Travel law team wins 100% liability judgment in High Court lawsuit over life-changing injuries to motorcyclist in Germany

The High Court has delivered its judgment following a recent tort case, finding 100% in favor of our client, Mr Andy Evans, who was seriously injured in a motorbike accident in Germany.

Our client was an experienced motorcyclist well used to driving on the continent and on the right side of the road. On September 22, 2020, while on a motorcycle holiday in the Black Forest, he was involved in a collision with an oncoming car shortly after it took a hairpin bend.

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

After the accident, the German police came to the scene of the accident and questioned the German driver. Although they didn’t have a chance to speak with our client, they concluded he must be on the wrong side of the road and at fault. The driver of the car also suggested that was what happened.

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

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

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 evidentiary issues relating to liability.

At trial, HHJ Howells was asked to consider three separate claims by the defendant. This delayed progress and impacted evidence in court. On the first day, the defendant requested permission for additional video evidence prepared by their reconstruction expert, following a re-visit to the crash site shortly before trial. This request was refused.

On the morning of the second day of the trial, the accused made two more requests. The first was a request to amend his defence, alleging that our client was driving too fast for the road conditions. This request was granted, on the condition that our reconstruction expert be allowed to make his own calculations on the speed, to help the court.

The Defendant then requested permission to rely on video-link evidence for two of its German-based witnesses, the first being the Defendant driver and the second being the Defendant’s German law expert. It materialized that the German government had declared in June 2022, just a month before the trial, that it would not allow German nationals to testify by video in courts in foreign jurisdictions. Subsequently, the British Foreign Office also opposed it, to avoid a possible “diplomatic incident”.

HHJ Howells declined to hear their testimony via video link and denied the request. Instead, it allowed the defendant to rely on the driver’s written evidence and his German law expert’s report, under the Civil Evidence Act. In doing so, she noted that the driver’s testimony should be treated with caution and gave it limited weight, as it could not be tested in cross-examination. We also identified a number of critical inconsistencies between his witness statement and the earlier statement he gave to police after the accident. In summary, she found her testimony to be “significantly flawed” and instead accepted Mr. Evans’ testimony.

Mr Evans impressed the judge “as an honest, direct and credible witness”. She acknowledged that “he was adamant from the start that the police version of events was incorrect. It had always been in his case that he remembered the circumstances and the maneuver of the defendant’s car, but not the point of impact”. She clearly had the impression that he had seen the defendant’s vehicle approaching from the wrong side of the road and concluded that this was what prompted him to take emergency evasive action. She also noted that the German police investigation did not include any evidence collected from him. As such, they were completely unaware of his case that the driver of the car approached cutting the corner. She therefore concluded that she could not confidently rely on the German police report with regard to her conclusions regarding the cause of the accident.

In his judgment, HH J Howells singled out our appointed reconstruction expert, Mr. Mottram, for his praise. She saw him as “a more measured and cautious expert in his approach to 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 Manche Cooper, was approached by Mr Evans after returning to the UK from Germany. Since then, he and his team have worked closely with Mr Evans and highly experienced barrister Sarah Crowther QC, of ​​Outer Temple Chambers, to gather supporting evidence and prepare his case for trial.

Mark Lee commented, “This case had many potential hurdles from the start. It was especially difficult since Andy had very little memory of the accident. We were also not helped by the contemporaneous reconstruction evidence from the police, following their visit to the crash site. Despite our efforts to organize a settlement roundtable, the defendant remained adamant that our client was fully responsible for the accident and refused to negotiate. We therefore had no choice but to establish proof of liability and bring the claim to justice.

He continued: “The success of this case is the result of a team approach, working closely with lead counsel Sarah Crowther and our reconstruction and German law experts. Mr Evans has gone through a very difficult time over the past two years as no funding has been made available to help him rehabilitate. He was a pleasure to work with and we are delighted to achieve such a fantastic result, given the challenges of his case. 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 getting more forensic reports focusing on rehabilitation and future treatments. The long-term goal is hopefully to get to a point where Andy can return to work, at least to some degree.

Mr Evans commented: “I approached Mark after I was somewhere fit enough to do it, and after speaking with him I knew I wanted him and his team to fight my corner. The next two years were the most difficult time of my life, both in my personal recovery and in my fight for justice. All I set out to do was to prove that the German police had erred in concluding that the accident was my fault. With the support of my wife Sarah, my son Louis, Mark and his team, and our rebuilding expert, Mr Philip Mottram, that is exactly what we did. I am especially grateful to Mark and Sarah Crowther KC for helping me stay positive through the process and for fighting so hard for me. I had never attended a court before, so the trial was a battle from the start from a personal point of view, especially mentally. I had no idea how important this battle was going to be. Again, to the credit and professional approach of my entire legal team, justice has truly prevailed and my wife, son and I sincerely thank Mark, the Penningtons team and Sarah for their hard work and for having me sustained despite the challenges. of the case”.