Travel law team secures 100% liability judgment in High Court trial for life changing injuries caused to motorcyclist in Germany

Posted: 01/11/2022

The High Court has handed down its judgment following a recent liability trial, finding 100% in favour of our client, Mr Andy Evans, who suffered serious injuries in a motorcycle accident in Germany.

Our client was an experienced motorcyclist well accustomed to driving on the continent and on the right-hand side of the road. On 22 September 2020, during a motorcycling holiday in the Black Forest, he was involved in a collision with a car, travelling in the opposite direction, shortly after it cornered a hairpin bend.

Our client suffered multiple orthopaedic injuries and PTSD and remained in an induced coma for three weeks. He had very little recollection of the accident itself. His only recall was of seeing the car emerging from the bend on the wrong side of the road. This caused him to take evasive action and to lose control, before colliding with the car. 

Following the accident, the German police attended the accident site and interviewed the German driver. Although they did not have an opportunity to speak with our client, they concluded he must have been on the wrong side of the road and that he was at fault. The driver of the car also suggested this was what had happened.

At the time we received instructions, in early November 2020, we were concerned regarding the prospect of a “no deal” Brexit. Our initial priority was  to obtain the police report, to clarify the identity of the defendant and his insurers. We then arranged for the issuing of proceedings in the English High Court. This ensured the claim could be run in this jurisdiction, with liability and quantum issues to be determined on the basis of German law principles, in accordance with the Rome II Regulation (EC864/2007).

The next step was to prepare witness statements for contacts of Mr Evans regarding his experience as a motorcyclist and to obtain expert evidence on the issues of reconstruction and German law, given their relevance to liability.

Unfortunately, the defendant’s insurers were not inclined to adopt a collaborative approach. They refused to engage with the rehabilitation code and made no attempt to settle the case or to accept our offers to engage in alternative dispute resolution (ADR). The parties’ reconstruction experts also disagreed on a wide range of evidential issues relevant to liability.

At trial HHJ Howells was asked to consider three separate applications from the defendant. This delayed progress and had an impact upon the evidence before the court. On day one the defendant applied to allow additional video evidence prepared by their reconstruction expert, following a revisit to the accident site shortly before trial. This application was refused.

On the morning of day two of the trial, the defendant made two more applications. The first was an application to amend its defence, to plead that our client was travelling at an excessive speed for the road conditions. This application was allowed, on the proviso our reconstruction expert be permitted  to make his own calculations on speed, to assist the court.  

The defendant then applied for permission to rely upon video link evidence for two of its German based witnesses, the first being the defendant driver and the second the defendant’s German law expert. It materialised that the German government had stated in June 2022, just one month before trial, that it would not allow German nationals to give evidence by video in courts of foreign jurisdictions. Subsequently, the UK Foreign Office had also objected to this, to avoid a possible “diplomatic incident”.

HHJ Howells declined to hear their evidence by video link and refused the application. She instead allowed the defendant to rely upon the driver’s written evidence and the report of their German law expert, under the Civil Evidence Act. In doing so, she noted the  driver’s evidence was to be treated with care and gave it limited weight, because it was unable to be tested in cross-examination. We had also identified a number of critical inconsistencies between his witness statement and the earlier statement that he gave to the police, after the accident. In summary she concluded that his evidence was “significantly flawed” and instead accepted the evidence of Mr Evans.

Mr Evans impressed the judge “as an honest and straightforward and credible witness”. She recognised that “he was adamant from the beginning that the police’s version of events was incorrect. It had always been his case that he remembered the circumstances and the manoeuvre of the defendant’s car, but not the point of impact”. It was her clear impression that he did see the defendant’s vehicle approaching on the wrong side of the road and she concluded it was that which caused him to take emergency evasive action. She also noted that the German police investigation did not include any evidence gathering from him. As such, they were wholly unaware of his case that the driver of the car approached by cutting the corner. She therefore concluded that she could not confidently rely upon the German police report in respect of its findings regarding the cause of the accident.

In her judgment, HH J Howells singled out our appointed reconstruction expert, Mr Mottram, for praise. She considered him to be “a more measured and careful expert in his approach to the court” and also described our German law expert, Mr Frese,  as “persuasive and measured”.

Mark Lee, partner and head of the travel law team at Penningtons Manches Cooper, was approached by Mr Evans following his return to the UK from Germany. Since that time, he and his team have worked closely with Mr Evans and highly experienced counsel Sarah Crowther QC, of Outer Temple Chambers, to gather supportive evidence and to prepare his case to trial.

Mark Lee commented: “This case involved numerous potential hurdles from the very outset. It was particularly challenging given Andy had very little recollection of the accident. We also weren’t helped by the contemporaneous reconstruction evidence of the police, following their visit to the accident site. Despite our efforts to arrange a round table settlement meeting, the defendant remained adamant our client was wholly responsible for the accident and declined to negotiate. We therefore had no option but to build the liability evidence and to run the claim to  trial.”

He continued: “The successful outcome in this case has resulted from a team approach, working closely with lead counsel Sarah Crowther and our reconstruction and German law experts. Mr Evans has had a very tough time of it during the last couple of years, with no funding made available to assist his rehabilitation. He has been a delight to work with and we are thrilled to secure such a fantastic outcome, given the challenges of his case. The German insurers have since arranged interim payments and funded an immediate needs assessment and a case manager, so she can arrange the treatment he desperately needs. We are now obtaining further medico legal reports with the focus on rehabilitation and future treatment. The long-term aim is hopefully to get to a point where Andy can return to work, at least in some capacity.”

Mr Evans commented: “I approached Mark after I was in a fit enough place to do so, and after speaking with him I knew I wanted him and his team to fight my corner. The next two years was the most difficult time of my life, both in my personal recovery and fight for justice. All I set out to do was to prove that the German police had made an error when they concluded that the accident was my fault. With the support of my wife Sarah, son Louis, Mark and his team, and our reconstruction expert Mr Philip Mottram, that's exactly what we did. I am particularly grateful to Mark and Sarah Crowther KC for helping to keep me positive throughout the whole process and for fighting so hard for me. I’d never attended a court before, so the trial was a battle from the beginning from a personal perspective, especially mentally. Little did I know how big that battle was going to be. Again, to the credit and professional approach of all my legal team, justice has truly prevailed and my wife, my son and I truly thank Mark, the Penningtons team, and Sarah for their hard work, and for standing by me, despite the challenges of the case”.

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