1) Mr Ayush Vakharia (A Protected Party, Proceeding by his Uncle & Litigation Friend, Rohit Mehta) v Mr Wojciech Stanislaw Bukowski
| Jurisdiction | England & Wales |
| Judge | Geraint Webb |
| Judgment Date | 25 March 2022 |
| Neutral Citation | [2022] EWHC 673 (QB) |
| Docket Number | Case No: QB-2020-000299 |
| Court | Queen's Bench Division |
[2022] EWHC 673 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Geraint Webb QC
(sitting as a Deputy High Court Judge)
Case No: QB-2020-000299
and
and
Benjamin Browne QC and Anna Hughes (instructed by Weightmans LLP) for the Defendants/Part 20 Claimants
James Todd QC (instructed by DAC Beachcroft Claims Ltd) for the Third and Fourth Party
Hearing dates: 16, 17 February 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Geraint Webb QC
This judgment was handed down remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down is deemed to be on 25 March 2022.
Geraint Webb QC sitting as a deputy High Court Judge
Introduction
These claims arise out of a tragic road traffic accident at about 3.15pm on 1 December 2019 at junction 11a of the southbound carriageway of the M1 motorway in which a Scania R450 (“ the Scania”) articulated heavy goods vehicle collided with a Sedona people carrier (“ the Kia”). The accident caused fatal injuries to Mr Zahid Ahmed and serious injuries to Mr Ayush Vakharia, Mr Shehzan Mohammed, Mr Mohammed Bhimia, Mr Shivam Shahji, all of whom were passengers in the Kia. The driver of the Kia, Mr Ayoade Ademonla Ige, also sustained injury.
All six occupants of the Kia were students at the University of Middlesex and were travelling back from a pool tournament in Birmingham. The Kia belonged to the University and Mr Ige was authorised to drive it. At the time of the accident the relevant section of the M1 was being used as a so-called ‘smart motorway and was operating with ‘all lanes running’, meaning that there was no hard shoulder. The Kia began to lose power and he noticed that an engine warning light had come on. Mr Ige was able to pull into an emergency refuge area (“ ERA”). Approximately 22 seconds later he drove the Kia out of the ERA and joined the nearside running lane of the M1. The Kia came to a stop after approximately 145 metres with its hazard warning lights on. Three vehicles avoided the Kia by moving into the second lane before the Scania lorry hit the rear of the Kia at approximately 56mph.
The Scania lorry was being driven by the First Defendant, Wojciech Stanislaw Bukowski. He was subsequently prosecuted and pleaded guilty to one charge of causing death by dangerous driving and four charges of causing serious injury by dangerous driving. He was sentenced to 56 months' imprisonment.
Claims were brought on behalf of the estate of Mr Ahmed and by, or on behalf of, Mr Vakharia, Mr Mohammed and Mr Shahji against Mr Bukowski and the insurers of the Scania lorry, Powszechny Zaklad Ubezpieczen S.A (“ PZU”). The Defendants have brought a claim against Mr Ige, as a Third Party, and against Zurich Insurance plc (“ Zurich”), the insurers of Kia, as a Fourth Party, alleging negligence on the part of Mr Ige and seeking a contribution to the claims brought by the Claimants pursuant to the Civil Liability (Contribution) Act 1978. Mr Ige has counterclaimed alleging whiplash injuries and shock.
On 21 June 2021 Master Gidden ordered a trial on liability in respect of the main action and the Part 20 claim. Subsequently the Defendants admitted liability to the Claimants with no deduction for contributory negligence. Accordingly, this trial was limited to the issue of liability and apportionment in respect of the Part 20 claims. I refer to Mr Bukowski and PZU as the ‘ Part 20 Claimants’ and Mr Ige and Zurich as the ‘ Part 20 Defendants’.
Mr Ige gave oral evidence. His evidence is that he has no recollection of entering or leaving the ERA. PC Nathan Cattley, a police forensic collision investigator, also gave oral evidence. A number of written statements were relied upon by the parties. I have also been provided with CCTV footage from two of the motorway cameras. Two experts in the field of collision investigation and reconstruction provided written reports and gave oral evidence. Mr Simon Lane gave evidence on behalf of the Part 20 Claimants and Mr Damian Mutch on behalf of the Part 20 Defendants.
The Part 20 Claimants were represented by Mr Benjamin Browne QC and Ms Anna Hughes and the Part 20 Defendants by Mr James Todd QC. I am grateful to counsel for their helpful submissions, both oral and in writing.
The issues
The issues for me are: (1) whether Mr Ige was negligent in driving the Kia out of the ERA before coming to a halt in a running lane of the M1; (2) if so, whether such negligence was a cause of the accident; (3) if so, whether the Part 20 Defendants should contribute to the damages claimed by the Claimants and if so, at what level?
The pleaded allegations of negligence advanced by the Part 20 Claimants fall into two main parts:
i) The first is a specific allegation, pleaded at paragraph 4(f) of their Particulars of Claim, that “it is likely” that the engine warning light “continued to show that there was a fault” whilst in the ERA but that Mr Ige “unreasonably ignored this warning and made the unreasonable decision” to move from the safety of the ERA. This contention is reflected in the particulars of negligence at paragraphs (6)(b) and 6(c); it is said that Mr Ige moved off from the ERA despite the warning light being illuminated and/or when he knew or ought to have known that the fault had not been resolved.
ii) The second is an overarching allegation, not expressly tied to the engine warning light, that Mr Ige “knew the Kia had [a] fault which was seriously reducing performance which was dangerous on a motorway and, despite having reached a place of safety (i.e. the [ERA]) decided to pull out from the same and move back onto the motorway, in circumstances where he knew that there was no hard shoulder upon which he could stop.” It is said that Mr Ige should have remained in the ERA and sought assistance and/or should not have moved off when he knew or should have known that the fault had not been resolved.
I should also mention that paragraph 6(d) of the Particulars of Claim impliedly contends that Mr Ige may have deliberately stopped the Kia on the M1: “the Third Party was negligent in that he …brought the Kia to a stop on the motorway…”; similarly, at 6(e) “…bringing the Kia to a halt on the motorway”. No such allegation was actively pursued at trial.
The factual evidence
Application in respect of the witness statement of Mr Ige
On 15 February 2022 DAC Beachcroft, solicitors for the Part 20 Defendants, made an application for permission to serve a CPR compliant statement from Mr Ige, out of time, for permission for him to give oral evidence and for relief from sanctions.
The supporting witness statement from Nigel Adams, a Partner at DAC Beachcroft, explains that the solicitors for the Part 20 Claimants had been informed, prior to the exchange of witness statements, that the Part 20 Defendants would rely on the witness statement of Mr Ige given pursuant to section 9 of the Criminal Justice Act 1967 on 2 December 2019 and that Mr Ige would be called to give evidence. It had also been explained that Mr Ige had no additional recollection of the accident. Mr Adams states that when it was drawn to his attention that a CPR compliant statement needed to be served under CPR Part 32 he obtained a statement from Mr Ige immediately. He served it on the Part 20 Claimants on Friday 11 February 2022 and issued the application on Tuesday 15 February, the day before the trial commenced.
The single substantive paragraph of Mr Ige's new statement, dated 10 February 2022, confirms that he has been unable to recollect anything further regarding the accident and that the contents of his section 9 statement remain true to the best of his recollection.
The application for permission was made at the start of trial by Mr Todd QC and was not opposed by Mr Browne QC. I was satisfied that there was no prejudice to any party by the late service of the CPR compliant statement and, having considered the requirements of CPR 3.9, I granted the Part 20 Defendants relief from sanctions, permission for the service of the witness statement and permission for Mr Ige to be called.
Mr Ige's driving experience and the University system for authorising drivers
Mr Ige was 22 years old at the time of the accident and a student in his final year at Middlesex University. He had been learning to drive since he was 17 and had passed his test 11 months prior to the accident on his second attempt. He had a clean full driving licence. He had undertaken a driving assessment with the University and had been authorised to drive minibuses and people carriers. He had driven University minibuses on several previous occasions and had also had a part-time job as a delivery driver, driving a white van.
A witness statement was served on behalf of the Part 20 Defendants from Mel Parker, the Head of Sports & Recreation at Middlesex University which describes the University's system for authorising...
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