England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT AND FARNHAM COUNTY COURT
Mr District Judge King
Claim No: 8AF00448

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/07/2010

Lord Justice Rimer :

Introduction

1. This is an appeal by Melissa Davies and her two minor children, Owen and Catryn. Mrs Davies is the widow of Dylan Davies, who died aged 32 as the result of a tragic road traffic accident that happened on Sunday 19 June 2005 at, the judge said, about 6.30 pm, although all the evidence suggests that it was in fact an hour or so later. The incident involved three motorcycles and a car. Mr Davies was riding one motorcycle and the defendant, Wesley Pay, another. Mrs Davies and her two children (for whom she acts as litigation friend) sued Mr Pay under the Fatal Accidents Act and on behalf of Mr Davies' estate, claiming that it was his negligent riding that had caused the fatal accident.
2. The trial, on liability alone, took place over four years later, on 6 and 7 August 2009, in the Aldershot and Farnham County Court before District Judge King, who gave his extempore judgment on the second day. He found that Mr Davies' accident was caused by his own negligent riding and dismissed the claim. He refused permission to appeal but Sir Richard Buxton granted it on a renewed application, explaining that, whilst the proposed challenge to the judge's findings of fact would, for familiar reasons, not be easy, there was here a case for an appellate review of their soundness. We have had the advantage of cogent arguments from Mr Cairnes and Mr Audland for the appellants and respondent respectively, both of whom also appeared at the trial.

The facts

3. The accident happened on a light summer evening. The weather was fine and sunny, visibility was good and the road surface dry. Mr Pay, Mr Davies and Darren Walters, colleagues in HM Forces, were out on their motorcycles for a pleasure run. Immediately before the accident, they were riding in what the judge described as 'in convoy in a line'. Mr Pay, first in the line, was riding a red 1000cc Yamaha R1; Mr Davies, second, a red 600cc Yamaha, R6; and Mr Walters, third, a blue 750cc Suzuki. They were on the southbound carriageway of the B3103, the Minley Road, which runs through a wooded area from Yateley Common towards Fleet, and were approaching a left-hand bend. As they were doing so, Ian Hawkins, a 34 year old aircraft engineer in the RAF, was driving his Renault Laguna in the opposite direction on the northbound carriageway and was approaching the same bend: from his perspective, a right-hand bend.
4. Three collisions followed in rapid succession. The first involved Mr Pay. He admitted in his police statement to being a 'fair weather rider' and it was accepted by all parties that as he sought to round the bend he was riding too fast and negligently (he pleaded guilty at Aldershot Magistrates Court to driving without due care). As he rounded the bend, his speed was such that he crossed the double white lines on a path that would have resulted in a collision with the Renault had not Mr Hawkins taken the avoidance action that he did by immediately swerving his car to his right towards the southbound carriageway. Mr Pay continued across the wrong side of the road, passed the nearside of the Renault and crashed into a tree on the verge of the northbound carriageway, following which his bike bounced back onto the carriageway. He was fortunate to be able to walk away from the accident without suffering serious injury.
5. The second collision was that affecting Mr Davies, riding behind Mr Pay. Put shortly, he came off his bike shortly before both he and it collided with the Renault and, as the judge put it, Mr Davies then ricocheted back across onto his side of the road.
6. The third collision involved Mr Walters, riding behind Mr Davies, and who, as he came round the bend, ran over Mr Davies, by then lying on the road. Mr Walters was also fortunate to suffer no serious injury. Mr Davies, however, sustained serious injuries from the second and third collisions and died the following day.
7. No criticism has been or is made of Mr Hawkins' actions taken to avoid a collision with Mr Pay and then to take the immediate corrective action that he did in order to avoid the presentation of a hazard to southbound traffic. Nor was or is any criticism made of Mr Walters' manner of riding his motorcycle as he approached and rounded the bend. It was accepted at the trial that both Mr Hawkins and Mr Walters did all they could to avoid the collisions in which they were involved and acted with appropriate care and skill. Mr Pay, whilst admitting that his negligence had caused his own accident, denied that it had also caused Mr Davies' accident.

The parties' respective cases at the trial

8. The claimants' case was that as Mr Davies was exiting the bend, he was confronted by the Renault which, as a result of Mr Pay's negligence, was travelling either in or towards the southbound carriageway and so presenting a hazard to southbound traffic. It was said that this in turn caused Mr Davies to brake and lose control of his motorcycle.
9. Mr Pay's case was that, by the time Mr Davies came into view of the Renault, the car was in its correct carriageway and angled towards its nearside and thus away from the southbound carriageway. It followed that it did not present Mr Davies with any danger and cannot reasonably have caused him to brake hard or to lose control of his motorcycle. It was not for Mr Pay to prove why Mr Davies lost control but the probable explanation was that he had either misjudged the severity of the bend or had entered it at a speed that was too fast for its safe negotiation. He realised that he was going to travel into the path of the Renault, braked, lost control and crossed into the northbound carriageway where he collided with the Renault.

The judge's findings

10. The judge had no oral evidence on behalf of the claimants, but did have an unchallenged witness statement from Mrs Davies. Nor did he have any oral evidence from Mr Pay. The only oral evidence he heard from those involved in the incidents was from Mr Hawkins and Mr Walters, whom the judge found to be truthful witnesses doing their best to give an accurate and measured view of what had happened despite the difficulty of doing so given the four-year passage of time since the accident, which had happened in a matter of seconds.
11. The judge summarised Mr Walters' evidence, who was riding behind Mr Davies. He thought they were all proceeding at about 50 mph and that the bikes were some two to three car lengths apart. He saw Mr Pay's bike going across the road towards the fence on the other side. He then saw Mr Davies' brake lights go on and put his own brakes on. All of a sudden, he saw Mr Davies' bike become unstable as he 'low-sided' it. Mr Walters did not know why Mr Davies did that. He saw the bike go down on its side, sliding along the double white lines, twisting as it went. Mr Walters was himself braking at that point and it was then that he remembered seeing the Renault. He knew that Mr Davies was going to hit it and that he, Mr Walters, was not. The next thing he saw was Mr Davies bouncing off the Renault in front of him. There was nothing he could do to avoid colliding with him. As to the position of the Renault, he thought it had moved slightly towards the centre line of the road, so as to avoid Mr Pay's bike, but had not crossed the central white lines.
12. The judge also summarised Mr Hawkins' evidence. Mr Hawkins' immediate impression after Mr Pay had gone past him and he had seen the other bikes, was that the second bike (Mr Davies') had overshot the corner. He explained in cross-examination that he had to make a split second decision to avoid a collision with Mr Pay. He had to swerve to the right and then immediately back to the left, leaving himself in a position that he would not have been in but for what had happened, but explaining that he was not across the white lines. He said that Mr Davies could have seen him in an incorrect position but he could not say one way or the other whether he did. He said much the same in re-examination.
13. The judge accepted Mr Hawkins' evidence and found that 'at all material times' he was on his own side of the carriageway. He found that he instinctively swerved right to avoid Mr Pay, then immediately swerved back to the left and first saw Mr Davies when completing that manoeuvre. He found that it was possible that at that point his car was closer to the centre position than he would have chosen to have driven but not so close as to cause a hazard to oncoming traffic. The judge accepted Mr Hawkins' evidence that his first impression was that Mr Davies was overshooting, meaning that he was following the same line and making the same error as Mr Pay.
14. The judge recorded that he was asked by Mr Cairnes to find that Mr Davies was travelling at an appropriate speed, either the same as or slower than Mr Walters' speed. This submission was in part based on evidence to the effect that Mr Davies was an experienced and careful driver. He had passed his motorcycle test two years before and had some 13 years' experience as a car driver. He was, as was not disputed, a quiet, calm and focused man, who was wearing the correct equipment on the day and was the only one of the three riders with a compliant visor on his helmet. It was also not disputed that, whereas Mr Pay's bike was found to be fourth gear, Mr Davies rounded the bend in second.
15. The judge had regard to these matters but observed that even the most experienced and careful people can react in a negligent manner on occasion. He said that this was obviously a difficult bend and felt unable to make the finding that he was invited to make, namely that Mr Davies was approaching at an appropriate speed. He also said that there was no evidence telling him at what speed the bikes were travelling and he had no more to go on than the witnesses' own estimations. He said that Mr Walters' evidence that the three bikes were travelling two to three car lengths apart suggested, albeit not conclusively, that they were travelling at a similar speed. The judge pointed out that the distances between the bikes at which they were said to be travelling was well below that recommended by the Highway Code. His overall conclusion was that, even though Mr Davies was in second gear rather than fourth, he and Mr Pay were travelling at similar speeds. This was a significant bend, with chevrons to mark it, which the bikers were approaching too quickly and too close to one another. Mr Pay negligently overshot the bend. The judge found that Mr Davies did so as well, as was Mr Hawkins' initial view. Mr Pay, by a combination of Mr Hawkins' skill and his own good luck, avoided a collision. Mr Davies, by a combination of bad luck and the choices he made to meet the situation – as described by Mr Walters – could not avoid crossing to the wrong side of the road, colliding with the Renault and then, in consequence, suffering the collision with Mr Walters. Mr Walters himself, although travelling at a similar speed had a greater time for reaction for the corner.
16. The judge's conclusion was therefore that the accident leading to Mr Davies' fatal injuries arose from his own actions. It was these that caused the accident, not Mr Pay's negligence. He accordingly dismissed the claim.

The appeal

17. There are two grounds of appeal of which the first is that the judge is said to have failed to take account of various material circumstances pointing to a different overall conclusion. They were: (i) Mr Davies' clean driving record, his character and experience with vehicles; (ii) that he had been travelling in second gear, whereas Mr Pay had been in fourth; (iii) that the accepted evidence of Mr Walters was inconsistent with the finding that Mr Davies was travelling at a similar speed and on the same line as Mr Pay; (iv) the accepted contemporaneous evidence of Mr Hawkins that he had to take evasive action to avoid Mr Davies and that it was when he began to correct his position that he first saw Mr Davies; and (v) the accepted contemporaneous evidence of Mr Hawkins that he was unable to guess the speed at which Mr Davies was travelling. The second ground of appeal deploys the same points in support of an assertion that the judge's decision to arrive at the conclusion he did without having proper regard to them was perverse.
18. If there is any substance in the first ground of appeal, the appellants do not need the second. If there is none in the first, there can be none in the second. Mr Cairnes sensibly devoted himself to developing the first ground. In doing so, he referred in particular to the various accounts of the accident given by Mr Hawkins and Mr Walters and submitted that a fair assessment of them invited the inference that the judge was in error in accepting Mr Hawkins' evidence in the unqualified way that he did; and in error in failing to factor into his assessment of the accident the consideration that immediately before his collision Mr Davies was riding into a scene of a near-collision as a result of which Mr Hawkins had been compelled to take evasive action by moving towards the southbound carriageway and thereby presenting a potential hazard to southbound traffic - a circumstance which would inevitably also cause Mr Davies to take immediate protective evasive action himself, which he did, with the consequences that followed. To explain the submission, I should refer first more fully to the accounts given by each of Mr Hawkins and Mr Walters.

Mr Hawkins' evidence

19. This comprised (i) his statement to the police made on 19 June 2005, the day of the accident, (ii) his witness statement prepared for the trial, and (iii) his oral evidence given at the trial, of which we have a transcript.
20. In his police statement, Mr Hawkins explained that he had held a driving licence for 17 years and also had a full motorcycle licence. As he approached the right-hand bend, he saw Mr Pay's bike approaching and thought at first that it had cut the corner, meaning that it had drifted onto the northbound carriageway. Mr Hawkins applied his brakes, the bike continued the drift and as Mr Hawkins thought it would collide with the front of his car he immediately swerved to the right, being unsure whether at that point he released the brakes. He saw Mr Pay's bike passing his nearside, narrowly missing his front near side wing. He then said:

'At this point I lost sight of this rider and bike, I immediately began to correct my position swerving back tight to the nearside verge. As I started to correct my position two more motorbikes came out of the apex of my right hand bend, I believe these two were travelling approx side by side. I know that the bike that was travelling in the middle of the carriageway was a Red one [that was Mr Davies' bike] … I believe that the bike travelling on the opposite side was a Blue Suzuki motorcycle. The Red bike left the apex of the bend and basically repeated the route taken by the Red Yamaha R1 [Mr Pay's bike]. At this point I was applying heavy pressure to my brakes in order to stop. I noted that the rider of the Red motorcycle was leaning the bike to his left attempting to take the corner at this point he had crossed the double lines in the centre of the carriageway. I would estimate that when the Red bike was a matter of yards from the front of my vehicle, the rider fell to his left side the next thing I heard was a loud bang. I believe that the bike struck the centre of the front of my vehicle, my vehicle then stopped abruptly. I lost sight of the Blue Suzuki motorcycle during the impact of the Red motorcycle.'

Mr Hawkins added that the incident had occurred so quickly that he was unable to guess the speed at which the motorcycles were travelling.

21. Mr Hawkins' witness statement for the trial, made on 15 October 2008, exhibited a copy of his earlier police statement. He repeated that he could not give an exact estimate of the speed at which the motorcycles were travelling. He said he was traumatized by the events of that day for some time. He could not understand how the motorcycles had overshot the bend. Some months later he tested the matter himself, riding his motorcycle along the same road in the southerly direction that the motorcyclists had taken. He rode at 60 mph, the speed limit, and cruised around the bend easily, which suggested to him that the motorcyclists must have been travelling faster. As regards the position of the motorcyclists when he saw them, he said this in his statement:

'6. … when I first saw them I was approaching the bend as I saw the first motorcyclist, Mr Pay, appear around it. I could see him leaning over on his motorcycle and I realized he was on my side of the carriageway. I knew he would not be able to correct his position so I swerved to the right to allow him to pass down my nearside. As soon as I saw his motorcycle pass my car I brought the car back to my side of the road. I say this because when I saw Mr Pay I allowed my vehicle to cross the centre white line to allow Mr Pay to pass. I cannot say how far over the white line but I reiterate as soon as Mr Pay passed I corrected my steering and brought the vehicle back to the correct carriageway.

7. I was back in the correct carriageway still approaching the bend when the next two motorcyclists came around the bend. I had thought that they came round side by side but this was obviously an optical illusion from my position in the road because it seems from the forensic evidence that they would not have been.

8. In my opinion Mr Davies was going at a similar speed to Mr Pay. It was obvious he was also going to overshoot. As he came towards me he dropped his machine to one side, I suppose to try and bring the machine around the bend. He was on my side of the carriageway. In my opinion, it was the speed at which he rounded the bend, coupled with the dropping of his machine to one side which caused him to lose control and part company with his motorcycle. In my experience you can lean a motorcycle to about 45 degrees, after that it will simply fall over.

9. Therefore I trust this makes it clear that at the time I first saw Mr Davies' motorcycle I was on the correct side of the road….' [Emphasis supplied]

22. Turning to Mr Hawkins' oral evidence at the trial, he confirmed in chief the accuracy of his police statement. He said that, upon seeing Mr Pay crossing his path his immediate and instinctive reaction was to swerve to the right out of his way and quickly swerve back again 'as he flashed by the side of my eye'. In elaboration of the first sentence of his paragraph 7, he said he would still have been moving to his left when he noticed the other two riders, having just got back onto his side of the road; and in re-examination he again said that when they first came into view he believed he was just back onto his side of the carriageway but would have been trying to get further across to the verge. In cross-examination he re-confirmed that he stood by his police statement. He agreed that his split-second decision made in order to avoid Mr Pay required him to adopt a position on the carriageway that he 'most definitely' would not ordinarily have adopted, putting his car in a position that a vehicle coming in the opposite direction would not expect. He agreed that he immediately swerved back to his nearside because otherwise he would present a hazard to any oncoming traffic. He agreed that in his police statement he had said that it was as he started to correct his position that Mr Davies came towards him and he agreed that he was therefore then still in the process of moving his car from its potentially hazardous position. To the question whether Mr Davies 'probably first saw you presenting an unusual hazard in terms of your position on the road,' he replied that 'that is how it could possibly have seemed', explaining in response to further questions that he could not know when Mr Davies first saw him.

Mr Walters' evidence

23. Mr Walters' police statement was also made on 19 June 2005. He said that the three of them would have been doing 'roughly 50 mph … Maybe a touch over' on the Minley Road. The traffic was quiet. He said that through the first bend on the road they would have been doing about 30/35 mph and through the rest they were maybe doing 40/45 mph. He was not sure what distance was being kept between Mr Davies and Mr Pay but there were perhaps two to three car lengths between himself and Mr Davies.
24. Mr Walters gave this account of the accident to the police:

'… we were coming down into Minley Road and we were dropping speed off for the bends. Going to the first bend I caught up to Dylan [Mr Davies] a little bit. He braked earlier than what I did. So I had made up a car length or so. I then … it was just following him round and then we come round a right hand going into the long left hander, … I remember obviously looking ahead as far as you can and I remember seeing Wes's [Mr Pay's] bike and his back wheel just a plume of smoke or dust come up from the bottom of it and I saw him go straight on … going towards the fence and then I thought, "Oh my God he's coming off." So I hadn't focussed on what Dylan was doing. I was just braking going … "He's coming off, we'll have to stop" all through my head it's all going really quick and then the next second I was looking in front of me and obviously Dylan's put his brake lights on, I'm on my brakes quite hard and I don't know why but Dylan just dropped his bike and went across the double white lines, sliding with it. And the bike was slightly twisting as well. So as it was going in it was twisting and then I remember seeing the car. And I was braking and I knew he was going to hit the car and I was coming up level … I thought, I'm not going to hit the car, the bikes to the far side of the car Dylan's going to be over there. I let my hand off the brake so I could steer round the corner easier and next thing is Dylan's bounced off the car and he's bounced in front of me and there was nothing I could do. He was just in front of me like … 3 or 4 feet and I just rode over him. And then I rode over him that knocked my bike off to the left. As I went down I hit … I hit the bike. I'm sure I hit the floor because I remember the helmet smashing me in the face. I don't remember much and then lying at the side of the road and then … or what's happened. And then remembering and just trying to move and get up and see how Dylan was.'

25. Later in the statement, Mr Walters said that, when he saw Mr Davies fall to the ground, the Renault was on its side of the road, and he said that he thought it had moved slightly to the centre of the road in order to avoid Mr Pay. He did not know why Mr Davies had come off 'but he'd gone straight on'. Mr Walters repeated that the Renault had not crossed the centre line at all. He said he thought Mr Pay had been riding at about 50 mph, 'It was quite quick, yeah.' He thought that Mr Davies was about two to three car lengths behind Mr Pay and that he was travelling at about the same speed, or 50 mph. He said that he, Mr Walters, was about two to three car lengths behind Mr Davies. He said that 'all I can think is that he's been fixated at looking at Wes crash and not where he was going. No fault of his own. I mean I did it. I was … but I was on more of a straighter edge.'
26. In his witness statement for the trial (made on 18 December 2008) Mr Walters said much the same as he had in his police statement. He said:

'12. I have been asked to describe when I first saw the car coming in the opposite direction. All I can say is that I saw Wesley's bike go across the road, the car was coming, Wesley passed him and that is when I saw Dylan go on the floor and then I saw the car again. I was just concentrating on what I was doing. …

13. I cannot say with accuracy what speeds we were travelling. I would guess that Wesley was doing about 50 mph. …

14. I think Dylan was two to three car lengths behind Wes and would also have been travelling about the same speed. I was about two or three car lengths behind Dylan. I think we were all following the same lines for the bends. The first one goes and the next one just follows on. It's like follow the leader.'

27. In his oral evidence he said in chief that he had ridden the same type of bike that Mr Davies was riding, a Yamaha R6, and that it could get up to 60 or 65 mph in second gear. He also explained that when he braked on seeing Mr Davies brake, he was still about two to three car lengths behind him and was on the same sort of line, one closer to the central white line than to the verge. He said he was on the straight part of the road and so his bike was vertical. His evidence had been that he remembered Mr Davies braking as he was leaning over. In cross-examination, he confirmed the accuracy of what he had said in his police statement. He confirmed that a motorcyclist, like a car-driver, uses his gears to brake the speed and that in approaching a bend such as this one, marked as it was with chevrons, a motorcyclist would change down, and that the lowest gear to which he would normally so change would be second (Mr Davies' bike had six gears). He said that it was reasonable to infer that Mr Davies was not riding any faster than he was.

The submissions

28. Mr Cairnes' submission was that the judge fell into error in concluding that Mr Davies was negotiating the bend as negligently as Mr Pay. For one thing, that would be an improbable coincidence. For another, it was a conclusion that paid insufficient regard to the evidence as to the care with which Mr Davies ordinarily rode his bike. Most importantly, it omitted to take express account of what Mr Cairnes referred to as the elephant in the room, namely the effect that the Hawkins/Pay incident must have had upon Mr Davies as he drove into the scene and witnessed all that was happening immediately before him. A probable inference from the sequence of events proved by the evidence was that the sight of the Pay/Hawkins incident, and in particular the sight of the Renault in a hazardous position, had caused Mr Davies to take instantaneous protective action, resulting in the tragic consequences that followed.
29. As to the last point, the judge made an important finding in paragraph 26 of his judgment that Mr Hawkins first saw Mr Davies when he was completing the manoeuvre by which he swerved first to the centre of the road and then back to the left again. He appears therefore to have found that it was at the point at which the Renault was once again in a non-hazardous position that Mr Hawkins first saw Mr Davies, his impression being that, like Mr Pay, Mr Davies was also overshooting.
30. The unspoken assumption underlying the judge's finding as to liability was that it was also at that point that Mr Davies first saw the Renault – namely, when it was in a non-hazardous position. Mr Cairnes said that the fallacy in that is that it simply does not follow that it was also then that Mr Davies first saw the Renault. Mr Hawkins had himself conceded that it was possible that when Mr Davies first saw the Renault, it was still out of position: meaning in a position presenting a hazard to southbound traffic. Mr Walters' evidence, from position three in the line, was that he saw the Pay incident and so Mr Davies, who was ahead of him, must also have seen it. The judge twice affirmed that no criticism was or could be levelled at the manner in which Mr Walters was negotiating the bend; he negotiated it safely and his evidence was that Mr Davies was going no faster than he was. Mr Walters' evidence was also that Mr Davies put his bike down deliberately and the undisputed positions of the consequential scratch marks on the road show that he did so when still on the southbound carriageway, although his bike then slid across the road. Mr Hawkins' evidence that Mr Davies had followed the same route as Mr Pay and had crossed the white lines when he heeled the bike was inconsistent with this and, to that extent, unreliable: Mr Davies had put his bike down earlier.
31. Mr Audland, in response, said that the claimants had accepted at the trial that they had to prove that the Renault was either in the southbound carriageway or else coming towards it (the former case was both pleaded and argued, and in paragraph 6 of his witness statement Mr Hawkins accepted that he had briefly crossed the white lines). Their case was, therefore, that they had to prove that Mr Davies was reacting to a hazard of one or other nature. The judge found, however, that Mr Hawkins was on his side of the road 'at all material times' – which was ultimately also Mr Hawkins' oral evidence. Mr Audland referred to Mr Hawkins' evidence in re-examination that he believed he was 'only just back on my side of the carriageway' when the bikes ridden by Mr Davies and Mr Walters came into view. Mr Audland accepted that the judge proceeded on the basis that Mr Davies first saw the Renault at the same moment that Mr Hawkins first saw him but submitted that it was a safe inference for the judge to draw. Even though everything happened in split seconds, the tenor of Mr Hawkins' evidence was that he saw everything that happened.
32. Moreover, said Mr Audland, it was for the claimants to prove that Mr Davies was reacting to a hazard created by Mr Pay's negligence, which they failed to do. Mr Cairnes' point that, because Mr Walters saw it all, Mr Davies must also have seen it all was fallacious. He referred to the passage from Mr Walters' police statement that I have earlier quoted and, in particular, to the passage in it apparently reflecting that Mr Walters saw Mr Pay going across the road and Mr Davies putting his bike down before he saw the Renault (note the '… and then I remember seeing the car'). Both Mr Hawkins and Mr Walters said that Mr Davies was travelling at the same speed and on the same line as Mr Pay and so it was easy for the judge to conclude that Mr Davies did not lose control because of his reaction to a hazard that suddenly appeared before him. The claimants simply failed to prove that his accident was the result of such a reaction. The judge had to, and did, decide the case on the evidence before him.
33. Mr Cairnes' rejoinder to the point that Mr Walters only saw the car after seeing Mr Pay going off course and Mr Davies putting his bike down was that it was an incorrect inference from Mr Walters' evidence as a whole. He also pointed out that in his police statement (confirmed as accurate at the trial), Mr Hawkins had accepted that it was only as he 'started to correct [his] position' that the second and third bikes appeared.

Discussion and conclusion

34. Mr Cairnes' written argument covered a number of additional points but the heart of the appeal turned on the issues I have summarised. I can express my views relatively shortly.
35. It was of course for the claimants to prove their case on the facts, meaning that it was for them to prove on the balance of probability that Mr Davies' accident was caused at least in part by his reaction to a hazardous situation created by Mr Pay's negligent riding. The only hazard with which it is suggested Mr Davies was presented was the Renault, one created by Mr Hawkins' instinctive swerve to his right in order to avoid Mr Pay and promptly followed by a corrective swerve to the left that took him back on to the northbound carriageway. Mr Hawkins admitted that he had crossed the white lines and that he had at one point been in a position which he would 'most definitely' not ordinarily adopt. He recognised that that position had presented a hazard to southbound traffic.
36. There are in my view three matters of concern about the judge's conclusions. First, I interpret him as finding that Mr Davies overshot the bend in the like manner as Mr Pay and I infer that that finding was materially based on Mr Hawkins' evidence that Mr Davies had, like Mr Pay, already crossed the white lines on to the northbound carriageway when he began to put his bike down. If that evidence was reliable, it might well have provided a solid basis for the finding. For reasons I have mentioned, however, the finding is apparently inconsistent with the inference that can be drawn from the undisputed road markings showing that Mr Davies put his bike down whilst still on the southbound carriageway. They suggest that Mr Davies probably did not cross the central lines in the way that Mr Pay did, but took emergency avoidance action at an earlier point. In making his findings, the judge did not give any apparent consideration to the inference to be drawn from the road markings.
37. Second, the judge apparently proceeded on the basis that Mr Davies must have seen the Renault no earlier than Mr Hawkins claims to have seen him – namely, according to Mr Hawkins, when he had completed his corrective manoeuvre. If so, the logic of the judge's reasoning is that at that point the Renault no longer represented any hazard to southbound traffic – nor would Mr Davies ever have perceived it as doing so – and so the only explanation for the fact the accident that then occurred was the need for Mr Davies to take emergency action so as to avoid the peril into which he realised that his own negligent riding would otherwise lead him. I agree with Mr Cairnes, however, that that reasoning is fallacious and even Mr Hawkins recognised that it was possible that Mr Davies had first seen the Renault when it was apparently still presenting a hazard to southbound traffic. If he had so seen it, then an explanation for his actions is that he was attempting to avoid that hazard – one created by Mr Pay's negligence. The judge gave no apparent consideration to this.
38. Third, I have reservations as to the judge's finding that Mr Davies was riding at the same inappropriate speed as was Mr Pay. The primary evidence for that finding was, I infer, Mr Hawkins' evidence that Mr Davies had, like Mr Pay, crossed onto the northbound carriageway before he put his bike down. The questionable reliability of that evidence casts doubt on this factual conclusion.
39. For these three reasons I consider that the judge's overall conclusion that Mr Davies was solely responsible for his own accident was therefore based in part on a fallacious assumption and in part on an acceptance of questionable evidence from Mr Hawkins. He did not conduct a sufficient review of the evidence in coming to his overall conclusion. In such circumstances I consider that his decision cannot be allowed to stand and must be set aside.
40. Were we to take that view, we were invited by Mr Cairnes also to go the further distance of substituting for the judge's findings a finding of our own that Mr Davies' accident was wholly caused by Mr Pay's negligence. It was said that we have all the primary evidence enabling us to make that finding and that we are in that respect in as good a position to do so as was the judge. Attracted though I am to a wish to bring this litigation to the finality that that course would enable, I am distinctly uneasy about taking on such a fact finding exercise, which is of course primarily one for a trial judge. Nor do I consider that the task is as easy as is suggested. Even if I felt able, for example, to conclude on the probabilities that Mr Davies first saw the Renault when it was in a hazardous position and thus took the action he did by way of defensive reaction, it does not necessarily also follow that he was not anyway riding dangerously fast and thus at a speed that prevented a safe avoidance of the hazard. The answers to the relevant questions require a considered weighing of all the relevant evidence followed by the making of reasoned findings on the factual issues. My concern about the judge's decision is that he did not do that. Nor in my view is this court in a position to perform the exercise either, being one that in part requires the making of findings of primary fact. In my judgment there is no alternative to the remission of the case to the county court for a new trial before a different judge.
41. I would accordingly allow the appeal, set aside the judge's judgment and so remit the case. I consider that the re-trial should be before a Circuit Judge. I need perhaps hardly add that nothing that I have said should be interpreted as intended in any way to constrain the fact finding exercise of such judge.

Lady Justice Smith :

42. I agree.

Lord Justice Laws :

43. I also agree.