Road Traffic Accident: Motorcycles: Pillions Passengers: Liability

The High Court has delivered judgment in ROWBOTTOM v [1] THE ESTATE OF PETER HOWARD [2] TEASDALE [2023] EWHC 931 (KB), finding a motorist with learning difficulties wholly liable for a collision with a motorcyclist and its pillion passenger who were travelling in the opposite direction. Whilst not directly relevant to the court’s findings on liability, the motorist’s driving history revealed he had taken 12 driving tests and 7 theory test before passing his driving test, and had been involved in two other accidents during the same year as the index accident in 2018.

• A motorist with learning difficulties was found wholly liable for a collision with a motorcyclist and its pillion passenger travelling in the opposite direction. Accident Reconstruction evidence of Mr. Davey (for the deceased motorcyclist) and Mr Roberts (for the claimant pillion passenger) suggested the collision had occurred in the motorcyclist’s lane with the court finding that the motorist had likely lost concentration and drifted onto the wrong side of the road.
• Accident Reconstruction evidence from Mr. Green for the motorist was generally discredited as unreliable, despite ostensibly acquitting the motorist of a criminal charge of causing death by careless driving.
• Whilst not directly relevant to the court’s findings on liability, the motorist’s driving history revealed he had taken 12 driving tests and 7 theory test before passing his driving test in October 2017, and he had been involved in two other accidents during the same year as the index accident in 2018.  

Introduction

[1]    At about 18.50 on 5 July 2018, the claimant sustained serious injuries when she was involved in a head-on collision between a Kawasaki motor cycle ridden by Peter Howard and a Vauxhall Vectra car driven by David Teasdale.

Mr Howard was tragically killed in the accident. The claimant was the pillion passenger on Mr Howard's motorcycle.

The claimant sues both Mr Teasdale and the estate of Peter Howard. This was the trial of the preliminary issue of liability pursuant to the order of DJ Colvin dated 8th July 2022.

[2]    The claimant is blameless; the issue I am required to decide is whether the collision was the fault of Mr Howard or Mr Teasdale or both.

[4]    It is common ground that at the relevant time, Peter Howard was riding a Kawasaki ZX 1000 southwards along the A15 and Claire Rowbottom was his pillion passenger.

David Teasdale was driving a Vauxhall Vectra northwards along the A15 and Michelle Reed was his passenger.

At a point near the driveway to Greystones, the Kawasaki and the Vauxhall collided. The parties do not agree where in the road the collision occurred; the first defendant contends that Mr Teasdale drove onto his incorrect side of the road and collided with the motorcycle, which was properly remaining on his correct side of the road;

the second defendant contends that he remained on his correct side of the road and the collision occurred because Mr Howard strayed onto his wrong side of the road.

The evidence

[5]    In order to decide this case, I read and heard the evidence of various witnesses of fact.

I also heard from three accident reconstruction experts, Mr Roberts (instructed by the claimant), Mr Davey (instructed by the first defendant) and Mr Green (instructed by the second defendant).

By the order of DJ Colvin, the police report was admitted as evidence in the case.

[15]  Mr Teasdale was cross-examined about his driving history. He told me that he had taken 12 driving tests and 7 theory test before he passed his driving test in October 2017. He accepted that he had failed his practical driving test on several occasions because he was "making silly errors" and he "forgot some things". He told me that he had 2 other accidents in 2018. In the accident he sustained in November 2018, he wrote off a Ford Fiesta car in an accident which involved no other vehicle and in which he was travelling at 30 mph. He told me that he could not remember whether he had had any accidents in 2019 or 2020. He could not say whether the accidents were caused by his losing concentration.

[24]  Mr Teasdale was prosecuted for causing death by careless driving. For the purposes of the criminal trial, PC Barlow prepared an accident reconstruction report in which he expressed the opinion that the collision occurred in the southbound lane and that the tyre mark commenced at the point of, or immediately after, impact. He pointed out that if his opinion were correct then the Vauxhall must have crossed over the solid white line in the centre of road and the motorcycle must have been ridden close to or on the nearside white line for its direction of travel.

Mr Green prepared a report on behalf of the defence, the premise of which was that during the collision, the front offside wheel of the Vauxhall was damaged and turned through 90°. The tyre mark was caused by the passage over the road of the turned-out wheel. This theory was consistent with the collision having occurred on the northbound carriageway.

It is convenient to mention the prosecution at this stage, because it explains how the expert evidence in this case developed. I draw no conclusion from the fact that Mr Teasdale was prosecuted and indeed, he was acquitted following a trial by jury at the Crown Court sitting at Lincoln.

[25]  Mr Roberts prepared a report dated 21 September 2022. His opinion was that the commencement of the tyre mark was at or immediately after the point of impact so that, at impact, the offside front tyre of the Vauxhall was over the centre solid white line. He thought that the tyre mark was caused by the deflated offside front tyre on the Vauxhall. The impact from the Kawasaki damaged the tyre, wheel and suspension on the Vauxhall. The wheel and tyre were forced rearwards into the wheel arch and the now deflated tyre started to slide along the road surface.

He thought that at impact, the offside front corner of the Vauxhall was around 0.3m over the centre white lines. The front wheel of the Kawasaki was therefore less than 0.3m from its nearest white line, but certainly within its own lane.

He identified an area of oil or spilled fluid on the southbound carriageway that he thought came from the Kawasaki. He explained that a line produced along the post-collision path of the Kawasaki (as shown by the fluid) would meet the tyre marks left by the Vauxhall at the start of the tyre marks, providing support for his theory that the collision occurred at the point identified by the start of the tyre marks.

[29]  Mr Davey prepared a report dated 7 April 2022 and two supplementary reports dated 19 April 2022 which responded to the reports of Mr Roberts and Mr Green.

[30]  Mr Davey thought that the tyre mark had sharply defined outer edges, which were indicative of a tyre travelling along the road surface whilst that tyre was de?ated. He said that although the police did not measure the width of the tyre mark, a comparison between the width of the white line (which was 0.1m wide) and that of the tyre mark revealed that the tyre mark was slightly over 0.2m wide. The specification of the tyre on the Vauxhall indicated that it was 0.215m wide. This was consistent with the width of the tyre mark, and consistent with the tyre travelling forward as it was skidding across the surface whilst the Vauxhall was on the wrong side of the road.

He said that had the tyre been scuffing sideways along the road surface, the mark would not have had the same defined edges. Instead, the edges would have been curved and less conspicuous.

He said that he did not think that the wheel had been splayed out as the Vauxhall moved down the road; had it been splayed he would have expected to see gouges and scrape marks on the surface of the road as the components of the wheel were dragged over the surface and because the front offside corner of the car was no longer supported by the wheel and thus would scrape along the road. He thought that as the Vauxhall travelled to the grass verge, its front offside wheel was still housed within the wheel arch and orientated in its generally correct position. The tyre mark was consistent throughout its length, which supported his view that the orientation of the wheel did not change.

[32]  Mr Davey… agreed that the collision occurred in the southbound carriageway.

He rejected the hypothesis advanced by Mr Green in the criminal trial that the collision had occurred in the northbound carriageway for several reasons: had the Vauxhall tyre been wrenched sideways on impact, it would have left a conspicuous mark on the road at that point; the bike would have had to strike the inside of the wheel of the Vauxhall which would have launched the bike into the air; there was damage to the offside of the wheel of the Vauxhall, which must have been caused by the bike; there would have been gouges and scrapes as the wheel of the Vauxhall moved across the road with the wheel dragging at 90° to the direction of travel.

[33]  Mr Davey explained that there would have been insufficient time for Mr Howard to perceive and take any meaningful evasive manoeuvre in response to the movement of the Vauxhall into the southbound lane.

[40]  The experts produced a joint statement.

Mr Green maintained his hypothesis that the motor cycle had crossed onto its incorrect side of the road.

Mr Roberts and Mr Davey stuck to their view that the Vauxhall was the vehicle on the incorrect side of the road.

Findings

[59]  …  I take from the evidence of Carol Hendry that she considered that Mr Howard was riding the motorcycle in a careful manner at slightly over the speed limit of 60 mph and that he had returned to his correct side of the road after he had overtaken her. He was just disappearing from view when Ms Hendry was at the Leasingham turn off.

I take from the evidence of Donna Coy that very shortly before the accident, the motorbike was on its correct side of the road but close to the central white line. The Vauxhall was travelling at about 50mph. It started drifting to its offside.

Neither of these witnesses is able to say on what side of the white line the collision occurred.

[68]  I have, with some dismay, come to the conclusion that I cannot rely upon the evidence of Mr Green, for a number of reasons.

[69]  The most basic reason is that in his evidence, Mr Green advanced propositions of physics that were obviously incorrect.

For example, he suggested that at the moment of collision, the forward motion of both vehicles cancelled each other out. Since the Vauxhall continued along its path at a considerable speed until it hit the verge, the proposition that its forward motion was cancelled out is palpably false.

In my judgment, Mr Green compounded the error when he was asked to account for his statement. Instead of agreeing with the suggestion of Mr Hunter that this was nonsense, he hedged by saying that "how it's written is not correct" as if some typographical error was responsible for the blunder.

A second example is his assertion that "you can't put fluid under pressure, you can't compress it." Whereas I accept that liquids are not readily compressible, the suggestion that fluids cannot be put under pressure is absurd. I am left wondering what is the purpose of the oil pressure gauge in my motor car if the purpose is not to show the pressure in the oil system.

[70]  A second reason why I do not feel able to rely upon Mr Green is that he did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis.

Mr Hunter's criticism is fair that Mr Green was happy to emphasise the witness evidence that supported his theory whilst remaining silent about those witnesses whose evidence did not. I am critical of the fact that Mr Green relied upon the marks on the upright of the Recycling sign without drawing the court's attention to the fact that there were several other marks on the upright that were not consistent with his theory.

[71]  One of the problems with Mr Green's theory is that there was no mark on the road to evidence his postulated instantaneous turning of the car wheel through 90°, a point made in the reports of Mr Roberts and Mr Davey.

When Mr Green was asked in cross-examination to account for the fact that there was no evidence on the road, he mentioned for the first time the theory that the wheel of the car may have been lifted off the road by the motorcycle tyre. It is very surprising that he had not raised this potential explanation during the experts' discussion or in the joint statement. I formed the opinion that Mr Green made this explanation up as he was giving evidence.

[73]  I was mostly impressed by Mr Roberts's evidence. I formed the view that he had carefully weighed all the evidence and had presented a persuasive account. I was concerned with his evidence around the photograph that had been taken by Mr Noblet. It was a technical breach of the rules that he had not disclosed that Mr Noblet had taken the photograph. More troubling, in my view, is how Mr Roberts was able to reach a conclusion about the angle of the grinding on the wheel rim and what the implications were using only the photograph and without undertaking a careful examination of the wheel rim. I was not convinced by this part of his evidence.

[74]  In my judgment, the most convincing expert witness was Mr Davey.

He undertook a laser scan of the scene which all of the experts recognised was likely to provide the most accurate representation of the locus. Mr Davey carefully analysed the evidence and presented a fair and, to me, convincing account of the collision in his written and oral evidence. In giving his evidence, he was firm but not inflexible. He was an impressive witness. My conclusions about what happened are largely informed by his opinion.

[77]  I am persuaded by the evidence of Mr Davey and Mr Roberts that the front offside wheel was then held in an orientation broadly parallel to the direction of travel of the Vauxhall. I accept their evidence that a tyre held in this orientation would leave a mark on the road that was slightly wider than the width of the tread with the edges of the mark more distinct than the centre of the mark. I accept their evidence that the pattern to be expected if the wheel had been dragged across the road perpendicularly to the direction of travel would be dark in the middle with scalloped edges.

In my judgment, the photographs show a picture that is much nearer the "parallel" pattern than the "perpendicular" pattern.

I reject Mr Green's evidence that the width of the tyre mark was too wide to be explained by the "parallel" orientation theory.

[78]  I accept the evidence of Mr Roberts and Mr Davey that if the wheel had been moved across the road in the "perpendicular" orientation, the tyre would have been pulled off the wheel. It was not.

[79]  I accept the evidence of Mr Roberts and Mr Davey that it is highly improbable that there would have been no mark on the road if the wheel of the Vauxhall had been moved through 90° at the moment of impact. There was no such mark.

[80]  I am satisfied that the force of the Vauxhall striking the verge was sufficient to wrench the front offside through about 90°. To be absolutely clear, I find that the splaying of the wheel did not occur at the moment of impact but when the car struck and was dragged along the verge.

[81]  The conclusion I reach about the position of the collision is supported by the oil mark on the road left by the motorcycle. I find that on impact, immense loads were placed on the front forks of the motorcycle, causing the forks to fail and the oil from the forks to be sprayed out under pressure onto the road along the path of the motorcycle. I accept the evidence of Mr Roberts and Mr Davey that producing a line through the path of the oil in the direction from which the motorcycle came leads to the start of the tyre mark, thus supporting the conclusion that this is where the collision occurred.

[82]  I accept Mr Davey's view that there would have been insufficient time for Mr Howard to perceive and take any meaningful evasive manoeuvre in response to the movement of the Vauxhall into the southbound lane.

Conclusions

[86]  I have found that the collision occurred when Mr Howard's motorcycle was on its correct side of the road.

I have found that, at the moment of impact, Mr Howard was riding his motorcycle close to the broken white line that marked the edge of his carriageway.

I accept the evidence of Donna Coy that there was room in the carriageway for Mr Howard to have moved to his nearside and thus to have avoided the accident. There is no allegation against Mr Howard that he drove too close to the centre line or that he should have moved to his nearside. In any event, I am not persuaded that Mr Howard was negligent in failing to do so.

He probably realised that the Vauxhall was drifting across the road but he had no reason to suspect that the Vauxhall would continue to drift onto its incorrect side of the road.

Once it was clear that the Vauxhall was likely to pose a danger, there was insufficient perception and reaction time for him to avoid the collision.

[87]  I have found that Mr Howard was riding slightly in excess of the speed limit. The mere fact that he was exceeding the speed limit by a modest amount did not, in my view, carry with it a foreseeable risk of harm to his passenger.

I have accepted Mr Roberts's evidence that this accident and its consequences would have been no different had Mr Howard been riding at a slightly lower speed.

Thus, so far as the allegation of excessive speed is concerned, neither breach of duty nor causation has been proved.

[89]  My findings show that Mr Teasdale drifted onto his incorrect side of the road. The most probable explanation, in my view, is that Mr Teasdale lost concentration. He did not realise he was drifting onto the wrong side of the road. He did not see the motorcycle coming towards him until the last moment. He made no attempt to avoid the collision. In my judgment, this relatively prolonged lapse in concentration bespeaks a serious failure to exercise reasonable care for other road users. Mr Teasdale's negligent driving caused the serious injuries of which the claimant complains.

[90]  The Particulars of Claim allege that Mr Teasdale was driving too fast. I reject that allegation: he was travelling at about 50 mph, which was in my view a safe speed at which to negotiate this road.

[91]  In the circumstances, the claimant's claim against the second defendant succeeds and there must be judgment for the claimant against the second defendant for damages to be assessed. The claim against the first defendant must be dismissed.

Author: Andrew Guirguis, Professional Support Lawyer