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N/A | National [UK] Filtering bike accident, Court ruling 100% in favour of the motorcyclist

Discussion in 'Politics, Laws, Government & Insurance' started by robsalvv, Aug 8, 2012.

  1. Strap in for a Justus type post.

    In the UK, it's "legal" to filter along the centre dividing line overtaking a queue of traffic. The rider was doing that.

    A frustrated driver in the outside lane, stuck in grid lock, decided to throw a U turn. He waited for an oncoming car to pass then abruptly commenced the move - right into the path of the filtering motorcyclist.

    The driver said he did not see the rider - but this doesn't appear to have been a defense and the fact that the rider was going at a speed (approx 40mph or 64km/h) considered "too fast" for the conditions, i.e., inappropriate, didn't go against the rider either. In part that was because even a reasonable speed would NOT have helped prevent this collision. (Who knows if and by what extent it would have reduced the injuries though?).

    The judgement was for the rider, 100% liability to the driver.


    One of my take home messages is to filter in the filter alley which would have the least likely encroachment from a motorcar - so between the outside and centre (or inside) lane if the space is available.

    = = = = = = = = = = = = = = =


    Neutral Citation Number: [2012] EWHC 2197 (Q8)Case No: HQ114X03139

    Royal Courts of Justice Strand, London, WC2A 2LL27/07/2012


    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

    Crown Copyright ©

    Sir Raymond Jack:

    1. 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.
    2. 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.
    3. 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.
    4. 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).
    5. A number of eye-witnesses gave evidence.
    6. 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.
    7. 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.
    8. 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.
    9. 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.
    10. 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.
    11. 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.
    12. 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.
    13. 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.
    14. 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.
    15. 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.
    16. 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.
    17. 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.
    18. 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.
    19. 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.
    20. There will be judgment for the claimant for damages to be assessed.
  2. this comes from a country that let a car driver walk free after pulling out in front of a bike rider and killing the rider?
  3. I know, that's why it's so interesting. It even references the case Justus was talking about in the 3AW thread recently.
  4. This.

    The rider cannot be brought back but we can adjust our splitting to make sure it doesn't happen to us. Cars will not change lanes into other cars. The risky part is where there is a gap for a car to move to.
    • Like Like x 1
  5. The TAC should read points 18 and 19 before putting out more stupid Wipe off 5 ads.

    I don't know if I'd consider the rider "filtering" or "overtaking" in this case, for what it's worth. Looks like he was actually in the lane for oncoming traffic.

    So do you mean btw the right and centre lanes (for example)? This would be my preferred filter lane, rather than btw left/centre. Should trucks therefore be banned to the left lane also? OT, but of interest to me.
  6. PatB and other formerly-UK riders can confirm this, but it's customary to perform filtering of stationary and slow-moving traffic on the many, many one-lane-each-way roads in the UK by riding pretty much on the centreline (preferentially biased toward the left hand side of the road of course).

    In part this is because the city of London, for example, has nowhere near as many multi-lane roads as any of our shiny new Australian cities which bristle with 2-lane-each-way and 3-lane-each-way inner city roads and suburban roads.

    Edit: And also because, peak-hour traffic being mostly one-way, the oncoming lane often has gaps where a motorcycle can leap ahead a few spots at a time. Still comes under the purvue of filtering-related behaviours rather than being 'riding in the oncoming lane' per se. Arguably semantics, but I think it's important to consider the motorcycling culture/customs of the UK in understanding the judgement.
    • Like Like x 2
  7. The driver should have just said that the sun was in his eyes.
  8. Pretty much. You'll be in the shit if you go round the wrong side of a traffic island but otherwise doing long-distance overtakes of queues is normal and accepted practice.
  9. Or that they had to make a U-turn because they forgot their cupcakes ;)
    • Like Like x 1
  10. Oh yes. I've done well over a mile of continuous 20mph non stop filtering/overtaking before :)
  11. And interesting the number of independent witnesses who are bikers
  12. Interesting find there.

  13. Nice find Rob.

  14. How is that case of any relevance to this one? Court of Appeal cases can bind judges in lower courts if the facts are the same. The facts of two accidents are rarely identical so the trick is to try and differentiate one case from another to prevent unhelpful case law binding the likely outcome of another case.
    There was a recent Court of Appeal decision (below) that said filtering at 15 was fine but 20 was not! They have reiterated that it is fraught with danger and needs to be exercised with great caution. Something to think about. The unjustified 70/30 ruling in favour of the rider was changed to 50/50 on appeal.

    Hearing 70/30: Ben Woodham v J Turner (21st June 2011).
    Appeal 50/50: Ben Woodham v J Turner (20th Feb 2012).

    Lord Justice Davis:


    1. The defendant's employee, Miss Turner, now Mrs McCarter, was driving a school bus on the afternoon of 8 October 2007. As she sought to turn right from a side road in a gap left between queuing traffic onto the A143 at Great Barton in Suffolk, the claimant, Mr Woodham, was riding his motor bicycle along the A143 overtaking stationary traffic on the off-side. There was a collision and Mr Woodham suffered grievous injuries.
    2. On 27 July 2010 he issued proceedings. He seeks damages in excess of £2 million. He claims that the accident was the entire responsibility of Miss Turner. By their Amended Defence, the defendants attribute entire responsibility to Mr Woodham. But in the alternative, it was said that there was contributory negligence on his part.
    3. There was a trial on the issue of liability before Kenneth Parker J, sitting in the Queen's Bench Division. By a reserved judgment handed down on 21 June 2011 the judge attributed 70 per cent of the liability for the collision to Miss Turner and 30 per cent to Mr Woodham.
    4. The defendant sought permission to appeal and the judge himself refused permission. Dame Janet Smith refused permission on the papers to appeal against the finding of negligence, ruling that there was no prospect that the Court of Appeal would interfere with the judge's conclusion that both drivers were negligent. There has been no attempt to renew the application with regard to that. But Dame Janet Smith did grant the defendant permission to appeal with regard to the apportionment of 70 per cent as against Miss Turner.

      The facts
    5. The background facts are set out with exemplary clarity in the judgment below. They can perhaps be re-summarised in this way. Miss Turner is an experienced school bus driver and she was, at the time, working for the firm Turners of Great Barton. At around 4.40 pm on Monday 8 October 2007, she was driving a 24 seat Mercedes Vario coach south down a minor road called School Road into the village of Great Barton. The school coach was by now empty, apart from herself, and she was returning home. The design of the coach is such that it has a length of bonnet protruding beyond the driver's seat. The weather was overcast but dry.
    6. School Road joins the A143, a single carriageway road, in Great Barton at a T-junction. It is almost directly opposite another junction on the other side of the A143. The A143 itself runs approximately north-east to south-west, with Ixworth to the north-east and Bury St Edmunds to the south-west. Miss Turner was intending to turn right onto the A143 in the direction of Bury St Edmunds. The minor road, that is to say School Road, inclines slightly to the left at the T-junction with the A143. There are "Give Way" markings at the junction.
    7. As it happened, there had for a period of time been roadworks on the A143 with temporary traffic lights installed to the north-east of Great Barton. This had had the effect of causing traffic queues in that direction. And so it was that afternoon. The traffic was queuing away to Miss Turner's left on the A143 up to the temporary traffic lights as she came down School Road to the Give Way markings at the T-junction. The traffic was also queuing back on her side away to the right. The opposite side of the A143 was clear of traffic as she drove to the T-junction.
    8. Immediately to her right on the A143 was a very large Claas tractor towing a very large trailer for sugar beet. It occupied the greater part of the width of the left-hand carriageway. The driver of the tractor was Mr Hatton. He was familiar with the road. He had purposely halted the tractor a little way short of the T-junction and had done so shortly before Miss Turner herself came up to the T-junction. In the course of cross-examination, Mr Hatton was to say that he had stopped his tractor so as to leave a gap "because there is a crossroads there and you don't know if people want to go in and out or whatever". Behind Mr Hatton's tractor and trailer was a lorry, and behind that again, a lengthy queue of stationary vehicles waiting to move forward when the temporary lights further up the A143 turned green.
    9. Shortly before the T-junction to the south-west, there is a pelican crossing on the A143. That, as well as having traffic lights, was marked in each direction by zigzagged white lines at the side and in the centre of the roadway.
    10. The claimant, Mr Woodham, was 16 at the time of the accident. He had relatively recently obtained his licence. He had acquired a Derbi GPR motorcycle in July 2007. It was very lightly powered, 50cc, and some witnesses in fact described it as a moped or as a scooter. Its front lights automatically would come on when the engine was started. That afternoon he was returning from college, riding north-east in the direction of Ixworth on his motor bicycle. In the event, Mr Woodham had, as was accepted, no subsequent recollection of any of the events of that day and he did not give evidence at trial. But important evidence was given by a friend of Mr Woodham, a Mr Jake Gladwish, who was also 16 at the time and was studying at the same college. His evidence was that the A143 in this vicinity was very familiar both to Mr Gladwish and to Mr Woodham (and the judge so found). Both at the time lived in the area and they would ride up and down it a lot together. It would also be one usual route for them to go to and from college.
    11. On the afternoon of the day in question, Mr Gladwish left college on his own scooter, riding eventually north-east through Great Barton along the A143. He was aware from previous journeys of the temporary traffic lights for the roadworks and was expecting traffic queues. As he approached the village, he stopped behind the traffic. However, he then saw a number of motor bicycles overtaking on the offside, filtering past the stationary traffic. He then also recognised Mr Woodham on his motorcycle go past him, also filtering past the stationary traffic; and as the traffic was either stationary or very slow moving, Mr Gladwish himself decided to follow suit, his being the next motor bicycle immediately behind Mr Woodham's.
    12. Both motor bicycles approached the pelican crossing, filtering past stationary traffic on the off-side. Mr Gladwish was to estimate that he was doing around 25 miles per hour. He said that he passed two motor bicycles, which by now had pulled in by the traffic near the pelican crossing. He described how Mr Woodham's motor bicycle, keeping within the central line of the carriageway, slowed, the brakes being applied, as it approached the pelican crossing. But it then started to accelerate away as the lights at the pelican crossing were green. He thought it was going around 20 to 25 miles per hour.
    13. Mr Gladwish had himself observed Mr Hatton's tractor and trailer stopped just past the pelican crossing lights and before the T-junction. Mr Gladwish decided to pull in behind the tractor and trailer. He said that he did so because he did not like filtering anyway and also because, as he put it, he had had "bad experiences" with tractors. In the course of cross-examination, he further accepted that he would also have taken into account the possibility of traffic emerging from the T-junction in the gap which he had observed had been left by Mr Hatton's tractor. Mr Gladwish further accepted that he had assumed that Mr Hatton may have stopped as he did to let somebody out of School Road.
    14. Mr Woodham, however, unlike Mr Gladwish and other motor bicyclists, did not stop, but continued filtering past Mr Hatton's tractor and trailer on the off-side, close to but not beyond the central line of the carriageway. If Mr Woodham did not cross the central line, he must have been passing very close to the tractor and trailer of Mr Hatton, given their width and given that they filled much of the carriageway.
    15. At that time, Miss Turner in the school coach had decided to move forward into the gap purposely left by Mr Hatton, out into the A143 with a view to turning right. As the judge found, her visibility of Mr Woodham's motor bicycle and his visibility of her school coach would have been restricted severely by Mr Hatton's stationary tractor and trailer. There would have been a sightline over the top of the tractor's off-side front wheel and mudguard, but all other parts of the very large tractor would have blocked their views.
    16. Miss Turner did not move out from the T-junction into the A143 at a 90 degree angle. Instead she angled the coach towards the right, Mr Hatton having left quite a sizeable gap, as she moved into the A143. This was to facilitate her final right turn onto the opposite lane of the carriageway leading towards Bury St Edmunds. The evidence, accepted by the judge, was that she was moving very slowly, in effect edging forward, and constantly looking both to left and to right. To the left she could see that the carriageway was clear. It was not established, and the judge made no finding, as to whether she moved forward in one continuous movement or in stages with pauses between successive movements. In the event, Mr Woodham's motor bicycle collided with Miss Turner's coach, striking the front off-side of the vehicle; albeit it was agreed by the experts that the first part of the coach that would have been visible to Mr Woodham would have been the front near-side, in view of the angle at which the coach had been entering the major road.
    17. The judge found that Miss Turner did not become aware of the presence of the motor bicycle until it struck the coach. There was no physical evidence of any braking on the part of the motor bicycle, although there was some evidence of steering to the left by the motor bicycle just before the collision. The judge analysed the evidence. He found that the speed of the coach at the time of the collision was approximately 3.5 miles per hour. The expert witnesses were agreed that the speed of the motor bicycle at the actual moment of impact was "probably around 20 miles per hour". The judge further found that the point of impact was close to the road's centre line markings. Miss Turner then applied emergency braking. The judge found that the coach would have been in further motion for not less than 0.5 to 1 metre before coming to a final stop. The judge also found, assessing the expert evidence, that given that the coach was moving slowly, the motor bicycle would have needed to be driven at 15 miles per hour or less to have enabled the bicyclist to have stopped or to have avoided the coach in time.
    18. The emergency services were called speedily. It emerged that, very sadly, Mr Woodham has been rendered paraplegic as a result of the accident. Although he was wearing a helmet, he suffered, amongst other things, head injuries, his head having struck the windscreen of the coach close to the base of the off-side pillar. There were thoracic spinal fractures, including a cord transection at T6.

      The cases advanced
    19. The claimant's case as pleaded placed particular emphasis, amongst other things, on the alleged negligence on the part of Miss Turner in steering out into the A143 in the gap left by Mr Hatton and his tractor, when she could not see to her right; in failing to wait until the tractor had moved on and, when it was safe, to cross right into the opposite carriageway; and in failing to see or hear Mr Woodham's motor bicycle or to appreciate that users were likely to filter past the stationary tractor. The Amended Defence on the other hand placed particular emphasis on the alleged negligence on the part of Mr Woodham in driving too fast and in taking no heed of the fact that he was filtering past stationary traffic when he knew that he was approaching a T-junction and was nearby a pelican crossing. It was said that Miss Turner acted entirely appropriately in moving forwards slowly to get a better view, to make sure that it was safe to cross onto the opposite side of the carriageway.
    20. Reference was made by counsel to the trial judge, as it has been to us, to extracts from the Driving Standards Agency Guide to Driving Buses and Coaches. Further reference has been made to parts of the Highway Code. The following passages in particular may be noted. Reading from the Driving Standards Agency Guide at page 154 under the heading, "Bends And Junctions" this, amongst other things, is said:

      " Emerging

      'Emerging' is when a vehicle leaves one road and joins, crosses or turns into another. You'll have to judge the speed and distance of any traffic on the road you intend to emerge into, and only continue when it's safe to do so.

      This needs care and sometimes patience as well.

      When to go

      You have to decide when to wait and when it's safe to go. That decision depends largely on your zone of vision.


      You can only decide whether to wait or go on when you have put yourself in a position where you can see clearly…


      An approaching vehicle, particularly a bus or a lorry, can easily mask another moving vehicle which may be overtaking."
    21. Then, a little further on, at pages 160 and 161, this amongst other things is said, under the heading, "Effective Observation":

      "Just looking is not enough!…

      However, because of its size and design, a bus will have many more blind spots than many smaller vehicles."

      And at page 161, under the heading, "Observation at Junctions":

      "Despite your higher seating position, there will still be some junctions where you cannot see past parked vehicles, or even road signs…

      If you still cannot see any oncoming traffic, you will have to ease forward until you can see properly without coming too far into the path of approaching traffic.

      Remember that some road users are more difficult to see than others -- particularly cyclists and motor cyclists."

      A little later:

      "Never find yourself having to say, 'Sorry but I didn't see you coming!'"

      Further passages were referred to us from the literature. Amongst other things, this was said at page 146 from the Guide:

      "If you still cannot see properly you will have to ease forward until you can do so, without emerging too far out into the path of approaching traffic. Remember, some road users are more difficult to see than others, particularly cyclists and motor cyclists…

      Remember, if you don't know, don't go."

      Then a little further on:

      "Many incidents occur because drivers fail to notice motor cyclists, so look out for them when

      emerging at junctions...

      turning into a road on your right -- the motor cyclist may be following, overtaking or meeting you. Oncoming motor cyclists may be particularly difficult to see if they are following a larger vehicle."
    22. We were referred also to passages from the Highway Code. In particular, we were referred to these passages. Rule 88 says with regard to manoeuvring:

      "Manoeuvring. You should be aware of what is behind and to the sides before manoeuvring. Look behind you; use mirrors if they are fitted. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that drivers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low."

      At Rule 167, this is said:

      "DO NOT overtake where you might come into conflict with other road users. For example:

      Approaching or at a road junction on either side of the road…

      where traffic is queuing at junctions or road works"

      Rule 211, relating to motorcyclists and cyclists, amongst other things says this:

      "It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully."

      The judgment
    23. In assessing whether Miss Turner was in breach of her duty of care owed to Mr Woodham, the judge rejected the suggestion that she should have turned left and then made a U-turn later. He further rejected the suggestion that she should have heard the motor bicycle. But he found that Miss Turner was at fault in moving forwards, even if very slowly, into the gap when she simply was not able to see whether or not a road user was filtering on the off-side of the stationary traffic. The judge referred to the relevant parts of the Code and the Guide, which I have summarised today.
    24. The judge then referred at paragraph 20 of his judgment to what he described as the "dilemma" facing Miss Turner. He described her as advancing forward cautiously and looking to left and right; but the tractor, as she knew, was large and obscured her view to the right. The size and position of the tractor and the configuration of her vehicle with the short bonnet ahead of the driving position made it likely that if she continued to advance through the gap, even very slowly, she would be advancing "blindly" in the path of an overtaking motor cyclist. The judge indicated that a collision was reasonably foreseeable, even if the motor cyclist was overtaking at a very low speed. The judge indicated also that this did not amount to a counsel of perfection.
    25. The judge went on to state that Miss Turner had obvious alternatives that would have eliminated or substantially reduced the risk of collision. He found that she could simply have waited, given the nature and size of the vehicle that was potentially blocking her view to the right. He rejected a submission by Mr Ferris of counsel, appearing on behalf of the defendant, that the situation would simply have repeated itself. The judge indicated that it might have repeated itself but there was a reasonable prospect that, at the next change of lights, a smaller vehicle would have taken the place of the tractor.
    26. The judge went on to say, "even more importantly", Miss Turner had advanced into the A143 at an angle to the oncoming traffic, thus making it significantly more difficult for her to have a good sight to her right. The judge went on to say this:

      "The expert evidence showed dramatically that, if Miss Turner had advanced at right angles to the A143, at least 1.5 seconds and possibly more, depending on the Claimant's position in the road, before the actual collision in this case she would have had a view of Mr Woodham and, most importantly, he would have had a view of the coach and, given his speed, would have had a real opportunity of braking to avoid collision."

      In such circumstances, the judge made a finding of negligence as against Miss Turner.
      The judge then turned to deal with the question of whether or not Mr Woodham had failed to exercise reasonable care for his own safety and whether such failure contributed to the collision. The judge, after reminding himself of the relevant parts of the Highway Code, then went on to say this, amongst other things, in paragraph 28 of his judgment. He found that Mr Woodham knew the relevant parts of the A143 and that the traffic was slow-moving and at times stationary. The judge expressly found this:

      "He also knew, or ought to have known, that the tractor had left a gap at the junction with School Road, and that there was a real possibility that a vehicle could emerge through the gap into his path."
    27. The judge then went on to refer to and summarise the evidence of Mr Gladwish, which I have already mentioned above. The judge then said:

      "Mr Woodham did not wait behind the tractor. He did not overtake it at a very low speed which would have given him the opportunity, if a vehicle did emerge, of taking evasive action. He overtook at a speed – of about 20mph – that very substantially, and foreseeably, increased the risk of collision and of serious injury, if a vehicle did emerge. As events unfolded, a speed of 15mph or less would have given him a real chance of taking effective action to avoid the consequential collision."
    28. The judge thus made a finding of breach of duty as against Mr Woodham.
    29. The judge then in the last three paragraphs of his judgment dealt with the issue of what was the correct division of responsibility. He expressed his conclusions in these words.

      "31. It seems to me that Miss Turner bears the greater share of responsibility. She was emerging from a minor to a major road, where she was obliged to give way to traffic moving from both directions on that road. She emerged from School Road at an angle that significantly reduced her ability to see traffic on the far side of the obstructing tractor, and she advanced beyond her sight line, creating a real risk of collision with an oncoming and overtaking motorcyclist, however slowly such motorcyclist might have been travelling. She had the obvious alternatives of approaching the A143 closer to the perpendicular or of waiting for a more favourable opportunity to exit from School Road. I acknowledge that she was emerging very slowing and was looking, as best she could, to right and left. But in the circumstances that was not sufficient.

      32. On the other hand, Mr Woodham's lack of due heed for his own safety made him substantially responsible for the collision. He was not following the strictures of the Highway Code, and the risk of a vehicle emerging, even at very low speed, from School Road was obvious and foreseeable to any careful motorcyclist.

      33. Weighing these factors, I have concluded that Miss Turner should bear 70 per cent liability for the collision, and that Mr Woodham contributed to his own injuries to the extent of 30 per cent.

    30. In such circumstances Mr Ferris, on behalf of the appellant/defendant, submits that the apportionment made by the trial judge was manifestly wrong. Mr Ferris emphasised the provisions of, in particular, Rule 167 of the Highway Code and that its wording is designed to prohibit overtaking where drivers might come into conflict with other road users, for example at a road junction on either side of the road or where traffic was queuing near roadworks: precisely the position here in both respects. Further, Mr Ferris emphasises that Mr Woodham knew the road well. He knew of the junction. He knew about the gap left by Mr Hatton's tractor yet he elected to filter past the stationary tractor on the outside. Having so elected, he then did so at a speed of around 20 miles per hour whereby he would not be able to stop in time if a vehicle did indeed emerge through the gap. Overall, Mr Ferris submits, a greater share of the blame must rest with Mr Woodham than with Miss Turner.
    31. Mr Melville QC, on the other hand, who appeared on behalf of Mr Woodham at trial and has appeared on his behalf on this appeal, submits that the judge was entitled to apportion liability as he did. He submits that the finding that Miss Turner was more to blame was fully justified. He made a series of points, in effect reflecting the Particulars of Negligence set out in the claim form, which were designed further to emphasise the asserted negligence on the part of Miss Turner: although Mr Melville rightly accepted that such matters cannot simply be decided by reference to the numbers of ways in which the alleged negligence can be framed.
    32. Mr Melville said, nevertheless, that those factors differentiated the position in terms of responsibility and blameworthiness so far as Miss Turner was concerned, and made her the more culpable; or at least the judge was entitled so to conclude. He stressed that she could and should have stopped at the T-junction if she could not see; whereas, he asserted, the only real error of Mr Woodham, once he had elected to try to pass the tractor on the off-side, was the speed at which he drove.
    33. Mr Melville also referred us to various decisions of the Court of Appeal whereby it is emphasised that the Court of Appeal will ordinarily be very reluctant to interfere in decisions relating to apportionment of liability. In particular, we were referred to a decision of the Court of Appeal in the case of Wells v Mutchmeats Ltd [2006] EWCA Civ 963. At paragraph 15 of that judgment, a proposition enunciated by Brooke LJ in a previous case was endorsed. It said this:

      "It is very firmly established that this court will not interfere with a trial judge's apportionment of responsibility unless it can be shown that he erred in principle, or misapprehended the facts, or he is clearly shown to have been wrong;"

      I should add that, in the course of skeleton arguments, both counsel before us had referred us to a number of other authorities relating to accidents of, broadly speaking, the present kind. But both of them rightly acknowledged that these cases are fact-specific and I do not think it necessary to refer further to those authorities cited to us.

    34. In granting permission, Dame Janet Smith stated that she found the apportionment of 70 per cent against Miss Turner "surprising". I must say I share that surprise. In terms of causative potency, Mr Woodham's actions, as it seems to me, were really as much the cause of the collision as Miss Turner's. True it is that Miss Turner was driving a large and heavy coach but that was not really the point. The point was that her bonnet would be protruding out into the roadway. The situation is, of course, that this accident would not have happened had Miss Turner only waited; instead she elected to proceed forward at an angle, even if very slowly, through the gap in circumstances where she had no effective view to the right because of the bulk of Mr Hatton's tractor. But equally, this accident would not have happened had not Mr Woodham, who was familiar with the road and with the existence of the junction, contrary to the guidance of the Code and contrary indeed to what other motor cyclists were doing at the spot, elected to filter up on the off-side of the stationary tractor: when, as found, as he should have known, there was a gap left by Mr Hatton in circumstances in which vehicles might be expected to be seeking to come out of the junction. Moreover, he did so at a speed which would be too fast to enable him to stop or take appropriate evasive action in time.
    35. In terms of relative blameworthiness, it thus seems to me that, correspondingly, Mr Woodham was really as much to blame as Miss Turner. As the judge himself stressed, not only did Mr Woodham himself fail to wait, he elected to filter through on the off-side at the speed at which he did. In the judge's own words, this "very substantially and, foreseeably, increased the risk of collision and serious injury." The word "very" is of note.
    36. I appreciate that the appellate court is indeed ordinarily slow to interfere in a question of apportionment in cases of this kind. But in my own view, having regard to his primary findings, the judge simply was wrong to attribute the greater share of responsibility to Miss Turner in the way that he did, and was wrong to assess her overall liability as that of 70 per cent. Moreover, I have concerns that the judge, on the issue of assessing relative responsibility and apportionment, may not have had sufficient regard for those purposes of the potential significance of Mr Gladwish's evidence. I am not able to agree with Mr Ferris's submission that the greater share of responsibility lay with Mr Woodham. In my view, on the facts of this particular case, there was no reason to differentiate between the two in terms of apportionment of responsibility. In my view, the appropriate finding should have been, and is, that Mr Woodham was 50 per cent liable for what happened and Miss Turner was 50 per cent liable for what happened.
    37. I would allow the appeal to that extent, accordingly.

      Sir Stephen Sedley:
    38. With regret, because of the sympathy one has for a young man whose life has been ruined by momentary misjudgements, I agree that there was no sufficient reason, on the judge's own findings, to depart from the prima facie conclusion that both drivers were comparably at fault. I respectfully adopt Lord Justice Davis's explanation of why this is the case. I too would allow the appeal to the extent he proposes.

      Lord Justice Carnwath:
    39. I also agree, also conscious of the well-established approach of this court of not interfering with issues of apportionment except in a clear case. The problem to my mind is in the judge's own conclusions. Having very clearly set out his views on the respective responsibilities of the two parties, it is at paragraph 31 to 33, which my Lord has quoted, that one finds what seems to me a logical gap. In paragraph 31 he sets out why he finds Miss Turner responsible. In paragraph 32 he says that Mr Woodham's lack of duty made him "substantially responsible". My Lord has referred to the earlier passage where he used the words "very substantially" in connection with Mr Woodham's contribution.
    40. He then asserts that Miss Turner bears the greater share of responsibility, which he puts at 70 per cent. However he does not, as it seems to me, provide any identifiable reason for putting her responsibility any higher than his. In the absence of any such reason it is not possible in my view to justify moving away from the natural conclusion of equal responsibility. For this reason, I also would allow the appeal.

      Order: Appeal allowed in part

    • Like Like x 2
  15. Is this something that's limited to the UK, or is it something we can also perform here where safe without being interrupted by the boys in blue?
  16. Not if there's a dollar to be made in it Lugo.
  17. I wouldn't see it as being inherently different (legally speaking) from any other normal overtaking move that takes you temporarily into the oncoming lane. That is, there is no prohibition on doing it provided that the rider does not cross solid whites, has adequate forward visibility, does all the right signals and otherwise complies with any restrictions on overtaking.

    However, whilst not technically being different from overtaking a car or two on the open highway, it looks different to the outside observer and it is looking different that will attract the attention of the gentlemen in blue and thus get you pulled over. At that point you'd better hope that you didn't, in fact, break any traffic laws, that the officer concerned got satisfactorily laid recently and that your bike is 100% roadworthy in the eyes of the law. And, at best, you've just lost any time that you managed to make up by doing the overtake.

    I'm not saying don't do it, but I am saying that you need to know your local laws regarding overtaking and stick to them if you're going to be trying it anywhere the man can see you.
    • Like Like x 1
  18. :applause:

    You beat me to it.
  19. I find it interesting that reference is made to not only the Code, but in particular the filtering technique "culture". i.e. it's atypical to go up the off-side of the traffic on that road or in the UK generally when filtering. Taking into account the norms of society behaviour.
  20. Fair enough mate,

    Not so from my POV because it's to be expected (a) The courts over there have already accepted it's legal. (b) Making reference to the Highway Code is tantamount to our courts making reference to ARR, and (c), the Highway Code may be used in evidence in any court proceedings under the Road Traffic Act 1988 to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’.

    Section 38 of the Road Traffic Act states:

    "A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the [1981 c. 14.] Public Passenger Vehicles Act 1981 or sections 18 to 23 of the [1985 c. 67.] Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."