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 . Eicdence is tested on the balance of probabilities. But what does that mean? How is a judge “satisfied”?
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Norfolk & Norwich
21st September 2006
MCIArb Barrister Mediator
199 Strand London
But what does that mean?
How is a judge “satisfied”?
Why does a judge “find as a fact”?
Research suggests judges look for evidence that is:
The CA held:
POWELL v HANSEN  EHWC 4964 (Mr R Thorn QC)
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.
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.
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.
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 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.
Zen in the management of risk:
"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