STEPHEN PARRY v STEPHEN JOHNSON & Anor [2022] EWHC 889 (QB)

[2022] EWHC 889 (QB)Case No QB-2021-002185
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 th April 2022
Before
MR JUSTICE RITCHIE
Between
STEPHEN PARRYClaimantSTEPHEN JOHNSON (1)DefendantNFU MUTUAL (2)Defendant(Giles Mooney QC instructed by Slater & Gordon) for Claimant(Roger Harris instructed by DWF Law LLP) for DefendantsHearing Hearing dates: 7 th and 8 th April 2022
[17]Then at a later stage, at page 43, having referred to the statistical information which had been before the judge, he said:
“The result of that statistical survey is no doubt a matter of expert knowledge not available to a layman. But whether it is of any material assistance in this case is another matter. It is not the fact that a plaintiff has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it.”
[18]It seems to me that those passages from Stuart-Smith LJ are apt to the circumstances of this case. It seems to me, as I have already indicated, that the fact that the appellant had taken drink was of undoubted significance if one was looking for some reason why he might have behaved in the way he did. But for the purposes of determining apportionment, the important question is what he did.[19]Returning then to the issue before this court. The question therefore is whether or not the judge can properly be criticised for concluding that the appellant should be held one-third to blame. This court has repeatedly said that it will only interfere with the apportionment of blameworthiness in cases such as this where it is clear that the judge has gone plainly wrong.[20]It seems to me that it may well be that the judge in this case was generous in his approach to the liability of the appellant; for it seems to me that the appellant undoubtedly must bear a substantial burden for this accident. He was the one who created the dangerous situation by stepping out as he did into the carriageway when the respondent's vehicle was so close. But nonetheless, bearing in mind the fact that this court has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon, I find it difficult to see how I could properly categorise the judge's apportionment in this case as plainly wrong.” [65]. I apply this guidance on the duty of care placed on the 1st Defendant in the circumstances of this case. I rule that in law persons driving cars and other mechanically propelled vehicles like tractors owe a duty of care to pedestrians around them who are on the road surface when the car is on the road. In relation to drivers driving vehicles towing dangerous, unlit equipment, which overhangs pavements and grassy verges, that duty is owed to all pedestrians nearby on pavements and grassy verges who may foreseeably be affected by the overhang. [66]. I rule that the duty extends geographically beyond the road ahead and extends over the pavements and grassy verges beside the vehicle when the driver is towing a large object which is wider than the vehicle and particularly so when the equipment has dangerous crenelations on it. [67]. Speed The starting point when assessing whether a driver’s speed was reasonable in the circumstances is to look at the Highway Code. Rule 124 of the Highway Code states that a driver must not exceed the maximum speed limit for the road and for the driver’s vehicle. The maximum speed limit for this road was 60 mph. [68]. However rule 125 of the Highway Code states that the speed limit is an absolute maximum and does not mean it is safe to drive at that speed irrespective of the conditions. Driving at speeds too fast for the road and the traffic conditions is dangerous. Drivers should always reduce their speed when: -• the road layout or condition presents hazards such as bends;• sharing the road with pedestrians cyclists and horse riders...;• weather conditions make it safer to do so;• driving at night as it is more difficult to see other road users. [69]. I would add to that list that when driving a vehicle with a hidden death trap on the rear drivers should take that into account when deciding on their speed in the circumstances. [70]. Keeping a proper look out In relation the necessary and proper awareness of potential hazards created to those ahead and beside the driver’s vehicle, the driver’s speed can often be critical in determining whether a driver fell below the level of reasonable care expected when keeping a proper look out. The slower the vehicle is driven the more time the driver has to evaluate and see what is visible and the more time he has to distinguish what may be less conspicuous on the verge or the pavement. If the driver does not give himself enough time to evaluate the road ahead and the dangers he poses to other because he is driving too fast, he has himself to blame. However, the less time the driver is given (by the actions of others) to evaluate the dangers, the less likely it is the the courts will hold the driver to account for failing to react. [71]. This speed/time/look out issue was apparent in Leslie Buck v Jane Ainslie [2017] CSOH 73, in which Lady Carmichael dismissed a claim by a pedestrian who was run down after midnight by a car with full beam headlights travelling at around 50 mph, having stepped out into the road at the last minute as the car passed. The pedestrian was drowsy and suspected to have been on drugs earlier in the day. He had injured himself by “jumping out” in front of a car in the previous week and doctors had suspected he was suicidal but he denied that and it was unproven. [72]. I also take into account that courts must be astute not to place too much reliance on the minutiae of expert evidence poured over after the event as highlighted by Coulson J in Stewart v Glaze [2009] EWHC 704, at paragraphs 5-7:
“5. I have to apply to Mr Glaze's actions the standard of the reasonable driver. It is important to ensure that the court does not unwittingly replace that test with the standard of the ideal driver. It is also important to ensure, particularly in a case with accident reconstruction experts, that the court is not guided by what is sometimes referred to as '20–20 hindsight'. In Ahanonu v South East London & Kent Bus Company Limited [2008] EWCA Civ 274, Laws LJ said: 'There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the Defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the Claimant's safety than a duty to take reasonable care.”
Applying the law to the facts [73]. In my judgement in circumstances where the 1st Defendant was driving a vehicle towing a piece of equipment that was wider than the vehicle and overhung the grass verge by between 20 and 30 centimetres on each side, and where the road was narrow the verges very close to the edge of the road, it was incumbent on the 1st Defendant to drive at a speed which would permit the 1st Defendant a reasonable opportunity to react to the presence of any pedestrians on the grassy verges of the road on either side. [74]. It was also incumbent on the 1st Defendant to assess the conditions, in particular the low level of light and the overgrown bushes on either side off the lane, and to put in place whatever measures he had available to him in vehicle to afford him the best visibility. [75]. Taking into account the 1st Defendant’s own evidence and the evidence of Mrs Parry, the photographs and the videos, and the experts evidence in my judgement the 1st Defendant should have been driving at a much lower speed than 25 and 30 kilometres per hour as he went down the lane. I consider that he should have been driving at between 5 and 10 kilometres per hour as he left the pothole and should have stayed at that speed as he headed down the lane towards the main road. That would have granted him considerably more time to see who was standing on the grassy verges on both sides of the lane. His failure to drive at that speed and his choice to accelerate to between 25 and 30 kilometres per hour was in my judgement careless. [76]. In addition, I consider that because it was dusk and because there were hedges which were approximately head high on both sides of the lane I consider that the 1st Defendant should have flicked on his main beam headlights. I find as a fact that the dipped beam headlights lit the road surface well but did not light the grass verges particularly well. I find as a fact that had he put on his main beam headlights they would have illuminated considerably more of the grass verges and would have assisted him in identifying the presence of the Claimant and his wife. [77]. In my judgement even without the main beam headlights the Claimant and his wife were visible, conspicuous and discernible to any reasonably prudent driver. However at the speed at which the 1st Defendant was travelling he gave himself less time than he should have to see them and then to brake and/or steer to the left hand side when he should have seen the Claimant and his wife. Had he been travelling at a reasonable speed for the circumstances he would have been able to pull up without the seeding machine reaching them (as he did in the videos). In addition, had the 1st Defendant been displaying his main beam, he would have had considerably more time to discern the presence of the Claimant and his wife. [78]. I also find as a fact that the 1st Defendant failed to keep a proper look out as he drove down the lane eager to get home to have his “tea” and for that reason as well he failed to see them. Conclusions [79]. I enter Judgment for the Claimant. I dismiss the assertion of contributory negligence. [80]. Consequential orders are dealt with in the Order attached herewith.