Lauren Parker (acting by her Litigation Friend, Nigel Parker) v Clive McClaren

Hearing dates: 28 th, 29 th, 30 th June & 1 st July 2021

Approved Judgment

Deputy Judge Mathew Gullick QC:

Introduction

At about 11:20 pm on Saturday 6 ^th May 2017, there was a road accident in the centre of the City of York. The collision occurred just to the east of the bridge over the River Ouse, along which runs Bridge Street which then becomes Low Ousegate after the river crossing. The Defendant, a licensed private hire driver, was driving a Skoda Octavia car carrying two passengers to a destination in the city centre. The Claimant, then aged 23, was on a night out with friends. The accident occurred when the Claimant attempted to cross the road along which the Defendant's car was travelling. The car hit the Claimant, resulting in her being thrown to the ground and striking her head. She suffered catastrophic injuries as a result, including a traumatic brain injury and resulting physical and mental disabilities.

By this claim, issued on 16 ^th December 2019, the Claimant, acting by her father as Litigation Friend, makes a claim for damages against the Defendant arising from his allegedly negligent driving. The essence of the allegations made is that the Defendant was travelling too fast in the particular circumstances and that he failed to keep an adequate lookout. In response, the Defendant contends that the accident was caused or contributed to by the negligence of the Claimant. The essence of the Defendant's case is that the Claimant failed to notice the Defendant's approaching car and entered the road when it was unsafe to do so.

By an Order made by Master Gidden on 16 ^th July 2020, the claim was listed for a four-day trial on liability only. Directions were also given for expert evidence in the field of accident reconstruction. The trial took place before me at the Royal Courts of Justice between 28 ^th June and 1 ^st July 2021. At trial, the only witness of fact relied upon by either party was the Defendant himself. The Claimant has not been able to give an account of the accident because of her injuries.

The parties' accident reconstruction experts, Dr John Searle (for the Claimant) and Mr James Wade (for the Defendant), who had prepared written reports and a joint statement, both attended trial and gave evidence orally. Dr Searle is a Chartered Engineer who was for 25 years a senior employee, and latterly the Scientific Director, of the Motor Industry Research Association, with a considerable research background into various aspects of motor accidents. Mr Wade is also a qualified engineer and has since 2014 been a specialist in the investigation of road traffic collisions and their reconstruction at Hawkins & Associates Ltd, a firm of forensic scientists.

I record my gratitude to the parties' legal teams, and in particular to both Leading Counsel, for the clarity and care with which their respective cases were presented at trial.

In Barrow & Others v Merrett & Another [2021] EWHC 792 (QB) (“ Barrow v Merrett”), Mr Richard Hermer QC, sitting as a Deputy High Court Judge, said this at the beginning of his judgment:

“7. Before turning to the substance of the judgment I set a general observation about the evidential difficulties faced by Courts and litigants in civil proceedings which revolve around the reconstruction of fast moving and traumatic events such as this road traffic accident.

8. There are many claims arising out of accidents, be they on the road, in the home or in the workplace, in which it is simply not possible to conclude with absolute precision what occurred. The law does not require the Court to do so. The task for the Court is not to reach a conclusion based on ‘certainty’ as to what occurred but rather to come to a reasoned view as to the most probable explanation. In many accidents there will be a range of confounding factors which render the task of precise reconstruction of events impossible. This case exemplifies many of these factors. The trial concerns an event that from beginning to end lasted no more than a few seconds. It was not recorded on CCTV or a ‘dashcam’ and the few eye-witnesses to the collision all viewed events from different positions in the road and pavement. There was little ‘hard evidence’ such as extensive damage to the car that would enable ready reconstruction. [The Claimant's] physical injuries in themselves do not provide clear answers to the core questions, nor (as explained later) does the evidence from the accident reconstruction experts.

9. A Court attempts to reconstruct the most probable answers to the core questions by applying established forensic tools to such evidence as is available. It looks at the evidence in its totality, it seeks to understand the relevant layout of the scene, identify any objective facts that might act as lodestars by which more subjective opinion and recollection can be tested, scrutinises carefully the accounts of witnesses of fact and experts, both in the witness box and in earlier written statements – and it applies to all of this a fair dose of common sense.

10. All of this will strike those well used to litigation as a statement of the obvious. It is nevertheless important to spell out the evidential task, and the legal standard applied, so that others, not least the parties themselves, can well understand the basis on which I have proceeded to analyse this case.”

I respectfully adopt those observations as to the task of the Court in a case such as this. To similar effect were the observations of Coulson J in Stewart v Glaze [2009] EWHC 704 (QB) (“ Stewart v Glaze”) at [5–10]. I have particularly borne in mind what Coulson J said at [10] of his judgment, that it is “the primary factual evidence which is of the greatest importance in a case of this kind” and that it is important not to elevate the expert evidence into a framework against which the defendant's actions are to be judged with mathematical precision.

As has also been observed in the decided cases, the Court is faced with a particular difficulty in making findings of fact when the severity of a claimant's injuries makes it impossible for them to give evidence about the circumstances of the accident. In the present case, that difficulty is compounded by the lack of evidence from any witness to the accident other than the Defendant himself. Nonetheless, the Court must determine the dispute put before it and so make findings of fact based on the evidence (including the expert evidence) which the parties have adduced.

Background to the Accident

There is a very significant measure of agreement between the parties about the circumstances leading up to the accident and there was no challenge made on behalf of the Claimant to the central elements of the account given by the Defendant. I shall therefore begin by setting out the background, insofar as it is not controversial, based upon the evidence given by the Defendant.

Bridge Street / Low Ousegate is a single carriageway road in the centre of the City of York, which runs from east to west and includes a bridge over the River Ouse. It is a two-way street, i.e. traffic can travel in both directions along the road. The carriageway is just over 7 metres wide. At the material time, it was subject to a 30 mph speed limit. Just across the eastern end of the bridge there were bars and restaurants, including on the south side of the road a “Slug & Lettuce” bar and on the north side of the road a “Yates' Wine Bar”. I have included in the Appendix to this judgment two images of the accident scene taken from the bridge by the parties' accident reconstruction experts, one taken in the day by Dr Searle (Image 1) and another taken at night by Mr Wade (Image 2). These images were both taken some time after the accident.

The Defendant was born in 1937 and passed his driving test when he was 18 or 19 years of age. He had been a professional driver for his entire working life and prior to the accident had worked as a licensed private hire driver in the City of York for about 40 years. After reaching the age of 65, the Defendant was required to provide a medical certificate in order to renew his private hire licence. He had undertaken a medical assessment in about January 2017, which involved an in-depth vision assessment. The Defendant wore glasses when driving but did not have any other conditions that affected his ability to drive. The Defendant's vehicle was a grey Skoda Octavia estate car, registered in 2007. It was 4.7 metres long, 1.8 metres wide and had a maximum height of 1.5 metres. It was equipped with anti-lock brakes. At the time of the accident, the Defendant was driving with his dipped front headlights on.

In his evidence, the Defendant described himself as a “night owl”. He enjoyed working at night, when the traffic was lighter, and preferred to rest during the daytime. His routine was to work on Thursday, Friday and Saturday nights, starting at around 6:00 pm and finishing at 3:00 am, or at the latest 4:00 am. The Defendant worked for a local taxi company, York Cars, which would provide him with bookings by radio. He did not drive with a satellite navigation system; he knew York very well. He did have an electronic...