Mihaela Bruma (A Protected Party, by her husband and litigation friend Ion Bruma) v Serhan Hassan and Another
| Jurisdiction | England & Wales |
| Judge | Curran,Judge |
| Judgment Date | 18 December 2017 |
| Neutral Citation | [2017] EWHC 3209 (QB) |
| Docket Number | Case No: HQ15P04414 |
| Court | Queen's Bench Division |
| Date | 18 December 2017 |
[2017] EWHC 3209 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Curran QC
(Sitting as a High Court Judge)
Case No: HQ15P04414
Ms Jane McNeill QC (instructed by Thompsons) for the Claimant
Mr James Medd (instructed by Kennedys) for the Defendants
Hearing dates: 16, 17 and 18 October 2017
His Honour Judge Curran QC:
Background
Mrs Mihaela Bruma is a lady who is now 31. She is married to Mr Ion Bruma, and they have one child. She came to the UK from Romania in 2012 to join her husband who had found work here. Not long after arriving Mrs Bruma herself found work as a waitress in the employment of a Mr Algul. Mrs Bruma, like her husband, was required to work night shifts on occasion. Mr and Mrs Bruma lived in Walthamstow.
On 1 November 2012 Mrs Bruma suffered catastrophic injuries in a road accident in Holloway Road, London, close to Highbury Corner. She was crossing the road on foot when she was struck by a motor car being driven by Mr Hassan, the first defendant. The undisputed evidence as to that is as follows.
Accepted facts
Just before 6 a.m. on 1 November 2012, Mrs Bruma was returning home from work. Her employer, Mr Algul, was giving Mrs Bruma a lift from his business premises in Willesden, where Mrs Bruma worked, to Highbury & Islington Underground Station. Mr Algul drove south along Holloway Road and stopped his car, a large Audi multi-purpose vehicle ("MPV") at a bus stop on the east side of the road just across the road from the station, no more than about 50 metres north of the station entrance.
Mrs Bruma alighted from the car from the rear offside door, stepping into the road, but she then walked behind the car and stepped onto the pavement at the bus stop. It was dark and there was light rain. There were three or four pedestrians at or near a bus stop on the opposite side of the road. The road at the location was a red route.
Mrs Bruma was intending to go to the Underground station to take a Victoria Line train to her home in Walthamstow, and so she needed to cross the road. There was a Pelican pedestrian crossing further down the road, but Mrs Bruna did not walk along the pavement on which she was standing to cross the road there, but instead walked across the southbound lanes of Holloway Road towards the station entrance. Mr Algul meanwhile had started to drive south down Holloway Road.
At about the same time, Mr Hassan was driving north in the offside lane of Holloway Road. As Mrs Bruma reached the centre white line, Mr Hassan noticed her for the first time. She was, he said, already in the middle of the road, on the white line just to his right. Within a second or so there was a collision between Mrs Bruma and the centre of Mr Hassan's car.
Mrs Bruma was treated at the scene by paramedics and helicopter-lifted to hospital. She has suffered catastrophic injuries as a result of the accident. This hearing concerns the issue of liability only.
Police evidence
One of the first officers to attend was PC Catanach. He made a witness statement later that day and in his witness statement for the civil proceedings stated that he had no further recollection of the incident beyond that original statement "owing to the passage of time." He said in the statement made on 1 November 2012 that he had arrived at the scene at 0600 just behind a paramedic's vehicle. He described Mr Hassan's vehicle as being stationary in the middle of the road and continued,
"[j]ust in front and slightly to the left of the vehicle I could see a small group of around 3 to 4 people huddled around a female who was lying on the floor. We got out of the car along with the LAS [London Ambulance Service] paramedic and approached the group. The group of people parted and let us settle down next to the female on the floor. …. I could see that her left leg was extremely deformed and facing the wrong way. Someone had attempted to place a jacket over her to keep her warm."
PC Catanach said that Mrs Bruma was,
"… not responsive but her eyes were open and closing very slowly. I could see that she was still breathing. One of the group was still holding her hand and I asked him what [her] name was. He told us and then I asked what had happened. He explained that he had just dropped [Mrs Bruma] off for work, she had then ran [sic] across the road and got hit by a car."
PC Catanach's witness statement then reads as follows:
"[t]he paramedic asked how fast the car was travelling that hit [Mrs Bruma]. I looked around and saw the driver of the silver Daewoo. I asked how fast he was going and he said '30 mph.' I could see the front of his vehicle had a few dints [sic] on the bonnet and the front bumper and the windscreen was totally smashed but still intact. I was helping the paramedic by holding [Mrs Bruma] still. He then asked to move [Mrs Bruma's] body so that she was laying [sic] flat on the floor she was twisted. The paramedic held her head whilst I moved her body. I took hold of her left leg and it felt limp and soft. It almost felt as though there were sharp bones floating around inside."
In cross-examination by leading counsel for the Claimant, PC Catanach was asked about whether Mrs Bruma had shown any signs of movement and whether he was sure that he had been told that Mrs Bruma had run across the road. His evidence was as follows.
"I arrived at scene at same time as paramedic. I involved myself in first aid. She was moaning and groaning but not responding. I didn't see her move at all. …. I was told that she ran across road. If [the person who told me that] told someone else she walked I can't account for that."
It was quite clear that the officer had no independent memory of what had been said, and that his answers were entirely based upon his contemporaneous witness statement.
PC Noonan arrived at the scene at 0645. His contemporaneous report recorded (at trial bundle p. 140) that the road surface was ' wet/damp' and the lighting conditions were " darkness: streetlights present and lit." He drew a sketch plan (trial bundle p. 136) from estimated measurements taken at 0745 which shows the position of Mrs Bruma as being on the ground directly in front of the bonnet of Mr Hassan's car.
PC Armstrong, who was then a collision investigator with the Metropolitan Police, arrived at the scene at 0700. He saw the Daewoo in the northwestbound lane of Holloway Road, 47 metres beyond the pedestrian crossing. It appeared to be in its post-incident position. There was no evidence to identify the point of contact on the road. Mrs Bruma had by then been taken to hospital. He was given some information by PS Calveley, who was the officer in charge of the scene, but who was not called by either side as a witness at the hearing. In his witness statement at page 82 of the trial bundle PC Armstrong said this:
"I was told that a man travelling in the southeastbound lane of Holloway Road had pulled over and dropped off a passenger. The passenger had then walked across from the east of Holloway Road towards the tube station and had been hit by a car in the northwestbound lane."
PC Armstrong said in his witness statement that there was no evidence to suggest that the Daewoo had been travelling above the speed limit, and in his opinion the collision damage suggested a speed below that, which he estimated at 15 mph. He added the following observation.
"I would also say that the driver of the car had little opportunity to see the pedestrian who was wearing dark clothing and that the driver's view of the pedestrian may have been concealed by the glare of oncoming headlights. Therefore the driver may have been unable to avoid this collision."
In cross examination by leading counsel for the Claimant, his evidence was as follows:
" I did have some information from Sgt Calveley. He was at the scene when I arrived."
The officer then made reference to a briefing note from PS Calveley to be found at trial bundle page 152:
"Apparently a woman was dropped off by a car that was travelling south in Holloway Road. She got out of the car onto the east footway outside the old Highbury and Islington tube and the car drove off. The woman crossed the road walking west towards Highbury and Islington station and was struck by a car that was being driven North in Holloway Road."
"That …" (continued PC Armstrong) "… was all the factual evidence I had. I carried out skid tests. … Antilock braking working. Exactly how firm braking was and when applied Icould not say. …. No detailed investigation into driver's view of scene ahead. As to my estimate of 15 mph, I would defer to the experts and accept that it could have been 20–30 mph."
He was then asked,
"Q You said that "the driver may have been unable to avoid this collision" but do you agree that one could equally say the driver may have been able to avoid the collision?
A Yes."
At 0705 PC Fotheringham spoke to Mr Hassan at the scene. He cautioned him in the usual terms, and then asked him what happened. Mr Hassan replied,
"[c]oming round this corner, nice and steady, all of a sudden this woman appeared. I think she was behind a car. She came out from behind the car. Just by the white line. I went for the brake. She was still trying to run across. I stopped suddenly. I don't know if I skidded. Then I screamed. I agree that this is a correct record of what was said."
At 0730 PC Madgley (another officer who was not called as a witness at the hearing) spoke to the driver of a vehicle with the registration number OE 57 AZG: see his evidence and accident book entries at page 144 of the trial bundle. That vehicle is the...
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