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
		14/05/2014

Mr Justice Stewart:

The Issues to be Determined

1. On 1 October 2013 Master Leslie ordered:

(1) There be judgment for the Claimant for an amount to be decided following the determination of the preliminary issues;

(2) The following preliminary issues to be tried in advance of the assessment of damages:

(a) Was the Claimant contributorily negligent?

(b) If so, what is the appropriate apportionment of liability between the parties?

2. The case arises from a road traffic accident which took place just after midnight on 4 July 2010. The First Defendant (D1) drove a Peugeot 306 GTI 6 motor car out of a lay-by on the A458 Welshpool to Shrewsbury road. D1 then drove a distance of some 420 metres towards Shrewsbury. Whilst still in the lay-by, and very shortly after D1 had begun this journey, the Claimant (C) was carried on the Peugeot's bonnet, hanging on to a customised raised hinge where the bonnet meets the bottom edge of the front windscreen. C fell off the bonnet near to the bus stop as a result of D1 swerving his car so as to dislodge C. C sustained catastrophic brain damage as a result of colliding with the road surface and/or the kerb.
3. Given that primary liability has been admitted on the basis that D1 "made an error of judgment that was outside of the range of reasonable responses when he manoeuvred his motor car in such a way as to cause Mr Groves to fall off"^[1], the burden of proof is on the Defendant. The Defendant who has taken part in the proceedings is the Second Defendant (D2) who are the insurers concerned under the Road Traffic Act 1988.
4. The main factual issues concern:

(i) How it was that C came to be upon D1's bonnet;

(ii) The events after C landed on the bonnet including:

(a) Whether D1 stopped near the end of the lay-by such that C had an opportunity to get off the bonnet;

(b) Whether D1 had any genuine concern as to C's conduct if he brought the car to a halt rather than continuing to drive and (successfully) attempting to dislodge C from the motor car.

5. Consequent on the factual findings, the court then has to determine issues of causation and blameworthiness so as to decide what if any deduction there should be in C's damages by reason of contributory negligence.

D1's Conviction

6. On 15 April 2011 D1 pleaded guilty to offences of dangerous driving and driving whilst disqualified. He was sentenced by a judge at Shrewsbury Crown Court to 18 months' imprisonment for dangerous driving, plus 4 months' imprisonment consecutive for driving whilst disqualified, plus 2 months' imprisonment consecutive for failing to stop after a road traffic accident. The total period of imprisonment was 2 years and D1 was disqualified for 5 years until an extended retest is passed.
7. D1 had an extensive criminal record, including but not limited to offences of driving without due care and without insurance, driving with excess alcohol and driving whilst disqualified and without insurance and for failing to stop.
8. The judge (Judge Barrie) said:

"I deal with you on the written basis of plea that was agreed on the last occasion that you were before the court, which is based on what I have read from the independent witness, Mr Marsh, who saw what happened. It is clear from what he says that it is right to deal with you on the basis that you did not try to hit Mr Groves, but swerved to try to avoid him and he jumped onto the bonnet of your car. I accept that as being the start of the events that led to the injuries that he suffered shortly afterwards.

You drove off. What Mr Marsh says is that near to the exit he saw the brake lights come on and then the car went round the bend like you were trying to shake him off. You pulled off at speed and also when you left the exit of the lay-by you didn't stop at any time. You drive off. You drive more than 500 metres^[2] with him on the bonnet of your car and then you swerved and threw him off the bonnet to the verge."

The Witnesses

9. The witnesses I have heard are:

(i) Jennifer Groves, C's sister.

(ii) Anna Stealey, C's former girlfriend.

(iii) Charlotte Cook, D1's then girlfriend and the sole passenger in the Peugeot.

(iv) Luke Galloway, an occupant of a silver Vauxhall motor car which was one of three cars (including the Peugeot) returning from a trip to Barmouth together.

(v) Laura Cleeton, a passenger in a Citroen motor car, which was one of three cars that had been to Barmouth.

(vi) David McInnes, the driver of the Citroen motor car in which Laura Cleeton was a passenger.

(vii) PC Stafford, the police investigation officer who investigated the accident.

(viii) James Phillips, an independent witness who worked at Dinky's Diner, a 24 hour diner located in the lay-by.

(ix) Ricky Marsh – also an independent witness who worked at Dinky's Diner. Mr Marsh died on 31 March 2013. His statement to the police dated 4 July 2010 was admitted under the Civil Evidence Act.

In addition there has been evidence from accident reconstruction experts, namely Mr Seston for C and Mr Mottram for D2.

Background Facts

10. The evidence as to how C arrived in the lay-by is uncontroversial. That evidence was given by Jennifer Groves and Anna Stealey. Both these witnesses agreed that C could be a bit of a lad and got into odd scrapes. On the evening in question Jennifer Groves was the designated driver of a white car. She had picked up in Shrewsbury the Claimant, Anna Stealey, Kevin Wynne (Jennifer Groves' partner) and a man called Kevin Jones. Before he was picked up the Claimant had said he had had two pints to drink and during the evening he had another five pints or so, but was described as not being in a bad way. The five people in the car went to Welshpool and spent the evening in various public houses. They left Welshpool at about 12:20am en route back to Shrewsbury. They then stopped at Dinky's Diner to get some food. Jennifer Groves parked her car in the lay-by near to the toilets. These are on the other side of the lay-by from the café.^[3] There were three tables outside the café. The five occupants of the white car sat at one of the tables. According to Jennifer Groves the table nearest the hatch was parallel to the hatch and so was the middle table. The third table was at right angles to those two tables. This is not as shown on subsequent photographs where the middle table is also at right angles to the table nearest to the hatch. Jennifer Groves was supported by Anna Stealey in the evidence as to the configuration of the tables. However I believe on balance that their recollection is incorrect since this was a café where Mr Phillips worked for many years, and he said that the tables were always in the configuration shown on the photographs. Jennifer Groves' recollection is that she was sitting on the bench nearest the hatch with her back to the other benches, Anna Stealey was sitting next to her, Kevin was opposite and the Claimant was behind her sitting on the middle table. Anna Stealey at first said she did not remember the configuration of the benches but thought that her party was on the middle bench and she was facing the hatch. She said she thought that C was sitting on the table. I accept that Jennifer Groves and Anna Stealey were sitting facing the hatch and I accept Jennifer Groves' evidence that this was the table nearest the hatch. (Mr Phillips' evidence on this point was to the same effect). This group had ordered food when D1's Peugeot entered the lay-by from the Welshpool direction and came to rest close to the tables, but a few feet away from them.
11. As regards D1 and his party, they had been to Barmouth. They did not stay there long. D1 had not drunk anything. Three cars left at the same time in this group. They were: D1's Peugeot in which Charlotte Cook was the passenger, Dave McInnes and his girlfriend Laura Cleeton who were in a Citroen motor car and Luke Galloway in a silver Vauxhall driven by Dave McDonald. The Peugeot arrived first at the lay-by and the other two cars pulled up alongside it across the lay-by.
12. Up to this point there is no serious disagreement as to the evidence and there was no indication of any trouble.

How Did C come to be on the Peugeot's Bonnet?

13. There are three potential explanations for this:

(i) He was struck by the front of the Peugeot and landed on the bonnet.

(ii) He jumped onto the bonnet so as to avoid being run over by the Peugeot.

(iii) He jumped onto the bonnet in order to get the Peugeot to stop.

14. C's primary case is explanation 1, failing that explanation 2. D2's case is explanation 3.
15. I shall consider the evidence in respect of this question and subsequent events in three main sections. The first section is up to the point where the two cars other than the Peugeot leave the lay-by. The second section is from that point until C first ends up on the bonnet of the Peugeot. Finally, I shall consider from that point until C was thrown off the bonnet.

Evidence and Findings up to the Point Where the Citroen and Vauxhall Motor Car Leave the Lay-by.

16. Jennifer Groves' evidence in summary is:

When the three cars were in a row she saw a passenger get out of the middle car and one get out of the far car. They were talking to each other. Then the male in the middle car said they had been to Barmouth and he had lost his boxer shorts and shoes. He asked if anybody had got a pair of size 8 trainers. She stated that this was said jokily. Her brother responded jokily saying he had some in his back pocket. Then it got heated. The man shouted and her brother responded. She did not pay attention because she was talking and eating. At that point she did not think it was other than a joke. The first thing she was aware of was when her brother got up and started walking towards the cars. She did not know what started it. She told her brother to sit down and shut up, she couldn't see her brother's facial expression. He could have been aggressive. Then the person in the car got in the vehicle. The door was open and he shouted "come on". She said her brother had been provoked and the other man (Luke Galloway) definitely shouted back. The passenger door was open as the Vauxhall car drove off. Her brother ran after the cars shouting to the end of the lay-by. She did not know what he was shouting. She accepted that in her police statement made in the early hours of 4 July 2010 she said that her brother had shouted "come on then you cunt" and then started to run after the Vectra. Her brother was thereby being aggressive and was angry and intimidating. She said her heart sank as she thought "here we go again". By that she meant that she had seen her brother in fights before. She was relieved that the cars got away. After they had left the lay-by her brother walked back from the end of the lay-by. He did not run back. At this stage she thought that the heat had gone out of the situation.

17. Anna Stealey's evidence in summary is:

She noticed one of the men had got out of the two cars and he had no shirt or shoes on. He shouted across "has anyone got any spare shoes?". C responded sarcastically saying "I always carry a spare pair." She said that C said that he had some in his back pocket.^[4]

In her witness statement made in the early hours of 4 July 2010 Ms Stealey said that following the above conversation "…for some reason, Ian got up from the bench we were sitting at, I was sitting facing the diner and had my back to the car park area where the cars were. Ian walked past me to the counter where we had got our food from and put his food down onto it. Then Ian ran at the silver and dark coloured cars that had arrived. …I just saw Ian running off towards them, I don't know why he did this as Ian was running the two cars were driving off." In cross examination it was suggested to her that her witness statement – which for the first time mentioned that the lads in the car were leaning out of the windows and shouting at Ian, goading him to chase them – was incorrect, since it was not mentioned in the police statement. However given Mr Galloway's admission (see below) I do not accept this criticism.

Ms Stealey also has been consistent in stating that C walked back along the lay-by after the two cars had left it.

18. Luke Galloway accepted that he was incredibly drunk. He said there were parts of the night and day which he could not remember. He said the conversation about the trainers started off as banter. He said that C said to him "yeah I got a pair up my arse". Also that C bent over to show his bottom to him. However he said that at this stage it was all a laugh and banter. But after that C became intimidating. He said he was a bit intimidated but he wasn't scared. He could tell that C was not going to let it stay at banter. Dave McDonald shouted for him to get into the car. He did not know if Dave McDonald was in a hurry to get back because he wanted to get back to his girlfriend, but that wouldn't have surprised him. He accepted that as they drove off and C started running after them, he opened the door and said something like "come on, come on". He did not hear any words from C as he chased after the car.
19. Laura Cleeton said in summary:

D1 had lived with her family for some five years. He was like a brother to her. She believed she had stayed in the Citroen with Dave McInnes, her boyfriend, throughout the time that the Citroen was in the lay-by. She said her window was slightly open. However she did accept in cross-examination that she could not remember if Mr McInnes or she got out at some stage. She heard the conversation about the shoes. In her witness statement made to the police on 8 July 2010 she said that Luke Galloway's question about the spare pair of size 8's had been met by the reply from C "they're up my fucking arse". Apart from that she could only hear raised voices and see the body language afterwards. That was why she said in her witness statement "I think the whole group were concerned that something was going to "kick off". He just seemed so angry and this was not justified after what was only "banter".

She had assumed that the Vectra left because of C shouting at Luke Galloway.

20. Mr McInnes' police statement dated 15 July 2010 said:

"I now recall Luke announcing that he had left his trainers down in Barmouth…I heard some sort of response. I am not even sure whether it was even a male or female talking but Luke then said "I've a size 8 foot here that can go up your bum". Again this was said only in jest and I certainly didn't anticipate anything that was going to happen when I was sat in the car. Due to my position I couldn't actually see what was going on. I now became aware of Jamie and Luke getting back into the car and that Dave McDonald was keen to get back and see his girlfriend. I don't recall there being any specific rush to leave other than Dave wanting to head off. I shouted through my open passenger window to John to see what he was doing. He said that he was waiting for his burger and would catch up. Even at this point I was (not) aware of anything going on or any friction between Luke and anyone else. When everyone was in the two cars we began to drive away. I recall Luke leaving his door open. I presumed because he was drunk. David McDonald drove off in front and as I was leaving the main road I looked in my rear view mirror to see someone right behind my car. They were running but any sound they were making was drowned out by the sound of my diesel car….it appeared clear to me that they were trying to catch me and this eventually amused me somewhat…"

Mr McInnes confirmed that he did not see or hear anything suggesting physical aggression and the first that he knew which was untoward was when he realised that the car was being chased up the lay-by.

21. James Phillips said in summary:

He works a 6pm to 6am shift at Dinky's Diner. He was in the kitchen behind the hatch and heard a loud noise. He could tell that things were getting a bit raised. He said that he saw C coming to the hatch and then turning round. He was shouting at the cars. They weren't moving. Shortly after Mr Phillips left the kitchen behind the hatch and went straight to the middle bench and sat on the seat nearer the lay-by. He could see the gold Peugeot near where he was sitting. Two vehicles were driving off down the lay-by. C was chasing two cars. C was about halfway from the café to the end of the lay-by. Two cars were going down the lay-by, one was near the end and the other was behind it. As C was chasing the cars he was shouting, but Mr Phillips could not hear clear words. After the cars left the lay-by C turned and ran back down the slope at the end of the lay-by to a point which Mr Phillips had marked "D" on a plan. He then stopped and started walking.

22. Charlotte Cook had only a vague recollection when she made her witness statement to the solicitors, and she accepted that her recollection as to detail was not very good in the witness box. She recalled an angry exchange between Mr Galloway and C and that there was no physical attack. She said in her police statement that C started to run after the cars and the women told him to stop it and sit back down. She also said in that statement that C seemed really angry. By this stage she was standing outside the Peugeot motor car.
23. Based on the above evidence I make the following findings of fact on the balance of probabilities:

(i) What started off as banter between Mr Galloway and (possibly) C degenerated quite quickly. Before the two cars drove off C had become aggressive. I accept the evidence of Mr Phillips on this. It is also supported by Jennifer Groves' police witness statement and her evidence in cross-examination. The impression of other witnesses was similar, and it is confirmed by C's behaviour in chasing after the cars.

(ii) Mr Galloway was goading C, certainly at the point when his car was driving off and he opened the door and shouted "come on, come on" to C.

(iii) When the cars had left the lay-by, I accept Mr Phillips' evidence in preference to that of Jennifer Groves and Anna Stealey that C ran part of the way back, approximately as far as the end of the slope of the lay-by. After that point it is common ground that C was walking. I will deal with this later evidence subsequently in the judgment. Nevertheless I believe that Mr Phillips was accurate up to this point, and that probably Ms Groves and Ms Stealey did not notice at the time or subsequently that C ran part of the way back.

(iv) It follows from the above that C was in a wound up state from a point prior to his chasing after the two cars up to and including the point where the review of this section of the evidence concludes.

24. These findings of fact are also supported by the witness statement of Ricky Marsh. In that witness statement, dated 4 July 2010, Mr Marsh said:

"The next thing I heard was the was the male who had come from the white vehicle stood up and his arms were by his side his fists were clenched, shouting "come on" at the two dark vehicles which were parked in front of the Peugeot. The two dark vehicles drove off slowly and this male then ran off after them, the gold Peugeot was still parked up….I went out and saw the female in the white vehicle she said "he is always doing this looking for fights, I have had enough."^[5]"

Evidence and Findings After the Point Where the Citroen and Vauxhall Motor Cars leave the Lay-by

25. I shall start this section with the evidence of Mr Phillips. This is because, although my impression was that all witnesses were doing their best to give honest testimony, Mr Phillips was the most impressive witness; in addition he was wholly independent. I have already found^[6] that C ran part of the way back down the lay-by and was in a wound up state. Mr Phillips was asked by Anna Stealey to make a 999 call. We have a transcript of that call. With one qualification Mr Phillips' evidence as to how C ended up on the bonnet of the Peugeot is consistent with that call.

As to Mr Phillips' view, two photographs were shown to him. These were photographs taken in the month of November of the lay-by in the dark.^[7] Mr Phillips said that those photographs were a lot darker than what he could see on the night.^[8]

From his vantage point on the middle table Mr Phillips said that C started walking from the point "D" near the bottom of the slope of the lay-by. He was remonstrating with his arms towards the people in the Peugeot. He was saying something like "you know all them, you're gonna have it." At this point D1 told his girlfriend to get in the car. Mr Phillips' impression was that they had been threatened by C. The car set off very erratically and fast. The wheels screeched. It drove directly towards C. However, it then swerved about 1 metre to the right. If it hadn't swerved it would have hit C. If he hadn't moved after the swerve it would have missed him. C deliberately jumped onto the bonnet. Mr Phillips could definitely see the whole length of his body just prior to him landing on the bonnet. C launched himself from the position at the front nearside corner. From that point the Peugeot continued to drive. The brake lights came on at the end of the lay-by but the Peugeot did not stop totally, and then it drove off out of the lay-by.

In the transcript of the 999 call Mr Phillips is recorded as saying that D1 drove straight at C, and that C jumped on the front. A little later there is this entry:

"…he drove straight at him, he drove (inaudible) on the bonnet (inaudible) from over there mate he would have been run over, he had to jump on the bonnet."

Mr Phillips said that he was certain that it was incorrect that C had to jump on the bonnet. There was no mention of a swerve in the 999 call but Mr Phillips said he was not thinking about a swerve at the time of the call. He just wanted to get the police there as soon as possible.

Mr Phillips made a police statement sometime between 6pm and midnight on 4 July 2010. In that police statement he said "the 306 was accelerating hard towards him. I saw the 306 swerve to its right in what I think was an effort to avoid the angry man. It was more than enough to miss him. I then saw the man in the road actually jump to his left and into the path of the 306. I believe he did this on purpose to get the car to stop. I saw the male jump into the air and land on the bonnet of the 306…"

Therefore this second account is entirely consistent with Mr Phillips' oral evidence. He made it clear that by the words "into the path of the 306" he meant that he jumped across the path of the car. There was only one jump. I accept this.

26. I shall briefly review the evidence of the other witnesses. I shall do the same with the expert evidence. However, the oral evidence of Mr Phillips as detailed above encapsulates the material findings of fact, namely:

(i) C was threatening the people in the Peugeot.

(ii) C stood in the path of the Peugeot.

(iii) The Peugeot drove straight at C but expecting him to get out of the way, which he could have done.

(iv) The driver of the Peugeot realised that C was not going to get out of the way and he swerved about a metre to the right to avoid C.

(v) Had C stayed where he was the Peugeot would have avoided him.

(vi) However C jumped onto the Peugeot from a point at about the front nearside corner.

I find that D1 was concerned to get away because of C's behaviour and was driving off for that reason. He had ordered and paid for food^[9] and, very shortly before, had told Mr McInnes that he was going to wait for his burger and would catch up with the other two cars. What caused him to change his mind was, in my judgment, clearly the fact that C was behaving in a threatening manner.

27. These findings are again supported by the witness statement of Ricky Marsh who, after the two vehicles had driven off from the lay-by, stated:

"I went into the kitchen and then I heard someone shouting at the gold Peugeot. I didn't know what it was. I think this male who had come back, this male was the one from the white vehicle. I then saw the male from the gold Peugeot shout at the female from the vehicle "get in the car". This was about three times. She replied "we haven't had our food yet". I said "it's nearly done". She got in the car without the food. The male from the Peugeot got in his car. He revved the car. He then (started) to drive off. I saw the male from the white car now at the side of the Peugeot and this vehicle swerved to avoid hitting him. I would say to give him some space. I then saw the male from the white car jump in front of the Peugeot. The next thing he was on the bonnet and saw the car drive off down the road."^[10]

28. Jennifer Groves accepted that the Peugeot occupants' food was ready but they did not collect it. She said that D1 said to Anna Stealey that they had better calm Ian down. She also accepted that neither occupant of the Peugeot had said anything in the earlier altercation with Mr Galloway. She had no recollection of C threatening the Peugeot occupants. In her witness statement she said that D1 began to shout abuse down the lay-by at C. He angrily asked his girlfriend to get back in the car and when she wouldn't he screamed at her until she did. He completely lost his temper and was very angry and intimidating. She accepted that this was not in her police statement made a few hours after the accident (when she said she was still very shaken up), and that there was nothing in the police statement suggesting that D1 changed suddenly from being sensible to aggressive. She denied that C was abusive and waving his arms. Her evidence was that then D1 accelerated away. He drove about three car lengths and then stopped about two car lengths from C. He then started again and hit C. She said it was clear that C was not going to get out of the way from the way he was acting. She assumed from the position that the front bumper had hit C. She said that the Peugeot did not deviate and C did not launch himself on the bonnet.

Ms Groves was a sensible and honest witness. However I believe she is mistaken on certain central matters, namely:

(i) That D1 was aggressive towards C. He may have been excitable because he was concerned to get away.

(ii) That C was not waving his arms and shouting at D1.

(iii) That the car did not swerve.

(iv) That the Peugeot started driving towards C stopped and then started again. I find that there was no stopping once the Peugeot had begun driving.

29. Anna Stealey was spoken to by the police shortly after the accident. There is a pocket book entry. In it she says "Ian started to walk back towards us. At this point we were talking with the occupants of the gold car…the male driver said something along the lines of "I am not having him talk to them like that" to which the female replied "this is bad, Luke's in the car."…the car began to move at a normal speed and we all thought that either the car would stop or drive around Ian but it didn't it carried on, and then I am not sure if Ian had to jump on the bonnet to try to save himself being hurt or was hit and forced onto the bonnet…"

Her oral evidence was similar to the above. In her witness statement^[11] she said that prior to the Peugeot starting off "the girl said something about a lad called Luke making out he was not somebody to cross. I turned to the driver and said "don't you dare do that". I was worried he was going to go after Ian and start a fight. He was angry."

Ms Stealey said in cross-examination that C did not move out of the way when the car started moving. There was a bit of a stand off. She did not remember the Peugeot stopping. She did not remember the car steering to its right. It drove straight at C. She did not see how C came to be on the bonnet. To her it looked as though the car hit him. She did not see any brake lights as the car got to the end of the lay-by.

Again Ms Stealey was a fair and decent witness giving her honest best in my judgment. Nevertheless I do not accept on the balance of probabilities that D1 did anything threatening or that would suggest he was going to go after C. This may have been an inference from the fact that the Peugeot drove initially straight towards C. I believe that she missed the last minute swerve seen by Mr Phillips and Mr Marsh. She is also wrong that C was hit by the car rather than jumping onto its bonnet.

30. Charlotte Cook's recollection was that C came running down the lay-by at the car. He was shouting and angry. She accepted that initially she wasn't in a hurry to leave and she recalls (consistently with her police statement) that she did not want to go because she did not see any danger to herself or D1. Nor did she rush to get into the car. She said that at that point C was still some distance away. She did not remember D1 making any comments which could be construed as threatening or aggressive. She said that D1 was nervous or scared. She did not remember a wheel-spin as the car started off. She denied that D1 drove directly at C. She gave an account of him snaking so as to avoid C. She had said in her statement that C jumped on the bonnet but she did not recall in the witness box how he ended up on the bonnet.
31. In common with other witnesses Charlotte Cook was doing her best. Her recollection was patchy and somewhat vague. To the extent that her evidence differs from that of Mr Phillips, I accept Mr Phillips' evidence as being more accurate. Critically that means I do not accept her recollection as correct when she says that D1 did not initially drive directly towards C.
32. There was a good deal of expert evidence. However it is not of great assistance to me. I consider it as a check on my findings on the witness evidence set out above. The experts agreed that at the point when C ended up on the bonnet the Peugeot was probably going at less than 9 miles per hour. At that speed, though with some disagreement as to the likelihood, both experts accepted that none of the three possibilities as to how C ended up on the bonnet could be totally ruled out. Mr Mottram thought it was unlikely that if C was struck and "collected" by the car that he would then be able to get a hand hold on the edge of the bonnet near to the windscreen. They both considered it unlikely that C could jump on the car bonnet from the side of the car, even at a speed less than 9 mph because, by approaching from the side, C is likely to have slid or rolled up the windscreen and would have found it difficult to reach to his side, while sliding or rolling to obtain a hand hold on the rear edge of the bonnet. As to the possibility that C jumped on from the front nearside corner, this had not been considered by the experts since it was not explicit in Mr Phillips' witness statement. When this was put to them, Mr Seston thought it was less likely that C would be able to get a grip than if he had jumped on the car from the front (potentially to avoid being hit) because he would be at something of an angle. However Mr Seston could not exclude Mr Phillips' evidence. Mr Mottram thought that the likelihood of C getting a hand hold if he jumped on the car from the front or the front nearside corner was about the same. I find that there was no material difference in the prospects of C getting a hand hold whether he launched himself from the front of the car or from the front nearside corner. There is nothing in the expert evidence which undermines Mr Phillips' oral evidence.
33. Indeed there is some evidence to support the fact that C was not "collected" i.e. struck by the car. Substantial expert evidence was devoted as to how much dust/grime was on the car given that it had done an over 200 mile journey from the Midlands to Barmouth and back, and then kept in storage from probably about 1500 hours on 4 July 2010 until PC Stafford's examination on 7 July 2010. Whilst there can be no certainty on this issue, it seems to me unlikely that the car had been cleaned between the time of the accident and the time of PC Stafford's inspection. This is because Charlotte Cook said that she and D1 travelled back to her grandmother's house that evening and slept in the same room until D1 left at about 10:45am. D1 had only got up a short time before that. There was a bucket and sponge in the garage but it needed a key to get in and she was not sure where the key was. Mr McInnes said that D1 came round to his house at about 10am (slightly inconsistent with Ms Cook). He was not aware the car had previously been cleaned and it was not cleaned after 10am. He was there when the car was taken away by the police at about 3 o'clock on the afternoon of 4 July. Therefore although the car might have been cleaned, it was unlikely that it had been so. Apart from a thin layer of dust and ingrained dirt there was bird dirt on the windscreen. There is no evidence that only part of the car had been cleaned.
34. The relevance of whether the car had been cleaned or not is that the experts agreed "if the front of the car was dirty and was not subsequently washed, the lack of "cleaning" marks on the front bumper or leading edge of the bonnet indicates that the Claimant was not collected by the Defendant's car."^[12]

Evidence and Findings After the Point Where C Landed on the Bonnet of the Car.

35. I shall deal with this evidence in summary and only so far as is relevant to make certain findings.
36. The first question is whether the car stopped or braked at any stage before it left the lay-by. Jennifer Groves said no. Anna Stealey did not see any brake lights. Mr Phillips' oral evidence was that the brakes came on at the end of the lay-by but the Peugeot did not stop totally. Mr Marsh's statement says: "I then saw near to the exit the Peugeot brake lights come on and I would say around the bend, like he was trying to shake him off."

I do not believe that Mr Phillips and Mr Marsh were mistaken. Therefore the brake lights came on but the Peugeot did not actually stop at any stage.

37. As to the speed of the Peugeot after it left the lay-by, the experts were asked to state the highest speed at which the vehicle could have been driven. They said they were unable to answer this question with any authority. However, providing there were no sudden or significant steering/swerving movements undertaken by the driver, and on the basis the Claimant was able to maintain a good grip, they considered that speed of around 25 – 30 mph might have been achievable, or possibly a little higher. They said however that the latter observation is somewhat speculative. There is no physical evidence available to allow them to establish or estimate how fast D1 drove out of the lay-by and on the road.

Charlotte Cook's estimate was that D1 was driving at 10 – 15 mph along the lay-by. However this estimate in her witness statement was before C jumped onto the bonnet. It was therefore too high an estimate on the basis of the expert evidence previously described in this judgment. Her statement says "although Jon drove a bit quicker when on the main road I feel it was only about 5mph quicker." In her police statement dated 4 July 2010 she said "by now Jon had driven onto the main road. I would say he was driving a bit quicker but not that fast."

Although Ms Cook was an honest witness, I do not believe she had a good recollection and her estimate of an extra 5mph is not a reliable one.

Mr Phillips' estimate that the car was doing 20 – 30mph as it approached the end of the lay-by.^[13] The notebook entry of Ricky Marsh's oral statement to the police is "as he was going down the exit it looked like he was swerving to try to get the guy off the bonnet. (I) think he was done at least 15mph."

D1 has not given evidence. The only evidence I have of any significance is that set out above. Doing the best I can I believe that the minimum speed which D1 was doing before and after he braked was in the region of 20mph and could have been higher. It was sufficient speed that when he swerved later he managed to dislodge C from the bonnet.

38. Charlotte Cook gave evidence as to what happened on the main road. In her police statement she said:

"I said to Jon "stop". Jon didn't say anything to me but he was shouting to the man to get off. The man had his fingers in the edge of the bonnet of the car and he was shuffling across the bonnet. He still looked angry and had a smirk across his face. I screamed. I did not know what the man was doing or what he was going to do. Jon shouted "no chance". Jon then steered the car so that it swerved and as it swerved I saw the man's body twist and then he fell off straight across the edge of the bonnet…."

In evidence in chief she said that he was bearing his teeth at her and started to move to her side. She thought that D1 believed that C was trying to get her and he swerved and then C fell off.

Ms Cook accepted in cross-examination that she did say stop to D1 and he did not respond. She accepted that at no time did the car stop. She also accepted as regards C's facial expressions that she was not sure that he looked angry. She said that C pulled up and put down the windscreen wipers. He released his grip on the bonnet with one hand to lift up a windscreen wiper.

I do not believe Ms Cook's evidence as to C bearing his teeth in a deliberately threatening manner is reliable. Nor do I accept her evidence is reliable that C moved across the bonnet such that D1 may have thought that C was trying to get at her. Finally I find her evidence that C lifted the windscreen wiper to be unlikely. There was no damage to the windscreen wipers. It would also be very surprising if, in the position which C was then in, he had released his grip on the bonnet with one hand so as to lift the windscreen wiper.

None of these findings go to Ms Cook's honesty; merely as to the reliability of her recollection.

39. Finally there was evidence of a telephone call whilst D1 was driving along the main road with C on the bonnet. Mr McInnes said he called D1 but couldn't get through. He then received a call from him. In his police statement Mr McInnes said "Jon sounded in complete panic". He resiled from this somewhat in oral evidence and said that D1 seemed distressed. D1 said to Mr McInnes "he's on my bonnet" then the call cut off.

I accept the sequence of events which Mr McInnes described. His evidence as to D1's "distress" is one of impression based on a very short telephone call. I shall discuss this later.

Legal Principles

40. In Wisniewski v Central Manchester Health Authority [1998] PIQR 324 Brooke LJ said:

"From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."

I have to bear these principles in mind given that D1 was not called to give evidence and there was no explanation given of this failure.

41. Section 1 of the Law Reform (Contributory Negligence) Act 1945 provides:E+W+S

"(1)Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:"

42. In Stapley v Gypsum Mines [1953] AC663, 682 Lord Reid said:

"A Court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but "the claimant's share in the responsibility for the damage" cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness."

43. In Eagle v Chambers [2003] EWCA Civ 1107 at paragraph 10 Hale LJ (as she then was) encapsulated the well known position as to contributory negligence:

"There are… two aspects to apportioning responsibility between claimant and defendant, the respective causative potency of what they have done, and their respective blameworthiness…"

44. It is well known that the individual facts of road traffic accidents are not generally a good guide to authoritative decisions on apportionment of liability. There is no case which counsel has been able to find which is in any way similar to the circumstances of the present case. I was referred to certain other authorities^[14]. However none of these really assist me in my task of apportioning liability.

Discussion

45. The situation can therefore be encapsulated in the following manner. As C was returning down the lay-by having chased after the two other cars he ran part way down the lay-by and then stopped. He was waving his arms and shouting in a threatening manner. D1 clearly wanted to get away from the scene. However I do not draw an inference in his favour that he was frightened. More than that, he initially drove his car directly towards C. He could have driven out of the Welshpool exit. He could have taken a route which from the outset sought to avoid C. C himself was behaving badly, as I have described. He could have got out of the way at any time. Only at the last moment did D1 swerve to try to avoid C. This was probably because he had expected C to get out of the way. The probabilities are that C had also expected D1 to stop. At that point C jumped onto the bonnet from round about the front nearside corner of the Peugeot. He managed to get a hand grip on the edge of the bonnet near the windscreen. C either believed that this would stop D1 driving his car or, possibly, C did not really think straight at all when jumping on the car. I am not prepared to find that at any stage D1 panicked or was very frightened. Clearly he did not want C on his bonnet. Once C was on the bonnet it was difficult for him to get off unless the car stopped or at least slowed very substantially. D1 could have stopped or slowed very substantially at any stage thereafter. He did not do so. He continued to drive and indeed accelerated. If he was concerned as to what C might do he could have locked his doors. There was no evidence that either he or Ms Cook did so. D1 could have either stopped in the lay-by where there were other members of the public or he could have stopped at any stage thereafter. He drove a substantial distance with C on the bonnet. He then deliberately swerved his car so as to dislodge C from the bonnet. In this he was successful and caused to C grievous injuries. He was guilty of the offence of dangerous driving.
46. Given those circumstances, and adopting the principles of causation and blameworthiness, it is my judgment that the responsibility for this accident was 60% D1 40% C. C is therefore entitled to damages representing 60% of the full value of his claim.

Note 1   D2’s Skeleton Argument para 20.    [Back]

Note 2   Now agreed to be up to 475 metres.    [Back]

Note 3   Mr Phillips in a sketch plan had put the white car much nearer to the diner but he said that, apart from the Peugeot motor car, he did not have a clear recollection of where the other cars parked up in the lay-by. These included the white car. I accept his explanation and I accept Jennifer Groves’ evidence that she had parked the white car near the toilets.     [Back]

Note 4   This evidence is reflected in the transcript of the police notebook entry which appears to have been made at 2:10am.    [Back]

Note 5   Jennifer Groves denied that she said this. Anna Stealey accepted she might possibly have done so but she could not remember.    [Back]

Note 6   Judgment paragraph 23(iii) and (iv).    [Back]

Note 7   Bundle 3, pages 58 and 59.    [Back]

Note 8   Mr Seston, C’s expert, said that when he had taken the photographs he had tried to reproduce as clearly as possible what he could see. He accepted that it may be different on different nights and could not gainsay Mr Phillips’ evidence on this point, though he was hesitant about it. I accept Mr Phillips’ evidence.    [Back]

Note 9   Evidence of Mr Phillips.    [Back]

Note 10   C submitted that the words “at the side of” and “in front of” were not consistent with Mr Phillips’ evidence that C jumped onto the car from a position near the front nearside corner. I do not regard this as the case. In broad terms it is consistent with Mr Phillips’ evidence. In any event, I accept Mr Phillips’ oral evidence.    [Back]

Note 11   6 September 2013.    [Back]

Note 12   There was evidence from Mr McInnes that on their way home his car and the Peugeot had stopped in a lay-by of the A5. At that point D1 was visibly shaking and appeared scared. He said a man had jumped on his bonnet and then he jumped on his own car bonnet to demonstrate. This could have accounted for at least some of the small depressions which PC Stafford found on the bonnet.    [Back]

Note 13   Police statement 4 July 2010; witness statement 11.4.2013, paragraph 24.    [Back]

Note 14   Lunt v Khelifa [2002] EWCA Civ.801; Lee North v TNT Express [2001] EWCA Civ.853; Ayres v Mahesh Odedra [2013] EWHC 40; Belka v Prosperini [2011] EWCA Civ.623.    [Back]