Brown v Fisk & Ors [2021] EWHC 2769 (QB)

Subject/issues: Was a club yard a public place?

C was injured in a club’s yard by D1’s car. D1’s insurer, D2, refused to indemnify D1. C commenced proceedings against D1, D2, the MIB and the government. D2 sought summary judgment on the basis that C’s claim had no reasonable prospect of success on the basis that the yard was not a public place and accordingly s.151 of the RTA did not apply: if it was a public place then D2 would have been obliged to meet any judgment against D1 under that provision. The Master considered in detail the law on whether somewhere was a “public place” and heard detailed evidence around who used the place in question. The Master came to the conclusion, on the evidence, that the yard was not a public place and summary judgment was granted to D2.

DACB Comment:

In reaching his decision, the Master declined the claimant’s invitation to adopt a “purposive” interpretation to comply with the European Motor Insurance Directive 2009/103. In doing so, the Master affirmed that the compulsory requirement for third party motor insurance cover for accidents on a “road or other public place” will not be interpreted more widely, as had been laid open by the ECJ decision in the case of Vnuk. Whilst the claimant was given permission to appeal, in the post-Brexit world it is unlikely that we will now see any widening of the phrase “road or other public place”.

Annabel Lingham, Associate

Scumaci v Martin [2021] EWHC 2833 (QB)

Subject/issues: A drivers duties when passing a pedestrian in a car park

An accident occurred in a car park near Lake Windermere when D ran over C’s foot causing him to suffer what was described as a very nasty fracture to his foot and ankle, leaving him with a long-term injury. While C’s version of events as given in evidence differed from that given to a police officer at the time (though C denied having said to the officer what he was alleged to have done) the question for the trial judge was, in essence, whether D had been driving too close to C. The case contains a debate about the extent to which a safe distance is a set distance or circumstance dependant, but at trial the judge held that D had not been driving too close. C appealed. On appeal the judge held that the trial judge had been the person best place to evaluate the evidence and that their judgment was not one that no reasonable judge could have come to.

DACB Comment:

A positive outcome from a defendant’s perspective where the claim has been successfully defended. However given the fact that the claimant was a pedestrian and this was a busy, small car park, there would always be a high duty of care on the defendant to keep a proper look out. Contradicting contemporaneous evidence made to the police at the time of the accident ultimately brought into question the claimant’s credibility.

Stephanie Welsher, Partner

Vincent v Walker and Another [2021] EWHC 536 (QB)

Subject/issues: Liability of a driver to an inattentive pedestrian using a crossing incorrectly at night

A claim was brought against the driver of a car, following a road traffic accident in which a pedestrian was hit as he crossed the road on a pedestrian crossing. The accident had taken place when it was dark and the pedestrian had not used the automated traffic lights. Evidence from D and an independent witness established that C had not been looking when crossing the road. The court decided that D had not, as had been alleged, failed to scan the road adequately when approaching the crossing. C’s claim was dismissed.

DACB Comment:

Claims brought by pedestrians are often more difficult to defend in full; a split liability being the likely outcome in such situations by virtue of the fact that the motorist clearly has the potential to do more harm to others through a ‘split second’ loss of concentration or consideration of the surroundings, so carries the greater expectation of risk management. It is therefore refreshing when the court does so find for the driver, as here. However, this case is also illustrative of the evidential expectations required to disprove such a claim. Here, the claimant could not recall the specific circumstances leading up to the collision. Following a thorough examination of the evidence, the court was very much reliant upon the evidence given by an independent witness who saw C simply ‘walk out in front’ of D, and that of D himself who impressed the court with his ‘careful and thoughtful’ presentation of his own account.

Peter Newstead, Associate

Chan v Peters and Advantage Insurance [2021] EWHC 2004 (QB)

Subject/issues: Standard of care in an accident involving a minor pedestrian

C, aged 17 at the time of the accident, was a pedestrian with whom D, the driver of a motor vehicle, collided. The accident occurred outside a school, in good visibility at around lunchtime and it was not raining. There was a steady stream of traffic at the time of the accident, but the road was not congested and traffic was flowing freely. There was a parking bay on the same side of the road as the school and as D approached the location these were on the nearside. At the time of the accident, there were two vehicles in the parking bay. One was a double-decker bus and the other was a car. At the moment of the accident the bus was ahead of the car. Some of the events were caught on CCTV footage. In addition to the parties the court heard evidence from a number of independent witnesses.

The judge undertook a careful analysis of the evidence and D’s conduct while driving, making the following key findings of fact:

• After coming up the pathway from the School, C saw his friends, to whom he waved, and decided to cross the road to see them;
• Around 20 seconds before the collision, C moved off the pavement into the parking bay, between the bus and the car. He remained in the parking bay, behind the car from the D's point of view, for the next 20 seconds or so, until about 0.6 seconds before the collision, when he started to jog into the road;
• C did not look right in the direction of the D's car before he set off into the road and did not see D’s car
• At the time of the collision, D was driving at about 25 mph, well within the 30 mph speed limit. D was not covering the brake pedal in the moments leading up to the accident, and was not slowing down;
• D was keeping close to the white lines in the middle of the carriageway to give the parked car and bus as wide a berth as possible;
• From the point at which D rounded the curve in the road and the locus came into view until the moment of the collision, C was obscured because he was standing in the parking bay between the car and the bus. He was not so far forward in the parking bay that he could be seen in front of the car. Given the sitting position of D in the driving seat, C's height and the height of the roof of the car, only a very few centimetres, at most, of C would have been visible above the car. This would have reduced to nothing or virtually nothing by the point at which D was 50m from the locus. C was not conspicuous;
• D did not see C until he moved out into the road beyond the offside of the car, 0.6 seconds before the collision;
• The collision consisted of C's leading leg hitting the front nearside of D's car, next to the front wheel arch and the front corner of the vehicle. The force of the contact and the momentum resulted in C colliding with the bonnet and the front windscreen of the car before being propelled along the road, coming to rest by the back of the bus;
• D slammed on the brakes as soon as she saw C and came to a halt. D's response time was 1.0 second.
• The judge found that D had not been negligent for the following reasons:
  • D did not fail to look at and take account of her surroundings in the manner that should be expected of a reasonably competent driver
  • He rejected the contention that D was negligent in failing to spot C, and to take precautionary measures, until C emerged from behind the car 0.6 seconds before the accident.
  • D acted in the manner of a reasonably competent driver in the way that she reacted once she perceived that C was jogging into the road.
  • In the circumstances, a reasonably competent driver would not have stopped in time and avoided the accident entirely.

DACB Comment:

The case demonstrates the fact that the court does not demand a counsel of perfection from drivers and that there are times when they cannot avoid an accident. The claimant had acted in such a way that left the defendant with no opportunity to avoid the claimant and prevent the accident. It shows too the importance of a forensic analysis of the evidence of lay witnesses.

Peter Allchorne, Partner

Dougan v Bike Events Ltd (High Court) (Manchester District Registry) (11 June 2021)

Subject/issues: Duty of care expected of a cyclist participating in an even on a road

C, a participant, brought a claim against D the organiser of a non-competitive charity cycling event on open roads. During the ride C was cycling slightly behind and to the offside at 15 - 20 mph as they approached a sharp left-hand bend. The bend was a blind bend in the sense that the exit was not visible when entering it. C was negotiating the bend, when he lost control of his bicycle and collided with a vehicle being driven in the opposite direction, suffering a severe head injury. No fault was alleged against the driver of the other vehicle. On the approach to the bend the word “slow” was marked on the road surface twice about 160 metres and 75 metres from the bend and there were two red triangle signs warning of a left-hand bend and a junction ahead with an additional red warning sign saying “reduce speed now” beneath the first of these. There were two chevron signs which warned of the presence of a sharp deviation or bend around to the left, one of which was obscured by vegetation. C alleged a lack of a proper risk assessment and an absence of sufficient warnings or a marshal on the bend: D denied liability.

The judge found that C had lost control due to riding on the bend too quickly for its severity and that D was not at fault.

DACB Comment:

Whilst the court found in favour of the defendant, they were still criticised for their lack of evidence regarding the risk assessments which were undertaken, however were saved by evidence as to pre event information and warnings given to participants. It was stressed that all riders must comply with the highway code, which required them to obey all highway signs. Anyone looking to pursue a claim against the organiser of a sportive on an open road has to look at the riding and conduct of the claimant cyclist to make sure that they have complied with their own responsibilities as a road user, which is not removed because of participation in a mass event.

Caroline Hall, Partner

O'Connor v Luton Borough Council [2021] EWHC 1691 (QB)

Subject/issues: Condition of the highway and point of loss of control

C was injured when her motorcycle collided with a car. C alleged that as she left a petrol station she lost control due to the dangerous state of the road and collided with the car. The court had to consider two issues:

• Whether the condition of the road had been the cause of C’s loss of control.
• Whether the highway at the relevant location had been in such a condition that it had been dangerous to traffic, and whether that danger had been the cause of C’s loss of control.

On the evidence the court was not satisfied, on the balance of probabilities, that C had ridden over the particular defect complained of and that the facts of the accident did not point, inexorably, to a significant problem with the carriageway. The court also held that, even if the accident had been caused by C riding over any defect in the road and losing control as a result, her claim would failed as the highway had not been dangerous.

DACB Comment:

This case confirms that just because there is a defect in a road, it is not necessarily dangerous as a matter of law which is an issue for the court to decide. The judge here held that “A motorcyclist exiting the garage would be travelling at a very low speed and would have ample opportunity to see the defect and avoid it” and was also persuaded by the investigating police officer’s conclusion that the condition of the road did not explain the accident and also the lack of complaints or reports about these defects.

Nick Mahoney, Partner

Wallace v Roache [2021] 7 WLUK 462

Subject/issues: Duties of a cyclist on a cycle path and a motorist crossing the path

(Note: The pursuer in the original action is referred to as C, the first defender as D)

In this case before the Scottish courts, C was cycling on a national cycle path when, at an intersection with an access road, they collided with a vehicle using that access road. The access road had priority over the cycle path and there were prominent give-way signs on the cycle path in both directions. As C approached the intersection they were travelling at approximately 20 mph but did not brake or slow down and collided with the front nearside of D’s vehicle which had been travelling at 15 mph. D was looking out for cyclists and had seen the cycle path warning sign. D had a view of the cycle path to his right and he wanted to clear the edge of a hedge which ran parallel to the cycle path so that he also had a line of sight to his left. As he continued moving forward to gain a line of sight he was struck by C's bicycle. C’s claim failed at trial and appealed.

The Sheriff Appeal court rejected the appeal holding that C’s argument did not recognise the finding of the sheriff that the accident had been caused, fundamentally, by C’s negligent and irresponsible failure to comply with the give way sign. The suggestion that C was less culpable or blameworthy because he was on a leisure path designed to separate him from motor traffic and was only a danger to himself had no substance and it was incorrect to suggest that a central feature of the case was that the accident occurred at an intersection of a national cycle path rather than at a road. The legal duty on C to take reasonable care and to comply with road signs was no less when cycling on a cycle path than on a road. To suggest that D should have stopped at the intersection and edged out was to suggest a “counsel of perfection” and as such an attempt to impose a higher standard on D than the law required.

The Appeal court also found that if, contrary to the court’s findings, there had been any liability on the part of D, liability would be apportioned as to 85% to C and only 15% to D.

DACB Comment:

This case is a clear demonstration by the courts that vulnerable road users, like all others, are expected to exercise an appropriate duty of care and to obey road signs and that this duty is no less when cycling on a cycle path than on a road: if they do not comply with road signs then they may not succeed in any claim should they suffer an injury in an accident. The court noted that the driver of the car had met the standard of care expected of him and had not been negligent: it was the pursuer’s failure to comply with the road signs applicable to him that had caused the accident and to seek to lay the blame at the door of the defender was to suggest an unreasonable “counsel of perfection”.

It would be interesting to consider whether the proposed changes to the Highway Code might have resulted in the claim being differently argued. Whilst it would be a matter of pure speculation, my view would be that the same result would have been reached even had the new Code been in place.

Rachel Rough, Partner