Dursan v J Sainsbury Plc

This case concerns a claim for damages arising out of a fatal road traffic accident by which the claimant, who is the widow of the deceased Kenan Dursan, brings an action against the defendant on behalf of his estate and dependants.

The accident occurred at about 17.39 on the 23^rd of December 2011 on one of the north bound carriageways of the A1010 known as Fore Street, Edmonton, London. As the deceased was crossing the road from west to east, an LGV, being driven by Paul Lucas in the course of his employment with the defendant, collided with him causing injuries from which the deceased was certified dead at 18.14.

At the location where the accident occurred Fore Street has two northbound lanes. The inside lane is designated for buses, cycles and taxis, whilst the outside lane is designated for normal traffic. The width of the inside lane including the white unbroken dividing line is 3.1 metres, whilst that of the outside lane is 2.8 metres. There is a bus stop situated on the inside lane, and a pedestrian controlled crossing situated about 17.75 metres north of the end of the bus stop.

At the material time there was a stationary double-decker PSV in the area of the bus stop in the inside lane, whilst the LGV was stationary in the outside lane in the vicinity of the rear of the PSV. The collision occurred when the deceased alighted from the west side pavement, walked across the rear of the PSV and had started to walk across the front of the LGV. At this point the LGV was driven forward and into collision with the deceased.

The prevailing traffic conditions were those of a congested stop/start variety, with queues of traffic in the north and south bound lanes, whilst the weather conditions were those of light but persistent rain; sufficient for some of the pedestrians to be using umbrellas and the LGV to be using its intermittent windscreen wipers. The accident occurred in the hours of darkness, although illumination was provided by vehicular, street and shop lighting.

A subsequent police investigation revealed the presence of cleaning marks to the front of the LGV situated about 1 metre from the nearside corner which PC Andrews thought may been caused by the first contact between the deceased and the LGV. Thereafter the evidence suggests that the deceased fell and was pushed along the road surface by the front offside tyres.

In the course of that investigation CCTV footage was retrieved from a camera situated to the south of the accident location, which provides a view along Fore Street in a northerly direction. This footage shows a series of timings, which have been interpreted in the following manner by the parties’ respective experts:

17.39.04 – the PSV comes to a halt in the area of the bus stop in the inside lane;

17.39.07 – passengers alight from the PSV;

17.39.12 – the LGV, having moved forward, comes to a halt in the outside lane;

17.39.14 – a figure, assumed to be the deceased, begins to move from the edge of the nearside kerb and into the inside lane;

17.39.15 – the figure momentarily obscures the nearside light cluster of the PSV;

17.39.17 – the figure momentarily obscures the offside light cluster of the PSV and then passes out of view;

17.39.19 – the LGV begins to move forward;

17.39.25 – the LGV comes to an abrupt stop.

17.39.04 – the PSV stops;

17.39.06 – the LGV moves forward;

17.39.07 – PSV passengers start to alight;

17.39.12 – the LGV stops;

17.39.12-14 – a figure, assumed to be the deceased, is standing on the nearside footway in the vicinity of the rear of the PSV;

17.39.15 – the figure crosses the kerb edge and then obscures the nearside light cluster of the PSV;

17.39.17 – the figure obscures the offside light cluster of the PSV and then is situated at the nearside corner of the LGV when its rear brake lights are extinguished;

17.39.18 approximately – the LGV starts forward.

In their joint report the two experts observe that, with one exception, their interpretations are very similar; the exception being the timing of the commencement of the forward movement of the LGV immediately prior to the collision. In this regard they are one second apart, such that Mr Wilson-Law has the LGV stationary for 6 seconds, whilst Mr Jennings has it stationary for 7 seconds. Neither suggests that this difference is material. Moreover, it is likely that the matter is resolved by the evidence gained from the examination of the Tachograph from the LGV, which showed that prior to the forward movement, during which the collision took place, the LGV had been stationary for a period of about 6.5 seconds. It then moved forward for about 12.43 metres, during which time it reached a peak speed of just under 7 mph.

The two experts have also provided their assessment of the time it would have taken for the deceased to have walked from the kerb to the point on the road which coincided with the position of the cleaning marks on the LGV. Mr Wilson-Law’s assessment being 3.4 seconds, whilst Mr Jennings’ assessment being 3.6 seconds. Once again neither suggests that this difference is material.

At the time of the accident the LGV was fitted with mirrors which complied with the current EU Directive, namely the European Union (EU) implemented EC Directive 2003/97/EC. These comprised the following:

In their joint report the two experts agree that research indicates that on average a driver takes about 1 second to look in a vehicle’s mirror, and under ½ second for a driver to look between such mirrors. Albeit that because four of the mirrors on this LGV are clustered around the nearside edge of the cab, the time it would have taken Mr Lucas to check all six of these mirrors may well have been less. In this regard, whilst Mr Wilson-Law suggests a period of about 4 – 6 seconds, Mr Jennings suggests a period of about 3 seconds.

The outer clothing worn by the deceased at the time of the collision comprised a pair of blue jeans and a black coat. In their joint report both experts agree that this would have provided little contrast with the asphalt road surface and would have made the deceased less visible when viewed through the mirrors of the LGV. Moreover, whilst the deceased may have been silhouetted by ambient lighting when he was on the pavement, this would diminish once he was on the road due to the shadowing effect of the PSV and the LGV. Once the deceased reached the front of the LGV part of his legs would have been illuminated by the vehicle’s headlights. Albeit this would only have been visible to Mr Lucas in the Class VI mirror and Mr Jennings pointed out the minimal area which would be visible due to the deceased being viewed from almost directly overhead.

Unfortunately there is no witness evidence of the collision itself. The only witness, beside Mr Lucas, was a passenger on the PSV, Dominique Crooks. Her evidence is uncontroversial having only seen the collision immediately after it had taken place. However it is notable that after having alighted from the PSV, it was her intention to use the pedestrian controlled crossing in order to cross over Fore Street.

Mr Lucas was interviewed under caution by the police on the same day as the accident. He told the police that he had been a professional driver between 1995 and 2000. He had then done accountancy work. However after having been made redundant, he had resumed professional driving in April 2011. He stated that he required contact lenses for driving and was wearing them at the time of the accident. Moreover on the previous night he had had a good night’s sleep, retiring at 10.30pm and rising at 6.30am. He stated that at the time of the collision he was driving from one supermarket store to another, there was a constant queue of traffic and prior to the collision he had brought his vehicle to a halt. Thereafter pedestrians started to cross the road from all directions, despite the presence of the pedestrian controlled crossing ahead of him.

The police officer who attended the scene of the accident noted that at that time Mr Lucas appeared to suggest that he had checked all of his nearside mirrors including his Class VI one prior to moving forward. This sequence being echoed when he was first asked about it in his subsequent interview with the police. However at a later stage of that interview he was asked about the usual sequence of events prior to moving forward and he indicated that this would include a subsequent check of his offside mirrors prior to moving forward, which he indicated was what he did on this occasion. This latter sequence of events was later provided by him during the course of the deceased’s inquest on 23^rd August 2012. It was also the sequence which he described as taking place in his written witness statement in these proceedings dated 18^th March 2014 and in his oral evidence in the trial.

In his witness statement Mr Lucas also confirmed that he had passed his normal driving test in 1987 and his LGV licence in 1995. Moreover that he has no criminal convictions and has not been involved in any previous road traffic accidents.

In his evidence at trial Mr Lucas stated that because he was an agency driver it was necessary for him to adjust the mirrors on the various vehicles he drove in order to accommodate his height. He said that he had done so in this case prior to driving the LGV and had taken the opportunity to ensure that the mirrors were clean and clear. He accepted that because of the road and weather conditions which pertained that evening, it was necessary for him to be particularly vigilant for the presence of pedestrians on the road, and that he had done so by taking particular care when making his observations both through the cab windows and exterior mirrors, before he had moved forward in the LGV.

He accepted that if a driver is about to perform a turn in a road, then the last mirrors which are checked are the ones on the side of the direction of travel as this would be the area of highest risk. However he said that when he intends to drive forward from a stationary position, he would normally check the nearside then offside mirrors before looking through the windscreen to check the traffic ahead. He said that this is what he did in this case and was something which had been part of his training. It was suggested to him in cross examination that in such a situation he ought to make a final check in the Class VI mirror as this covered the area of highest risk. However, he said that although this maybe the area of highest risk, in such a situation there were serious risks from all of the various locations covered by the mirrors. In these circumstances he considered the sequence he used to be the safest one, and there had been nothing which he had seen on Fore Street which had alerted him to the need to re-check any of his mirrors. Moreover if one does start to re-check one’s mirrors, then the information from previous checks swiftly becomes outdated; the safer course being to carry out one thorough check and then, if appropriate, move forward.

It is apparent that one of the matters which the evidence available to the experts has not been able to determine with certainty, is the relative positions of the PSV and the LGV at the time when the deceased began to cross Fore Street. In so far as the PSV is concerned it is clear that post-collision investigation has shown that such vehicles halt at various positions relative to the bus stop. Moreover the matter cannot be determined by viewing the vehicles on the available CCTV footage.

Mr Wilson-Law is of the opinion that because of the evidence of the timings provided by the CCTV footage, and taking account of average walking speeds, it may be that as the deceased began to cross the road, the front of the LGV was positioned slightly ahead of the rear of the PSV. Hence the deceased would have had to dog-leg around from the rear of the PSV to the front of the LGV. If this was what occurred then it is apparent that the deceased would not have been in Mr Lucas’ direct line of vision at any time. His only view being afforded through the Class V and VI mirrors. Mr Wilson-Law was of the opinion that the only other explanations for these timings, if the front of the LGV was positioned behind the rear of the PSV, were that the deceased had at some point slowed his walking speed, paused or travelled a further distance along the front of the LGV. However when this last explanation was explored with him at trial, he considered that the cleaning mark which PC Andrews observed on the front of the LGV was likely to show the point of first impact with the deceased, because if that point had been further along towards the offside of the vehicle, then he would have expected to have seen further cleaning marks, and none had been detected during the course of the police investigation.

On the other hand Mr Jennings is of the opinion that Mr Wilson-Law’s dog-leg scenario is incompatible with a lack of change of rate in the lateral movement of the deceased which he perceived on the CCTV footage. Hence he favoured the front of the LGV being positioned behind the rear of the PSV prior to its final forward movement, in which case the deceased’s head and shoulders would have been in Mr Lucas’ direct line of vision whilst he stood on the pavement. Thereafter his only view being afforded through the Class V and VI mirrors.

It is apparent from both experts’ reports that whatever the relative positions of the two vehicles at the material time, once the deceased had commenced to cross the road, the only view which Mr Lucas would have had of him, would have been indirectly through either his nearside Class V or VI mirrors. In evidence at trial Mr Wilson-Law accepted, contrary to the appearance of one of the computer-generated images which he had provided, that if the dog-leg scenario pertained, then the deceased would only have been visible in these mirrors to Mr Lucas for half the time which he would otherwise be visible if the front of the LGV had been positioned behind the rear of the PSV.

In their joint report the matter was left in this way by the experts. If it is accepted that Mr Lucas did not see the deceased prior to the collision, but did complete the sequence of looking into the vehicle’s nearside then offside mirrors prior to moving forward in the LGV, then it may be that his observations had ceased at a time prior to the deceased having entered into the field of vision afforded by the Class V and VI mirrors. In which case it will be necessary to determine, inter alia, the sufficiency of this sequence. In this regard both experts agree that although the Driving Standards Agency guide to “Driving Goods Vehicles” states,

“You should ensure that you’re constantly aware of what’s happening around you…..you should check for pedestrians, cyclists or motorcyclists who may be directly in front of the vehicle but out of your normal field of vision, especially at pedestrian crossings…in slow moving traffic”,

In so far as the Highway Code is concerned the relevant provisions include,

“Rules for Pedestrians

Rule 3

Help other road users to see you. Wear or carry something light-coloured, bright or fluorescent in poor daylight conditions. When it is dark, use reflective materials (e.g. armbands, sashes, waistcoats, jackets, footwear), which can be seen by drivers using headlights up to three times as far away as non-reflective materials.

Rule 7

A.

First find a safe place to cross and where there is space to reach the pavement on the other side. Where there is a crossing nearby, use it. It is safer to cross using a subway, a footbridge, an island, a zebra, pelican, toucan or puffin crossing.

Rule 14

Parked vehicles. If you have to cross between parked vehicles, use the outside edges of the vehicles as if they were the kerb. Stop there and make sure you can see all around and that the traffic can see you. Never cross the road in front of, or behind any vehicle with its engine running, especially a large vehicle, as the driver may not be able to see you.

Rule 17

At night. Wear something reflective to make it easier for others to see you (Rule 3). If there is no pedestrian crossing nearby, cross the road near a street light so that traffic can see you more easily.

General Rules for drivers

Rule 152

Driving in built-up areas – Residential streets. You should drive slowly and carefully on streets where there are likely to be pedestrians, cyclists and parked cars. In some areas a 20 mph maximum speed limit may be in force. Look out for

•

Vehicles emerging from junctions or driveways

•

Vehicles moving off

•

Car doors opening

•

Pedestrians

•

Children running out from between parked cars

•

Cyclists and motorcyclists

Rule 159

Before moving off you should

•

Use all mirrors to check the road is clear

•

Look all round to check the blind spots (the areas you are unable to see in the mirrors)

•

Signal if necessary before moving out

•

Look round for a final check

•

Move off only when it is safe to do so.”

In his evidence at trial Mr Wilson-Law maintained his opinion that it was for the court rather than the experts to decide whether the precautions taken by Mr Lucas on Fore Street that evening were sufficient. In particular the adequacy of the procedure which Mr Lucas used to visually check for potential hazards in the area around his vehicle. He accepted that despite the provision of mirrors on the nearside of the LGV, there were potentially relevant blind areas as shown in some of his computer diagrams. Indeed one of these may have included the position of the deceased whilst he was standing on the kerb edge prior to alighting onto the road surface. He also accepted that even if Mr Lucas had seen the deceased standing in that position, the circumstances were such that he may have assumed that the deceased was not going to alight onto the road, but would take a different route along the pavement. He confirmed that given the length of time which it was likely to have taken for the deceased to walk to the point of impact, it is possible that even if Mr Lucas had properly carried out his sequence of visual checks, the deceased would not have been in those fields of vision at the material time.

Mr Wilson-Law said that the convex nature of the Class V and VI mirrors makes it more difficult to discern objects within their field, as they are reduced in size. Moreover, because such objects are being viewed from above, he agreed that the ability to discern objects is made more difficult, as it foreshortens the image. There would also have been no assistance gained from any silhouetting effect within the field of vision of the Class VI mirror, albeit that if the deceased had been moving, this may have enhanced his visibility. However, he said that in his opinion the deceased had taken no precautions to make himself conspicuous that evening, and that given the nature and colour of the deceased’s clothing, although it would not have been impossible, it would have been difficult even for an alert driver to have seen the deceased in these circumstances whilst he was in the field of vision of the Class V and VI mirrors immediately prior to the collision. Moreover the length of time which the deceased would have been within their combined field of vision would have been no more than 1 – 2 seconds.

In his evidence at trial, Mr Jennings confirmed that there was no authoritative guidance as to the sequence in which visual checks should be made by those driving LGVs. He said that this was because it all depended upon the particular circumstances being faced by the driver concerned at the relevant time. He said that the analogy, which those representing the claimant had sought to make with a driver who is contemplating making a turn in the road, was potentially misleading as such a person would be likely to maintain their view through only one mirror, because the potential sources of danger were more limited. In contrast where, as here, there were potential dangers from a variety of sources, the driver has to make an assessment as to where he perceives likely dangers to originate; such that if, having carried out his sequence of checks, the driver did not consider that there was a sufficient danger from the front of the cab, as opposed to other locations, then he would not consider it necessary for the driver to make a final visual check in the Class VI mirror. He agreed that there was no apparent urgency for the LGV to move forward that evening, over and above the normal situation which arises in a traffic queue. However he said that in his opinion, if the relative positions of the two vehicles that evening was that the front of the LGV was ahead of the rear of the PSV when the deceased embarked upon his journey, then he did not consider that it would have been necessary for Mr Lucas to have made a final check in the Class VI mirror, prior to moving forward in the LGV.

My assessment of Mr Lucas is that not only is he a conscientious and careful LGV driver, but he is also a witness of truth. The former being supported by his driving record, and the latter by his clear and measured response to cross-examination. This being so, I have no doubt that on the evening in question, there being no suggestion that he was under any pressure of time, Mr Lucas carefully carried out the sequence of visual checks which he described in his evidence at trial but which failed to disclose the deceased’s presence on the road prior to driving his LGV forward along Fore Street. Indeed as the evidence unfolded, Mr Hillier on behalf of the deceased, whilst not conceding that Mr Lucas had carried out those visual checks with sufficient care, sought to concentrate his criticism on the sequence of visual checks which Mr Lucas had chosen to carry out. In this regard he submitted that Mr Lucas’ negligence lay in failing to carry out a final visual check of his Class VI mirror.

In the forensic context of the courtroom this submission has some attraction. However, in my judgement it requires to be considered against the circumstances that pertained on Fore Street that evening, the results of Mr Lucas’ observations and such assistance that can be gained from the expert evidence.

It is apparent from the CCTV footage that there came a time when, after the PSV had come to a halt in the inside lane, Mr Lucas drove his vehicle forward before bringing it to a halt again in the outside lane in the vicinity of the rear of the PSV. As to the relative positions of the two vehicles at that point, I consider that, for the reasons provided by Mr Wilson-Law, the front of the LGV was ahead of the rear of the PSV. In this regard the timings on the CCTV footage support this view and, having viewed the footage, although it is possible that the deceased could have paused or slowed down after he had moved across the front of the LGV and therefore out of view of the camera, there is no suggestion of any loss of pace as the deceased moved between the nearside and offside rear lights of the PSV, and I do not consider that he is likely to have done so thereafter. Rather, the impression is given of a pedestrian who is moving at a regular pace across the road. Moreover, it seems to me that the footage of the remainder of the deceased’s journey between the two vehicles is insufficiently clear to bear the interpretation which Mr Jennings placed on it, and I note that this was not a matter which persuaded Mr Wilson-Law to alter his opinion in relation to the existence of an overlap between the two vehicles.

As to the further alternative explanation raised by Mr Hillier with Mr Wilson-Law, namely the possibility of the deceased having reached a point further along the front of the LGV prior to the moment of impact, for the reasons provided by Mr Wilson-Law, it is not one which I consider is likely to have occurred. I too am satisfied that in the absence of other cleaning marks on the front of the LGV, the ones located by PC Andrews during the course of his examination are likely to have been caused by the initial impact with the deceased.

In these circumstances it is the opinion of both experts which I accept that at the point when Mr Lucas commenced his sequence of visual checks in order to ascertain that it was safe for him to move the LGV forward again, he would have had no opportunity of seeing the deceased through the nearside window as he stood on the pavement prior to alighting onto the road. Thereafter the deceased would only have been visible indirectly through the Class V and VI mirrors, and as Mr Wilson-Law conceded only for about half the amount of time which he would have been visible if the vehicles had been otherwise positioned, due to the obstruction caused by the rear of the PSV.

There being, as both experts acknowledge, no prescribed or recommended sequence of visual checks, it is clearly a matter for the driver of an LGV to select the most appropriate one in the particular circumstances in which he finds himself. Subject, of course, to the type of considerations described in the guidance provided in both the Highway Code and the DSA handbook. In this regard although Mr Lucas acknowledged that he had not been provided with a copy of the latter handbook, he was aware of those considerations and I accept took them into account. As I have already mentioned, I am satisfied that Mr Lucas carried out the sequence of checks which he described in evidence. Indeed much of the force of Mr Hillier’s criticism would disappear had the sequence been the one which Mr Lucas initially appeared to describe to the police. In this regard I consider that this apparent difference in his account was, as Mr Lucas said, likely to have been due to shock and confusion on his part following the occurrence of the accident. Had it been otherwise, a less honest individual may well have chosen to maintain his initial account. I am also satisfied that in carrying out this sequence of visual checks, Mr Lucas did so in a conscientious and careful manner and did not see the deceased in the course of the checks which he made in either his Class V or VI mirrors, not because of any lack of care on his part, but because the deceased was not in the relevant field of vision at the material time.

It is in this context that it falls to be determined whether the sequence of visual checks carried out by Mr Lucas was the appropriate one, and in particular whether his omission to carry out a second and final check of his Class VI mirror immediately before moving the LGV forward amounted to a lack of reasonable care by him. As to the choice of sequence, it seems to me that there can be no justifiable criticism of his decision to check his nearside window and mirrors, including his Class VI, prior to checking his offside views. Indeed this is not at the heart of the criticism, it being acknowledged that a start has to be made on one side or another. The question is whether at the conclusion of that sequence, he should have re-checked his Class VI mirror.

I accept the evidence of Mr Lucas that when he carried out this sequence of visual checks, there was nothing which came to his attention which alerted him to the possible presence of pedestrians in close proximity to the front of the LGV. As I have already mentioned this does not imply any lack of care in making those observations. As both experts acknowledged, even if the relative positions of the two vehicles provided a more favourable view of the deceased to Mr Lucas, given the timings involved it may still have been that Mr Lucas’ observations through the Class V and VI mirrors had ceased at a time prior to the deceased having entered into those fields of vision, which is what I have found occurred in this case.

In these circumstances, and having completed that sequence of visual checks, I have reached the conclusion that there can be no justifiable criticism of Mr Lucas in not re-checking his Class VI mirror prior to moving his LGV forward along Fore Street that evening. In this regard it is likely, given the proximity of the nearside mirrors to each other that the whole sequence of visual checks, from start to finish, took no more than 3 or 4 seconds to complete, with the view through the Class VI mirror taking place at least midway through this period. Therefore given the timings involved, it is likely that Mr Lucas ceased his view through his Class VI mirror only a second or so prior to moving forward in the LGV, and that it was in this same brief period that the deceased first entered into the field of vision of that mirror. In these circumstances I consider that it would be unreasonable to expect Mr Lucas to have anticipated the possible presence of anyone entering into the field of vision of the Class VI mirror in this intervening period. Mr Lucas had only just checked his view through the Class VI mirror when there had been nothing to be seen, and in my judgement there was no other sufficient reason which ought to have alerted Mr Lucas to the possible presence of the deceased in front of his LGV within such a short interval of time.

In this regard I accept the opinion of Mr Jennings that this was not an analogous situation to a vehicle turning across a road, rather this was one with multiple sources of potential danger, and note that there was no contrary opinion expressed by Mr Wilson-Law on this point. Moreover, I agree with Mr Jennings, that given the relative positions of the vehicles at the time, he wouldn’t have expected a driver to have re-checked his Class VI mirror. The possibility that an individual would walk across the front of the LGV after having walked across the rear and down the side of the PSV, was not one that ought to have been within Mr Lucas’ reasonable contemplation.

However, in my view the evidence goes beyond this conclusion, in that given Mr Wilson-Law’s opinion as to the lack of conspicuity of the deceased and other factors affecting Mr Lucas’ view through the Class VI mirror, even if Mr Lucas had carefully re-checked this mirror prior to moving the LGV forward, I do not consider that the claimant would be in a position to establish that Mr Lucas would thereby have been enabled to notice the presence of the deceased in his field of vision immediately prior to the collision. The fact that it may not have been “impossible” for Mr Lucas to have seen the deceased in these circumstances would not in my judgement have been sufficient, given the evidence of Mr Wilson-Law, which I accept, that it would have been difficult for even an alert driver to do so.

In reaching these conclusions I of course bear in mind that, as Mr Lucas properly acknowledged, his awareness of the presence of pedestrians on Fore Street within the hours of darkness that evening demanded a significant degree of vigilance to be exercised by him prior to moving what on any view was a substantial and potentially lethal vehicle. However in my judgement, for the reasons which I have provided, the claimant has failed to establish any lack of reasonable care on the part of Mr Lucas, necessary to establish liability. Regrettably, I am of the view that given the circumstances which pertained on Fore Street that evening, the failure of the deceased to take any precautions for his own safety, whether by using the available pedestrian controlled crossing, wearing more conspicuous materials, choosing a less hazardous path or otherwise has resulted in him being the author of this tragic incident.