Steven Snowden KC secures a finding of 25% contributory negligence in the liability-only trial of a road traffic accident where a motorcyclist suffered life changing injuries following a four-vehicle collision. Blog by Thea Wilson.
Facts
On 25 February 2019, four vehicles were involved in an accident on the A40. The defendant’s Vauxhall Zafira collided with the rear of a VW Polo which was then shunted into the central reservation and a VW Passat. The claimant’s Suzuki motorcycle collided with the rear of the defendant’s Vauxhall Zafira. There was a dispute between the parties as to whether the defendant struck the Polo first or whether the impact of the claimant’s motorcycle shunted the defendant’s vehicle into the Polo.
Four witnesses gave oral evidence at trial and there were written statements from a further three lay witnesses gathered as part of the police investigation. As is so often the case, each witness had a different perception of the accident and gave a varying account of how it occurred. A police forensic collision investigator had carried out a detailed survey and concluded that there was nothing at the scene when allowed him to state the order in which the collisions occurred. There was also evidence from two accident reconstruction experts: Dr Darren Walsh, instructed by the claimant, and Mr Ric Ward, instructed by the defendant. The experts had reached a large measure of agreement but disagreed on some key aspects of the evidence, particularly matters related to contributory negligence.
Judgment
In his judgment, handed down on 10 June 2024, Geraint Webb KC, sitting as a Deputy High Court Judge, held that on the basis of the witness evidence and the agreed evidence of the accident reconstruction experts, the defendant and his witness were wrong, and the defendant’s Zafira had collided with the Polo before he was hit by the motorbike. The totality of the evidence was that this first impact was not low-speed and the Judge concluded that the Zafira was likely to be travelling in excess of 35mph, too fast for the stop-start conditions that afternoon and/or too close to the Polo. The defendant was negligent and, as a consequence, collided with the car in front. The effect of this collision materially reduced the stopping distance available to the motorcycle and caused the claimant’s collision with the Zafira.
Whilst the Judge found Dr Walsh overall more coherent and persuasive than Mr Ward, the expert evidence was found to be limited assistance given the limited physical evidence. Rather, Geraint Webb KC found that the independent witness provided the most reliable evidence, with the expert evidence acting as a helpful ‘check’ to flag up if any aspect of the witness evidence was unlikely to be correct. The totality of the evidence was that the claimant was travelling too close to the vehicle in front and/or too quickly having regard to the gap left and the stop/start conditions of the traffic that day. This negligence contributed, at least in some part to the claimant’s injuries. This blameworthiness was apportioned at 25% given that the significantly greater responsibility for the injuries was the defendant’s negligence.
Comment
This case demonstrates the importance of witness evidence over the minute calculations of accident reconstruction experts, and the limitations of such expert evidence.
It is also useful to practitioners in its re-statement of the principles at play in all road traffic accident cases. These principles can be summarised as follows:
- It is for C to establish on the balance of probabilities that D is negligent.
- D is negligent if they fail in their duty to use reasonable care to avoid causing injury or damaging property.
- ‘Reasonable’ is assessed with reference to an ordinarily skilful driver deemed to have common sense and experience of the usual behaviour of road users, to know that a motor vehicle is a dangerous weapon, and to know the principles of the Highway Code.
- The actions of a driver are not assessed in a vacuum, but in the circumstances at the time of the accident.
- They are not assessed with the benefit of hindsight, and the level of risk dictates the appropriate precautions which should have been taken.
- The issue of contributory negligence only arises if D is found to have caused or contributed to C’s injuries. The burden of proving it rests on D.
- The two issues to assess are C’s relative blameworthiness and the causative potency of what C did wrong.
When considering the evidence:
- Judges should be cautious against making too precise findings of fact when the reality is that there can only be guesstimates.
- Judges should be cautious in relation to accident reconstruction experts and their calculations, and avoid treating them as a fixed framework or formula against which to judge the drivers’ reactions with mathematical precision, particularly where there is limited physical evidence.
- There is danger of placing undue weight on current recollections by witnesses of matters which occurred many years ago.
Expert evidence and witness evidence should be used together, with the expert evidence acting as a check to evaluate the witness evidence.
