England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/02/2013

Mr Justice Turner :

Introduction

1. On 25 January 2008, at 9pm or shortly afterwards, the claimant, 17 year old Jonathan Boyle, accompanied his friend and neighbour Joseph Berner to the Lord Morpeth public house.
2. Just after 2am on the following morning they were involved in an accident in which the claimant suffered catastrophic injuries.
3. Certain facts surrounding the circumstances of the accident are not in dispute. The claimant and his friend had both been drinking alcohol during the course of the evening. Later they found themselves on Grove Road in the vicinity of a bus stop to the south of the Victoria public house.
4. Travelling south along this road was Acting Police Sergeant Currey (to whom, for ease of reference, I will refer as "Mr Currey") driving a marked Vauxhall Vectra police car. He was on duty but not responding to an emergency. The road was subject to a speed limit of 30 mph. Mr Currey was travelling between 33 and 35 mph and positioned in the road equidistantly between the kerb and the central white lines.
5. As Mr Currey was approaching the bus stop, the claimant fell into the road ahead of him. Mr Currey applied full emergency braking but he slowed up by no more than about 1mph before the impact.

The claimant's case

6. The claimant alleges that Mr Currey's driving fell below the standards to be expected of a reasonable and prudent driver. It is said on his behalf that if Mr Currey had been driving with the requisite degree of care then the claimant's injuries would have been avoided or, at least, have been less severe.
7. The central criticisms raised against Mr Currey are that he:

i) drove too fast;

ii) drove too close to the kerb; and

iii) was not keeping a proper lookout.

8. I propose to deal with each in turn.

Speed

9. There is no dispute that Mr Currey was exceeding the speed limit. The defendant raises two distinct points with respect to the forensic consequences of this.
10. Firstly, it was argued that Mr Currey only owed a duty of care to the claimant from the moment when he saw or should have seen him or "perhaps anticipated his presence for some reason".
11. I do not accept this approach.
12. As Lord Greene MR held in Farrugia v Great Western Railway Co [1947] 2 All E.R. 565:

"It was said that the driver and the defendants (his employers) had no reason to suppose that the plaintiff would be running behind the lorry, trying to get on it, at that particular moment. That appears to me not to be the question. The duty, as it appears to me, is a duty to anybody who happened to be at the crucial moment in the neighbourhood of this dangerous thing, and the fact that the plaintiff was not in the mind of the driver appears to me beside the point. It might have been somebody else. The duty on the defendants, as it seems to me, is a duty to take care in loading and sending out their vehicles, and a duty to drive them in such a way that anybody who happens to be on the highway nearby will not be endangered."

13. Accordingly, I find that the duty of care upon Mr Currey extended to the claimant because he was within the class of those people in "the neighbourhood" of his vehicle at the time. As Lord Greene went on to comment in Farrugia:

"There was somebody who, at the moment, was in the neighbourhood, and he was struck. It appears to me that to confine the duty in the way counsel for the defendants would confine it would be really to re-write the law of negligence."

14. Secondly, the defendant contends that, as a matter of law, exceeding the speed limit does not automatically connote a lack of care on the part of the driver. I have been referred to Grealis v Opuni [2004] R.T.R. 7, a decision of the Court of Appeal in which Mantell L.J. held at para 8:

"8 Although it does not necessarily follow that negligence is to be imputed to a driver who breaks the speed limit, there is no doubt that evidence the speed limit was being broken as with breaches of the Highway Code may provide evidence of negligence."

15. This passage would tend to suggest that exceeding the speed limit should be treated as being analogous to acting in breach of the Highway Code but this overlooks that fact that exceeding the speed limit is, of itself, in breach of the Code.
16. Section 38(7) of the Road Traffic Act 1988 provides:

"A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal…) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."

17. The Highway Code fifteenth edition 2007 provides:

"Speed limits

124

You MUST NOT exceed the maximum speed limits for the road and for your vehicle …

125

The speed limit is the absolute maximum and does not mean it is safe to drive at that speed irrespective of conditions. Driving at speeds too fast for the road and traffic conditions is dangerous. You should always reduce your speed when

the road layout or condition presents hazards, such as bends

sharing the road with pedestrians, cyclists and horse riders, particularly children, and motorcyclists

weather conditions make it safer to do so

driving at night as it is more difficult to see other road users."

[Emphasis not added.]

18. The defendant contends that a number of features in the case equip me to find that there was no breach of duty involved in driving above the speed limit. It was 2am, there were no crowds of people about, nothing (such as an open pub or club) likely to attract crowds, traffic could be expected to be light and Mr Currey "had a job to do".
19. In my view these factors are not sufficient to exonerate Mr Currey. Had he been on the way to an emergency, the situation would have been very different but the fact that he had a job to do which did not require him to arrive at his destination with any particular promptness puts him in no different position to any other driver with a legitimate purpose to be using the highway. Once it is conceded that the time of arrival is not a relevant factor then it is not for the court to start making value judgments as to the utility of the journey when deciding whether any given driver was going too fast.
20. I accept the evidence of Mr Currey that he would be more likely to be travelling at the lower end of the agreed narrow range of speeds. There is a danger in cases such as this to attempt a level of analysis on limited evidence that leads to a spurious level of accuracy. Doing the best I can, I conclude that Mr Currey was probably travelling at about 33 mph and that a reasonably prudent driver would have driven about 5mph more slowly, taking into account that he was driving at night in an area in which it was, at least, foreseeable that the occasional intoxicated pedestrian or pedestrians might still be at large.
21. In this regard, therefore, I find that Mr Currey acted in breach of the duty of care owed to the claimant.

Position in the road

22. The Highway Code is silent on the topic of where a driver should position his vehicle between the kerb and the central white lines.
23. The claimant, however, relies upon "Roadcraft", the Police Driver's Handbook, as a volume which provides relevant guidance. Mr Currey conceded that he would have referred to this document for the purposes of equipping him to pass his police driving examinations.
24. The claimant placed reliance upon the diagram at page 108 which illustrates a car assuming a position at the extreme offside of the lane in which it is travelling so that the offside wheels follow the line of the central white lines. I reject the suggestion that this diagram implies that such a position should, all other considerations being equal, be regarded as the ideal. The illustration clearly shows parked vehicles to the nearside which were absent in the vicinity of this accident. Furthermore, where the Highway Code uses pictures to illustrate various scenarios the vehicles depicted are located roughly equidistant between the kerb and the white lines (see pp. 41, 62, 72, 75 and 98 by way of example).
25. Ultimately, this issue is one of experience and common sense. The text of "Roadcraft" advocates, quite literally, a via media:

"Between the two extremes is a zone that is relatively free of hazards but always adapt your position and speed to the actual circumstances."

26. The circumstances prevailing in the vicinity of this accident were not such as to require a reasonably prudent driver to adopt a different course than that chosen by Mr Currey when travelling along Grove Road. Whether he ought at some stage to have changed this course in response to the location and activities of the claimant and Mr Berner is a matter to which I will return later in this judgment.

Lookout

27. On the day of the accident, Mr Currey provided a formal signed witness statement which, in compliance with the terms of section 9(2)(b) of the Criminal Justice Act 1967, contained his declaration to the effect that it was true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true.
28. In this statement, Mr Currey said:

"I passed the Victoria Public House on my left and very shortly after I saw two figures on the east footway. As I was passing them, without any warning one of the males appeared to fall rapidly from the kerb immediately into the path of my vehicle. This happened instantaneously giving me no reaction time."

29. The road traffic reconstruction experts are agreed that the nearest end of the Victoria public house to the point of impact is 51 metres and that over this distance Mr Currey would have travelled for about 3.4 seconds before the impact.
30. The experts are further agreed that if Mr Currey had moved to the outside of his lane he would have avoided the collision. However, they rightly concede that it is a matter for the court to determine whether Mr Currey should have moved to the offside and that the resolution of this issue would depend upon when he ought first to have identified a potential hazard or source of conflict.
31. It is therefore necessary to determine what Mr Currey should have seen, when he should have seen it and what his response should have been.
32. The eye witness evidence relating to the circumstances leading up to the impact is limited. The claimant has no memory of events whatsoever. Mr Berner was called to evidence of his recollection. He had not previously provided a formal witness statement, although he had been interviewed by the police, and so his account was presaged by a witness summary. In these circumstances it was agreed that he should give full evidence in chief.
33. I regret to say that I found his evidence to be of very little value indeed, particularly with respect to the events immediately prior to the impact. Counsel for the defendant has been able to list over a dozen respects in which his evidence was inconsistent with previous accounts and otherwise unsatisfactory.
34. One striking lacuna in his narrative of events relates to what he and the claimant were doing between leaving the Lord Morpeth and arriving at the scene of the accident. According to Mr Berner, they quit the public house between midnight and 12.30pm and were walking down Grove Road on their way to get something to eat from a takeaway. At a normal walking pace it would have taken them about ten to fifteen minutes to cover this distance. The accident happened shortly after two o'clock. Mr Berner was wholly unable to account for the missing period of one and a half hours or so.
35. There are a number of possible explanations for this hiatus. One is that he had lost track of time as a result of drinking too much. Another is that his memory was impaired as a result of a blow which said he had sustained to the face in the course of an unprovoked attack by one of a group of youths whom he and the claimant had encountered before the accident took place. Mr Berner insisted that he had consumed no more than three pints of beer earlier that evening following which he had been drinking coke. This account is not consistent with the description given of his state of intoxication by police officers who saw the state of him in the period after the accident. Be that as it may, the drink or the assault or a combination of both rendered this witness' account wholly unreliable.
36. One of the central planks of the claimant's case had been that the assault on Mr Berner had taken place immediately before the collision and that Mr Currey should have seen the fracas and would have been put on the clearest notice that he would have to proceed with caution. In the event, this part of the case collapsed when Mr Berner admitted that the assault could have happened a matter of minutes rather than seconds before the accident. Indeed, the contemporaneous documentation revealed confusion not only as to when the assault occurred but also as to the number of youths involved, the direction from which they approached, the direction in which they ran off, whether Mr Berner had actually seen the group and whether the claimant was also assaulted. Any one of these discrepancies could easily be explained by misunderstandings or errors in communication but the combination of so many irreconcilable conflicts leads to the inevitable conclusion that Mr Berner is a wholly unreliable historian.
37. Even Mr Berner's account of what happened immediately before the collision is fatally flawed. He said that he was on the ground as a result of the assault just by the south end of the bus stop and within touching distance of the claimant. The physical evidence, however, reveals that the impact took place some considerable distance further south than this as illustrated by the debris in the photographs of the scene. Even more telling is that Mr Berner maintained that the claimant fell backwards into the road when the latter's injuries were consistent only with him falling forwards into the road.
38. In the light of the above, I consider that it would be unsafe to rely upon any part of Mr Berner's evidence as to how the accident happened.
39. The consequence of this is that it is impossible to make any specific finding as to the precise locations of the claimant and Mr Berner or as to what they were doing in the seconds prior to the impact. I am not able to conclude that Mr Berner was lying on the ground at this stage and I am certainly not able to conclude that there was any sign of the aftermath of the assault. Despite the fact that the claimant had consumed a considerable quantity of alcohol on the evening in question there is no compelling evidence that his state of intoxication would have been apparent to any approaching motorist.
40. The claimant raises the issue as to whether Mr Currey's attention was distracted by the use of the mobile data terminal ("MDT") in his vehicle. This device enables police officers to access data from a central computer which is displayed on a screen. The police officer can input data either via the touch screen or a keyboard. Mr Currey's evidence was that he generally used the keyboard and that this was physically impracticable to deploy when the vehicle was on the move. He said that he only accessed the MDT when he was stationary and that his preferred method was to pull over to the side of the road.
41. Computerised records in this case reveal the times at which information from the central computer was sent to the MDT in Mr Currey's vehicle. In addition, GPS data records reveal the location and speed of the vehicle at intervals in the period prior to the accident. However, the combination of this information is not as helpful as might first appear to be. This is because there is a delay between the time at which data is inputted from the vehicle and the time of the central computer response. This can take up to a maximum of one and a half minutes although for some processes the delay may be no more than ten seconds or so. The result of this is that it is not possible accurately to combine the GPS data with the computer records to determine whether or not Mr Currey was, contrary to his stated practice, moving and inputting data simultaneously.
42. It is contended on behalf of the defendant that it is possible to interpret the records in a way that is consistent with Mr Currey inputting data solely when stationary at the police station and then, subsequently, at the traffic light controlled junction between Roman Road and Grove Road. The claimant counters this with the suggestion that the successive combinations and permutation of delays necessary to achieve this "Goldilocks" result are too convenient to be plausible and that the reality is that Mr Currey was probably using the MDT on the move. In the absence of a more rigorous analysis of the statistical probabilities involved (which is not an exercise which would necessarily provide a conclusive or even useful answer in itself) I am not prepared to find as fact that Mr Currey was operating the MDT whilst on the move along Roman Road. More importantly, the GPS data and computed records do not, on any reading, provide positive evidence that Mr Currey was inputting data at any point as he was proceeding down Grove Road on his approach to the scene of the accident. Accordingly, I find that he was not distracted by the MDT at any time material to this case.
43. There are a number of questions in this case which it is impossible to answer with any confidence. These include:

i) Just how shortly after passing the Victoria public house did Mr Currey first notice the claimant and Mr Berner?

ii) What were they doing when he first noticed them?

iii) Where were they positioned?

iv) What precisely first triggered Mr Currey's emergency breaking response?

v) How long did Mr Currey take to perceive and react to his first perception of a real hazard?

44. There is agreed expert evidence relating to stopping distances and times but this is not such as to provide answers to the above questions. The observations of Coulson J. in Stewart v Glaze [2009] EWHC 704 (QB) at para. 10 are pertinent:

"In my judgment, it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inferences to be drawn from it, can be tested. It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula, against which the defendant's actions are then to be rigidly judged with a mathematical precision."

45. So, too, are those of Laws L.J. in Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274 at para. 10:

"There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care."

46. In this case, the evidence is not strong enough to support the conclusion that Mr Currey was, on a balance of probabilities, failing to keep a proper look out. I accept the contention of the defendant that it is a counsel of perfection to require any motorist, without more, to treat pedestrians on the pavement in the early hours of the morning as an actual as opposed to a potential hazard in the absence of particular features such as obvious drunkenness or horseplay.
47. Further, I had the opportunity to evaluate the demeanour of Mr Currey in the witness box and formed the general view that he was a conscientious and credible witness. There was nothing about his presentation that suggested to me that he would have been complacent about the consequences of failing to react promptly to objectively hazardous behaviour on the part of pedestrians.

Breach of duty

48. In summary, I found that Mr Currey was keeping a proper look out and that his position in the road on his approach to the accident location was a reasonable one in all the circumstances. However, I am satisfied that a reasonably prudent driver would have been travelling about 5mph more slowly in the prevailing conditions. To that extent and that extent alone, Mr Currey was in breach of the duty of care which I find he owed to the claimant.

Causation

49. It is trite law that breach of duty alone is not sufficient to found a claim in negligence. The claimant must go on to prove the requisite causational link between the breach and the damage complained of.
50. If Mr Currey had steered to his offside early enough in the moments leading up to the time of impact then he would have avoided contact with the claimant altogether. The joint report of the Collision Reconstruction Experts dated 21 December 2012 concluded:

"Had Acting Police Sergeant Currey moved over to the offside of his lane as he approached Jonathan Boyle's location, and there would have been sufficient time for him to have done so, a collision would not have occurred."

51. On one reading, this passage might suggest that the experts were agreed that Mr Currey should have moved over to the offside but that he did not. To clarify the point, Dr Ashton, the claimant's expert, was called to be cross examined. Dr Ashton accepted that whether or not there was time to react was dependant on where the driver's attention would be focussed at any given moment and the point at which a potential danger could be perceived.
52. Based on my conclusions that it was his speed alone which put him in breach of duty, the evidence of the experts suggests that travelling at 5 mph more slowly would not have enabled Mr Currey to move sufficiently far to the offside once he had reacted to the hazard so as to avoid the collision.
53. Dr Ashton concluded:

"In order for a collision to have been avoided by swerving to the right Acting Police Sergeant Currey would have to have been travelling at less than 25mph and possibly as low as 20 mph when he was at the point in the road where he was when he stared (sic.) to react to seeing Jonathon (sic.) Boyle falling into the road ahead of him."

54. Similarly, Mr Seston, the defendant's expert in road traffic accident investigation, stated:

"In my opinion, Mr Currey would need to have been driving at a speed in the region of 20 mph for him to have had any reasonable opportunity to effectively avoid Mr Boyle."

55. Furthermore, even travelling at about 27 or 28 mph, the application of emergency breaking would not have brought the car to a halt before the collision occurred. The experts agreed in their second joint report that at a speed of 27.5 mph the speed at the point of impact would probably have been in the range 20 – 23 mph rather than in the range 32 – 34mph.
56. There is no evidence before the court to assist in determining what, if any, difference the lower speed would have had upon the injuries sustained by the claimant.
57. The court ordered, as long ago as 16 February 2012, that medical evidence on the issue of liability (of which the issue of causation was necessarily part) should be served by the claimant by 22 June 2012. On 20 July 2012, the claimant's solicitors served a report from Mr Gardner which dealt only with the issue of quantum. There then followed a sequence of correspondence in which the defendant's solicitors repeatedly pointed out this deficiency. On 21 December 2012, the claimant's solicitors filed a Listing Questionnaire which was subsequently sent to the defendant's solicitors. It unequivocally named Dr Ashton as the only expert upon which the claimant was seeking to rely.
58. It was not until 22 February 2013, the Friday before the Monday upon which the trial had been listed to start, that the defendant's solicitors were the unhappy recipients of an unsigned supplementary report dated 19 February 2013 from Mr Gardner. The substance of the report comprises less than a page of general comment on the issue of causation. As it stood, it fell far short of what was ever going to be useful to the court.
59. No explanation whatsoever was tendered for this egregious state of affairs and, in the light of the repeated promptings of the defendant's solicitors, mere sustained inadvertence was an implausible explanation to say the least. No evidence (as opposed to submissions) was tendered in support of any application to permit the report to be admitted into evidence or for Mr Gardner and or Mr Tromans to be called.
60. I exercised my discretion to exclude the supplementary report and refused permission for expert medical evidence to be adduced.
61. Am I able, despite this lacuna, to attribute any element of the claim in respect of injury, loss or damage to the fact that the impact speed would have been less if Mr Currey had been driving more slowly?
62. In Stewart the same point arose and the court held:

"87 The question then becomes whether, on the balance of probabilities, if Mr Glaze had been travelling at about 13 ½ mph in one direction, and Mr Stewart had been travelling at just under 8.5 mph in roughly the opposite direction, Mr Stewart's injuries would have been any different.

88 The difficulty with that question is that there was no cogent evidence that might have assisted in formulating an answer. I was not helped by the generalisations from Dr Searle, an engineer. Indeed, for the reasons noted in Section 2.3 above, in the absence of any medical evidence, I was unable to reach a conclusion on that element of the secondary case. Clearly, there was a possibility that the injuries might have been less severe. But there was nothing to indicate any probability either way."

63. In Stanton v Collinson [2010] EWCA Civ 81, the Court of Appeal addressed the conceptually identical issue as to what evidence is required to establish that a failure to wear a seatbelt exacerbated the injuries sustained by the claimant. Hughes L.J. held:

"25 It does not follow that medical evidence is a necessity in every seat belt case, or in every such case involving head (or even brain) injury. Each case will depend upon its facts and upon the state of the other evidence. Proportionality is also relevant: what is appropriate in a case with grave disabilities and large sums at stake may not be called for in one where the injury is relatively straightforward. A large part of the difficulty in the present case arose from the combination of the proposition in the joint report that serious head injury was likely even with a seat belt, with the less than satisfactory evidence about what that meant. In other cases, if that difficulty did not arise, it may well be that skilled seat belt engineers, if they agree about what kind of injury would have been occasioned if the belt had been worn, provide evidence which is sufficient for the judge to resolve the issue. However, any doubt about the appropriateness of medical evidence ought to be capable of avoidance in the great majority of cases if the case management process is operated in such a way as to ensure that it is clear to the parties well in advance of trial whether the causation aspect of contributory negligence is, or is not, in issue. The overriding objective in CPR Pt 1 , especially r.1.4(2)(b) with r.1.3 (the duty to help the court identify the issues), provides ample scope for ensuring that this happens."

64. In this case, in contrast to the position in Stanton, in which there was, at least, engineering evidence upon which to base an assessment of the level of exacerbation of injury, there is no material upon which I am able to form a judgment on the matter. It would be impermissible for me to embark upon a process of pure speculation and I am constrained to find that the claimant has failed to prove what, if any, loss has been occasioned as a result of Mr Currey's breach of duty.
65. It is inevitably with the utmost reluctance that any court reaches a conclusion which thus leaves a catastrophically injured claimant uncompensated. Nevertheless, I am constrained by the evidence in this case to find for the defendant. Doubtless the claimant will be fully and frankly advised as to the implications of my findings.