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
		27/07/2018

Master Cook:

1. On the 17 November 2013 at about 12.40pm the Claimant was seriously injured in a road traffic accident whilst crossing the A1101 Isle Road in Outwell near Wisbech. It is accepted that the accident was caused by the negligent driving of the Defendant who was riding a Jinlun 125cc motorcycle.
2. At a case management hearing which took place before me on 23 March 2018 Judgment was entered for the Claimant subject to the issue of any contributory negligence on the part of the Defendant. The parties agreed to have the outstanding issue of contributory negligence resolved by way of a preliminary issue hearing before me. This is my judgment on that issue.
3. Unusually for an accident of this kind there is a considerable dispute between two witnesses as to how the accident occurred. The Claimant sustained a serious brain injury and has no memory of the accident and for understandable reasons did not give evidence. The two witnesses to the accident who gave evidence were the Defendant and Mr. Norman who was a Tesco delivery driver. The Claimant's brother Mr. Kenny Bright was also called to give evidence about the most likely route his brother would have taken. He did not see the accident occur but was taken to the scene of the accident shortly after it had occurred.
4. The Court's task has not been made any easier by the fact that the police who attended the scene of the accident did not conduct any detailed investigation and did not prepare a detailed accident report or take photographs. This is surprising given the severity of the injury to the Claimant which required the attendance of an air ambulance.
5. The parties had been refused permission for expert evidence on liability, however they had jointly instructed Mr. Kingham of Hawkins to produce a factual report with photographs, measurements and a speed conversion table.

Summary of those facts agreed and not agreed

6. The following facts were not in dispute:

i) the accident took place at about 12.40pm on 7 November 2013 on the A1101 Isle Road in Outwell near Wisbech, which is a largely straight section of road which runs from south to north. The road is a quiet country road in a residential area;

ii) the speed limit on the road was 30 mph;

iii) the weather was fine and dry;

iv) the Defendant was travelling north on his motorcycle;

v) the Claimant was crossing Isle Road on foot from the east side of the carriageway to the West;

vi) the Claimant had crossed the centre of the carriageway and entered the northbound carriageway when the accident occurred;

vii) at the time of the accident Mr. Norman was sitting in his delivery van which was parked on the eastern side of the carriageway;

viii) the Defendant subsequently pleaded guilty to an offence of driving without due care and attention in respect of the accident.

7. The following facts were in issue:

i) precisely where the collision occurred;

a) the Claimant's case was that the collision occurred approximately opposite where Path C (shown on "Figure 2" of Mr. Kingham's report) meets the carriageway at a location marked by a red X on Figure 2. The position of the red X is derived from a position marked by Mr. Norman on the aerial photograph attached to his witness statement dated 18 May 2018;

b) the Defendant's case was that the collision occurred a little further north opposite the entrance to M&B Distributors approximately opposite where path D (shown on "Figure 2") meets the carriageway;

ii) the position of Mr. Norman's van in relation to the collision;

a) Mr. Norman's evidence before me was that he was parked approximately 100m south of the location of the collision in a lay by (marked Layby 1 on "Figure 2")

b) The Defendant's evidence was that the van was parked approximately 10 to 15 meters south of the location of the collision;

iii) whether Mr. Norman's van was parked on the carriageway, or whether it was parked in a layby;

a) Mr. Norman's evidence was that he was parked completely within Layby 1;

b) The Defendant's evidence was that Mr. Norman was parked on the carriageway "taking up almost all the other side of the road";

iv) which direction Mr. Norman's van was facing:

a) Mr. Norman's evidence before me was that his van was facing north looking towards the collision location;

b) the Defendant's evidence was that the van was facing southwards away from the collision location;

v) whether the position of Mr. Norman's van would have obscured the Defendant's view of the carriageway;

a) The Claimant's case was that the van could not have obstructed the Defendant's view as it was a considerable distance from the collision location and was parked fully off the carriageway;

b) The Defendant's case was that Mr. Norman's van was obstructing his view such that he was only able to see the Claimant once he had passed the van;

vi) whether the Defendant made any attempt to avoid the collision;

a) Mr. Norman's evidence was to the effect that the Defendant made no attempt to slow down, sound his horn or manoeuvre around the Claimant. He stated that his impression was, if anything, that the Defendant's speed appeared to increase.

b) The Defendant's evidence was that he both braked and sounded his horn.

My Findings

8. I found the Defendant to be a very unimpressive witness. I found his answers to be evasive and he struck me as someone who would take any opportunity to minimise his own responsibility for the accident. For example, in his police interview under caution at the scene of the accident he made no mention of the fact that the Tesco van had obscured his view and stated that he first saw the Claimant from a distance of 30 meters. In his witness statement dated 16 February 2015 and in his evidence before me he maintained that the Tesco van was taking up the entire carriageway and that he did not see the Claimant until he had passed the van. Another example was his evidence that he was riding with L plates as he had not yet passed his motorcycle test. The police record, which I accept as accurate, clearly states that the motorcycle was not displaying L plates.
9. I found Mr. Norman to be an honest witness who was doing his best to recall events which occurred almost 5 years ago. In particular, I find he has become confused about the distance his van was from the site of the accident. He has not been assisted in his recollection because of the discrepancy between his initial comments recorded at the scene to the effect he was approximately 10 meters away from the point of collision and the contents of his police statement made approximately one month later in which he recorded the distance as being 100 meters. I accept that since that time he has tried to resolve the discrepancy in the two further witness statements prepared for these proceedings. Whether he was 10 meters or 100 meters from the accident site his description of what actually happened has been consistent from the start.
10. Mr. Kenneth Bright was a patently honest witness and I accept his evidence in full.
11. I find that Mr. Norman had parked his van fully within Layby 2 facing North. This is consistent with the position of his van shown in the sketch plans attached to his police statement and his statement dated 20 February 2015. I think it more likely than not that the account he gave to the police at the scene of the accident was correct. I am supported in this view by Mr. Norman's estimate of the relatively short time it took him to reach the scene once the accident had occurred. It follows that I do not accept the Defendant's evidence that Mr. Norman's van obscured the Defendant's view of the Claimant before the Claimant crossed the road or that the van was facing south. Indeed, it is difficult to understand why the Defendant pleaded guilty to driving without due care and attention if he was suddenly presented with someone who stepped into his path from behind a parked van.
12. I accept the account given by Mr. Norman of the accident; that he first became aware of the Claimant about 10 meters ahead of him and saw the Claimant slowly cross the road in a considered manner with his head down. He did not see the Claimant look right or left at any time. He thought it looked as if the Claimant may suffer from some form of disability. He first heard the Defendant's motorcycle when the Claimant was approximately half way across the road. He did not see the Defendant brake and did not hear a horn sounded. The Defendant collided with the Claimant when the Claimant was approximately ¾ of the way across the carriageway.
13. I find the Defendant was travelling at at least 30 mph and possibly faster. I accept Mr. Norman's evidence that the pitch of the motorcycles engine seemed to increase before the impact. This may be because the Defendant attempted to accelerate out of trouble rather than brake or swerve. I am satisfied the Defendant had ample opportunity to see the Claimant and to take appropriate action which would have avoided the collision.
14. I find that the Claimant should have been able to see and hear the Defendant from at least the point where he had reached the centre of the road.
15. Mr. Kenneth Bright did not see or hear the accident. He was called to the scene shortly afterwards by a police officer. He confirmed that his brother had lived with him all his life and they moved into 52 Outwell Road in August 1986. He confirmed that his brother had suffered brain injury when he was younger as a result of a fall and more recently had suffered a stroke. He said that while his brother could not live on his own he was very independent, able to go out on his own and travelled widely on his own to watch his football team. He said that on the day of the accident he had asked his brother to go to M & B Distributors to buy some vegetables. He thought his brother may have taken the footpath labelled "C" as that would be the most direct route but could not say for certain if his brother actually took that route. I find that for whatever reason his brother took the more northerly route. He described seeing his brother in the road by the entrance to M & B Distributors. This last observation supports my conclusion about the point of impact between the Claimant and Defendant.
16. I accept the account Mr. Norman gave of his conversation with the Defendant after the accident in his statement to the police which was that the Defendant said that he did not know why the pedestrian did not stop.

The law

17. The burden of proving contributory negligence is on the Defendant, see for example Flower v Ebbw Vale Steel [1936] AC 206, 221 HL. The Defendant must prove that the Claimant failed to take ordinary care for himself and that this failure to take care was a contributory cause of the accident, see Lewis v Denye [1939] 1 KB 540.
18. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides as follows:

"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 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"

19. "Fault" is defined in section 4 of the Act as follows:

"negligence, breach of statutory duty or other omission which gives rise to a liability in tort or would, apart from this Act give rise to the defence of contributory negligence."

My conclusions

20. The allegations of contributory negligence made by the Defendant are set out at paragraph 6 of the Defence:

"a) walked into the road when he was unable to see vehicles approaching from the Defendants direction of travel due to the presence of the parked Tesco van;

b) walked into the road without ensuring that it was clear for him to cross;

c) walked into the road when it was not clear for him to cross due to the presence of the Defendant's oncoming motorcycle;

d) failed to keep any or any adequate lookout or to heed or observe adequately or at all the presence and approach of the Defendant's motorcycle;

e) specifically, while crossing the road he failed to check for vehicles coming from the Defendant's direction of travel;

f) failed to notice or heed the Defendant's motorcycle;

g) failed to heed the sound of the Defendant's horn;

h) walked in front of the Defendant's motorcycle;

i) failed to stop slow down, step aside or otherwise proceed so as to avoid stepping into the path of the Defendant's motorcycle."

21. The Claimant is under a duty to take reasonable care for his own safety. This duty is not, in the circumstances of this case, reduced or any way diminished because of his disability, see for example Dunnage v Randall and another [2015] EWCA Civ 673. He is to be judged by the standard of the reasonable man, see Davis v Swan Motor Co [1949] 2 KB 291.
22. I accept the submission of Mr. Block QC that the real issue here is one of apportionment. The Claimant crossed the road slowly. I am prepared to accept that the Defendant was not visible to the Claimant when he started to cross the road partly due to the slight curve in the road. I have accepted that the Claimant did not turn to look in the direction of the Defendant until immediately before the collision. If the Claimant had stopped in the middle of the road, by which time the motorcycle would have been in view, the motorcycle would have passed harmlessly by. In this one respect I find an allegation of contributory negligence made out.
23. In Eagle v Chambers [2004] RTR 9, CA Hale LJ (as she then was) stated at para 16:

"It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court 'has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon': Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801, para 20."

24. As the court is required to weigh the blameworthiness of each of the participants as well as the causative potency of their respective failings the concept of "destructive disparity" referred to by Hale LJ at paragraph 15 of Eagle must be taken into account by the court when making its assessment.
25. Mr. Block QC recognised that all cases will turn on their own particular facts but put forward the case of Baker v Willoughby [1970] AC 467 where the House of Lords apportioned 75/25 in favour of a pedestrian when both parties had a clear view of the other as helpful guidance on the approach to apportionment.
26. Mr. Spencer Ley submitted that the court should not treat the cases as statutes and urged the court to have regard to the nature of the risk taken by the Claimant. He stressed that the Claimant could not be blamed for crossing the road where he did in broad daylight. This was a small rural village with no dedicated pedestrian crossing and the Claimant's view of the road was not obscured. He urged me to find a minimum contribution.
27. The Claimant was perfectly able to make his way about the world. I accept that his gait may have been a little clumsy and slow. He was however capable of keeping a good look out and should have kept a lookout for oncoming traffic while crossing the road and specifically once he had reached the centre line. The Defendant was an inexperienced driver who in my judgment expected the Claimant to avoid him. While I cannot make any exact finding as to the Defendant's speed on his own evidence he was doing the maximum permitted speed in a rural village approaching one of the few shops. He demonstrated little understanding of the fact that a speed limit is a maximum speed not a target and that a lower speed may have been more appropriate in this particular location.
28. In the circumstances, I would assess the Claimant's responsibility for this accident at 15%.