Stotardt v Selkent Bus Co & Anor [2003] EWHC 2135 (QB)

Case No 02/TLQ/1186[2003] EWHC 2135 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Friday, 18th July 2003
Strand
London WC2A 2LL
Before
MR JUSTICE DOUGLAS BROWN
Between
STOTARDTClaimant- v -
Between
SELKENT BUS CO & ANRDefendant
Tape Transcript of Smith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writer's to the Court)
MR L WEST QC & MR J STEINART (instructed by Messrs Cunnington Blake) appeared for CLAIMANTMR B BROWNE QC & MR C MENDOZA (instructed by David Horley Associates) appeared for FIRST DEFENDANTMR W NORRIS QC & MR Q TUDOR-EVANS (instructed by Messrs Barlow Lyde Gilbert) appeared for SECOND DEFENDANT
J U D G M E N T
[1]On 23rd November 1999 the claimant, now Michelle Stotardt but then Michelle Couchley, was grievously injured when a single-decker bus owned by the first defendant, now called Stagecoach Selkent Ltd (“Selkent”), went into the shop premises called Sheck in Well Hall Road in Eltham. Just before the bus crossed the pavement and hit the shop it was in collision with a Proton car driven by the Part 20 defendant and second defendant, Mr Valdir Kundi. I have been trying the issue of liability only.[2]I began with some facts that are not in controversy. About 12.40pm on the afternoon of Tuesday, 23rd November, the bus, a number 314, was driven west along Eltham High Street by Mr Kenneth Benjamin, Selkent’s employee and a very experienced bus driver. The junction of Eltham High Street and Well Hall Road is controlled by traffic lights and the turn into Well Hall Road was a right turn. The bus stopped at the traffic lights and because of the layout of the junction had to make a wide-ish turn in order to enter the northbound carriageway of Well Hall Road. Having done so, at a point which I will have to determine, the bus crossed on to the southbound carriageway and struck the Proton car a glancing but severe blow with the nearside of the bus. The Proton, it is now common ground, was in the nearside of the two southbound lanes close to the pavement and was parallel, or nearly parallel, to the pavement at the point of impact. The bus then continued, demolishing three bollards on the pavement and ended up embedded in the shop where Mrs Stotardt was trapped between the bus and the shop wall. She was ultimately freed and taken to hospital by air ambulance.[3]Mr Benjamin claims that he had retro and post-traumatic amnesia following a blow to the head in the crash and his recollection stops at the point where he turned into Well Hall Road, and returned when he heard people shouting at him after the collision. This is not now challenged. He plainly had a head injury and the case has effectively proceeded on the basis that he has a genuine amnesia.[4]The questions which fall for decision are entirely factual and are as follows. Firstly, did Mr Kundi’s driving of the Proton car in any way interfere with the path of the bus and was Mr Kundi’s driving the cause, or a partial cause, of the bus hitting the shop? The case made against him is that his car was facing northward on Well Hall Road alongside the public toilets on the west side and, from that position, drove in a U-turn finishing up in the position where his car was struck by the bus. This is a highly contested issue, effectively between Selkent and Mr Kundi, as to whether he had driven in a U-turn. The claimant has, out of prudence, joined Mr Kundi and made an allegation against him. Mr Kundi’s case, supported by his passengers, is that there was no U-turn; he was never on the westerly side of the road facing north; and his journey took him from the north of Well Hall Road down towards the lights at Eltham High Street where he would have turned left.[5]The second fundamental factual issue is between the claimant and Selkent. Selkent’s case is that the bus hit the shop and injured the claimant as the result of inevitable accident. It is common ground that in these circumstances it is for Selkent to displace negligence and to show on the balance of probabilities that the accident was caused without fault on the part of Mr Benjamin.[6]This case calls for a decision on medical evidence and on such eyewitness evidence as is available as to the behaviour of Mr Benjamin. Selkent relies on the evidence of a consultant neurologist, Dr Peter Harvey, against whom is ranged the opinion of two doctors, Profession Michael Swash, also a consultant neurologist, and Mr Maurice Williams, a consultant neurosurgeon.[7]It follows that if I find that Mr Kundi did not perform a U-turn and was driving perfectly correctly and carefully, and I find that the defence of inevitable accident succeeds, then the claimant will not fall to be compensated by anyone. The claimant commands immense sympathy and during her short time in the witness box she gave a dignified and sensible account of her injuries and the uncertain future she faces over the use of her lower limbs. Of course, the fact that she suffered these terrible injuries and the sympathy that any court must have towards her, cannot deflect the court from its duty in assessing the evidence impartially and, if both defendants succeed, however tragic for the claimant, then that must be the result. However, to put her out of her suspense, I can say that, after carefully considering all the evidence and the submissions of counsel, the claimant will succeed.[8]I need only describe the geography of the accident briefly. There are a number of photographs, some excellent plans and also a helpful video taken by Mr Lee, an investigator for Mr Kundi’s solicitors, all of which showed the road system very clearly. I mention the central features.[9]As the bus waited on Eltham High Street to make its right turn, on its left, on the corner, is a public house called The Banker’s Draft; looking to the right of the junction, at Eltham High Street and Well Hall Road, on the west side, is Eltham Parish Church; and entering Well Hall Road, the northbound lane, is a single carriageway 5.3 metres in width, with a broken white line down the centre of the road, and the southbound traffic approaching the lights can travel in one of two lanes, one marked for a left turn and the other for traffic heading either right into the High Street, or north into Court Road. The southbound carriageway is 5.9 metres in width.[10]There is, on the west side of Well Hall Road, between 42 and 71 metres from the junction, a designated bus stop area marked out on the road surface. From the western side of Well Hall Road, close to the junction with the High Street, there are a number of buildings housing public toilets, and they stretch for about 45 metres northwards from the traffic lights. There are double yellow lines prohibiting parking in front of the toilets. The frontage of the Sheck shop is about 32 metres north of the northernmost bollard at the mouth of Well Hall Road. The point of collision between the bus and the Proton car occurred short of the shop frontage, and from impact to shop is 13 metres. This is a calculation which has been done and is agreed by the accident reconstruction experts.[11]I will deal in a little detail as to how Mr Benjamin presented to the various onlookers when I come to deal with Selkent’s defence.[12]I mention at this stage the agreed range of speeds estimated for the bus. The reconstruction engineers were unanimous in saying that this was a case where there were so few signs or marks that it was very difficult to reconstruct what happened with any confidence. But they say in an agreed statement about speed, this:
“We agree we do not know the speed of the bus as it turned into Well Hall Road. Dr Ninam is of the opinion that the speed of the bus as it turned into Well Hall Road was probably know more than about 16 miles per hour but cannot rule out the possibility that it was somewhat higher. Mr Russell is of the view that the speed of the bus as it turned into Well Hall Road was probably in the range of 15-20 miles an hour. Mr Allen is of the view that the ranges described above are not unreasonable but are speculative”
Dr Ninam is the expert retained by Mr Kundi’s advisers; Mr Russell by Selkent; and Mr Allen by the claimant.[13]It is convenient if I deal at this stage with the U-turn issue. There are two witnesses who describe Mr Kundi’s car performing a U-turn. They are Mr Ian Couchley, who is, by coincidence, a cousin of the claimant and who had been working as a street cleaner in the area, and was on his refreshment break at the time of the accident, and Mr David Jones, a local resident who was leaning on the railings outside The Banker’s Draft public house, waiting for friends, and looking generally in a northerly direction up Well Hall Road.[14]Taking first Mr Ian Couchley. He agreed, as indeed did Mrs Stotardt, that they were not at all close, although cousins. There had hardly been any contact between them since the accident and neither had discussed the accident with the other. In his witness statement, which he confirmed to be true, Mr Couchley described how he was having a break from his work as a street-cleansing labourer. He visited McDonald’s restaurant, which is on the corner of Eltham High Street and Well Hall Road, just after noon and then walked up the east side of Well Hall Road to a sweet shop, number 14 -- this can be seen in the photographs -- that is north of the card shop.[15]He thought that between 12.15 and 12.30 he walked out of the sweet shop and turned left, that is in the direction of the card shop, and a very few paces later stopped outside a Chinese restaurant, looked across to the disabled public toilets -- as he called them -- across the road and saw a green car performing a fast U-turn without any indication. The driver, who was of Asian appearance, appeared to be in a rush. The car had been parked on the west side of the road, facing away from the High Street, and its U-turn was done in order to point back in the direction of the High Street, on the east side of the road. As the green car started to perform its U-turn, a red single-decker bus turned into Well Hall Road at some speed and appeared to have straightened up and then swerved to the right, as if to avoid the car performing the U-turn, and collided with the car, spinning it round so the car was pointing back up towards the traffic lights at the junction with the High Street at a slight angle. Both vehicles were therefore to the left of his vision and were in view the whole time. He described the bus carrying on and crashing into the window of the Sheck card shop.[16]Cross-examined by Mr Norris QC, for Mr Kundi, as to how the bus hit the car, he said the bus clipped the car on the driver’s door and wing. He went to the police station on Well Hall Road, which is a very short distance away to the north, and reported the crash. In his witness statement, he claimed he had gone to the police the next morning, having heard in the night that his cousin was a victim of the accident and that he had prepared his police statement then. Cross-examined by Mr Norris, he accepted that the police accident form he filled in was dated 30th November, a week later, and he accepted that that was the date on which he filled it in.[17]He was carefully cross-examined by Mr Norris and repeated the mantra, “I saw a green car doing a U-turn”. He did not change his mind when the combined view of the reconstruction experts was put to him that the car, if it had done a U-turn, had completed, or almost completed, it and was facing more or less parallel to the kerb. Nor did he recognise there was any scope for him to be mistaken when the vehicle damage was pointed out to him -- for example, police photograph number 9 -- which shows the damage at the front of the car with the main damage being in the region of the nearside headlight and no appreciable damage to the driver’s door or wing. He repeated, in almost parrot-like fashion, “I saw the green car do a U-turn”.[18]If there were no other evidence in the case, I would be very slow to place any reliance on Mr Couchley’s evidence. I am sure he was doing his best to give a truthful and accurate account but it left me wholly unpersuaded that he had seen the accident, and what he almost certainly was doing in describing a U-turn was reconstructing what must have happened, he thought, having seen the position of the car in the road. And the matter is really put beyond doubt when the form that he filled in is examined. At first he thought he had filled it in at the police station, but his best recollection was that he had taken it home. He explained in evidence that he had no love of the police and his tick in the “No” box, in answer to question A on the first page of the form, “Will you attend court as a prosecution witness if necessary?” is entirely consistent with that attitude to authority. However, he insisted that he had, in what he called panic, ticked the wrong box and that it had been his intention, if necessary, to be a prosecution witness.[19]Page 2 is entirely in his hand and is correct in every detail except that in the answer to the question, “Did you actually see the accident happen?” Mr Couchley ticked the “No” box. Again, he claimed that filling in forms made him panic even in the quiet and comfort of his own home, and he had ticked the wrong box by accident. That is almost impossible to understand in the light of his description of the accident. The form asks for a description, in his own words, exactly how the accident/incident happened and contains the injunction, “State only what you saw yourself”. And to that he wrote this:
“Came out of the sweet shop, saw a bus in the shop window. Also saw the car in the middle of the road”
He accepted, when cross-examined, that that was a clear statement that, by the time he came out of the sweet shop, the accident had already happened. However, he said it was wrong and he put the mistake down to his usual panic in filling in forms.[20]At question 11, he was asked, “In your opinion who is to blame for the accident/incident? Give your reasons briefly” and to that he did write:
“The car was to blame because it tried to do a U-turn but the bus must have been going fast to go through the window”
He denied that he had heard any gossip or chat during the ensuing week that the car had in fact done a U-turn and insisted that he had seen it. There is a part of the police report which is a very badly photocopied sketch which he drew, which is almost indecipherable, and carries the matter no further.[21]I am sorry to say that Mr Couchley is as unsatisfactory an eyewitness as could be encountered in a motor collision case. His account does not fit with any of the agreed facts and his own written description of the accident a week later makes it clear that he did not witness the accident which had happened by the time he emerged from the sweet shop. I reject his explanation that he filled the form in, in panic. It is clear that despite his denial he was attempting some form of reconstruction of the accident from what he had seen afterwards and, in short, I reject his evidence as to the U-turn incident.[22]I turn to Mr David Jones. Mr Jones, about 12.30, was leaning on the railings outside the Banker’s Draft public house with a view down Well Hall Road north. He was waiting for some friends to join him in the public house. He did not see the bus stopped at the lights, waiting to make its turn; he first saw it when it was making its turn which he thought was a little fast. He could see three cars parked outside the toilets, the middle one being what turned out to be Mr Kundi’s Proton. He saw it stationary and saw it pull off, making a very quick U-turn in front of the bus. The bus driver, who was entirely blameless, swerved to avoid it but hit the car on the driver’s door and front offside. This collision took place in the middle of the road, straddling the white line. The bus then carried on and hit the shop. He was much shaken by witnessing this, he said, and went to The Banker’s Draft for a drink. He emerged about 2.15 and, walking up Well Hall Road, saw a policeman near the crash scene and told him that he did not think it was the bus driver’s fault, and there is confirmatory evidence from a constable who was spoken to by a man on similar lines.[23]He later made a further statement to the police to the effect that there was a U-turn performed. With his consent, later he was interviewed at home by a Mr Lee, for Mr Kundi’s solicitors, and having been shown photographs of the damage to the Proton, and told of the view of the reconstruction experts as to where the accident took place, his attitude was that he could be wrong. A week or so later he signed the statement which was prepared by Mr Lee to that effect. I quote from part of it:
“Paragraph 5: Having thought about this and how the metallic green car was positioned across the road after the collision, I think that I may have made a mistake. Seeing the green car where it was after the accident and assuming in my mind that it had been doing a U-turn, it explained to me why the bus went across the road and the two vehicles collided. “Paragraph 6: There are always cars pulling up and stopping in the position where I said the metallic car was starting its U-turn from, even though there are double yellow lines there. However, I accept that the metallic green car must have been travelling south down Well Hall Road in this instance”
[24]When he was cross-examined by Mr Norris, he made no complaint that he had been harassed or bullied by Mr Lee, who questioned him in a pleasant way. He stressed that he was under a lot of pressure at home at the time and had a number of problems. Shown the photographs, he accepted that he was wrong about the part of the car that was hit by the bus. He also accepted he was wrong about the position of the vehicles at the time of the collision. It was not the centre of the road but in the nearside of the two southbound lanes, with the Proton facing more or less straight on to the traffic lights. He was carefully but persistently cross-examined by Mr Norris and, in the end, agreed that he might have been mistaken about having seen the U-turn. He added that he still thought he had seen one. Re-examined he said, “Anyone could make a mistake”.[25]In my view, Mr Jones is not a witness who can be relied on by Selkent in support of a case that there was a U-turn. He was fundamentally wrong as to the location of the damage and as to the position of the vehicles at the time of the collision. Looking at the matter as a matter of probabilities, the witness who candidly accepts that he may be wrong, not only in a witness statement but in evidence, cannot successfully be put forward as a reliable witness of fact. I do not regard Mr Jones’ evidence as remotely near satisfactory proof that there was a U-turn performed by Mr Kundi’s Proton.[26]For completeness, I refer to three other matters, two independent pieces of evidence from witnesses. Police Constable McDougall was a plain-clothes officer on observation duty, sitting on the wall outside the parish church. In his witness statement to the police, which was made in May 2000, he said he heard a screeching sound after the bus had passed him but he could not say what had caused it, whether it was tyres or gears or engine noise. He also said this:
“The first thing I thought was that the car had been doing a three-point turn. However, I did not see if the car was or was not. I cannot now remember if the bus hit the car. I cannot remember if the car was moving prior to the bus leaving the roadway. My recollection of events is somewhat hazy”
[27]Mrs Violet Chambers made a statement but she is ill and the statement was put in and I have considered it. She was then 76 years of age. She was a passenger on the bus and sitting on the left-hand side of the bus. She is a witness upon whom all the parties, in one way or another, rely for parts of her evidence, so I have some regard to what she says even though she has not been cross-examined. She said she had a clear view of Well Hall Road, looking north, and she saw a metallic green car travelling normally south along Well Hall Road.[28]Lastly, the three reconstruction experts all agree that a U-turn was feasible and practicable, and indeed two of them carried out simulated tests, one actually with a Proton. But the evidence was neutral as to whether there had in fact been a U-turn.[29]As I have indicated, the evidence of Mr Couchley and Mr Jones, taken individually or together, if there was no other evidence leaves me wholly unpersuaded that the Proton car had made a U-turn. But the matter is put beyond doubt by the evidence of Mr Kundi, his wife, who gave evidence through an interpreter, and his brother-in-law, Mr Bhogal. There was a witness statement put in from Mrs Bhogal, who was in Canada and did not come over to give evidence, as did her husband.[30]I summarise their evidence which I have to say I found compelling in this way. Mr and Mrs Kundi had for some days entertained at their home in Woolwich, Mrs Kundi’s sister and her husband who were on holiday from Canada and I think on their way to India. Mr Bhogal had a relative in India who was tall and needed to be supplied regularly with long-sleeved shirts, apparently only to be found at Marks & Spencer’s. The four of them set off, after having a meal, at about 12.30 to travel the two or three miles from the Kundis’ home to Marks & Spencer’s in Eltham High Street. This was a journey they had made before and Mr Kundi knew the route well because he went to this shop several times a year. None of them had any urinary problems that would call for an emergency visit to a public convenience during this short journey. There was no occasion for Mr Kundi to travel down Well Hall Road and in some way turn round so that he would be facing north in the direction he had come from, and for him then to make a U-turn to resume his journey to the junction of Well Hall Road and Eltham High Street. He did not do this and drove at a moderate speed down Well Hall Road, moving into the left-hand turning lane when he saw the bus coming across on to his carriageway. Despite braking sharply and bringing his vehicle to a stop, or almost to a stop, the bus struck his car and then carried on into the shop. That account was supported by Mrs Kundi and, although her evidence was given through an interpreter and suffered that disadvantage, she understood the questions and emphatically rejected the idea of a U-turn.[31]Mr Kundi was, in my estimation, a particularly impressive witness. He is a foreman joiner, and he was calm, moderate, sensible and obviously truthful. Even more impressive, if that were possible, was Mr Bhogal who had come from Canada specially to give evidence. He was a company director and businessman in Canada, highly intelligent and obviously truthful with a good recollection of events. The evidence of all three of them was that there was no U-turn. Mr Kundi drove his car at all times in a southerly direction and there was no possibility of any U-turn. He had to brake unsuccessfully to avoid collision with a bus which had come across in front of them, and I accept that evidence from three obviously honest and reliable witnesses.[32]It follows therefore that the Part 20 claim against Mr Kundi fails, and the plaintiff’s claim against Mr Kundi as second defendant also fails. I should add that I regard as irrelevant and of no assistance the fact that Mrs Kundi, who received some injury herself, had brought proceedings joining in her husband as defendant. That was on legal advice and this was not pressed by Mr Brown QC, for Selkent, as in any way affecting her credibility.[33]I now describe in more detail the eyewitness evidence because of its particular relevance to the next issue that I have to consider: the defence of inevitable accident. And I preface what I say about the witnesses by referring to what, on a mean time between the various estimates of speed, is agreed to be the likely time elapsing between the bus passing the traffic island at the start of Well Hall Road and hitting the shop. That is 4.5 seconds. It is a very brief period of time for the eyewitnesses to speak about.[34]The first of these was Mrs Elise Berkshire. She was a young woman who was a regular user of the 314 route. Her intention was to get off the bus at the first stop in Well Hall Road and, as the bus approached the lights at the junction of Eltham High Street and Well Hall Road, she stood up and pressed the bell and walked to the front of the bus. She remembered the bus stopping at the traffic lights and then making the right turn into Well Hall Road, she thought quite normally. She was actually looking through the rear window of the bus because she was interested in catching a 161 bus which was following. As she was looking out of the back she thought to herself, “Hang on a minute, we’re on the wrong side of the road”. Her statement was clear but the matter was put beyond doubt when she was cross-examined about her recollection of the order of events. The bus had begun to veer across the road on to the wrong side when she heard the driver, who was right next to her, say, “Oh shit” and at that point she became aware of a car, which she thought was stationery on the opposite side of the road, facing the lights. The bus clipped its bonnet and then crashed into the card shop. She was not aware of any braking or swerving. She had a clear and, as it turned out, accurate recollection of the car after being hit rotating anti-clockwise. She gave evidence about the bus driver’s movements after the crash. When the crash occurred, she was thrown forward on to the floor so that she was blocking the interior door to the driver’s cab. He got up and tried to get past her and so she moved back. He then left his cab via the interior door and went towards the passengers’ door. Finally, she particularly remembered her reaction when the driver said, “Oh shit”. It reassured her because she thought, “Now he’s realised what’s happening and he will rectify it”. Unhappily, that did not happen.[35]Mrs Sarah Baldock was driving her car behind the bus and making the same right-hand turn. The bus accelerated quickly away from the lights and turned right in a sweeping turn. She had an uneasy feeling about the bus and she thought that the bus was going rather faster round the turn than she would expect a bus to travel, because it was quite a tight turn especially for a large vehicle like a bus. It did not straighten up as it entered Well Hall Road but continued to turn. She did not see the car until after the crash, it was shielded by the bus, and she saw no brake lights come on. I should interpolate there that Mrs Baldock’s impression of a sweeping turn is almost certainly wrong. Dr Ninam produced a computer-assisted diagram -- which is at bundle 2.424 -- showing that on a continuous curve, the bus would have hit the building to the south of the Sheck shop, probably McDonald’s, and the bus must, however briefly, have straightened.[36]Mrs Chambers, who made a report on the now familiar Metropolitan Police form, asked to describe in her own words how the accident had happened, said this:
“Bus pulled out to pass a stationary red vehicle. I think it was another bus. Went across the road and struck a saloon car which was coming up towards the High Street. Carried on over the pavement into the shops”
In a witness statement she made she said she did not feel the bus brake at all, neither did it accelerate. Asked who was to blame, she said:
“The driver of the 314 bus. No attempt to correct steering or use brakes”
I should say that no other witness refers to a red vehicle, possibly a bus, being in the entrance to Well Hall Road which would cause the 314 to move over. But, of course, Mr Jones does say that there were cars parked further up, alongside the toilets.[37]I now turn to the defence of inevitable accident. I preface what I say by referring to the prosecution of Mr Benjamin before the magistrate for driving without due care and attention. He ran a defence of automatism or similar, based on the evidence of a general practitioner, Dr Rajasunderam, who saw Mr Benjamin when he went to a consultant neurologist’s outpatient clinic where Dr Rajasunderam was assisting the consultant. The doctor gave evidence before the stipendiary magistrate that, in his opinion, Mr Benjamin had suffered a transient ischaemic attack which had led to the bus crashing into the shop and, presumably on the strength of that evidence, the stipendiary magistrate acquitted Mr Benjamin. There is now agreement between the doctors, who have provided reports in this case, that that was a misdiagnosis and there was no transient ischaemic attack.[38]The medical evidence for Selkent is a Dr Peter Harvey, an emeritus and honorary consultant neurologist, who has provided a number of reports and letters, and who gave evidence. He was provided with witness statements of eyewitnesses, which I have seen, and a record of the proceedings in the magistrates court, which I have not seen. He referred particularly to three witnesses, two of whom have given evidence before me, Mr Rajput, Mrs Berkshire and Mrs Chambers. Mr Rajput, in his evidence, said that he was inside the shop, heard a bang and saw the bus inches away from the shop window. The driver’s eyes were staring, he appeared to be looking at him, Mr Rajput, his teeth were clenched or gritted and he was holding the steering wheel firmly. I have already referred to the detail of Mrs Berkshire’s and Mrs Chamber’s evidence. Having considered the evidence of Mr Rajput and Mrs Berkshire, I indicate that I accept that evidence. They were obviously sensible and honest witnesses, doing their best to recollect events, each with a good recollection of the day in question.[39]The information available to the doctor was updated during his evidence when he was told what the evidence had been before me. For example, in paragraph 21.4 of his report, he quoted Mrs Berkshire as saying she had heard the driver say, “Oh shit”. He then commented that it was not clear when that was, whether it was before or after the collision with the car. Dr Harvey was made aware that her evidence was that, in sequence, she saw the bus drive on to the wrong side of the road, then heard the driver say, “Oh shit” and then the bus collided with the car and then the shop. Dr Harvey regarded this as important evidence and, indeed, crucial because he was satisfied that Mr Benjamin was neurologically normal up to, and including, the point where he was heard to say, “Oh shit”, and it was improbable that there was any medical problem before that point.[40]His original view was, expressed in his first report, that on the balance of probabilities the whole course of events of the bus leaving its correct lane, striking the car and then striking the shop was caused by an illness that made him insensate, unaware of his actions and unable to control his actions. On the balance of probabilities, he suffered a temporary and sudden epileptic attack. He based this on the path the bus took, and the eyewitnesses’ accounts that made it clear that the driver had made no attempt to steer the bus in the correct direction, or brake or otherwise avoid the collision. His view was, he accepted, not strictly a medical view but one based on common sense, based on experience as a motorist. And it was that, had Mr Benjamin just been careless, with his attention momentarily wandering elsewhere, he would probably have taken avoiding action. He would not have fallen asleep at the wheel because he would have been woken up by impact and regained control. He relied on the eye-witnesses who described him as “gripping the wheel” -- that is Mr Rajput and also Mr Bhogal -- and also Mr Rajput’s account of him clenching his teeth with his eyes wide open. He referred to and relied on Mrs Berkshire’s evidence that the driver did not appear to be reacting. He accepted that there were no ultimate signs of an epileptic attack, such as biting his tongue or incontinence, and he accepted there was no evidence he had suffered from epilepsy in the past, or subsequently to the accident, and that none of the investigative measures -- the ECG, the EEG or the MRI scan -- showed any abnormality explicable by epilepsy. But he added that 80 per cent of those suffering from epilepsy did not show signs on such testing. He stressed it was important to note that Mr Benjamin had had a head injury and had suffered from retrograde and post-traumatic amnesia, and this was of significance.[41]His first report was dated 29th May 2002 and he provided a further report on 9th September 2002 after he had been provided with Mr David Jones’ statement, but not apparently Mr Couchley’s, where Mr Jones referred to the U-turn.[42]There then followed Dr Harvey’s first alternative explanation of the accident in medical terms:
“The statement from Mr Jones provides a compelling explanation for Mr Benjamin’s behaviour in the bus”
On the balance of probabilities, he has suffered a convulsion whilst driving the bus and it was very probable that this convulsion was what was known as an evoked seizure, evoked on this occasion by a syncopal attack. This, in turn, is produced by the shock of the car doing the U-turn in front of him and his efforts to avoid it.[43]It is not necessary for me to describe what his report says about the mechanics of this, which in summary he called “faint and fit”, because in cross-examination he accepted that with a timescale of about 2 seconds for the car to present itself in front of him, 2 seconds was too short a time to produce fainting and fitting. However, at paragraph 7 of the report, he gives what he calls an alternative physiological explanation to which he gave the name reflex anoxic seizure, and this was, in the final analysis, his preferred solution, provided that there was the triggering effect of the car suddenly presenting a source of danger in front of him. He described it in his report in this way:
“An alternative physiological explanation that does not necessarily mean that the patient has had a fit. Indeed, it might be argued that someone fainting in the circumstances would be unusual because of the rush of adrenalin around the body, but some people will respond to such extreme, sudden and unexpected stress by producing a reflex slowing of the heart which stops pumping blood with exactly the same effect as previously described, temporary lack of blood supply plus lack of oxygen supply to the brain, causing a brief-lived convulsion”
This mechanism was involved here in what he called “the very strong balance of probabilities” and gives an explanation as to the question why Mr Benjamin should, out of the blue, have had a first fit in his life, never having had one before or since.[44]In summary, his evidence was that Mr Jones had described how a car did a U-turn in front of the bus that Mr Benjamin was driving, causing a crash, and this almost certainly caused Mr Benjamin to have a convulsion. If there was no U-turn and no sudden emergency, then he reverted to his epilepsy theory. He was of the view that, unusual though it might be, the seizure could be more or less instantaneous. He was extensively cross-examined by Mr West QC, for Mrs Stotardt, and by Mr Norris, and it was put to him that there would, on the scenario he described, be a delay of, at a minimum, 10 to 15 seconds before unconsciousness followed by seizure. And he accepted that that was a norm but there could be exceptions to it.[45]At the end of his cross-examination, I formed the view that he was a witness who should be approached with considerable care. He did stress a number of times in his evidence as to the importance of head injury causing amnesia, and was confronted by Mr West with comments made in a letter of 15th July 2002 to Selkent’s solicitors, about the report of another neurologist, Dr Greenwood, and in providing comments on the report by Dr Greenwood, he said this, in paragraph 1:
“Dr Greenwood’s report is something I agree with in that he dismisses a transient ischaemic attack as being the likely cause of Mr Benjamin’s momentary loss of consciousness”
So far, so good. Then this sentence:
“He mentions the possibility of having suffered a head injury and thus a period of retrograde and post-traumatic amnesia, but I think that this is improbable from the eye-witness accounts available to him”
[46]Dr Harvey’s evidence was that that sentence was wrong, it was wrong when it was written and he had no idea how he came to write it or dictate it. Mr West suggested, and on the material it was a proper suggestion for him to make, that the appearance of that sentence was not accidental but deliberate, and because the presence of retrograde and post-traumatic amnesia did not fit easily with a diagnosis of epilepsy, he had made the statement that he did. Dr Harvey would not have that but he could offer no other explanation as to why this clear statement appeared in his letter.[47]I am not prepared to make a finding that Dr Harvey was deliberately presenting his views in order to fit the theories. That is a very serious allegation to make against an experienced and distinguished neurologist. On the other hand, he was engaged in what Mr West called in his final submissions, “subconscious trimming” and it does persuade me that I should be very careful in accepting his opinion where it is in conflict with the unimpeachable witnesses such as Professor Swash and Mr Maurice Williams.[48]The medical evidence for the claimant was from Professor Swash, a consultant neurologist for 30 years. He expressed almost total disagreement with Dr Harvey. On the evidence there was very little to suggest a positive diagnosis of neurological disorder. It was not really possible to state with any degree of confidence that there was a medical event leading to Mr Benjamin’s accident. It was possible but very unlikely.[49]Mr Benjamin made a rapid recovery, if it was a seizure, switching off the bus engine when asked to do so by a police officer, and, according to Mrs Berkshire, opening the internal door into the bus and apparently leaving by the passenger door. I interpolate there that this happened very shortly after the collision and may not be inconsistent with the evidence of Constable Roberts, who arrived two or three minutes later. It is possible that Mr Benjamin could, having attempted to leave the bus, returned to the bus, possibly even to the driver’s seat. Mrs Berkshire’s recollections were very clear and I accept them but they do not necessarily conflict with the evidence as to what happened later of Constable Roberts, or indeed Constable Murridge who came to the scene.[50]Dr Harvey accepted, during his evidence, that the attack was of the briefest duration and was over very quickly, and Professor Swash found this somewhat unexpected. Rapid recovery from seizure events is quite common, he said, in persons accustomed to partial seizures, but first seizures are usually more dramatic events and recovery is usually quite slow, taking several minutes at least. The normal EEG and brain scan results are in keeping the notion that Mr Benjamin did not suffer from epilepsy, though they are with the notion that he does suffer from epilepsy or has had a seizure. He added to this fact that he had not previously suffered from seizures nor had he done so subsequently. There was no medical reason apparent as to why Mr Benjamin might have suffered a single isolated seizure. Although he had arterial disease, shown by the presence of intermittent claudication, and a family history of arterial disease, there was no indication that he had symptomatic cerebral vascular disease. As many as 20 per cent of persons with cerebral vascular disease may suffer from a seizure as part of the illness but there is no other inter-current cerebral illness, such as a past history of head injury, meningitis or cranial operations, that might have predisposed a seizure, and there was no metabolic reason apparent, such as alcoholism or other systemic illness, for example, renal failure. He regarded Dr Harvey’s suggestion that Mr Benjamin might have had a seizure as essentially speculative, given the weak evidence available, and on the balance of probabilities the evidence suggested that he did not have a seizure.[51]He was asked about paragraph 7 in the second report, and about Dr Harvey’s support of that theory by the illustration he gave during evidence of needle phobia patients reacting, apparently suddenly, to the presence of a needle. This was a subject of particular interest to Professor Swash as he confessed to the witness box that he himself did, from time to time, suffer from needle phobia. There was, of course, a condition known as reflex anoxic seizure but the seizure would be preceded by a period of unconsciousness and that, in turn, would not onset for 10 seconds or so in an extreme case where there was a heart stop, and in other cases up to a minute might elapse before unconsciousness, and that simply did not fit the facts here.[52]Before dealing with the last medical witness, Mr Maurice Williams, I summarise the reports which have been put in evidence but whose authors have not been called.[53]Mr McSweeney, consultant vascular surgeon, reported for the claimant and dealt solely with the question of transient ischaemic attack and, like other doctors, regarded that as improbable. Dr Murphy, consultant cardiologist, was asked to advise as to whether Mr Benjamin might have suffered a cardiac syncope which, in turn, led to the accident. Overall, he did not think a cardiac cause was likely but added the caveat that his normal practice would be to perform tests to exclude any cardiac problem. With that qualification, he said that cardiac syncope was an unlikely cause as Mr Benjamin had had no previous episodes of cardiac syncope and had no definite risk factors for heart disease.[54]Dr Davies, a consultant physician and cardiologist, reporting for Mr Kundi, dealt with Dr Harvey’s alternative postulation, based on the danger presented by the U-turn which Dr Harvey had referred to variously, but also as a vasovagal syncope. Dr Davies said that he had considerable experience of a vasovagal syncope and had personally induced this in roughly 30 per cent of normal volunteers, using a tilt table, and observed that if they are not allowed to fall to the floor, they can have convulsions. Mr Benjamin did not have a convulsion as was confirmed by a number of the witnesses. He was not sick and did not suffer nausea or vomiting, which is almost the rule with vasovagal syncope. A patient suffering such an attack, is usually ashen grey to white in colour, and is more often than not disoriented afterwards. Whether Dr Davies’ attention was drawn to some eye-witness evidence, such as Constable Roberts who referred to the driver being pale and disoriented, I am not aware, but I think that Dr Davies was right in saying that nobody described him as ashen grey to white in colour, and he was not sick.[55]Finally, Dr Diamond, instructed for Selkent, was asked to look at the electro-cardiogram of Mr Benjamin, taken on the day of the accident, which was a resting electro-cardiogram. It shows a normal cardiac rhythm, known as a sinus rhythm, and demonstrated absolutely no abnormality whatsoever. But Dr Diamond did point out that a normal resting electro-cardiogram by no means excludes a cardiac cause for blackouts, and there are several other investigations that would have had to be undergone before the cardiac cause could be reasonably excluded.[56]Finally, those representing Mr Kundi called Mr Maurice Williams, senior consultant neurosurgeon at the Royal Free Hospital, who was of the view, on the evidence available to him, that he could find nothing to suggest the accident was caused by any form of acute illness affecting Mr Benjamin. There were absolutely no features about the circumstances of the accident to suggest an epileptic attack. He had not bitten his tongue, been incontinent or had symptoms suggestive of a pre-epileptic aura in the period before the accident. When seen at Bromley Hospital on the day of the accident, he showed no cardio-vascular abnormalities, an ECG was unremarkable, as indeed was a subsequent EEG. The MRI scan showed no abnormalities other than two small areas, thought to be non-specific in nature. He dismissed the diagnosis of vascular claudication giving rise to pain in the leg because that did not seem to be confirmed by objective tests. There was no enough evidence to postulate some form of cardiac abnormality as the cause of the accident. He noted that Mr Benjamin had not been the subject of any episodes of altered consciousness since the accident. Like Professor Swash, he thought there was a possibility of a medical event but it was very unlikely.[57]It is for Selkent to show by evidence, on the balance of probabilities, that the collision between the bus and the claimant was caused by a medical event in Mr Benjamin which rendered him temporary incapable of driving the bus. Selkent relies on the agreed evidence that the bus, having moved into the southbound carriageway, did not deviate or slow down, and Mr Benjamin neither braked nor steered the bus in order to avoid a collision with the car and the shop. They rely on Mrs Berkshire’s evidence he did not appear to be aware; on Mr Bhogal’s evidence that he was holding the steering wheel with his arms straight out in front of him; and particularly on Mr Rajput’s evidence which I referred to.[58]All of that, coupled with the opinion of Dr Harvey, points to a medical event. His opinion first being that an epileptic attack caused the whole of this aberrant driving. This was relegated to a reserve position during his evidence on learning of Mrs Berkshire’s evidence about the expletive, after the bus had begun its journey on the wrong side of the road but before it hit the car. At least up to the point where the driver said, “Oh shit”, there was no evidence of any neurological problem. Exactly when the medical problem supervened was a matter of speculation. It could have been before the bus hit the car, or after the bus hit the car and before it hit the shop front. Dr Harvey’s preferred medical explanation was that the U-turn and danger presented the reflex anoxic seizure and that was the case for inevitable accident.[59]I was not impressed, as I have indicated, with Dr Harvey as a professional witness. I formed the view that, throughout his evidence and from his own written material, he was trying, with increasing desperation, to find a medical explanation to fit the facts. Whatever the true explanation for it, I found his explanation for the statement in his letter about the improbability of retrograde or post-traumatic amnesia as unconvincing, and was not evidence of the standard to be expected of a reliable expert witness. I infinitely preferred the evidence of Professor Swash and Mr Maurice Williams. Although at the end of their evidence they said there was a possibility, remote though it may be, of some medical emergency happening very late, within the last second or two of this bus’s journey, this comes nowhere near assisting Selkent to establish inevitable accident on the balance of probabilities and I reject that defence.[60]There can be no certainty about an accident of this kind. A credible explanation of Mr Benjamin’s failure to brake or steer the bus is that, however experienced he might be, he panicked or froze in an emergency which, on the evidence, was, in my view, entirely of his own creation. The failure to brake, much relied upon by Mr Brown for Selkent, is credibly explained by his late discovery that Mr Kundi’s car was in front of him and, after the collision, for the remaining 1.7 seconds of the bus’s journey, he was unable to brake, quite possibly having been jolted in his seat and unable to reach the pedal. That was an explanation which Mr Russell, Selkent’s expert, regarded as entirely possible, indeed quite likely.[61]By the time he had said, “Oh shit”, he had negligently driven his bus on to the wrong side of the road and this was probably, on the evidence, the result of taking the bend rather faster than he should, coupled with simple inattention. And the inescapable fact on the evidence is that before there could be any question of any neurological or cardiac problem, he had driven the bus on to the wrong side of the road into a collision course with Mr Kundi’s car which was lawfully and properly on its correct side of the road.[62]On the evidence, Mr Benjamin was a fit but careless driver when he drove on to the wrong side of the road, struck Mr Kundi’s car and then went into the shop. Nothing in Selkent’s evidence begins to establish a defence of inevitable accident on medical grounds and that defence fails. It follows therefore that there must be judgment for the claimant against the first defendant, judgment for the second defendant in the Part 20 proceedings and against the claimant.

Cited in 1 later judgment