GORDON M****

SETTLEMENT REPORT

Excess speed by motorcyclist
Use of accident reconstruction experts
Part 36 offers

1. Mr Gordon M**** was born in 1964 and so was 33 at the date of the accident in October 1998. He was 35 at the date of settlement of liability in June 2000.
2. Mr M**** was riding his nearly new Kawasaki Ninja 900 cc motorbike along a smallish A road in Lancashire in the middle of the morning, when it was clearly daylight. He passed through a 30 mph limit in a small village or town and, when the speed limit changed to 50 mph, he accelerated to a speed well over 50, possibly somewhere in the mid 60s. As he approached a side road on his left, leading to business premises, a car pulled out, causing him to brake hard, skid, and lay the bike down (meaning that the bike fell to the ground on the same side as Mr M****). The bike missed the car, which had stopped in the nearside carriageway, but tragically Mr M**** slid along the ground into the front offside wheel of the car, causing severe injury to the spinal cord.
3. Bearing in mind the bike's speed, and the slow emergence of the car from the side road, it might be thought that, although primary liability would be established against the driver (aged about 75), for emerging into the main road when it was not safe, there would be a large proportion of blame on Mr M****, for going so fast.
4. Because I love motorbikes, and am almost always sympathetic to the biker's point of view, I was keen to hear the claimant's explanation of how the accident happened. His account was that, as he came out of the 30 mph limit, he saw the car approaching the junction with the main road, where it stopped for long enough to see the oncoming bike. That gave him the impression that the driver had seen him, and that it was safe to accelerate, which he then did. In that sense, he was misled by the actions of the driver, lulling him into the belief that he had been seen, and that the car was waiting for him.
5. We obtained an excellent accident reconstruction report from Mr Peter Sorton. There is a commonly expressed opinion nowadays that such reports are not required, not helpful, and disapproved by judges. I disagree fundamentally with that, if it is thought to be a generally applicable rule. I often find that they are extremely helpful, and this case was a good example. The expert was able to say that the claimant probably was riding at about 65 mph when he saw the need to take emergency action; that immediately meant that we could not be under any illusions about speed. He also concluded that the rider probably reacted promptly once the car pulled out into the road, and therefore any suggestion that the claimant was head down, in a racing position was unlikely to succeed. The field of view was established as being over 100 metres, and the expert considered that the bike was within the view of the driver for about 3 seconds before the driver set off out of the junction into the main road, and into the path of the claimant. That negatived the allegation, which is so frequently made against bikers, that the motorcycle was not in sight when the car started to pull out.
6. There was an additional line of argument to be considered, namely whether the claimant would have been injured severely had he been riding at or about the speed limit of 50 mph. Our expert was helpful on that point also, dealing in his report with the likely speed of impact if the bike had been doing 50 when the car drove out. Sadly, the impact would have still been at a high speed.
7. Eight weeks before the trial on liability, the defence solicitors made a Part 36 offer to agree liability at two thirds against the driver. On the same date as that offer was made, they said that, following a consultation with leading counsel, they had decided that primary liability "should properly remain in issue", despite the conviction for careless driving recorded against the defendant. We felt that we had a chance of winning outright, but I always have to remember that not many judges are as keen on motorbikes as I am! A speed 15 mph in excess of the speed limit, if that is what the judge decided, would be difficult to explain away, and so we agreed to offer to accept 80% of full liability. That offer was duly made under Part 36 of the Civil Procedure Rules, and accepted about three weeks later, six days before trial.

24th December 2000

BILL BRAITHWAITE Q.C.