Radoslav Pashamov v Leon Taylor & Anor [2025] EWHC 1035 (KB)

[2025] EWHC 1035 (KB)

Case No KB-2022-002534

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice

Date 30 April 2025

The Strand

London WC2A 2LL

Before

Simon Tinkler

(sitting as a Deputy High Court Judge)

Between

Radoslav PashamovClaimant

Leon TaylorDefendants

Edward Vinson Limited

James Aldridge (instructed by Osbornes Law) for Claimant

Catherine Peck (instructed by Horwich Farrelly) for First Defendant

Peter Freeman (instructed by DAC Beachcroft Claims Ltd) for Second Defendant

Hearing Hearing dates: 25/26/27 March 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 30 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

Simon Tinkler sitting as a Deputy High Court Judge:

[1]This judgment follows a trial on liability.

[2]On 23 June 2020 Mr Pashamov was working for EV Limited. He was helping cultivate fruit in the fields at one of their farms. At the end of the working day he got on a bus provided by, and operated by or on behalf of, EV Limited to take him back to the caravan site where he lived. The caravan site was also owned by EV Limited. After a few minutes’ drive, the bus stopped on the side of a rural main road to pick up other employees of EV Limited who had also been working in the fields. Those employees were waiting on the farm a little distance from the main road. They could not see the bus from where they were wating. Mr Pashamov got off the bus and started to cross the road to let those other workers know the bus had arrived. He was halfway across the road when a car driven by the first defendant, Leon Taylor, collided with him. The initial impact was at the side of the car near the front wheel arch. Mr Pashamov was thrown into the air, hitting the car windscreen. Mr Pashamov suffered serious head and body injuries. He was taken to hospital by air ambulance. He remained in hospital for almost a month and has ongoing injuries. He has not worked since the day of the collision.

[3]Mr Pashamov says that the First Defendant, Mr Taylor, drove in a way that was below the standards of a reasonably competent driver and the Second Defendant, Edward Vinson Limited (“EV Limited”) was in breach of its duties to him as his employer. He says they have each negligently caused him pain and injury and are liable to him for the loss and damage they have caused. Both defendants deny all liability.

[4]The First Defendant’s defence is simple. He says that he did not have enough time to react and avoid the collision. His driving was not therefore below the standard to be expected of a reasonably competent driver. This lack of time to react was primarily due to a combination of(a) Mr Pashamov running across the road and

(b) Mr Taylor’s potential view of Mr Pashamov being obscured by cars coming towards Mr Taylor. In addition, his time to react was reduced because Mr Pashamov was emerging from behind the bus. Alternatively, if Mr Pashamov was at the front of the bus then he was hard to see because he was emerging from shadow. The First Defendant also says that in any event the collision was caused entirely by Mr Pashamov’s contributory negligence in not looking both ways when crossing the road.

[5]The Second Defendant says in its defence that it was not the employer of Mr Pashamov at the time of the collision; he had finished work and was in his own free time. It also says that it did not ask Mr Pashamov to cross the road; the decision to cross the road was made by Mr Pashamov of his own free will. It says, further, that if Mr Pashamov had wanted to contact other workers to tell them to get on the bus he should have called them by phone and not physically gone to collect them. The Second Defendant also relies on Mr Pashamov’s contributory negligence in not looking both ways when crossing the road.

Summary of evidence

[6]There was witness evidence from people who were present at the time of the collision. Those included Mr Pashamov and Mr Taylor. They also included the driver of the bus, and three other passengers. There was evidence from two witnesses who arrived on the scene just after the collision, as well as from a police officer who arrived shortly afterwards. Some of the witness evidence was contradictory and none of it presented a complete picture of what happened. Ultimately, it was possible to piece together the evidence of what probably happened but a number of key facts are only approximately, rather than precisely, known.

[7]Witnesses can often give evidence from memory that they believe to be true, but which is as a matter of fact not accurate. This inaccuracy of memory was well expressed by Leggatt J (as he was then) in the well-known passage at paragraphs 15 to 22 in Gestmin v Credit Suisse [2020] 1 CLC 428.

[8]In this case, several witnesses gave evidence about what they remembered which photographs and other evidence show not to have been an accurate memory. I did not draw any inference as to the general reliability of any witness on other points if one part of their evidence was not accurate. Until the witnesses realised there would be a collision, they had no particular reason to take notice of the events of that day. It was a normal working day and nothing particularly unusual had occurred. In the immediate aftermath of the collision most of the attention was then focussed on looking after Mr Pashamov as he lay seriously injured in the road. The witnesses were not generally looking around to make detailed forensic notes of the scene.

Witnesses of fact

[9]Mr Pashamov is Bulgarian. He speaks relatively little English. He gave evidence through a translator. He said that he could not remember anything after stepping off the bus. His evidence was therefore limited to events leading up to the collision and as to the normal working practices of EV Limited. Mr Pashamov was generally clear in his evidence, although occasionally his answers contradicted themselves. He was sometimes, and understandably, emotional when giving evidence. This, along with the delays caused by the translation of the questions and his answers, occasionally made it difficult to follow his actual answer. As he could not remember the collision, his evidence, ultimately, did not go to the heart of most of the key issues in this trial. Any inconsistencies or lack of clarity were not material.

[10]Mr Taylor said he did not see Mr Pashamov at all when he was crossing the road. The first time he saw Mr Pashamov was when he collided with his car windscreen. Mr Taylor’s evidence did not, therefore, cover the moments immediately before the collision. It was limited to the situation a little before the collision as well as the situation immediately afterwards. His evidence was clear. Mr Taylor accepted what he could and could not recall, and the degree to which he was, or was not, certain about his recollection.

[11]Mr Petrov was a worker at EV Limited. He had been working in the same field as Mr Pashamov on the day of the collision. He had also taken the bus from the field to return to the caravan site. He was following Mr Pashamov off the bus, although he was getting off to smoke a cigarette rather than to fetch other workers. He gave evidence about the moments immediately before the collision. He also saw the collision itself and was one of the first people to look after Mr Pashamov after the collision. He spoke little English and gave evidence in person through a translator. His answers were clear. I had no reason to doubt that he believed what he said but some parts of what he said he remembered were contradicted by other evidence.

[12]Mr Vacharski was one of the workers waiting at the farm to be picked up when the collision occurred. He gave evidence about why the bus went via the main road. He also heard the collision and went to the scene straight afterwards.

[13]Mr Boychev was another person who worked with Mr Pashamov on the day of the collision. He had also taken the bus and was on the upstairs deck at the time of the collision. He gave evidence about what he saw immediately before the collision. His evidence was provided pursuant to a Civil Evidence Act notice as he was in Greece and uncontactable. There was therefore no cross examination.

[14]Mr Vaduva was the bus driver on the day in question. He was Romanian. He spoke a little English and a few words of Bulgarian. He provided two statements. The second one clarified or, more accurately, changed some elements of his first statement. In particular he changed his evidence about why he stopped at the side of the road. The differences in his evidence were not material to my decision. His evidence was provided pursuant to a Civil Evidence Act notice as he is living in Romania. There was no cross examination.

[15]Ms Dzhaleva was another worker employed by EV Limited. She had also worked with Mr Pashamov on the day of the collision and was on the bus going back to the caravan site. She gave evidence about what happened just before the collision. Her evidence was provided pursuant to a Civil Evidence Act notice as she is living in Bulgaria. There was no cross examination.

[16]There were some problems with the evidence provided under Civil Evidence Act notices. A number of statements were inconsistent with other evidence, and almost certainly not accurate. Those inaccuracies tended to support the party who provided the statement. That is not to say that the witnesses were deliberately false in their evidence but as they were not tested under cross examination I did not place significant weight on them. Most of the matters on which they gave evidence were, however, covered in depth by other evidence enabling the court to reach proper conclusions.

[17]There were also allegations made that some of the evidence contained mis-translations, and that some evidence was obtained by inappropriate questioning. The material matters to which this evidence related were covered in depth by other evidence. This enabled the court to reach proper conclusions without being sidetracked by having to unpick these allegations.

[18]PC Castle was one of the first members of the emergency services to arrive at the scene of the collision. He gave evidence about the scene at that time. This supplemented footage and photographs that came from his colleague’s body worn video (“BWV”). His evidence was straightforward and clear.

[19]Finally, the court heard from Ms Longley. She was a health and safety employee at EV Limited. She lived very close to the site of the collision and was one of the first people on the scene after it. Her evidence was clear. She accepted what she knew, and what she did not, and gave a fair account of what she saw. She also explained the background to the risk assessment carried out by EV Limited that was provided to the court.

Documentary evidence

[20]There was photographic and video evidence. This came from body worn video footage from a police officer who was part of the emergency response team. The time stamps on the photographs were one hour behind the actual time as they had not been reset to British Summer time. Evidence also came from photographs taken by witnesses at the time.

[21]There was documentary evidence from EV Limited of the risk assessment it had carried out regarding the bus service that took its employees home at the end of the day. There was a dispute about whether this risk assessment was in place prior to the collision. I address this question below.

Expert evidence

[22]There was expert evidence from Mr Wade and Mr Slark, two road traffic collision reconstruction experts. The experts based their evidence on police photographs of Mr Taylor’s car and visits to the site some three to four years after the collision. They did not physically inspect Mr Taylor’s car. They each provided an individual report and there was an initial joint report.

[23]The experts were not cross examined. The claimant had applied for permission to cross examine them as there some matters with which he was not happy. That application was refused. The experts were, however, permitted each to provide a supplementary report and a supplementary joint report to address the matters raised.

[24]The defendants said that the claimant seemed to be attempting to challenge the expert evidence. They sought to rely on TUI v Griffiths

[2023] 3 WLR 1204

to prevent this. The expert evidence itself was relatively confined. It addressed: i) the impact point on the car of the initial collision with Mr Pashamov; ii) whether the impact knocked Mr Pashamov forward or backwards; iii) the speed at which Mr Taylor was driving at impact based on the braking distance after the collision; iv) the speed at which Mr Pashamov was crossing the road at the moment of impact, based on the impact damage; v) the distance and time that Mr Taylor would have taken to brake at various speeds had he started braking when Mr Pashamov started to cross the road; vi) the sight lines of Mr Taylor to Mr Pashamov, and therefore also of Mr Pashamov to Mr Taylor’s car, based on a range of car speeds; and vii) the reaction time of a reasonably competent driver. The expert evidence in the reports was perhaps not always presented as helpfully as it could have been, nor was it as fulsome as it might have been. The experts had also expressed views on matters which were questions of fact for the court to consider. The experts, however, generally recognised that they were doing this. Their reports specifically and properly referred to matters being factual matters for the court to decide. The only material area of expert evidence that the claimant invited the court to reject was the evidence of the experts about the speed at which Mr Pashamov was crossing the road. In their report, however, the experts acknowledged that this was a question of fact for the court to decide. I consider this issue below. There was, ultimately, no expert evidence in this trial which required analysis of TUI v Griffiths exceptions in order to achieve fairness to all parties. The factual evidence itself, including that identified by the experts, was assessed by the court, and the court did not rely on the experts for that assessment.

Law

[25]There was no material dispute between the claimant and the first defendant about the applicable law.

[26]The first defendant will be liable in negligence if he failed to attain the standard of a reasonable careful driver and if the accident was caused as a result. The burden of proof, on the balance of probabilities, rests with the claimant. Drivers are taken to know the principles of the Highway Code.

[27]The claimant did not say that the first defendant was driving too fast. He said that Mr Taylor failed to keep a proper lookout and to react appropriately. It was accepted by Mr Taylor that he had a duty to keep a good lookout. It was also accepted that a road user must not assume that others on the highway will behave with reasonable care (see Charlesworth & Perry on Negligence at 11-234 and 11-208).

[28]Cavanagh J in Chan v Peters & Advantage Insurance

[2021] EWHC 2004

at paragraph 17 approved the following passage by HHJ Stephen Davies, acting as a Deputy High Court Judge, in AB v Main

[2015] EWHC 3183 (QB)

in which he said: "6. …The standard of care is that of the reasonably careful driver, armed with common sense and experience of the way pedestrians, particularly…are likely to behave: Moore v Pointer [1975] RTR, per Buckley LJ. If a real risk of a danger emerging would have been reasonably apparent to such a driver, then reasonable precautions must be taken; if the danger was no more than a mere possibility, which would not have occurred to such a driver, then there is no obligation to take extraordinary precautions: Foskett v Mistry [1984] 1 RTR 1, per May LJ. The defendant is not to be judged by the standards of an ideal driver, nor with the benefit of "20/20 hindsight": Stewart v Glaze

[2009] EWHC 704

per Coulson J at [5].

[7]Second, however, drivers must always bear in mind that a motorcar is potentially a dangerous weapon: Lunt v Khelifa

[2002] EWCA Civ 801

per Latham LJ at [20].”

[29]Smith LJ in the Court of Appeal in Lambert v Clayton [2009]EWCA Civ 237 cautioned trial judges against making findings of fact of unwarranted precision when that was not justified by the evidence, on the basis that treating what could in truth be no more than "guesstimates" as if they were secure findings of fact could easily lead to an unjust result either way [35-38]. At [39] she said this: “If there are inherent uncertainties about the facts, as there were here, it is dangerous to make precise findings. This may well mean that the party who bears the burden of proof is in difficulties. But that is one of the purposes behind a burden of proof; that if the case cannot be demonstrated on the balance of probabilities, it will fail."

[30]In Stewart v Glaze Coulson J at [8-10] warned of the danger of:(i) experts giving opinions on matters beyond their expertise and acting as advocates seeking to usurp the role of the judge;

(ii) elevating their admissible evidence about reaction times, stopping distances and the like into a "fixed framework or formula, against which the defendant's actions are then to be rigidly judged with a mathematical precision".

[31]Cavanagh J continued in Chan: “19. In Stewart v Glaze, at paragraph 7, Coulson J said that, when considering allegations of negligence against the drivers of cars, "Compliance with speed limits and proper awareness of potential hazards can often be critical in such situations." At paragraph 10, Coulson J said: "10. 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."

[20]In Sam v Atkins, the Court of Appeal emphasised that the Court must take care, when considering whether negligence has been proved, to consider whether the lack of reasonable care on the part of the defendant, if established, had been causative of the accident. In that case, the judge found that the defendant had been negligent but that her negligence had not been causative of the accident. At paragraph 14, Hale LJ said:

"In my judgment, the judge was technically wrong to express the obvious findings that he made in the way in which he did. It is commonplace to analyse a cause of action in negligence compartmentally, examining a duty of care, breach of the duty, causation and damage. That is convenient, but technically wrong. Negligence is a composite concept necessarily combining all the elements I have mentioned."

[21]Sam v Atkins made clear that if a defendant acts without reasonable care but that failure does not cause the accident, the defendant is not negligent (see paragraph 24 and that there is danger in approaching the question of whether or not the defendant's driving fell below the requisite standard in a vacuum, without reference to the actual circumstances of the actual collision against which the standard is to be judged…

[26]As for contributory fault, in Jackson v Murray [2015 UKSC 5, when giving the judgment of the majority of the Supreme Court, Lord Reed JSC said, at paragraph 28, that "the apportionment of responsibility is inevitably a somewhat rough and ready exercise." "10. 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." "In my judgment, the judge was technically wrong to express the obvious findings that he made in the way in which he did. It is commonplace to analyse a cause of action in negligence compartmentally, examining a duty of care, breach of the duty, causation and damage. That is convenient, but technically wrong. Negligence is a composite concept necessarily combining all the elements I have mentioned."

Liability for negligence of the second defendant

[32]EV Limited argued that because Mr Pashamov had ceased his paid work, they no longer had any duty to him as his employer. Mr Pashamov argued that this submission was not supported by the authorities.

[33]The principle was stated by Lord Atkin in Weaver v Tredegar Iron & Coal

[1940] AC 955

at 966 that:

“there can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not end when the downed tools signal is given or when the actual workshop where he is working is left. In other words, the employment may run its course by its own momentum beyond the actual stopping place. There may be some reasonable extension in time and space…”

[34]In Staton v National Coal Board [1957]1 WLR 893 it was held that a worker collecting his pay was still employed. Finnemore J said at 896 “There has been nothing to break the course of employment. He has not gone off on any frolic of his own; he has not begun to do something solely for his own interest…”.

[35]In Bell v Blackwood Morton & Sons Limited [1960] Scots Law Times 145 it was held that an employer was liable for injuries caused when workers were on the stairs going home after the end of their paid working day. It was held that “the courts [have] rejected the view that the employment necessarily ended when the hours of work ceased”. On appeal it was held by The Lord President that “The scope of the employment and the consequent duties and responsibilities of the employer do not necessarily cease when the actual work for the day comes to an end”. Factors that were relevant included the fact that the employer had exclusive control of the stairs, and that only employees were allowed to use the stairs.

[36]The question was considered further in Vaughan v Ministry of Defence

[2015] EWHC 1404 (QB)

. At paragraph 13 the question was “whether the accident occurred when Marine Vaughan was engaged in something reasonably incidental to his “work””. The general principle as articulated at paragraph 20 was that “something reasonably incidental to the work will fall within the scope of the employment”.

[37]Mr Justice William Davis also noted in paragraph 20 the dictum of Lord Goff in Smith v Stages

[1989] 1 AC 928

that in cases involving transport to and from work:

“But how do we distinguish the cases in these categories [of travelling from work cases] in which a man is acting in the course of his employment and those in which he is not? The answer, I fear, is that everything depends on the circumstances”

[38]It seems clear to me that there are circumstances in which an employer can be liable to an employee notwithstanding that paid working time has ended. If the employee is doing something that is reasonably incidental to the employment, then the employer will have ongoing duties. Whether the employer has those duties to the employee in a specific case is, of course, likely to be heavily dependent on the particular facts.

Facts

[39]There were a number of material facts that were agreed. A number of material facts were, however, disputed. A number of other facts were disputed but were less material and the court did not, therefore, need to resolve the position on those. For the avoidance of doubt, the court considered all evidence put before it; if a fact is not mentioned or a dispute not resolved in this judgment that is because it was not material to the outcome.

General working situation at the time of the collision

[40]Mr Pashamov was employed by EV Limited to work in the fruit fields. He lived at a caravan site owned by EV Limited and for which he paid rent to EV Limited. It is not clear how many other workers lived there but it seems to have been a reasonably significant number. EV Limited owned or operated a number of different farms nearby. Each day EV Limited would decide which workers would work on which farms and in which fields. EV Limited provided a bus that collected its workers from the caravan site in the morning and took them to the various fields on the various farms. In the evening EV Limited provided a bus that went to pick up points near the various fields and took the workers back to the caravan site.

[41]Workers could take that bus to and from work but were not contractually required to do so. If a worker did not take the bus, then they would have to travel to and from the caravan site by another means. Some workers had bicycles which they used. If the workers were on a field near the caravan site, they sometimes walked back. The bus only carried EV Limited workers; it did not carry any non-EV Limited workers. Mr Pashamov did not have a bicycle or a car. Each day he took the bus to and from the caravan site to the field where he was working.

[42]The workers were not allowed to take mobile phones into the fields. They were allowed to have mobile phones when they were not in the fields. Some workers kept those phones with their lunch and other belongings at storage points at or near the pick up points.

The risk assessment

[43]EV Limited disclosed a Risk Assessment dated 4 January 2021. That included an assessment of the risk related to bus driving. It classified the risk relating to “Drop off and pick up points” as “high”. That meant there was risk of “Amputations, head injuries, fatalities”. It identified the risk as being to “staff”. There were control measures to be put in place to reduce the risk to “low”, which meant “minor cuts and grazes, very low risk”. The measures were “Drivers – only to drop off and pick up staff from approved points only on the farms – see map for clarification”. The map attached to this risk assessment identified a number of pick up points for staff. These were all on the farms. None were on or by the side of main roads. The safe pick up points included the point where Mr Pashamov was picked up. They also included the pick up point where the other workers were waiting to be collected when Mr Pashamov crossed the main road to let them know the bus had arrived. The people to “action” the measures were “Driver/C Longley/ D Stoyanov/J Olivier”. At the time of the risk assessment D Stoyanov was the manager responsible for some, or possibly all, of the transportation of the seasonal workers. At the time of the collision his role as manager seemed to be fulfilled by Mr Milev-Mitko.

[44]Ms Longley said that there was a similar, if not identical, risk assessment in force in June 2020. She said that the IT systems were changed in 2021 and so EV Limited did not have an electronic copy of the risk assessment in force in 2020. She said the physical risk assessment document from 2020 was probably put in storage when the IT system was changed but EV Limited had been unable to locate it.

[45]The claimant said that he believed that there actually had not been a risk assessment in place in June 2020. He invited the court to infer that Ms Longley had created it in 2021.

[46]I found Ms Longley’s evidence on this point to be straightforward and credible. Her evidence that there was a new IT system in 2021 was not challenged. It is perfectly credible that physical documents were put in storage at that time and that the old risk assessment cannot now be found, or was thrown away after the new one was created on the IT system. Ms Longley seemed to me to have carried out her duties consciously on health and safety, and she accepted when things were done less than perfectly. If she was going to create a new risk assessment in 2021 as part of a strategy by EV Limited to protect itself then I consider that she would be unlikely to have created the one provide to the court because that potentially hindered its case. I find that, as a matter of fact, the 2021 risk assessment in the trial bundle was materially similar to the one in place in June 2020 when the collision occurred.

The bus journey

[47]On the day of the collision Mr Pashamov’s working day ended at around 5pm. The bus came to collect him and other farm workers from a designated pick-up point. The bus and the driver were provided by EV Limited. The bus driver was not the normal bus driver, although he had driven for EV Limited on a small number of occasions previously. The bus driver said that he was texted between 230pm and 3pm by an EV Limited employee called Luci with details of where to collect the workers. Ms Longley gave evidence that Luci knew of the risk assessment and it was his job to tell the drivers only to use designated pick up points.

[48]The bus was late and so some of the workers left the pick up point and walked to another pick up point nearer the exit from the farm.

[49]Normally the bus would drive from one pick up point to the next pick up point on dirt roads within the farm. It would not go on the public road. On the day of the collision the bus did not, however, use the dirt roads. It went on a main road known as the Graveney Road. There was a dispute as to why this was. The claimant says the bus did not drive around the farm because barriers were down across the dirt road to the next pick up point. The second defendant said that the bus went on the main roads because lorries were blocking the farm roads. The bus also did not turn off the main road back on to the farm road (the “Farm Road”) to the collection point. This was potentially important because EV Limited said that, in essence, the side of the main road opposite the Farm Road entrance was the only place the bus could safely park. Again, the parties did not agree why the bus parked there. The claimant said it was because the barriers were down. The second defendant said it was because lorries blocked the way.

[50]In reality, it is not material whether the internal dirt roads and the Farm Road were blocked by the lorry or because the barriers were down. In either of those circumstances the bus was unable immediately to take its expected route along the internal roads or down the Farm Road. In either of those circumstances, however, it was open to EV Limited to take steps to allow the bus to drive to the pick up point either solely on the internal roads or via the main road and the Farm Road. The barriers were on the farm which they owned and therefore were under their control. Any lorry was also on their farm road. It is likely to have been delivering, or collecting, produce from their farm. It may have been their lorry, or it may have belonged to a third party. I infer in either circumstance any lorry was under their indirect control and EV Limited could have directed the lorry driver to move it.

[51]I will, however, for completeness set out my findings on the reasons for the bus going via the main road and then not turning back off the main road on to the Farm Road.

[52]Mr Vacharski gave evidence that the barrier was down so that is why the bus went on the main road, and why it could not reach the second pick up point. Mr Pashamov said the same. The bus driver said he went via the main road because there were lorries on the dirt track. He says he was told by an EV Limited employee called Krasi therefore to use the main road. The bus driver said, however, in his witness statement that he didn’t know if the lorries were still blocking the Farm Road and that he parked on the main road because Mr Pashamov said “stop” when the bus was opposite the Farm Road.

[53]In either case, it was not usual for the bus to park on the main road. The bus driver said that he “didn’t normally pick up farm workers from the side of main roads. They are normally waiting in farm yards or at the side of fields or on private farm roads”.

[54]Mr Pashamov said the bus could have parked in the entrance next to the Farm Road in any event. He said the bus normally parked there if it could not drive all the way to the pick up point and that would have been a safe way to collect the workers. Mr Vacharski also gave evidence that the bus sometimes parked on the side of the road in the entrance to the Farm Road, and not on the side of the road opposite.

[55]EV Limited says that it would not have been safe to park on the farm entrance side of the road because the workers would have had to go in the road to get to the bus doors.

[56]There is a photograph taken from the BWV that shows a lorry blocking most of the entrance to the Farm Road at 18.43. The lorry was not, in my judgment, driven there from the main road between the time of the collision and the time of the photograph. Throughout that time Mr Pashamov was lying injured in the middle of the main road and the lorry could not have driven past him to the Farm Road. The lorry could however, have been driven there from inside the farm after the collision; it would then have been unable to exit the Farm Road and would have parked where it was shown in the photograph.

[57]Taken as a whole, the evidence seems to me to show that it is likely that the barriers were down on the Farm Road preventing the bus from reaching the pick up point on the internal farm roads. I accept the witness evidence of Mr Pashamov and Mr Vacharski on this point. I consider that the bus driver remembers a lorry being a problem but that the lorry was, based on the photographic evidence, blocking the entrance to the Farm Road not the internal farm roads. The lorry was clearly parked in the entrance to the Farm Road some 30 minutes after the collision. There is no witness or other evidence that it arrived between the collision and the time of the photograph. I am satisfied that the bus driver did not turn down the Farm Road as it was blocked by a lorry. I am also satisfied that the bus driver may also have believed that the barriers were still down on the internal road. That may have been an additional factor in the mind of the bus driver when he stopped and parked the bus rather than waiting for the lorry to move.

[58]There is a further dispute as to whether Mr Pashamov and the bus driver had a conversation in which Mr Pashamov asked the bus driver to park in the entrance to the Farm Road so that the bus was nearer the pick up point. Mr Pashamov is Bulgarian and spoke little English and no Romanian. The bus driver was Romanian and spoke little English and little, if any, Bulgarian. They, therefore, had very limited language in common. Mr Pashamov said that he was gesticulating to the driver to park on the other side of the road. The bus driver said he thought Mr Pashamov was indicating that the bus should stop on the side of the road opposite the farm road entrance. Any discussion between them was, given the language barrier, likely to have been quite superficial. It is likely that Mr Pashamov indicated the general location of the farm road down which the workers would be waiting. I do not accept, however, that Mr Pashamov specifically asked the driver to park on the opposite side of the road and that the driver refused. I do not consider that Mr Pashamov and the driver had enough common language to have that discussion. In my judgment, there was no clear communication between them; any attempt at a detailed discussion was likely to have been at cross purposes or misunderstood.

[59]The decision on where to park was, in my judgment, a decision made by the driver, being the person who was in control of the vehicle and therefore making decisions about where to drive. The bus, as a matter of fact, parked on the opposite side of the road to the Farm Road entrance.

Where on the main road did the driver park the bus?

[60]Everyone agrees that the bus was parked on the opposite side of the road to the Farm Road entrance. They differ, however, on where exactly it was parked, and how much of the bus was on the road. This potentially affects the period of time for which Mr Taylor could have seen Mr Pashamov in the road.

[61]The defendants say that the bus was parked in the driveway entrance to Cairns Research opposite the entrance to the Farm Road. They say the bus was almost entirely off the road and at a slight angle to the road (the “Driveway Position”). Mr Pashamov says that the bus was parked parallel to the main road, approximately half on the road and half on the verge, some 10 metres before the turning to Cairns Research (the “On Road Position”). There was some confusion in his evidence as exactly where he said the bus was parked but this was not material; it was clear approximately where he said it was.

[62]There are photographic stills that have been downloaded from the BWV. These show that at 18.43 the bus was parked in the Driveway Position. Mr Pashamov says that it must have been moved from that position to the Driveway Position between the time of the collision and the time the BWV footage was taken.

[63]If the bus had been moved, then it would have passed within a short distance of Mr Pashamov as he lay in the road awaiting treatment or being treated. There were a number of witnesses to the collision and the immediate aftermath. None of them saw the bus being moved.

[64]It was common ground between the parties that Mr Pashamov was treated on the road in the position where he came to rest after the impact of the collision. Mr Pashamov was lying in the road at least 8 metres in front of the where the bus would have been if it had been in the On Road Position. It was agreed by the experts that the collision would have caused Mr Pashamov to have been knocked forwards by the impact on him from Mr Taylor’s car. In other words, if Mr Pashamov was right about where the bus was, then he must have walked at least 8 metres along the road after having got off the bus before starting to cross the road. No witness saw him do this. All witnesses who saw him describe him being near the front of the bus.

[65]Mr Petrov gave evidence that the bus was in the On Road Position. He said that when he got off the bus he stepped onto the grass. He said that was a core reason why he knew that the bus was in the On Road Position and not in the Driveway Position. However, the BWV still photograph at Exhibit D1A shows that when the bus was parked in the Driveway Position at 18.52 the front bus door was actually over the grass verge at the far side of the Cairns Research driveway. Mr Petrov’s memory of stepping onto grass was therefore consistent with either bus position.

[66]Mr Petrov and Mr Pashamov said the bus engine was turned off prior to the collision. The bus driver also says that the engine was turned off at the time of the collision. The bus driver’s evidence was given under CEA notice so he was not cross examined. As a minimum, however, he did not give any evidence that the bus was moved, even if he did not give positive evidence that it remained stationary after the collision.

[67]There was no need for the bus to be moved to block traffic. Indeed, it may have made it easier to block traffic by leaving the bus in the On Road Position if it had been there.

[68]Mr Vacharski said the bus was in the On Road Position. However, he also said that Mr Taylor’s car was to his right when he came to the main road. The photographs and other evidence show that Mr Vacharski was mistaken about that; the car was some 40 metres to Mr Vacharski’s left. I do not accept that Mr Vacharski accurately remembers exactly where the bus was, almost certainly because he was concentrating on the injured Mr Pashamov and not the precise location of the parked bus.

[69]In summary: i) The BWV evidence is that at 18.43 the bus was in the Driveway Position; ii) there is no evidence of the bus moving after the collision; iii) there is an inherent unlikelihood of the bus having been moved whilst Mr Pashamov lay seriously injured in the middle of the road iv) the evidence of the bus driver is that he had turned the engine off prior to the collision and there is no evidence he turned it on again; and v) the evidence is that Mr Pashamov crossed the road near the front of the bus and not some 8-10 metres in front of it. In my judgment the bus was in the Driveway Position at the time of, and immediately prior to, the collision. I consider that the witnesses who thought otherwise were giving their best recollections of what happened, but that their recollections of the bus being in the On Road Position are not accurate.

What were the road conditions like?

[70]It was around 6.15pm at the time of the collision. It was near midsummer and still light at that time of day. Mr Taylor said it was “a bright sunny day and the road conditions were good”. It was dry. The Graveney Road is a country road on which the speed limit is 60mph. It has a single lane in each direction with no central reservation. The bus cast a shadow along the road and towards the direction from which Mr Taylor’s car was coming. That meant that any people at the front of the bus would be standing in shadow and less visible than anyone standing in the sunlight. The expert evidence from Mr Wade was that the shadow would have also covered the edge of the road for a short distance into the road at the time of the collision. He does not give a precise distance although from the plan provided it seems to be perhaps half a metre or less.

Why did Mr Pashamov cross the road?

[71]The evidence was that the workers on the farm could not see the parked bus from their pick up point. In any event, it was not disputed that someone was expected to let the workers know the bus had arrived to collect them.

[72]Mr Pashamov says that he therefore crossed the road to tell the other workers that the bus had arrived. EV Limited does not dispute that is why he crossed the road. They say, however, that this was a decision that was made entirely by Mr Pashamov of his own volition, and that they did not ask him to do this.

[73]Mr Pashamov says that, as he got on the bus, he was specifically asked by the manager to go and tell the workers at the next pick up point when the bus arrived. There was no evidence from the manager that disputed this. Mr Vacharski gave evidence that he saw Mr Pashamov and the manager talking although he did not hear what was said.

[74]The manager, Mr Milev-Mitko, was not on the bus as he had driven home after Mr Pashamov got on the bus. Mr Pashamov says that he was therefore left as the most experienced worker on the bus. He says that if the bus did not stop at a pickup point then EV Limited expected the most experienced worker on the bus to go and collect the other workers because they would know where the pick up points were. He said he therefore believed that he was expected to let the other workers know the bus had arrived.

[75]EV Limited did not deny that the other workers need to be informed that the bus was parked on the side of the road to collect them. They made, however, a number of points about whether Mr P had a mobile phone with him at the time of the collision. The implication was that Mr Pashamov should have called the other workers on his phone to let them know the bus had arrived. Mr Pashamov denied having his mobile phone with him at the time of the collision.

[76]There is BWV footage after the collision appearing to show a phone being handed over along with other possessions of Mr Pashamov to be taken to the hospital. I am therefore satisfied that Mr Pashamov had a mobile phone either on him or with his possessions on the bus. The mobile phone was handed over at approximately the same time as Mr Pashamov’s other possessions. There is no evidence they were picked up from the floor or from his body as he lay on the road. The phone was also with his phone charger, which he would not have needed if he was merely carrying his phone. I infer that his phone and charger were likely to have been on the bus with his other belongings at the time of the collision.

[77]Ms Longley gave evidence that EV Limited typically had around 500 seasonal workers. They worked in different fields on different days depending on where work was needed. The workers that were to be picked up were, according to Mr Pashamov “new” and would not have known the pick up arrangements. There is no evidence that anyone gave Mr Pashamov the phone numbers of the workers in question or that he knew who they were. Indeed, if Mr Pashamov had known the numbers then he could easily have called them. He did not do so. Instead, he got off the bus and crossed the road to physically tell them the bus had arrived.

[78]There was no evidence that the manager or the driver made any attempt to contact the other workers.

[79]Taking this evidence together, I accept that EV Limited expected the most experienced worker on the bus to let the other workers know that the bus had arrived. I am satisfied that Mr Pashamov was therefore expected to let the workers know that the bus had arrived. I am also satisfied that the expected way to do this, indeed the only realistic way given the lack of information given to him about those workers, was physically to cross the road and go down the farm road to where they were waiting and tell them. I also accept that Mr Pashamov was explicitly told on that day by Mr Milev-Mitko to fetch the workers. Even if Mr Pashamov is wrong in recalling that, it would not alter my judgment that he was expected as the most experienced worker to let the workers know the bus had arrived.

[80]My conclusion is reinforced by the simple facts that(a) there is no evidence of anyone calling the workers by phone and

(b) Mr Pashamov was the only worker who got off the bus to let the other workers know it had arrived.

[81]It is important to assess whether Mr Pashamov crossed from in front or from the rear of the bus as that affects the amount of time in which he would be visible to Mr Taylor.

[82]Mr Taylor says that he did not see Mr Pashamov. He told people that because he did not see Mr Pashamov he assumed that Mr Pashamov must have been at the rear of the bus. Mr Pashamov on the other hand says that he was in front of the bus when he crossed the road.

[83]Both experts agree that Mr Pashamov was thrown forwards by the collision. Assuming that the bus was in the Driveway Position then Mr Pashamov landed in the road a reasonable distance along the bus between the front and back of it. Mr Pashamov must therefore have crossed at the front of the bus. If I am wrong about the position of the bus, and it was in the On Road Position, then the expert evidence more strongly indicates that Mr Pashamov crossed at the front of the bus.

[84]The evidence from the experts is backed up by witness evidence. The bus driver and Mr Petrov both say that Mr Pashamov was at the front of the bus. No witness saw Mr Pashamov at the rear of the bus.

[85]The evidence, in my judgment, clearly shows that Mr Pashamov crossed the road near the front of the bus.

Was Mr P in shadow when he started to cross the road?

[86]Mr Pashamov was at the front of the bus when he started crossing the road. The photographs taken from the BWV show that at 18.44 the bus cast a shadow that was starting to fall on the road. The front of the bus was in that shadow. Mr P was therefore standing in that shadow when he got off the bus. He was also, for the reasons set out above, in shadow when standing on the side of the road and for the first step or steps he took into the road.

Did Mr P look both ways?

[87]Mr Pashamov has no recollection of the moments before the crash and therefore could not give evidence about whether he looked both ways. Mr Taylor did not see Mr Pashamov before the crash and similarly could not give any evidence as to what Mr Pashamov did when crossing the road.

[88]The evidence from the bus driver and other witnesses was that Mr Pashamov looked to his right and waited for cars to pass. They say that he then did not look to his left. There is no evidence from any person that he then looked to his left.

[89]Somewhat strangely, Mr Pashamov said in his witness evidence that he had seen Mr Taylor’s car in the distance as he was getting off the bus. He had not mentioned this in his witness statement or at any prior time in the proceedings. It would not have particularly helped his case if he had seen Mr Taylor’s car as it might have put him on notice that a car was coming and he should take steps to avoid it. Mr Pashamov may have been trying to imply that Mr Taylor was going unexpectedly fast and so came to the point of impact sooner than Mr Pashamov was expecting. This was not, however, the pleaded case, and at trial Mr Aldridge confirmed that there was no allegation that Mr Taylor was driving too fast.

[90]Prior to the collision, Mr Pashamov had no reason to identify specific cars coming towards him. In my judgment it is possible that Mr Pashamov saw a car in the distance as he got off the bus, but even if he did it was unlikely to have been Mr Taylor’s car, which would have been much closer at that time.

[91]It is also highly unlikely that Mr Pashamov would have continued to walk or run across the road had he looked left and seen Mr Taylor’s car. This is not a case where Mr Pashamov almost managed to cross the road but misjudged the speed of an approaching car that hit him as he had almost finished crossing the road.

[92]I infer from the evidence that Mr Pashamov simply did not look to his left before the collision.

Did Mr Pashamov step back from the path of Mr Taylor’s car?

[93]There was a suggestion that Mr Pashamov stepped back from the path of Mr Taylor’s car immediately prior to the collision. Mr Petrov had said in evidence that he called “Stop” and that Mr Pashamov stepped back but “by then the car had already hit him”. Mr Boychev said that Mr Pashamov “actually stopped” after Mr Petrov called to him.

[94]The evidence from the experts was clear. There was no evidence of impact on the front of the car. There was evidence of impact on several places on the side of the car. That inevitably meant that Mr Pashamov had been moving forwards when he collided with the car. Indeed, no one offered any explanation as to how Mr Pashamov and the car collided if Mr Pashamov had stepped back before the collision. I am satisfied that Mr Pashamov was still moving forward at the moment of impact and that he collided with the side of Mr Taylor’s car.

What was the speed of Mr Taylor’s car at the relevant times?

[95]Mr Taylor said that he normally drove along that road at around 50mph but that he had slowed down a little way before the scene of the collision on account of the bus with its hazards light that was sticking out slightly into the road causing cars coming towards him to slow down and stop. He gave evidence that he thought he was driving at approximately 37mph at the time of the collision. He did not explain why he thought this, other than that he was going more slowly than he normally did.

[96]The experts say, based on the distance travelled by Mr Taylor’s car when he braked on realising that there had been a collision and from the impact damage on the car, that Mr Taylor was driving between 30-40mph. There is no evidence that Mr Taylor slowed down prior to the collision. Indeed, Mr Taylor confirms that he did not.

[97]I am satisfied that at all material times Mr Taylor’s car was travelling at between 30mph and 40mph. The evidence does not, however, allow the court to be any more precise than that.

For how long was Mr Pashamov in the road before the collision occurred?

[98]The joint evidence of the experts is that Mr Pashamov first collided with Mr Taylor’s car at the side and somewhere near the wheel arch. There were impact marks on the car. Those marks came, in their view, from Mr Pashamov’s foot striking the car some 50cm above the ground just behind the front wheel arch. They derive this assessment from a comparison of the marks on the car and the photographs of Mr Pashamov’s shoe. Mr Taylor gave evidence that he looked after his car well and that there were no marks on the driver door and arch prior to the collision. A shoe mark at a height of 50cm is, the experts say, much more consistent with Mr Pashamov running at the time of collision than walking. The experts also conclude that the shoe mark was the initial point of contact. It is in essence, this conclusion that the claimant invited the court to disregard.

[99]There was no evidence from damage to the car that indicated that the front of the car had hit Mr Pashamov. The blow of the side of the car on Mr Pashamov was assessed by the experts as more of a glancing blow than a full on blow, as would have happened if the front of the car had hit him. This caused his body to be propelled forwards and also rotated.

[100]The “bullseye” mark on the shattered windscreen was agreed by the experts to have been caused by the impact of Mr Pashamov’s head on it, not his arm or body. That is also consistent with the injuries to Mr Pashamov. The impact on the windscreen from Mr Pashamov’s head is therefore unlikely to have been the initial impact unless Mr Pashamov was moving across the road with his body in a very unusual manner.

[101]The experts do not, however, provide a definitive conclusion on Mr Pashamov’s speed. They say that “both experts favour Mr Pashamov’s pace across the road was towards the higher end of the range [3.2m/s] than the lower end [1.45m/s]”.

[102]The joint report specifically states that it should be read in conjunction with each separate expert report. Somewhat incongruously, both experts in their initial reports indicated that they were unable to determine from the evidence whether Mr Pashamov was walking or running and thus his speed at impact. The experts were not cross examined. I accept that the experts have concluded, on reflection and after discussion, that Mr Pashamov’s speed was as set out in their joint report.

[103]The bus driver said in his witness statement Mr Pashamov was only a metre away from the bus driver when he started to cross the road, and that he ran. Mr Pashamov has no memory of whether he was running or walking. Mr Petrov did not say in his first witness statement that Mr Pashamov was either running or walking, he merely said that he “started to cross”. In a second witness statement Mr Petrov said that Mr Pashamov ran, but it was accepted that this was a mistranslation by the second defendant’s insurers. In his oral evidence Mr Petrov said that Mr Pashamov was walking.

[104]Mr Boychev gave evidence about the moments before the collision. He did not say whether Mr Pashamov was running or walking. He said he “began crossing”.

[105]Ms Dzhaleva said in her witness statement that Mr Pashamov was running. There was some dispute about how this witness evidence was obtained and whether it accurately represented the views of Ms Dzhaleva. As she had not been cross examined, I did not place weight on her evidence when assessing the likely speed of Mr Pashamov and thus the time he was in the road.

[106]There was some argument at trial about where the idea initially came from that Mr Pashamov was running. The police evidence noted that they were told he was running. The BWV footage seems to show that the idea that he was running came from Ms Longley. She gave evidence that she had been told that by the bus driver. The BWV footage does not appear to show her discussing matters with the bus driver. The police, however, arrived on the scene after Ms Longley and so she might have spoken with the bus driver before then. The evidence at that time given to the police was generally confused, for example they were told that a van hit Mr Pashamov, which was clearly not accurate. This is understandable as it was a chaotic scene, no one saw the whole sequence of events, and Mr Pashamov was being treated in the middle of the road for serious injuries. I do not place any weight on the evidence as reported by the police. Ultimately the only direct witness evidence was from the bus driver and Mr Petrov.

[107]In my judgment, at the time of impact Mr Pashamov was running. That is based on the joint view of the experts that the mark some 50cm from the floor on the side of the car was caused by Mr Pashamov’s shoe. That mark was also likely, in my judgment, to have been caused by the initial impact in the collision. The other explanations offered for that mark, such as Mr Pashamov having been in an unusual walking position, are less likely than the simple explanation that it shows the point of initial impact when he was running across a busy road. If that mark was the initial impact then he could not have been walking – a person does not normally walk with their feet half a metre off the ground on each step. My judgment also takes into account the evidence from the bus driver and Mr Petrov. The bus driver was the closest person to Mr Pashamov at the time of the collision and had the clearest view. He said that Mr Pashamov was running albeit there was no cross examination of his evidence. Mr Petrov said that he thought Mr Pashamov was walking although this seemed to be based more on an assessment of how Mr Pashamov usually crossed the road, rather than what he saw in the split second as he saw that Mr Pashamov was about to collide with Mr Taylor’s car.

[108]It does not follow, however, that Mr Pashamov instantly started running at full speed from the time he started to cross the road. The evidence of the bus driver and Mr Petrov was that Mr Pashamov was waiting for cars to pass before starting to cross the road. In other words, he was stationary. That means his speed increased from stationary to running speed as he crossed the road.

[109]The calculation from the experts’ joint report is that if Mr Pashamov was running then he started crossing the road 1.3s before the collision. If he was walking, then he started crossing the road some 2.8s before the collision. The experts agreed that it is a question of fact for this court to determine the actual speed, and therefore the time that Mr Pashamov was in the road.

[110]The supplementary question asked the experts to estimate the time that Mr Pashamov was in the road if he half walked and half ran. They calculated this in two different ways. Mr Slark took the time for walking and running and gave a time half way. That gave an answer of 2.05 seconds. Mr Wade did a different calculation by taking the average of the two speeds and calculating the time. That gave a time of 1.7seconds.

[111]The court should be wary of reaching a conclusion that is artificially precise on the question of how long Mr Pashamov was in the road before the collision. Even if the court accepts that Mr Pashamov was running at the point of impact, there are many other variables to consider. These include the actual speed that Mr Pashamov could normally run, how that was affected by the fact that he had been working doing physical labour all day, how worried he was about crossing the road quickly and how quickly he went from stationary to running. There is no evidence before the court on these issues.

[112]I accept the expert and witness evidence that Mr Pashamov was likely to have been running at the time of impact. It seems to me, however, that as a matter of common sense it would have taken Mr Pashamov a short time to go from stationary to a running speed. It is likely therefore that Mr Pashamov was crossing the road for in excess of the 1.3 seconds that he would have been if he had started instantly at full running speed and less than the 2.8s if had walked the entire way across.

[113]In my judgment, the evidence as a whole shows that Mr Pashamov took around 2 seconds from when he started crossing the road to the moment of impact. It may have been for a few tenths of a second less than this or a few tenths of a second or more but one cannot be any more precise than that. That is also broadly consistent with the expert calculations of time taken for him to be half running and half walking, or in other words, building up to running speed.

[114]That period does not include any time that Mr Pashamov waited between getting off the bus and crossing the road.

Did other cars block Mr Taylor’s view of Mr Pashamov?

[115]The road is straight for at least 100m from where the bus was parked in the direction from which Mr Taylor was coming. He would have had an uninterrupted view of the front of the bus for between 5.6 seconds If travelling 100m at 40mph/64kph and 7.5 If travelling 100m at 30mph /48 kph seconds depending on his speed. He did not, however, have an uninterrupted view because there were cars coming towards him on the opposite side of the road. The last car that passed the bus and that obstructed the view was a purple Nissan Juke.

[116]The experts considered how that Nissan Juke affected the time that Mr Pashamov was visible to Mr Taylor, and vice versa. A critical factor in the answer was the speed of the Nissan Juke as it passed Mr Pashamov. There is, unfortunately, no direct evidence on this.

[117]Mr Taylor gave evidence that he slowed down to between 30mph and 40 mph to allow the cars coming towards him to pass the bus. He gave evidence that cars after the Nissan Juke stopped behind the bus to allow Mr Taylor’s car to pass the bus. Mr Taylor did not say that the Nissan Juke had stopped at the bus to allow other cars to pass. The road ahead of Mr Taylor was clear; in other words, there were no cars ahead of Mr Taylor on his side of the road for which the Nissan needed to stop behind the bus.

[118]The Nissan Juke was therefore likely to have been driving at a normal speed. The evidence is that normally on that road cars would travel somewhere between 40mph and 50 mph. There was, however, a bus sticking out slightly into the road which had its hazard lights on. Mr Taylor had reduced his own normal speed to somewhere between 30 and 40 mph because of this. That was likely to be the normal speed for cars at that specific time given the road situation.

[119]The passing cars were seen by Mr Petrov and the bus driver. Neither of them gave evidence that the cars were going unusually fast or unusually slow. The only car they mention going fast is Mr Taylor’s. There was, however, no reason prior to the collision for the witnesses to have paid much attention to the Nissan Juke. There was a reason for the witnesses to have noticed Mr Taylor’s car because both Mr Petrov and the bus driver saw it heading towards Mr Pashamov.

[120]Taking that evidence together I am satisfied that the Nissan Juke was going around at a normal speed in the circumstances but as the witnesses did not perceive it as going fast perhaps it was going a little slower than Mr Taylor. This possibility is reinforced by the fact that it would have had to move into the opposite lane slightly when going round the rear corner of the bus. In my judgment the evidence is that the speed was likely to be in the range of around 30mph to 35mph, although possibly as high as 40mph.

[121]The question then is how the Nissan Juke affected Mr Taylor’s visibility of Mr Pashamov waiting to cross the road and of Mr Pashamov actually crossing the road.

[122]The expert report considered the impact on this visibility in various scenarios. These were with the Nissan Juke travelling at 15mph, 20mph and 30 mph. As I am satisfied that the Nissan Juke was likely to be travelling at some 30-35mph I turn to [Table 2]. This sets out an analysis of sightlines if Mr Taylor was driving at 35mph and the Nissan was driving at 30 mph. It concluded that in this scenario that Mr Taylor would have just had visibility of Mr Pashamov for the full 1.3s he would have taken if he had run across the road.

[123]There was no direct analysis of how long Mr Pashamov would have been visible to Mr Taylor if Mr Pashamov had taken 2s to cross the road. An answer can, however, be inferred from Figure 3 which considered the impact on visibility if the Nissan Juke had been travelling at a lower speed of 20 mph and had therefore blocked the view of Mr Pashamov for longer than if it were travelling at 30mph. In this scenario the Nissan Juke appears to still be blocking Mr Taylor’s view of Mr Pashamov in the road in the middle picture, which shows the position one second before the collision.

[124]The experts describe their analysis as “simplistic” but it seems to show that if Mr Pashamov took 2 seconds to cross the road from the side to the point of impact, then Mr Taylor’s visibility of Mr Pashamov would have been obscured by the Nissan Juke for the initial period when Mr Pashamov was in the road, thus reducing the period of visibility below 2 seconds.

What is the typical time for a driver to react and start evasive action?

[125]The joint expert report sets out a time range of 0.8 to 1.5s for the typical perception response time. In other words, a reasonably competent driver should be expected to react within 1.5 seconds of identifying the hazard. If a driver reacts more slowly than that they have fallen below the standards of a reasonably competent driver.

[126]The experts also agreed that once braking started it would take some 0.5 seconds for braking to become fully effective. There would be some reduction in speed during this phase but it would not be full braking.

Conclusions

[127]It is for the claimant to prove his case. In order to prove that Mr Taylor was negligent Mr Pashamov has to show that it is more likely than not that: i) Mr Taylor had visibility of Mr Pashamov; ii) during the period of time when Mr Pashamov was crossing the road or clearly about to cross the road; iii) which was long enough for a reasonably competent driver driving at the speed of Mr Taylor, and with the same surrounding road situation, to react and brake so as to avoid hitting Mr Pashamov or to have hit him at a speed that was reduced to have avoided the collision or lessened the injuries suffered.

[128]I am mindful of Laws LJ in Ahanonu v SE London and Kent Bus Company Limited

[2008] EWCA Civ 274

“[t]here 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 courtroom, 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”

[129]Mr Taylor did not say that he saw Mr Pashamov but could not avoid him. He said that he simply did not see him at all. Did he fall below the standard of a reasonable driver in not seeing him?

[130]Mr Taylor had noticed i) a bus parked just off the opposite side of the road with hazard lights on, ii) people close to the side of the road opposite the bus, and iii) cars stopping behind the parked bus to let him pass and had reduced his own speed from his customary 50mph to somewhere between 30mph and 40 mph. This was a rural road and, in my judgment, it should have been obvious to a reasonably competent drover that the pedestrians and the bus might be connected in some way. Mr Taylor should have been alert to the possibility that pedestrians might try to cross the road near the bus. It was perhaps more likely that the pedestrians were going to cross towards the bus than people would cross the road from the bus to join the pedestrians, but either option was possible.

[131]Mr Pashamov was standing on the opposite side of the road at the front of the bus. He was probably in the shade at the side of the road but came into full daylight shortly after starting to cross the road. Despite all the hazard indications and Mr Pashamov running in full daylight, Mr Taylor says he never saw Mr Pashamov until the collision.

[132]There were other hazards to which Mr Taylor was paying attention. Those included the pedestrians on Mr Taylor’s side of the road who may have been intending to cross to the bus. There were also cars coming in the opposite direction approaching the bus and which Mr Taylor was keeping on eye on to see if he needed to stop or slow down. This was a dynamic traffic situation.

[133]It seems to me therefore that a reasonably competent driver would have seen Mr Pashamov at some point after he started to cross the road but, due to these other hazards and the shadow, not necessarily at the instant he started.

[134]The fact that a reasonably competent driver would have seen Mr Pashamov running across the road at some point between him starting to cross the road and before the collision does not mean, however, that a reasonably competent driver would have avoided the collision.

[135]The expert evidence in this case is that a reasonable driver could take up to 1.5s to react to a hazard they identified. The experts also agree that there would be 0.5s of braking time followed by fully developed emergency braking. That means that the car of a reasonably competent driver might not start to fully brake until 2 seconds after seeing the hazard. I have determined Mr Pashamov was probably in the road for around two seconds after starting to cross. There was the likelihood of a small reduction in car speed in the 0.5 seconds in which braking power was building up.

[136]Table 2 of Mr Slark’s supplemental report illustrates that if Mr Pashamov was in the road for full two seconds and Mr Taylor braked after 1.5 seconds then the reduction in speed would have been only 6mph or 7mph resulting in a collision at 23mph to 34 mph. Those are still significant speeds.

[137]Mr Wade’s supplemental report calculates that if Mr Pashamov was moving at an average speed that was half way between running and walking then he would have been in the road for 1.72 seconds. In that situation, there is only a 2mph reduction in the speed of Mr Taylor’s car. In other words, it was still travelling at between 28mph and 38mph.

[138]There was no evidence before the court to suggest that the injuries to Mr Pashamov would have been any less at slightly lower speeds. In other words, there was no evidence that the injuries were caused by Mr Taylor failing to brake and reduce his speed by a small amount.

[139]In any event, I consider that the uncertainty as to the actual speed of Mr Taylor’s car, and of how long that Mr Pashamov was in the road, are such that in my judgment the claimant has not proved that it is likely that Mr Taylor would have started braking in time to avoid the collision or to reduce his speed by an amount that is material enough to have reduced or eliminated the injuries suffered by Mr Pashamov.

[140]Accordingly, in my judgment Mr Pashamov has not shown that Mr Taylor is liable in negligence to him.

[141]I reach that conclusion without needing to take into account the obscuring of Mr Pashamov by the Nissan Juke.Mr Pashamov’s starting position was probably obscured from Mr Taylor by the purple Nissan Juke until that car had travelled some distance past Mr Pashamov. As indicated above, if Mr Taylor was driving at 35mph and the Nissan Juke was driving at 30mph then Mr Taylor would have seen Mr Pashamov by the side of the road some 1.3 seconds before the collision. In other words, at those speeds the Nissan Juke obscured Mr Pashamov for up to 0.7 seconds of the 2 seconds during which Mr Pashamov was probably crossing the road. That reduces further the time that Mr Taylor had to react and brake.

[142]I have, however, determined that the Nissan Juke was probably travelling at between 30mph and 35mph. If the Nissan Juke was travelling at 35mph rather than the 30mph considered by the experts, then Mr Taylor would have had visibility of Mr Pashamov’s starting position for slightly longer than 1.3 seconds. There was no specific evidence to indicate how much longer his visibility would have been. An estimate can, however, be made to see if the difference in visibility time is material. The speed of the Nissan Juke at 35 mph is some 17% faster than 30mph. If the time the view is obscured is increased by 17% then it increases from 1.3 seconds to only 1.5 seconds. That is still below the two second time for which Mr Pashamov was probably in the road. If the same calculation is done for a speed of the Nissan Juke of 40mph then the time still only increases to just over 1.7 seconds, which is again less than the two seconds Mr Pashamov was likely to have been in the road.

[143]I consider it likely that the position of the Nissan Juke reduced the time of which Mr Taylor had visibility of Pashamov, and that therefore it is even less likely that a reasonably competent driver would have been able to react and brake in the time from when they first saw Mr Pashamov in the road.

[144]Finally, I consider if my conclusion should be altered by the possibility that Mr Pashamov waited for a short time until the purple Nissan juke had passed before crossing the road. The witness evidence was that Mr Pashamov started to cross when the cars had passed. No witness mentions him waiting before doing so. Indeed, he had no reason to wait for cars coming from his right as he knew the Nissan was the last car coming from that direction. If he had waited that would therefore have been to look for cars coming from his left. I have already concluded that Mr Pashamov did not look to his left. In addition, I have concluded that Mr Pashamov ran across the road, which is consistent with him wanting to get across quickly, rather than waiting for a while before crossing. Mr Petrov also said that he thought Mr Pashamov did not see Mr Taylor’s car due to the cars blocking the view, which also implies that he crossed as soon as those cars had passed. Accordingly, I consider that it is likely that Mr Pashamov started to cross as soon as the Nissan Juke passed him. Even if I am wrong about this, and Mr Pashamov waited until the Nissan Juke had travelled so far down the road that it no longer obscured him as he started to cross, then the position remains that he was only in the road for two seconds and a reasonably competent driver would not necessarily have reacted and braked in that time to avoid the collision or causing the injuries to Mr Pashamov.

[145]The claimant also said that Mr Taylor could have swerved or sounded his horn. This line of argument was not pursued with great vigour at the trial but should be addressed for completeness.

[146]The experts did not give any specific evidence on how long it takes to start swerving or sounding the horn. I therefore take the reaction time to start those actions as the same as the reaction time for braking. In other words, a reasonably competent driver would have been able to start sounding the horn or to start swerving, or both, in 1.5 seconds or less after becoming aware of the hazard.

[147]The road was a single carriageway with verges close to the edge of the road. Mr Taylor had seen pedestrians on his side of the road. The act of swerving would potentially have been dangerous to the three pedestrians already seen by Mr Taylor. At a speed of 30mph to 40 mph and given the closeness of the road to the verges it may have been dangerous generally. There was no evidence before the court indicating that Mr Taylor could safely have swerved and avoided Mr Pashamov in the split second after reacting to seeing Mr Pashamov in the road. The claimant has not, in my judgment, proved that Mr Taylor fell below the standards of a reasonably competent driver by not swerving to avoid Mr Pashamov.

[148]There is also no evidence that Mr Pashamov would have reacted in time to avoid the collision if Mr Taylor had sounded his horn. Mr Petrov gave evidence that he shouted to Mr Pashamov to stop. This did not alert Mr Pashamov in time to avoid the collision. There is no evidence that the sounding of the horn would have caused a quicker reaction by Mr Pashamov. In my judgment, Mr Pashamov has not shown that Mr Taylor fell below the standard of a reasonably competent driver in not sounding his horn to cause Mr Pashamov to step back and avoid the collision.

The liability of E V Limited

[149]Mr Pashamov had finished working in the fields. He was on a bus taking him back to his accommodation. EV Limited said that Mr Pashamov was in his own free time and they ceased to have any duty of care as his employer when he stopped paid work.

[150]Mr Pashamov was, however, specifically asked by his manager to let other EV Limited employees know the bus had arrived. The evidence is also that, even absent that instruction, Mr Pashamov would have been expected by EV Limited to let them know this. This conclusion is reinforced by the absence of any other method by which EV Limited expected the workers to be collected. Neither the manager nor the bus driver took any steps to contact the workers.

[151]It is clear to me that, as a matter of fact, Mr Pashamov was carrying out tasks at the direction of, and for the benefit of, his employer. Those tasks related directly to other employees of EV Limited. That, in my judgment, falls plainly into the category of activities that are incidental to his employment. His employer therefore still owed him their common law duty of care.

[152]Even if that were not the case that Mr Pashamov was carrying out EV Limited’s instruction to collect the workers, then it seems to me that Mr Pashamov was engaged in activities incidental to his employment when he was being transported back to EV Limited’s caravan site. He was being taken by his employer from their worksite to the accommodation that they had provided. He was under their control and direction. He was not free to decide which bus to take back to his accommodation. His time may have been his own in the sense that he was not working, but his time spent on the bus as it went from field to field and then to the EV Limited caravan site was not of his choosing.

[153]The risk assessment also indicated that EV Limited expected to be responsible for their workers whilst the EV Limited bus was transporting them.

[154]Furthermore, EV Limited were responsible for the actions of their driver in the course of his employment. That remains the case even if Mr Pashamov had ceased to be owed a duty as an employee. If the driver was negligent then EV Limited were vicariously liable.

[155]EV Limited had assessed the risk to their employees of the bus not collecting them from designated pick up points. They assessed it as high. They assessed that the risk should be reduced by only collecting workers from the designated pick up points. They identified the driver and the manager as being responsible for ensuring this happened. On the day of the collision, the driver and the manager ignored this requirement. The driver parked the bus on the opposite side of the road to the farm road entrance. EV Limited explicitly directed, and implicitly expected, Mr Pashamov to cross a 60mph road with the intention of asking all the workers to cross the road in the other direction.

[156]It is not clear whether the bus driver knew of the risk assessment. It does not, however, affect EV Limited’s position; if the bus driver knew that he should only go to the pick up point but ignored that instruction then EV Limited are liable for the failure of the driver to follow his instructions. If, on the other hand, they had not instructed the driver to only pick up at designated off road points then they are liable for failing to tell him of his responsibilities. In either situation they have failed to action what their own risk assessment told them they needed to do.

[157]EV Limited raised the argument that the accident was “so improbable that there was no duty to take extra precautions to guard against it”. I reject that argument. The risk of an accident is, in my judgment, clearly foreseeable if an employee is directed to cross a road with fast moving traffic at a place where there is no designated safe crossing point. The second defendant’s own risk assessment is also a clear indication of why this argument should be rejected. The risk assessment highlighted that the risk to staff from not being collect at identified and safe pick up points was “high”. The risks identified as “high” included “head injuries”. That was precisely what Mr Pashamov suffered when he crossed the main road to a pick up point, rather than the bus going to the pick up point.

[158]EV Limited also said that it was not safe for the bus to park on the side of the road by the farm entrance. In essence, they said that the bus parked in the most safe place it could. There are two flaws in this argument.

[159]The first, and fatal, flaw is that the bus did not need to stop and immediately pick up the workers. If there was a problem with access to the pick up point then the bus driver or manager could and should have liaised with the lorry driver or barrier operator to remove the obstruction. They could have contacted someone at EV Limited to ask the lorry to move. They could have contacted someone at EV Limited to raise the barriers. If they had taken these steps then the bus would have gone to the safe pick up point on a private road in the usual way. The driver and manager did not do any of these things despite the risk assessment saying that they should make sure that collections only took place at safe pick up points.

[160]The second flaw is that it would probably have been safer for the bus to have parked on the side of the main road next to the farm entrance rather than where it parked. If it had parked at the Farm Road, then a person getting on or off the bus did not have to cross the whole road. Even if the bus was parked partly on the road, and there is no evidence that it would necessarily have been parked on road rather than entirely down the Farm Road, then a person getting on or off the bus only had to ensure it was safe on one side of the road, not both.

[161]In my judgment, EV Limited owed a duty of care to Mr Pashamov as his employer. They negligently breached that duty by expecting him to cross a road with a 60mph speed limit and no designated safe crossing place. The accident that followed was entirely foreseeable. That accident, caused by a negligent breach of duty of care, caused Mr Pashamov pain and injury. EV Limited are liable to him for the loss and damage they have caused.

Mr Pashamov’s contributory negligence

[162]Mr Pashamov did not look and see Mr Taylor’s car. He was going into the road and so knew that he should be looking for traffic. His employer had put him in a position where he was expected to cross a road on which there was fast moving traffic, but he still was at fault in not doing so as carefully as he should.

[163]He accepted at the trial that this failure to look was negligent and that consequently he would be contributorily negligent to some degree. He accepted that he was responsible for 35% of the liability.

[164]Mr Pashamov was somewhat aggressively cross examined on whether he was competent to cross a road. That line of questioning missed the point. The point was whether EV Limited had put Mr Pashamov in a position where he had to cross a dangerous road, not whether Mr Pashamov was competent crossing a safe road.

[165]I have balanced the negligence of each party. This is not a case like Stewart v Glaze where a drunken man stepped into the road from a bus stop. Mr Pashamov had to wait until a number of cars passed him, travelling at between 30mph and 40 mph. He tried to run across the road. I infer that he ran as he was aware that cars were travelling rapidly along the road and that he did not have time to cross at a leisurely pace. This emphasises the dangerousness of the situation in which his employer had placed him.

[166]The employer had much more control of the situation. They had the opportunity to provide a safe method for their workers to be collected. The manager, who had not been working all day in the fields, did not take responsibility for collecting the workers from a safe place. He knew, or should have known, from the health and safety assessment that he should do so. The driver knew, or should have known, that he should only collect workers from a designated safe place.

[167]The farm road was blocked but the driver made no attempt to contact anyone to ask the lorry to move or the barriers to open. The driver did not get out to go and fetch the workers. He did not call the manager to call the workers to tell them to come to the bus.

[168]In assessing the contributory negligence, I am mindful of the comments of Hale LJ (as she was) in Eagle v Chambers

[2003] EWCA Civ 1107

and in which a 40/60 split of liability was discussed. She was considering a situation in which each party was momentarily negligent. In this case, Mr Pashamov was momentarily negligent. EV Limited was, however, not momentarily negligent. It had carefully considered the risks of not picking workers up from safe places, had assessed that risk as high, and had then failed to take the steps it had itself identified to mitigate that risk.

[169]I am also mindful of the relative potency of a car travelling at 30mph to 40 mph when compared to that of a pedestrian. In Eagle v Chambers Hale LJ also observed that the destructive disparity could be taken into account in assessing relative blameworthiness.

[170]It seems to me that the negligence of the employer, being specifically aware of the dangers set out in its risk assessment yet failing to take the steps it knew it should take to address them, is significantly greater than Mr Pashamov in the split second when he failed to look to his left.

[171]I therefore assess the relative liability at 65% for EV Limited and 35% for Mr Pashamov.

[172]This judgment will be handed down remotely on 30 April 2025 at 10.30am. I am grateful to all the legal representatives for their comments on the draft judgment provided to them ahead of hand down.