1 On 1 June 2000 at about 6 pm the claimant, Paul Barry was on his way back from work to Chapel Mount Cottage, where he lodged with the Hester family … The cottage was on a country lane, known as the Mount Lane, near Montgomery in Wales. The claimant was on his motorbike, a 175cc Honda which he owned. It was an old motorbike but it had been maintained properly and had passed its MOT test not long before. An accident occurred: the claimant came off his motorbike and was found face down on the lane, his head pointing back in the direction he had come from. He suffered terrible injuries and is now paraplegic. He can remember nothing about the circumstances of the accident.

2 In this action it is said on his behalf that the accident was caused, at least in part, by the defendant, Mrs Brenda Pugh. Her daughter's pony was kept in a field near the Mount Lane. Earlier that evening she has driven out along the Mount Lane to collect the pony, and had loaded it in a horse trailer. Her daughter was due to attend a Pony Club event at 7 p.m, and her plan was to drive with the pony to her house, collect her daughter, and drive on to the event. Immediately before the accident she was returning along the Mount Lane. She was driving her husband's Isuzu Trooper, which was towing a double horse trailer — although there was only the one pony inside. As she drove back along the lane towards her home she saw a motorcyclist coming towards her. It is not disputed that there was some sort of contact between the claimant or his motorcycle or both and the horse trailer. The precise circumstances of that contact will never be known. The claimant cannot remember, and nobody else saw what happened. In these proceedings, pursuant to an order made by Deputy District Judge Heath on 26th May 2004, the issue of liability is being dealt with as a preliminary issue. In this judgment I set out my decision on that issue.

The factual witnesses and the undisputed facts

3 I have heard evidence of fact from the claimant, from Mr Imran Hester and his father Mr Robert Hester, with whom the claimant lodged at chapel Mount Cottage, and from Police Constable Robert Large, who attended the scene of the accident. On behalf of the defendant I have heard evidence of fact from the defendant herself, Mr Ronald Meredith and Mrs June Meredith. Mr and Mrs Meredith live at Lower Mount Farm House, adjacent to the scene of the accident.

4 The accident reconstruction experts instructed by the claimant and defendant were Mr Grimmett and Dr Searle respectively. They either agreed or did not dispute a number of features about the nature of the lane and the driving conditions that evening. The accident occurred on a bend in the lane where in either direction visibility around the bend was limited to around 50m. Located on the eastern side of this bend were the north and south entrances to Lower Mount Farm House. The lane undulated. From the defendant's direction the lane descended at a gradient whose maximum was somewhere between 12.5 and 14.5% to a low point around the scene of the accident. The final 50m of the claimant's approach to the location of the accident was on a relatively level stretch of the lane with a maximum gradient downward an approach of 5%. Relevant parts of the lane varied in width between 2.55 m and 3.5 m. The trailer had a width of 2.18 m, while the motorcycle was 0.735 m wide. The lane was flanked by hedgerows with a grass verge. At the time of the weather was clear with good visibility and the road surface conditions were dry.

5 It was further agreed, on the basis of the damage found to the trailer, that contact occurred between the motorcycle and the rear offside parts of the trailer including the mudguard. The damage to the trailer was minimal.

Rival contentions at the start of the trial

6 The trial began on 21 March 2005 in Birmingham. Mr Andrew Edis QC, who appeared with Mr Charles Prior on behalf of the claimant, said that the accident occurred at a place where the rood was extremely narrow. It may have been about 2.8 m wide — in which case it was less than the total width of the trailer and motorcycle which together amounted to 2.915 m.

7 This was said by Mr Edis to have been a motoring event which bath parties needed to approach with considerable caution. It would have been prudent far bath parties to stop in order to contemplate how to pass each other safely. It might have been necessary to back up. Any vehicle which did not step should bear same blame. It was likely that in any such accident bath vehicles would be to blame.

8 In addition, the police report contained an account by the defendant, given before she had the chance to contemplate the consequences of liability, which the claimant relied an as implying that she failed to stop.

9 Mr Edis said that as the motorbike had been able to get through space between Isuzu and verge, this suggested that he was not travelling at too great a speed.

10 The claimant's accident reconstruction expert considered that the claimant had been snagged by a swing of the horsebox. On that basis it was said that the claimant would be to blame only to a moderate extent. If this theory were wrong and the claimant misjudged the situation, he did not misjudge it by very much. In that event both parties misjudged the position, and liability would be 50/50 unless the claimant had been travelling at an absurd speed, in which case there would be a higher apportionment against him.

11 The defendant's case, as described in a skeleton argument lodged on her behalf by Mr Browne QC, was that when the parties first saw each other there would have been ample time for both to pull over or stop as appropriate. The defendant had taken the proper course of slowing down. However the injuries to the claimant and his position after the accident showed that he had chosen to go past the defendant at an inappropriate speed.

The claimant's evidence

12 The claimant's witness statement, which stood as his evidence in chief, said that he used the lane each day and took care, knowing it was used by farm vehicles. He denied that Mrs Meredith had ever seen him driving too fast. From what he normally would do at the accident location he would have been braking for the bend.

13 The claimant in cross-examination accepted that this was a narrow undulating country lane and that he knew while travelling on it that from time to time he would meet large vehicles. A four-wheel drive vehicle towing a two-horse trailer would be no surprise. If on his motorcycle he were to meet a two-horse trailer at a narrow point of the lane, there would not be room to get past. The visibility on the stretch of lane in question was around 50 metres, given the hedgerows on either side.

14 He accepted that the only safe course on seeing a vehicle in this location was either to get off the lane or stop, and that as on his side of the lane there was no verge, only a sheer bank, that meant the only choice was to stop. For a vehicle coming the other way, that is towards him, there was a narrow verge just after the entrance to Lower Mount Farm, and if coming that way a vehicle would have the possible course of getting on to the verge. He accepted that it would be better for a large vehicle to do that, rather than block the entire lane. On this part of the lane he would have been asking for trouble if, on his motorbike, he had done more than 10 to 15 miles an hour. The only sensible thing “for a motorcyclist on seeing a large vehicle would be to stop. It might be possible to squeeze past if the other vehicle pulled on to the verge, but it would not be safe to assume this because the tolerance was pretty tight.

Mr Bob Hester, Mr Imran Hester and PC Lane

15 Mr Bob Hester's witness statement said that at the time of the accident he had been living at Chapel Mount Cottage for about 18 months. The claimant lived with him. Beyond Chapel Mount Cottage was a house owned by the Ward family where the defendant kept a horse. He had been away at the time of the accident. The following day he had spoken to Mrs Meredith, who had said that the defendant had said to her that “I (meaning the defendant) did not see him coming.” Mrs Meredith had on perhaps three occasions mentioned the claimant's driving and that of Mr Hester's son Imran. She thought they drove up the lane too fast. She never came to say this on purpose but inserted it in to a chat they were having. He had not seen either the claimant or his son driving too fast up the lane.

16 In cross-examination Mr Hester confirmed that Mrs Meredith had said to him that the defendant told her she (the defendant) did not see him (the claimant) coming. As to the petrol mark on the lane, at page 173 to the right was the entrance to the Meredith's. The further cone was where he saw oil; it might have been further up.

17 Mr Imran Hester's witness statement described arriving at the scene of the accident and finding the claimant laid on his stomach with his arms spread open and his face to the left. His bike was leaning against the hedge. There were no ‘skid marks at the accident location. The arch on the driver's side of the horse trailer had a crease in it. A Honda 175cc could not travel up the lane at any excessive speed. He and the claimant were always careful travelling along the lane because it was narrow and they often met on coming vehicles, horse or pedestrians along it and they knew they had to take care.

18 In cross-examination Mr Imran Hester said that 10 to 15 mph was an appropriate speed on the lane. When he arrived at the scene, the claimant's head was pointing back in the direction from which he had come. The horse trailer and Isuzu were still on the scene when he had arrived, in the position shown in Mr Robert Hester's sketch.

19 Police Constable Robert Large had prepared a witness statement, which had been placed in the court bundle on behalf of the defendant. In the event, Mr Brown QC on behalf of the defendant chose not to call PC Large. In those circumstances Mr Edis QC called PC Large as a witness on behalf of the claimant. PC Large” said he thought he may have received the call to attend at the scene at 6.15 pm. He had measured the width of the lane as 2.8 meters, but could not categorically say where that measurement had been taken. It was between the two entrances to Lower Mount Farm. He could not say if that was because he had been told that was where the point of impact was.

The defendant's evidence in March 2005

20 The defendant's evidence in chief was that she was travelling at a slow speed so that she could stop should another vehicle be coming the other way. If she stopped abruptly this could frighten or cause injury to the pony in the trailer behind her. As she neared the entrance of Lower Mount Farm, located on the left hand side of her approach, she was travelling down a slight bank. She was in second gear and driving at around 10 to 15 miles per hour. At the top of the slope there had been a blind bend and so she had crept around that slowly as you could not see what was coming in the opposite direction. When she approached the entrance to Lower Mount Farm she noticed the motorcycle coming from the opposite direction. Her foot was hovering “over the brake in anticipation that vehicles might come from the opposite direction. Lower Mount Farm was situated on a sweeping left hand bend. At the point when she saw the motorcycle she was just before the entrance to the farm, and the motorcycle was in a position towards the middle of the lane. It was travelling much faster than she was, her immediate reaction was to pull in to the left, although due to the nature of the lane there was only limited space for her to” do this. There was a ditch running along the left hand' side of the lane and she pulled over as far to the left as she could. At the same time she braked gently, aware of the presence of the horse in the trailer at the back. When she saw the motorcycle she immediately realised that due to his speed and position he would collide with her vehicle if she did not pull across.

21 The reason for this was that her vehicle took up much of the lane. Her statement continued, in the last sentence of paragraph 23 and in the following paragraph, as follows:

“(23) … At the same time as I moved across the verge I braked and came to a complete halt as I had been travelling at a very slow speed anyway.

(24) The motorcycle went past my vehicle on the right. I was stationary. I looked in my mirror and saw the bike lying on the road and the rider lying on the road on his side. The motorcyclist's head was pointing back towards the way he had come. The motorcycle ended up ahead of the motorcyclist.”

22 The defendant then described how she went to help the motorcyclist, an ambulance arrived, as did the police. She gave a statement to the police. She noticed a dent in the driver's side mudguard of her trailer, which was not there before and pointed that out. The policeman at the scene indicated that he felt she was not to blame. Her witness statement concluded that she did not think there was anything more that could have been done. Through her actions a collision with her vehicle was avoided. The motorcyclist simply continued past but unfortunately seems to have lost control.

23 In relation to paragraph 21 of her witness statement, the defendant referred to, the photograph at page 134. The telegraph pole and bush that she referred to were behind cone 5. She was by cone 6, near the entrance to the Meredith's farm.

24 In cross-examination the defendant said she had been towing horseboxes since she started driving at the age of 17. She was familiar with how to bring them to a safe halt without injuring horse or pony. She was aware that she might have to take rapid action if something was coming in the other direction, and that if there were no pass room it would be necessary to stop. She believed she first met Doctor Searle at the scene of the accident around 12 months after it had occurred, around June 2001. By this time she had made a witness statement to her insurers, who had appointed Mr Morgan, and she had seen Mr Morgan before the winter. She could not recall if Doctor Searle had her statement to the insurers or police report. She had recently looked at a witness statement she had made to Mr Morgan.

25 At this point there was an application by Mr Edis to see the statement to Mr Morgan. An adjournment was requested, and during the adjournment the defendant looked through a file of documents to refresh her memory. She said after the adjournment that she had indeed made a witness statement to Mr Morgan in 2000, but she had not refreshed her memory from that statement. The answer she had previously given was explained on the basis that she was talking about the actual witness statement for the present proceedings.

26 The defendant continued that she saw Doctor Searle in June 2001 and in March 2005, both at the scene of the accident. They were the only times she had met him. She could not recall whether she used earlier documents to refresh her memory when making her witness statement of 8th February 2002, but would imagine that she did. She made this statement to Mr Morgan and he came back.

27 The defendant said that she was in the process of stopping when the impact occurred, just in the process of coming to a halt when she heard a bang. She could not be exactly sure whether she was moving, or whether the impact was a fraction of a second after she stopped. As to her witness statement paragraphs 23 and 24, she was becoming stationary as the claimant went past on her right. He was travelling so fast that it was difficult to say exactly what point she had reached. At the point of impact she might not have come to a complete halt. She said that 10 to 15 miles per hour was the maximum speed she would do on this lane when towing a trailer. To go from 15 mph to 10 mph she slightly put her foot on the brake to slow down. She would be slightly braking before seeing the motorcycle. She would say the motorcycle was about 40 metres away when she first saw it. Doctor Searle had measured this as the distance from cone 6 to the telegraph pole, placing cone 6 presumably at where she said she was when she saw the motorbike. He measured 40 metres in her presence.

28 The defendant explained that she had braked to reduce speed before seeing the motorcycle, and had ceased braking at the time when she saw the motorcycle. At that point she had to put her foot on the brake to come to a halt. The lane was a gradual slope. She wanted to travel round the bend at 10 m.p.h. Where the actual impact happened the lane levelled out. To get on to the verge one had to accelerate a little, otherwise one would not be able to get out of the way. When the impact happened her foot was on the brake. Before she saw the motorcycle she had her foot covering but not on the brake. She had not reached the gateway. She didn't consider going into the gateway, by the time she worked out the speed of the motorcyclist she had already passed the gateway. She stopped sufficiently off the lane to enable the motorcyclist to get past. She said that of course she wanted to come to a halt, as it was still very narrow, and so she had got on to the verge and stopped, hoping that he would stop. She did not see him once he got by the trailer. Before then she had seen that he went past the vehicle. She thought he might have managed to get through. She heard, but did not feel, a bang. She might have been moving or just in the process of stopping at that time.

29 The defendant said that the sketch plan by Mr Meredith at page 42 was accurate so far as she could see. She had come to a halt with the back of the trailer near the gate on the verge, the gate being open, and the back of the trailer being just past the gate. The claimant' was as shown, approximately opposite the mid-point of the opening, on the right hand side of the lane, her off side as she was driving.

30 After the short adjournment the defendant accepted that she had not previously said that in the period before the accident she was accelerating. She explained that before the impact, she braked when she saw the motorcycle, went to the left, accelerated to get on to the verge, and then braked. It was a matter of seconds, “Just quick, boom, boom, boom.”

31 She appreciated that the motorcycle was travelling faster than her, she could not put a speed on it. She knew she had to get to the side in order for him to try to pass her, and, that is what she tried to do. He was in the middle of the lane when she first saw him, she did not see him brake or make any attempt to brake. She saw no reduction in his speed, just that he was speeding along towards her. He went to the side, she saw him move to the right, and she had to look over at the verge to get herself on to the verge. This was in a matter of seconds. She did the best she could to try to avoid a collision.

32 The defendant said the gate was something of an obstacle, but there was still room to get on to the verge. It was open on the occasion of both of Doctor Searle's visits. Page 126 showed where her vehicle was at the point of impact. You could see the roadway to the farm beginning. It was the same position in all these photos. She could not see whether the gate was open on page 90. She could not remember if she had told Doctor Searle the gate was open or if she opened the gate for him. It was not a factor because it did not obstruct her. The trailer was just a couple of feet beyond it. She did not have to steer around it, she was able to go on to the verge and to keep parallel.

33 The defendant recalled speaking to the police officer. As to page 164 the. handwriting in the bottom right hand corner was that of the police officer, and it sounded like she was telling him that she stopped after the impact but not before. There was no reference to slowing, this was just after the accident and the policeman did not ask for any more details. She had never been in an accident before, and had not gone into any detail. The policeman should have told her to give more detail if he required it, but he had said she was not to blame and did not ask for anything more.

34 The defendant thought the first time she spoke to Mr Morgan was in October, when he wrote down a witness statement. It looked like page 51, it was a document she had not seen for some time. The first time she saw Doctor Searle was 13 June 2001. She could not remember if she told either of those gentlemen she had stopped before the accident. She did not think she would have done but she really did not know if she had.

35 The defendant was then referred to the statement of truth at page 9, signed by her on 29th April 2004. As to when she first said to anyone that she was either in the process of stopping or had stopped, she imagined it would be to Mr Morgan, in the statement she had given him. She thought she said it to Doctor Searle in June 2001, as well as to Mr Morgan. As to page 110 para 2.3 she was not aware what statement Doctor Searle was working from, she imagined it was the one from Mr Morgan.

36 In response to an assertion that it was in 2004 that for the first time the defendant had said that she had stopped or was in the process of stopping, the defendant replied no, she had told Doctor Searle in June 2001. She referred to paragraphs 23 and 24 at page 46, and said they were truthful, she had stopped or was in the process of stopping. She became stationary as the vehicle went past her on the right. She said, “It says here that I said that to Doctor Searle. No doubt I said the same thing to Mr Morgan.”

37 It was put to her that this evidence had developed over the last 12 months after detailed discussion with, among others, Doctor Searle. The defendant disagreed, and said she had not discussed this with Doctor Searle.

38 She did not recall speaking to Mr Meredith immediately after the accident, and did not recall saying that she had stopped as soon as she had seen the motorcyclist. That would not have been accurate, what she had done was to stop as soon as she could after getting on to the verge.

39 She did not speak with Mrs Meredith very often, and had not said to her that she had not seen the motorcyclist coming. The defendant said she saw Mrs Meredith from time to time and just mentioned the accident in conversation. They would talk about it, but she had never said that.

40 The defendant would not say that she had to pull sharply to the left to get on to the verge after passing the gate. When he passed her on the right she thought he would make it. She had got on to the verge as much as she could. She reiterated that as “he passed her she was just in the process of stopping.

41 As to pages 126 and 127, one couldn't see the verge — it was in the shadow. She had got the wheels of the trailer on to the verge. To do this you have to put your foot on the accelerator a little, she had no clear recollection of accelerating — nothing could be absolutely clear because it all happened so quickly.

42 She accepted that if she had been rounding the comer at 10 m.p.h. she could have stopped earlier, but she said that in that event the claimant would have run into her. She had helped the position by going on to the verge, so that there was room to move by. By the time she had reacted to the situation and the speed of the motorcyclist she was past the gateway. She was going down a slight bank, the next thing was to get on to the side. She was nearly at the gateway when she first saw the motorcyclist, and by the time to react she was past the entrance. She did not consider going into the” entrance, it happened too quickly to go into the entrance.

43 The defendant said it took her by surprise that there was a motorcycle in the middle of the lane. A vehicle would not be a surprising event, but it depended on the speed which it was coming towards you. She had met lots of vehicles and had always managed to stop in time. Here she knew from the speed of the claimant that it was no good just stopping, she had to get on to the verge. She had had her foot over the brake as she went round the bend.

44 In response to questions from me the defendant said that she had been collecting her daughter's pony for an evening pony club event. The event was at 7 pm. She was then going to pick up her daughter at home, which was on the way. It was about a mile to her house, then 15 miles to the pony club event.

Mr and Mrs Meredith

45 Mr Ronald Meredith's evidence in chief was that he had lived at Lower Mount Farm House since 1990. Local farmers used the lane for access to fields. In the summer there were a lot of agricultural vehicles coming up and down the lane, and anyone living along the lane would be aware of this. Generally those using the lane drove slowly, being aware of the presence of agricultural vehicles, and Mr and Mrs Meredith might not even hear vehicles going past. However they frequently heard the claimant go past the house, which was located around 60 feet away from the lane. A couple of nights before the accident he had heard the claimant go past and had said to his wife that at some point something would happen to him on the lane, in view of the speed at which he was travelling. Mr Meredith always had the feeling the claimant was travelling faster than was safe for the nature of the lane. At about 6 pm on 1st June 2000 Mr Meredith was in his house and he heard a motorbike travelling fast down the lane and then heard a bang. It was about 6 pm. He went out and found the claimant lying on the lane opposite the drive with the motorbike in front of him at a distance of about 5 feet. It was facing back the way from which the claimant had come. The defendant's car and trailer were as tight over to the left hand verge as she could get. There was a ditch along this section of the lane and if she had pulled over any further her vehicle may have toppled over. There was only around 2 feet of available ground for her to drive on to. When the ambulance arrived these vehicles had to be moved to give access to the claimant. After that had happened the police arrived. In conversation with the defendant afterwards she told him that she had stopped as soon as she had seen the motorcyclist. He had prepared a sketch plan (page 42).showing the positions of what he had seen.

46 In cross-examination he said that he had not actually measured the distance from the claimant to the motorbike. As to the defendant's remark about stopping as soon as she had seen the motorcyclist, he could not now remember her saying that, but when making the witness statement he was doing his best to be as accurate as he could be. He thought that the photos taken at the time of the reconstruction (pages 126 and 127) were about right in showing the position where the Isuzu and horse trailer were when he went to the scene of the accident.

47 Mrs June Meredith's evidence in chief took the form of a witness statement she had signed on 2nd November 2000. She said that since the claimant had moved to the lane she had heard him riding his motorbike nearly every day during the week. She always had the impression that he was driving much too fast for the lane. On 1st June 2000 she heard a motorbike on the lane, heard a bang, and said to her husband, “He's hit somebody”. She and her husband had not heard the defendant's vehicle coming even though they had the front door open. She saw the position of the defendant's vehicle and trailer, the Isuzu was as far over as it could go and the trailer was on the side with its left hand wheels on the grass.

48 In cross-examination Mrs Meredith said she saw the claimant lying on his front, his head facing down. She thought he had been travelling fast, because she had heard the bike stop he had been coming down a steep hill, and then entered a flat piece of land where the accident happened. As to talking to the defendant, she remembered a conversation, but could not say whether it was that same evening. The defendant had said that she almost stopped as soon as she could. She had not said that she did not see the claimant. In response to questions from me, Mrs Meredith said that the claimant's body lay on the left hand side of the lane in his direction of travel. He was near the steep bank. The motorbike was about 4 to 5 feet from him. On photo 173, the near cone was where his body was, and the far cone was where the bike was.

Expert evidence on medical matters

49 The claimant instructed Mr W. El Masry FRCS Ed, consultant surgeon in spinal injuries. The defendant instructed Mr A.M. Tromans FRCS, consultant in spinal injuries. They prepared a joint statement dated 18 October 2004, in which the claimant is referred to as “PB”, Mr EI Masry as “WEM” and Mr Tromans as “AT”. The joint statement was as follows:

“We have met and discussed the mechanism of injury to PB that occurred during the accident on 01.06.2000. WEM has not seen any police reports.

• 1. We agree PB's injuries were:
  • • Fractured ribs with bleeding into both sides of the chest.
  • • The chest injury was more significant on the left where there was a lung contusion as well.
  • • There were soft tissue injuries to the left shoulder and fracture of scapular.
  • • Three consecutive levels of spinal fracture of the thoracic vertebrae.
  • • A fracture of the distal phalanx of the right ring finger (he is right handed).
• 2. We agree that the body of the 8th thoracic vertebra appears to be at the centre of the fracture. There does not appear to be to be significant disturbance of the pedicles on the AP view, or significant lateral wedging. There does appear to be some disruption of the costo-vertebral joints on either side.
• 3. We agree that there is a complete transverse injury to the spinal column with separation of the posterior elements, making it principally a ligamentous 3-column injury.
• 4. We agree that the Magnetic Resonance Scans on the 18th July, is highly suggestive of a horizontal lesion through the disc space, traversing the spinal cord and entering into the posterior elements. The injury therefore is principally a dislocation of the thoracic spine, with a minor compressive element.
• 5. We agree that this is a three-column injury where:
  • • The posterior column has a mixture of ligamentuos and bony injuries with probable fractures through the spinous processes and the facet joints.
  • • The middle column is a pure ligamentuos injury and the anterior column probably involves a ligamentuos stripping or tear.
  • • There is a compressive element that runs from the posterior column through to the anterior column. The compressive element is minor.
• 6. We agree that this type of injury is probably as a result of flexion rotation, where the left shoulder and upper thorax have been abruptly restrained as the result of contact with the ground.
• We both agree on the flexion element.
• WEM feels that it is the upper half of the body, which has rotated or twisted, whilst the lower half of the body tried to continue the direction of travel.
• AT feels that once the shoulder had impacted on the ground it probably did not move significantly and it was the inertia of the lower half of the body that rotated causing spinal fracture.
• We agree that it is also possible that there was a shearing element to this with the top half of the body being arrested and the bottom half of the body being forced, continuing in its direction of travel.
• 7. This fracture possibly had a significant element of instability that reduced spontaneously once the patient was flat on their back.
• 8. We agree that the most likely cause of the injury was the result of PB coming off his motor bike to the left and landing on the road left shoulder and trunk first with his spine flexed.
• AT feels the motorbike might have landed on him causing additional stresses on the spinal contributing to the severity of the spinal fracture, WEM feels that this is possible but in his opinion unlikely.”

50 On reading this document I was concerned whether points of disagreement between Mr EI Masry and Mr Tromans in truth related to matters of medical expertise, as opposed to inferences which might or might not be drawn in this particular case from the medical conclusions. It can be seen from paragraph 6 that on matters of medical expertise, both agreed that the injury was probably a result of flexion rotation, where the left shoulder and upper thorax had been abruptly restrained. They also agreed that it was possible that there was a shearing element, which would have arisen if the top half of the body was arrested and the bottom half of the body had continued in its direction of travel.

51 The principal area. of disagreement seems to be that Mr EI Masry considered that on impact the upper half of the body rotated or twisted, while the lower half of the body tried to continue in the direction of “the travel. Mr Tromans envisaged the shoulder impacting on the ground and not thereafter moving significantly, while “‘the inertia of the lower half of the body” meant it was that part of the body that rotated and caused the spinal fracture. The joint statements did not identify any medical reasons on either side for this difference of view.

52 So far as the final paragraph of the joint statement was concerned, both experts thought it possible that the motor bike might have landed on the claimant arid thus added to the severity of the spinal fracture. Mr El Masry thought that while possible it was unlikely; Mr Tromans did not suggest that it was likely. I did not detect any difference of view in this regard.

53 Mr El Masry's report, however, went into great detail on the question of causation and took issue with points which Mr El Masry understood to have been made by the defendant's accident reconstruction expert, Dr Searle. On reading these passages in Mr El Masry's report it was not apparent to me what, if any, question of medical expertise was relevant to the opinions expressed.

54 Mr El Masry was called to give oral evidence. Mr Browne cross-examined him. It became apparent that the only matter of medical expertise relied upon by Mr El Masry in support of these opinions was that as the claimant had fractured his scapula, a great deal of force must have been exerted. This proposition was not in dispute. Building on that proposition, however, Mr El Masry had considered various possible sequences of events. Which, if any, of these sequences of events was most likely to have come about involved applying laws of physics to the undisputed medical findings. The application of such laws of physics was not within Mr EI Masry's expertise, and I indicated to Mr Browne that it would not be necessary to call Mr Tromans in answer.

Initial applications for disclosure

55 At the start of the first day of the trial Mr Edis QC applied for disclosure of a witness statement made by the defendant to an insurance assessor, Mr Morgan, and of any notes of what had been said by the defendant to Dr Searle in June 2003. I concluded that in response to these applications I should direct that the defendant must give disclosure of any notes of what had been said by her to Dr Searle in June 2003.

The accident reconstruction experts

56 On behalf of the claimant a report had been prepared by Mr B G Grimmett LLB IEng FIMI MIRTE MSOE MCMI. His principal conclusions were set out in his report dated 31 August 2004. They are repeated in a joint statement prepared following discussions with the claimant's expert, Dr John Searle. For present purposes I need say only that Dr Searle's view prior to the joint statement was that there was nothing in the physical evidence to contradict the defendant's account of travelling at relatively modest speed and, on seeing the motorcyclist coming at a fast speed, starting to pull onto the verge so that when the impact had occurred she had stopped or was in the process of doing so. Dr Searle added that the claimant appeared to have somersaulted over the handle bars, landed on his shoulder and ended up with his head toward the direction from which he had come. His motorcycle had struck him, causing further injury from these matters it would seem that the claimant could not have been proceeding at a slow enough speed to be appropriate for going past a wide horse box on a narrow lane. The absence of skid marks or any other indication of emergency breaking indicated that the claimant had voluntarily chosen to go past at a relatively fast speed. This might be because the true extent of the available space was not easy to see until very late. This would fit in with the defendants account.

57 The two experts prepared a joint statement dated 7 December 2004. The key points of difference appear to me to be as follows:

“13. Contact occurred between the motorcycle and the rear offside parts of the horsebox including the mudguard. The damage to the horsebox was minimal:

• •Mr Grimmett believes that the impact abruptly halted the forward movement of the motorcycle and it is highly probable that as the trailer had not yet stopped moving forward, that this movement forward caused the front wheel of the motorcycle to turn to its right, causing instability to the motorcycle and throwing the rider forward and to his left, with the motorcycle following behind Mr Barry. If the motorcycle had not abruptly halted, which is the view of Dr. Searle, then the rider would not have been thrown forward and to the left. The minor damage suffered by both vehicles is a clear indication of a low speed impact. Mrs Pugh, as per her witness statement, did not see the accident, but sees the rider lying in the road afterwards. Therefore, there is no witnesses to the impact, neither are there any witnesses to how Mr. Barry made contact with the road surface.
• •Dr Searle believes that the motorcycle cannot have been abruptly halted by the contact, since the damage to the mudguard of the horsebox was no more than a minor dent. The front wheel of the motorcycle has been turned fully to the right, as Mr Grimmett suggests. However, the reason has been that the right handlebar caught the rear of the horse-box, turning the steering and breaking one of Mr Barry's fingers. In Dr Searle's opinion the rider, along with his machine, somersaulted over, and he landed on his head and upper trunk. Mr Barry has been travelling at a fast initial speed and has not been squeezing past at walking speed

57 Events Leading to Impact

14. We understand that Mrs Pugh will say that she was driving an Isuzu Trooper 4x4 vehicle and towing a twin axle horse-box in a southerly direction towards the Tee junction when just before the entrance to Lower Mount Farm, she observed a motorcycle in the middle of the road at a point by the next telegraph pole. That distance would be about 50m or so.

15. Mrs Pugh says that her immediate reaction was a pull into the left as far as she could, braking gently due to the presence of a horse in the trailer, bringing her vehicle and trailer to a stop Just after the southern side of the entrance to the farm. The distance would be around 15m from when she first observed the motorcycle.

• •In the opinion of Mr Grimmett, the motorcycle in the meanwhile and in the same time, had travelled a distance of around 35m. As Mrs Pugh indicates that she was travelling between 10 and 15 mph when she approached the farm entrance, then the calculated speed of the motorcycle would be in the range of 23 to 35 mph. However, if Dr. Searle's point of impact is taken, then Mrs. Pugh had moved forward around 25in prior to impact. On this basis Mr. Barry had also moved forward around 25m. Therefore the approach speed of Mr. Barry was similar to Mrs Pugh being around 10 to 15 mph.
• •Dr. Searle does not accept Mr. Grimmett's calculation. He notes however, that even had Mr. Barry been approaching at 35 mph, had that been the case there would be nothing of an emergency because he could very easily stop
• • …

57 Causation

18. In Mr. Grimmett's opinion, if the vehicle and trailer on approach. to the entrance to Lower Mount Farm is centrally place within the lane on, then the space to either side of the horsebox is around 0.335 m. The steel five barred gate to the farm was open and its position is such that it opens out onto the grass verge and not into the property of the farm. This would partially restrict the turning to the left of Mrs Pug's vehicle and trailer until it had gone past the open gate. In the situation facing Mrs Pugh she would have pulled as far to the left as quickly and soon as possible. This action would have two effects. Firstly the rear of the horse-box would move towards the nearside of the lane and secondly the fro not the Isuzu without corrective steering would be heading for the ditch. In order to ensure her vehicle did not go on the ditch she would have to apply a certain amount of. right-hand lock. This in turn would cause the rear of the horsebox to swing to the offside and effectively block the path of Mr. Barry.

19. In Dr Searle's opinion, such a causation is impossible. Steering the Isuzu to the left does not cause the rear of the horse-box to move to the right, towards the offside of the lane, and neither does straightening up the Isuzu. Since there was not enough room to ride through anyway, it seems pointless for Mr Grimmett to suggest ways by which the space might have been further reduced.

20. In Mr. Grimmett's opinion, Mr Pugh travelling at between 10 and 15 mph on approaching the entrance to Lower Mount Farm could have brought her vehicle and trailer to a complete halt in 5.92 to 9.97 m or thereabouts without skidding. However, Mrs Pugh indicates she moved forward around 15 m before stopping and on Dr. Searle positioning, Mrs Pugh moved forward around 25 m. Therefore on these movements forward Mrs Pugh's brakes action was well below that of an emergency brake. The width of the road directly opposite the entrance to Lower Mount Farm is 3.1 m, sufficient width for both vehicles to pass without contact. However, she continued to move forward where the road narrows to 2.85 m at the re-commencement of the grass verge. It was this forward movement of the vehicle and trailer into a narrowing section of the road and by moving the outfit, which caused the trailer to move block what had been a clear passage for Mr. Barry. The width of the motorcycle is 0.735m. The grass bank to the western side of the lane is sloping at an angle of around 45 degrees. Therefore, it would be possible for the line of the motorcycle passing the trailer to be almost at the edge of the road, with the result that only half of the width of the motorcycle would be over the road surface, a distance of 0.367m. Now the width of the lane. on Dr. Searle's measurements is 2.8m and the width of the trailer is 2.18m leaving a difference of 0.62m clearing to the offside of the trailer. Ignoring the fact that Mrs. Pugh indicates that the outfit was partially on the grass verge, then there was sufficient room for the motorcycle to pass at an appropriate speed.

21. In Dr. Searle's opinion Mr. Grimmett is suggesting that Mrs Pugh, on seeing the motorcycle appear, instantly should have instantly skidded to an emergency stop. A stopping distance of 9. 97m from 15 mph is a reaction time of 1 second followed by skidding at 0.7g. In reality, Mrs Pugh was just before the farm entrance and, by the time she reacted, was alongside it. Even if she had attempted to skid to a stop, not something any driver would do in the 50m visibility she took 15m herself, she was leaving the motorcyclist more than twice as much for him to stop. Nor does DR. Searle think it wise to ride through, at speed, a space so narrow that it is necessary to overlap the bank at the edge of the road. Walking pace is required.

22. In Dr Searle's opinion there was not room to ride through on a motorcycle, except by squeezing through at walking speed and even that might require further manoeuvring. It is possible that Mr Barry had been travelling at some very large speed, say 40 mph, and simply could not stop on meeting the Isuzu combination. However, there is no skid marks and it is possible that Mr Barry has not attempted to stop or to slow right down, thinking that with the Isuzu as seen in Plate 4, he could ride through without slowing. As seen in Plate 5, the limited space at the rear of the trailer makes it more difficult than it appears. He caught his right handlebar on the rear of the trailer, which somersaulted him and his machine forward.

23. In Mr. Grimmett's opinion there is no physical evidence to support the view that the Claimant was speeding. In my opinion the damage sustained by both sides vehicles is a clear indication that this was a low speed accident.”

58 Thus Dr Searle took issue with what he understood Mr Grimmett to suggest, that “whilst the towing vehicle swerved to the near side, the rear of the trailer moved to the offside.” In a letter dated 2 March 2005 he indicated that he had carried out preliminary test showing that this was not the case, and proposed to carry out a further test at the accident scene using the car and the horse box that had been involved in the accident.

59 Mr Grimmett declined to take part in a further test. A supplemental report of Dr Searle dated 8 March 2005 describes how on 4 March 2005 he carried out the test he had planned. The defendant drove the Isuzu and horse box in a relatively gentle swerve put the near side wheels onto the verge. The exercise was repeated with the defendant husband driving, and swerving the combinations abruptly as possible. In both cases it was found that the trailer did not, at anytime, go outward.

60 Mr Grimmett gave oral evidence in support of his contention and in answer to those found in the supplemental report Dr Searle. In essence, on the question of outward movement of the trailer, he said that Dr Searle had misunderstood him. His point was that a sudden turn can result in the trailer swaying, because the driver, having turned abruptly, then needs to take corrective action. It was this corrective action which resulted in a contrary movement of the trailer.

61 As to the question of emergency breaking leading to continued movement in a straight line, if the trailer had stopped outside the gate, there would have been a clearance of 20cm — a foot or so — which Mr Grimmett said was ample room for the motorcycle to get past.

62 Mr Grimmett accepted that there was no evidence to contradict the defendant's statement that she had been travelling at 10 to 15 mph, nor to contradict her evidence that the defendant was travelling faster than her. His believe was that the impact occurred in the area of the entrance. He accepted that there was no physical evidence to show whether the car and trailer were moving at the time of impact.

63 Mr Grimmett said that if there had been an impact of the kind envisaged by Dr Searle, the claimant would not have gone in one somersault, but would have “made a lift” and then bounced along the lanes surface — this would have left physical marks on the lane surface, but none were found. Also, there would have been a greater separation distance between the claimant and the motorcycle when the came to rest. Mr Grimmett's view was that the action of the trailer caused the sideways movement of the bike, leading to the claimant landing with force on his head on the lane, and the twist from coming off the bike carried him mover onto his stomach. The throw distance was determined to a certain extent by the speed with which the motorcycle hit the trailer.

64 In re-examination, Mr Grimmett said that if the claimant had been travelling at 20 mph the throw distance would have been 20 m. In fact the distance between the point of impact and where he came to rest was in the region of 7m. This indicated a speed of about 15 mph.

65 The lack of scuff marks on the lane, and of relevant injuries to the claimant, indicated to Mr Grimmett that he had not been bouncing along the lane. Similarly Mr Grimmett would have expected far greater damage to the motorbike by a throw of 7m. This all suggested that the impact speed was very low, the throw being in the region of 5m.

66 Turning to reaction and breaking times, in re-examination Mr Grimmett said that as the defendant's foot was over the brake, 0.7 of a second would have been needed to observe the hazard and start breaking. If the vehicle was travelling at 10 mph, without skidding or damaging the horse, without locking the brakes, you would need just over 2m breaking distance. This meant she would have been able to stop in the entrance. It would have been quiet easy to steer into the entrance said Mr Grimmett.

67 In reply to a question from me, Mr Grimmett said that if the throw had been 5m, the trailer mudguard would have been somewhere near the start of the grass verge. Contact at that point would be consistent with body being in the position found. If the motorbike had been travelling at 15 mph it would not take very much for something to go wrong and for the motorbike to make contact with the trailer. It could be simple an error of judgment when performing a very difficult manoeuvre. Mr Grimmett's concern was that it was a natural reaction to turn sharp left at the entrance, then turn sharp right to avoid the ditch, and thus the trailer would make a contrary movement. There had been space, however, to get the car about a meter or so south of the gate, and the trailer would then be in the entrance way. In reply to a question from Mr Browne at this point, Mr Grimmett accepted that if the defendant first saw the motorcyclist at cone 6, then she would not have been able to pull in in that way.

68 In evidence in chief Dr Searle clarified that the defendant had demonstrated for him where the impact had occurred. His supplemental report had shown that there was no lateral outward movement. On the question of a reaction time of 0.7 seconds, this was not apt to include a perception of the speed of the motorcyclist. One or two seconds were needed to see that the motorcyclist was moving rather fast, something which is particularly difficult when the motor bike is head on. Once the speed was perceived, and it was realised that there was an emergency, a reaction time of 0.7 seconds followed before breaking started.

69 In cross-examination, Dr Searle said that what the defendant told him at the scene was in the same words as appeared in his report — she had either stopped or else so nearly stopped as to make no difference as to positioning. What he had written as to the defendant's statement to him was from memory.

70 Mr Edis QC then sought to question Dr Seale as to whether he had an earlier statement of the defendant. Mr Browne QC objected that any such statement would be privileged. In answer, immediately before the end of the hearing on 22 March, Mr Edis said that it did not matter whether Dr Searle had relied on such material, for it was not permissible for an expert to decline to rely on unhelpful material.

71 When proceedings resumed on Wednesday 23 March, I was told by Mr Browne QC that ‘a part of the statement given by the defendant to Mr Morgan in October 2000 had been disclosed. This part dealt with the position from the moment when the defendant first saw the claimant through to the period after the collision. Mr Browne said that the defendant did not waive privilege in the reminder of the document, and indeed maintained that there had been no obligation to disclose the part that had been disclosed. He had also disclosed a supplementary statement to Mr Morgan dated 9 May 2001.

72 In the light of these events Mr Edis QC made two further applications. The first was that the defendant should be recalled for further questioning. I allowed this application. The second was that the defendant should disclose the balance of the statement to Mr Morgan in October 2000. I concluded that this claim failed.

73 The defendant having returned home the previous evening, the hearing was adjourned to make, arrangements for her evidence to be resumed on a date convenient to the parties.

The defendant's evidence in June 2005

74 The trial resumed on Monday 13 June 2005 in Cardiff. The defendant returned to the witness box and confirmed to Mr Browne that the disclosed documents from October 2000 and May 2001 were statements she had made. Under cross-examination by Mr Edis she maintained that she had told Mr Morgan that at the time of impact she had either stopped or was in the process of stopping. She accepted, however, that the May 2001 document said she had come to a complete halt when the motorcycle went past her vehicle. As to her telling the police that she heard a bang and stopped immediately, “immediately” could have been a split second. The police officer had not asked for any more detail.

75 The defendant denied suggestions that she only saw the claimant when he was 10 to 15 yards away. She had said in October 2000 that it was after she had travelled 10 to 15 yards from the start of the bend that she first saw the motorcyclist. This was at cone 6. She was willing to accept that the distance from the start of the bend to cone 6 was 20 yards.’

76 In October 2000 she had said that the motorcyclist was travelling in the region of 50 m.p.h, but when giving evidence earlier she had not realised that she had said this. It was wrong, it had not been fair of her, to say it, and that was why she had not mentioned it again.

77 The defendant was asked about the arrangements she had made to collect her daughter and take her to the Pony Club event. She said that the event was at 7 p.m., and that she had allowed plenty of time to travel the 15 or 16 miles needed to get there, as this distance would be on the main road. Her daughter was waiting on the roadside down from the family house, and in the October 2000 statement she had explained that it she had accordingly had to leave the scene after the accident in order to pick up her daughter. It was not the case that she had been in a hurry to fetch her daughter from an unsafe place.

Dr Searle's evidence resumed

78 Cross-examination of Dr Searle then continued. He said that coming down the hill he would have thought that he could get on to the raised verge without accelerating, but another driver might have thought it was needed. As he understood it, the defendant had taken action to get at least part of the vehicle up on to the verge. He would not have expected her to have gone in and out of the farm entrance — he would not have thought there was sufficient time to get into the gateway.

79 At 10 m.p.h. Dr Searle that emergency braking distance was 2 to 3 metres, and the stopping distance for firm braking would perhaps be double that. Given that the whole rig was 8.8 m long, he did not think it was practical driving to suggest that while travelling in the middle of the bell-mouthed entrance the defendant should have swerved to get into it.

80 As to the speed of the motorbike, it could have been travelling at 50 m.p.h when it was first seen, if it had been braking very heavily for the bend. While there was no evidence that it skidded, whether it braked was a completely open question. A motorcycle can brake from 50 m.p.h. to a standstill in 33 meters in an emergency, but that would leave a skid mark. Braking of a lower degree, using more distance, would not leave a skid mark.

81 Dr Searle said he thought there would be a couple of seconds before the speed is seen, and during that time a course of action would have been decided upon. The question was then whether there was time to change from the course of action which would have been sensible if the motorcycle's speed had not been high. There is always a reaction time. The course of action would be, “I will pull in on that verge there, and start some degree of braking for that.” If it became apparent that the motorcyclist was travelling too fast, then there would be a need to think again.

82 As to a second being the reaction time to an emergency, Dr Searle said that many drivers will be longer, one and a half seconds or upwards, and that is when there is a plain and obvious emergency. Seeing something on this lane would not be an emergency. If someone already had their foot on the brake, one could reduce the time needed by the amount of foot movement time, about 0.2 or 0.3 of a second in an emergency. No one has a reaction time of half a second. When there is not all emergency there is not the same speed of reaction, for example of foot movement.

83 Turning to the exercise carried out on 4 March 2005, the defendant had been asked to drive as she did at the time. He said one needed time to start to steer. The photos showed the path taken. The trailer was moving forward at the same time as turning. In getting to an angle of 10 degrees, the average angle would be 5 degrees. During that time, that more than offset the effect of the rotation of the trailer around its own centre.

84 When an articulated vehicle starts to turn, the towing vehicle goes in by more than the trailer. That does not mean the back end of the trailer goes out across the lane. Even with the steepest movement, the outward lateral movement will be more than offset by the inward movement required to develop the angle. This does not mean that path of towing vehicle and that of the trailer will be' parallel. Each follows on its own curve. The rear offside curve is at all time moving inwards.

85 Dr Searle rejected the suggestion that the defendant sought to get into entrance, then straightened up, thereby catching the motorcyclist by surprise with an outward movement. Mr Pugh had been asked to swerve the horsebox in as abruptly as could be done. He was from the motor trade, an expert driver with these things. He swerved it in very abruptly, and the movement of the rear offside edge of the trailer was ever inwards.

86 Supposing that the defendant brought the rig to a halt alongside the farm entrance, Dr Searle said that a swerve of 1 metre would bring the rig to a halt so that the near side front wheel of the Isuzu was in the foreground at or near the verge at the mouth of the gateway. However, the offside wheels of the trailer would not have moved in — the back end of trailer would still be by the outside verge. Dr Searle did not accept that the defendant would have driven with the near-side of the car 0.2 m from the edge. The lane had a temporary widening on the near side. Before and after the widening there was 20 cm clearance on either side. A motorist would not take advantage of a temporary expansion to left — which requires steering in and then out again — and thus the path to be expected was one in which the offside remained 0.2m from edge .

87 Dr Searle denied that he had said that the point of impact was directly opposite the northerly entrance. If the impact had been on the rear mudguard. 2 m from back of the trailer, then the point of impact would be 9 m from cone 5. The middle of the northern entrance was some 6 or 7 metres more. He had not been contending for a different point of impact in the joint statement from that which he now asserted.

88 As to inferences from the throw distance, Dr Searle's view was that the claimant somersaulted to land on his left scapula. A lack of damage to the lane did not demonstrate that the claimant had been travelling at a low speed. It was very often the case that in this range of speeds an accident investigation officer would find no gouge mark. Dr Searle would say the speed was 20 mph rather than Mr Grimmett's speed of 15 mph. It was not a dive forward from a lower speed, flung sufficiently far forward to go over and land on scapula.

89 In re-examination Dr Searle was asked about the gate to the northern entrance being open. He said that this would add to difficulty of swerving in to that entrance, as one could not get out of bell-mouth by running o