Rehman v Brady, The Estate of & Anor [2012] EWHC 78 (QB)

[2012] EWHC 78 (QB)Case No 9MA91062IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONChester Civil Justice CentreLittle St John’s Street,Chester, CheshireCH1 1SNDate 25/01/2012
Before
Mrs Justice Sharp
Between
ANISA REHMANClaimantTHE ESTATE OF JOHN GEORGE BRADYDefendantsTRADEWISE INSURANCE COMPANYDefendantLIMITEDDefendant
Ian Little (instructed by Pannones) for ClaimantPierre Janusz (instructed by Liddell and Co) for Second DefendantHearing Hearing dates: 17-19 January 2012
Judgment

Introduction

[1]This is the trial of an action for negligence on the issue of liability alone arising out of a road traffic accident between a car and a child pedestrian. The accident occurred at about 4.15 pm on 27 August 2004. The car was a Range Rover which was driven by Mr John Brady. It struck the Claimant, Anisa Rehman who was then 7 years and 4 months old, as she crossed Acregate Lane, Preston in Lancashire very close to her home, causing her serious head, thoracic, abdominal and pelvic injuries.

The parties

[2]The Claimant is now 14 years old, and brings these proceedings by her father and litigation friend Rabnawaz Rehman. Her home is at number 62 Acregate Lane, where she lived at the time of the accident with her family, including her mother, Kaniz Akhtar, and her sister Samaira. Her aunt, Shehnaz Akhtar lived at 70 Acregate Lane.[3]Mr Brady died after the accident in circumstances unrelated to it and his estate was made the First Defendant to these proceedings. At the time of the accident, he had a policy of motor insurance written by the Second Defendant. The Second Defendant avoided the policy on the grounds of material non disclosure and obtained a declaration under section 152 of the Road Traffic Act 1988; its role therefore is as “Article 75” insurers. By an order made on 26 April 2010 it was joined to these proceedings with liberty to exercise the rights of the First Defendant.[4]A part 20 claim brought by the Second Defendant against William Pye Limited, whose employees were carrying out road works to a drain gully (“the drain gully”) in the area where the accident happened, was struck out. The Second Defendant also obtained an order for the joinder of the Claimant’s mother to the proceedings as a second part 20 Defendant but it has not served proceedings upon her.[5]In summary, the Claimant’s case is that the accident was caused by Mr Brady’s negligence in driving too fast, failing to keep a proper look out and failing to avoid a collision with her as she crossed the road. The Second Defendant’s case is that Mr Brady was not negligent and/or the accident was not caused by his negligence. It is said that the Claimant ran out from behind a parked works vehicle into the path of Mr Brady’s properly approaching Range Rover and that a collision was unavoidable. It is also pleaded that the Claimant was guilty of contributory negligence.

The evidence

[6]I heard evidence from Kaniz Akhtar and Shehnaz Akhtar for the Claimant; and from two independent witnesses, Ghafar Jabbar, and Shahid Zafar and the author of the Police Accident Investigation report, former Police Constable Sutcliffe, for the Second Defendant. There was no witness statement from Mr Brady. He was interviewed by the police on the 4 October 2004 however, and a summary record of his interview This is only record of the interview. is contained in the Police report. It said as follows:
“Brady states that he had collected his daughter from work and had traveled [sic] down Miller Road from Blackpool Road. He had then turned left into Acregate Lane. He was travelling towards New Hall Lane and due to parked vehicles on both sides of the road he slowed to between 20-30 mph. As he approached Warner Road he noticed a transit parked on his nearside. An oncoming vehicle flashed him through the gap. As he has drawn level with the Transit a small girl has run directly in front of his vehicle from his nearside. The girl having been masked by the Transit van. Brady has applied emergency braking but was unable to avoid the collision.”
Brady has applied emergency braking but was unable to avoid the collision.”[7]The documentary evidence before me included the Police report and the Police Accident Investigation Report which included photographs taken of the scene very shortly after the accident by PC Sutcliffe (these are the photographs I shall refer to in this judgment).[8]Both parties were given permission to reply upon expert accident reconstruction evidence. In the event, only the Claimant did so, by tendering an expert report from Peter Sorton & Associates. Its author, Mr French no longer works there, so with the consent of the Second Defendant, Mr Peter Sorton gave expert evidence in relation to the report (the substance of which he confirmed and adopted save in one respect). He also provided a supplemental report during the course of the trial.

A description of the scene

[9]Detailed descriptions of the scene and various measurements are contained in Mr French’s report which are not disputed and which it is unnecessary to set out. In summary, Acregate Lane is a long urban street with terraced housing and pavements to both sides. It runs from north to south Strictly, from north west to south east, but it is simpler to use north to south for present purposes through a densely populated environment between the B6243 Ribbleton Lane to the north and the A59 New Hall Lane to the south. Acregate Lane is generally straight for not less than 150 metres to the north of the accident scene and not less than 100 metres to the south of it.[10]62 Acregate Lane is on the eastern side of Acregate Lane and is the second in a row of terraced houses just after the junction of Acregate Lane with Warner Road, a road to the east of Acregate Lane, with which it forms a conventional T junction. There are two sets of bollards, one on each corner of the junction (photograph 8).[11]At the relevant time Acregate Lane was (and still is) subject to a speed limit of 20 mph and a number of speed reducing traffic management measures were in place. These included speed bumps and junction tables, that is raised areas of tarmacadam coloured red covering the whole of the junction area, with white arrowhead markings on the ramps where the junction table meets the ordinary road on the side of the ramp facing approaching vehicles. There was a junction table at the junction of Acregate Lane and Warner Road (photograph 5).[12]The drain gully being repaired at the time of the accident was located roughly between the bollards on the north side of the junction and Number 62 (abutting the ramp of the junction table: photographs 5 and 10).[13]At the corner of Acregate Lane and Warner Road on the south side of the junction is Acregate Labour Social Club, and its car park, which is accessed from Acregate Lane itself.[14]Acregate Lane is a single carriageway which is sufficiently wide for two vehicles to pass each other. Residents however commonly park their vehicles on both sides of the road, using part of the pavements. The photographs show there were vehicles parked on both sides of the road near to the junction of Acregate Lane and Warner Road at the material time. In particular, there was a blue Rover parked on the west side of Acregate Lane facing south, mostly on the pavement with its rear nearside wheel on the south western most corner of the junction table (photograph 7). In addition, the workmen’s Ford transit van and trailer were parked, partly on the pavement by Number 62 also facing south (photographs 8, 9 and 10). Though the van and its trailer were moved shortly after the accident, and before the police secured the scene, they were then re-parked in a position which it is agreed approximates to the position they were in before they were moved.[15]At the time of the accident the weather was fine and visibility was good. There is some suggestion that the surface of the road may have been wet (the Police Accident report described the road as damp and drying out) but it is not said by either side that this is material to the questions I have to decide. There were no relevant skid marks found on the road surface after the accident nor were there any relevant defects to the Range Rover which at the time of the accident, was (lawfully) fitted with a bull bar. On examination after the accident, the only damage found to the Range Rover which was attributable to the accident was slight damage to its front offside corner area (the plastic cover to the offside headlight was broken).

The accident

[16]Most of what occurred is common ground. On the day of the accident, the Claimant, her sister, mother and aunt were visiting friends in New Hall Lane. On their return the group walked north up Acregate Lane on the west side pavement and then crossed to the east side pavement before reaching the Social Club. They then found they could not reach Number 62 directly because the road works created an obstruction (whether because of the presence of the workmen, their van and trailer and/or because of the sparks being created by welding or cutting work being done to the drain). So mother, sister and aunt then crossed back over Acregate Lane (i.e from east to west) in order to by pass the road works, intending then to re-cross Acregate Lane and approach their home from the far side of the road works.[17]When the Claimant’s mother was on the pavement on the west side of Acregate Lane she saw the sparks and beckoned to the Claimant telling her to hurry up as she was concerned both by the danger posed by the sparks and because the visibility was poor, as she put it in evidence (because of the parked cars). The Claimant hurried up as a result. The Claimant crossed Acregate Lane from east to west from a point between, at or near the bollards on the north corner of the junction of Acregate Lane and Warner Road and before the drain gully. As she crossed towards her mother she was struck from her right side by the Range Rover. It is not disputed that the Claimant was thrown through the air as a result of the impact and landed in the road near the rear nearside wheel of the blue Rover.[18]Photograph 6 shows the position of the Range Rover at the time of PC Sutcliffe’s arrival on the scene, parked on the eastern side of Acregate Lane, just past the entrance to the Labour Social Club car park. However his report recorded that:
“…according to the driver he had brought the vehicle [the Range Rover] to a halt upon the red highlighted road surface [the junction table] near to the parked Rover saloon and it was after the accident that he had moved it to the position shown in the photograph.”
[19]There is a factual issue about where the mother, aunt and sister crossed Acregate Lane to by pass the road works; and whether the Claimant lagged behind the group. It was relevant to part of the Claimant’s pleaded case on negligence that the First Defendant failed to notice the presence of the Claimant at the rear of the group crossing the road. In the event however, the precise configuration of the group and where the mother, sister and aunt crossed the road has not proved to be material to my decision on liability. I shall nevertheless set out the rival contentions and my conclusions on the point.[20]The mother and aunt’s account (which were broadly similar) was that everyone in the group crossed Warner Road before they all detoured to bypass the road works. This they all did by crossing Acregate Lane from east to west from more or less the same point by the bollards and more or less in a straight line - the mother first, followed by Samaira, then the aunt, with the Claimant bringing up the rear. The mother and sister reached the pavement on the other side of Acregate Lane. The mother turned and by the time she beckoned to the Claimant, and told her to hurry up, the Claimant was already crossing the road, only a few paces behind her aunt – who herself was still in the road. It was then the Claimant was struck by the Range Rover. Neither the mother nor the aunt had noticed it approaching, even though they both looked before crossing the road. The mother said the Range Rover seemed to come out of nowhere.[21]Mr Jabbar’s account however was different. He was a passer by, walking south towards the area of the junction on the west side of Acregate Lane. His evidence, consistent with what he told the police shortly afterwards in a statement dated 31 August 2004, was this. He saw a family group consisting of women and children on the other side of the road near the Social Club walking in his direction. They all crossed Acregate Lane from east to west near the Social Club, except for a little girl (the Claimant) who was lagging behind. The Claimant crossed Warner Road on her own – and the mother, by then parallel with the little girl, gestured towards her – he thought both to warn the Claimant of the sparks made by the works being done, and to hurry her across the road.[22]I have no doubt that the witnesses were all providing their honest recollections as best they could, subject of course to the inevitable difficulties caused both by the passage of time since the accident occurred (of more than 7 years), and by the trauma of the event itself – particularly for the mother and aunt. But in my view it is more likely that Mr Jabbar’s account as to where everyone crossed is accurate.[23]Mr Jabbar’s account – which he adhered to in evidence - was consistent with his statement to the police made very shortly after the accident occurred. In contrast, neither the mother nor the aunt had a clear recollection of when they were first asked about these events – and it may be they were not asked about them until some considerable time later. Certainly their witness statements in this action were both dated 2011 (though there had apparently been an earlier one from the mother in 2006). It also emerged at trial that the mother could not speak or understand English sufficiently to have fully understood the contents of her witness statement which was written in English; by agreement therefore her evidence in chief was given orally. It is also more likely it seems to me that the mother and aunt would have crossed the road to avoid the obstruction when they noticed it (which they did before they reached Warner Road) diagonally and moving forward, rather than by walking towards it and crossing once they were close to it. Finally, though both the mother and the aunt said their focus was on the sparks coming from the road works it is somewhat difficult to see how neither were aware of the Range Rover approaching if, as they say, they looked before crossing Acregate Lane and the Claimant was only a couple of feet behind the aunt when she crossed the road.[24]I turn then to the following matters which are material to my conclusion on negligence and which are not in dispute.[25]First, where the Claimant crossed the road. Within a narrow margin, three witnesses, the Claimant’s mother, her aunt and Mr Jabbar all said she crossed near the bollards on the north corner of the junction of Acregate Lane and Warner Road. Mr Jabbar said the Claimant crossed Acregate Lane on her own from the area between the drain gully and the bollards on the north of the junction. Second, where the Claimant ended up in the road after the accident. This was by the rear nearside wheel of the parked blue Rover. Third, where the Range Rover was laterally when it was travelling in the road. The Claimant’s aunt said it was in the centre of the road when she saw it. Mr Jabbar’s evidence was that the Range Rover stopped in the middle of the road after the accident (and level with the blue Rover – a matter which is in dispute). Mr French’s evidence, confirmed by Mr Sorton, was that the Range Rover was likely to have been travelling in the centre of the road because of the configuration of the road itself and the position of the parked cars. Third, the point of impact between the Claimant and the Range Rover. This was 40 centimetres from the offside edge of the Range Rover. Fourth, that it followed from the position of the Range Rover in the road, and the point of impact, that the Claimant had travelled 3.41 metres from the kerb when she was struck on her right hand side.[26]In Mr Sorton’s opinion using this undisputed data, and accepted methods of calculation, it followed that the “throw distance” (that is, the distance the Claimant was projected along the road from the point of impact) was between 14.4 and 17.2 metres; and that the Range Rover was travelling at between 28mph and 32 mph at the point of impact.

Calculating the effect of a lower approach speed

[27]It was agreed that the correct method of calculating the effect of a lower approach speed is to determine the point along the road the vehicle was actually positioned, at whatever speed it was travelling (when the emergency became apparent) and then to determine what the effect would be of a lower approach speed with the vehicle in the same position on the road when the emergency became apparent (i.e. in this case, when the Claimant stepped off the road). This was the subject matter of Mr Sorton’s supplemental report, since he did not endorse the approach taken by Mr French.[28]It is unnecessary to set out the technical details and calculations in Mr Sorton’s supplemental report or the altered timings data I was provided with during the trial, relating to different speeds, reaction times and stopping distances. This is because the figures themselves are uncontroversial and because the precise calculations and their effect is agreed. It comes to this. If the Range Rover was in fact travelling at 28 to 32 mph at the point of impact (i.e. the range of speeds put forward by Mr Sorton) - or even at 25 mph – the midpoint of the speed Mr Brady is recorded as saying he was travelling at - but it should have been travelling at 20 mph or less, then simply driving at a lower speed would have been sufficient to avoid the collision, because the Claimant would have cleared the path of the Range Rover by the time it reached the point of impact whether she was running, or running and walking or simply walking across Acregate Lane.[29]In addition, if the Range Rover was travelling at 28 to 32 mph but should have been driving at 15 mph, or less the Range Rover could have been brought to a halt by braking short of the point of impact, albeit it would not then have been necessary for this to be done for an impact to be avoided.

What speed was the Range Rover travelling at?

[30]The first question to resolve therefore is the speed the Range Rover was travelling at the point of impact. The witness evidence as to the speed of the Range Rover is limited. The Claimant’s mother and her aunt did not see the Range Rover before it hit the Claimant. Nor did Mr Jabbar since it was approaching from behind him, though it was his impression that it hit the Claimant with great force, because she went flying.[31]Mr Zafar was driving down Acregate Lane at the time of the accident. His car was behind the Range Rover, though some distance from it. He was aware of the speed limit of 20 mph. He was travelling at less than the speed limit because he was at first looking to see whether tenants of a house he owned in Acregate Lane were in. He was about 75 metres from the Range Rover when the accident happened. He said the Range Rover was increasing its distance in front of him (and was therefore going faster than he was). Though the Range Rover blocked his view of the impact, he then saw a person (the Claimant) fly through the air.[32]The most important evidence as to speed, therefore is provided by the opinion of Mr Sorton. Mr Sorton is undoubtedly a well respected accident reconstruction expert of very great experience; and I accept his opinion as to the speed of the Range Rover at the material time and the reasons he gave for arriving at that opinion without hesitation.[33]The challenge to Mr Sorton’s opinion as to speed depended entirely on one piece of evidence. This is contained in Mr Zafar’s witness statement in these proceedings dated 4 June 2007, where he said this:
“When the Range Rover stopped [after the accident] the back wheels were still on the road but the front wheels had gone onto the speed hump.”
A suggestion made by PC Sutcliffe in his report and evidence that lack of damage to the Range Rover indicated a low speed collision was comprehensively rejected by Mr Sorton, and, in the event was not pursued by the Second Defendant.[34]On this basis, Mr Janusz for the Second Defendant suggested to Mr Sorton in cross examination and submitted in closing that the Range Rover had stopped or been brought to a halt much closer to the point of impact than the point Mr Sorton used in his calculations (namely, by the blue Rover). Mr Janusz also said in closing that if I accepted Mr Zafar’s evidence on this point, I would then have to “take a view” where that meant the front of the Range Rover was when it stopped. He suggested there was some evidence as to the dimensions of a comparable Range Rover in Mr French’s report, which might indicate the front of the Range Rover (when it stopped) was 4 metres beyond the start of the ramp on the junction table. If the distance between the point of impact and the Range Rover coming to a halt was indeed 4 metres, this he submitted would indicate (using braking distance) that the speed at impact was 15.95 mph.[35]I have no hesitation in rejecting that submission. As Mr Janusz conceded, it is premised on my acceptance of Mr Zafar’s evidence on this issue. I do not accept it. Mr Zafar did not mention where the Range Rover stopped at all in the statement he made to the police only days after the accident on 1 September 2004 and nearly 3 years before the witness statement for these proceedings to which I have referred.[36]In his evidence at trial Mr Zafar fairly conceded (as is obvious) that at the time he made his statement on 1 September 2004 matters were fresher in his mind, and that he now had no real memory of where the Range Rover had stopped. In substance, he said that at the time of the accident, the position of the Range Rover was the last thing on his mind; naturally enough his concern was with the very seriously injured little girl who he went to help and, in addition, with an aggressive collection of people who appeared at the scene after the accident had happened.[37]In my view Mr Little for the Claimant is right when he submits the position is not that Mr Zafar had forgotten where the Range Rover was by the time he came to give evidence, but either that he had no clear recollection of where it had stopped in the first place or that he was simply mistaken, it matters not which.[38]The person best placed to know where the Range Rover stopped was the driver who, as Mr Little said, would have no reason to over estimate the distance taken by him to stop after the accident. Mr Brady’s account as recorded in the Police Accident report was that he stopped near to the Rover saloon (the blue Rover). This is consistent with Mr Jabbar’s evidence at trial, albeit Mr Jabbar, like Mr Zafar, did not mention where the Range Rover stopped in his statement made to the police either.[39]Mr Sorton rejected as inconceivable the proposition that the Range Rover could have stopped where Mr Zafar had said it did (that it had stopped “on a sixpence” as Mr Sorton characterised the suggestion). When it was put to Mr Sorton in cross examination that braking distance should be used to calculate speed, Mr Sorton said he had done the calculation on the basis the Range Rover had stopped by the blue Rover. And the result of that calculation would put the speed of the Range Rover at 30 mph (the mid point of his bracket of 28 to 32 mph).[40]Moreover, Mr Sorton said the proposition that the Range Rover could have stopped with its back wheels on the road and its front wheels on the ramp (i.e. on a sixpence after the point of impact) was completely irreconcilable with the throw distance (that is, the distance the Claimant was projected forward). Indeed, he said – with some considerable force – that such a theory defied the laws of physics.[41]Mr Sorton said in accidents between vehicles and pedestrians, typically the pedestrian ends up alongside the vehicle after it has stopped. In his view, this is what had happened here.[42]Thus, looking at the matter the other way, if the Claimant had been struck and the Range Rover had stopped within the “narrow window” suggested, in his opinion the Claimant would have been lying where the Range Rover was said to have stopped (on this hypothesis) after the accident. She would not, indeed could not have been thrown through the air with great force as described by Mr Jabbar, nor (as was not in dispute) would the throw distance have been between 14 and 17 metres.[43]Here, therefore, to put it in layman’s terms, save for Mr Zafar’s recollection as to where the Range Rover had stopped, in Mr Sorton’s opinion all the pieces of evidence, fitted together to produce a coherent picture of the accident and particularly, the speed of the Range Rover at the point of impact. Mr Zafar’s evidence was not only inconsistent with that evidence but was contradicted by the well accepted and uncontroversial methods of calculating speed using the throw distance. I agree and therefore find as a fact both that the Range Rover stopped by the blue Rover and that it was travelling at 28 to 32 mph at the point of impact.[44]It is conceded by Mr Janusz that the result of this finding (indeed of any finding that Mr Brady was going at more than 25 mph) is effectively determinative of the issue as to whether Mr Brady was travelling at a reasonable speed, and of the issue of causation – that is, whether travelling at a reasonable speed would have made a difference - given the uncontested evidence of the effect of a lower approach speed.[45]It is to be noted that Rule 104 of the Highway Code say this:
“The speed limit is the absolute maximum and does not mean it is safe to drive at that speed irrespective of conditions. Driving at speeds too fast for the road and traffic conditions can be dangerous. You should always reduce your speed • when • the road layout or condition presents hazards.”
[46]Mr Sorton said with some feeling that the driving situation here was particularly hazardous, and I agree with that view. The speed limit was 20 mph along the length of Acregate Lane in ideal conditions. There were pedestrians around and there were likely to be children there given the time of day. A sensible driver would appreciate that traffic calming measures are there for good reason. There were in any event obvious hazards created by the road layout, by the presence of parked vehicles (narrowing the road, and inevitably obstructing the view to a certain extent both of the pavement and of the junction) by the road works near the junction and by the junction itself into which Mr Brady was driving. In my view a reasonable and appropriate speed when approaching the junction in all the circumstances was no more than 15 mph.[47]Thus, the only remaining question is whether the Second Defendant has established the Claimant was guilty of contributory negligence.

Contributory Negligence

[48]There is no difference between the parties on the correct legal approach to that issue – which, to put it broadly, is to consider what can reasonably be expected of a girl of the Claimant’s age at the time. Mr Janusz submits the particular characteristics of a claimant can be taken into account if they put her in a better position than those of an ordinary child of her age. Here he invites me to consider the evidence of the mother that the Claimant was allowed out on her own and that she knew she had to stop and look before crossing the road. He says on the facts, the Claimant could not have looked before crossing the road. But if she did, even at the speed the Range Rover was travelling at, she should have been alert enough not to cross. Bearing in mind the questions of moral blameworthiness and causation he submits a finding that the Claimant was 20 to 25 per cent to blame is justifiable on the facts.[49]Mr Little on the other hand submits that even were the Claimant an adult there should be no finding of contributory negligence given both that the accident would not have happened if at the point when the Claimant had left the pavement, and the Range Rover was approaching, it had been driven as it should have been (because the Claimant could then have safely walked across the road) and that the accident happened because Mr Brady was driving at about or approaching twice the speed that was reasonable in the circumstances. A fortiori he submits given the Claimant was a seven year old child.[50]I agree. The Claimant crossed the road when beckoned to do so by her mother. She was hit by a Range Rover being driven negligently at or approaching what was twice the reasonable speed, and at some margin over the speed limit (though I should say my conclusion would be no different if a reasonable speed was 20 mph, rather than 15 mph). Had the Range Rover been driven even at the speed limit of 20 mph the accident would not have happened and the Claimant would have arrived safely at the other side of the road. In my view, there is no basis for a finding of contributory negligence in those circumstances against a child who was only 7 years old at the time.[51]Accordingly, I am satisfied the Claimant has discharged the burden of establishing her case on liability on the balance of probabilities, she succeeds in her action for negligence, and I reject the claim of contributory negligence against her.