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
		31 July 2018

MASTER DAVISON:

What follows is the corrected and polished version of the judgment which I gave orally at the conclusion of this two day trial on liability only. I have added some words about contributory negligence.

Introduction

1. On 27 November 2008, at about 4.15 in the afternoon, the claimant, then a schoolboy of 14, was crossing the A12 Eastern Avenue where that road passes Newbury Park Station. The road there is a six-lane dual carriageway running east-west with a central reservation. There is an underpass for pedestrians. But on this occasion the claimant ("Calvin") crossed from the south side to the north side on foot - ignoring the underpass. He crossed the westbound carriageway to the central reservation without incident. From there, there was a shouted conversation with his friend, Jason Asagba, who was on the north side. Calvin then started to cross the eastbound carriageway. He did so after the traffic lights governing a junction further to the west had turned to green and as the traffic from that junction was fast approaching. He got across the outside and middle lanes. However, as he entered the inside lane he was struck by an Audi motor vehicle driven by the defendant, Mr Jatinder Pal Singh Gill. Calvin suffered life-changing injuries.
2. By order dated 17 July 2017 I directed that liability and causation were to be tried as preliminary issues before me. (I mention that I listed it before me in accordance with Guidance from the President of the Queen's Bench Division. The parties were neutral as to whether the case should be heard by a judge or a Master.)
3. Calvin's injuries have prevented him from giving evidence on his own behalf. I have heard oral evidence from Jason Asagba and from the defendant. Apart from two further witnesses who gave very brief and relatively uninformative statements to the police on the basis of anonymity, these were the only witnesses to the accident. I also heard evidence from accident reconstruction experts for each party: Mr Henderson for the claimant and Mr Johnston for the defendant. Finally, I had the reports of neurosurgeons instructed by each party: Mr Kirkpatrick for the claimant and Mr Cowie for the defendant. These reports were directed to the issue whether a collision at lower speed might, on the balance of probabilities, have inflicted less serious head injuries on Calvin.

The accident

4. A more precise description of the site of the accident is as follows. The A12 at this point is an arterial route in and out of London and is subject to a 40 mph speed limit. There is a police-drawn plan of the eastbound carriageway. A driver heading east and approaching the accident site would pass over the junction with King George Avenue. This junction is controlled by traffic lights. Some 80 or 90 metres from the stop line of that junction is a further junction with the entrance to Newbury Park Station. The station is on the left. To the right there is a gap in the grass central reservation allowing access to and from the station from the westbound carriageway. Access to the dual carriageway is fenced off both to the south and to the north. Pedestrians are further discouraged from crossing on foot by a pedestrian guard fence about a metre high, which runs along the southern edge of the central reservation. These measures discourage pedestrians from crossing on foot and encourage use of the pedestrian underpass.
5. The weather that day was clear and dry. According to Mr Johnston sunset was at 3.37 pm and lighting up time was at 4.07 pm. That does not agree with the evidence of an off-duty policeman who attended the accident, PC Andy Fearn. The last line of his witness statement states that at the time of the accident no street lights were in operation and that he would generally consider lighting to be good. A brief internet search of my own over the short adjournment (which is not, of course, evidence) suggested that sunset that day was at 15.57, so it may be that there is a typographical error in Mr Johnston's report. I accept the unchallenged statement of PC Fearn that the streetlights were not on and that the lighting conditions were as he described them. However, it was certainly dusk.
6. Turning to the evidence, I will begin with the accounts of Mr Asagba and the defendant. They saw the accident or, in the case of Mr Asagba, the events immediately leading up to it from different perspectives. But their accounts were not significantly at variance with one another.
7. Jason Asagba made a statement to the police on 11 February 2009, i.e. some two and a half months after the accident, in the presence of his mother. He said that he and Calvin were at the Newbury Park Station, where they would get their bus home after school. There came a point when Calvin left him to go over to the other side via the subway. I will then take up his statement at page 260 of the bundle.

"Between five and 15 minutes later he tried to cross back over the road, but instead [illegible] the subway, he attempted to walk back across. He reached the central reservation of the dual carriageway and called something out to me. I couldn't hear him and went to stand nearer the kerb. He then tried to cross the road. He hadn't got across the first lane before he was hit by a dark coloured vehicle. At this time a bus had crossed in front of me and obscured my line of vision. By the time it had passed, Calvin had landed on the [illegible] in the first lane of the road. The car that hit him had gone further up the road and stopped."

8. On 4 October 2017, (so almost nine years after the accident), he made a further witness statement. The material part of that statement is as follows:

"Approximately 15 minutes later I was still waiting for the bus, looking up the road towards King George Avenue, when I heard Calvin shouting. He was standing in the central reservation on Eastern Avenue approximately where I have marked on the attached plan. I'd not seen Calvin crossing to the central reservation from the far side of Eastern Avenue, but Calvin must have crossed from the other side of the road to the central reservation. Calvin was shouting something to me, but I could not hear him. Calvin then glanced to his left and started to make his way across the road. I would describe the way in which Calvin was travelling as a quick walk / slow jog. Calvin had crossed the first lane of traffic closest to the central reservation and was into the second lane approximately a quarter of the way across when I lost sight of Calvin because a bus in the nearside lane closest to me blocked my view as it turned into the tube station where the bus stop was. I do not know where the vehicles were exactly when Calvin started to cross from the central reservation, but Calvin glanced to his left, and I glanced at the same time, and the vehicles at that time were at the traffic lights further up the road. I did not hear any screech of brakes, and I do not recall there being a van at all. I just heard the noise of Calvin being hit."

9. The reference to the van – which Mr Asagba did not see – was prompted by the defendant's account to the police and in his witness statements in these proceedings. Before turning to these, I mention two further things. As noted in his statement, Mr Asagba marked on a plan, (in fact an aerial photo), the respective positions of himself and Calvin before Calvin moved off from the central reservation. If the position of Calvin is correctly marked, it means he went across the road from a point near the end of the central reservation and towards where Mr Asagba was standing. That in turn implies that he moved obliquely at an angle of some 30 degrees to the road and against the direction of oncoming traffic. Secondly, the anonymous witnesses both described the boy as having "run" across the road.
10. The defendant gave a total of three accounts to the police at the scene of the accident. He was very shaken. In oral evidence he described himself as having been distraught, that his hands were shaking and that he could not stop crying. When he gave his evidence yesterday, some ten years on from the accident, he was still visibly upset and emotional, so I had no difficulty in accepting his account of his frame of mind in the immediate aftermath.
11. The first account was given to the off-duty police officer I have mentioned, PC Fearn, who happened to be at the station, having just dropped his family off there. The relevant part of PC Fearn's statement was as follows:

"The driver of the vehicle that had apparently hit the male, whom I now know only as a 15-year-old boy called Calvin, was standing nearby. I asked if he was okay, where his car was, and told him to stand on the verge for his own safety. He stated that his car was further down the road and pointed to a silver vehicle about a hundred feet further down the road on the eastbound carriageway parked against the kerb facing east. I do not know its make, model or index as I was concerned with casualty care. Its hazard lights were operating. He said, 'He just fucking ran out' and seemed shocked and concerned. He was cooperative throughout."

12. A little later (and it is noted in the police report under the heading "Driver's initial comments before caution") the defendant said this: "I was in lane one and there was a van or truck to my right. I saw a lad dodge this and run out in front of me". A fuller account was given a little later, no doubt under caution. In that account, the defendant said this:

"I was stopped at the lights at the A12 junction with the entrance to Sainsbury's. The lights turned green and I pulled away in lane one of three. There were vehicles in lanes two and three to my right. As I was near to the entrance of Newbury Park Train Station, there was a van or truck to my right in lane two. All of a sudden, a child emerged from in front of the car in lane two. He sprinted straight out in front of me. I had no time to react or even try to stop. I did not even have the chance to take my foot off the accelerator and onto the brake. The child hit my driver's side front corner and then the windscreen. I was extremely shaken and shocked, and I pulled over just past the entrance to Newbury Park."

13. The defendant has made two further witness statements in these proceedings, the first I think to a loss adjuster, in March 2009. The relevant paragraphs are 8 to 15, and I will read those out:

"I was returning home from Snaresbrook where I had been seeing friends. I know the route and the area well. I was in no particular hurry. I was not far from home and was almost there. I was driving east on Eastern Avenue approaching the entrance to Newbury Park Station on my left, having just left the traffic lights near Sainsbury's. I was not going fast at all. I was probably still in second gear, maybe third. I was in the nearside lane. To my right in the centre lane was a transit van, which was white. I cannot remember what was in the outer lane, but all three lanes were busy. I was just to the rear, although to the near side of the transit, when suddenly from the front of the transit a young black boy aged about 14 came running. He seemed to have crossed from the central reservation to the northern side of the A12 in front of the transit, not realising I was in the nearside lane. Immediately I saw him he was already on my bonnet, hitting my windscreen. I had not seen him until he ran into my offside front wing onto the bonnet and into the windscreen. It was too fast for me to brake to avoid him at all. I braked as quickly as I could and stopped fairly quickly. The boy had bounced off my car back into the middle lane, by which time the van had passed and the following vehicle had stopped."

14. He made a supplementary witness statement in February 2016, of which it is only necessary to read paragraphs 2 and 3:

"In paragraph 9 of my earlier statement I refer to the traffic lights near Sainsbury's. I confirm that the traffic lights in question are at the junction of Eastern Avenue and King George Avenue. When I arrived at those traffic lights, the lights were at red. I was in the nearside lane and there were no vehicles in front of me. Directly to my right in the centre lane was a transit-type van. When the lights changed to green, I pulled away from the lights and the transit van accelerated away slightly quicker than I did so that the transit van was pulling ahead of me. When the young boy emerged in front of the transit van directly in front of my vehicle, I distinctly recall him turning and looking straight at me and mouthing the words 'Oh fuck!'."

15. Both Jason Asagba and the defendant were cross-examined, and I will return to this when I come to make findings.
16. It will be readily apparent from the material I have recited that the central and salient feature of the defendant's evidence and of the case generally is the defendant's assertion that Calvin emerged without warning from in front of a vehicle in the middle lane, which must itself have only narrowly missed him, giving him no time to take avoiding action. The other aspect of the defendant's case is that the van obstructed his view to his offside quarter, such that he had no idea that Calvin was crossing the outside and middle lanes towards him until he suddenly appeared in his path.
17. There was an investigation by a police accident investigator, Police Constable Paul Summerton. His report, dated 27 November 2008, concluded both these aspects of the case in the defendant's favour. I quote from the conclusions at paragraph 8.11 to 8.12 of the report:

"Mr Gill's explanation that the pedestrian was shielded by the presence of another vehicle in the middle lane is reasonable considering the likely traffic flow on the road at the time of the collision. When Master Hill ran out from in front of this vehicle, his close proximity gave Mr Gill no chance to react and avoid the collision. Master Hill was crossing the road in an inappropriate place. The road had been engineered to dissuade pedestrians from crossing by the use of central pedestrian barriers. There was also a pedestrian subway at the location."

18. Those conclusions do not, of course, determine Mr Gill's civil liability and I place no particular weight on them given that there are accident reconstruction experts in this case.

The accident reconstruction evidence

19. Turning to the evidence of those experts, the following points emerge and are relevant:

(1) The accident point is likely to have been a couple of metres to the west of the commencement of the glass debris marked on the police plan, i.e. some 66 metres east of the stock line at the junction with King George Avenue.


(2) The impact speed was in the range 28 to 38 miles per hour (Mr Henderson's opinion) or around 35 miles per hour (Mr Johnson's opinion).


(3) It can be calculated that the time it would have taken the defendant's car to get from the stop line to the accident point was, in Mr Henderson's view, 8.1 to 11 seconds, or, in Mr Johnston's view, 8 seconds.


(4) The time that it would have taken Calvin to cross the road from the central reservation to the accident point depends on whether he walked or ran and on the angle he took. But Mr Henderson calculated that if he was jogging and his angle was 30 degrees, it would have taken between three and four seconds to reach the point of impact, which was 6.7 metres from the kerb of the central reservation. If Calvin ran and if his course was perpendicular to the road, then that time of three to four seconds would be decreased to around two or two and a half seconds.


(5) If Calvin only became visible to the defendant as he (Calvin) emerged into lane one, (the inside lane), then there was no time for the defendant to react. His perception reaction time would have been in the range one to one and a half seconds and he would have had less than a second available to him.


(6) Both agreed that the pattern of damage to the defendant's car was not consistent with Calvin running perpendicular to its path. He was either moving at an angle or he paused or slowed in the moment before the collision.

The claimant's case

20. Before coming to my findings, I should set out Calvin's case. Stated generally, his case is that the defendant was not keeping a proper lookout, and that he should have seen him and taken action to avoid the collision. More specifically, his case was that there was no van and therefore the defendant had an unobstructed view ahead and to both sides and should have seen Calvin crossing from the central reservation, in which case there was ample time to stop.
21. His secondary case was that if there was a van then the defendant should have seen him when he, the defendant, was stationary at the lights and for a period of some seconds before the van pulled ahead and obscured his view. In either case, the defendant should have moderated his speed so as to keep Calvin in sight and/or to avoid a collision. Some reliance was placed on the defendant's response to questioning in cross-examination to the effect that if he had seen pedestrians on the central reservation, that should have caused alarm bells to ring. The defendant agreed with that proposition. In answer to the question "You should take the greatest care to see that you do not come into conflict", his answer was "Yes, one million per cent".

The Highway Code

22. I was reminded of the relevant rules of the Highway Code, and it is appropriate to refer to those. They are set out in Mr Henderson's report at page 26. In relevant part, they say as follows:

Rule 204

The most vulnerable road users are pedestrians, cyclists, motorcyclists and horse riders. It is particularly important to be aware of children …

Rule 205

There is a risk of pedestrians, especially children, stepping unexpectedly into the road. You should drive with the safety of children in mind at a speed suitable for the conditions.

Rule 207

Particularly vulnerable pedestrians. These include:

children and older pedestrians who may not be able to judge your speed and could step into the road in front of you. "

Findings

23. I turn then to my findings on the disputed matters.

The claimant's primary case

24. It is not possible to say with confidence exactly whereabouts on the central reservation Calvin was when he commenced crossing the eastbound carriageway or for how long he had been there. The position which Jason Asagba marked on the aerial photograph seems to have been the position that he was in when they were shouting to each other. I surmise that the words handwritten at the foot of the aerial photograph (which have been clipped) say something along the lines of: "Where Calvin was standing when he shouted to me from the central reservation". It would have been natural for Calvin to have moved down the central reservation nearer to his friend before he started to cross, and he may well have done so. But the position which Jason Asagba marked on the photograph some nine years after the accident is not very reliable in the first place. What can be said with more confidence is that the only evidence that the claimant took an oblique path across the carriageway is a deduction from the marked position on the aerial photograph and the known position of the accident. Jason Asagba himself did not say in his witness statement or in his oral evidence that the claimant moved at an angle and it seems, on the face of it, somewhat unlikely that he would have done that when the effect would have been to increase the time he would have to spend in the road and for him to be moving against or towards any oncoming cars. That would have been counterintuitive. I find, on the balance of probabilities, that the course he took would have been more or less perpendicular to the traffic.
25. Jason Asagba described him as having crossed at a quick walk or slow jog. The two anonymous witnesses said he ran. The defendant said he was running, indeed sprinting, though on his evidence he had him in sight for only a very short time indeed. It is not inherently likely that the claimant would have crossed that busy carriageway at walking pace. All the witnesses have him running or at least jogging, and I so find. If he ran, the expert evidence is that he would have taken two to two and a half seconds to reach the accident site from the kerb. If he jogged then Mr Henderson puts the range at three to four seconds. But this calculation factors in the 30 degree angle which I found Calvin probably did not take. Given that it would have taken the defendant's car somewhere between eight and eleven seconds to reach the point of impact, it is clear that Calvin set off some seconds after the lights had gone to green and the vehicles had pulled away and were already coming towards him.
26. There is no real reason to doubt that those vehicles included a van to the right of the defendant and in the middle lane. He has consistently said that there was a van or a truck. The word "truck" is not inappropriate to describe a transit van, especially if it had a flatbed on the back, (which the defendant thought it did though he could not be sure about). He was not asked at the time to be more precise about the details of the van and minor variations in the description of vehicles and people are commonplace. The defendant was an impressive witness who was obviously doing his best to answer questions honestly and accurately. I accept his evidence on this, as indeed I accept his evidence generally.
27. There is also no reason to doubt the defendant's evidence that as he pulled away from the lights, the van to his right pulled ahead of him and continued to do so as they progressed up the road. In oral evidence, he indicated an overlap, which would indeed have obscured his vision to his off-side quarter. In effect, he could only see the road dead ahead of him.
28. It is not possible to say with any certainty at what point it was after the lights went to green that his vision was obscured in that way. It was probably only a matter of a few seconds. But I accept entirely the defendant's evidence that he was keeping a lookout on the road ahead and on the vehicles around him and that the first time he saw Calvin was when he emerged from in front of the van.
29. The defendant said he saw Calvin turn towards him and mouth the words "Oh fuck!". The defendant did not mention this until February 2016, but his evidence was that this split-second view of Calvin had featured in nightmares that he had and continued to have for six months after the accident. As I have already mentioned, the defendant was visibly upset at the recollection even now, and I accept this evidence. Although the defendant was unable to say one way or another when cross-examined about it, it seems likely, and I find, that in that moment Calvin stopped or tried to stop at the outer edge of the inside lane. This would explain the pattern of damage on the car. The likelihood is that just as the defendant could not see the claimant, the claimant could not and did not see that there was a vehicle in the inside lane until it was too late to avoid a collision.
30. It was urged on me that on the defendant's account of the accident the van itself might have been expected to have taken avoiding action, and yet the defendant did not mention any such action. But there might have been a number of reasons for that, including that the driver of the van himself had insufficient time to react before Calvin was already past him, and this is not a basis to discount the presence of the van. It was also urged on me that if the accident had happened as the defendant described, then Calvin would have been projected laterally, would have hit the side of the van and would not have ended up in lane two – indeed at the outside edge of lane two. But this too is a very flimsy basis to cast doubt on the defendant's account. The dynamics involved are complex and depend on the relative positions of the vehicles at the moment of impact and the precise trajectory of the claimant. It is speculation to conjecture whether he would or would not have come into contact with the van and, if so, where.
31. The defendant's account of the accident was consistent and plausible. His answers to questions were considered and thoughtful. He made concessions where appropriate, including the "one million per cent" answer, (to which I will come). I find the accident happened as he has described it. On that basis the experts agreed that he had no time to react, which was indeed the defendant's stated experience. As he said, with evident regret, he did not even have time to take his foot off the accelerator.

The claimant's secondary case

32. It remains to deal with the claimant's secondary case. On the balance of probabilities, the defendant's view was already obscured by the time the claimant stepped off the kerb. Indeed, I think it is likely that at that point the defendant's vehicle was obscured or at least partially obscured from Calvin's view too. But should the defendant have seen Calvin before that when he, the defendant, was at the lights?
33. There is no very reliable evidence as to Calvin's precise location or the amount of time he had been there. It appears that the last thing he did before he attempted to cross was to have the shouted conversation with Jason. Therefore, his most likely position at this point in time is where Jason marked him on the plan, i.e. on the central reservation and some 70 metres distant from the lights. The issue is whether the defendant should have seen him there and moderated his driving, as Mr Barnes suggested. Obviously, not every failure to see another road-user can be characterised as negligent and here I have had to keep in mind some well-known observations which Laws LJ made in a case called Ahanonu v South East London and Kent Bus Company Ltd [2008] EWCA Civ 274 at paragraph 23:

"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."

34. My note of the full passage of the defendant's evidence, which ended with Mr Barnes' skilful cross-examination eliciting the "one million percent" answer is as follows, (and I stress it is not a verbatim note):

"Q. You were the front car on the left?

A. Yes.

Q. Clear view. Could see central reservation. Could see to the end?

A. I presume so, yes. I would be able to see someone standing on it or walking round / climbing over the barrier.

Q. You could see someone walking across the westbound carriageway?

A. Probably, yes.

Q. If you saw that, it would cause alarm bells?

A. It's a fair distance from junction to entrance to station to be even looking for that when leaving the lights. Why would I be looking out for someone walking on dual carriageway? You wouldn't even see a bike on the dual carriageway. In hindsight, someone on the central reservation would be seen. There's a number of underpasses.

Q. If you see pedestrians anywhere, should cause alarm bells?

A. Yes, definitely.

Q. You should take greatest care to see you don't come into conflict?

A. Yes, one million per cent."

35. The sense of this part of the defendant's evidence was that he would not have expected that there would be someone in the road whilst, at the same time, accepting the point later developed by Mr Barnes in his final submissions that if he had seen someone there, that would have been unusual and would have set alarm bells ringing.
36. There was obvious force in his observation that a person crossing the westbound carriageway on foot, ignoring the underpass, would not have been something that he would have been looking out for or expecting. The observation would apply with equal force to the central reservation. It was dusk. If Calvin was crossing the westbound carriageway or (as I think more likely) on the central reservation as the lights changed, then he would have been some 70 metres away dressed inconspicuously in a grey hoodie and black trousers against a variegated background of fences, buildings and traffic, some of which may have had lights illuminated. The defendant did not in fact see him and, from their driving, it seems unlikely that any of the other cars waiting at the lights saw him either.
37. I have given this aspect of the case careful consideration. I have concluded that whether the claimant was completing his crossing of the westbound carriageway, or getting onto, or on the central reservation in the moments either side of the lights turning green, it was not a breach of duty on the defendant's part that he did not see him. The salient facts bear repetition. Calvin was 70 metres away, in a place where pedestrians were not to be expected, dressed inconspicuously, in twilight and against a background that would do nothing to pick him out or make him more visible. If I were to find the defendant liable for not seeing him in those conditions, I would, in the words of Laws LJ, be constructing with hindsight a guarantee of the claimant's safety rather than a duty to take reasonable care.
38. I will add some words regarding contributory negligence on this aspect of the claim. This is a matter of weighing up the degree of blameworthiness and the causative potency of each party's faults. Had I found the defendant liable, then his fault would have been not to have noticed Calvin and to have then kept him in sight (which would have been by hanging back from the van to his immediate right). I would not have regarded these faults on the defendant's part as particularly blameworthy. But, as ever where a car comes into contact with a pedestrian, their causative potency was considerable. Calvin was 14 years old and I am mindful of the Rules of the Highway Code cited above. However, 14 was old enough to understand well that what he was doing was fraught with obvious danger. His faults were compounded by his prior failure to use the underpass, which would have avoided all risk. Weighing these things up, I would have found Calvin 75% contributorily negligent.

Conclusion

39. For the reasons I have given, and with regret, both the claimant's primary and his secondary case fail.

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