Neutral Citation Number: [2011] EWHC 1993 (QB)
Case No: HQ09X2509
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2011

Before:

THE HONOURABLE MR JUSTICE MACKAY
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Between:

	(1) Ms JOSHI DIVYA
(2) Ms MONIKA MADAN
(3) Mr DHARMENDRA JOSHI
(4) Ms RAKSHA SANGANEE
(5) Mr SIVANANTHARAJAH KANDRIAH	Claimants	
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	(1) TOYO TIRE AND RUBBER CO. LTD
 (t/a TOYO TIRES OF JAPAN)
(2) Mr KATHIRGAMATHAN PARANIRUPASINGHAM	Defendants	
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Mr G. Aldous QC & Ms L. Nelson (instructed by Simkins & Co) for the Claimants
Mr P. Shepherd QC (instructed by Fox Hartley) for the First Defendant
Mr. R. Walker QC &Miss F. Newbury (instructed by Greenwoods) for the Second Defendant

Hearing dates: 28-30 June, July 1, 4 and 7.
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Judgment

Mr Justice Mackay: 

1.	On 25 June 2006 the five claimants were passengers in a seven seater Mitsubishi Pajero SUV owned and driven by the second defendant which was involved in a serious accident.  All five were injured and a sixth passenger, whose personal representatives are not claimants in this action, was killed.  The accident happened in broad daylight on a straight section of the M4 motorway eastbound carriageway between junctions 35 and 34.
2.	The cause of the accident was a blow-out of the rear offside tyre of the vehicle which lost approximately half its tread and deflated causing the second defendant to lose control.  The tyre had been manufactured in Japan by the first defendant (“Toyo”).  The vehicle overturned, rolled and collided with the central barrier.  No other vehicle was involved.
3.	This hearing is to decide primary liability for that accident.  The claimants’ and second defendant’s case is that the tyre lost its tread as a result of a manufacturing defect by its makers the first defendant.  The first defendant blames the second defendant for negligently driving over an object in the carriageway or on the central reservation, and the claimants adopt that allegation in the alternative to their primary case.  Both claims lie in common law negligence.  The Consumer Protection Act 1987 is not available to the claimants in this action, and there is no contractual claim.
4.	The passengers in this vehicle had been driven by the second defendant from London to South Wales in the small hours of Sunday 25 June in order to attend a temple complex near Carmarthen for prayer.  They had been collected by the second defendant at about midnight and the journey westward was uneventful and relaxed with talk, joking and singing.  There was at least one stop and I find that probably the driving was shared between the second defendant and the fifth claimant who drove the second half of the journey.  The party arrived at the temple at about 5am.
5.	They attended the first prayer which lasted until about six.  There was then a break before the second prayer started at seven (in a different part of the complex).  There then followed a breakfast and social gathering which took about an hour and a half, after which there was due to be a third prayer session.  Two of the party, the fourth claimant and the passenger who died, wanted to return to London, the former because she did not feel well, and they all therefore curtailed their visit and set off back to London with the second defendant driving.
The accident   
6.	Though there is no burden of proof on it Toyo suggests two main explanations for this accident.  The first is that the driver carelessly drove over a substantial hard object lying on the motorway which he failed to see and avoid.  The second, developed at trial but not pleaded, is that through tiredness and/or lack of concentration he drifted from the carriageway over the rumble strip onto the grass of the central reservation where damage was somehow done to the tyre with the results I have set out above.
7.	Mr Shepherd QC for Toyo mounted a vigorous attack on the credit of the second defendant as a witness, cross examining him in detail about the acquisition of the vehicle, its condition when he bought it, whether he had any previous accident in it and whether any other tyre on the vehicle had been changed before the accident.  There is no direct evidence that this vehicle, this tyre apart, was defective in any way or that such a defect played a part in the accident.  Nevertheless Mr Shepherd made some headway in his cross examination and at times I found the second defendant a rather evasive witness, too ready to resort to “I don’t remember” as an answer.  The car was probably about 10 - 12 years old, imported into the UK from Japan privately on an unknown date, and bought by the second defendant in January 2005 at auction specialising in the sale of previously damaged vehicles.  It was delivered on a low loader and sat unused on his drive until he presented it for its MoT test on 7 September when it had 34,637 miles on its odometer.  It failed because of the condition of both front ball joints, which were replaced whereupon it passed the test five days later.  By the time of the accident its recorded mileage was 47,963. 
8.	I am satisfied that as a matter of fact the second defendant was in effect operating as a private hire taxi on this occasion, despite his protestations that he was charging his passengers the cost of diesel only.  His motives in undertaking this journey were commercial.  He took his friend the fifth claimant with him to share the driving and I find as a fact that they did so on the outward journey, and intended to do the same on the way back to London. I suspect that much of his reticence as a witness was caused by his concern about his position in this respect.
9.	As to whether he was tired I accept his evidence that on the Saturday before they set out he worked in the morning at his employers’ warehouse cleaning the vehicles (he was a delivery driver during the week) and tidying up, and that was over by about lunchtime.  He had a short sleep in the afternoon and the vehicle set off at about midnight.  He drove the first half of the journey to Wales and the fifth claimant took over at a motorway stop.  The journey down was a jolly and festive affair with singing and music but I accept that he probably managed some sleep on the second part of the journey and the balance of the other claimants’ evidence suggests that he took what cannot have been much more than a nap in the car while the others were at prayer. 
10.	The accident happened while the car was still in Wales, about 3.4 miles east of junction 35.  All the occupants were asleep, but the driver was I accept reasonably alert and in a fit condition to drive the vehicle.  He had joined in the breakfast that the worshippers enjoyed at the end of the second prayer before they left. The first claimant, a lady of nervous disposition I believe, had told him he could stop if he needed a rest but he declined saying he did not want to wake the sleepers.  He had not been going for long and was expecting to be relieved by the fifth claimant at some stage.
11.	The most compelling evidence about the accident comes from the police officer PC Rogers, as he then was.  In terms of physical evidence his photographs clearly show the start of a tyre mark, vividly indicating the point at which the tyre deflated moments after the loss of about half the circumference of the tyre’s tread, the initiating factor in the loss of control. This happened when the vehicle was comfortably within the confines of the third lane of the motorway.  The track that the vehicle followed thereafter, shown by PC Rogers’ plan,  took it eventually into collision with the central barrier after it had turned over (probably initially end over end) and then it rolled several times sideways, until it came to  rest on one side further down the third lane.
12.	When PC Rogers set out from junction 35, by which time the eastbound carriageway was closed, he knew that the accident was said to have been caused by a tyre blow-out and he made it his business to inspect the carriageway on his approach to the scene, driving at 5 or 10 miles an hour over the 3.4 miles he had to cover.  He was an experienced motorway police officer and I found him a very impressive and careful witness.  He saw nothing lying in the carriageway that could have caused this accident (though he accepted that foreign bodies run over by vehicles at speed can be thrown off the carriageway).  Neither did he see anything when, having arrived at the scene, he walked back on foot for the previous 500 metres or so to make a double check.  For externally applied force to inflict the damage needed to cause this tread to strip would have required a very substantial object to have been run over by it, probably something larger than a house brick as Mr Newland the Claimants’ expert witness thought, and Mr Mottram the expert for Toyo agreed, saying it would take something like a lump of masonry or a piece of metal.  It is also the case that the front offside tyre would have had to run over the same object, whatever it might have been, unless the vehicle had been steered at a very sharp angle at that point, but that tyre was found to be still partially inflated after the accident.  The second defendant said he did not run over anything; what was put to him was that “at some stage” he hit something in the road or drifted onto the grass and he denied that. I accept his evidence.  If he had I am sure he would have known, and he would have thought it in his interest to tell the police about it at the time, as he would no doubt have viewed it as an exculpatory factor.
13.	As to the evidence of other drivers, none of the three witnesses who gave evidence to me, Mr Bailey, Mr Cohen and Ms Waycott, saw any movement of the car into or even towards the direction of the central reservation before the sudden loss of control.  All their evidence was to the effect that it was driving normally on the carriageway at that time, at or slightly above the legal limit of 70mph.  Cohen and Waycott said in terms they did not see the car collide with anything in the carriageway.  All had a clear view of the vehicle and had made contemporaneous police statements in similar terms to their forensic witness statements.  I found all of them reliable witnesses, save that the very experienced HGV driver Ms Waycott driving her 44 ton HGV in the nearside lane was unreliable on certain aspects of the consequences of the loss of control.  I suspect, but do not need to find, that she was wrong when she said all five of the surviving passengers were ejected from the car before it came to rest.  The more likely evidence is that only the first claimant was; she was thrown into the central lane of the west bound motorway.  She was also undoubtedly wrong in recollecting that the damaged tyre, when she saw the vehicle at rest on its side, was the rear nearside tyre.  But she was an honest witness, and she had a grandstand view high up in her lorry from the inside lane as the SUV passed her.  She had little else to do, governed as she was to 56 mph, and as she put it it was a nice day she had her window down and the music on and she was watching the traffic.
14.	The overwhelming picture painted by these eye witnesses is that there was nothing out of the ordinary about the progress of the Mitsubishi before it suddenly lost control while on the carriageway and I find this happened while it was on the third lane of the motorway.
15.	It is agreed that the cause of the accident was a sudden and unexpected loss of the tread of the tyre to the extent I have indicated.  It was not the fault of the second defendant who was driving normally, slightly higher than the speed limit, but was alert and in control of his vehicle.  The failure of the tread was not caused by the vehicle driving over any object or foreign body on the motorway, nor by anything on the central reservation, which it did not visit.
16.	I base that finding on the evidence I have cited above and on the balance of probability.  The expert evidence, with which I deal below, confirms and strengthens my finding to the point that I am sure that external impact can be ruled out as the cause of this accident.
Seatbelts
17.	At the start of the trial, which was ordered be on the issue of liability, I ruled that if I found any liability I would not decide the defendants’ allegation that the claimants were contributorily negligent for not wearing seat belts.  As an issue that would require expert evidence, both medical and engineering, none of which has been exchanged.  My decision therefore was that I would find as a fact which if any of the passengers was not wearing a seat belt at the time and leave the issue of the consequences of those findings to whoever adjudicates on quantum if the case reaches that stage.
18.	On the second day of the hearing Mr Walker QC, speaking on this issue for both defendants, said that the allegation was now only pursued against the first and third claimants and not the others.  This was a proper concession it seemed to me, given the lack of clarity in the police evidence on this issue.
19.	The first claimant accepts that she was not wearing her seat belt at the time; she had been wearing it but had taken it off to speak to the driver, asking if he wanted a break, and she had not put it back when she fell asleep again.  The third claimant, who had also fallen asleep earlier on the motorway, said he was wearing a seat belt on the return journey as he always used to do so on motorways.  In his witness statement made on 22 November 2010 he said “I believe that I put my seat belt on when I left the temple but I cannot remember actually whether or not I was wearing it at the time of the accident”.  He agreed that he told a police officer that he was not wearing a seat belt when questioned at the scene; when asked why he  said that at that time  he could not remember whether he was wearing it or not.  This was an unconvincing explanation for an otherwise clear admission.  I found his evidence on this topic unpersuasive. 
20.	PC Rogers’ evidence on this is that his recollection or assumption is that as the third claimant was in the middle of the centre row his belt would have been a lap not a three point belt.  He noted that it was not visible on a later examination because it had been folded into the third row of seats, through a join between the seats.  He could not say whether it was in use or not save that there was no grinding mark on the belt.  He accepted that it could have ended up in that position in the course of the accident when the vehicle rolled over several times.
21.	I am satisfied that the third claimant did not wear a seat belt and that the seat belt available to him  was indeed only a lap belt.  There will have to be an investigation of whether that would have been in any way effective in the circumstances to prevent or reduce his injuries.
 
Radial tyres
22.	The modern tubeless radial car tyre is a complex structure which gives a combination of strength, grip and wear superior to the cross-ply tyres which preceded it.  The design is well shown by Fig 1 in the first report of Mr Mottram, Toyo’s expert witness.  It comprises two steel beads round which is wrapped a textile 2-ply casing, inside which is a rubber liner. Above the casing lie two belts, each formed by sandwiching steel cords between sheets of rubber. The tyre is then completed by the tread and sidewall.
23.	The system of manufacture is very much the same in all tyre factories. “Green” or raw rubber is mixed with certain chemicals, including sulphur.  The steel cords incorporated in the belts are composed of a number of filaments of steel coated with brass.  The process of forming the belts (calendering) places cords between sheets of rubber which are then passed through heated rollers, to ensure that the cords are covered by rubber and that the rubber penetrates inside the filaments of each cord.  The sheets are then cut on the bias and the belts are formed and built into the tyre carcass.  The final stage is curing the tyre.  This is achieved by placing the by now complete green tyre into a mould with a bladder inside it and a mould outside it.  The bladder is filled and inflated with superheated steam and the mould is also heated and applied.  After about 17 minutes the green tyre is cured.
24.	In the course of the curing process the rubber and the steel cords are made to adhere to each other, or “bonded”, by a chemical bond.  The sulphur in the mixed rubber reacts with the copper and zinc in the brass to form copper sulphide and zinc sulphide.  For a fully effective bond to be created there therefore has to be full coating of the wires by the green rubber and proper curing in terms of temperature, pressure and time.  This simplified account of the processes is more fully shown by a very clear DVD and commentary supplied by Toyo for the purposes of this case, which also shows the checks and quality controls built into their system.
25.	The tyre in this case was a 265/7 OR15 110Q Observe GP4 tyre made in Toyo’s Kuwana plant in Japan in the last week of June 1997.  Altogether 16,317 tyres of this type were distributed in Japan between October 1995 and March 2000, and 62 were distributed in Norway.   None were sold in the UK or anywhere else. The Kuwana plant produces about 9.6 million tyres of all types each year, so the output of GP4s was minuscule by comparison.
26.	By the date of the accident the tyre had approximately half of its tread remaining.  The wear pattern did not indicate that it had been run in an underinflated or overloaded state for any significant length of time.   The vehicle had a recorded mileage of 34,640 when it passed its MoT test on 12 September 2005 and on the date of the accident the recorded mileage was 47,963.  Therefore the tyre had covered a minimum of 13,323 miles when it failed on 25 June 2006.  The normal life of such a tyre before its tread wore out would be 25-30,000 miles.
The impact theory
27.	There is an area of damage to the tread, clearly visible in the tyre itself and best shown in Mr Mottram’s photographs 13 and 14 in his first report.  All agree this is the first point at which the detachment or tearing away of the tread began, and it continued to detach, in the opposite direction to that in which the tyre was rotating.  There is also a tear or split, referred to as the small radial split (the “SRS”) inside the tyre which is of key importance.  It was a split in the rubber lining of the tyre.   It lay 3 to 4 inches away from the visible area of damage, and in the opposite direction from that in which the tread detached.  All agree that, however and whenever it was caused, the SRS would have allowed the inflation air which the liner contained to escape and penetrate the upper structure of the tyre and destroy its bonding structure.  It is Mr Mottram’s view that the tread damage was caused by an external impact and that the same impact simultaneously caused the SRS.  In his evidence, but nowhere in any of his three reports, he says that this impact happened some significant time before the tread came off.  He said it was difficult to say how far before the deflation point, but a few miles, maybe 1 or 2 miles, or 5 miles, not as many as 50.  Over this period, for a matter of about 4 or 5 minutes rather than seconds if he is right, this tyre had what a layman might call a puncture in the form of a 2 inch slit in the liner, and the tread of the tyre had a gash in it as shown by the photographs, but the final failure took that significant amount of time to develop.
28.	He relies on what he calls the “cleanly fractured cords” visible at the site of the tread damage,  the proximity of that point to the area of tread overlying the SRS, and the “feathering” of the tyre in the area leading up to the point of detachment.  Feathering is a phenomenon whereby the small wave-like treads, running in a radial direction, and set into the blocks of rubber lying between the deep circumferential grooves,  whose job is to provide extra grip (this was a winter tyre)  become distorted and raised by the bulge in the tyre caused by pressure from within the tyre.  It can be felt by running a finger over each set, and comparing the feel with a non-distorted section of the tyre. Both Mr Newland and Mr Manderson for the second defendant noted it, and said that it developed when the underlying structure of the tyre was in the process of disbonding causing the vehicle to travel on with raised or distorted tread in this area where the eventual rupture occurred.   The pleaded case of the first defendant was that the impact occurred “during the accident”.  Feathering  having been  explained to him Mr Mottram opined in the joint report  that  the internal loosening of the tyre,  caused he believes  by the SRS letting air into the tyre, occurred “in a short time” between the impact and the tread separating.   He is now saying that time could be, indeed probably is, as long as 4 or 5 minutes, or a distance of 5 miles.
29.	Mr Mottram had never heard of feathering before it was explained to him by the other experts in this case.  His problem is twofold.  The evidence of PC Rogers at the scene, and of the eye witnesses, does not support the presence of any object capable of inflicting the “huge force”, to use his own words, necessary to inflict the damage he contends for.    Secondly feathering requires the vehicle to have driven for some distance (Mr Manderson and Mr Newland differ slightly as to quite how far this should be, but their difference is not material) for the feathering phenomenon to occur.
30.	There are numerous passages in his reports where he saw fit to comment on the factual witness evidence as to the absence of any candidate object in the carriageway, casting doubt on it as inconclusive, or raising as an alternative possibility that the vehicle drifted onto the grass strip.  Nowhere did he say that this evidence is irrelevant because the impact was likely (that is what he now says) to have happened some miles up the motorway.  That I find is because he had not thought of the point, until he appreciated the problems his theory faced.  I reject his evidence that he has always held this view.  I fear it is opportunistic and designed to fit with the rest of the evidence, particularly the new (to him) feature of feathering.
31.	The “5 miles back” possibility was not raised with Mr Newland in Mr Shepherd’s full cross examination, but if it had I would have been interested to hear what he had to say about the likelihood of this heavily laden vehicle driving at 70 or 80 mph for as much as 5 miles with a hole in its tread and a 2 inch slit in its liner.   But in any event he discounts the impact theory altogether, and for these reasons.
32.	First, the fractured steel wires in the photographs are not “cleanly” fractured, he says, but are typical of wires that have been torn apart by the force of the detachment of the large section of tread.  The cords and even their constituent filaments are broken at different lengths.   I have looked at the tyre itself closely and consider this objection is made out, certainly as to the cords.  Secondly if there was a major impact, with sufficient force to rupture the cords in the upper belt at this point, he cannot see how no damage even of a partial nature was done to the lower belt which is 1mm below it.  Finally he points to the fact that the same force which fractured these cords and caused the SRS 3 or 4 inches away left no mark on the area of tread above the SRS through which the force must have been transmitted.  These objections to the impact theory I consider to be both coherent and compelling.
33.	Mr Newland’s view, shared by Mr Manderson, is that the SRS was not the cause of the failure of the tyre’s integrity but rather the result of it.   The tyre casing consists of two radial cord plies made of a textile material, rayon or polyester, inside which is the liner, rubber or probably butyl, and above which lie the two belts and above them the tread of the tyre.  This casing is supported from above, or restrained from moving outwards by the pressure of the air it contains, by the two steel belts.  He believes that the partial bonding of the cords, the result of a defect in the tyre’s manufacture, allowed the belts to loosen and the tyre to distort, which can still be seen in the form of a pronounced bulging in the area overlying the SRS.  One of the results of this was that the casing was no longer supported or held back as it should have been and was forced outwards by the inflation air. The cords of the casing were not held together by anything other than the rubber liner which was forced upward and split. I accept this evidence.
The Expert Evidence
34.	Mr Newland is an expert in tyres who served an apprenticeship with the Michelin Tyre Company after which he spent 10 years as a technical advisor trained to analyse tyres, including conducting forensic examinations such as are involved in the case.  He has been an independent consultant since 1977 and now is an examiner for the City and Guilds examinations in tyre and re-treading workshop practice.  He told me that in nearly 40 years he has considered thousands rather than hundreds of individual tyres which were said to have failed in this way.
35.	His introduction to this matter was not, initially, in the context of this litigation.  He was instructed as an independent expert by the South Wales Police and produced a report in 12 July 2006, as a result of which a decision was taken not to prosecute the second defendant.  Of relevance to this case were the following findings he reported at that stage.
i)	The remaining tread on the tyre was consistent with “normal rear axle use” and there was no evidence of any creasing of the side wall flexing zones and no evidence of use of the tyre in a deflated or significantly under inflated condition.
ii)	In the area of failure the steel crown plies were devoid of rubber and there was no evidence of rubber penetration into and around the filament structure of the cords.
iii)	The extent of the brass coating remaining visible on these cords together with the complete absence of rubber indicated a failure to secure a bond between the cords and the rubber during manufacture.
36.	In his first forensic report instructed by the claimants in this action he repeated these findings and expanded upon them.  He said in terms that the general condition of the tyre tread in the areas that were still intact was good, the tyre had not previously been used in a severely under inflated condition for any prolonged period and so far as the general condition of the tyre was concerned given its age there was no evidence of structural degradation in any areas away from the areas of separation.  He did not consider that age degradation was a major factor, though the possibility could not be entirely discounted.
37.	He gave a clear and simple explanation of the method of bonding steel to rubber and acknowledged the expertise of Professor Vanooij, whom he described as the leading authority on this topic, who had said in his 1978 paper “Fundamental aspects of rubber adhesion to brass plated steel tyre cords” that during the formation of copper sulphide in the bonding process “not all of the brass coating is consumed”.  Though Mr Shepherd for Toyo took him to task for getting his reference wrong, in fact he was right- see page 623 of this 70 page article.   The rest of the article is dense science and contains nothing of   relevance to this action.
38.	Mr Newland was clearly aware of the controversial views of Mr Grogan, an American tyre investigator, who in 1999 put forward what all involved in this case categorise as an heretical proposition, or at best a gross over-simplification of the issue.  Grogan wrote – 
“The investigator, seeing areas of bright shiny brass gleaming at him from the belt area of the failed tyre, will have no difficulty in deciding that there was a deficiency in the bonding process”.
  Mr Newland believes that some brass remaining visible is not conclusive evidence of a failure to secure a bond. He was also aware of Vanooij’s views on the absence of rubber penetration.  But he thought with this tyre that the brass covering was very extensive and there was also a complete absence of any rubber penetration into the centre area of the filaments making up the cords in the areas of maximum looseness.  His conclusion was that there had been partial bonding, that is to say there would have been initially some adhesion of rubber to cord but without full rubber penetration allowing the tyre to complete approximately one third of its life before separation and failure.
39.	Mr Manderson instructed by the second defendant has a degree in chemistry and a post graduate qualification and spent 23 years at the Metropolitan Police Forensic Science Laboratory in the department which dealt with accident investigation and examination of tyres.  He has had in house training from two tyre companies and has done a number of cases involving issues relating to bonding.  He has been a consultant since 1994 and is now Director of Burgoynes’ Traffic Accident Investigation Division.  He too is very experienced in matters relating to tyre failures.  In all material respects his views agree with those of Mr Newland namely that some adhesion between the rubber and filaments had been present but clearly a complete and penetrating bond had not been formed leading this tyre to fail for that reason.
40.	Toyo’s expert Mr Philip Mottram has a degree in materials engineering and design and is a chartered engineer.  He is an expert in materials testing investigating failure of materials and equipment, initially in the commercial sector, since 1997 as a consultant engineer with the well known firm RB Hawkins and associates of Cambridge and more recently on his own account.  Prior to his involvement in this case he was not, I find, experienced in the investigation of failed tyres.  His CV made no mention of such expertise until he inserted a claim to that effect in a revised version.  But in fairness he did not claim to have any material experience prior to this case in addressing the specific question of the disbonding of steel belts from radial tyres.  He is an intelligent and diligent scientist (his reports with their appendices run to 430 pages) but his inexperience has created real complications in this litigation, in a way that I must now explain.
41.	In his first report he propounded the impact theory and sought to attack Mr Newland’s theory of disbonding by reference to a 2008 book by Thomas Giapponi, to the effect that the brass coloured appearance of cords in a failed tyre could be attributed to factors other than a manufacturing defect such as ageing of the tyre or the rapidity of the separation of the tread or belts from the casing of the tyre.  The section of Giapponi’s work which sets out those propositions is acknowledged by the author to originate from the views of the then Dr Vanooij.    He knew that the source for the passage from Giapponi’s book that he had cited in his first report was Vanooij and I find he felt that he needed support from that source to deal with the position being taken by Mr Newland and Mr Manderson in the discussions relating to the finalising of the experts’ joint statement, which had been through several drafts. 
42.	On 16 May, with only 5 or 6 weeks to go before the trial and with the joint statement overdue, he contacted Vanooij by email to see whether he had any research which made it possible to say that the absence of rubber between the twisted filaments must indicate absence of initial bonding, or whether it could be “a consequence of ageing, high strain rate during failure etc”.  The initial answer was not exactly helpful in the sense that it indicated that there should be fragments of rubber remaining even at a very high strain rate but he persevered with his question and received a more encouraging answer in that Vanooij said that “it is totally possible that the rubber inside and outside the cord had degraded so much that it had disappeared completely and the loss of adhesion had rubbed the cords clean”.
43.	On 17 May he asked Vanooij if he would provide “expert evidence in this litigation” and gave him more details of the case sending him all the experts’ reports.  On 20 May, no doubt with the authority of the first defendant’s solicitors, he formally instructed him as an expert witness and agreed an hourly rate.  I should add that from this correspondence it is evident that Vanooij has connections or arrangements with certain tyre manufacturing companies which preclude him from reporting in cases in which they are involved, as well as a relationship with the US Department of Transportation.
44.	On 23 May Mr Mottram wrote a letter to the court purporting to exercise his right under CPR 35.14 to seek directions as to how he should proceed.  This not having been in the form of a Part 23 Application it unsurprisingly received no response from “The Court Manager” to whom it was directed.
45.	At all events on 26 May Vanooij provided his written opinion which concluded that the tyre had failed because it was more than five years old, that it had no manufacturing defect and it should have been taken out of service.  Mr Mottram himself does not agree with that conclusion and calls Vanooij’s views on the ageing of tyres “over the top”.
46.	Mr Mottram insisted on including in the joint statement, before signing it, the four questions that he considered relevant together with answers which extracted or paraphrased parts of Vanooij’s report on the case. Against that unusual background I was asked to rule at the outset of this trial as to how matters should proceed.
47.	The claimant and second defendant complained that this was an attempt to introduce expert evidence by the back door, which Mr Shepherd said was not his intention. He claimed Vanooij’s evidence was admissible as hearsay under the Civil Evidence Act 1995.  I ruled that Mr Mottram’s four questions and answers were inadmissible as evidence as was the Vanooij report itself on which they were based, but that anything Vanooij had written and published could be relied on in the normal way by other experts that is to say in order to inform their own expert point of view; it was not to be used as free standing expert evidence in itself, except to the extent that the forensic experts agreed with and accepted the propositions.
48.	This unusual state of affairs explains why so much of Mr Newland’s cross examination by Mr Shepherd centred on the Vanooij 2001 white paper rather than his articles in peer reviewed scientific literature.  That white paper was not published anywhere but was clearly written for forensic use and from a point of view, namely that too many American juries are finding against tyre companies, and it sought to demolish the Grogan theory.  Comparatively little time was spent by Mr Shepherd dealing with Mr Mottram’s reports. It justifies Mr Aldous QC’s criticism of Mr Mottram as more a researcher and collator of the views of others rather than a true expert witness.
49.	The focus of the cross examination of Mr Newland was specifically directed to the issues of absence of rubber and appearance of brassiness.
50.	As to the first issue Vanooij’s opinions appear to stem from the 2001 white paper alone and not any published and peer-reviewed material.  Mr Newland’s response to the question whether properly bonded cords could be pulled out without any rubber remaining upon them was that Vanooij appeared to believe this as a result of artificial tests in laboratory conditions; indeed he might have added the methodology of these tests was not explained in the white paper itself or elsewhere.  Mr Newland thought the question had to be approached on the basis of an examination of the actual tyre itself and as he put it “what we know happens”.  He also did not accept that where disbonding does occur the cords come out with a “dark, black or purple” appearance as Vanooij suggested in the white paper.  He said he had never seen this in a tyre which had failed on the road, whatever Vanooij had seen in laboratory conditions.
51.	As to the brassy appearance of the cords it remained Mr Newland’s view despite extensive cross examination that when in his experience he looked at tyres which he thought had disbonded not due to a manufacturing defect, though they did retain a brassy appearance it was, as he put it “patchy and slightly yellowy in colour and [with] a surface dullness”. That was in very distinct contrast with what he saw on the cords in this case.  In other words he is not espousing the Grogan heresy, but he had been struck as he had reported throughout by the extent and degree of the brass remaining on these cords.
52.	Had Toyo instructed Vanooij as an expert witness at the outset a very interesting debate could have been imagined between him and the other experts in this case, but they did not choose to do so.  From what I have heard not many experts would agree with Vanooij that this tyre if properly manufactured would have failed in the way in which it did halfway through its tread life merely on account of its chronological age.  As it is Mr Newland impressed me as a witness with vast experience of this question, with more experience than Mr Mottram, and who was a witness whose views were not controverted successfully by the deployment of the Vanooij white paper.
53.	At the end of the day Mr Mottram told me that there were in his view only three possible explanations for the failure of this tyre.  The first was the impact explanation (either immediate or delayed in its effects).  The second was “a manufacturing defect”.  The third was that the tyre had aged to the point where it had finished its life.  In several places in his evidence he has made it clear that he does not subscribe to the third explanation, nor do the other experts and neither do I.
54.	Mr Shepherd does not accept that Mr Mottram was right to say this, but contends there are reasons militating against the finding of manufacturing defect, which are not for him to prove, but for the claimants to disprove before any contrary inference can be drawn. 
The Absence of Other Complaints
55.	The evidence of Mr Hosomi, General Manager of the Tyre Quality Assurance Department of Toyo, and Mr Kanai, General Manager of the Tyre Development Department, described in detail the processes gone through in manufacture, inspection and testing of each tyre.  Their evidence was introduced under the Civil Evidence Act.  It was to the effect that the highest standards of manufacture were required and followed, that the Kuwana plant produced 9.6 million tyres per annum and that over the period 1997-2011 no problems of disbonding had occurred and there had been no returns for that reason.  On the face of it that is a remarkable claim.
56.	The only disclosure of any kind on this topic is a single spread sheet produced by Mr Sugano, who was in the sales department at the relevant time. He corrected Mr Kanai’s statement as to the dates between which the GP4 tyre was manufactured saying he was mistaken.
57.	Mr Sugano produced a spread sheet which he had asked others to generate which appears to show warranty claims on the GP4 tyre.  There are no claims on it after March 2002.  He said it was the most detailed information they had and there were no other documents. It is plainly generated from some database kept for accountancy purposes. When asked for disclosure to supply documents relating to returns of tyres other than the GP4 (all their tyres being made by the same process) Toyo’s solicitors said that their instructions were that there were none.  I find this surprising.  One of the claims on the spreadsheet appears to relate to an allegation of disbonding of one of these particular tyres, which contradicts the earlier evidence from Japan that there had been no problems or returns on this score.  The spread sheet suggests that the disbonding complained of was alleged or found to have been due to under inflation or overload of a tyre which had been manufactured less than four years before.  There must therefore have been some engineering examination and report upon the tyre which has not been found or produced.  Nonetheless the warranty claim appears to have been allowed. Mr Sugano for his part was not aware that a request had been made for similar returns for all other tyres. If he had I am sure he could have produced them, or at least very much more of them than was produced.
58.	Mr Mottram, however, discovered from an internet search in February 2011 that 4,677 tyres of a different specification made by Toyo at its plant in Sendai in 2010 were recalled.  The reason for the recall was that the rubber chemical mix of some of the tyres was incorrect and that as a consequence “sections of the tread may become detached”.   Though this was a problem that occurred at a sister plant it was one which used the same manufacturing process as the Kuwana plant.
59.	In general I am not satisfied that I have the full picture of the history over the relevant years of Toyo’s experience with disbonding tyres, indeed I am sure I do not.  No document has been produced where even this claim is recorded.  This is not the result of deliberate concealment on the part of Toyo, but more probably a failure to appreciate the importance our system attaches to complete disclosure of all matters of possible relevance to a case.  I should add I attach no importance to the “Razo case” in Texas, discovered late in the day by the second defendant.  I do not know enough about this claim to draw any conclusion from it.
60.	Mr Newland with his experience in the industry and as a consultant said that there were very few disbonding failures in tyres but they did happen and that was why there were inspection procedures in place.  The process described at the Toyo plant is modern and up to date but this is a labour intensive process controlled by people and as he put it “therein lies the problem”.  The system includes a full examination that is to say every tyre should be checked at all the various stages of manufacture rather than sampling.  If a tyre is released with a defect that is because the defect has not been identified and the most common cause was that it had slipped through the system due to error on somebody’s part.  That has to be, in his opinion, somebody’s fault.
61.	Mr Imura, Manager of the truck and bus section of the Kuwana plant, could not say the possibility of an under-cured tyre was zero and agreed that they had had recalls (he used the plural) which indicated that mistakes could happen.  It was suggested to him that mistakes could happen leading to uncured tyres that should have been prevented and he agreed.  Mr Mottram in his evidence agreed that recalls should not have to happen because mistakes should not be made.
62.	I readily accept that given the scale of this production it is very unlikely indeed, were one to select for consideration an individual tyre or even batch of tyres, that this type of defect would be present.  But I do not believe that the unlikelihood of such a tyre emerging from the Toyo factory from a run of 16,000 odd is so unlikely as to make the inference, otherwise a strong one, that this tyre was indeed defective, unfair or unreasonable.
Other possible causes
63.	Mr Shepherd stresses the length of time of 9 years which has elapsed between the making of the tyre and its failure. He argues that so little is known about the history of the tyre, its treatment over those years and thus the opportunities for intervening contingencies to cause the failure that it would be unreasonable to infer that the only remaining explanation is manufacturing defect.  I note in passing that the tyre in Carroll (discussed below) appears to have been 7 years old.
64.	It could, he suggests, have been run underinflated; but Mr Newland considered this, rejected it and gave reasons for doing so which were not challenged.  It was parked for 8 or 9 months and not jacked up; that would have caused a flat spot, at worst, which might have given a feeling of vibration for a while but not led to failure of this kind.  There could have been accident damage, there being reason to believe that the car had had an accident in the UK before the index event and possibly one in Japan, to account for its appearance at the particular auction where it was bought; but it passed the MoT test after one rejection for a specified and unrelated reason.  Ageing would have had an effect;   Mr Newland agreed, and all tyres do degenerate with age, but on balance he considered this too, looked at the remainder of the tyre and saw no signs of it, and he did not believe it was an explanation for this failure.  The tyre could have been damaged by leaking car fluids; there is absolutely no evidence that there was any sign of this having taken place.  There could have been “other causes”; none is suggested.
65.	I am satisfied that the only fair and reasonable inference I should draw on the balance of probabilities is that there was a manufacturing defect in the construction of this tyre as a result of which part of the bonding of the steel cords was defective and that was what caused the tyre to fail at the time and in the place that it did.
Was the Defect Caused by the Negligence of the First Defendant?
66.	Mr Shepherd rightly reminds me that this is not a claim under the Consumer Protection Act 1987 but is in common law negligence, therefore the burden of proving not just a manufacturing defect, but that it was the product of negligence by the first defendant has to be discharged by the claimant and there is no burden on the defendant.
67.	For the reasons earlier set out I am satisfied that the probable cause of failure was incomplete bonding of the steel cords within the tyre which most probably failed due to inadequate penetration by the rubber of those cords and/or a failure to cure the tyre for the right time and at the right temperature and/or pressure.
68.	The dicta of Judge LJ, as he then was, in the case of Carroll v Fearon, Bent and Dunlop Ltd [1998] PIQR 416 are obviously valuable assistance for me in my task.
69.	Having reminded himself of Lord Macmillan’s well known warning in Donoghue v Stevenson [1932]AC 562 at 622, that there was no presumption of negligence in such a case as this, Judge LJ said (at 421):-
“Returning to Lord Macmillan’s observation, it was not suggested that the extension of the law of negligence to product liability changed any principle of evidence.  He did not expressly or by implication suggest that this manifestation of the tort carried with it the requirement that the court should cease to exercise its common sense reasoning process.  He himself approached the presence of the undetected snail in the bottle in Donoghue v Stevenson as prima facie evidence of negligence: hence the principle in Grant v Australian Knitting Mills [1936] AC 85 that ‘The appellant is not required to lay his finger on the exact person in all the chain who was responsible, or specify what he did wrong.  Negligence is found as a matter of inference from the existence of the defect taken in connection with all the known circumstances’….. Moreover in an appropriate product liability case the particular individual responsible for the defect in the product need not be identified nor indeed need the particular act of negligence be specified…”
 Judge LJ continued at 422:-
“In the present appeal res ipsa loquitur is not in point.  This tyre burst many years after it left the factory and had been regularly used.  In such circumstances failure might have resulted from any one of a number of possible causes, including, for example, misuse or abuse, or inadequate repair of earlier damage.  However once it was established that the tyre disintegrated because of an identified fault in the course of its manufacture the judge had to decide whether this fault was the result of negligence at Dunlop’s factory.  He did not have to identify any individual group of employees or the acts or omissions which resulted in inadequate penetration of the cords.  If the manufacturing process had worked as intended this defect would not have been present”. [Emphasis added]
70.	I must be careful not to apply a standard of care which amounts to the imposition of strict liability on the manufacturer in this case.  But the standard of care required and indeed claimed by this manufacturer for this product in its evidence is at the highest level.  It is also the case that a failure to attain that standard will lead to the putting into circulation of a tyre which can disintegrate in service with the most catastrophic results, as this case shows and others have shown in the past.  The end user of such a tyre expects and relies on the integrity of a tyre and the absence of such dangerous latent defects.
71.	I have already summarised the views of Mr Newland on this topic and those of Mr Imura for Toyo and Mr Mottram, at paragraphs 60 and 61 respectively.  Though I cannot find at what stage the failure to exercise reasonable care occurred I do not believe I am required by the authorities to do so.  What can be said as a matter of probability is that at some stage of the manufacturing process, through which the evidence has taken me in exact detail, the mechanised procedures have failed to cover and penetrate these cords fully with rubber and/or to cure the green tyre properly, and the human side of the process has failed to detect such failure or failures.  The result is that the tyre fell below the high standard that Toyo set itself and that the end users of its products were foreseeably entitled to expect.
72.	I therefore conclude that this accident was caused by the negligence of the first defendant Toyo, and acquit the second defendant of negligence entirely.