Craig Sparrow v Arnaud Andre
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 06 April 2016 |
| Neutral Citation | [2016] EWHC 739 (QB) |
| Date | 06 April 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15P00109 |
[2016] EWHC 739 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: HQ15P00109
Hearing dates: 14, 15, 16, 17 & 18 March 2016
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.
Mrs Justice Lang:
The Claimant claims damages for personal injuries and consequential loss, suffered on 10 February 2013, in a vehicle collision in the car park of the Park Club ("the Club"), East Acton Lane, London, W3, which the Claimant contends was the result of the Defendant's negligence. This was the trial of the preliminary issues of breach of duty and causation.
In summary, the Claimant and the Defendant were both manoeuvring in the crowded car park. The rear of the Claimant's car collided with the rear of the Defendant's car. The Claimant got out of his car to inspect the damage. The Defendant moved his car away and the Claimant's car then rolled backwards down a slope towards the entrance to a service area. Fearing for the safety of his children who were in the car, the Claimant attempted to hold the car back, but he was overwhelmed, and the car crushed his left leg against a metal gate post. His injuries were so serious that the leg had to be amputated.
The Claimant contended that his car was stationary when the Defendant reversed into it at speed and force, causing damage to both cars. The cars' bumpers were jammed against each other, at an angle. When the Defendant moved his car forward, it caused the Claimant's car to roll down the slope, resulting in the injury to the Claimant's leg. The Defendant contended that his car was stationary when the Claimant reversed into him. It was a low speed collision, and a gentle impact, causing no more than scratches. His action in moving his car forward did not cause the Claimant's car to roll down the slope. The car rolled down the slope because the Claimant carelessly left it with the ignition switched on, in 'neutral' instead of 'park' mode, and he failed to engage the brakes.
Evidence
The Claimant gave oral evidence, based upon the witness statements he made for the trial in October 2015, January 2016 and February 2016. He also made a statement and drawing for his insurers in February and March 2013, and a statement to the police dated 22 July 2013.
The Claimant called as witnesses Mr John Sawtell and Mrs Sophie Pond-Jones who were in the Club car park at the relevant time. Neither of them knew the Claimant. Mr Sawtell gave his account of events to the Claimant's insurers by email on 26 March 2013, and also made a statement to the police. He made a statement for the trial on 7 March 201Mrs Pond-Jones made a statement for the trial on 23 August 2013.
The Claimant's expert witness was Mr Jonathan Bright BEng MEng CEng MiMechE, employed by Hawkins & Associates Ltd., a firm of forensic investigators. Mr Bright's written report dated 7 January 2016 and letter dated 7 March 2016 were adduced in evidence (together with photographs and videos) and he gave oral evidence.
The Defendant gave oral evidence, based upon his witness statements made in September 2014 and November 2015, together with a drawing. Mr Roderick McKinnon, who is a retired police officer and a qualified forensic collision investigator, gave oral evidence of his vehicle inspections, based on his statement dated 22 October 2015, on behalf of the Defendant.
The Defendant's expert witness was Mr Philip Mottram BSc (Hons) CEng MIMMM, director of Sisco Forensic Engineers Limited, a firm of forensic investigators. He gave oral evidence, based upon his written report, dated 14 December 2015 and his letters dated 24 February 2016 and 14 March 2016. He provided photographs and video evidence.
The two experts met to discuss their findings on 26 January 2016, and prepared a 'Joint Statement of Points of Agreement and Disagreement' dated 29 January 2016. In the Joint Statement, Mr Mottram declined to deal with an issue raised by Mr Bright, namely, that it was possible that the point of impact was on the rear nearside of the Defendant's car, because all the evidence indicated that the point of impact was on the rear offside of the Defendant's car. The Claimant served CPR Part 35 questions on that issue. At a hearing on 15 February 2016, Foskett J. directed that Mr Mottram ought to deal with that issue, and gave the Claimant permission to amend the Particulars of Claim, and to adduce a witness statement, raising the issue, in the alternative, that the collision was at the rear nearside of the Defendant's car. Mr Mottram responded to the Part 35 questions in a letter dated 24 February 2016. Unfortunately, it was mis-addressed and so did not reach the Claimant's solicitors until 29 February 2016.
At the beginning of this trial, I heard an application by the Claimant to adduce in evidence a letter dated 7 March 2016 from Mr Bright in response to Mr Mottram's Part 35 reply. The Defendant opposed the application, on the basis that the evidence had arrived too late, it placed Mr Mottram and the Defendant's team at an unfair disadvantage, and Foskett J. had indicated at the hearing on 15 February 2016 that Mr Mottram's reply should be the final word on the issue. After hearing submissions, I concluded that this was a crucial issue in the trial which could not be fully and fairly considered unless the points raised by Mr Bright were taken into account. The better course was to give Mr Mottram a fair opportunity to deal with Mr Bright's letter of 7 March. The experts decided to conduct a joint inspection of the Defendant's car during the trial and Mr Mottram then produced the letter of 15 March 2016 setting out his opinion.
Other evidence was adduced without the attendance of witnesses at court:
i) Mr Mike Handy of PIAS Limited prepared a "Single Joint Locus Report", including a plan, and measurements of the slope.
ii) Reports on the post-accident condition of both vehicles.
iii) The police accident report and statements from the police officers who attended the scene of the accident.
iv) Medical evidence regarding the injury to the Claimant's leg (a report from Professor Saleh, consultant orthopaedic surgeon, and the London air ambulance records).
Findings
After giving careful consideration to all the evidence, I make the following findings, on the balance of probabilities.
The Claimant was driving a black coloured Lexus CT200h 1.8 litre 5 door hatchback which was a hybrid with automatic transmission ("the black Lexus"). The registration mark was LP61 EWS. Mr McKinnon recorded the dimensions of the black Lexus as follows: length: 4.32 metres; width: 1.77 metres; height: 1.43 metres. The Claimant's two children were passengers in the rear of the car. The Claimant was familiar with the car park as he was a regular Club user.
The Defendant was driving a silver coloured Lexus RH400h ("the silver Lexus") which was a 3.3 litre 5 door 4 x 4 vehicle which was a hybrid with automatic transmission. Its registration mark was GP55 EKG. Mr McKinnon recorded its dimensions as follows: length: 4.74 metres; width: 1.85 metres; height: 1.73 metres. It was a larger car than the Claimant's, and 26% heavier.
The accident occurred on 10 February 2013. The times given by the witnesses were slightly inconsistent. In my view, the only reliably accurate time was the London Ambulance Service log which recorded that the 999 call was received from the Club at 10.51 am, so the initial collision probably occurred between 10.40 and 10.45 am.
The Claimant drove into the car park and saw the silver Lexus stationary in front of him, apparently waiting for a parking space to become free. The Claimant's car was about four to five metres behind the silver Lexus. The Claimant decided to make a three point turn in order to leave the car park and look for a space in the adjacent car park. Mr Sawtell was behind the Claimant in the queue for parking spaces and had stopped at the entrance to the car park, some 15 metres away. Mr Sawtell described how the Claimant reversed slightly to make space for his turn, and then turned right, at an angle, into some vacant disabled parking bays, straddling two of them. This was consistent with the Claimant's account and I accepted it.
The Claimant then began to reverse out of the disabled bays, in a direction which was slightly to the left. Mr Sawtell described this as a "very marginal turn" to the left. As he began to reverse, he could see that the silver Lexus was stationary. Mr Sawtell saw that, after the black Lexus began to reverse, the silver Lexus also began to reverse, in the direction of the black Lexus. As the Claimant reversed, he was looking over his shoulder, to the left, through the rear window, and he saw the silver Lexus reversing in the direction of his car. The Claimant braked part-way through his manoeuvre and remained stationary, to avoid colliding with the Defendant. However, the silver Lexus continued to reverse, and drove into the rear of the black Lexus. Mr Sawtell confirmed the Claimant's evidence, that the black Lexus was stationary and the silver Lexus was reversing, at the point of collision. It all happened in a short space of time. Mr Sawtell said that both cars were reversing towards each other for...
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