MOHAMMED MASHUK MIAH (BY HIS LITIGATION FRIEND MOHAMMED HELAL UDDIN) V Ms J AND AVIVA INSURANCE LIMITED [2024] EWHC 92 (KB)
Judgment was handed down by His Honour Judge Gosnell sitting in the High Court, Leeds District Registry.
The Claimant was represented by Mewies Solicitors, Mr William Waldron KC and Mr Pankaj Madan.
The Defendants were represented by Owen Rees, DWF Law and Mr Christopher Kennedy KC.
DWF, the global provider of integrated legal and business services, in collaboration with Aviva Insurance Limited, have successfully secured a judgment which demonstrates the court's reasonable and measured approach to a negligent pedestrian.
This was obviously a tragic case. The Judge commented that this was a disastrous and life changing event for the Claimant and a terrifying and profoundly upsetting experience for the First Defendant.
Background
This case concerns a road traffic accident which occurred at around 10pm in September 2018 on an unlit rural road near Garndolbenmaen, North Wales. The Claimant was a pedestrian crossing the unlit road near to a restaurant when he was struck by a car being driven by the First Defendant. The Claimant had alighted from a bus directly opposite the restaurant (not a designated bus stop) and was crossing the road from the south side to the north side with a view to visiting the restaurant.
Claimant's case
The main thrust of Claimant’s case was that a reasonably competent and careful driver would have contemplated the real risk that someone may have got off the bus to cross the road to the restaurant. The restaurant was the only building on that road for miles, and a reasonable driver should have slowed down to ensure no real danger existed.
Defendant's case
The Defendants' Counsel raised the legal argument of “avoidance potential” as espoused by Mr Smalley (Claimant's accident reconstruction expert) in his evidence. Mr Smalley said that a modest reduction in speed by the First Defendant's vehicle would have allowed the Claimant to cross the road, thus enabling the Claimant to pass without incident.
The Defendants relied on the decision of the Court of Appeal in Whittle v Bennett [2006] EWCA Civ 1538 where the Court had to deal with a similar argument about what would have happened if one of the colliding vehicles had been travelling slower to allow more distance between it and the vehicle in front. As Lord Justice Leveson said: "…none of these possibilities make any difference. The two cars were where they were when Mr Whittle commenced his turn, at a time when, had he been paying proper attention, he should and would never have done so. In the circumstances the argument to apportionment simply do not arise.”
Findings of fact
- The First Defendant was familiar with the location and aware of the restaurant and the nearby bus stops.
- The Judge accepted Mr Jennings' (Defendant's accident reconstruction expert) opinion on speed is 52-58mph on the approach and the average speed up to the point where the car crosses with the bus is 55-58 mph.
- The First Defendant had no recollection of seeing the stationary bus or passing a bus coming in the opposite direction
- The First Defendant would not have expected a bus to stop opposite the restaurant.
- The First Defendant saw a shape coming from her right, she screamed and braked and then there was a bang. The lay witnesses saw the Claimant walking across the road without appearing to look to his left.
- Avoidance potential – this theory was rejected by the Judge.
His honour Judge Gosnell's Analysis
- On speed of the Defendant's vehicle - the Judge found it was not negligent of the First Defendant to drive at just less than the national speed limit. The only complication was that it was dark and there were no street lights in a rural area, much less likelihood of pedestrian traffic the road was straight for some considerable distance with only a slight decline. Visibility was otherwise good therefore driving at just less than 60mph per se was not negligent.
- At what point should the First Defendant have seen and recognised the vehicle as a bus and what should she have done about it as a competent prudent driver? It would take the First Defendant 14.5 seconds at just under 60mph to reach the point 370-390 metres away where the bus stopped. The Judge did not accept that a reasonably prudent motorist could identify a vehicle 370-390 metres away as a bus in rural areas without any lighting a vehicle driver is only likely to initially see the headlights of an oncoming traffic. The Defendant would not be able to see a passenger alight at that distance particularly one wearing dark clothing.
- The Judge said " I have concluded that in expecting the First Defendant to recognise the presence of a stationary bus, some 370-390 metres away, which then started moving 265 metres away at night represents a counsel of perfection and ignores the reality of the situation which is that the First Defendant is travelling along a straight road, within the speed limit and there appear to be no hazards in her path."
- The Judge goes on to say even if he had found the First Defendant had noticed a stationary bus and had seen one adult passenger get off he would have been reluctant to find that she should have to reduce her speed to a rate where she could have avoided a collision with a pedestrian who chose to stride into the road without looking. This would mean that any prudent driver passed a stationary bus he or she should slow down to such a speed where they can bring their vehicle to a halt to avoid a collision with a negligent pedestrian. The Judge went on to say:-
- "I take the view that bus passengers stepping into the path of oncoming vehicles is unexpected in the sense that the vast majority of pedestrians choose to look and take care before crossing the road. To expect all road users to slow down and take precautions every time they pass a stationary bus is going beyond the standard of the reasonably prudent motorist and much nearer the 20/20 hindsight or counsel of perfection standard."
- Further in dealing with full beam or dipped beam the Judge said it is certainly not negligent to remain on dipped headlights in these circumstances.
- At what point would a prudent motorist be able to categorically recognise the oncoming vehicle as a bus, at certainly 150m it should be possible, however, the Judge found that given the glare of the bus it was not negligent of the First Defendant to fail to notice the offside indicators earlier and conclude that the bus had been recently stationary. Even if she had it would not be negligent to fail to assume that the bus had recently dropped off a passenger opposite the restaurant when she knew that was not a bus stop. It was not negligent of her not to reduce her speed.
- His Honour said even if he was wrong about previous finding and had decided that for the reasons the Claimant submits the First Defendant could and should have noticed or inferred that the bus had been stationary to drop off a passenger opposite the restaurant he would still conclude that she was not negligent in failing to reduce her speed to a level where she could have stopped in time to avoid a collision with the Claimant pedestrian.
- The legal argument raised "avoidance potential" was not resolved by the Court on the basis that the Claimant's expert's calculations could only be relevant if the Court found that the First Defendant did not meet the standard of the reasonably prudent driver as she crossed the brow of the hill. If the Court had found she breached her duty of care later in the journey this would have meant Mr Smalley's evidence in this respect fell into the trap of "coincidence of location fallacy". In any event there are probably too any other imponderables to base any reliable findings on these calculations which are not otiose given my findings of fact.
HHJ Gosnell dismissed the claim.
