Citation: [2024] EWHC 1956 (KB)
Knowles J, Birmingham District Registry
Summary of the Facts
In November 2015, the Claimant was struck by the First Defendants’ car as she was attempting to cross a road. The Claimant sustained severe injuries, including a traumatic brain injury. A preliminary hearing considered liability and causation.
The accident occurred about 25 metres from a roundabout. The Claimant was crossing from right to left in relation to the Defendant’s direction of travel. The Defendant was travelling away from the roundabout.
To go across the road, the Claimant first needed to cross the other carriageway which consisted of two lanes of slow moving / stationary traffic which were queuing on the approach to the roundabout. Traffic was moving freely away from the roundabout.
The Claimant was unable to give evidence as to the accident as a result of her injuries. The Defendant was unable to say little more than the accident happened before he had time to react. Interestingly, the key witness evidence was from the driver and passenger of a car waiting in the queuing traffic (boyfriend and girlfriend). The Claimant passed directly in front of their car before she was hit. The driver gave evidence for the First Defendant and the passenger for the Claimant.
A key feature of the case was whether the Claimant paused at all before moving from the other carriageway into the Defendant’s carriageway. It was agreed between the Accident Reconstruction Experts (Dr. Andrew Ninham – Claimant and Mr. Stuart Blackwood – Defendant) that if the Claimant did not pause, then there was not sufficient time for the Defendant to react.
However, if the Claimant did pause, and sufficiently far out into the road to no longer be obscured by the queuing traffic, then there would have been time to react.
Accordingly, the case turned on such findings of fact.
The Parties Cases:
The Claimant’s case in short:
The Defendant failed to keep a proper lookout and did not see the Claimant in time to avoid the collision.
Had the Defendant driven at a lower speed (by reacting even to some degree), the severity of the Claimant’s injuries would have been significantly reduced.
The Defendant’s case in short:
The Claimant did not pause after entering the road, making the collision unavoidable.
The visibility, conditions and the position of the Claimant made it impossible for the Defendant to react in time.
Even if the Defendant had slowed down, the Claimant’s injuries would not have been substantially reduced.
Judge's Findings:
The Judge found discrepancies in both of the witnesses’ accounts. However, the driver witness’s account that the Claimant did not stop was preferred over the passenger witness’s account.
The Defendant’s driving was not criticised in any way. He was paying attention and driving well within the speed limit. It was found that since the Claimant did not stop, then there was no time for the Defendant to react.
The Judge found that the driver witness was closer to the incident and had been watching throughout. The passenger witness had initially been looking at her phone and it was only when the driver witness drew her attention to the Claimant did she look up. The driver witness’s evidence had consistently been that the Claimant had not stopped (from the statement given to the Police immediately following the accident to oral evidence in court).
There were inconsistencies between the passenger witness’s police statement and her later statements.
Interestingly, the Judge found that if he were wrong to rely on the driver witness’s evidence, the Judge found that there was insufficient evidence in any case to find that the Claimant had paused in the road, and so the claim would have failed on the balance of probabilities. To prove her case, the Claimant needed to prove this point.
Further, the Judge found that if he were wrong on whether the Claimant had stopped at all, then he was further unable to make a finding that the Claimant had paused in a position which would have afforded the Defendant time to react.
The Judge found that, in any event, it would not be possible to accurately or reliably determine whether a slower speed would have altered the injuries, and if so, to what extent.
Conclusion:
It follows that the case was dismissed.
This case highlights what is so often the case in RTA cases, and indeed in many personal injury cases, that witnesses’ evidence may differ, despite having been in a near identical position when viewing the same events. This is most starkly set out at paragraph 154 of the Judgment:
“Where this leaves me is with two witnesses who were literally sitting side by side witnessing the same incident, and who have then given different evidence on a central and crucial matter.”
