Mr Robert Bright (a protected party by his litigation friend and deputy Mr Simon Scott) v Mr Jack Bourn
| Jurisdiction | England & Wales |
| Judge | Master Cook |
| Judgment Date | 27 July 2018 |
| Neutral Citation | [2018] EWHC 1948 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17P03782 |
| Date | 27 July 2018 |
[2018] EWHC 1948 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Cook
Case No: HQ17P03782
Mr Nigel Spencer Ley (instructed by Metcalfe Copeman & Pettefar) for the Claimant
Mr Neil Block QC (instructed by Horwich Farrelly) for the Defendant
Hearing date: 18 th July 2018
Judgment Approved
On the 17 November 2013 at about 12.40pm the Claimant was seriously injured in a road traffic accident whilst crossing the A1101 Isle Road in Outwell near Wisbech. It is accepted that the accident was caused by the negligent driving of the Defendant who was riding a Jinlun 125cc motorcycle.
At a case management hearing which took place before me on 23 March 2018 Judgment was entered for the Claimant subject to the issue of any contributory negligence on the part of the Defendant. The parties agreed to have the outstanding issue of contributory negligence resolved by way of a preliminary issue hearing before me. This is my judgment on that issue.
Unusually for an accident of this kind there is a considerable dispute between two witnesses as to how the accident occurred. The Claimant sustained a serious brain injury and has no memory of the accident and for understandable reasons did not give evidence. The two witnesses to the accident who gave evidence were the Defendant and Mr. Norman who was a Tesco delivery driver. The Claimant's brother Mr. Kenny Bright was also called to give evidence about the most likely route his brother would have taken. He did not see the accident occur but was taken to the scene of the accident shortly after it had occurred.
The Court's task has not been made any easier by the fact that the police who attended the scene of the accident did not conduct any detailed investigation and did not prepare a detailed accident report or take photographs. This is surprising given the severity of the injury to the Claimant which required the attendance of an air ambulance.
The parties had been refused permission for expert evidence on liability, however they had jointly instructed Mr. Kingham of Hawkins to produce a factual report with photographs, measurements and a speed conversion table.
Summary of those facts agreed and not agreed
The following facts were not in dispute:
i) the accident took place at about 12.40pm on 7 November 2013 on the A1101 Isle Road in Outwell near Wisbech, which is a largely straight section of road which runs from south to north. The road is a quiet country road in a residential area;
ii) the speed limit on the road was 30 mph;
iii) the weather was fine and dry;
iv) the Defendant was travelling north on his motorcycle;
v) the Claimant was crossing Isle Road on foot from the east side of the carriageway to the West;
vi) the Claimant had crossed the centre of the carriageway and entered the northbound carriageway when the accident occurred;
vii) at the time of the accident Mr. Norman was sitting in his delivery van which was parked on the eastern side of the carriageway;
viii) the Defendant subsequently pleaded guilty to an offence of driving without due care and attention in respect of the accident.
The following facts were in issue:
i) precisely where the collision occurred;
a) the Claimant's case was that the collision occurred approximately opposite where Path C (shown on “Figure 2” of Mr. Kingham's report) meets the carriageway at a location marked by a red X on Figure 2. The position of the red X is derived from a position marked by Mr. Norman on the aerial photograph attached to his witness statement dated 18 May 2018;
b) the Defendant's case was that the collision occurred a little further north opposite the entrance to M&B Distributors approximately opposite where path D (shown on “Figure 2”) meets the carriageway;
ii) the position of Mr. Norman's van in relation to the collision;
a) Mr. Norman's evidence before me was that he was parked approximately 100m south of the location of the collision in a lay by (marked Layby 1 on “Figure 2”)
b) The Defendant's evidence was that the van was parked approximately 10 to 15 meters south of the location of the collision;
iii) whether Mr. Norman's van was parked on the carriageway, or whether it was parked in a layby;
a) Mr. Norman's evidence was that he was parked completely within Layby 1;
b) The Defendant's evidence was that Mr. Norman was parked on the carriageway “taking up almost all the other side of the road”;
iv) which direction Mr. Norman's van was facing:
a) Mr. Norman's evidence before me was that his van was facing north looking towards the collision location;
b) the Defendant's evidence was that the van was facing southwards away from the collision location;
v) whether the position of Mr. Norman's van would have obscured the Defendant's view of the carriageway;
a) The Claimant's case was that the van could not have obstructed the Defendant's view as it was a considerable distance from the collision location and was parked fully off the carriageway;
b) The Defendant's case was that Mr. Norman's van was obstructing his view such that he was only able to see the Claimant once he had passed the van;
vi) whether the Defendant made any attempt to avoid the collision;
a) Mr. Norman's evidence was to the effect that the Defendant made no attempt to slow down, sound his horn or manoeuvre around the Claimant. He stated that his impression was, if anything, that the Defendant's speed appeared to increase.
b) The Defendant's evidence was that he both braked and sounded his horn.
My Findings
I found the Defendant to be a very unimpressive witness. I found his answers to be evasive and he struck me as someone who would take any opportunity to minimise his own responsibility for the accident. For example, in his police interview under caution at the scene of the accident he made no mention of the fact that the Tesco van had obscured his view and stated that he first saw the Claimant from a distance of 30 meters. In his witness statement dated 16 February 2015 and in his evidence before me he maintained that the Tesco van was taking up the entire carriageway and that he did not see the Claimant until he had passed the van. Another example was his evidence that he was riding with L plates as he had not yet passed his motorcycle test. The police record, which I accept as accurate, clearly states that the motorcycle was not displaying L plates.
I found Mr. Norman to be an honest witness who was doing his best to recall events which occurred almost 5 years ago. In particular, I find he has become confused about the distance his van was from the site of the accident. He has not been assisted in his recollection because of the discrepancy between his initial comments recorded at the scene to the effect he was approximately 10 meters away from the point of collision and the contents of his police statement made approximately one month later in which he recorded the distance as being 100 meters. I accept that since that time he has tried to resolve the discrepancy in the two further witness statements prepared for these proceedings. Whether he was 10 meters or 100 meters from the accident site his description of what actually happened has been consistent from the start.
Mr. Kenneth Bright was a patently honest witness and I accept his evidence in full.
I find that Mr. Norman had parked his van fully...
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