Adams v Gibson

(As Approved)

Introduction

This is a trial of the preliminary issues of breach of duty and causation pursuant to the order of Master Leslie dated 9 November 2015.

On 17 October 2011 the claimant, who is Ghanaian, suffered catastrophic injuries, in particular a traumatic brain injury, as a result of being hit by a vehicle driven by the defendant when crossing the road on foot. Sadly the claimant now lacks capacity and he brings these proceedings by his litigation friend, Flora Cara. He has no recollection of the accident and, accordingly, he has not given evidence in the trial.

A number of factual issues fall to be resolved but ultimately the court is required to determine whether the defendant was at fault for the accident such as to give rise to a finding of primary liability and, if I so find, to decide the extent to which the claimant should be held to blame for the accident, it being conceded that there will inevitably be a finding of some contributory negligence

Accident

The accident occurred in the hours of darkness shortly before 11 pm. The weather was fine. The defendant was driving a Volkswagen Golf GTI in an essentially northerly direction, albeit slightly to the east, along the A314 Hounslow Road in Feltham, London. Ms Ria Aitchison was travelling as a front seat passenger. Hounslow Road is a single carriage road subject to a 30-mile-per-hour speed limit. At a point approximately 90 metres to the north east of its junction with Park Road, there is a humped pedestrian crossing. This is towards the east of Feltham town centre. At a point in the vicinity of the pedestrian crossing, the claimant sought to cross the road from the west side, that is, from the defendant's near side. Having stepped into the road, he was struck by the near side corner of the defendant's car and thrown onto the windscreen. It is likely that his head hit the windscreen.

The police arrived at the scene within a few minutes of the accident. The claimant was found to be lying face down on the pavement on the opposite side of the road from the youth centre, that is, to the north of the zebra crossing on the west side. It has been subsequently established that the claimant's post-accident position was outside number 77, Hounslow Road. He was noted to be wearing dark clothing and smelling strongly of alcohol.

The scene

As is to be expected, the court has been provided with numerous plans and photographs as well as detailed descriptions of the scene from both road traffic accident reconstruction experts, Dr Coley on behalf of the claimant and Mr Sorton on behalf of the defendant.

Hounslow Road commences to the south of the accident scene at its junction with the A316 country way. The collision scene was approximately 300 metres north of this junction. When travelling north (the defendant's direction of travel), after approximately a hundred metres there is a mini roundabout. After 130 metres further to the north, there is a second mini roundabout. The zebra crossing is approximately 85 metres north of this roundabout. The road from the roundabout to the pedestrian crossing is straight. For a driver travelling towards the crossing in a northerly direction, the unobstructed field of view is not less than a hundred metres. There is a similar unobstructed field of view for a pedestrian crossing at the crossing and looking to the south.

To the north of the second mini roundabout the two lanes are divided by central hazard warning lines. To the west from where the claimant crossed, there is a wide footway including a marked cycle path backing onto shop frontages. On the approach to the zebra crossing there are build-outs on each side so that the footway extends into the carriageway. Approximately 25 metres from the crossing there are three sets of zigzagged lines. The zigzagged lines on the west side are approximately two metres from the kerb and create what Mr Hartley QC, counsel on behalf of the claimant, describes as a blank lane, that is, a lane which is not useable to passing traffic. The pedestrian crossing itself is raised above the level of the road, acting as a speed bump. There are also two speed bumps on either side of the crossing.

At or around the verge on the west side adjacent to the pedestrian crossing there are a number of trees. There are designated parking bays positioned within the trees with spaces for six cars. On both sides of the road there are pedestrian guard rails to the south and north of the crossing to guide pedestrians towards the crossing. The guard rails on the east side of the road are much more extensive than those on the west side.

As to lighting, there are high sodium vapour streetlights approximately ten metres in height spaced at regular intervals. There are also two Belisha beacons on each side of the crossing and additional floodlights above the beacons.

The factual issues

It is axiomatic that before any detailed consideration of the expert evidence becomes necessary (if at all), the court's primary task is to analyse the evidence from the witnesses and the physical evidence; and make findings of fact as to the salient matters.

It should be observed at the outset that there is a paucity of physical evidence in this case. In essence it is limited to what is known of the damage to the vehicle, namely damage to the front near side of the bonnet, near side windscreen and grill; and the final resting place of the claimant, which, as I have already mentioned, was observed to be outside number 77 by Police Constable Jusall. That is estimated to be approximately ten metres or so to the north of the pedestrian crossing. There were, for example, no marks on the road which might have assisted in determining how fast the defendant was travelling or where indeed the impact occurred.

I turn therefore to what both counsel agreed is the principal factual issue, namely where on the road the collision occurred. There are in essence two competing scenarios, either just south of the crossing or a few metres to the north of the crossing. In opening, Mr Hartley canvassed the possibility that the accident occurred on the crossing itself, but he now concedes that the evidence would not support such a finding.

Mr Brown, for reasons which will become apparent, seeks to persuade me, in reliance on the evidence of two independent witnesses, that the accident happened a few metres to the north of the crossing. Mr Hartley on the other hand relies upon the defendant's own account in saying that it almost certainly occurred just to the south of the crossing.

The two independent witnesses, Messrs Watts and Wheatman, were part of a group of youths who were sitting on a bench outside the youth club on the east side of the road. On the face of it, both had a good vantage point from which to observe what happened on the other side of the road.

In a witness statement dated 27 December 2013 Mr Watts described how he saw a man who was dark skinned on the opposite side of the road looking towards Hounslow, that is, in a northerly direction. At that time he was still on the pavement, but he said he moved between cars parked in the bays in order to cross the road. Crucially, says Mr Brown, he placed this man on the road as being "a little way after the crossing, on the edge of the ramp after the crossing" (that is, to the north of the crossing). He says that the man was struck by the car at this point. He saw him flying through the air, landing in the road close to the kerb approximately ten yards north of the crossing.

In his oral evidence before me, he gave a similar account to that which appeared in his statement. He did however accept that he did not see the man move between the cars. He merely assumed that that was what had occurred. He also told me that the man had crossed diagonally across the road, but when asked to mark on a plan produced by Dr Coley (151A in the bundle) the movement of the man, he showed him to be crossing perpendicularly across the road. The resting point according to his markings on the plan was several metres beyond where the claimant was found to be by the police officer.

Mr Wheatman in his witness statement dated 8 January 2014 described seeing "a Jamaican man wearing a large hat on the opposite side of the road". He says that he crossed between parked cars. He estimated that at the point where the man crossed the road, he was approximately five metres from the crossing, that is, to the north.

His oral evidence broadly mirrored his witness statement. He was adamant that the man stepped out between the two parking bays to the north of the crossing. He illustrated this on the plan produced by Dr Coley, and again the direction of travel is perpendicular and the point where the man crossed is not only several metres from the crossing but the point of impact is put at least a few metres beyond where the claimant was found after the collision.

The defendant's version of events is strikingly different. For understandable reasons, Mr Brown is constrained to disavow the defendant's account even though the defence as pleaded and the replies to the Part 18 request for...