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Recent motor judgments provide insight on illegality defence and contributory negligence

  • 09 November 2021 09 November 2021
  • UK & Europe

A trio of judgments considering road traffic accidents have recently been handed down in the High Court, providing interesting commentary on the illegality defence, contributory negligence and judicial assessments of evidence.

Recent motor judgments provide insight on illegality defence and contributory negligence

Catastrophic injury claim considers illegality defence

In RO v Gray & Anor [2021] EWHC 2770, the High Court considered a claim in which a defence of illegality was pleaded and rejected.  The Court referred to the appropriate case law, and guidance set out in Patel v Mirza which is of ‘fundamental importance’ to the application of the illegality defence, by establishing a range of factors allowing a just policy outcome.

The Claimant had been seriously injured following a chain of events resulting in a confrontation with the Defendant driver outside of a nightclub, marked by violence and property damage on the part of both parties. The Defendant chased the Claimant, deliberately colliding his vehicle with the Claimant’s van, forcing the Claimant off the road and into a wall. The Claimant suffered a traumatic brain injury and other injuries. The claim for damages will be substantial. The Defendant was convicted of causing serious injury by dangerous driving.

His Honour Judge Bird dealt with the trial on the issue of liability only.  The claim pleaded assault and battery rather than negligence, with the Defendant relying upon the common law of defence of illegality as a complete defence. It was alleged that the Claimant had engaged in criminal damage, deliberately provoking, and antagonising the Defendant, prompting the aggressive response. HHJ Bird was satisfied that the Claimant’s conduct was serious enough to justify consideration of the illegality defence.

Reviewing the authorities, the fundamental question to be addressed was whether allowing the claim would damage the integrity of the law by permitting incoherent contradictions or produce inconsistency. Whilst the Claimant’s conduct was “deplorable and disgraceful”, it was noted that at the time of the collision, he was trying to escape.

HHJ Bird accepted that there was some causal connection, but the Claimant was “doing everything he could to get away” from D1’s chasing vehicle. This emphasised a “clear break in the chain of events between the Claimant’s wrongdoing and the loss he suffered.”

The Claimant “would not be receiving compensation as a result of his illegal conduct but because of the violent and unexpected act of the Defendant.” It therefore followed that the “policy that the court should not assist a claimant to benefit from his wrong is not engaged.  In addition, it was noted that if the defence was upheld, then the burden to provide care and rehabilitation would revert to the state and the NHS. To allow recovery in this instance would not produce inconsistency and disharmony in the law.

HHJ Bird concluded that the illegality defence did not apply to the facts of the case and judgment would be entered for the Claimant for damages to be assessed.

The full judgment can be found here.

Appropriate speed limits addressed in contributory negligence decision

Some drivers would argue that driving 20mph in a 30mph zone is a good example of safe driving. The recent claim of Parker v McClaren [2021] EWHC 2828 (QB) considered such a scenario, when a woman was catastrophically injured after being hit by a taxi.

Whilst the Claimant could not offer evidence herself due to her injuries, it was alleged on her behalf that the Defendant taxi driver was travelling too fast and that he failed to keep an adequate lookout.  Her counsel suggested that she had walked into the road, and only started to run across the road when she saw the Defendant’s car approaching.

The Defendant was the only witness able to give evidence, and his evidence that the Claimant was running at the time of the collision was accepted by Mr Gullick QC, sitting as a Deputy High Court Judge. After considering expert evidence and literature, the judge concluded she was in the road for approximately three seconds before the collision occurred.

The Defendant was an experienced taxi driver. It was his case that because of the road layout he would not have been driving at more than 15mph (the speed limit was 30mph). Given the location, he would be keeping a lookout for pedestrians, it was a city centre late at night, surrounded by pubs and bars. The Defendant did not remember seeing the Claimant on the pavement before she entered the road, only seeing her when she was in the road in front of his car and his headlights lit up her face. He then braked immediately.

Based upon evidence, the judge found on the balance of probabilities, that the Defendant was travelling at 20mph at the point of impact and slightly more before impact. Whilst the Defendant thought he was travelling at around 15mph, he had not looked at the speedometer and this was only a feeling. The accident construction evidence supported a speed closer to 20mph.

The judge concluded that the Defendant was travelling too fast in the circumstances; a safe speed would have been 15mph. Had the Defendant been travelling at a speed which was 80% of his actual speed, the Claimant would have crossed the road safely and the accident would not have occurred. The Defendant did not fall below the standard of a reasonable driver in not seeing the Claimant until just before the impact. He was keeping a lookout and was taking care to ensure an accident did not occur.

Regarding contributory negligence the Defendant’s car was there to be seen and the Claimant created a dangerous situation by stepping into the road when the car was so close. She could have easily waited for the car to pass before crossing. Had she looked and waited the accident would not have occurred. Taking into account causative potency and blameworthiness of the Claimant and Defendant, the judge found that liability should be apportioned equally between the parties.

Judgment was therefore awarded to the Claimant but subject to a 50% deduction for contributory negligence.

The full judgment can be found here.

Photograph preferred to witness evidence after Claimant’s foot is ran over

The evidential weight of objective photographic evidence versus witness evidence given under cross-examination is an issue which many practitioners face when proceeding to trial. In the recent decision of Scumaci v Martin [2021] EWHC 2833 (QB), the Claimant appealed against the dismissal of his claim at first instance, as the photographic evidence was preferred.

The Claimant had been inspecting his rental car in a car park when the Defendant, exiting the car park via the one-way system, drove over the Claimant’s foot. The issue at trial was whether the Defendant had negligently driven too close to the Claimant, or whether the Defendant had left sufficient room.

Measurements showed that there was a total leeway of 2.8 metres where the accident occurred. If the Defendant’s vehicle was driven in the centre of the road, equidistant from the curb on one side and the parking bays on the opposite side, the distance on either side of the car would be 1.4 metres.  The police officer’s contemporaneous notes stated that the Claimant had initially reported standing up from inspecting his car and stumbling into the Defendant’s car, whereby the rear tyre ran over his foot.

However, at first instance before Master Sullivan, the Claimant stated this was not correct. His version was that he had stood up from a bending position, moved his leg a few inches and turned the angle of his foot slightly, and was then hit and dragged to the floor. By contrast, the police officer’s notebook and subsequent oral evidence was that the Claimant had stated it was a freak accident, and the Defendant was not to blame. The Defendant’s case was that he had been driving straight and his driving had not been negligent.  However, it was held that both Claimant and Defendant were not reliable witnesses.

The contemporaneous notes and a photograph were described by Master Sullivan as the best evidence available. The photograph showed the Defendant’s vehicle stopped a short way from the Claimant after the accident. Master Sullivan accepted that this meant the Defendant had been driving very slowly through the car park, at less than 5mph.

She also accepted the version of events in the police notebook, rejecting the Claimant’s evidence. The Defendant had been driving in a straight line and there was a gap between his car and the Claimant, which was enough to not be negligent. The Claimant’s claim was therefore dismissed.

On appeal before Mr Justice Spencer, the Claimant submitted that given the Defendant’s unreliable evidence at trial, Master Sullivan should have concluded that the Defendant’s car was not more than 3 feet (around 0.9 metres) from the end of the parking bays, the Claimant was within this 3 feet and the Defendant was therefore driving too close to the Claimant.

Mr Justice Spencer described this assessment of the evidence as too simplistic. The task of Master Sullivan was essentially an evaluative one; whether in her judgment enough room had been left. The photograph showed where the vehicle had come to a stop and could therefore be properly used to establish whether sufficient room had been left.

Master Sullivan had heard and considered all of the evidence, and her decision was not one which no reasonable judge would have made. The Claimant has not shown that Master Sullivan’s decision was wrong. Whether another judge would have reached the same conclusion was “not the point” and therefore, the Claimant’s appeal was dismissed.

The full judgment can be found here.

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