England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
WINCHESTER DISTRICT REGISTRY

		Winchester Combined Court
		28/10/2011

Mrs Justice Cox :

1. On 29 October 2006 Michaela Devereux, the Claimant, was riding her horse in a north easterly direction along Lyndhurst Road, Homesley South in the New Forest. Her husband was behind her, riding his horse, and both horses were walking slowly along the road. As they rounded a shallow bend they encountered Peter Hayward, the Defendant, who was riding his Honda CB 900 motorbike in the opposite direction with a pillion passenger, David Sellen, on board.
2. It is not in dispute that, as the motorbike approached the Claimant, her horse turned round and bolted and the Claimant was thrown to the ground. She struck her head hard on the tarmac surface and sustained a traumatic injury to her brain.
3. However, the precise circumstances of this accident, and whether it was caused by negligence on the part of this Defendant, are very much in dispute in this case. The trial before me dealt with liability only. Although the Order of 29 September 2011 was that the trial should be confined to the issue of primary liability, the parties agreed that I should determine all liability issues, therefore including the extent to which, if primary liability is established, the Claimant was contributorily negligent, but excluding the issue of whether or not the wearing of appropriate, protective headgear by the Claimant would have lessened or avoided her injuries.
4. At trial I heard evidence from the Claimant and her husband, Stephen Devereux, and from the Defendant and his passenger, David Sellen. I also heard evidence from the Claimant's equestrian expert, Richard Meade OBE. There was an agreed bundle of documents, including the contents of the brief Police Accident Report and some photographs.
5. By way of general observation there is a lack of forensic material in this case, such as road or distance measurements, evidence as to damage sustained by the bike or accident reconstruction evidence. The photographs, whilst taken shortly after the accident and giving a general impression of the location and of the Defendant's bike, do not help in this respect. Photographic evidence can be misleading, in particular so far as measurements or distances are concerned. In a case which involves conflicting oral accounts as to what happened, this has made the Court's task more difficult, especially where it is common ground that everything happened very quickly.
6. The Claimant's case, essentially, is that the excessive noise and excessive speed of the approaching bike "spooked" the Claimant's horse and caused him to turn away, turning round in the road and preparing to take flight in the direction from which he had come. As the horse turned the Defendant lost control of his motorbike, which leaned and then fell over to the right. The driver and his passenger came off the bike, which went on to collide with the horse. As her horse bolted the Claimant was thrown to the ground. The Defendant was therefore negligent in failing to keep control of his motorbike, due in part to the speed at which he was travelling, and the Claimant was thrown because her horse bolted for that reason.
7. The Defendant's case is that, as soon as he saw the horses ahead of him, he pulled in the clutch, which reduced the noise level, and then just coasted towards them, reducing his speed and keeping to his side of the road. The Claimant's horse then suddenly reared up on its hind legs and turned to flee, so that the Claimant fell off. The Defendant instinctively steered to the left as the horse turned, struck the left hand verge with the front wheel of his bike and came to an abrupt stop, the bike remaining upright at all times. Neither he nor his passenger came off the bike and there was no collision with the horse. Therefore the Claimant's fall was not caused by any negligence on his part.
8. On the basis of all the evidence before me I find the following facts.

Background Facts

9. The Claimant and her husband are both keen, experienced horse riders, having owned and ridden horses in the New Forest for many years. Members of her family owned a riding school and the Claimant, now aged 42, grew up around horses, first learning to ride when she was a small child. In addition to being a British Horse Society Gold Member, as is her husband, the Claimant is also a New Forest practising commoner, giving her rights of access to the Forest.
10. At about mid-morning on Sunday, 29 October 2006 she and her husband decided to go for a ride in the Forest on two of their horses. They went to their field, prepared the horses and took them out of the gate, locking it behind them. They then proceeded to ride along Lyndhurst Road towards Homesley. It was a cloudy day and the road surface was slightly damp, but it was not raining.
11. Lyndhurst Road is a B road and it is the only road that leads from the Claimant's property to the Forest. The photographs show it to be a narrow country road, with a verge on either side and without any side or central markings, but it is wide enough for two cars travelling in opposite directions to pass each other. A gravel extraction site and two caravan parks are situated nearby so that, in addition to horses, there are often lorries, motorbikes, cars and caravans travelling along the road. The traffic is greater in the spring and summer, or at school holiday times, but in general this is a reasonably busy road in a popular tourist area.
12. The Claimant was riding her gelding, called Harry. She had owned him for approximately 14 months and had ridden him for what she described as "pony drifts" and "happy hacking" on at least five days each week over that period. He was her sole riding horse at this time.
13. The Claimant stated that he was not a nervous or sensitive horse. He had already been broken in when she bought him and she had never had to "despook" him. She had wanted to buy "a sensible Forester", a horse that could round up Forest ponies without becoming excited, and she had therefore deliberately bought an even-tempered animal that was already broken in.
14. On the evidence I find that this horse was generally calm, steady and reliable. He was well used to the Claimant riding him along Lyndhurst Road, with motorbikes, cars, caravans or gravel lorries driving past them, from both in front and behind. I accept her evidence that there had been no previous incident when her horse had been frightened, or had reacted badly to the presence of traffic on this road.
15. I find that the Claimant and her husband were riding in single-file along the road, with the Claimant in front, approximately four feet ahead of her husband. David Sellen's evidence was that he thought they were riding side by side when he saw them, but he was alone in that recollection and I consider him to be mistaken. The Defendant's evidence was that they were riding in single file at all times. The evidence of the Claimant and her husband was that they were riding in single file, on their side of the road and near to the verge, in accordance with their usual practice. I find that they were. The Claimant described them as just "plodding along", which the Defendant accepted, and I find that they were proceeding at a slow walking pace. They used this road as a "warm up" and "cool down" road before and after more vigorous exercise in the Forest itself.
16. As they approached the shallow bend in the road, the first thing that alerted the Claimant and her husband to the approach of the Defendant was the noise of his motorbike ahead of them. They both described it as extremely loud. Such was the noise that they both thought that more than one bike might be approaching. The Claimant commented to her husband, in strong language, that she hoped it was not coming their way.
17. There is no dispute that there was in fact only one bike, being driven along Lyndhurst Road by the Defendant towards the Claimant and her husband. The Defendant had lived in the area for some years and was familiar with this road. He was also aware that horses were often ridden along both that road and other roads in the area. He was driving his Honda CB 900 motorbike, manufactured in 1980, which he had owned for approximately seven years.
18. Approximately two or three years earlier, the Defendant had fitted this motorbike with a non-standard exhaust system, which was designed to emit more noise than the manufacturer's model. Notwithstanding the Defendant's somewhat truculent responses to questions in cross-examination as to it being described as a "non-standard" system, this fact was pleaded on his behalf in the Defence, which he had signed as correct, and I find that to be an accurate description.
19. Reports from noise experts instructed by the parties were inconclusive as to the precise level of sound being emitted at the time and neither party relied on this expert evidence at trial. On the evidence before me I find both that the exhaust was making a loud noise at the time, which is what caused the Claimant to comment as she did, and that the Defendant was aware of this. The reason he gave for fitting it was that he was a member of the MAG (Motorcycle Action Group) and that, in his view, "loud pipes save lives". Whatever the reason for fitting it, however, I find that the noise it was making at the time was very loud. After the accident and whilst still at the scene, the Defendant accepted that, when Mr Devereux commented on the loud noise of the approaching bike, he had said "it's not the quietest motorcycle in the world". I regard this as a clear indication of his awareness of the degree of noise it made.
20. In addition, it is not in dispute that the Defendant was driving along this road in excess of the speed limit which, at that point, is 40 mph. The Defendant was travelling, on his own admission, at about 45 mph as he drove along the straight and came into the bend.
21. He was at this point driving in the middle of his side of the road. There were no other vehicles behind him, and none was travelling towards him in the opposite direction.
22. Stephen Devereux stated that he thought he could hear the Defendant changing up through the gears as he approached, but that is not accepted by the Defendant and I am not satisfied that the Defendant was changing up at this point. Nothing seems to turn on this in any event.
23. As the motorbike approached the bend the noise became louder. Before the bike came into view the two horses had pricked up their ears, but they did not at this stage react any further to the noise. It was suggested to the Claimant in cross-examination that she was at this point worried about her horse and how he would react to the approaching motorbike. However, I accept her evidence that her concern related not to the risk of her horse being spooked, but to the potential misbehaviour towards them of those on the bike or bikes. On occasions in the past motorcyclists or car drivers had shouted verbal abuse or raised their fists to them as they drove past. I accept the Claimant's evidence that she was not unduly worried at this point, but was concerned as to the possibility of a further incident of this kind.
24. What happened next is the subject of conflicting oral testimony.

The Accident

25. The Claimant's witness statement, standing as her evidence in chief, is dated 15 December 2010, more than four years after the accident, in which she sustained a significant head injury. Due to her injuries she did not provide any account of events to the police who attended the scene, either at the scene of the accident itself or shortly afterwards.
26. There is no medical evidence before me as to the nature and extent of her injuries, but it is accepted that the Claimant suffered a fractured skull and an injury to her brain, including a bi-frontal contusion and right temporal extra dural bleed. She remained in intensive care at Southampton General Hospital for one week and was then transferred to Bournemouth Hospital. There appears to have been a period of approximately ten days post traumatic amnesia because, after the accident, the next thing the Claimant recalled was "waking up" in Bournemouth Hospital, by which time she had already been there for a few days.
27. The Claimant frankly accepted that her recollection of the accident was incomplete. She also accepted that she had since discussed what happened with her husband. Against that background I accept the submission of Mr Dignum, appearing for the Defendant, that I should approach her oral evidence as to how the accident happened with some caution.
28. Her account is that, as the motorbike came into view and was coming towards them, the driver appeared to lose control because he was going too fast and he drifted on to the wrong side of the road. The horses became startled as a result of the noise and the bike coming at speed towards them, and they turned away, as a natural reaction, turning round in a clockwise direction preparing to take flight and head for home.
29. The references in the Claimant's witness statement to the Defendant and his passenger then coming off the bike and to the bike colliding with the rear leg of her horse, causing it to kick out and throw her off are, she accepts, matters she has either been told about or has otherwise pieced together subsequently in an attempt to reconstruct what happened in her own mind.
30. When asked, during her evidence in chief, to describe her last memory of what she saw before she fell, she stated that she clearly recalled seeing the motorbike a few feet away from her, leaning over to the right as it approached her. This description does not appear in her witness statement and Mr Dignum submitted that this too is likely to be reconstruction on her part, and that it is wrong. However, the Claimant stated that she has always remembered seeing the bike leaning over in this way, as it came closer to her and as her horse was turning. After that, however, everything happened "in the blink of an eye" and she could recall nothing further.
31. Stephen Devereux stated that, as the motorbike came round the bend, the Defendant, who was driving fast, appeared to lose control and drifted onto their side of the road. When he was at a point approximately 15 feet away from them, both horses spun around on their hind legs to take flight, his horse turning slightly after the Claimant's horse. The horses turned to flee because they had been startled by both the noise and the fast approach of the motorbike. Neither horse reared up however and Mr Devereux stated that the front legs of each horse were raised only 3 - 4 inches off the ground as they turned.
32. The Defendant then completely lost control of the bike and came off it, as did his passenger. The bike fell over on its right side, continued on its path and seemed to go beneath the Claimant's horse, when its handlebars must have collided with the left hind leg of her horse, causing him to kick out and throw the Claimant from the saddle. Mr Devereux stated that he saw her falling, out of the corner of his eye, as his own horse turned to flee. The Claimant's horse then bolted, as did his, although he managed to bring his own horse under control. He then went after the Claimant's horse, to try and stop him before he reached the main road.
33. He succeeded in catching up with the Claimant's horse and calmed him down. He decided first to take both horses back to their field, which was closer to him than the accident location, and he then drove back to meet his wife. At that stage Mr Devereux had not appreciated that his wife had been seriously injured. On his return to the site, however, he saw that she was lying in the middle of the road and there was a pool of blood near her head, in the spot now shown on the photographs. She was attended to by paramedics before being taken to hospital.
34. In his evidence the Defendant stated that he was driving in the middle of his side of the road when, as he came round the bend, he saw the two horses walking very slowly in single file, approximately 100 yards ahead of him. He immediately pulled in the clutch and dipped the revs, which reduced the noise. In the witness box he stated that he was probably also starting to brake slightly at this point, and that he reduced his speed to approximately 20 to 25 mph over the course of the distance between himself and the horses.
35. He was therefore just "coasting" towards them and was still in the middle of his side of the road when suddenly, as he was almost level with the Claimant, her horse reared up on its hind legs and simultaneously spun around in a clockwise direction. He could sense that the horse was coming towards him, so he instinctively steered to the left. He then struck the left verge with his front wheel and came to an abrupt halt, with the rest of his bike still on the road. He stayed sitting on the bike, as did his passenger, but his head went forward and struck the handlebars.
36. By this stage the horses had bolted in the opposite direction from which they had come and the Claimant had fallen and was lying on the road more or less to the right of where his bike had stopped. The Defendant stated that he kept control of his bike and that there was no collision between his bike and the Claimant's horse, and indeed no contact at all between them at any stage.
37. David Sellen was employed at the same firm as the Defendant and was his assistant at the time of the accident. He had been a pillion passenger on the Defendant's bike on a number of previous occasions and he also rode a motorbike himself. The pillion seat on the Defendant's bike is raised slightly higher than the Defendant's seat and he said that he had quite a clear view over the Defendant's shoulder.
38. He stated that, as they came round the bend and saw the horses, they were about 75-80 yards away. The Defendant immediately pulled in the clutch and rolled down the throttle and, as a result, they started to slow down as they got closer to the horses. In the witness box he stated that, as they were coasting quite close to them, the Claimant's horse reared up on its hind legs and began to turn round clockwise, its front legs being about 3 or 4 feet up in the air. When the horse had turned about 45 degrees clockwise the Claimant was thrown off and she fell down the left side of the horse and landed in the middle of the road, striking her head. The Defendant had moved over to the left and, as the horse continued to turn round, its back end appeared to be coming towards them. The Defendant then steered to the left, hit the verge and stopped abruptly. Mr Sellen said that he had bumped into the back of the Defendant, whose head went forward and struck the handlebars.
39. There was no collision and no contact at all between the motorbike and the horse and the Defendant at no time lost control of his bike. Mr Sellen stated that, after it came to an abrupt halt, he had then "rolled off" the bike, but the Defendant had stayed firmly on it. By this stage both horses had bolted.
40. In his witness statement, advanced as his evidence in chief, Mr Sellen described the Claimant's horse as having "rotated about three times" after going up on its hind legs and throwing the Claimant off. In the witness box, however, he sought to clarify this, stating that although he had used the word "rotating" , what he had actually meant was that the horse had turned round clockwise to face the opposite direction in three stages. It was after the first, approximately 45 degrees of this turn that the Claimant was thrown.
41. The police and emergency medical services were called. The Defendant was interviewed under caution at the scene, approximately three hours after the accident, and criminal charges were laid against him, namely driving without due care and attention, and charges relating to the non-standard exhaust and noise being emitted at the time. However, all these proceedings were subsequently discontinued.
42. Whilst the paramedics were attending to the Claimant, and before the police arrived, Mr Sellen stated that he had lifted up the bike and moved it to the position it was in, on the Claimant's side of the road, when the photographs were taken about one or two hours after the accident. He had done this because he and the Defendant wished to see if the bike was damaged, or if it would be all right to continue to ride it. The position of the bike as shown in the photographs therefore gives no assistance as to the circumstances of this accident.
43. Given these conflicting oral accounts it is necessary to consider other evidence in the case, to see whether it can shed light on what occurred and, in particular, on whether there was a collision between bike and horse.
44. First, there is evidence of an injury being sustained by the Claimant's horse. The Defendant's case is that there was no contact at all between his bike and the Claimant's horse. Indeed, if the Defendant stayed on his side of the road, as he stated, and then veered to the left and into the verge as the horse turned round to take flight, it is hard to see how there could have been any contact between them.
45. However, both the Claimant and her husband described seeing an injury to the inside of the horse's left hind leg after this accident. This injury is shown in the photographs before me, which were taken on the day after the accident. It is a gash, several inches in length, in the inside upper part of the leg and extending over the knee. Both hair and skin have been removed.
46. The Claimant and her husband stated that there was no such mark on the horse's leg before the accident, and that there was nothing in the field to which he was returned afterwards which could have caused such a mark. Mr Dignum does not challenge that account and I accept that evidence.
47. As to how the injury may have been caused, Mr Meade's opinion was that this mark was most probably caused by a "foreign body", that is, not by the horse himself in the course of turning or taking flight. Whilst a horse can sometimes knock its own leg with one of its shod feet such an injury would, in Mr Meade's view, usually be inflicted much lower down on the leg, just above the foot. Further, a horse's skin, covered with hair, is fairly strong. Some force would therefore be required to inflict an injury such as the one shown in the photographs.
48. I have considered Mr Dignum's submission that the injury may well have been self-inflicted as the horse took flight, and that it is therefore a "red herring". Whilst that is a possibility, on balance I consider that this injury was unlikely to have been self-inflicted, and that it was more likely to have been caused by contact with an object which was strong enough to remove both hair and skin from an area higher up the horse's leg than would be expected from a self-inflicted injury, and to create the gash seen in the photographs. I accept Mr Meade's evidence on this issue. Mr Ford QC, for the Claimant, submits that in this case that object was most likely to have been some part of the Defendant's motorbike, moving with sufficient force and close enough to the inside of the horse's left hind leg to cause injury, which is consistent with the account of the accident given by the Claimant and her husband.
49. Secondly, in his witness statement advanced as his evidence in chief, Mr Devereux stated that, after the accident, horsehair was found in the handlebars of the bike. In the witness box he stated, for the first time, that the police officer who attended the scene had drawn his attention to this hair whilst he was still at the scene and that he had seen it himself at that time.
50. There was, however, no reference in his witness statement to Mr Devereux actually seeing horsehair himself at the scene. Nor did he state that he had seen it himself when he gave his statement to the police a few weeks after the accident, on 1 December, where he said as follows:

"Whilst at the hospital I was informed by the police that horsehair had been found on the motorcycle handlebars. When I got home I went and checked Kelly's [the Claimant's] horse and saw the horse did have some injuries."

51. In the circumstances I accept that Mr Devereux was told by the police about the presence of horsehair on the handlebars, but I do not accept either that he was told about it at the scene, or that he saw it there himself. I find that he was more likely to have been told about it at the hospital, which is what prompted him to go and check the horse for injury, when the gash in his left leg was discovered, and was then photographed on the following day, 30 October.
52. There is no reference to the observation of horsehair in the brief statement of the only police officer, PC Thompson, contained in the Police Report. Nor is there any reference to the police telling Mr Devereux that they had seen this. Nor do the photographs of the bike assist, in particular since the left handlebar is completely concealed by a jacket. However, the fact that the police told Mr Devereux about this suggests that one or more officers had in fact observed some horsehair on the handlebars of this bike at some stage after this accident, before speaking to Mr Devereux at the hospital.
53. Mr Ford submits that this evidence, albeit not direct evidence of the presence of horsehair on the handle bars, is further evidence of contact between this bike and the Claimant's horse, which is consistent with the Claimant's case, but which would not be explained by the evidence of either the Defendant or Mr Sellen as to how this accident occurred. Mr Dignum submits that this evidence is unreliable or, alternatively, that notwithstanding the Defendant's case that no contact occurred, it may well be explained by there having in fact been some contact between the horse and the bike as the horse moved towards the Defendant, but of which he was unaware. I do not consider that last submission to reflect the probabilities, on the evidence given in this case.
54. Thirdly, when giving his account of the accident to the police on 1 December, Mr Devereux referred in his statement to having heard "something scraping along the road" after the Claimant's horse turned round and before seeing his wife "flying through the air" as his own horse turned. Mr Devereux did not refer to this specifically in his witness statement prepared for trial, but he stated in the witness box that he did in fact recall hearing a scraping or grating sound at this point. Mr Ford submits that this was most probably the bike, or part of it, sliding along the road after falling over on its right side and when the riders were no longer on it.
55. Submitting that I should not draw this inference, and in addition to relying on the absence of this evidence from his trial witness statement, Mr Dignum makes the point that, had the bike scraped along the road on its right side, there would have been marks left on the road surface and damage caused to the right side of the bike. There is no evidence of either in this case.
56. I have considered these points carefully. There are certainly no marks on this area of the road surface discernible in the photographs, which are the only evidence of the condition of the road after the accident. Further, the photographs show no obvious damage to the right side of the bike, which includes a wing mirror, handlebar, exhaust, fixed foot rests and engine parts. There is, however, extensive damage apparent to the fairing on the upper part of the bike, which appears to have shattered and which is shown most clearly on photograph numbers 100 and 101.
57. The Defendant suggests that the damage to the fairing was probably caused by his helmet, when his head struck the handlebars. On the Claimant's case, however, the damage to the fairing was probably caused when the bike fell over and then collided with the horse.
58. I consider that it is unsafe to draw any conclusions as to whether or not a collision occurred from the photographic evidence alone, in a case where there is no other evidence as to the damage which this motorbike did in fact sustain, and as to how such damage might have been caused.
59. Fourthly, in their evidence in chief, both the Defendant and Mr Sellen stated that, when the police attended the scene, they had explained to a police officer what had happened. The "Occurrence summary" in the Police Accident Report described this accident as a "road traffic collision – serious injury" and summarised the accident as follows:

"Motorcycle with pillion travelling south-west on Lyndhurst Road, around bend, two horses, one horse bolted, collision between motorcycle and horse. One serious injury, two slight."

60. The serious injury is clearly that which was sustained by the Claimant, but the driver of the bike and his passenger were both noted as having sustained "slight" injuries. This summary appears to have been based, in part, on the account of the accident given by the Defendant, who was interviewed under caution at the scene by PC Thompson, at 16:19, approximately three hours after the accident, which is noted to have occurred at 13.22.
61. In relation to his injuries, the Defendant stated when interviewed that he had sustained both cuts to his forehead and a bruise on his right leg. At trial before me his explanation for the injury to his leg, which was not referred to in his evidence in chief, was that he must have knocked it somehow when it came to a standstill. Mr Ford submitted that the injury to his right leg, as reported to the police officer at the scene, was inconsistent with the Defendant's account of the accident at trial and was more consistent with the Claimant's account, namely that the bike went over on its right side and the Defendant came off it.
62. I do not consider that the evidence of a bruise to the Defendant's right leg assists me in determining these issues. A more significant inconsistency, as it seems to me, arises in relation to the Defendant's case, supported by Mr Sellen, that neither he nor Mr Sellen came off the bike. The Defendant's account at trial seems, in this respect, to be entirely inconsistent with his initial account to the police when interviewed under caution, when he said as follows:

"… coming round the bend and saw two horses coming towards me so I pulled the clutch in and dipped the revs. I'm not sure if the sight or sound of the bike spooked the horses, but one horse spooked, I put the anchors on, and then the horse turned round. I went towards the verge and at this point I'm not sure if I came off because of the verge or if the horse hit me. I came off the bike along with my pillion [passenger] David Sellen. The horse bolted away from us."

63. The Defendant stated in evidence that, in using the words "came off", twice, he meant only that he had dismounted from the motorbike once it had come to a standstill, an explanation which I regard as entirely unsatisfactory and which I reject.
64. In his statement to the police, dated 6 February 2007, Mr Sellen said this:

"As the rear of the horse came towards us Gary pulled the motorbike further to the left which caused the motorbike to go into the verge and we both came off. I went into Gary's back which pushed him into the handlebars. I got up and went over to Gary to see if he was ok. He was in a dazed state so I sat him down and went over to see the lady."

65. Mr Sellen suggested, when cross-examined about this account, that it was "nit-picking" to say that this was inconsistent with his description at trial of just "rolling off" the bike after it had come to a standstill. However, Mr Sellen's evidence was not only that he had rolled off the bike, after it had come to an abrupt halt, but that the Defendant had remained firmly seated on it. This seems to me to be wholly inconsistent with his initial account to the police, that they "both came off" the bike, and that he got up and "went over to" the Defendant to see if he was all right and then "sat him down" because he was dazed.
66. There is a further, unsatisfactory aspect to Mr Sellen's evidence at trial. In his evidence in chief he complained that the police officer had failed to write down everything that he told her at the time he made his statement on 6 February 2007. He stated that he had complained to her about this at the time, but that he could not now remember the officer's response. He accepted that he had nevertheless signed this statement, on the basis that it was true to the best of his knowledge and belief.
67. I do not accept his evidence that he was giving a more detailed account of the facts to the officer, which she failed to write down, or the suggestion that she asked him to sign a statement which he had objected to as being an incomplete account. In any event, his complaint as to this statement was that it was incomplete, not that it was inaccurate, so that the reference in it to them both coming off the bike remains an inadequately explained inconsistency with his evidence at trial.
68. It is correct, as Mr Dignum points out, that Mr Devereux did not refer specifically, in his police statement made on 1 December 2006, to the Defendant or Mr Sellen coming off the bike. Nor did he refer there to any loss of control of the bike by the Defendant, or indeed to a collision. He did refer, however, to being told about the presence of horsehair in the handlebars, which I considered earlier. He also referred to having heard "something scraping along the road" as the horses turned.
69. As Mr Devereux was watching what was happening, his own horse turned, slightly after the Claimant's horse, so I accept that his opportunity to witness the precise order of events would be limited once his own horse had turned round. However, I accept his evidence as to what he heard at this point, just before he saw his wife "flying through the air" out of the corner of his eye. The sound he described is in my view more consistent with contact between the bike and the road than, as Mr Dignum suggested, the sound of the Defendant's helmet making contact with the handlebars of the bike.
70. On all the evidence I find, on balance, that both the Defendant and Mr Sellen did come off the bike as it approached the Claimant's horse. It is significant, in my judgment, that both are now seeking to disavow what they told the police officer had happened, a short time after the accident or, in the Defendant's case, at the scene a few hours later.
71. Fifthly, I do not accept the evidence of either the Defendant or Mr Sellen as to the manoeuvre undertaken by the Claimant's horse on being startled. The Defendant described the horse as "rearing up" at the same time as he turned around 180 degrees. Mr Sellen initially described the horse rearing up and throwing the Claimant off, before rotating three times and then bolting. In the witness box, seeking to clarify his reference to rotation, he described the horse turning round in three stages to face the direction from which he had come. Asked to describe what the horse actually did, his account was that the horse reared up, raising his front legs 3 or 4 feet in the air, at the same time turning 45 degrees, throwing the Claimant sideways off the horse, before completing the turn in two further stages and then bolting.
72. The accounts of Mr Sellen and the Defendant are therefore inconsistent with each other. They are also inconsistent not only with the evidence of the Claimant and her husband but also with the evidence of Mr Meade, as to how horses usually move when they have been startled and are turning in order to take flight.
73. Mr Meade described how a horse that has been startled and wants to take flight away from the danger will usually turn quickly, in a "pirouette" movement, moving in one continuous movement with its hind legs staying on the spot where they are positioned and its front legs raised slightly off the ground. It would not be likely to rear up, raising its front legs to a height of 3 to 4 feet off the ground. Rearing up in this way, as Mr Meade explained, is not a process that enables a horse to turn quickly, which it would be more likely to do if it felt threatened and wanted to flee. On the contrary, rearing up in this way would be likely to hinder that process.
74. This evidence, as to the usual behaviour of a startled horse in such circumstances, seems to me to be more consistent with the account of the horse's actual movement given by the Claimant and her husband. Whilst the horse's front legs may well have been raised slightly more than the 3 to 4 inches from the ground described by Mr Devereux, the movement they made was, in my judgment, more consistent with the movement to be expected of a startled horse wanting, as Mr Meade succinctly expressed it, "to get the hell out of it". The description given by Mr Sellen and the Defendant of the horse rearing up as he turned and then bolted was, in my view, less likely in the circumstances and I do not accept it.

Conclusions

75. The oral accounts as to what happened in this case are entirely inconsistent with each other, and there are unsatisfactory or unreliable aspects of the oral evidence on both sides, to which I have already referred. It is also common ground that events happened very quickly. On all the evidence before me, however, I find, on the balance of probabilities, that this accident happened as follows.
76. The Defendant was driving his motorbike at 45 mph, and therefore in excess of the speed limit, along the straight section of Lyndhurst Road and as he came into the bend. The Claimant and her husband were walking on their horses at a very slow pace and in single file, with the Claimant in front, as they approached the bend from the opposite direction. They came within sight of each other at a distance which cannot accurately be stated from the photographic evidence, but which was probably no more than 80 yards or so.
77. The Claimant and her husband had heard the sound of the approaching motorbike because it was fitted with a non-standard exhaust, which made a very loud noise. They were not, however, unduly worried. The Claimant's horse was a calm, stable horse, well used to this road and to approaching traffic; and he had never previously been spooked in any incident involving any motor vehicle on this road. He was not, therefore, a horse that was nervous of vehicles, including motorbikes, and he was unlikely to be "spooked" by traffic travelling along this road in normal conditions. Both horses had pricked up their ears at the approach of the bike, but they had not reacted in any other way so as to cause their riders to become concerned.
78. As soon as the Defendant saw the horses ahead of him I accept that he pulled in the clutch and dipped the revs, thereby reducing the noise. However, I do not accept his evidence at trial that he also applied his brakes at this time. Whilst both the Defendant and Mr Sellen told the police nearer the time about the steps taken to reduce the noise, neither of them stated then that the Defendant had applied his brakes at the same time.
79. When he was cross-examined the Defendant stated that he had lived around the New Forest all his life, and that "when you see a horse you pull the clutch and drop the revs and just coast past them". In my judgment, the Defendant thought that, by reducing the noise, he could just coast past these horses and continue on his way.
80. As the Defendant approached the horses the motorbike was therefore coasting along the road, but I find that it was still moving at speed. Pulling in the clutch may have reduced the speed a little, but I do not accept the Defendant's evidence that he slowed down to 20 or 25 mph as he approached them. When he first saw the horses he was still travelling at 45 mph and, in my view, he would not have slowed down much below that over the short distance of level ground between that first sighting and the point at which he was just a few feet away from the Claimant. I do not accept Mr Dignum's submission, that the presence of the Defendant and Mr Sellen on the motorbike would be likely to cause it to lose speed more quickly. There is no evidence about that and, if anything, I consider that their weight would be more likely to lead to the moving bike retaining its momentum.
81. In his evidence in chief the Defendant stated:

"I confirm that as I got closer to the horses I still had enough momentum from the speed I had been travelling as I was on level ground and I continued coasting towards them."

I find that the Defendant was expecting to coast past the horses at approximately the same speed, or slightly less, without incident.

82. I am not satisfied that, as he was approaching the horses and before the Claimant's horse started to turn, the Defendant drifted onto the wrong side of the road. Nor do I find, however, that the Defendant moved over to the left at this stage. The Defendant, in his evidence in chief, stated that he maintained his original road position until the Claimant's horse started to turn. I find that he did. This was, however, a narrow country road and as he came round the bend the Defendant was still travelling at speed in the middle of his half of the road after taking steps to reduce the noise.
83. In my judgment, it was the combination of the loud noise made by the approaching bike, which would be increasing in volume as it neared the bend, and the sight of the bike, travelling at speed as it came towards them, that startled the Claimant's horse.
84. The horse was sufficiently startled to make him turn round in preparation to take flight. On the evidence this was a steady horse, well used to this road and to walking along it in traffic. If the Defendant had slowed right down to 20 to 25 mph, as he stated, and had steered to the left to pass the horses, I consider it is most unlikely that the Claimant's horse would have reacted as he did.
85. I accept, as Mr Dignum submits, that there is always a risk of a horse being spooked by something occurring in apparently normal conditions. On balance, however, I find in this case that the reaction of this horse, to turn in order to flee in the way that he did, was more likely to have been caused by something abnormal occurring on the road ahead of him. On the evidence in this case, I find that it was the combination of the loud noise made on approach and then the sight and speed of the Defendant's bike as it came towards him.
86. I find that the Claimant's horse did not "rear up" as it turned, as the Defendant and Mr Sellen described it. Rather, the horse turned clockwise in one continuous movement, with his hind legs remaining in position and his forelegs slightly raised, preparing to take flight as subsequently occurred.
87. However, I have no doubt that the movement of the Claimant's horse, as he suddenly started to turn in this way, startled the Defendant. This was a large animal turning around in a narrow country road and, at the time he started to turn, the Defendant was, as I find, just a few feet away and expecting to coast past. The Defendant was therefore startled by the horse turning and by the prospect, as he feared, of the horse moving towards him and perhaps colliding with him.
88. I find that it was when the Claimant's horse spooked and suddenly started to turn, startling him, that the Defendant first applied his "anchors", and at that point I find that he lost control of his motorbike, due in part to the speed at which he was still travelling. Thereafter, and within a very short space of time, the Defendant and Mr Sellen came off the bike, which I find veered and then fell over to the right as the horse completed its turn; and part of the bike, most probably the handlebars, then collided with the left hind leg of the horse, causing the gash clearly seen in the photographs.
89. I find that the Claimant was then thrown backwards from the horse as he bolted. He probably bolted when he was struck by the bike, kicking out as Mr Devereux stated, although he may already have started to bolt when the bike made contact with him. In the circumstances I find that it makes no difference to the issue of liability.
90. It may be that, before veering over to the right, the front wheel of the bike did initially strike the left verge after the Defendant lost control, and that the Defendant and Mr Sellen fell off it at that point, but I reject the Defendant's evidence that the bike came to a halt by the verge and that he stayed on it. On all the evidence, in particular this horse's reaction to the bike and the evidence of injury to his leg, which I find was in this case most likely to be caused by contact with the bike, I am satisfied that a collision occurred after the Defendant lost control of the bike and came off it; and that the collision was the result of that loss of control.
91. In my judgment, therefore, this accident was caused by the Defendant's negligent failure to keep control of his bike, partly due to the excessive speed at which he was travelling as he saw, and then approached the horses. The Claimant was thrown from her horse because it took flight as a result of the rapidly approaching bike, which collided with him. The Claimant has therefore succeeded in establishing primary liability.

Contributory Negligence

92. Having rejected the Defence case, I have considered carefully whether the Claimant was herself negligent, given the circumstances in which I find that this accident happened, so as to cause or contribute to its occurrence.
93. I do not consider that she was negligent in failing to move her horse off the carriageway and onto the verge as she heard the bike approach, or indeed when she first saw it. There is a ditch on the other side of the narrow verge to her left. The Claimant was riding a horse she knew to be stable and not easily spooked in traffic. In my view she was entitled to assume that she would be able safely to proceed along the left side of the road as the motorcycle approached and passed them, even though it had been making a loud noise.
94. Nor do I consider that she was negligent in failing to dismount, for the same reasons.
95. On the evidence her horse was most unlikely to react badly to the approach of the motorbike, so I do not consider that she can be found to be negligent in failing to signal to the Defendant that her horse was particularly nervous or "skittish", as alleged.
96. It may well be that the Claimant lost control of her horse at the time she fell, although she stated that she still held him in a firm grip with her legs. By this time, however, her horse had been startled by the rapidly approaching bike, which then lost control and collided with him. I consider it was far too late for her then to be expected to prevent the horse from bolting, or for her to be found negligent for failing to control him and stay in the saddle in these circumstances. On the evidence before me the Defendant has not established that the Claimant was contributorily negligent in all the circumstances.
97. For all these reasons there will be judgment for the Claimant in this case, with damages to be assessed.