Buswell v Symes & Anor  EWHC 1379 (QB)
News | Fri 29th May, 2015
This claim arose following a collision on the 24th July 2011 on the B3399 Newport Road. The Claimant was riding his motorcycle eastward on this road when he collided with the First Defendant who was driving a tractor with a trailer. The B3399 is a single file road with a speed limit of 60mph. Just before the collision site there is a hill with no visibility over its brow; at the bottom of that hill is the exit from which the Mr Symes was emerging on the left-hand side. This exit was not a formal side road or track, but rather a hole in a hedge from the fields behind. The court was concerned with two fields on this farm: Field A and the adjoining Field B.
Mr Symes is a self-employed farm contractor who was undertaking some contract work on the farm. At the time of the collision he was executing a right-hand turn from Field A onto the B3399 when the Claimant’s motorcycle proceeding on the road collided with the tractor. The Claimant, 40 at the time of the accident, was an experienced motorcycle rider and knew the road well. As a result of the collision he suffered severe injuries including a head injury, and could not remember the accident. The Claimant’s friend who was riding his motorcycle behind the Claimant was able to give an account of the collision.
The Claimant argued that Mr Symes was negligent in using that exit when there were alternatives available in Field A and Field B. Mr Symes argued that the accident was caused solely by the speed of the motorcyclists and he could not have done anything to avoid the accident.
The judgment largely concerned the evidence of Mr Symes. He gave a witness statement in October 2014, stating there was no alternative access to or from the field and there was barbed wire surrounding Field A at the time of the accident and at the time of making his statement. He stated there was a raised grass bank along parts of the field which made other exits dangerous. Mr Symes then gave an updated witness statement in April 2015, he accepted he was mistaken about the barbed wire and there were other exits but these were not safer than the exit he used.
Supperstone J found Mr Syme’s evidence to be unsatisfactory and agreed with the Claimant’s submissions that his evidence varied depending on the context. Mr Syme accepted he was incorrect to state there was no alternative access to or from the field and that there was no barbed wire at the time of the accident, when he made his first statement, or since.
Supperstone J concluded Mr Syme’s reasons for not using alternative exits were not supported by the evidence before the court, and he had exaggerated the problems in driving the tractor and trailer out of these exits. Furthermore, it was held that Mr Syme knew motorcyclists used that road and he appreciated the risks he was taking when using the exit. Supperstone J accepted the Claimant’s submission that Mr Syme either foresaw the danger and took the risk or he did not foresee it when he should have. Whichever it was he was negligent.
The court considered expert evidence to determine the Claimant’s speed at the brow of the hill. Supperstone J concluded the Claimant was driving much too fast with a speed nearer to 70mph than 65mph. The Claimant knew and admitted in evidence the risks associated with driving at speed over a blind summit and admitted that he was driving too fast. He was therefore held to be two-thirds contributory negligent.
The collision was held to be caused by the First Defendant’s negligence for which the Claimant was two-thirds contributorily negligent.
The trial had been on liability only. After judgment there was a further argument about costs. The Defendant argued that because there was a finding of contributory negligence there should be an issued based costs order and the Claimant should pay the majority of the costs. The Judge rejected this and ordered the Defendant to pay all the Claimant’s costs on the basis that the Claimant was the winner and the Defendants had never made any offer of settlement by Part 36 or at all. The relevant authorities in favour of the Claimant’s position were Onay v Brown  EWCA Civ 775 and Sonmez v Kebabery Wholesale Ltd  EWCA Civ 1386.
John Foy QC represented the Claimant and was instructed by Claire Carter from Trethowans Solicitors.