed to: • (i) wait until there was a safe gap between himself and any oncoming vehicle; • (ii) watch out for motorcyclists (who were specifically afforded protection by HC Rule 117); • (iii) observe or heed P at all which was sounding its horn and had it's headlamp illuminated; and • (iv) pay attention to the changing traffic lights. • (2) The negligence of both parties caused the accident but the proportion of that causation was only measurable by their respective culpability. It was the first defendant who was engaged in the potentially dangerous manoeuvre (the right turn) whereas the claimant was only driving ahead on a course for which he was entitled to the right of way. The first defendant should never have done what he did, yet the speeding motorcyclist, already fearing some danger, was deprived by his excessive speed of being able to do anything to avoid the collision. The apportionment was 80:20.

10. Rear end collisions I • Waller –v- Levoi [1968] CA Defendant car driver approaches left hand bend. He overshoots a junction to left on the apex of the bend. He stops to look at a signpost. A bike collides with the rear of the car. Held: 80/20 against motorcyclist. Biker should have seen car. Defendant should have gone ahead rather than stopping in the bend. He owed a duty to other careless road users.

11. Rear end collisions II • Rugg –v- Marriott [1988] CA The defendant’s car broke down in the road. He was unable to push it so left it between 2 lamp posts on left hand side of road. The car was visible for 300m. Bike collides with rear of car. Held: 70/30 against biker. On appeal biker 100% liable.

12. Country lanes • Arnott -v- Sprake & Batchelor [2001] CA The Claimant was riding a motorcycle along a country lane with a maximum speed limit of 60mph. Whilst negotiating a left hand bend he collided with an agricultural vehicle that was turning right from a junction on the Claimant’s left. There were no signs or markings warning of the junction. At first instance the Judge found for the Claimant. On appeal there was no evidence that the junction was unusually dangerous or the agricultural vehicle was out of the ordinary. This was exactly the type of junction that could be anticipated on an unclassified road. There was an onus on drivers on small unclassified roads to drive in a manner that did not put them at risk of being surprised by what was around the next corner. Appeal allowed.

13. Country lanes agin Macklin –v- Baird (2002) Biker collided with rear offside of tractor pulling out of a minor road. Biker alleged tractor should have used alternative access route with better visibility. The judge in Taunton found that liability rested entirely with the Claimant for riding too fast and failing to anticipate agricultural traffic. Lamoon v Fry[2004] EWCA Civ 591 Collision between on a country lane where a car was doing 40mph and a bike which was on the wrong side of the road doing 5mph, 15 metres from a bend. The judge apportioned liability 40:60 against the bike. On appeal, the Court of Appeal held that the judge had found negligence by making a finding that a speed of 40 mph without slowing for the bend, given the restrictive view due to the hedgerows, had been too fast. It was impossible to say that the judge had been wrong to conclude that the excessive speed was a cause of the accident. Notwithstanding the finding that F had been properly keeping to his side of the road, a motorist on such a road nevertheless had to be aware of other users who could be put at risk by driving too fast for the conditions.

14. Risk - courting disaster Zen in the management of risk: • Importance of early offer • Local knowledge • Specialist knowledge • Maps • Site visit • Meeting client

15. Risk and track days… • Craven v Riches ((2001) EWCA Civ) The Claimant a quadriplegic, appealed against the dismissal of his claim in negligence against the Defendant. He had broken his neck in a motorcycling accident which had taken place at an event organised by the Defendant. The Claimant argued that the Defendant had failed to ensure that the groups of riders, which had been categorised according to their ability, were kept separate with the result that the Claimant had been hindered by slow riders on the race track, a factor, which had been causative of the accident. • HELD, allowing the appeal, that the Defendant’s duty of care had extended to preventing faster riders from being obstructed by slower riders, the solution to which was to stop the separate groups from being on the race track at the same time. The judge in the first instance had failed to draw a correct conclusion on the causative effect of mixing different groups of riders on the race track and whilst the Claimant was guilty of contributory negligence to a certain extent, the Defendant’s breach of duty had been the principal causative factor.

16. Zen and the Art of…. "Trials never end, of course. Unhappiness and misfortune are bound to occur as long as people live, but there is a feeling now, that was not here before, and is not just on the surface of things, but penetrates all the way through: we've won it. It's going to get better now. You can sort of tell these things." Robert Pirsig … ZAMM