Gary Vincent v Gary Walker
| Jurisdiction | England & Wales |
| Judge | David Pittaway |
| Judgment Date | 08 March 2021 |
| Neutral Citation | [2021] EWHC 536 (QB) |
| Date | 08 March 2021 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004172 |
[2021] EWHC 536 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Pittaway QC
Case No: QB-2019-004172
Lionel Stride (instructed by Slater & Gordon LLP Ltd.) for the Claimant
Charles Woodhouse (instructed by DAC Beachcroft Claims Ltd.) for the Defendants
Hearing dates: 2, 3 March 2021
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.
David Pittaway QC:
Introduction
On the afternoon of Sunday, 26 November 2016 Mr Gary Vincent was walking from his parents' house to his brother's house in Bicester. At the time of the accident, about 4.37 pm, he was walking from a staggered, toucan crossing on the A4095 Southwold Lane, Bicester into the eastern carriageway. The crossing is controlled by automated traffic lights. Mr Vincent had crossed the western carriageway to the central refuge for the pedestrian crossing. He negotiated the crossing central refuge before stepping off into the eastern carriageway. Approximately two-thirds of the way across, he was struck by a BMW motorcar being driven by Mr Kevin Walker and owned by his employer, Vidionics Security Systems Ltd. He was thrown into the air, striking the lower part of the passenger side windscreen before landing, probably on the verge. He sustained multiple injuries. Mr Walker was not prosecuted as a result of the accident.
The A4095 is a single carriageway road in an urban area of Bicester bordered on one side by housing estates and on the other side by fields. The speed limit is 50 mph. The police report described the weather conditions as” fine and dry without high winds” and the road surface as “damp, in good repair”. The accident occurred when it was dark, sunset was at 4.02pm. Headlights were therefore required at the time of the collision.
Issues
The main issues which I have to decide are (1) whether Mr Walker was driving at an excessive speed and (2) whether he was paying insufficient attention to the road and surrounding area as he approached the pedestrian crossing. It is accepted on behalf of Mr Vincent that he was not paying attention as he stepped out onto the western carriageway and that he was contributorily negligent. I am also asked to determine the level of his blameworthiness in the event that I find that Mr Walker was driving negligently. I am informed that Mr Walker was not driving in the course of his employment on the day in question and the action is not proceeded with against his employers, Vidionics Security Systems Ltd.
Factual evidence
The factual oral evidence which I heard remotely was short. As a medium the use of MS Teams worked efficiently and well.
Mr Vincent has no memory of the accident, which is not surprising as he suffered a head injury in the collision. He was wearing a black wax jacket with a hood and dark jeans. He was carrying a rucksack. The journey time from his parents' house to his brother's house was about 50 minutes. At the time of the accident, he had completed about two-thirds of the journey. He does not believe he was in a hurry. He recalled the weather as cold, a little bit damp but mild for the time of year.
Mr Walker gave evidence that he was travelling from his home locally to a Wickes store to collect cement for his garden. It was a late Sunday afternoon. He was not in a hurry to get there. Traffic was light. As he approached the pedestrian crossing controlled by traffic lights, the lights on the western carriageway in his direction were green. He told the police immediately after the accident that he accelerated away from the roundabout, which it is agreed was 115 metres from the pedestrian crossing, travelling at a speed of 45 to 50 mph. It would have been his usual practice to ease off the accelerator as he approached a pedestrian crossing. He is unable to remember whether he did so on this occasion. He first saw the pedestrian, Mr Vincent with his head down, as he was stepping from the pedestrian island into the road. He appeared to be walking quite quickly and was looking towards the nearside kerb the whole time, not towards him. In his witness statement he was not sure how close he was when he first saw him. In oral evidence he said he thought that he was about 30 metres away. He applied emergency brakes, but Mr Vincent kept on walking straight ahead without even looking towards him, looking straight towards the kerb. He believed after the accident that Mr Vincent was dead. He gave his initial comments and, then a statement, sitting in a police car at the scene of the accident within one hour of it taking place. Unsurprisingly, he was badly shaken by what had occurred.
Mrs Wilson was travelling in the opposite direction when she saw Mr Vincent cross the eastern carriageway looking down. He crossed at a comfortable distance in front of her. As he was walking in front of her motorcar, she noticed that he was not paying much attention to his surroundings. His head was looking at the ground and she did not see him look up once. He did not slow down at all and it appeared as if he had not looked up to see if the carriageway ahead was clear. She could see the headlights of Mr Walker's car travelling in the opposite direction in the lane. The traffic lights were green for him to proceed. She tried to attract Mr Vincent's attention and both she and her foster daughter screamed out. Mr Vincent kept his head down and continued walking. She describes the accident as: “he just walked out in front of Mr Walker's car.”
Expert evidence
The parties instructed accident reconstruction experts, Mr Elliott and Ms Eyers, who visited the scene of the accident, prepared reports and a joint statement. Mr Elliott had also visited at night to assess the visibility of Mr Vincent to Mr Walker utilising the services of his assistant as a pedestrian. In my view, their evidence is not conclusive in this case and should be seen in the context of all the evidence available to me, however, the calculations which they have made are of assistance to me in determining the two main issues as to whether Mr Walker was driving negligently.
For the purposes of this judgment, I have not summarised the two reports but have set out the relevant parts of the comprehensive and detailed joint statement which was prepared by the two experts. Both experts gave oral evidence, which to a large extent was agreed except as to the interpretation to be placed on a range of agreed calculations.
It is agreed that upon entering Southwold Lane from the preceding roundabout at the junction with the B4100 Banbury Road and continuing eastbound, it is a distance of about 115 metres to the Stop line at the pedestrian crossing. A driver has an unobstructed direct line of sight of the crossing over this distance. The traffic signals at the crossing are clearly visible to drivers approaching in both directions, particularly at night, and there is an illuminated warning sign for the traffic signals about 60 metres prior to the crossing when travelling east, the direction of travel for Mr Walker.
It is agreed that at the crossing point, the eastbound lane is 3.3 metres wide and the westbound lane is 4.3 metres, incorporating a 1 metre wide cycle lane. It is agreed that it is not possible to determine the exact route taken by Mr Vincent once he entered the central pedestrian refuge. The shortest route across the central refuge between the westbound entry point and eastbound exit point is about 5.1 metres. This distance increases to about 6.5 metres had he entered and exited the refuge centrally at the crossing points.
The distance Mr Vincent was ‘thrown’ having been struck, is consistent with an impact speed of about 25mph to 34mph of Mr Walker's motorcar. By way of comparison, the position of the head impact mark on the lower nearside corner of the motorcar's windscreen is consistent with an impact speed in the region of about 30mph. The experts consider that it could be marginally more or marginally less.
Calculations based on the distance covered by Mr Walker's motor car between impact and its rest are consistent with an impact speed of 28 to 31mph. The experts considered that this was consistent with the impact speeds derived by the other methodologies and suggested that Mr Walker's motorcar was undergoing emergency braking for the full distance between impact and its rest position.
The physical evidence is consistent with Mr Vincent walking for a distance of about 2.2 metres into the eastbound lane between crossing points, where he was struck by the nearside front of the motorcar. It is agreed that it would have taken Mr Walker, at an initial constant speed of 40mph to 50mph, about 5.1 to 6.4 seconds to travel 115 metres from the roundabout to pedestrian crossing. This time range does not account for any preimpact deceleration, as it is not known how much faster the motorcar may have been travelling prior to brakes being applied. Had either party been travelling at a slower speed, the time to cover the distance would correspondingly increase.
The average walking pace for a male pedestrian of Mr Vincent's age group is about 1.5m/s to 1.65m/s. It would have taken Mr Vincent about 1.3 to 1.5 seconds to walk across the road to the likely point of impact having stepped into the eastbound lane from the crossing point at the central refuge.
It is agreed that the minimum expected Perception Reaction Time (“PRT”) from the...
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