Ian David Groves (A Protected Party suing by his Mother and Litigation Friend June Groves) v Jonathan Studley (1) Defendant) Zenith Insurance Management UK Ltd (2) Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 14 May 2014 |
| Neutral Citation | [2014] EWHC 1522 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X01397 |
| Date | 14 May 2014 |
[2014] EWHC 1522 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: HQ13X01397
Colin McCaul QC & Jonathan Jones QC (instructed by Lanyon Bowdler) for the Claimant
Neil Block QC & Derek O'Sullivan (instructed by DWF Solicitors) for the 2nd Defendant
Hearing dates: 30 April 2014 & 01 May 2014
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.
The Issues to be Determined
On 1 October 2013 Master Leslie ordered:
(1) There be judgment for the Claimant for an amount to be decided following the determination of the preliminary issues;
(2) The following preliminary issues to be tried in advance of the assessment of damages:
(a) Was the Claimant contributorily negligent?
(b) If so, what is the appropriate apportionment of liability between the parties?
The case arises from a road traffic accident which took place just after midnight on 4 July 2010. The First Defendant (D1) drove a Peugeot 306 GTI 6 motor car out of a lay-by on the A458 Welshpool to Shrewsbury road. D1 then drove a distance of some 420 metres towards Shrewsbury. Whilst still in the lay-by, and very shortly after D1 had begun this journey, the Claimant (C) was carried on the Peugeot's bonnet, hanging on to a customised raised hinge where the bonnet meets the bottom edge of the front windscreen. C fell off the bonnet near to the bus stop as a result of D1 swerving his car so as to dislodge C. C sustained catastrophic brain damage as a result of colliding with the road surface and/or the kerb.
Given that primary liability has been admitted on the basis that D1 "made an error of judgment that was outside of the range of reasonable responses when he manoeuvred his motor car in such a way as to cause Mr Groves to fall off" 1, the burden of proof is on the Defendant. The Defendant who has taken part in the proceedings is the Second Defendant (D2) who are the insurers concerned under the Road Traffic Act 1988.
The main factual issues concern:
(i) How it was that C came to be upon D1's bonnet;
(ii) The events after C landed on the bonnet including:
(a) Whether D1 stopped near the end of the lay-by such that C had an opportunity to get off the bonnet;
(b) Whether D1 had any genuine concern as to C's conduct if he brought the car to a halt rather than continuing to drive and (successfully) attempting to dislodge C from the motor car.
Consequent on the factual findings, the court then has to determine issues of causation and blameworthiness so as to decide what if any deduction there should be in C's damages by reason of contributory negligence.
D1's Conviction
On 15 April 2011 D1 pleaded guilty to offences of dangerous driving and driving whilst disqualified. He was sentenced by a judge at Shrewsbury Crown Court to 18 months' imprisonment for dangerous driving, plus 4 months' imprisonment consecutive for driving whilst disqualified, plus 2 months' imprisonment consecutive for failing to stop after a road traffic accident. The total period of imprisonment was 2 years and D1 was disqualified for 5 years until an extended retest is passed.
D1 had an extensive criminal record, including but not limited to offences of driving without due care and without insurance, driving with excess alcohol and driving whilst disqualified and without insurance and for failing to stop.
The judge (Judge Barrie) said:
"I deal with you on the written basis of plea that was agreed on the last occasion that you were before the court, which is based on what I have read from the independent witness, Mr Marsh, who saw what happened. It is clear from what he says that it is right to deal with you on the basis that you did not try to hit Mr Groves, but swerved to try to avoid him and he jumped onto the bonnet of your car. I accept that as being the start of the events that led to the injuries that he suffered shortly afterwards.
You drove off. What Mr Marsh says is that near to the exit he saw the brake lights come on and then the car went round the bend like you were trying to shake him off. You pulled off at speed and also when you left the exit of the lay-by you didn't stop at any time. You drive off. You drive more than 500 metres 2 with him on the bonnet of your car and then you swerved and threw him off the bonnet to the verge."
The Witnesses
The witnesses I have heard are:
(i) Jennifer Groves, C's sister.
(ii) Anna Stealey, C's former girlfriend.
(iii) Charlotte Cook, D1's then girlfriend and the sole passenger in the Peugeot.
(iv) Luke Galloway, an occupant of a silver Vauxhall motor car which was one of three cars (including the Peugeot) returning from a trip to Barmouth together.
(v) Laura Cleeton, a passenger in a Citroen motor car, which was one of three cars that had been to Barmouth.
(vi) David McInnes, the driver of the Citroen motor car in which Laura Cleeton was a passenger.
(vii) PC Stafford, the police investigation officer who investigated the accident.
(viii) James Phillips, an independent witness who worked at Dinky's Diner, a 24 hour diner located in the lay-by.
(ix) Ricky Marsh – also an independent witness who worked at Dinky's Diner. Mr Marsh died on 31 March 2013. His statement to the police dated 4 July 2010 was admitted under the Civil Evidence Act.
In addition there has been evidence from accident reconstruction experts, namely Mr Seston for C and Mr Mottram for D2.
Background Facts
The evidence as to how C arrived in the lay-by is uncontroversial. That evidence was given by Jennifer Groves and Anna Stealey. Both these witnesses agreed that C could be a bit of a lad and got into odd scrapes. On the evening in question Jennifer Groves was the designated driver of a white car. She had picked up in Shrewsbury the Claimant, Anna Stealey, Kevin Wynne (Jennifer Groves' partner) and a man called Kevin Jones. Before he was picked up the Claimant had said he had had two pints to drink and during the evening he had another five pints or so, but was described as not being in a bad way. The five people in the car went to Welshpool and spent the evening in various public houses. They left Welshpool at about 12:20am en route back to Shrewsbury. They then stopped at Dinky's Diner to get some food. Jennifer Groves parked her car in the lay-by near to the toilets. These are on the other side of the lay-by from the café. 3 There were three tables outside the café. The five occupants of the white car sat at one of the tables. According to Jennifer Groves the table nearest the hatch was parallel to the hatch and so was the middle table. The third table was at right angles to those two tables. This is not as shown on subsequent photographs where the middle table is also at right angles to the table nearest to the hatch. Jennifer Groves was supported by Anna Stealey in the evidence as to the configuration of the tables. However I believe on balance that their recollection is incorrect since this was a café where Mr Phillips worked for many years, and he said that the tables were always in the configuration shown on the photographs. Jennifer Groves' recollection is that she was sitting on the bench nearest the hatch with her back to the other benches, Anna Stealey was sitting next to her, Kevin was opposite and the Claimant was behind her sitting on the middle table. Anna Stealey at first said she did not remember the configuration of the benches but thought that her party was on the middle bench and she was facing the hatch. She said she thought that C was sitting on the table. I accept that Jennifer Groves and Anna Stealey were sitting facing the hatch and I accept Jennifer Groves' evidence that this was the table nearest the hatch. (Mr Phillips' evidence on this point was to the same effect). This group had ordered food when D1's Peugeot entered the lay-by from the Welshpool direction and came to rest close to the tables, but a few feet away from them.
As regards D1 and his party, they had been to Barmouth. They did not stay there long. D1 had not drunk anything. Three cars left at the same time in this group.
They were: D1's Peugeot in which Charlotte Cook was the passenger, Dave McInnes and his girlfriend Laura Cleeton who were in a Citroen motor car and Luke Galloway in a silver Vauxhall driven by Dave McDonald. The Peugeot arrived first at the lay-by and the other two cars pulled up alongside it across the lay-by.Up to this point there is no serious disagreement as to the evidence and there was no indication of any trouble.
How Did C come to be on the Peugeot's Bonnet?
There are three potential explanations for this:
(i) He was struck by the front of the Peugeot and landed on the bonnet.
(ii) He jumped onto the bonnet so as to avoid being run over by the Peugeot.
(iii) He jumped onto the bonnet in order to get the Peugeot to stop.
C's primary case is explanation 1, failing that explanation 2. D2's case is explanation 3.
I shall consider the evidence in respect of this question and subsequent events in three main sections. The first section is up to the point where the two cars other than the Peugeot leave the lay-by. The second section is from that point until C first ends up on the bonnet of the Peugeot. Finally, I shall consider from that point until C was thrown off the bonnet.
Evidence and Findings up to the Point Where the Citroen and Vauxhall Motor Car Leave the Lay-by.
Jennifer Groves' evidence in...
To continue reading
Request your trial
-
Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions
...EWHC 977 (QB); (360)Rainford vLawrenson [2014] EWHC 1188 (QB); (361) West Sussex CC vFuller[2015] EWCA Civ 189; (362) Groves vStudley [2014] EWHC 1522 (QB); (363)Terminal Contenitori Porto di Genova SpA vChina Shipping Container Lines LtdC2016 The Authors. The Modern Law Review C2016 The ......