Groves v Studley

On 1 October 2013 Master Leslie ordered:

The case arises from a road traffic accident which took place just after midnight on 4 July 2010. The First Defendant (D1) drove a Peugeot 306 GTI 6 motor car out of a lay-by on the A458 Welshpool to Shrewsbury road. D1 then drove a distance of some 420 metres towards Shrewsbury. Whilst still in the lay-by, and very shortly after D1 had begun this journey, the Claimant (C) was carried on the Peugeot’s bonnet, hanging on to a customised raised hinge where the bonnet meets the bottom edge of the front windscreen. C fell off the bonnet near to the bus stop as a result of D1 swerving his car so as to dislodge C. C sustained catastrophic brain damage as a result of colliding with the road surface and/or the kerb.

Given that primary liability has been admitted on the basis that D1 “made an error of judgment that was outside of the range of reasonable responses when he manoeuvred his motor car in such a way as to cause Mr Groves to fall off” (Footnote: ¹), the burden of proof is on the Defendant. The Defendant who has taken part in the proceedings is the Second Defendant (D2) who are the insurers concerned under the Road Traffic Act 1988.

The main factual issues concern:

Consequent on the factual findings, the court then has to determine issues of causation and blameworthiness so as to decide what if any deduction there should be in C’s damages by reason of contributory negligence.

On 15 April 2011 D1 pleaded guilty to offences of dangerous driving and driving whilst disqualified. He was sentenced by a judge at Shrewsbury Crown Court to 18 months’ imprisonment for dangerous driving, plus 4 months’ imprisonment consecutive for driving whilst disqualified, plus 2 months’ imprisonment consecutive for failing to stop after a road traffic accident. The total period of imprisonment was 2 years and D1 was disqualified for 5 years until an extended retest is passed.

D1 had an extensive criminal record, including but not limited to offences of driving without due care and without insurance, driving with excess alcohol and driving whilst disqualified and without insurance and for failing to stop.

The judge (Judge Barrie) said:

“I deal with you on the written basis of plea that was agreed on the last occasion that you were before the court, which is based on what I have read from the independent witness, Mr Marsh, who saw what happened. It is clear from what he says that it is right to deal with you on the basis that you did not try to hit Mr Groves, but swerved to try to avoid him and he jumped onto the bonnet of your car. I accept that as being the start of the events that led to the injuries that he suffered shortly afterwards.

You drove off. What Mr Marsh says is that near to the exit he saw the brake lights come on and then the car went round the bend like you were trying to shake him off. You pulled off at speed and also when you left the exit of the lay-by you didn’t stop at any time. You drive off. You drive more than 500 metres (Footnote: ²) with him on the bonnet of your car and then you swerved and threw him off the bonnet to the verge.”

The witnesses I have heard are:

The evidence as to how C arrived in the lay-by is uncontroversial. That evidence was given by Jennifer Groves and Anna Stealey. Both these witnesses agreed that C could be a bit of a lad and got into odd scrapes. On the evening in question Jennifer Groves was the designated driver of a white car. She had picked up in Shrewsbury the Claimant, Anna Stealey, Kevin Wynne (Jennifer Groves’ partner) and a man called Kevin Jones. Before he was picked up the Claimant had said he had had two pints to drink and during the evening he had another five pints or so, but was described as not being in a bad way. The five people in the car went to Welshpool and spent the evening in various public houses. They left Welshpool at about 12:20am en route back to Shrewsbury. They then stopped at Dinky’s Diner to get some food. Jennifer Groves parked her car in the lay-by near to the toilets. These are on the other side of the lay-by from the café. (Footnote: ³) There were three tables outside the café. The five occupants of the white car sat at one of the tables. According to Jennifer Groves the table nearest the hatch was parallel to the hatch and so was the middle table. The third table was at right angles to those two tables. This is not as shown on subsequent photographs where the middle table is also at right angles to the table nearest to the hatch. Jennifer Groves was supported by Anna Stealey in the evidence as to the configuration of the tables. However I believe on balance that their recollection is incorrect since this was a café where Mr Phillips worked for many years, and he said that the tables were always in the configuration shown on the photographs. Jennifer Groves’ recollection is that she was sitting on the bench nearest the hatch with her back to the other benches, Anna Stealey was sitting next to her, Kevin was opposite and the Claimant was behind her sitting on the middle table. Anna Stealey at first said she did not remember the configuration of the benches but thought that her party was on the middle bench and she was facing the hatch. She said she thought that C was sitting on the table. I accept that Jennifer Groves and Anna Stealey were sitting facing the hatch and I accept Jennifer Groves’ evidence that this was the table nearest the hatch. (Mr Phillips’ evidence on this point was to the same effect). This group had ordered food when D1’s Peugeot entered the lay-by from the Welshpool direction and came to rest close to the tables, but a few feet away from them.

As regards D1 and his party, they had been to Barmouth. They did not stay there long. D1 had not drunk anything. Three cars left at the same time in this group. They were: D1’s Peugeot in which Charlotte Cook was the passenger, Dave McInnes and his girlfriend Laura Cleeton who were in a Citroen motor car and Luke Galloway in a silver Vauxhall driven by Dave McDonald. The Peugeot arrived first at the lay-by and the other two cars pulled up alongside it across the lay-by.

Up to this point there is no serious disagreement as to the evidence and there was no indication of any trouble.

There are three potential explanations for this:

C’s primary case is explanation 1, failing that explanation 2. D2’s case is explanation 3.

I shall consider the evidence in respect of this question and subsequent events in three main sections. The first section is up to the point where the two cars other than the Peugeot leave the lay-by. The second section is from that point until C first ends up on the bonnet of the Peugeot. Finally, I shall consider from that point until C was thrown off the bonnet.

Jennifer Groves’ evidence in summary is:

Anna Stealey’s evidence in summary is:

Luke Galloway accepted that he was incredibly drunk. He said there were parts of the night and day which he could not remember. He said the conversation about the trainers started off as banter. He said that C said to him “yeah I got a pair up my arse”. Also that C bent over to show his bottom to him. However he said that at this stage it was all a laugh and banter. But after that C became intimidating. He said he was a bit intimidated but he wasn’t scared. He could tell that C was not going to let it stay at banter. Dave McDonald shouted for him to get into the car. He did not know if Dave McDonald was in a hurry to get back because he wanted to get back to his girlfriend, but that wouldn’t have surprised him. He accepted that as they drove off and C started running after them, he opened the door and said something like “come on, come on”. He did not hear any words from C as he chased after the car.

Laura Cleeton said in summary:

Mr McInnes’ police statement dated 15 July 2010 said:

“I now recall Luke announcing that he had left his trainers down in Barmouth…I heard some sort of response. I am not even sure whether it was even a male or female talking but Luke then said “I’ve a size 8 foot here that can go up your bum”. Again this was said only in jest and I certainly didn’t anticipate anything that was going to happen when I was sat in the car. Due to my position I couldn’t actually see what was going on. I now became aware of Jamie and Luke getting back into the car and that Dave McDonald was keen to get back and see his girlfriend. I don’t recall there being any specific rush to leave other than Dave wanting to head off. I shouted through my open passenger window to John to see what he was doing. He said that he was waiting for his burger and would catch up. Even at this point I was (not) aware of anything going on or any friction between Luke and anyone else. When everyone was in the two cars we began to drive away. I recall Luke leaving his door open. I presumed because he was drunk. David McDonald drove off in front and as I was leaving the main road I looked in my rear view mirror to see someone right behind my car. They were running but any sound they were making was drowned out by the sound of my diesel car….it appeared clear to me that they were trying to catch me and this eventually amused me somewhat…”

Mr McInnes confirmed that he did not see or hear anything suggesting physical aggression and the first that he knew which was untoward was when he realised that the car was being chased up the lay-by.

James Phillips said in summary:

He works a 6pm to 6am shift at Dinky’s Diner. He was in the kitchen behind the hatch and heard a loud noise. He could tell that things were getting a bit raised. He said that he saw C coming to the hatch and then turning round. He was shouting at the cars. They weren’t moving. Shortly after Mr Phillips left the kitchen behind the hatch and went straight to the middle bench and sat on the seat nearer the lay-by. He could see the gold Peugeot near where he was sitting. Two vehicles were driving off down the lay-by. C was chasing two cars. C was about halfway from the café to the end of the lay-by. Two cars were going down the lay-by, one was near the end and the other was behind it. As C was chasing the cars he was shouting, but Mr Phillips could not hear clear words. After the cars left the lay-by C turned and ran back down the slope at the end of the lay-by to a point which Mr Phillips had marked “D” on a plan. He then stopped and started walking.

Charlotte Cook had only a vague recollection when she made her witness statement to the solicitors, and she accepted that her recollection as to detail was not very good in the witness box. She recalled an angry exchange between Mr Galloway and C and that there was no physical attack. She said in her police statement that C started to run after the cars and the women told him to stop it and sit back down. She also said in that statement that C seemed really angry. By this stage she was standing outside the Peugeot motor car.

Based on the above evidence I make the following findings of fact on the balance of probabilities:

These findings of fact are also supported by the witness statement of Ricky Marsh. In that witness statement, dated 4 July 2010, Mr Marsh said:

“The next thing I heard was the was the male who had come from the white vehicle stood up and his arms were by his side his fists were clenched, shouting “come on” at the two dark vehicles which were parked in front of the Peugeot. The two dark vehicles drove off slowly and this male then ran off after them, the gold Peugeot was still parked up….I went out and saw the female in the white vehicle she said “he is always doing this looking for fights, I have had enough.” (Footnote: ⁵)”

I shall start this section with the evidence of Mr Phillips. This is because, although my impression was that all witnesses were doing their best to give honest testimony, Mr Phillips was the most impressive witness; in addition he was wholly independent. I have already found (Footnote: ⁶) that C ran part of the way back down the lay-by and was in a wound up state. Mr Phillips was asked by Anna Stealey to make a 999 call. We have a transcript of that call. With one qualification Mr Phillips’ evidence as to how C ended up on the bonnet of the Peugeot is consistent with that call.

I shall briefly review the evidence of the other witnesses. I shall do the same with the expert evidence. However, the oral evidence of Mr Phillips as detailed above encapsulates the material findings of fact, namely:

These findings are again supported by the witness statement of Ricky Marsh who, after the two vehicles had driven off from the lay-by, stated:

“I went into the kitchen and then I heard someone shouting at the gold Peugeot. I didn’t know what it was. I think this male who had come back, this male was the one from the white vehicle. I then saw the male from the gold Peugeot shout at the female from the vehicle “get in the car”. This was about three times. She replied “we haven’t had our food yet”. I said “it’s nearly done”. She got in the car without the food. The male from the Peugeot got in his car. He revved the car. He then (started) to drive off. I saw the male from the white car now at the side of the Peugeot and this vehicle swerved to avoid hitting him. I would say to give him some space. I then saw the male from the white car jump in front of the Peugeot. The next thing he was on the bonnet and saw the car drive off down the road.” (Footnote: ¹⁰)

Jennifer Groves accepted that the Peugeot occupants’ food was ready but they did not collect it. She said that D1 said to Anna Stealey that they had better calm Ian down. She also accepted that neither occupant of the Peugeot had said anything in the earlier altercation with Mr Galloway. She had no recollection of C threatening the Peugeot occupants. In her witness statement she said that D1 began to shout abuse down the lay-by at C. He angrily asked his girlfriend to get back in the car and when she wouldn’t he screamed at her until she did. He completely lost his temper and was very angry and intimidating. She accepted that this was not in her police statement made a few hours after the accident (when she said she was still very shaken up), and that there was nothing in the police statement suggesting that D1 changed suddenly from being sensible to aggressive. She denied that C was abusive and waving his arms. Her evidence was that then D1 accelerated away. He drove about three car lengths and then stopped about two car lengths from C. He then started again and hit C. She said it was clear that C was not going to get out of the way from the way he was acting. She assumed from the position that the front bumper had hit C. She said that the Peugeot did not deviate and C did not launch himself on the bonnet.

Anna Stealey was spoken to by the police shortly after the accident. There is a pocket book entry. In it she says “Ian started to walk back towards us. At this point we were talking with the occupants of the gold car…the male driver said something along the lines of “I am not having him talk to them like that” to which the female replied “this is bad, Luke’s in the car.”…the car began to move at a normal speed and we all thought that either the car would stop or drive around Ian but it didn’t it carried on, and then I am not sure if Ian had to jump on the bonnet to try to save himself being hurt or was hit and forced onto the bonnet…”

Charlotte Cook’s recollection was that C came running down the lay-by at the car. He was shouting and angry. She accepted that initially she wasn’t in a hurry to leave and she recalls (consistently with her police statement) that she did not want to go because she did not see any danger to herself or D1. Nor did she rush to get into the car. She said that at that point C was still some distance away. She did not remember D1 making any comments which could be construed as threatening or aggressive. She said that D1 was nervous or scared. She did not remember a wheel-spin as the car started off. She denied that D1 drove directly at C. She gave an account of him snaking so as to avoid C. She had said in her statement that C jumped on the bonnet but she did not recall in the witness box how he ended up on the bonnet.

In common with other witnesses Charlotte Cook was doing her best. Her recollection was patchy and somewhat vague. To the extent that her evidence differs from that of Mr Phillips, I accept Mr Phillips’ evidence as being more accurate. Critically that means I do not accept her recollection as correct when she says that D1 did not initially drive directly towards C.

There was a good deal of expert evidence. However it is not of great assistance to me. I consider it as a check on my findings on the witness evidence set out above. The experts agreed that at the point when C ended up on the bonnet the Peugeot was probably going at less than 9 miles per hour. At that speed, though with some disagreement as to the likelihood, both experts accepted that none of the three possibilities as to how C ended up on the bonnet could be totally ruled out. Mr Mottram thought it was unlikely that if C was struck and “collected” by the car that he would then be able to get a hand hold on the edge of the bonnet near to the windscreen. They both considered it unlikely that C could jump on the car bonnet from the side of the car, even at a speed less than 9 mph because, by approaching from the side, C is likely to have slid or rolled up the windscreen and would have found it difficult to reach to his side, while sliding or rolling to obtain a hand hold on the rear edge of the bonnet. As to the possibility that C jumped on from the front nearside corner, this had not been considered by the experts since it was not explicit in Mr Phillips’ witness statement. When this was put to them, Mr Seston thought it was less likely that C would be able to get a grip than if he had jumped on the car from the front (potentially to avoid being hit) because he would be at something of an angle. However Mr Seston could not exclude Mr Phillips’ evidence. Mr Mottram thought that the likelihood of C getting a hand hold if he jumped on the car from the front or the front nearside corner was about the same. I find that there was no material difference in the prospects of C getting a hand hold whether he launched himself from the front of the car or from the front nearside corner. There is nothing in the expert evidence which undermines Mr Phillips’ oral evidence.

Indeed there is some evidence to support the fact that C was not “collected” i.e. struck by the car. Substantial expert evidence was devoted as to how much dust/grime was on the car given that it had done an over 200 mile journey from the Midlands to Barmouth and back, and then kept in storage from probably about 1500 hours on 4 July 2010 until PC Stafford’s examination on 7 July 2010. Whilst there can be no certainty on this issue, it seems to me unlikely that the car had been cleaned between the time of the accident and the time of PC Stafford’s inspection. This is because Charlotte Cook said that she and D1 travelled back to her grandmother’s house that evening and slept in the same room until D1 left at about 10:45am. D1 had only got up a short time before that. There was a bucket and sponge in the garage but it needed a key to get in and she was not sure where the key was. Mr McInnes said that D1 came round to his house at about 10am (slightly inconsistent with Ms Cook). He was not aware the car had previously been cleaned and it was not cleaned after 10am. He was there when the car was taken away by the police at about 3 o’clock on the afternoon of 4 July. Therefore although the car might have been cleaned, it was unlikely that it had been so. Apart from a thin layer of dust and ingrained dirt there was bird dirt on the windscreen. There is no evidence that only part of the car had been cleaned.

The relevance of whether the car had been cleaned or not is that the experts agreed “if the front of the car was dirty and was not subsequently washed, the lack of “cleaning” marks on the front bumper or leading edge of the bonnet indicates that the Claimant was not collected by the Defendant’s car.” (Footnote: ¹²)

I shall deal with this evidence in summary and only so far as is relevant to make certain findings.

The first question is whether the car stopped or braked at any stage before it left the lay-by. Jennifer Groves said no. Anna Stealey did not see any brake lights. Mr Phillips’ oral evidence was that the brakes came on at the end of the lay-by but the Peugeot did not stop totally. Mr Marsh’s statement says: “I then saw near to the exit the Peugeot brake lights come on and I would say around the bend, like he was trying to shake him off.”

As to the speed of the Peugeot after it left the lay-by, the experts were asked to state the highest speed at which the vehicle could have been driven. They said they were unable to answer this question with any authority. However, providing there were no sudden or significant steering/swerving movements undertaken by the driver, and on the basis the Claimant was able to maintain a good grip, they considered that speed of around 25 – 30 mph might have been achievable, or possibly a little higher. They said however that the latter observation is somewhat speculative. There is no physical evidence available to allow them to establish or estimate how fast D1 drove out of the lay-by and on the road.

Charlotte Cook gave evidence as to what happened on the main road. In her police statement she said:

“I said to Jon “stop”. Jon didn’t say anything to me but he was shouting to the man to get off. The man had his fingers in the edge of the bonnet of the car and he was shuffling across the bonnet. He still looked angry and had a smirk across his face. I screamed. I did not know what the man was doing or what he was going to do. Jon shouted “no chance”. Jon then steered the car so that it swerved and as it swerved I saw the man’s body twist and then he fell off straight across the edge of the bonnet….”

In evidence in chief she said that he was bearing his teeth at her and started to move to her side. She thought that D1 believed that C was trying to get her and he swerved and then C fell off.

Finally there was evidence of a telephone call whilst D1 was driving along the main road with C on the bonnet. Mr McInnes said he called D1 but couldn’t get through. He then received a call from him. In his police statement Mr McInnes said “Jon sounded in complete panic”. He resiled from this somewhat in oral evidence and said that D1 seemed distressed. D1 said to Mr McInnes “he’s on my bonnet” then the call cut off.

In Wisniewskiv Central Manchester Health Authority [1998] PIQR 324 Brooke LJ said:

“From this line of authority I derive the following principles in the context of the present case:

(1)

In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)

If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)

There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)

If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

I have to bear these principles in mind given that D1 was not called to give evidence and there was no explanation given of this failure.

Section 1 of the Law Reform (Contributory Negligence) Act 1945 provides:E+W+S

“(1)

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:”

In Stapley v Gypsum Mines [1953] AC663, 682 Lord Reid said:

“A Court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but "the claimant's share in the responsibility for the damage” cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness.”

In Eagle v Chambers [2003] EWCA Civ. 1107 at paragraph 10 Hale LJ (as she then was) encapsulated the well known position as to contributory negligence:

“There are… two aspects to apportioning responsibility between claimant and defendant, the respective causative potency of what they have done, and their respective blameworthiness…”

It is well known that the individual facts of road traffic accidents are not generally a good guide to authoritative decisions on apportionment of liability. There is no case which counsel has been able to find which is in any way similar to the circumstances of the present case. I was referred to certain other authorities (Footnote: ¹⁴). However none of these really assist me in my task of apportioning liability.

The situation can therefore be encapsulated in the following manner. As C was returning down the lay-by having chased after the two other cars he ran part way down the lay-by and then stopped. He was waving his arms and shouting in a threatening manner. D1 clearly wanted to get away from the scene. However I do not draw an inference in his favour that he was frightened. More than that, he initially drove his car directly towards C. He could have driven out of the Welshpool exit. He could have taken a route which from the outset sought to avoid C. C himself was behaving badly, as I have described. He could have got out of the way at any time. Only at the last moment did D1 swerve to try to avoid C. This was probably because he had expected C to get out of the way. The probabilities are that C had also expected D1 to stop. At that point C jumped onto the bonnet from round about the front nearside corner of the Peugeot. He managed to get a hand grip on the edge of the bonnet near the windscreen. C either believed that this would stop D1 driving his car or, possibly, C did not really think straight at all when jumping on the car. I am not prepared to find that at any stage D1 panicked or was very frightened. Clearly he did not want C on his bonnet. Once C was on the bonnet it was difficult for him to get off unless the car stopped or at least slowed very substantially. D1 could have stopped or slowed very substantially at any stage thereafter. He did not do so. He continued to drive and indeed accelerated. If he was concerned as to what C might do he could have locked his doors. There was no evidence that either he or Ms Cook did so. D1 could have either stopped in the lay-by where there were other members of the public or he could have stopped at any stage thereafter. He drove a substantial distance with C on the bonnet. He then deliberately swerved his car so as to dislodge C from the bonnet. In this he was successful and caused to C grievous injuries. He was guilty of the offence of dangerous driving.

Given those circumstances, and adopting the principles of causation and blameworthiness, it is my judgment that the responsibility for this accident was 60% D1 40% C. C is therefore entitled to damages representing 60% of the full value of his claim.