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Court of Appeal highlights the importance of not imposing an unrealistic duty of care on motorists

Horner v Norman
Court of Appeal
21 October 2015

Peter Blake, Associate Solicitor in DWF's London office, acted for the defendant and her motor insurers, Skyfire Insurance Company Limited (represented by 1st Central Insurance Management Ltd as claims handler) in this case which recently came before the Court of Appeal. It was the claimant pedestrian’s appeal against the High Court’s dismissal of his claim arising out of a road traffic accident in January 2010. In a judgment unanimously upholding the first instance decision, the Court of Appeal provides a useful reminder of the importance of not imposing an unrealistic level of duty on motorists and demonstrates that expert evidence will not necessarily be determinative when high quality lay evidence is adduced.

Background

On 12 January 2010 the claimant pedestrian ran across a dual-carriageway road and was knocked down by a car driven by the defendant. The evidence before the High Court at first instance was that the claimant had sprinted from the nearside kerb and that it had taken him about 2 seconds to reach the point of impact. The claimant had almost managed to cross the entire two lanes, but unfortunately the front offside of the defendant’s car struck his trailing leg and the claimant was thrown on to the bonnet and against the windscreen before coming to rest in the central reservation.

The claimant himself had no recollection of the accident, but there were two witnesses who could give first-hand evidence, the defendant herself and the driver of the following car. There was also evidence from the Police report and each side called an expert in accident reconstruction. The claimant alleged that the defendant was negligent in failing to apply her brakes as quickly as could reasonably be expected. He contended that had the defendant done so her speed would have been sufficiently reduced to enable the claimant to pass safely in front of her.

There was mention in the police report of the road surface being icy. The accident reconstruction experts both put forward various calculations based on co-efficients of friction, and which varied depending on whether the road was covered in ice, had patches of ice, or was just damp. The defendant’s evidence was simply that she had braked as hard and as fast as she could, and this was confirmed by the evidence from the driver behind her.

The High Court accepted that the defendant had braked as hard as she could and that her actions accorded with those to be expected of a reasonably competent and careful driver faced with an emergency. It expressly rejected the suggestion that the defendant had not braked at all or had braked too late and it found that the defendant was not liable to the claimant. It went on to indicate that had it been required to consider the question of the claimant’s contributory negligence, it would have assessed the claimant’s share of responsibility at 75%.

The claimant appealed the High Court decision in respect of both liability and its assessment of contributory negligence in the alternative. He contended that the High Court’s findings were flawed and contradictory. Neither accident reconstruction expert had thought that the co-efficient of friction was consistent with there being patches of ice and there was no sufficient basis for a finding that there were patches of ice on the road. He also submitted that the fact that the defendant’s car had come to rest within a few yards of the collision showed that the road could not have been icy. 

Court of Appeal findings

Lord Justice Moore-Bick, Lord Justice Lewison and Sir Timothy Lloyd dismissed the appeal. The High Court had properly considered the evidence in the round and was alive to the importance of not imposing an unrealistic level of duty on motorists. The police report indicated the presence of frost and ice on the road and the Judge was entitled to find that there were patches of ice on the road and entitled to doubt whether calculations of speed and braking could be approached with any confidence. The Court of Appeal also commented that, in the event that the defendant had been found liable, it would have been reluctant to overturn the earlier finding of the claimant being 75% contributory negligent. 

Comment

The Court of Appeal’s recognition that the High Court had been alive to the importance of not imposing an unrealistic level of duty on motorists is clearly a nice reference point for insurers to use in their defence of future claims of this nature and serves a reminder for trial judges to be realistic in their evaluation of a defendant driver’s actions. It is also useful to note that, although obiter, the court would have been “reluctant to depart” from the assessment of contributory negligence at 75% had the defendant been found liable. A finding of such a high degree of contributory negligence in Car v Pedestrian cases is very unusual and this case represents a high water mark in cases where a pedestrian sees a vehicle approaching and recognises the risk, but nevertheless makes a decision to ‘go for it’ and try to cross a carriageway

A more subtle point to take from this judgment, but one of perhaps more practical importance, is that it gives claims handlers and lawyers an opportunity to reflect on how they weigh up expert and lay witness evidence when assessing liability.

When dealing with this type of case it is not unusual to get bogged down in a discussion of reaction times, braking distances, and impact speeds etc. As a result, there is a tendency to elevate the status of the evidence provided by accident reconstruction experts. Their conclusions may be at odds with what the lay witnesses say they observed at the scene yet they can be given more weight in the minds of practitioners. This might be because the expert opinions are usually expressed with reference to mathematics whereas we have all had experiences of lay witnesses being unpredictable at trial.

Often though there is little hard evidence for the experts to work from so it is perhaps inevitable that on occasion evidential gaps are filled by assumptions and opinions. This was very much brought into focus within the High Court judgment when the claimant’s expert was criticised for his “willingness to become an advocate of the claimant’s case” and for “advanc[-ing] opinions which were not answers to questions asked of him”.

Ultimately, in this case the conclusions of the accident reconstruction experts simply did not fit with what was observed at the scene by the lay witnesses, and those expert conclusions were also based on assumptions and variables which could not be proven either way.  Given the uncertainties, the trial judge simply would not accept that any forensic analysis of liability was reliable, and instead preferred to base his decision on the clear recollection of both the policyholder and the driver of the car behind her that she braked in time. The lay witness evidence effectively ‘trumped’ the accident reconstruction expert evidence and it provides a salutary lesson to practitioners regarding the importance of gathering quality lay witness evidence early and using it as the starting point for any assessment of liability.

Contact

For further information please contact Peter Blake, Associate on 020 7645 9567 or by email at peter.blake@dwf.co.uk 

By Peter Blake

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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