Green v Haynes

At approximately 8.03 a.m. on 1 March 2012 a collision occurred at the A47 southbound carriageway exit slip road to the A11 Thickthorn roundabout junction at Cringleford in Norfolk. The Claimant sustained very serious injuries, including permanent brain damage, when his Volkswagen Polo, which was stationary in a queue of traffic with four other vehicles at the bottom of the slip road where the roundabout junction is traffic light controlled, was struck by a Toyota Land Cruiser Sports Utility Vehicle driven by the Defendant. The Defendant’s vehicle collided with the rear of the Claimant’s vehicle, causing the Claimant’s vehicle to be shunted forcibly into and under a Land Rover vehicle in front of it.

Liability is disputed by the Defendant. It is the Defendant’s case that he is not liable for the accident or the injuries caused to the Claimant. He maintains that the collision occurred after he blacked out at the wheel of his vehicle following a vaso-vagal syncopal attack triggered by abdominal pain, and that he is entitled to rely upon the defence of automatism.

On behalf of the Claimant it is accepted that the Defendant passed out seconds before the collision. However it is the Claimant’s case that the Defendant was negligent both in choosing to drive when he did and in the manner of his driving prior to that point which caused the accident. In the circumstances this is not a case in which a defence of automatism exonerates the Defendant.

The Defendant was born on 14 May 1958. For many years he worked for British Petroleum as an off-shore installation manager, but since 2010 he has been a self-employed HSE and Operations Management Consultant. On the morning of 1 March 2012 he left his home and drove to the East of England Energy Group (“EEGR”) Conference, focused on the off-shore gas industry, which is his speciality, arriving at the John Innes Centre in Norwich at about 7.25 a.m. in time for a networking breakfast that was scheduled for 7.30 a.m. The drive from his home was about 50 minutes.

The Defendant and his wife had been on holiday in Madeira for ten days, arriving home at about 7.15 p.m. on Monday 27 February 2012. He said that on holiday he developed what he believed to be cold symptoms and that he coughed up the occasional white mucus, which continued on Tuesday the 28^th, which he said was a very relaxing day spent at home. On Wednesday 29 February he said he had just the occasional cough, but the phlegm seemed to have a yellow tinge to it. He said he realised this could indicate a chest infection, and that he thought to himself that he must keep an eye on it and make an appointment to see his GP if it continued. That afternoon and evening he attended a function organised by the EEGR at the Holiday Inn at Norwich Airport which consisted of a series of professional presentations, followed by a sit-down dinner. He said that he felt perfectly well when he arrived home that evening, as he did when he left the following morning, although he said he was still occasionally coughing up a yellowish mucus and was slightly constipated, a feeling which started the previous evening at dinner.

The Defendant said that at 7.25 a.m. on 1 March when he arrived at the John Innes Centre he had to go straight to the toilet. He said he passed some stools and thought to himself that he should be better for the remainder of the day. He returned to the function and got himself a cup of coffee. He said that he then noticed the onset of mild abdominal discomfort, which continued whilst he spoke to one person for two or three minutes; for a few seconds he felt nauseous as well. He said, “I wondered if I was developing flu, so made my excuses and left” (witness statement, para 33). His thought at this point, he said, was that he had “some sort of slight indigestion which, together with [his] cold could develop into something more significant and [he] believed that [he] would be better of at home” (witness statement, para 34). He went to his car, telephoned home and asked his wife to ring the GP and try for an appointment. The data from the Defendant’s mobile phone records show that he made a call from his mobile phone at 07.52.56 which lasted for 4 minutes and 30 seconds. After speaking to his wife he drove out of the car park, intending to drive straight home by the shortest route.

The Defendant said it was shortly before 8 a.m. when he drove onto the A47 dual carriageway. He stayed in the left-hand lane and drove at between 55 and 60 mph. He said he had been on the A47 for perhaps a minute when he noticed the abdominal discomfort had reduced from 2-3 on a 1-10 pain scale, to around 1-2. He was wondering to himself if he had over-reacted by leaving the conference, but decided that he would continue home. His witness statement reads as follows:

“39.

Shortly afterwards I felt a sudden gripping pain in my lower abdomen, 6 or 7 in severity on the 1-10 scale. It was like a colic, gripping, crampy kind of pain. My immediate thought was that I could not continue to drive while this persisted and that I would need to find somewhere safe to pull over.

40.

Perhaps two or three seconds after the onset of the severe abdominal pain I became aware of a new sensation. It felt as if my head were deflating and a fraction of a second later my vision rapidly dimmed and went out of focus. I then blacked out altogether and have no knowledge whatsoever of the events which followed.

41.

Even weeks after the event I still have no personal recollection of what happened. I remember driving along in Lane 1 of the A47, suddenly feeling terribly unwell and realising that I needed to pull over and stop, then within a matter of seconds my head drained, I lost vision and blacked out before I could take any action, even to remove my foot from the accelerator pedal. From that point I was unconscious for presumably several minutes.”

At paragraph 61 of his witness statement the Defendant said:

“When I set off from the John Innes Centre to return home I felt perfectly fit to drive and when I had a sudden bout of quite severe pain when on the A47 dual carriageway I immediately decided that I would pull off the road to my nearside and seek help. Events then overtook me and it would seem that I blacked out before I was able to pull off the road.”

The Defendant recalled regaining consciousness. The emergency services arrived on the scene (the first call to them having been made at 08:03:41) and paramedics came to him. In summary he told them and members of the public who approached him that he had felt unwell with bad stomach pains and had fainted. He was taken to the Norfolk & Norwich Hospital where he was detained until midday on Friday 2 March 2012, during which time a number of tests were carried out. On discharge he was supplied with a Cardiology Discharge Summary which recorded the diagnosis as “Possible vaso-vagal associated with abdominal pain”. A secondary diagnosis was “Possible atrial fibrillation following RTA”.

The Defendant said that after his arrival at the hospital, later on the morning of 1 March, he was seen by two police officers, one of whom had breath tested him earlier. At paragraph 57 of his witness statement he said:

“I spent a good fifteen minutes telling them what I had been doing since getting up that morning. I described the journey home in detail up to the point where I must have blacked out and the actions of the Paramedics and the [Fire] and Rescue Service in removing me from the vehicle.”

In response to questions from Ms Susan Rodway QC, on behalf of the Claimant, the Defendant said that he had been operating his new business for about 18 months; it was going more slowly than he had anticipated, but on his retirement from BP he could afford to pay his bills. He was uncomfortable “networking” when it involved cold calling; it was easier at conferences where views could be exchanged. He said he was looking forward to the EEGR Conference. He was feeling well when he went to bed after the dinner on 29 February and equally well when he woke the following morning, 1 March. He said he felt he could keep any cold symptoms under control and he was certainly looking forward to the programme.

The Defendant said that he felt 100% well until he ordered a coffee, when he suddenly became aware of a feeling of slight indigestion. He got his coffee and felt he had to get on with networking. After a few seconds of speaking to one person he had a feeling of nausea which he described as an unpleasant feeling in his head. He said he did not remember it extending to his stomach. It was almost like sea-sickness for 2-4 seconds. It then went completely and he began to wonder what was going on. He said he wondered if he was developing ‘flu and so made his excuses and left. He said that the indigestion would not have led him to leave the conference. It was the indigestion and coughing up yellow phlegm that he said made him think that he should leave because he felt that if he stayed for the whole day and the symptoms developed he would not be fit to drive home.

The Defendant said that he told the person he was speaking to that he had a bit of a stomach upset. He said he used that as an excuse for leaving. He said he did not have a stomach upset. He had mild indigestion. He rejected the suggestion that he had indeed become overcome with a stomach upset. He said he never suggested to his wife when he phoned her that he had diarrhoea and vomiting. He said if anything he was constipated. He asked his wife to make an appointment with Dr Manto, his GP, to follow up whether he had a chest infection. He said he did not need an emergency appointment. He anticipated that he might have to wait two or three days to see Dr Manto. He thought his symptoms might be developing into a ‘flu or chest infection and he might be unable to drive at the end of the day, so he left.

Ms Rodway asked the Defendant about the “Statement for Dr Manto related to ‘blackout’ on A47 on 1 March 2012” he said he wrote on 19 March, following his appointment with Dr Manto on 7 March, (for a follow up appointment with him on 20 March). Ms Rodway suggested to the Defendant that if his symptoms were as mild as he now says they were, there was no need to leave the conference. The Defendant said that in the circumstances he decided that remaining there did not seem “worth a candle”. As he said in his statement to Dr Manto “… the prospect of an intense day of networking and conference activities did not seem worth the effort and energy that would be required”. The statement records that he phoned his wife from the car park and asked her to call the medical practice he attended “to try and get an appointment with Dr Manto in relation to possible chest infection”.

The Defendant said that when he left the conference he did not anticipate that his condition would deteriorate. He said that he was not anxious to get home. He accepted that if he had driven in the inside lane of the A47 at 55-60 mph he could have pulled over, if he had been in a condition to do so. He accepted that if he had been in the outside lane it would have been more difficult. Asked by Ms Rodway about paragraphs 39 and 61 of his witness statement and the decision he made to pull off the road, he said the witness statement was made by his solicitors; they were not his words. Questioned about this by Ms Rodway he accepted that he had an opportunity to amend the witness statement that had been drafted. He said he did make some amendments, and he then said “I will stand by the statement”.

Questioned further by Ms Rodway about his actions before he fainted the Defendant said he had no time to take action as he was incapacitated when gripped by pain. He said when he was struck by pain his initial reaction was to try to keep control of the vehicle. He recalled gripping the steering wheel. He said (in re-examination) that he was incapacitated and not able to take his foot off the accelerator.

Ms Katie Civil, the Practice Manager at Fressingfield Medical Centre, where the Defendant is registered as a patient, referred to a document called an Audit Trail which showed that a 8.06 a.m. on 1 March 2012 an appointment was made for the Defendant to attend the Practice. The appointment was made for 10.50 a.m. on that day for five minutes’ duration.

Ms Civil explained the system at the Practice for booking an appointment which on the website of the Practice states in respect of urgent medical problems as follows:

“The Practice operates a system for dealing with urgent medical problems e.g. those that cannot wait until the next routine available appointment with any of the Doctors at any site. These are short (five minute) appointments for ‘acute’ problems and if the Doctor has considered that this is not the case, you may be asked to re-book on another day in a routine slot.”

There is a second entry in the Audit Trail at 08.09 a.m. on 1 March updating the system with “slot notes” of “ongoing d&v”, which is an abbreviation used for diarrhoea and vomiting. Ms Civil said that this would have been written to reflect the information that was provided when the appointment was booked.

The drivers of two vehicles who witnessed the collision gave evidence. Mr Matthew Sayer said that he entered the right-hand lane of the slip road as he was going to turn right at the Thickthorn roundabout. There were about four or five vehicles in the right-hand lane. He slowed to a standstill at the roundabout as the traffic lights were still on red. He believed that the Claimant’s vehicle was about two or three vehicles ahead of him in the middle lane. He said all of a sudden he saw a silver-grey 4x4 vehicle come past him travelling in a perfect straight line down the middle lane at high speed. He estimated that the speed was between 60 and 70 mph. He did not see it for very long. It is very unlikely, but possible, that it was travelling slower; it could have been faster. He said the car came “steaming past” him.

Ms Laura Claxton said that she was travelling southbound along the A47 on her way to work. She knew the road well as she had been doing the journey for four years. She was driving at approximately 70 mph in the left-hand lane of the A47, that is the inside lane. She did not specifically remember seeing the Defendant’s vehicle until it began to veer to the left across the carriageway. In her first witness statement made on 21 October 2012 she said that at that time his vehicle was approximately one or two car lengths ahead of her. In her second witness statement dated 1 November 2013 she said that it may have been two or three cars ahead of her.

Ms Claxton estimated that the Defendant’s vehicle was travelling at approximately 80 mph when she first noticed it. She said that this estimate is based on the speed that she was travelling. As the Defendant’s vehicle began to veer to the left of the dual carriageway it began to travel faster and faster.

Mr Stephen Worthington QC, for the Defendant, suggested to Ms Claxton that she was travelling slower than she said when she first saw the Defendant’s vehicle because she would already have been on the slip road and slowing down. She did not accept this. She said that she was in the inside lane of the dual carriageway and the Defendant was in the outside lane. She was going to take the slip road and would be driving slower once on the slip road, but at the time the Defendant’s vehicle veered across the carriageway in front of her she was not yet on the slip road. Ms Claxton pointed out the position of her car when she saw the Defendant’s vehicle veer across the carriageway by reference to various photographs. She had not reached the chevrons (4/749). She was in the inside lane (see photo 10 at 2/388); and in front of the arrows on the dual carriageway (see photograph 11 at 2/389). She said that she would take the slip road slightly later than this point, but not as late as the chevrons. Ms Claxton said that she could still clearly recall the Defendant’s vehicle coming across the two lanes. She said his vehicle was 1-3 car lengths in front of her when it veered. She could not be more exact. She was moving at a steady pace when he came across and she thought that he was taking a very sharp exit as he had missed the exit.

The agreed evidence included a witness statement from Mr Ben Moussa, a registered osteopath and homeopath. The Defendant attended his practice on ten occasions between August 2009 and November 2012. He said that at one appointment on 13 November 2010 when the Defendant was sitting in the waiting room for his treatment session he experienced pain in his back and lost consciousness. Mr Ben Moussa said that he remembered very clearly that the Defendant did faint on that occasion, and an ambulance was called for him. The Defendant said that he was prepared to accept that he fainted, although he had no personal recollection of it.

Mr Ben Moussa’s last appointment with the Defendant was on 15 November 2012 when he said the Defendant told him about the incident on 1 March 2012 and that he had suffered a blackout. Mr Ben Moussa said that he recalled the Defendant telling him at this appointment that he has a low pain threshold.

Pc Ketteridge, who was working with Pc Healey, arrived at the scene of the accident at approximately 08.25 a.m. He was designated as the Officer in Charge. He took a breath sample from the Defendant; the result of the test was negative. He did not recall having a conversation with the Defendant at this point. Later that same day he and Pc Healey attended the Norfolk & Norwich Hospital and spoke to the Defendant. He does not recall specifically the content of the conversation but thinks it likely that he would have explained to the Defendant what was going to happen in relation to the police investigation into the accident. He said that if the Defendant had given him an account of the accident or had said anything which was relevant to the police investigation he would have written it down in the collision book. There is no account of the accident from the Defendant recorded in the collision book. Mr Worthington suggested to Pc Ketteridge that he did not recall what the Defendant said because it was not a formal interview. The officer did not accept that. He said had the Defendant given some explanation for the collision he would have recorded it.

Mr Matthews, the team supervisor of the Serious Collision Investigation Team at Norfolk Constabulary gave evidence. As far as he was aware the Defendant had never provided an account to the police of his recollection of the accident. However he had no personal dealings with the Defendant.

Pc Holmes was the investigating officer who became involved in the investigation within the first week after the accident. He too had no personal dealings with the Defendant. He said he knew the Defendant’s account of events was that he had lost consciousness. He said that he recalled that one witness (that is Mr Sayer) estimated the Defendant’s speed as 60-70 mph, although in his experience witnesses often over-estimate the speed of a vehicle.

The collision reconstruction experts (Mr Stephen Edwards and Mr Stuart Whitehead) agree in their joint statement that:

There are a number of reports from medical experts. However it is not necessary to consider the entirety of the medical evidence because as Mr Worthington observes their evidence is really a backdrop against which to consider the Defendant’s evidence and his actions. It does not assist in answering the critical question of what the Defendant could or should have done. In the event the medical experts were not called to give evidence.

It was not in issue at trial that the Defendant fainted as a result of a vaso-vagal syncope triggered by abdominal pain whilst driving his vehicle. Further it was not in issue that the Defendant reported prodromal symptoms. The prodrome is the period between the onset of symptoms and the blackout.

The cardiology experts (Professor Channer and Dr Shapiro) agree that in the studies which include drivers who have complained of suffering a sudden loss of consciousness the only record of the nature and length of any prodrome is necessarily based upon the subjective account of the driver. (Answer to question 10 at 2/393).

The Consultant Neurologists (Dr Manford and Dr Sawle) in their Joint Medical Report agree the following:

In relation to point 9 made by Dr Manford and Dr Sawle I note that the view of Professor Channer and Dr Shapiro is that in general the duration of the prodrome is likely to be greater from a seated as opposed to a standing position (point 9). This conclusion appears to be based on the research paper by Alboni which was reviewed by Dr Shapiro and Dr Sawle.

The Alboni paper also indicates that where a prodrome is reported the research shows that in the majority of cases the prodrome itself lasts for at least ten seconds if the person is standing. Dr Sawle points to Table 1 to the Alboni paper which shows that the duration of prodrome was more than 10 seconds in 69% of patients with “typical vaso-vagal syncope”. The Sorajja paper at Table 2 gives the proportion of patients who had “any prodrome” in the driving group as 87.4%. It follows that 12.6% of patients had no prodromal symptoms at all.

Ms Rodway puts the Claimant’s case in two ways:

I found the evidence of Mr Haynes to be unsatisfactory in a number of important and highly material respects. In reaching this conclusion I have taken into account in the Defendant’s favour, as Mr Worthington submitted I should, that he was not challenged on his evidence that he did tell the police officers who visited him in hospital that he had blacked out, despite the challenges that were made to the evidence of the police officers on this point.

Whether the Defendant was fit to drive

Mr Worthington submits that there is no reason for somebody with Mr Haynes’ symptoms to consider that there was a risk that his driving would be so impaired that he would crash. That may well be so if his symptoms were as he described them in his evidence. However, I do not accept his evidence as to his medical condition when he left the car park of the conference centre to drive home.

I am satisfied from the evidence that Mr Haynes felt very unwell with an upset stomach and abdominal pain when he suddenly left the conference centre within half an hour of his arrival. He called his wife from the car park and asked her to make a medical appointment, rather than waiting to do so himself when he returned home. The Defendant has been a patient of this medical practice for a number of years and he did not suggest that he did not know its procedures. It is clear from the documentary evidence that his wife did as he requested. She phoned the surgery and an urgent appointment was booked for him. There is no reason to think that his wife did not tell the surgery what he had told her and this was translated by his wife or by the surgery as him having symptoms of diarrhoea and vomiting (“d&v”) which were not going away (“ongoing”). Whether he had actually vomited or had bad nausea and felt sick, matters not. I accept Ms Rodway’s submission that this evidence is wholly inconsistent with him suffering from mild indigestion or thinking that he might be developing flu or that he had a chest infection. Further, having phoned his wife to make an appointment for him I do not accept his evidence that he only wanted to see Dr Manto and that he was prepared to wait 2-3 days to do so.

The Defendant had attended the conference and the dinner on the previous day. His evidence was that he felt very well when he went to bed that night and when he got up early the following day in order to drive to the conference. He had experienced cold symptoms on holiday and for a number of days and on Wednesday 29 February he had the occasional cough and some yellow phlegm. However this had not prevented him from attending the function that afternoon and evening; nor did it prevent him setting off for a day’s conference on 1 March, which he said he was looking forward to, for the reasons he gave (see para 11 above). I do not find it credible that the Defendant only had the symptoms that he has described that he would have left the conference when he did. The “excuse” he gave for breaking off his conversation with a colleague (see para 13 above) also suggests that he was suffering from gastric upset with pain and nausea. He could have given any excuse but he chose to say that he had a stomach upset and needed to go to the lavatory. It appears to be the truth, and not a lie, as Mr Haynes now suggests.

The Defendant’s evidence as to his medical condition has led me to conclude that he was seeking to play down how ill he felt. He said that he needed to leave because if he did not do so he might not be fit to drive by the end of the day if his condition got worse. The fact is that even on his evidence he had abdominal pain at the time he drove off from the car park. The pain continued for a while, albeit it ceased at one point before it returned even more severely. As the Defendant told Mr Ben Moussa he has a low pain threshold (see para 25 above).

In my judgment, having regard to the true state of the Defendant’s health when he left the conference centre, he should have appreciated the risk of his condition getting worse and that if it did his judgment and ability to drive was likely to be impaired. On a balance of probabilities I find that the Defendant should not have driven on leaving the conference centre after he felt so unwell, and that he was in breach of his duty to other road users in so doing.

The speed and manner of the Defendant’s driving

I find that the Defendant was driving his car at the time when Ms Claxton first saw it on the A47 at a speed in excess of 60 mph and in all likelihood closer to 70 mph. I reject the evidence of the Defendant that he was driving at a speed of 55-60 mph.

My reasons for so finding are as follows:

Further I reject Mr Haynes’ evidence that at the material time he was driving in the inside lane of the dual carriageway. Ms Claxton gave clear and, in my view, reliable evidence of what she saw. She gave detailed evidence, by reference to photographs of the A47 and the slip road, rejecting the suggestion made by Mr Worthington that she was on the slip road at the time the Defendant’s vehicle veered across the carriageway in front of her (see para 23 above). She said that she was in the inside lane of the dual carriageway and the Defendant was in the outside lane. She described in her witness statement and in her oral evidence how the Defendant’s vehicle veered across the carriageway from the outside lane in front of her.

It is not in dispute that a vehicle being driven along the A47 could have come to a halt at the side of the road at any point between where the Defendant joined the A47 and the exit slip road where the collision occurred (see para 29(vi)). The Defendant accepted that if he had driven in the inside lane of the A47 at 55-60 mph he could have pulled over, if he had been in a condition to do so (see para 15 above).

In the light of the Defendant’s medical condition, as I find it to be (see paras 38-41 above) if, contrary to my finding that he should not have been driving his vehicle at all, it was reasonable for him to drive, he should in my judgment have been driving in the inside lane of the A47 and at a speed that would have enabled him to stop at the side of the road if his condition worsened.

Instead he was driving at a high speed and in the outside lane which, as he accepts, would have made it more difficult to pull over to the side of the road (see para 15 above).

However Mr Edwards and Mr Whitehead are agreed that even on his account that there were perhaps two or three seconds after the onset of the severe abdominal pain, there was sufficient time for the Defendant to commence braking (see para 29(vii)). Accordingly I find, contrary to his evidence (see para 16 above) that the Defendant did have the opportunity to take his foot off the accelerator.

I accept Mr Worthington’s submission that in determining the actual length of the Defendant’s prodrome it does not necessarily follow that, since 69% of the Alboni cohort experienced a prodrome of 10 seconds or more, the Defendant must be within that cohort.

However, in the light of my findings that the Defendant has under-played how unwell he was when he left the conference centre, and my rejection of his evidence that he was driving at between 55-60 mph in the inside lane on the A47, I have little confidence in his estimate of 2-3 seconds between the onset of the severe abdominal pain and his awareness of a new sensation and then blacking out. He had time to make a decision to pull off the road to his near side and seek help (see paras 39 and 61 of his witness statement at paras 7-8 above) and he remembered holding tightly onto the steering wheel and looking ahead (see first report of Dr Sawle at para 19, 2/245). In his oral evidence he said he “gripped” the steering wheel.

As the only evidence of the duration of the prodrome is that given by the Defendant I am not able to make a finding as to the precise length of the prodrome. I am however satisfied that on a balance of probabilities, having regard to the Defendant’s evidence and the expert evidence to which I have referred, that it was longer than 2-3 seconds. I accept the evidence of Professor Channer and Dr Shapiro, based on the research paper by Alboni, that the duration of a prodrome is likely to be greater from a seated as opposed to a standing position (see para 34). The probability, in my view, is that it was of a sufficient duration so that if Mr Haynes had been driving in the inside lane at a speed of 55 mph he should have been able to come to a halt at the side of the road (see para 29(vi) above), or at the very least steered the car in the direction of the side of the road and slowed down so that the collision that occurred did not take place.

I find on a balance of probabilities that (1) in the circumstances the Defendant was driving too fast and in the wrong lane of the A47, and was negligent in so doing; and (2) had he been driving slowly and in the inside lane, and ready to pull over should he needed to, the accident would have been avoided.

In my judgment, for the reasons I have given, the Claimant succeeds on liability. Accordingly judgment shall be entered for the Claimant with damages to be assessed.