Judgment has been handed down in the case of Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB).

Nigel Lewers, instructed by Kate Archer and Jenny Fitzpatrick of DAC Beachcroft, successfully appeared for the first defendant. This article is written by Cressida Mawdesley-Thomas.

Introduction

The case of Rowbottom concerned a road traffic accident on 5 July 2018 between a Kawasaki motorcycle and a Vauxhall Vectra. The motorcyclist died and his pillion passenger, the claimant, suffered serious injuries. The trial was to determine liability between the estate of the motorcyclist, the first defendant, and the driver of the Vectra, the second defendant.

The claimant was blameless. The question was who out of the first and second defendant was responsible for the accident. The first defendant’s case was that the second defendant drove onto his side of the road; the second defendant contended the exact opposite, that the first defendant in fact strayed onto his side of the road. Accordingly, the issue determinative of liability was the relative positioning of the vehicles at the time of the accident. The Judge concluded none of the lay witnesses were able to assist on the positioning of the vehicles at the time of the accident. HHJ Sephoton KC had to rely on the expert evidence as to the positioning of the vehicle to determine liability.

Opening Comment

The judgment is notable for its excoriating comments regarding the second defendant’s accident reconstruction expert. It is also worth noting that even though the Judge found as fact that the first defendant had been driving his motorcycle at “slightly over the speed limit of 60 mph”, the first defendant was absolved of all liability for the accident.

The Lay Evidence

The second defendant, the driver of the Vectra, gave evidence that the accident occurred when he was “in the box”. It was submitted on his behalf that it had not been put to him in cross-examination that he was on the incorrect side of the road at the time of the collision and therefore the Judge was bound to accept that he was travelling on his side of the road at the time the accident happened. This submission was rejected as:

  • it was clear to the second defendant what was being suggested and he was given ample opportunity to respond;
  • even if he was unchallenged on this point, his evidence could not be accepted as accurate as it was inconsistent with the physical evidence which on any view indicated that the accident must have occurred “very close to the central white line”, and was inconsistent with the agreed evidence of a lay witness. The second defendant’s account was held to be unreliable.

The Judge had the benefit of the agreed written evidence of Carol Hendry and Donna Coy, motorists who were travelling south and north, respectively on the A15 at the time of the accident (although neither actually witnessed the moment of impact).

The Judge took from Carol Hendry’s evidence that the first defendant “was riding the motorcycle in a careful manner at slightly over the speed limit of 60 mph and that he had returned to his correct side of the road after he had overtaken her. He was just disappearing from view when Ms Hendry was at the Leasingham turn off.”

From Donna Coy’s evidence it was taken that “very shortly before the accident, the motorbike was on its correct side of the road but close to the central white line. The Vauxhall was travelling at about 50mph. It started drifting to its offside.”

Importantly, neither of these witnesses, whose evidence was agreed, were able to say on what side of the white line the collision occurred.

There was also live evidence from another couple who were driving on the A15. There evidence was rejected for a number of reasons: including giving accounts at odds with the agreed evidence and new accounts not mentioned in the police statements and ones which were inherently unlikely. There was also evidence from a passing pedestrian, Mr. Cook. He saw a car on the road and also witnessed the immediate aftermath of the collision. However, his evidence “did not significantly affect” the Judge’s view of what happened.

In short, none of the lay witnesses present were able to assist with where the vehicles were at the moment of impact, such that the Judge had to rely on the expert evidence.

The Judge had the benefit of evidence from three accident reconstruction experts, Mr Roberts (instructed by the claimant), Mr Davey (instructed by the first defendant) and Mr Green (instructed by the second defendant).

The Experts

Second Defendant’s Expert

The Judge “with some dismay” came to the conclusion that he was unable to rely on the evidence of Mr. Green. This was because he:

  • Advanced propositions of physics that were obviously incorrect. Errors which were compounded by his failure to admit that they were such in cross-examination.
  • Even more seriously “…he did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis.”
  • His theory was that there was an instantaneous turning of the car wheel through 90°, however, this was undermined by the fact that there was no mark on the road. This was pointed out by the other experts. However, when Mr Green was asked in cross-examination to account for the fact that there was no evidence on the road, he mentioned for the first time the theory that the wheel of the car may have been lifted off the road by the motorcycle tyre. The Judge commented: “It is very surprising that he had not raised this potential explanation during the experts’ discussion or in the joint statement. I formed the opinion that Mr Green made this explanation up as he was giving evidence.”
  • The Judge was also unimpressed by his answer that the other experts must have misunderstood him. The Judge commented: “…I am thus forced to the conclusion that in failing to explain to his fellow experts that they had misunderstood him, Mr Green has not complied with his obligation to help the court understand the expert evidence and in explaining his conduct to me, he has given inaccurate and unreliable evidence.”

Claimant’s & First Defendant’s Experts

The Judge was “mostly impressed by Mr Roberts’s evidence” but was unimpressed by the fact that he “was able to reach a conclusion about the angle of the grinding on the wheel rim and what the implications were using only the photograph and without undertaking a careful examination of the wheel rim. I was not convinced by this part of his evidence”.

The Judge was most impressed by the first defendant’s expert who “undertook a laser scan of the scene which all of the experts recognised was likely to provide the most accurate representation of the locus. Mr Davey carefully analysed the evidence and presented a fair and, to me, convincing account of the collision in his written and oral evidence. In giving his evidence, he was firm but not inflexible.”

The Decision

Accepting Mr Davey and Mr Robert’s evidence regarding the photographs and physical damage the Judge reached the conclusion:

“the collision occurred when Mr Howard’s motorcycle was on its correct side of the road. I have found that, at the moment of impact, Mr Howard was riding his motorcycle close to the broken white line that marked the edge of his carriageway. I accept the evidence of Donna Coy that there was room in the carriageway for Mr Howard to have moved to his nearside and thus to have avoided the accident. There is no allegation against Mr Howard that he drove too close to the centre line or that he should have moved to his nearside. In any event, I am not persuaded that Mr Howard was negligent in failing to do so. He probably realised that the Vauxhall was drifting across the road but he had no reason to suspect that the Vauxhall would continue to drift onto its incorrect side of the road. Once it was clear that the Vauxhall was likely to pose a danger, there was insufficient perception and reaction time for him to avoid the collision.”

Accordingly, the Second Defendant was found 100% liable for the index accident.

Concluding Comments

The are a number of practice points to note from this judgment:

  • It is trite, but it is essential that your expert understands and complies with the requirements of CPR Part 35;
  • Always ensure that your expert deals with all of the material evidence, including that which doesn’t support your case;
  • Ensure your expert’s theories are logically defensible and properly explained to the other experts at the time of joint statements;
  • If possible, get your expert to undertake a physical examination of the relevant evidence rather than just relying on photos (Mr Roberts was criticized for this) but the Judge was impressed by the laser scanning which had been undertaken by Mr. Davey.

The other interesting point to note is that travelling in excess of the speed limit will not automatically lead to a finding of negligence. In this case it was found that travelling slightly above the speed limit did not translate to a reasonably foreseeable risk of harm to the claimant, the first defendant’s pillion passenger and any excess speed was not causative of the collision. The Judge accepted the evidence of “Mr Roberts that there would be little difference in the impact forces, damage and post-impact movement had the Kawasaki been travelling at 60 rather than 70 mph.”