I was involved In a collision with a car and trailer tent that pulled out of a private drive on what was quite a sharp bend. The circumstances, it turned out, were that the guy who knocked me off had just bought a caravan.
He pulled out of the seller’s drive and turned right – across my path. The seller told the Police and my solicitors that he told the guy to turn left because ‘loads of bloody bikes come charging round here like it’s a sodding race track’.
The owner of the house is a grumpy old git who clearly hates bikers. My solicitor sent an agent round to take the grumpy old git’s witness statement, but my solicitor says that he does not want to rely on the statement because it puts into the Judge’s head that I must have been speeding or racing. Without it I have got no evidence the driver was told to turn left not right. My solicitor is encouraging me to make a 50/50 offer because he does not want to have the grumpy old git in the witness box. What do you think I should do?
Name withheld
The Statement is beautiful in its concentrated bile. The witness clearly hates bikers and has his rant. He told your solicitors he is going to say what he wants to say and if they do not like it, tough. That is his right, but I looked closely at what he actually says.
Apart from confirming his details, the remaining paragraphs are a pure rant against bikers, including previous incidents where he has pulled motorcyclists out of his hedge. He makes a further couple of comments about his Sunday mornings being disturbed and him being terrified for his grandchildren.
His views on motorcyclists are irrelevant and should not be in a witness statement, but if he is insistent there isn’t a lot you can do about it. If the witness wants to say it, he can. Clearly your solicitors do not want the rant in there, but they cannot tell a witness what to say.
So we have four paragraphs of anti-bike ranting. The sixth paragraph says in terms that he told numpty to turn left, which numpty ignored and turned right. That is the key piece of evidence that he can give. Next, he says that he did not see you or hear you until you were launched mid-air and catapulted over the trailer. Therefore, most of what he says is irrelevant but shows he is unsympathetic to you. One paragraph established negligence and another paragraph establishes that he can say nothing about your riding – save you hitting the car and trailer combination.
Therefore, you can safely rely on this statement and, as he gave a similar statement to the Police, his virulent hatred of bikers will come through anyway. But so what? The Judge will not care one way or another. I suspect the Judge might have a little chuckle about it in his chambers.
The power of his venom against motorcyclists is extraordinary and he is a man who says what he likes and likes what he says, I had to suppress a smirk when I read the statement. The witness can say what he saw. Who he hates is of no concern to the judge and I think his statement is essential for your case. Your solicitors may be worried about the witness going ‘off piste’ and saying too much under cross examination, but it is the job of your Counsel to object if the Judge doesn’t keep a witness limited to what he saw rather than what he thinks.
Unless your solicitors call him to give evidence there will be no direct evidence of the conversation you rely upon as essential to your case. The Judge might take his statement to the Police into account, but does not have to. He can give the statement minimum weight and if numpty turning right denies it, you have no evidence in rebuttal. The Judge will also be wondering why, if you are relying on that Police statement the witness is not in Court. It does not matter if peripheral witnesses don’t turn up, or if you’ve got five witnesses all saying the same thing, you do not have to produce all five. But when you have got one witness who can say one thing that is essential to your case, you really do need him in Court. If your solicitors do not call this witness your case becomes much harder.
I’m struggling to understand the 50/50 suggestion that your solicitors are advising. I do not have a layout of the road, but as a general rule, where a car pulls out in front of another vehicle, which has right of way, the vehicle pulling out has a continuing duty to give way. There is no evidence of you speeding, other than you could not stop for this car and trailer combination that was blocking the entire carriageway. It is for the driver of the car to show that when he pulled out you were not there to be seen and in the absence of evidence of speeding he is going to be struggling to prove this point He cannot simply say ‘the bike was speeding’ and you have to prove that you were not. He is alleging speed, so he must prove it. It never plays well to say ‘well, I clearly saw the motorcyclist speeding so I pulled out – you don’t need to be Kavanagh QC to see the flaw in that line of argument!
If I were you I would press onto trial, without conceding any negligence. I’m also suggesting that you might want to get new solicitors, or take the advice of a specialist Barrister, because it seems to me that your current mob are struggling with basic concepts of the law of evidence and the burden of proof.
Andrew Dalton
Fast Bikes Magazine
February 2017
