Howe v Houlton & Ors [2009] EWHC 3344 (QB)

[2009] EWHC 3344 (QB)Case No 9CD00106IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONNOTTINGHAM DISTRICT REGISTRY.Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2009
Before
THE HON. MRS JUSTICE SWIFT DBE
Between
ANDREW HOWEClaimantWAYNE HOULTONFirst DefendantMarshall Barry LtdSecond DefendantnORWICH UNION INSURANCE LTDThird Defendant
Mr Michael Rawlinson QC and Mr Brian Griffiths (instructed by BRM Solicitors) for ClaimantMr David Melville QC (instructed by Beachcroft LLP) for DefendantsHearing Hearing dates: 23 – 25 November 2009
JudgmentThe Hon. Mrs Justice Swift DBE :The claim
[1]The claimant, Andrew Howe, who is now 30 years old, claims damages for personal injuries, loss and damage sustained by him as a result of a road traffic accident which occurred on 11 September 2007. The accident happened when he was in the vicinity of the open driver’s door of his Peugeot 206 motor car (the Peugeot) which was parked by the side of the road facing in its direction of travel. The driver’s door and the claimant were struck by a Volvo articulated lorry (the lorry), as a result of which the claimant became entangled in the rear axle wheels of the lorry before being thrown from under the lorry onto the road.[2]At the time of his accident, the claimant was the director of a family company and was engaged on his own account in the redevelopment of residential properties. He was married with young children. As a result of the accident, he sustained severe injuries, consisting of a traumatic amputation of the right leg at the thigh and degloving of the left leg which resulted in a surgical amputation of that leg also. He had a crushing fracture to the pelvis. In addition, he sustained injuries to his right arm, namely a dislocation of the elbow and fracture of the clavicle, together with burst fractures to two of the fingers of his left hand and a laceration to his scalp.[3]Proceedings were issued on 29 January 2009 against the first defendant, the driver of the lorry, alleging that his negligent driving had caused the accident. His employers were joined as second defendants, it being alleged that they were vicariously liable for the first defendant’s negligence. The second defendant’s insurers were joined as third defendant.[4]A Defence was filed on 2 March 2009 on behalf of all three defendants. Although it raised an issue as to the correct identity of the first defendant’s employers at the material time, nothing turned on that matter. The third defendant accepted its liability to indemnify the first defendant in the event that he was found liable to the claimant. The Defence denied that he had been negligent and contended that the accident had been caused or contributed to by the claimant’s negligence, breach of statutory duty and/or nuisance. Since the claim in effect is between the claimant and the first defendant, I shall refer to the latter as “the defendant”.[5]At a CMC on 18 June 2009, District Judge Stark directed that there should be a split trial of the issues of liability and damages. The trial of the issue of liability took place before me on 23-25 November 2009.

The issue

[6]The claimant’s case is that he had parked his Peugeot, opened the driver’s door, got out, leaned back into the car to retrieve some belongings and, although he does not remember it, was in all probability standing up again outside the car when the lorry collided with the door of the Peugeot and came into contact with him, causing him to be thrown into the void between the front and rear axles of the lorry. His contention is that the defendant would have had ample time to see and avoid both the Peugeot and himself. The defendant’s case is that the claimant opened the door of the Peugeot and got out at a point when his lorry was so close that it was impossible for the defendant to avoid striking both the claimant and his car.

The site of the accident

[7]The site of the accident is illustrated in the photographs and video footage taken shortly after the accident and on scale plans prepared by the police. The site was subsequently inspected by two accident reconstruction experts (the experts), Mr J G J Neades (for the claimant) and Dr S J Ashton (for the defendant). Dr Ashton made further scale plans and took a series of photographs depicting the scene at the time of his inspection. He also took video footage showing the view of a driver approaching the accident site. Both Mr Neades and Dr Ashton prepared detailed Reports. Subsequently they discussed the case and prepared a Joint Statement. The Joint Statement revealed that they were in agreement about all relevant and significant matters. Consequently, they were not called to give evidence at the hearing.[8]The accident occurred on the A619 Chatsworth Road, Chesterfield, Derbyshire, at a point about 1.33 miles west of Chesterfield town centre. Chatsworth Road runs approximately east to west and carries traffic in both directions. The speed limit on the relevant section of the road is 30 mph. The carriageways are separated by a broken white line. A short distance west of the accident site is a small roundabout controlling the junction of Chatsworth Road (which lies to the west and east of the roundabout) with the A632 Walton Road (to the south of the roundabout) and Old Hall Road (to the north).[9]Travelling east from the roundabout towards Chesterfield town centre, the road first turns through 45° to the left, then about 12.5° to the right. Immediately on leaving the roundabout there is in the centre of the road a triangular traffic island separating the eastbound carriageway of Chatsworth Road from the westbound carriageway. A short distance (about 15 metres) east of that traffic island, the westbound carriageway (carrying traffic from the direction of the town centre towards the roundabout) splits into two lanes so as to facilitate the flow of traffic onto the roundabout.[10]On the left (i.e. north) side of Chatsworth Road to the east of the roundabout, there are a number of small business premises, including a car showroom with a fenced compound, a newsagent, a tile shop named “Croc-o-Tile” and The Friary Chip Shop (the chip shop). On the opposite (i.e south) side of Chatsworth Road, set back behind a fence with trees and bushes, is a Morrisons supermarket, with an adjacent car park.[11]Approximately 70 metres east of the roundabout is a pelican crossing controlled by traffic lights (the pedestrian crossing). Extending some 20 metres either side of the crossing on both sides of the road are zig-zag lines which define the limits of the controlled area of the crossing. The distance from the roundabout to the start (i.e. the western end) of the zig-zag lines is approximately 50 metres.[12]On the eastbound carriageway of Chatsworth Road, there are double yellow lines prohibiting parking for a distance of approximately 30 metres extending east from the roundabout. There is then an entrance (leading to the car compound), followed by a 12 metre gap where parking is permitted, before the start of the zig-zag lines. The 12 metre gap provides space for about three vehicles to park lawfully. Beyond the zig-zag lines on the far (east) side of the pedestrian crossing, parking is prohibited.[13]On the westbound carriageway of Chatsworth Road, parking is prohibited over the whole of the distance from the roundabout to the start of the zig-zag lines. Beyond the zig-zag lines on the east side of the pedestrian crossing, parking is permitted.

Before the accident

[14]At the time of the collision, the claimant’s Peugeot was parked on the left (i.e. north) side of Chatsworth Road, facing towards the town centre. It was located within the confines of the controlled area of the pedestrian crossing, i.e. within the zig-zag lines on the approach to the crossing, near to the chip shop. The eastbound carriageway is 5 metres wide at this point. The Peugeot was 1.652 metres wide. It was the last in a line of parked vehicles. Behind it was a small white van bearing the name “Sharp” and behind that was a larger white van displaying the name “Creta Ceramica”.[15]The defendant’s lorry consisted of a three-axle tractor unit, together with a three-axle tipper trailer. It was loaded with limestone and the total weight of the vehicle was just under 44 tonnes. The overall width of the tractor and trailer units was about 2.495 metres.[16]Before the collision, the defendant had driven his lorry along the western section of Chatsworth Road towards the roundabout. Having negotiated the roundabout, he continued along Chatsworth Road towards the town centre. Travelling immediately behind him was a red Vauxhall Corsa driven by Brian Glover, followed by a purple tricycle, ridden by a person who has not been identified. Behind the tricycle was a Ford Fiesta driven by Elizabeth Usher with her husband, Anthony Usher, as a passenger. There was then a lorry, driven by a colleague of the defendant, Christopher Wood. The two lorries were travelling in convoy that day. Travelling in the opposite direction but some way beyond the accident site (i.e. nearer to the town centre) was a camper van driven by Michael Banks.[17]The weather at the time of the accident was dry and sunny with good visibility.

The witness evidence

[18]I heard evidence from the claimant, Mr and Mrs Usher, Mr Wood and Mr Banks. The driver of the tricycle left the scene immediately after the accident and was never traced. Mr Glover gave a statement to the police but did not respond to communications from the parties. Mrs Wells, who also gave a statement to the police, was not prepared to attend court to give evidence for either party. Her police statement was admitted in evidence as part of the police report. Both sides placed reliance upon it. The defendant also gave evidence, together with Mr Howard Sherriff, an emeritus consultant in accident and emergency medicine, instructed for the defence.

The evidence of the claimant

[19]Following the accident, the claimant did not fully regain consciousness for about two months. He has no memory of that time. On 20 November 2007, shortly after he regained full consciousness, he gave a statement to the police. In it he related how he had left his home in Buxton on the morning of the accident and had driven the Peugeot to his office in Stoney Middleton. He then drove along the A619 towards Chesterfield Town Centre, intending to go to Croc-o-Tile to pay a bill and purchase some tiles for a property in the area which he was renovating. He parked outside Croc-o-Tile, got out of the car and walked to the door of the shop. He found that the shop was closed. He returned to the car and drove to his property, where he spoke to the tradesmen who were working there. He then returned to Croc-o-Tile. There was no parking space available outside the shop so he stopped a little further down the road on the zig-zag lines adjacent to the pedestrian crossing.[20]The claimant told the police that he recalled opening the door of the car and getting out. He then leaned back into the car to retrieve either his cheque book or his mobile phone. He could remember nothing else from that point.[21]In a witness statement prepared for these proceedings and dated 12 August 2009, the claimant repeated and expanded upon the account given to the police. He described himself as “frustrated and slightly irritated” to find Croc-o-Tile closed on his first visit. When he returned there, he parked at the front of the line of parked vehicles, encroaching on the zig-zag markings leading to the pelican crossing. He did this because he knew that he would not be there long. He put on the car’s hazard lights. He told the police that he then remembered getting out of his car and feeling in his pocket for his mobile phone. He realised that what he had thought was his phone was in fact a wad of receipts. He decided that he should take his phone into the shop in case his father (with whom he was in business) attempted to contact him. He leaned forward through the open driver’s door to retrieve the phone. He assumed that the phone must have been on the front passenger seat, since that was where he usually left it. He could remember nothing else. Indeed, he could not remember completing the process of retrieving the phone, but believed that he must have done so since it was found on the road near to where he eventually landed.[22]In oral evidence at the hearing, the claimant explained that he had parked on the zig-zag lines so that he would not have far to carry the tiles he intended to purchase. There had been a previous occasion when a box of tiles he was carrying had burst as he crossed the road, causing tiles to fall and break. He did not accept that he had parked on the zig-zag lines because he was in a hurry. He denied that he had had any particular reason to rush. He had no timed appointments that day and the tiler working at his property had sufficient tiles to enable him to carry on working until the claimant’s return. He agreed that he had lost about 20 minutes as a result of having to make a second visit to the shop but said that this did not make him rush unduly.[23]The claimant said that he did not specifically remember looking back along the road before getting out of his car. However, at that time, he lived in Buxton and parked his car on a narrow lane outside his home. The width of the lane was such that only one car at a time could pass a parked vehicle, making it necessary to be particularly careful when getting in and out of the car. He would look through the front and side mirrors and, if he was unable to see clearly, would look over his right shoulder. He performed this manoeuvre twice a day. He said that, as a result, he would have looked behind him before getting out of the car as a matter of habit. He did not accept that he had failed to look because he was in a hurry. He did not recall seeing the defendant’s lorry. He suggested that that might have been because it was too far away at the time when he originally got out of the car.[24]The claimant was adamant that he remembered getting out of the car and checking his pockets before leaning back into the car to retrieve his mobile phone. He did not accept that his “memory” was a reconstruction of what he believed must have occurred or a recollection of a previous visit to Croc-o-Tile, where he had been on a dozen or more previous occasions as well as earlier that same morning. He said that he could not remember anything after leaning into the car, although he accepted, because of the absence of serious injury to his upper body, that he must have withdrawn from the car before the accident occurred. He could not remember the noise of the lorry hitting the car door and could not say how long the door had been open before it was struck.[25]In re-examination, the claimant said that he thought he had reversed into the parking place. He was unable to say how far from the kerb the Peugeot was parked. He agreed that it appeared from the photographs taken after the accident that the nearside of the Peugeot was some distance from the kerb edge. He said that he could not think of any reason why he would have parked so far away from the kerb. He did not know whether the Peugeot had moved as a result of the accident.[26]The claimant said that, when driving, he would usually put his mobile phone on the passenger seat of the car. When he got out, he would carry it in his hand unless he had to do something with his hands, in which case he would put it in his trouser pocket.

The Evidence of Mrs Usher

[27]Mrs Usher was driving in the same direction as the defendant’s lorry, with a purple tricycle and Mr Glover’s Vauxhall Corsa between her Ford Fiesta and the lorry. In a statement made to the police eight days after the accident she described how, having entered the eastern section of Chatsworth Road at the roundabout, she saw a car (the Peugeot) parked on the nearside of Chatsworth Road with the driver’s door open. She recalled seeing someone “not hunching but leaning over near the door”. The person appeared to be on the far side of the door, so that the open door obstructed her view of him. She emphasised that this was a “very fleeting glimpse” in her “peripheral vision”. She said that she was “100% sure” that the door was open but could not be certain whether the person was in front of or behind the door, although she had the impression that he was on the far side of it.[28]Mrs Usher told the police that the next thing she recalled was seeing the door crumple. After the door had crumpled, she could see no-one there and thought that she may have been mistaken in thinking she had seen a person near to the door. She observed to her husband, “Thank goodness there was not anybody there”. She went on to say: “I have the impression that the man was out of the car before the lorry got to him but I cannot be sure. My gut impression is that he was out of the vehicle prior to the lorry reaching him. Whether that is something that I saw or have constructed in my mind in recalling it I cannot be sure”.[29]Mrs Usher later said that she had a fairly clear recollection of seeing the whole of the inside of the car door, which strengthened her impression that the man must have been on the other side of it and that the door was fully open.[30]Mrs Usher told the police that she had a recollection of the lorry “kinking out slightly” to the right after the impact although it did not go wholly onto the wrong side of the road. The driver then swerved back in and stopped just past the pedestrian lights.[31]In her witness statement for these proceedings, Mrs Usher repeated and expanded slightly upon the contents of her police statement. She said that she felt sure that she had seen the legs of a person by the car. She could not be sure about the person’s exact position. She said that she was certain that the car door was hit by the lorry. She was also certain that the person was outside the car (rather than in the act of getting out of it) at the time when the collision occurred.[32]In oral evidence, Mrs Usher agreed that the incident had happened in a moment. She had had what she described as a “strong glimpse”. She said that she could see the person’s feet and the car window and door. She did not remember seeing the person’s head, which is why she had thought that he was leaning.[33]In re-examination, Mrs Usher said that she had not seen the Peugeot door opening or the person moving. She could not say where the lorry was when she saw the open door. She said that the time between her first seeing the door open and the impact was very short – perhaps 1-2 seconds.

The evidence of Mr Usher

[34]Mr Usher was travelling as a passenger in the Ford Fiesta driven by his wife. He was not watching the road before the accident and did not see the Peugeot or the person described by his wife. He described how he heard a noise like the smashing of glass, looked up and saw a parked car (the Peugeot) with an open damaged door and the defendant’s lorry passing it. He got out of the car and went to assist the claimant who was lying in the road some distance beyond the Peugeot. He saw a wallet and cheque book on the road which he assumed belonged to the claimant.

The evidence of Mr Wood

[35]Mr Wood, the defendant’s colleague, is an experienced HGV driver. In a statement made to the police on 10 October 2007, he described how, on the day of the accident, he was driving his lorry in convoy with the defendant. He was not able to enter the roundabout immediately behind the defendant’s lorry and had to wait for traffic to pass before following the Ushers’ Ford Fiesta. He told the police that, when leaving the roundabout, it was necessary to look out for parked vehicles on the left, any approaching traffic and for the pedestrian crossing. He described how, as he left the roundabout, there was traffic coming in the opposite direction. He said that it was not “a tight fit” to get past oncoming traffic at that location, but it was necessary to be aware of what was going on around.[36]Mr Wood said that the first he knew of the accident was when he noticed something under – then being “spat out” from – the rear wheels of the trailer unit of the defendant’s lorry. He was wondering what the object was when he saw a trainer fly out from the rear wheels and realised that the “object” must in fact be a person. He did not see the impact between the defendant’s lorry and the door of the Peugeot, nor did he see the Peugeot or the claimant before the impact. After the accident, he went to assist the claimant who was lying on the road. He said that, when he went to assist the claimant, he noticed his mobile phone and wallet on the road very close to him.[37]In the witness statement prepared for the purpose of these proceedings, Mr Wood repeated and expanded upon the contents of his police statement. He said that, as he exited the roundabout onto the eastern section of Chatsworth Road, the defendant’s lorry was about 40 feet in front of him. He related how he became aware that something was wrong and described how, a second or two after he had seen the trainer fly out from the rear wheels of the defendant’s lorry, the defendant had said to him over the CB radio, “What have I hit?” He could not remember whether this was before or after the defendant’s lorry had stopped but thought it was probably as it was coming to a halt.[38]Mr Wood said that, as an experienced lorry driver, he considered that the defendant should have been aware immediately the impact had occurred that he had collided with something. He said that, in the defendant’s situation, he would have immediately applied his brakes to bring the lorry to an emergency stop, and would have checked his mirrors, then got out to see what had happened.[39]In oral evidence, Mr Wood said that he could recall cars coming towards him after he left the roundabout. He agreed that, by the time they reached his vehicle, they would have passed the defendant’s lorry. He could not recall whether there were oncoming vehicles approaching the defendant’s lorry. He said that he had seen the trainer come out from the back of the lorry, then the claimant. The CB radio call was “a fraction or two” afterwards.

The evidence of Mr Banks

[40]Mr Banks is an experienced driver, having driven public service vehicles and coaches for many years and acted as an assessor for the Institute of Advanced Motorists. At the time of the accident, he was driving his camper van along Chatsworth Road away from Chesterfield town centre. Moments earlier, however, he had driven along the section of Chatsworth Road west of the roundabout, intending to turn left into Old Hall Road. Having missed the left hand turn and instead driven across the roundabout, he continued along Chatsworth Road looking for a place to turn round. In a statement made to the police on 3 October 2007, he described Chatsworth Road as “very busy” with both traffic and pedestrians. He said that he had to concentrate very hard on his driving because there was so much going on.[41]Mr Banks continued along Chatsworth Road until he reached what he described as a “gyratory system” governed by a series of sets of traffic lights. That enabled him to get back onto the westbound carriageway of Chatsworth Road, travelling back towards the roundabout. Mr Banks related how the last set of traffic lights of the gyratory system was showing red against him. He was at the head of a line of vehicles waiting to pass through the traffic lights and, when the lights turned to green in his favour, the road in front of him was clear. He told the police that there was a continuous flow of traffic coming towards him in the opposite direction. Because of his elevated position in the camper van, he could see over the cars approaching him.[42]Mr Banks said that he could see the defendant’s lorry travelling in the line of oncoming vehicles. His attention was drawn to it because he saw the cab move violently to the left and dip, then bounce back. Immediately afterwards, the lorry pulled to the right, although not so far as to cross the central white line. It continued to move forward slowly before coming to a stop. He told the police that he was “amazed” at how far the lorry continued before coming to a halt.[43]Meanwhile, the traffic in front of the lorry had moved on and, at that point, he could see the whole of the front of the lorry. Mr Banks said that he had realised from the movements of the lorry that it must have hit something. As he neared it, he saw damage to the front of the cab. He drove past the lorry’s trailer unit, at which point he saw the claimant lying on the road, badly injured. He immediately stopped his vehicle in the carriageway so as to prevent traffic from passing and went to assist.[44]In his witness statement made for the purpose of these proceedings, Mr Banks said that there had been sufficient room for traffic to pass the parked vehicles on the westbound carriageway of Chatsworth Road. He said that, generally, the traffic travelling on the westbound carriageway was light. He described how, as he drove towards the roundabout, his vehicle was the first in a line of traffic and he had an excellent view of the road ahead and of the oncoming traffic. He could see the upper part of the front of the defendant’s lorry as it approached the pedestrian crossing which he had earlier driven through. Mr Banks said that the lorry’s first dip to its nearside was an impact movement, not a steering or braking movement. That dip was followed by the reaction of the driver pulling to the right, before straightening up. He said that, having seen the movements of the defendant’s lorry, he was surprised that it did not stop immediately. It was evident to him – and must, he believed, have been evident to the defendant – that the lorry had collided with something. He said that the defendant could and should have performed an emergency stop immediately after the impact.[45]Mr Banks had told the police that the defendant had approached him after the accident and said words to the effect that “I couldn’t move over because of vehicles coming the other way”. In his witness statement, Mr Banks said that this explanation was simply not credible. His was the nearest oncoming vehicle. He estimated that the distance from the point of impact to the front of his vehicle was about 100 yards (he had estimated it at 50-60 yards in his police statement). He was travelling at no more than about 20 mph. There was no reason for the defendant to move to his nearside to avoid his camper van.[46]In oral evidence, Mr Banks explained that the traffic lights governing his entry onto the westbound carriageway of Chatsworth Road had been showing red for several seconds before turning green in his favour and the vehicles which had been in front of him had driven off. As far as he was aware, there were no vehicles between him and the accident site; he did, however, concede that he could not entirely rule out that possibility.

The evidence of Mrs Wells

[47]At the time of the accident, Mrs Wells was setting up her business at the chip shop ready for opening at lunchtime. The shop has a large window measuring about eight feet wide and five feet high set in the wall overlooking the pavement of Chatsworth Road. On each side of the window is a section of solid wall, beyond which is a glass door giving access to the pavement. The window and doors look out onto the pavement and beyond that onto Chatsworth Road.[48]In a statement made to the police on 22 September 2007, Mrs Wells described how she was walking towards the bain marie, which was situated behind the shop counter in the right hand corner of the shop when viewed from the pavement. She said:
“As I was walking to the bain marie carrying the prepared mushy peas with my right shoulder towards the shop window, from my peripheral vision I was aware of a vehicle pulling up directly outside the window as I continued going [doing?] my jobs I was also aware of a person getting out of the vehicle. Immediately I heard an enormous bang followed by smashing glass and I physically felt the ground shake. I would describe the sound as a pallet of tiles falling off the tailgate of a lorry. The next shop up the road is a tile shop and occasionally this does happen. I immediately put the [peas?] down on the servicing counter and looked out of the door into the roadway and saw a male laying in the road.”
[49]Mrs Wells then went to the claimant’s assistance. It should be noted that it is probably due to the first aid administered by Mrs Wells that the claimant survived what were life-threatening injuries.

The evidence of the defendant

[50]The defendant was 37 years old at the time of the accident and had acquired an HGV licence at the age of 21 years. He had been continuously employed as an HGV driver since and had been driving articulated lorries regularly for several years.[51]The defendant was interviewed by the police at the scene of the accident, about an hour after it occurred. Video footage and a transcript of the interview were available. Before the interview began, he was told that he was not under arrest and was free to leave or terminate the interview at any time. He was offered legal advice but chose to continue with the interview without taking up the offer.[52]The defendant told the police that, at the time of the accident, he and Mr Wood were taking loads of stone to RAF Waddington in Lincolnshire. His lorry had a payload of about 29 tonnes and weighed just under 44 tonnes in total. He had travelled along Chatsworth Road from the west, negotiated the roundabout, then taken the exit onto Chatsworth Road travelling towards Chesterfield town centre.[53]The defendant described how there were cars parked on the left side of the road, causing him to position his lorry in the middle of the road. In oral evidence, he referred to photographs taken by Dr Ashton [pages 181-186 of the Trial Bundle] which depict a lorry coming off the roundabout and passing parked vehicles with its offside wheels on or just over the white line. He suggested that that was the position he had adopted and would have continued to adopt had it not been for the actions of vehicles which were coming in the opposite direction towards the roundabout.[54]The defendant said that, as he was approaching the pedestrian crossing, the oncoming cars were coming out into the middle of the road “as though to split for the roundabout”, forcing him to move over to his left slightly. As he did so, he heard a bang. He looked across to his left and saw the car (i.e. the Peugeot). He thought he must have hit the front end of it. He did not see a person in the vicinity at that point. As he continued to move forward, he looked back and saw something under the rear wheels of his lorry.[55]The defendant estimated (accurately according to the lorry’s tachograph) that he had been travelling at a maximum of 15 mph at the time of the collision. He said that the road was busy. He was watching the traffic in the road in front of him and trying to adjust his position to avoid the oncoming vehicles. He said that he had seen the Peugeot on the zig-zag lines next to the pedestrian crossing. It was the last in a line of parked vehicles and he was intending to pass it before pulling further over to his left to take up a more central position in the carriageway.[56]At one point, the interviewing officer indicated that he had no more questions and asked if the defendant had anything to add. In response, the defendant said:
“… traffic coming towards me, the sun was erm … shooting off the windscreens as they come through off the top and it’s dry and sunny. I mean I didn’t see the bloke but I hit the car door. With the car door being open I moved across and, obviously, I didn’t see the person getting out the car ‘cos I was busy looking up in front of me and the cars, the way they was coming towards me they’re coming out for the roundabout, behind me. I just slightly adjusted meself to come across a little bit, over a little more.”
[57]He was then asked whether, as he approached the Peugeot, the door was open or closed. He paused, then said twice that he could not remember. When asked to confirm that, he said: “Neah, I think it could have been open”.[58]He then explained again how he moved to the left to avoid the oncoming traffic, in particular a vehicle that was “hanging out quite wide”, “really tight up behind” another vehicle, so that he had to adjust his position in the road to miss it. He thought that he had missed the parked car, but as he said, “obviously the car door was open”. He was then asked whether he had seen the door open, to which he responded “No, I didn’t see it open, no, no, I didn’t see it open, I didn’t see anybody stood there at all”.[59]The defendant was interviewed by police again on 9 November 2007 in the presence of his solicitor. On that occasion, he gave much the same account of the accident as previously. He said that he had stopped at the roundabout before entering the eastern section of Chatsworth Road. He confirmed that he had seen the Peugeot as he came off the roundabout and noted that it was parked on the zig-zag lines approaching the pedestrian crossing. He told the police there were vehicles coming towards him. Those vehicles included cars, a camper van (presumably Mr Banks’ vehicle) and a couple of lorries. When pressed on the point, he remained adamant that there had been traffic approaching him. He was asked whether there were any pedestrians in the area, to which he replied: “I think there was a pedestrian at the chip shop. I can’t be sure”.[60]In his witness statement, prepared for the purpose of these proceedings, the defendant described the accident at paragraphs 12-14:
“12 I had to position my vehicle with the offside wheels on the broken white lines and with a gap on the nearside to take account of the parked cars. Coming towards me were a line of cars some of whom moved over to the middle of the road to get in the right lane for the roundabout. I had to move over slightly to the nearside keeping the gap with the parked cars on the nearside. The sun was glinting off the cars windscreens but not enough to distract me. 13 The silver car [i.e. the Peugeot] parked on the chevrons always had its door closed and I am certain there was no one standing at the doorway as I approached. At no stage did I see the door actually open. I am certain of that. 14 As I drove past the car I heard a bang and felt it slightly in the cab of the trailer.”
[61]He said that, having heard the bang he looked in the nearside mirror and saw the Peugeot but did not see anything to explain the noise and shudder in the cab. He decided to pull over to investigate. As he slowed the lorry, he looked again through his nearside mirror and saw a man’s legs sticking out from the rear wheels at the back of his trailer unit. He stopped the lorry immediately and got out. He saw the claimant on the road, badly injured.[62]The defendant said that, at the time he was interviewed by the police at the accident scene, he was in a shocked state. At that stage, he was still trying to work out what had happened. He said that he was sure that, when he approached the Peugeot, the door was closed and there was no one standing outside it. He said that there was nothing he could have done to avoid the accident.[63]In oral evidence, the defendant said that, in retrospect, he did not feel that he had been fit to be interviewed at the scene of the accident. He was not able to think straight or to concentrate. He said that he had realised at the time that the accident might have serious consequences for him and for his career. Nevertheless he had elected to proceed with the interview because he wanted to help the police with their investigations.[64]The defendant said that he had first seen the Peugeot when he was at a point about 54 metres from it. It was stationary. He did not see it move into its parking place. Nor did he see the claimant get out. He did not notice at any time that the Peugeot was displaying its hazard warning lights. It was suggested to him that the hazard lights might have been important, in particular since the parked vehicles behind the Peugeot would have obscured the left hand indicator (at least until the defendant was near the Peugeot). It would therefore have appeared that the Peugeot was displaying its right hand indicator preparatory to pulling out into the road. When pressed, the defendant agreed that his failure to notice the hazard warning lights indicated that he could not have been keeping a proper look-out.[65]The defendant went on to say that, since the accident, he had thought about the matter and was sure that he had not seen the Peugeot’s door open before the accident. He said that, at the time he spoke to the police, he was still trying to “work it all out” in his mind. In re-examination, he said that he believed that he had told the police that he thought the door was open because he had seen it open after the accident.[66]The defendant was asked at length about his observation (made to the police at the time of his second police interview) that he thought there had been a pedestrian at the chip shop. At first, he said that he did not remember seeing a pedestrian or telling the police that he thought he had seen one.[67]Mr Rawlinson QC, for the claimant, suggested that, if the defendant had seen a pedestrian, that pedestrian must have been in the vicinity of the Peugeot. He suggested also that since, from a distance, the defendant’s view onto the pavement at the chip shop would have been blocked by parked vehicles, the pedestrian must have been in front or behind the Peugeot or near to its driver’s door. In short, Mr Rawlinson was suggesting that the “pedestrian” might in fact have been the claimant.[68]The defendant’s evidence about the presence of a pedestrian was very confused. At times, he appeared to accept that he had seen a person near to the Peugeot and that the person might have been the claimant. He said on several occasions that he had seen a person in the area of the Peugeot from the first time he saw the Peugeot, i.e. when he was about 54 metres away. At one point he said that he had seen the person as he approached the back of the Peugeot and had braked. When it was pointed out that the lorry’s tachograph showed that no braking had occurred, he said that it was possible that he had taken a conscious decision not to brake.[69]At other times, the defendant insisted that he had seen no one in the road or near the car door. He said that, when he had told the police that he thought he had seen a pedestrian, he meant on the pavement, not in the road. In answer to questions from Mr Rawlinson, he said that he could not tell whether the pedestrian was a man or a woman. However, in re-examination, he said that he thought that there was a pedestrian at the chip shop but did not think that it had been the claimant. In re-examination, the defendant also explained that, when he had given evidence to the effect that he had seen a pedestrian near the Peugeot from a distance away, he had meant that, if there had been someone there, he would have seen them. He had not meant he had in fact seen anyone.[70]Mr Rawlinson asked the defendant about oncoming traffic. The defendant said that, as he was coming off the roundabout, an articulated lorry passed him. After that, there was a line of traffic coming towards him. He could see the camper van further back towards the town centre. It was in a line of traffic, with other vehicles between it and the defendant. The defendant was adamant that there was a vehicle approaching him near to the white line, causing him to drive his lorry to the left to avoid it.[71]The defendant said that, when he heard a loud bang at the front nearside corner of his cab, it was clear he had hit something. His first reaction was not to stop or to brake, but to look across at his mirrors. It was as he was pulling into the side of the road that he saw the claimant’s legs under the rear trailer wheels. As he was braking, he used his CB radio to contact Mr Wood and to ask what he had hit. In re-examination, he said that, after the accident, he had just wanted to pull over to the side. However, he was shocked and so did not stop immediately.

The evidence of Mr Sherriff

[72]Mr Howard Sherriff, emeritus consultant in accident and emergency, who has a long experience in accident and emergency medicine and orthopaedics, was asked by the defence to consider the claimant’s position at the time of the accident. In his Report, he stated that, if the claimant had been leaning into the car with both arms inside the car, he would find it difficult to explain the injury to his right arm and how he could have been pulled out of the car sufficiently to get his legs under the rear wheels of the lorry’s trailer unit. He also stated that, on a balance of probabilities, there was no evidence to suggest that the claimant had been seated in the Peugeot at the time or was just exiting it. He said that there was a possibility that he had opened the door and was seated or just standing up and holding onto the door when it was struck and jerked forwards. However, his conclusion was that, at the time of the impact, the claimant was standing alongside the vehicle. He considered that the injuries to the claimant’s right arm and shoulder were caused by him holding onto the door frame when it was struck. His evidence was not challenged by the claimant.

After the accident

[73]An examination by the police of the scene following the accident showed that the Peugeot was in reverse gear with its hazard lights on and its hand brake fully applied. The driver’s door was open, and was displaced forward past its normal opening position. It was badly deformed and had obviously sustained a severe impact.[74]The Peugeot’s rear nearside corner was about 0.38 metres from the kerb with its front nearside corner about 0.16 metres from the kerb. The police officer gained the impression that it had moved as a result of the collision.[75]The defendant’s lorry was parked at an angle pointing towards the left (i.e. north) side of Chatsworth Road, facing in the same direction as the Peugeot. Its front was approximately 36.5 metres from the front of the Peugeot and about 1.5 metres beyond the end of the zig-zag lines on the far side of the pedestrian crossing. There was impact damage to the front of the cab of the lorry which extended 25cm in from the left hand side. It is agreed by the experts that this damage was caused by an impact with the door of the Peugeot. The view of the experts is that the positioning of this damage demonstrates that the defendant’s lorry must have passed within 80-85 cm of the side of the Peugeot.[76]The experts also agree that the claimant did not come into contact with the front of the lorry cab. There is however a dispute between them as to the significance of apparent scuff marks on the nearside of the cab. Dr Ashton believes that the marks indicate that there was contact between the claimant and that part of the cab. Mr Neades says that the marks were more likely to have been caused by continued contact with the door frame assembly following the initial impact to the front cab. Both experts agree that the presence of scuff marks on the second wheel arch of the front axle was indicative of an impact with the claimant. A glancing blow from the wheel arch would have been sufficient to rotate him anti-clockwise and cause him to be thrown head first into the void between the front and rear axles. The medical evidence was that the injuries to the claimant’s legs were consistent with them having been flailed around the rotating parts (i.e. the disc brakes and wheels) under the lorry. Having been thrown out from the rear of the lorry, the claimant rolled back to a position about 6 metres east of the front of the Peugeot. There were bloodstained tracks visible on the road surface to the lorry’s final resting position.[77]Analysis of the lorry’s tachograph confirmed that the lorry is likely to have stopped at the entrance to the roundabout after travelling along the western section of Chatsworth Road. From that point, it accelerated to a speed of about 15 mph, the acceleration taking place for at least 12 (and probably about 14-17) seconds over a distance of at least 60-70 (and probably about 80-90) metres. Having reached about 15 mph, the lorry maintained that speed momentarily before slowing to a stop. The experts agree that the tachograph analysis shows that the total period over which the lorry accelerated and then slowed to rest was some 26-28 seconds, during which time the lorry travelled some 120-140 metres. They also agree that the tachograph showed that the time from the impact occurring to the lorry coming to rest was in the region of 9-14 seconds. From their observations on the ground, the experts agree that the distance travelled by the defendant after moving off from where he stopped at the entrance to the roundabout to the impact point was probably about 85 metres. They further agree that the distance from his stopping point at the entrance to the roundabout to the lorry’s final resting place was probably about 121.5 metres.

Discussion and conclusions

[78]The first issue to be determined is what the claimant was doing at the time of and immediately before the impact.

What was the claimant doing at the time of and immediately before the impact?

[79]It was suggested on behalf of the defendant that the claimant’s case had changed by the time of the trial in an important respect, thus casting doubt on the reliability of his evidence and of his case generally. This suggestion was based on the contents of the Particulars of Claim which averred: “1.3 After alighting from his vehicle the claimant realised that he required his mobile phone and cheque book, which was still inside his vehicle, so he stood by the open driver’s door and leant into retrieve them. 1.4 As he was doing so, suddenly and without warning … [the defendant’s lorry] … was driven so negligently that it struck both the claimant and the open driver’s door of his vehicle”.[80]At trial, it was acknowledged by the claimant that he must have been struck as he was standing outside the Peugeot after having retrieved his belongings, not whilst he was in the act of leaning into the car. For the defendant, Mr Melville QC contended that this amounted to a significant shift in his position.[81]The claimant told the police that he could not remember anything after leaning back into the car to retrieve his belongings. His position on that point was unchanged in his witness statement and in oral evidence. There was however a general recognition that the accident was unlikely to have happened while his upper body was inside the car. The experts based their consideration of the case (e.g. their timings referred to at paragraph 104 below) on the premise that the claimant must have been outside the Peugeot when he was struck. That premise was confirmed by Mr Sherriff’s evidence. Accordingly, despite the contents of the Particulars of Claim (which in any event may arguably have covered the whole of the manoeuvre of leaning into the car, including withdrawing therefrom), I do not accept that there has been any shift in the claimant’s position, still less a shift such as would have the effect of undermining either the reliability of his evidence or his case as a whole.[82]It was suggested also that the claimant’s account was unreliable and may amount to no more than an attempt to reconstruct the events that occurred and/or may have been a faulty recollection based on what had happened on a previous visit to Croc-o-Tile. The claimant gave his account of leaning into the car at an early stage after regaining full consciousness. He did not claim to remember events right up to the moment of impact or the impact itself. He frankly admitted that he could not remember looking behind him before he got out of the car. These factors suggest to me that his account is unlikely to be the product of an attempt to reconstruct events. He impressed me as an honest witness, who was doing his best to recall what he could of the events immediately prior to the accident. Nevertheless, it is necessary to consider whether his recollection, although honest, may be inaccurate or confused in some respect. I have therefore looked at the other evidence in the case to see what, if any, support for the claimant’s evidence might be derived therefrom.[83]Mrs Usher described seeing a person leaning over near to the open door of the Peugeot, although she could not be certain on which side of the car door the person was. She commented to the police that it was the fact that she remembered seeing the whole of the inside of the Peugeot door which strengthened her impression that the person must have been on the other side of the door. In fact, her sighting of the whole of the inside of the door would readily be explained if the claimant had been standing on the side of the car door nearest to her, leaning into the car. Her evidence that she saw the person’s legs, but not his head is also entirely consistent with the claimant having been leaning into the Peugeot at the time. Mrs Usher’s evidence was that she did not see the car door being opened or anyone getting out of the car. She said that she had seen the open door and the person for a short time before the impact, maybe 1-2 seconds.[84]Mr Melville suggested that Mrs Usher’s evidence was unreliable because of the short period for which she had observed the scene and her own uncertainty, as stated to the police, as to whether she had seen the man outside the car before the lorry got to him or whether that was something she had constructed in her mind.[85]I do not accept those submissions. Mrs Usher was a scrupulously careful witness, a fact which was evident from the statement she made to the police, as well as the manner in which she gave her oral evidence. Although her observations may have lasted only for a short time, what she reported seeing was very telling. Her willingness to consider the possibility that her recollection may not be a true one merely illustrates how careful she was in giving her statement to the police. Despite the doubts she voiced, her final position to the police was that she was “100% sure” that the door of the Peugeot was open and that she had a “fairly clear recollection” that she had seen the whole of the inside of the car door. It was that, she said, which “strengthened her impression” that the man must have been on the other side of it and that the door was fully open. It is important to note that, at the time when she made her police statement, Mrs Usher can have had no idea that the claimant would later claim to have been leaning into his car immediately before the accident.[86]I accept Mrs Usher’s evidence, although I find that what she in fact saw was the claimant standing on her side of the car door, while bending over and leaning into the car. My impression of the reliability of her evidence was confirmed by the account she gave of the movements of the defendant’s lorry (i.e. “kinking out slightly” to the right before moving to the left again) immediately after the impact. Her description accorded closely with that given by Mr Banks, who had been approaching from the opposite direction. Mrs Usher’s evidence provides strong support for that of the claimant which I also accept.[87]Mr Melville placed some reliance on the evidence of Mrs Wells. She had described how she was aware of a person getting out of the Peugeot and “immediately” heard “an enormous bang”. This, he argued, supported the defendant’s case that the claimant opened the door and got out of the Peugeot just as the defendant’s lorry passed, making it impossible for the defendant to avoid the collision.[88]Mr Rawlinson submitted that Mrs Wells’ observation must be placed in the context that, at the time of these events, she was moving about her shop carrying on her work. He argued that the description “immediately” should not therefore be taken literally. He pointed out that, if one event had really followed immediately upon the other, it would have been expected that, when Mrs Wells saw the driver getting out of the car, she would also have seen the defendant’s lorry bearing down on the Peugeot and even the collision itself. However, she made no mention of having seen the defendant’s lorry.[89]I accept the force of the points made by Mr Rawlinson. It is also possible that, when Mrs Wells saw what she thought was a person getting out of the Peugeot for the first time, what she in fact observed was the claimant standing up after leaning into the car and retrieving his belongings. In that event, the impact may have occurred more or less “immediately”, although it would not explain how Mrs Wells failed to see the lorry or the collision itself.[90]Mrs Wells did not give evidence and was not questioned about these matters. As a consequence, considerable uncertainties remain. In those circumstances, I can place little weight on her evidence. Insofar as it conflicts – or may conflict – with the evidence of the claimant and Mrs Usher, I do not accept it.[91]Mr Usher was not paying attention to what was happening on the road. Mr Banks was some distance away and his view of the Peugeot would have been blocked by the traffic on the eastbound carriageway of Chatsworth Road. I do not find it surprising that neither of those witnesses saw the open door or the claimant. Mr Wood did not remember having noticed any parked vehicles on the left (north) side of Chatsworth Road before the accident. He did not see the collision. It is possible that his view of the Peugeot would in any event have been obscured by the defendant’s lorry. I can draw no conclusion from the fact that he did not see the open door or the claimant.[92]I come now to the evidence of the defendant. I recognise that the accident and its consequences must have imposed great strains on him and that the process of giving evidence in court was a stressful and difficult one. I have made due allowance for those factors. Even having done so, however, I cannot avoid the conclusion that he was not a reliable witness. I have already referred to the confusion which surrounded parts of his evidence, most notably that relating to the possible presence (volunteered to the police by the defendant himself) of a pedestrian in the area of the chip shop. In addition, there were some parts of his evidence (e.g. when he asserted that he had braked before the impact) that were demonstrably untrue. At one point, when it was suggested to him that the presence of a pedestrian near or between parked vehicles would have given rise to a risk that he or she might suddenly walk out into the road, he said that such an occurrence had never happened to him and he had never heard of it happening to anyone else. Shortly afterwards, not surprisingly, he withdrew the suggestion that he was unaware that such a risk existed. At different times, he said that the pedestrian could have been the claimant, that he did not think it was the claimant and that he could not say if the pedestrian was a man or a woman. These changes of stance did not inspire confidence in his reliability.[93]The defendant’s explanation for how he came to be driving so close (about 80-85cm) to the side of the parked Peugeot has always been that he was forced to move over by an oncoming vehicle or vehicles which were driving close to the white line. His evidence was that there was a line of vehicles approaching from the direction of the town centre.[94]The defendant’s explanation appears to me intrinsically unlikely. No parking was permitted on the westbound carriageway of Chatsworth Road at the point where the Peugeot was parked. The westbound carriageway was single lane at that point. Even if the offside wheels of the defendant’s lorry had been on or just over the white line (as are those of the lorry shown in the photographs referred to at paragraph 53 above), there would have been ample room for a single line of oncoming traffic to pass. There was no suggestion that oncoming vehicles were overtaking each other near the Peugeot. It is possible (though not certain) that any vehicles that were approaching might have had to overtake parked vehicles beyond the zig-zag lines to the east of the pedestrian crossing. However, that would not have been in the immediate vicinity of the Peugeot. Moreover, the defendant’s vehicle was large and heavy and I would have expected cars and other smaller vehicles to give way to his lorry, rather than vice versa. The defendant suggested that the vehicles which were travelling close to the central white line were positioning themselves so as to be ready for the point near the roundabout where the westbound carriageway splits into two lanes. That point was, however, some 54 metres to the west of the accident site. It is unlikely that vehicles would be positioning themselves in the road at such an early stage, rather than doing so nearer to the start of the two-lane section, where the westbound carriageway was wider.[95]What was the other evidence about the presence of vehicles on the westbound carriageway? This came primarily from Mr Banks. He was an experienced and knowledgeable driver and, as is evident from the account he gave to the police and to the court, a very observant man. I found him a most impressive witness. His evidence was that there were no vehicles between his camper van, which was some considerable distance to the east of the accident site, and the site itself. He had a clear view ahead of him. The traffic on the westbound carriageway was generally light. Mr Banks conceded in cross-examination that he could not entirely rule out the possibility that there might have been one or more vehicles between his camper van and the accident site. Nevertheless the picture he painted was very different from the defendant’s description of a line of vehicles of which Mr Banks’ camper van was one.[96]Mrs Usher did not remember any traffic coming towards her and had been able to enter the roundabout without having to give way to any traffic travelling west along Chatsworth Road. Mr Wood gave evidence that, as he left the roundabout and entered the eastern section of Chatsworth Road, there were cars coming in the opposite direction. He was of course several vehicles behind the defendant’s lorry. He agreed that, by the time the cars reached his vehicle, they would have passed the defendant’s lorry. He could not recall whether there was any traffic approaching the defendant’s lorry.[97]At the time of the impact, Mr Banks’ vehicle was still some way from the accident site. If there had been vehicles in front of him, it is to be expected that their drivers would have seen the accident or, at the least, the claimant under the defendant’s lorry and/or being thrown out onto the road. It is of course possible that there were such vehicles and that their drivers drove on and did not stop to assist or to volunteer themselves as potential witnesses. However, if there had been a line of vehicles, as has been suggested by the defendant, it would be surprising if none of them had stopped, if only – as Mr Banks himself did – to prevent other traffic from entering the area where the accident had occurred.[98]I have no hesitation in accepting Mr Banks’ evidence, which is not inconsistent with that of Mr Wood. I find that, at the time of the accident, his was the first vehicle approaching the defendant’s lorry and that it was a considerable distance away. I find that, contrary to the defendant’s assertions, he was not required to move to his left as a result of oncoming traffic. There was no reason why he should not have maintained his original course until he was safely past the Peugeot. The fact that, having analysed the evidence relating to this matter, I am forced to the conclusion that the defendant’s explanation is untrue, confirms my impression about the general unreliability of his evidence. He gave the explanation at the scene of the accident to Mr Banks and, subsequently to the police. I find that he did so because he was desperately, and perhaps naturally, searching for a reason for the accident which would absolve him from blame. In retrospect, he could not understand why he had passed so close to the Peugeot and decided that he must have done so because of the actions of oncoming traffic.[99]Mr Melville pointed out that, if the claimant’s contention as to what he had been doing before the accident was correct, then the open door of the Peugeot and the claimant’s presence should have been evident to the defendant over a period of several seconds and from a considerable distance away. He submitted that, in that event, the defendant must have seen what was happening and nevertheless have decided to “carry on regardless”. Alternatively, he must have failed to take any proper care at all when negotiating what was a busy road with a number of potential hazards. He argued that both these possibilities were so remote as to be completely untenable. The explanation must, he said, be that the claimant had not performed the leaning in manoeuvre at all. Instead, he had opened the door and got out into the path of the defendant’s lorry.[100]I do not accept that proposition. Drivers do on occasion fail to notice or react to hazards which might have been expected to be obvious to them. Moreover, there is some evidence which suggests that, at the time of the accident, the defendant was not driving as carefully as he should have done. By his own admission, he failed to notice that the Peugeot was displaying its hazard lights. This would not necessarily have suggested that it was likely to present any risk to the defendant. However, the fact that both rear indicator lights were flashing would not, because of parked vehicles, have been evident to a driver in the defendant’s position until he got near to the Peugeot. Therefore, it would have appeared that the Peugeot was signalling its intention to emerge from its parking place, close to the pedestrian crossing. That would have represented a potential hazard and would have required attention. The defendant’s failure to notice the indicator light strongly suggests that he was not taking proper care.[101]Furthermore, following the impact, the defendant’s lorry travelled for a period of about 9-14 seconds over a distance of about 36.5 metres. This contrasts with the experts’ agreed evidence that, allowing a perception time of 1.5 seconds (i.e. the top end of the range they identified as reasonable), it would have taken the defendant a total time of 3.2-3.3 seconds and a distance in the region of 16-17 metres to bring his lorry to an emergency stop. The defendant’s explanation for the time it took him to stop after the accident was that he was “shocked”. Immediately after the accident occurred, however, he apparently believed that he had collided with the front end of a parked car. There seems no reason why he should have been unduly shocked at that stage. His failure immediately to stop and ascertain what had happened was criticised both by Mr Banks and by his colleague, Mr Wood. His decision, as he was in the very act of braking, to use his CB radio to ask Mr Wood what he had hit was in my view extraordinary. I consider that the defendant’s actions immediately after the impact provide further evidence that, at the time the accident occurred, he was not exercising proper care. If he had been, I – like Mr Banks and Mr Wood – would have expected him to have reacted far more quickly.[102]In those circumstances, I do not find the possibility that the defendant had failed to notice the open door of the Peugeot and the presence of the claimant in the road over a period of seconds so remote as to cause me to reject the evidence of the claimant and Mrs Usher. On the contrary. I accept that evidence. I find that, having parked his car, the claimant got out and, on discovering that he did not have his phone with him, leaned back into the car to retrieve it, probably from the passenger seat, before withdrawing from the car into a standing position with his right hand on the car door. I find that it was at that point that the defendant’s lorry collided with the door and that the second wheel arch (and/or, possibly, the nearside of the cab) struck the claimant, causing him to be thrown under the lorry and to sustain the injuries I have described.

How long did the claimant’s manoeuvre take?

[103]Mr Neades and Dr Ashton carried out a series of tests in an attempt to determine how long it would typically take to get out of a car similar to the claimant’s Peugeot and how long it would take to get out, then lean into the car to retrieve an object from the passenger side, before leaving the car again. These tests were recorded on video and timed. In the light of my factual findings, it is necessary for me to consider only Mr Neades’ timings of the latter manoeuvre.[104]Mr Neades produced two different sets of timings. The first set was based on a man exiting the car, then leaning back in and retrieving an object as quickly as possible. The minimum time taken was 3.72 seconds and the maximum 4.80 seconds, with a mean of 4.24 seconds. The second set was based on a man performing the same manoeuvre but at a normal speed. That produced a minimum time of 4.40 seconds, a maximum time of 6.96 seconds and a mean of 5.74 seconds.[105]The defendant’s case was that, by the time the claimant arrived at Croc-o-Tile for the second time, he was likely to have been in a great hurry. He had described himself in his witness statement as “frustrated and slightly irritated”. Mr Melville suggested that the claimant’s decision to park on the zig-zag lines, at an angle some way from the kerb and with his hazard lights on was indicative of the fact that he was in a rush. Thus, it is said, it is highly likely that he would have got out of the car (and, if he retrieved anything, would have done so) very rapidly.[106]I find that the claimant’s decision to park on the zig-zag lines was primarily, as he said, because he did not want to carry the tiles any further than was necessary, rather than to save time. It is not possible to say whether he parked his car in the position in which it was found after the accident or whether it had, as the police officer believed, been moved as a result of the impact. Be that as it may, the position in which it was parked does not necessarily suggest to me that it must have been parked in haste. Having said that, however, the claimant was clearly an energetic man with a number of business interests who would have wasted no time in moving from one task to another. He had already lost time on the morning of the accident as a result of his abortive first visit to Croc-o-Tile and I am satisfied that he would have not have wanted to spend any longer than necessary on his second visit there.[107]The video footage of the tests carried out by Mr Neades show a man exiting the car and, almost immediately, leaning back in. However, the claimant’s evidence was that, after getting out, he felt in his pockets for his phone. He realised that what he had thought was his phone was in fact a wad of receipts. It was then that he leaned back in. The process of checking to see if he had his phone would have added to the time taken for the manoeuvre and that must be taken into account.[108]The claimant usually put his phone on the passenger seat and assumes that that is where it was on the day of the accident. The video footage of the accident scene shows that the passenger seat of the Peugeot was strewn with a number of items. Mr Rawlinson suggested that, because of that, it may have taken the claimant some time to find and retrieve his phone. That suggestion seems to me somewhat speculative. It is likely that the claimant would have put his belongings on the top of the pile of objects on the seat and would readily have been able to find and retrieve them. I do not consider that this should have affected the time taken for the manoeuvre.[109]Had it not been for the additional time which would have been taken by the claimant in checking whether he had his phone, I would have concluded that it would be appropriate to take Mr Neades’ timings for the “retrieving as quickly as possible” manoeuvre. However, taking into account that additional time, I find that it is appropriate instead to use the mean “normal speed” timing. That suggests that the time taken from the Peugeot door starting to open until the claimant was clear of the door frame would have been about 5.74 seconds.

Where was the defendant’s lorry when the claimant started his manoeuvre?

[110]The experts agree that, if the claimant carried out the manoeuvre at normal speed, the defendant’s lorry would probably have been 36-44 metres from the impact point when the claimant started to open the door of the Peugeot. That agreement is subject to the caveat that, since the defendant was accelerating at the time, the range of distances may be an overestimate.[111]Taking into account any possible overestimation, and having regard to the fact that I have used the mean (not the minimum) time for the “normal speed” manoeuvre, I find on a balance of probabilities that, at the time the claimant started his manoeuvre, the defendant’s lorry would have been approximately 36 metres from the impact point.

What should the defendant have done to avoid the accident?

[112]The experts agree that the defendant would have had a clear view of the offside of the Peugeot on his approach to the accident site. They also agree that, whatever the precise distance between the defendant’s lorry and the Peugeot at the start of the claimant’s manoeuvre, it would have been such that even if he had not been looking towards the Peugeot at the moment the claimant opened the door, there would have been sufficient time for the defendant to have stopped or taken other avoiding action before reaching the Peugeot.[113]I find that the most obvious avoiding action which the defendant could have taken was to maintain his position in the road with the offside wheels of his lorry on or just over the white line or, if it was necessary, to move a little further over to his right in order to pass the open door of the Peugeot. What he did instead was to move to his nearside, not, as I have found, to avoid oncoming vehicles but in order that, once he had passed the parked vehicles, he could take up a more central position in the eastbound carriageway. In doing so, he brought his lorry to within 80-85 cm of the side of the Peugeot and into collision with the car door and with the claimant. Alternatively, the defendant could have brought his lorry to a stop. I find that, in failing to take one of those courses, and in failing to see and avoid the open car door and the claimant, the defendant was negligent.[114]Why the defendant was not exercising proper care it is impossible to say with any certainty. I am not persuaded that the traffic conditions caused any significant distraction. It is true that there were parked vehicles on his left, together with the possibility of pedestrians entering the carriageway (although his evidence did not suggest that that risk concerned him to any great extent) and the pedestrian crossing ahead. However, I have found there was no traffic (save for Mr Banks’ vehicle some distance away) approaching from the opposite direction, so that would not have been a distracting factor. It may be that the defendant was distracted by something inside or outside his cab or just by his own thoughts. It is possible that, contrary to his evidence and that of Mr Wood, they were communicating by CB radio at the time and that the defendant was distracted by that activity.[115]The defendant’s suggestion to the police that he thought that there was a pedestrian in the area of the chip shop raises the possibility that he might have seen the claimant in the area of the Peugeot at one point. He might have seen him standing outside the Peugeot. He might then have looked back a second or two later when the claimant was leaning into the car and wrongly assumed that he had moved away. His suggestion to the police (albeit contradicted shortly afterwards) that he thought that the door of the Peugeot could have been open as he approached might also have been correct. He might have seen the door open when he first noticed the claimant and, when the claimant appeared to have gone, assumed that he had left the car and shut the door. These possibilities are speculative only. However, they would provide an explanation for the defendant’s apparent failure to notice any activity at all around the Peugeot. It was difficult from the defendant’s evidence to form any clear view as to whether he had seen a pedestrian and, if so, exactly where, or whether he had seen the open door. It may be that his confused evidence about the presence of a pedestrian arose from a realisation on his part (which he was unwilling to acknowledge) that the person he saw might indeed have been the claimant.

Should the claimant bear any liability for the accident?

[116]It was argued on behalf of the defendant that, by parking within the controlled area of the pedestrian crossing, in breach of the Highway Code and of the Regulations governing pelican crossings, the claimant was guilty of contributory negligence. A breach of regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986, by opening his car door so as to injure or endanger any person, was also pleaded and relied upon. It was further alleged that the claimant was negligent in parking at a distance from the kerb, in failing to look behind him before getting out of his car and in failing to notice the defendant’s lorry approaching.[117]The purpose of the zig-zag lines on each side of a pelican crossing is to ensure that the pedestrians using the crossing can see and can be seen. The presence of a car parked within the controlled area of such a crossing is just as obvious to vehicles approaching from behind as if it were lawfully parked just outside that controlled area. Indeed, it may even be more obvious because of its proximity to the crossing. The accident in the present case could have happened in precisely the same way had the Peugeot been lawfully parked a few metres west of its actual position, at the front of the line of parked vehicles. Thus, the claimant’s action in parking on the zig-zag lines did not amount to a failure to take reasonable care for his own safety. Moreover, the fact that the Peugeot was illegally parked was not causative of the accident. Nor, on the factual findings I have made, is there any basis for a contention that the claimant was in breach of regulation 105 of the 1986 Regulations.[118]After the accident, the rear nearside of the Peugeot was about 0.38 metres from the kerb, with its front nearside corner about 0.16 metres from the kerb. It is not known what its position was before the accident. The view of the investigating police officer was that it had been moved laterally away from the kerb slightly as a result of the impact. Thus, it is likely that it was positioned nearer to the kerb before the accident. The impact damage to the front of the defendant’s lorry extended 25cm in from the left hand side, suggesting that the lorry had overlapped with the driver’s door of the Peugeot to that extent. This was not a case where, as Mr Melville put it in his submissions, “another few centimetres would probably have made all the difference”. In order to have avoided the collision, the Peugeot would have had to have been parked very close indeed to the kerb. I find that the defendant has not established that there was a failure on the part of the claimant to take reasonable care for his own safety when parking. Nor was the position in which the car was parked causative of the accident.[119]The real issue in relation to contributory negligence is whether the claimant should have seen the approach of the defendant’s lorry and taken avoiding action. The agreed evidence of the experts was that the claimant would have had a clear view of the defendant’s lorry through his driver’s door mirror and that, had he looked over his right shoulder after opening the door, he would have seen the approaching lorry.[120]The defendant’s case was that, because the claimant was in a hurry, he failed to look behind him before he got out of the Peugeot and therefore failed to see the defendant’s lorry. The claimant’s evidence was that, although he did not specifically remember looking, he would have done so out of habit.[121]I find that the claimant did look behind him before opening the door of the Peugeot. The road was busy and he would have been aware that there was a line of traffic travelling towards the town centre. Vehicles must have been passing within a short distance to his right as he performed his reversing manoeuvre. Those facts, coupled with his usual practice (as to which I accept his evidence) persuade me that he would have not have failed to look behind him on this occasion.[122]Why then did he fail to see the defendant’s lorry and/or to perceive it as a danger? At the time he looked (which would have been just before he opened the car door), the lorry would have been approximately 36 metres away. It would have been one vehicle in a line of traffic. It would have been positioned towards the centre of the road with its offside wheels on or just over the white line. In short, it would not have appeared to present any danger to the claimant. He would have believed (as was the case) that he and the open car door were readily visible to approaching traffic. Other vehicles travelling in front of the defendant’s lorry were plainly giving the Peugeot’s open door adequate clearance since the claimant was able to complete most of his manoeuvre without incident. Even had he looked back along the road again before leaning into the car, it is unlikely that it would have been evident to him that the defendant’s lorry was going to change its course so as to drive within 80 or 85 cm of the side of the Peugeot and into the open door. I find that the claimant did not fail to look before getting out of the car and that his failure to anticipate that the defendant’s lorry posed a danger to him was entirely reasonable in the circumstances.[123]I have also considered whether the claimant was at fault in not seeking to retrieve his phone from the passenger side of the car. This would obviously have been a safer course to take. However, I accept Mr Rawlinson’s submission that to do so would have been a counsel of perfection and would not accord with the realities of ordinary everyday life. Moreover, there was no reason for the claimant to believe that he could not retrieve his phone without danger to himself from his position outside the driver’s door.[124]I therefore find that the defendant was wholly liable for the accident and the resultant injuries, loss and damage suffered by the claimant.