Pykett v Ebony Clement & Anor

On 27 October 2007, Ms Ebony Clement (who along with her insurers, NIG Insurance PLC, are the Part 20 Claimants in these proceedings) was involved in a serious road accident on Dalton Bank Road in Huddersfield. The accident occurred whilst she was in the wrong lane, trying to overtake Mr Graeme Pykett (who, along with his insurers, Aviva Insurance Limited, are the Part 20 Defendants) when she crashed almost head-on into a van coming the other way. All three vehicles were involved in the collision.

Mr Pykett was not injured, although his car was badly damaged. Sadly, for reasons unconnected with the accident, Mr Pykett has since died. His father, Robert Pykett, is the Administrator of his Estate. He originally commenced these proceedings, seeking modest sums by way of damages against Ms Clement. Those proceedings were subsequently settled, without admission of liability, by the payment of £9,750 to the Estate.

It is Ms Clement’s Part 20 claim which is now the live element of these proceedings. That claim arises because both Ms Clement and one of her passengers, Ms Gemma Carver, were seriously injured in the accident. Indeed, Ms Carver was paralysed from the hips down in consequence of the accident and NIG, Ms Clement’s insurers, have paid out to her sums in excess of £2 million.

It is accepted that Ms Clement was negligent, and it is admitted on behalf of the Part 20 Claimants that she must bear the major part of the responsibility for the accident. However, the Part 20 Claimants maintain that Mr Pykett contributed to the accident because, they say, he speeded up when Ms Clement began to overtake him and thereafter drove so as to prevent her from overtaking him and moving back into the correct lane. They claim that Mr Pykett was negligent in his driving and that this default caused or contributed to the collision. Accordingly, the Part 20 Claimants seek a contribution from the Part 20 Defendants pursuant to the 1978 Act.

The trial of liability in the Part 20 proceedings revolved around one single issue of fact: did Mr Graeme Pykett drive erratically, by speeding up and/or slowing down, so as to prevent Ms Clement pulling back into her own lane?

Although, as I have said, the issue is largely one of fact, it is appropriate to identify briefly the relevant legal considerations. A good starting point is the Highway Code, with which recommendations a reasonable motorist should usually endeavour to comply. Paragraph 168 of the Highway Code provides as follows:

A driver who, in breach of this guidance, drives in such a way so as to prevent the overtaking driver from completing the manoeuvre can, in certain circumstances, be liable to make a significant contribution to any damage caused by a resulting collision. In Ogden & Chadwick v Barber & Higgs [2008] EWCA Civ 1113, the Court of Appeal upheld the judge at first instance who, in his apportionment of liability, attributed 80% of the blame for the crash to the driver being overtaken, because of his deliberate attempt to prevent the overtaking manoeuvre.

Such a conclusion will, of course, always depend on the facts. In Smith v Cribben [1994] PIQR 218, a superficially similar case, Roch LJ said:

On behalf of the Part 20 Defendants, I heard evidence from Mr John Pykett, Graeme’s father and a passenger in the car with him, and Mr Steve Bottomley, who was driving his van immediately behind Ms Clement the whole way down Dalton Bank Road. In addition, there was agreed written evidence from Mr Domenico Gratino, the driver of the van, and from Mrs Julia Crank and her daughter, Laura Crank, who attended at the accident scene shortly after it happened. Finally, there was a written witness statement from Mr Graeme Pykett, admitted under the Civil Evidence Act.

On behalf of the Part 20 Claimants, I heard evidence from Ms Gemma Carver, and her mother, Mrs Sandra Carver, both passengers in Ms Clement’s car. Although there was also a witness statement from Ms Clement, Mr Exall properly conceded that he could not rely upon it, since the medical evidence made plain that, due to the injuries that she had suffered as a result, Ms Clement did not have a reliable recollection of the accident. That was the principal reason why it had been agreed that Ms Clement was unfit to plead to the charge of dangerous driving originally brought against her in the Crown Court.

I set out in Section 4.2 below a summary of the relevant events. This is designed essentially to be non-controversial. Much of the detail is taken from the (largely unchallenged) evidence of Mr Bottomley, who was not only an independent and patently honest witness, but was also, in my judgment, the person with the best view of what happened. Thereafter, at Section 4.3, I identify the competing evidence in relation to the issue which I have to decide. My findings of fact are set out in Section 5 below.

On the morning of 27 October, 2007, Ms Clement was driving a Fiat Punto, registration number R471 KEH. She was the girlfriend of Gareth Winn. With her in the car that morning were Gareth’s mother, Sandra Carver, Gareth’s sister Gemma Carver, and Gareth’s son, Jack Winn. It was about 9.45 in the morning. The day was overcast but it had not rained and visibility was quite good.

Before getting to Dalton Bank Road, the evidence of both Gemma and Sandra was that Ms Clement had already been involved in at least two incidents which demonstrated that, for whatever reason, she was not driving very well that morning. First, it appears that she jumped a red light. Gemma said: “she just went straight over. She did not look.” Later, Ms Clement was waiting at another set of traffic lights when the light turned green but she did not respond until someone behind beeped her. This was apparently because she was talking to the Carvers.

Dalton Bank Road is a relatively narrow road, in a largely rural location. It dips up and down repeatedly and, in its central section, goes through a number of sharp bends. On the stretch where the accident happened there was a bank with trees on the left hand side of the road, and an iron fence on the right hand side.

Three vehicles turned, one after another, into Dalton Bank Road. In front of Ms Clement was Mr Graeme Pykett, driving a Vauxhall Corsa, YE02 JHZ. Behind Ms Clement was Mr Steve Bottomley, travelling in a Mercedes Sprinter van. They ascended to a narrow bridge towards the top of a hill. The bridge was so narrow that traffic flow was regulated by traffic lights: in other words, traffic could only flow across the bridge in one direction at a time. It seems likely that the three vehicles were held at these lights.

After the lights, Dalton Bank Road runs along the top of the hill and then down towards some cottages, with a sharp left hand turn beyond. That part of the road is quite straight and, if there was no oncoming traffic, an overtaking manoeuvre could safely be undertaken shortly after the lights. On the DVD that was played at the start of the trial, a car overtook the vehicle filming the journey on that stretch of road. However, once the road reaches the left hand bend, the conditions change. The left hand bend is very sharp and, thereafter, the road dips and bends in such a way as to make overtaking a very risky business. After about a quarter of a mile, there is a series of S-bends, which are clearly marked, and which again render sensible overtaking impossible. Some of them are very sharp indeed, and would require significant braking. After the S-bends, there is then a straighter stretch of road, although it remains narrow and enclosed. That stretch ends with a curve away to the right. It was there that Mr Gratino’s van, coming round the corner, collided with Ms Clement’s Fiat Punto.

Mr Bottomley described how, once they were clear of the traffic lights at the bridge, the three vehicles accelerated away towards the sharp left turn. At some point, probably much closer to that bend than was safe, Ms Clement made her first attempt to overtake Mr Pykett. It may well be that this first attempt at overtaking carried on round the left hand bend and along the first winding parts of the road. Certainly both Gemma and Sandra told me that they were frightened by Ms Clement’s driving at this point. Eventually, a car came into view in the other lane and the Fiat Punto braked and pulled back into the correct lane. Mr Bottomley even saw some smoke from the Fiat’s tyres, although neither Gemma nor Sandra recalled her braking as hard as that. There is a dispute as to whether, during that first overtaking manoeuvre, Mr Pykett was speeding up and slowing down and, if so, why.

Once the three cars had passed through the S-bends, Ms Clement made a further attempt to overtake the Corsa. For whatever reason, the Fiat Punto was unable to gain any significant ground on the Corsa, although it continued in the wrong lane for some distance, around the slight bends and dips in the road. When the front wheels of the Punto were roughly level with the rear wheels of the Corsa, or perhaps a little further ahead than that, the white van driven by Mr Gratino came into view. Although Ms Clement endeavoured to take evasive action, it was too late and there was a collision involving all three vehicles.

In the statement that he provided to West Yorkshire Police, admitted into these proceedings pursuant to the CEA, Mr Pykett blamed Ms Clement for the accident. He said:

The point should be made that, at the time when this statement was taken, there was no suggestion that Mr Pykett was at least partially to blame for the accident by speeding up and/or slowing down, or otherwise driving erratically. That explains why the statement does not deal expressly with that or other, related issues. However, I do not accept Mr Exall’s submission that the statement showed that Mr Pykett did not see the Fiat trying to overtake: on the contrary, it makes plain that he did.

By the time Graeme’s father, John, came to make his statement in these proceedings, it was now being suggested that his son was partially to blame. He rejected that, saying in his statement:

In cross-examination, very few of the passages noted above were directly challenged. John Pykett confirmed that he had not seen the Fiat at the time of the accident and had originally thought that the Vauxhall Corsa had collided with the van. As he was not driving, so (unlike his son) was not looking in the rearview mirror, and as the Fiat did not get very far alongside the Corsa, that seemed to me to be entirely understandable.

Mr Gratino’s written statement made plain that, by the time he saw the Fiat Punto on his side of the road, an accident was inevitable. He said that he slammed on his brakes, held the steering wheel tightly and closed his eyes and hoped for the best. He concluded his statement by saying:

I have already said that, in my judgment, Mr Bottomley’s evidence was the most helpful of all because it was the fullest description of what happened, and came from the person who was in the best position to see the events unfold. In his statement prepared for the proceedings he described Ms Clement’s first unsuccessful attempt to overtake and said that this had caused him concern. He thought her driving dangerous. He said this:

Again, very little of that evidence was directly challenged in cross-examination. It was suggested to Mr Bottomley that the statement that he had given to the police originally was inconsistent with what he now said, because he had initially said that the front wheels of the Fiat were level with ‘just behind the driver’s door’ of the Corsa. He denied that there was an inconsistency, saying that this meant that the front wheels of the Fiat were still only a third of the way up the Corsa because the Corsa was a small car. It was also pointed out to him that he had told the police that the cars were running side by side for a period of ten seconds, although he was not asked any questions about that observation. Plainly, when he said ‘side by side’, he did not mean that the Fiat was anything other than level with the back part of the Corsa only.

It was put to him that the Corsa was speeding up during that period. He repeatedly denied it. It was put to him that, if the Corsa had not been speeding up, the Fiat would have had plenty of time to overtake. He said that the Corsa did not speed up and that the Fiat simply did not manage to overtake. Mr Bottomley agreed that if the Corsa had slowed down, the Fiat could have pulled in so the accident would not have occurred. But he denied that, if the Corsa had been speeding up, that prevented the Fiat from pulling in. He went on:

In addition, there was the agreed evidence of Julia and Laura Crank. They both attended the scene immediately after the accident and both heard Ms Clement say, as she drifted in and out of consciousness, “I’m sorry, I’m so sorry.”

The only evidence in support of the Part 20 claim came from Sandra and Gemma Carver. Mrs Sandra Carver recalled in her statement the first attempt to overtake. She said:

In her cross-examination, Sandra was taken through the photographs of the route. She reiterated that the Corsa had speeded up at the time of both the first and second attempts at overtaking. She agreed that the Corsa would have started from the red light at the bridge, and then accelerated along the hill before the first bend. She agreed that the Fiat was going at the same speed and would therefore have had to have accelerated to keep up with the Corsa. On the first attempt to overtake, she said she was not happy and was frightened because Ms Clement was trying to overtake on a blind bend. She confirmed that the road was narrow, up and down, with restricted visibility. She agreed that this made the road seem faster than it really was.

She said that, in relation to the first attempt at overtaking, Ms Clement did not gain on the Corsa and that a change of gear (as part of the acceleration process) may have led to her slowing down. She could not recall the hard braking that signalled the end of the first attempt at overtaking.

Sandra said that when she saw that Ms Clement was going to try and overtake again, she put her head down, and said ‘oh my God’ to herself. She was so frightened that she did not want to look. By reference to the photographs, she indicated that the second attempt to overtake was after the S-bends and therefore after the vehicles had slowed down to negotiate those S-bends. She said that both vehicles had accelerated to about 35-40 mph after the S-bends, and that Ms Clement made her second attempt at a time when the Corsa was speeding up following those S-bends. She said that the Fiat “seemed noisy to me all the time” and that the revs were high. She said that again Ms Clement did not gain any real distance on the Corsa, and that the Fiat did not really go faster than the Corsa at any time.

Ms Gemma Carver, who was so tragically injured in the crash, gave a broadly similar account to that of her mother. She deliberately chose not to sign her written statement although she (somewhat reluctantly) confirmed its accuracy. The conclusion is at paragraph 28:

In her oral evidence, Gemma left me in no doubt that she blamed Ms Clement for the accident. When asked whether Ms Clement had said to her at the time that the Corsa driver was at fault, she said: “He wasn’t. She was probably blaming him to try to get out of it.” A little later she said: “The only person I blame is her. I don’t blame the man [Graeme Pykett] in front.” And whilst I accept Mr Lemmy’s criticism of Gemma, that she was a difficult and sometimes hostile witness, such a reaction was, so it seems to me, entirely forgivable in the circumstances. Taken in the round, therefore, it might be thought that Gemma was unlikely to offer very much evidence in support of the Part 20 claim.

Notwithstanding that, Gemma did give some evidence which supported the suggestion that Graeme Pykett had speeded up during the overtaking manoeuvres. First, she explained what she could remember about the first attempt to overtake. Her recollection was, unsurprisingly, extremely patchy and, as she said, “I wasn’t watching the road. I just knew she was trying to overtake him.” She agreed that, on that occasion, following the bridge, there was the stretch along to the left hand bend and she would have expected the Vauxhall Corsa to accelerate there. She said that on that occasion, Ms Clement was about a car length behind the Corsa and that ‘she did not really get very far’. She did not know if she had changed gear. She thought that, as Ms Clement went to overtake, the Corsa had speeded up and so ‘she got back in to the right lane’. She did not think that Ms Clement had had to brake really hard to do so. She confirmed that she had been frightened by this and had looked at her mother to indicate that she was scared by how Ms Clement was driving.

As for the second attempt at overtaking, Gemma accepted – although she was still very vague about it – that it had occurred after the S-bends. She accepted that, after those bends, both cars would have accelerated again and she agreed that that is what the Corsa had done. She was unable to recall any of the details of the second overtaking manoeuvre although she thought that “the speed felt fast”. She maintained that the Corsa had speeded up, although she went on to say: “you shouldn’t overtake on a road like that.” She was unable to assist with any other details, and at one point suggested that maybe Mr Pykett was trying to stop Ms Clement from “doing something stupid”.

For the understandable reasons that I have already noted, Gemma’s evidence was not entirely reliable. Through no fault of her own, she did not have a particularly good view, and not being a driver herself, was unable to comment on some of the important matters in issue. Her recollection was vague at best. Moreover, throughout the relevant events, she was exchanging text messages with her father, and so she had her head down for at least some of the time. Her evidence must therefore be treated with considerable caution.

I find as a fact that it was unsafe to overtake on the stretch of Dalton Bank Road that follows the S-bends. There were too many dips and curves and the road was too narrow. The cause of the accident was the woeful driving of Ms Clement who made not one but two dangerous attempts to overtake Mr Graeme Pykett where she should not have done.

I find as a fact that Mr Pykett maintained a steady course and speed consistent with the changing road conditions, and did nothing to cause or contribute to the crash. To the extent that he speeded up after the traffic lights before the left hand bend, and again after the S-bends, I find that that was entirely appropriate and sensible, because it was what was required by the changing road conditions. I therefore conclude that the Part 20 claim against his Estate and/or his insurers should be dismissed.

There are a number of reasons for my conclusion that Mr Graeme Pykett did not speed up or slow down during Ms Clements’s dangerous overtaking manoeuvre, and instead maintained a proper speed and a proper course. I identify them below.

First, the weight of the evidence plainly points to that conclusion. That was the clear evidence of both Mr John Pykett, and Mr Bottomley. Furthermore, the latter was an entirely independent witness with the best view, and I find his evidence to be entirely reliable. The most significant part of that evidence (noted in paragraph 26 above) was very simple: he was driving a laden van along the road, driving at 35 – 40 mph when he could, but slowing down for the bends, and at no time had the Corsa or the Fiat got away from him. On the contrary, he remained the same distance behind them throughout the relevant part of the journey. That could only be explained by the fact that those cars were going at the same speed that he was. If Mr Bottomley was not accelerating unduly, then neither was Mr Pykett.

Secondly, in my view, the evidence of Sandra Carver and her daughter Gemma does not, on analysis, contradict the substance of Mr Bottomley’s account or support the case that Mr Pykett was deliberately speeding up or, in some other way, driving negligently. They have both stated in uncompromising terms, that Ms Clement was responsible for the accident and that, in reality, the highest they can put it is that Graeme Pykett “did not help”. Even at its highest, therefore, that is a long way off a sustainable allegation of negligent driving.

In addition, neither of them was in a particularly good position to see what was happening. Gemma was in the rear of the car texting her father and, as she agreed, she was “looking up and down” throughout the relevant part of the journey. Her mother was on the far side, with her head down for at least some of the time, because of her concerns about Ms Clement’s driving.

I note that, in their written statements, neither Sandra nor Gemma were able to correlate their assertion (that Mr Pykett speeded up) with the contours or other features of the road. It is plain from the photographs, the DVD, and Mr Bottomley’s clear description of the variable road conditions, that this was a road on which changes of speed, at least to an extent, were to be expected. For example, a car would go slightly faster on the stretch before the left hand bend, more slowly through the subsequent bends and very slowly through the S-bends, and then reasonably increase speed after the S-bends. There was nothing in the written statements of Sandra or Gemma to say that, even if Mr Graeme Pykett was speeding up, this was not the simple and natural response of a driver reacting to these changing features of the road.

When they came to be cross-examined, however, this point could be explored with them and, to a greater or lesser extent, they both accepted it. Certainly, Sandra accepted throughout her cross-examination that any acceleration on the part of the Corsa was explained by the particular road conditions. Thus she accepted that the Corsa accelerated after the bridge towards the left hand bend and that Ms Clement went at the same speed, accelerating to keep up. And she accepted that, on the second occasion, both cars had naturally accelerated once they had passed through the S-bends. On that latter point, at least, she was supported by Gemma’s evidence (see paragraph 35 above).

Accordingly, it seems to me that Mr Graeme Pykett did not deliberately accelerate or drive in such a way so as to endanger Ms Clement or her three passengers. He did not speed up and slow down in the negligent manner suggested by the Part 20 Claimants. To the extent that there were any changes in his speed, those were gradual, and were explained by the changes in the road conditions. Mr Pykett went faster along the stretch after the bridge, slowed down through the curved and S-bends section, and then speeded up again.

I find that this amounted to maintaining a steady course in all the circumstances, and was in accordance with paragraph 168 of the Highway Code. It put Mr Pykett in exactly the same position as the successful appellant in Smith v Cribben. It was not for him to slow down or to take other steps merely to assist Ms Clement to avoid the manifest dangers that her driving had created. That was so even if Mr Bottomley was right to say that, for as long as 10 seconds, the Fiat was in the wrong lane partly next to but largely behind the Corsa. She should simply have abandoned her second attempt to overtake and pulled in behind the Corsa, a manoeuvre which would have been very easy to execute.

The circumstantial evidence also suggests that Ms Clement has always been aware that she was wholly at fault for the accident and that, at the time, she ascribed no blame to Mr Graeme Pykett. That is plain both from her comment to Sandra (‘Was that my fault?’ noted at paragraph 28 above), and her repeated apology at the scene, heard by both Julia and Laura Crank (paragraph 27 above). It is again consistent with the conclusion that I have reached.

For the reasons that I have set out, the claim against the Part 20 defendants must be dismissed.