Stewart v Glaze
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 07 April 2009 |
| Neutral Citation | [2009] EWHC 704 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 8LV90001 |
| Date | 07 April 2009 |
[2009] EWHC 704 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Manchester Civil Justice Centre,
Crown Square,
Manchester
Before: Mr Justice Coulson
Case No: 8LV90001
Mr William Braithwaite QC and Ms Amanda Yip (instructed by Tranters Freeclaim Solicitors) for the Claimant
Mr Mark Turner QC (instructed by Berrymans Lace Mawer Solicitors) for the Defendant
Hearing Dates: 9th and 10th March 2009
Mr Justice Coulson:
INTRODUCTION
At about 2.12am in the early hours of the morning of Saturday, 25 th September 2004, the claimant, Michael James Stewart (“Mr Stewart”) was hit by a BMW motorcar being driven by the defendant, David William Glaze (“Mr Glaze”). Mr Stewart, who was 28 at the time, suffered catastrophic head injuries and is now in a persistent vegetative state. By proceedings commenced on 10 th January 2008 through his Litigation Friend, Mr Stewart brings a claim for damages arising out of that accident.
By an order dated 1 st May 2008, the District Judge ordered that liability should be tried as a preliminary issue. The trial on liability took place on 9 th and 10 th March 2009 at the Civil Justice Centre in Manchester. I am extremely grateful to Mr Braithwaite QC (for Mr Stewart) and Mr Turner QC (for Mr Glaze) for the efficient way in which the trial was conducted.
I set out at Section 2 below some general principles as to the proper approach to cases of this kind, including the appropriate parameters of the evidence of accident reconstruction experts, and the need for medical evidence when considering the physical effect of hypothetical events. At Sections 3 and 4 below, I set out the factual background to the relevant events, and the sequence both before and after the accident. At Section 5, I then deal with certain aspects of the expert evidence.
Having considered the factual and expert evidence I then set out at Section 6 my findings of fact; at Section 7 my findings in relation to Mr Glaze's liability to Mr Stewart; and, at Section 8, my conclusions on the issue of contributory negligence. There is a short summary of my conclusions at Section 9 below.
APPLICABLE PRINCIPLES OF LAW
The Reasonable Driver
I have to apply to Mr Glaze's actions the standard of the reasonable driver. It is important to ensure that the court does not unwittingly replace that test with the standard of the ideal driver. It is also important to ensure, particularly in a case with accident reconstruction experts, that the court is not guided by what is sometimes referred to as '20–20 hindsight'. In Ahanonu v South East London & Kent Bus Company Limited [2008] EWCA Civ 274, Laws LJ said:
“There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care.”
In that case, the judge at first instance had found the defendant's bus driver negligent, although the damages were reduced by a finding of 50% contributory negligence. The Court of Appeal concluded that the judge's findings could not stand and they held that the bus driver was not negligent at all. In his judgment, Lawrence Collins LJ disagreed with the judge's finding that the bus driver should have carried on keeping an eye in his nearside mirror to look for pedestrians on a particular part of the carriageway at the entrance to Peckham Bus Station. He said that this was a “counsel of perfection and it ignores the realities of the situation”. He concluded that an overall evaluation of the circumstances lead inevitably to a finding that there was no negligence. His conclusion of paragraph 20 was in these terms:
“I accept the submission for the defendants that, taking into account human reaction times for responding, the reality of the situation where the turn takes only seconds is that, given the driver's concentration on the vehicle in front, even if he had by chance looked up and seen the claimant in his nearside mirror after pulling away, it would have been just as the accident was taking place.”
By the same token, it is also important to have in mind that a car is “potentially a dangerous weapon” (Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801) and that those driving cars owe clear duties of care to those around them. Compliance with speed limits and proper awareness of potential hazards can often be critical in such situations.
Accident Reconstruction Evidence
Cases such as the present action often feature accident reconstruction experts. There is no doubt that their expertise can sometimes be of considerable assistance to the court. In the present case, both Dr Searle, who gave evidence on behalf of the claimant, and Mr Jennings, who gave evidence on behalf of the defendant, provided some very helpful evidence on a variety of matters. But in the past, the courts have sometimes had cause to comment upon the accident reconstruction evidence exceeding its proper parameters, when the experts themselves have engaged in what was little more than an advocacy exercise with little or no expertise involved.
In Liddell v Middleton [1996] P.I.Q.R P36, Stuart Smith LJ said:
“In such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage or whatever it may be. What he is not entitled to do is to say in effect 'I have considered the statements and/or evidence of the eye-witnesses in this case and I conclude from there evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point'. These are facts for the trial judge to find based on the evidence that he accepts and such inferences that he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the court, on which the expert's opinion is wholly irrelevant and therefore inadmissible…. We do not have trial by expert in this country; we have trial by Judge. In my judgment, the expert witnesses contributed nothing to the trial in this case except expense. For the reasons that I have indicated, their evidence was largely if not wholly irrelevant and inadmissible. Counsel on each side at the trial succumbed to the temptation of cross-examining them on their opinions, thereby lengthening and complicating a simple case…. In road traffic accidents it is the exception rather than the rule that expert witnesses are required. “
For the reasons developed in greater detail in Section 5 below, I consider that some, but by no means all of those criticisms are applicable to the accident reconstruction evidence in the present case. However, unlike in Liddell, there was one particular matter, namely the issue of reaction times, stopping distances and the like, on which the expert evidence was of some assistance to the court.
In my judgment, it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inferences to be drawn from it, can be tested. It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula, against which the defendant's actions are then to be rigidly judged with a mathematical precision.
Medical Evidence
The overall position with regard to medical expert evidence in the present case has been unsatisfactory. Originally, neither party sought to rely on medical evidence for the purposes of the liability hearing. Then, ten days before the trial, the issue as to whether Mr Stewart was walking or running into the road, was belatedly thought to be a matter on which medical evidence would be of assistance. I granted permission for that evidence to be given. However, the point came to nothing because Professor Redmond (claimant's expert) and Mr Lovell (defendant's expert) agreed that “the nature of the fracture sustained by the claimant does not assist as to whether he was walking or running at the point of impact with the defendant's vehicle”.
Unhappily, late on the first day of trial, Mr Turner applied for permission to call Professor Redmond, not on that issue, but on a new issue, namely whether the medical evidence was consistent (or otherwise) with Mr Stewart standing or moving in the road at the point of impact. A short report was prepared overnight by Professor Redmond. It was said that this was necessary to counter Dr Searle's view that Mr Stewart was standing at the moment of impact. On behalf of Mr Stewart, Mr Braithwaite objected to this short report being admitted into the evidence so late. I accepted his submission that, if it was allowed in, it may cause irredeemable prejudice to Mr Stewart, because his medical expert, Mr Lovell, was not able to deal with the matter in time. But more significantly, I concluded that the point was, ultimately, a complete red-herring, because there was no cogent evidence from Dr Searle, or indeed anybody else, to suggest that a consideration of the nature of the injuries sustained by Mr Stewart assisted one way or the other in resolving the issue as to...
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