Sparrow v Andre

The Claimant claims damages for personal injuries and consequential loss, suffered on 10 February 2013, in a vehicle collision in the car park of the Park Club (“the Club”), East Acton Lane, London, W3, which the Claimant contends was the result of the Defendant’s negligence. This was the trial of the preliminary issues of breach of duty and causation.

In summary, the Claimant and the Defendant were both manoeuvring in the crowded car park. The rear of the Claimant’s car collided with the rear of the Defendant’s car. The Claimant got out of his car to inspect the damage. The Defendant moved his car away and the Claimant’s car then rolled backwards down a slope towards the entrance to a service area. Fearing for the safety of his children who were in the car, the Claimant attempted to hold the car back, but he was overwhelmed, and the car crushed his left leg against a metal gate post. His injuries were so serious that the leg had to be amputated.

The Claimant contended that his car was stationary when the Defendant reversed into it at speed and force, causing damage to both cars. The cars’ bumpers were jammed against each other, at an angle. When the Defendant moved his car forward, it caused the Claimant’s car to roll down the slope, resulting in the injury to the Claimant’s leg. The Defendant contended that his car was stationary when the Claimant reversed into him. It was a low speed collision, and a gentle impact, causing no more than scratches. His action in moving his car forward did not cause the Claimant’s car to roll down the slope. The car rolled down the slope because the Claimant carelessly left it with the ignition switched on, in ‘neutral’ instead of ‘park’ mode, and he failed to engage the brakes.

The Claimant gave oral evidence, based upon the witness statements he made for the trial in October 2015, January 2016 and February 2016. He also made a statement and drawing for his insurers in February and March 2013, and a statement to the police dated 22 July 2013.

The Claimant called as witnesses Mr John Sawtell and Mrs Sophie Pond-Jones who were in the Club car park at the relevant time. Neither of them knew the Claimant. Mr Sawtell gave his account of events to the Claimant’s insurers by email on 26 March 2013, and also made a statement to the police. He made a statement for the trial on 7 March 2015. Mrs Pond-Jones made a statement for the trial on 23 August 2013.

The Claimant’s expert witness was Mr Jonathan Bright BEng MEng CEng MiMechE, employed by Hawkins & Associates Ltd., a firm of forensic investigators. Mr Bright’s written report dated 7 January 2016 and letter dated 7 March 2016 were adduced in evidence (together with photographs and videos) and he gave oral evidence.

The Defendant gave oral evidence, based upon his witness statements made in September 2014 and November 2015, together with a drawing. Mr Roderick McKinnon, who is a retired police officer and a qualified forensic collision investigator, gave oral evidence of his vehicle inspections, based on his statement dated 22 October 2015, on behalf of the Defendant.

The Defendant’s expert witness was Mr Philip Mottram BSc (Hons) CEng MIMMM, director of Sisco Forensic Engineers Limited, a firm of forensic investigators. He gave oral evidence, based upon his written report, dated 14 December 2015 and his letters dated 24 February 2016 and 14 March 2016. He provided photographs and video evidence.

The two experts met to discuss their findings on 26 January 2016, and prepared a ‘Joint Statement of Points of Agreement and Disagreement’ dated 29 January 2016. In the Joint Statement, Mr Mottram declined to deal with an issue raised by Mr Bright, namely, that it was possible that the point of impact was on the rear nearside of the Defendant’s car, because all the evidence indicated that the point of impact was on the rear offside of the Defendant’s car. The Claimant served CPR Part 35 questions on that issue. At a hearing on 15 February 2016, Foskett J. directed that Mr Mottram ought to deal with that issue, and gave the Claimant permission to amend the Particulars of Claim, and to adduce a witness statement, raising the issue, in the alternative, that the collision was at the rear nearside of the Defendant’s car. Mr Mottram responded to the Part 35 questions in a letter dated 24 February 2016. Unfortunately, it was mis-addressed and so did not reach the Claimant’s solicitors until 29 February 2016.

At the beginning of this trial, I heard an application by the Claimant to adduce in evidence a letter dated 7 March 2016 from Mr Bright in response to Mr Mottram’s Part 35 reply. The Defendant opposed the application, on the basis that the evidence had arrived too late, it placed Mr Mottram and the Defendant’s team at an unfair disadvantage, and Foskett J. had indicated at the hearing on 15 February 2016 that Mr Mottram’s reply should be the final word on the issue. After hearing submissions, I concluded that this was a crucial issue in the trial which could not be fully and fairly considered unless the points raised by Mr Bright were taken into account. The better course was to give Mr Mottram a fair opportunity to deal with Mr Bright’s letter of 7 March. The experts decided to conduct a joint inspection of the Defendant’s car during the trial and Mr Mottram then produced the letter of 15 March 2016 setting out his opinion.

Other evidence was adduced without the attendance of witnesses at court:

After giving careful consideration to all the evidence, I make the following findings, on the balance of probabilities.

The Claimant was driving a black coloured Lexus CT200h 1.8 litre 5 door hatchback which was a hybrid with automatic transmission (“the black Lexus”). The registration mark was LP61 EWS. Mr McKinnon recorded the dimensions of the black Lexus as follows: length: 4.32 metres; width: 1.77 metres; height: 1.43 metres. The Claimant’s two children were passengers in the rear of the car. The Claimant was familiar with the car park as he was a regular Club user.

The Defendant was driving a silver coloured Lexus RH400h (“the silver Lexus”) which was a 3.3 litre 5 door 4 x 4 vehicle which was a hybrid with automatic transmission. Its registration mark was GP55 EKG. Mr McKinnon recorded its dimensions as follows: length: 4.74 metres; width: 1.85 metres; height: 1.73 metres. It was a larger car than the Claimant’s, and 26% heavier.

The accident occurred on 10 February 2013. The times given by the witnesses were slightly inconsistent. In my view, the only reliably accurate time was the London Ambulance Service log which recorded that the 999 call was received from the Club at 10.51 am, so the initial collision probably occurred between 10.40 and 10.45 am.

The Claimant drove into the car park and saw the silver Lexus stationary in front of him, apparently waiting for a parking space to become free. The Claimant’s car was about four to five metres behind the silver Lexus. The Claimant decided to make a three point turn in order to leave the car park and look for a space in the adjacent car park. Mr Sawtell was behind the Claimant in the queue for parking spaces and had stopped at the entrance to the car park, some 15 metres away. Mr Sawtell described how the Claimant reversed slightly to make space for his turn, and then turned right, at an angle, into some vacant disabled parking bays, straddling two of them. This was consistent with the Claimant’s account and I accepted it.

The Claimant then began to reverse out of the disabled bays, in a direction which was slightly to the left. Mr Sawtell described this as a “very marginal turn” to the left. As he began to reverse, he could see that the silver Lexus was stationary. Mr Sawtell saw that, after the black Lexus began to reverse, the silver Lexus also began to reverse, in the direction of the black Lexus. As the Claimant reversed, he was looking over his shoulder, to the left, through the rear window, and he saw the silver Lexus reversing in the direction of his car. The Claimant braked part-way through his manoeuvre and remained stationary, to avoid colliding with the Defendant. However, the silver Lexus continued to reverse, and drove into the rear of the black Lexus. Mr Sawtell confirmed the Claimant’s evidence, that the black Lexus was stationary and the silver Lexus was reversing, at the point of collision. It all happened in a short space of time. Mr Sawtell said that both cars were reversing towards each other for less than five seconds, and the silver Lexus continued to reverse for one or two seconds after the black Lexus came to a halt. I accepted this account.

After the collision, the Claimant got out of his car and walked to the rear to inspect his car. He saw noticeable damage to the bodywork. The Defendant did not get out of his car. After a few seconds, the silver Lexus drove forward. The Claimant took a few steps towards the Defendant’s car in order to speak to him, but then heard his children screaming from the back of his car. He turned and saw the black Lexus rolling backwards towards him down the slope. Mr Sawtell’s evidence was that, as the silver Lexus moved forwards, the black Lexus immediately started rolling backwards down the slope. I accepted this account.

The Claimant was fearful that his children might be harmed if his car hit the electrical switch room and large propane gas cylinders in the service area so he ran to the back of the car and attempting to hold it back with his hands. The car gathered momentum and its speed increased as the gradient of the slope became greater. The Claimant turned his hip to the car and tried to get a better footing, but the car took him with it, and crushed his left leg against the metal post at the entrance to the service area. The car did not pin his leg against the post. Mr Sawtell described how the car rebounded or bounced back about 5 to 10 cm, and came to a halt. I accepted this account.

The Defendant’s account was that this was his first visit to the Club. He dropped his wife and two children off at the entrance and then searched for a parking place. The car park was full. Eventually he saw a car coming out of a parking space, and he positioned his car so that it was pointing towards the parking space, ready to move into it. However, another driver drove into the vacant space ahead of him. Although he denied in the Defence that he had spoken to another driver, he admitted in his oral evidence that he had a verbal exchange with the other driver, explaining that he had been waiting to park there, but the other driver insisted that she had been waiting longer than him. The Defendant decided to drive forward to look for other parking places further on in the car park, but there was insufficient space for him to straighten his car, and so he first had to reverse a short distance. He estimated the distance at two to three car lengths, but, on looking at the plan and the photographs, I consider it would have been two car lengths at most. The Defendant said he drove in an arc, curving round to his offside, and collided with the Claimant’s car.

In his witness statement the Defendant said that his car had been stationary at the point of collision and that the Claimant reversed out of the disabled bay into the path of his vehicle. This was also pleaded in paragraph 1.2.5 of the Defence. However, in his oral evidence at trial, the Defendant said in cross-examination that he accepted it was possible that the Claimant was correct and that he reversed into the Claimant’s car. He could not be “100 percent sure” he had stopped. I considered that the Defendant’s admission of fault sounded genuine. In the light of this evidence, the Defendant’s counsel, in closing submissions, conceded that the Defendant was in breach of his duty of care by failing to keep a proper look out and colliding with the Claimant. In my view, such a late change in the Defendant’s evidence on a key issue significantly undermined his credibility as a witness.

The Defendant admitted that he did not see the Claimant’s car before the collision occurred. The photographs showed that the visibility through his rear window was obscured by passenger head restraints, but the reversing camera provided a good quality image. The Defendant said that he was looking at the screen of the reversing camera, in accordance with his usual practice, as well as his wing mirrors. As the cars were reversing towards each other at an angle, not in a straight line, it is likely that initially the Claimant’s car was to one side and so outside the field of vision of the reversing camera, but if so, it would probably have been visible in the Defendant’s wing mirror. The experts were unable to explain why the parking sensors did not operate. Immediately before the collision, the Claimant’s car must have been within the field of vision of the reversing camera, as part of it was immediately behind the Defendant’s back window. I concluded that the Defendant did not keep a proper look-out. If the Defendant had seen the Claimant’s car, he would probably have been able to brake and prevent the collision or at least reduce the speed of the impact.

The Defendant’s evidence was that he engaged his reverse gear and allowed the car to “creep” backwards, without using his accelerator. The expert evidence was that his speed would be no more than 2.5 mph if he did not use his accelerator. However, I accepted the Claimant’s evidence that the Defendant was reversing at a speed in excess of 2.5 mph; more like 6 to 10 mph. I consider that 6 to 10 mph was consistent with Mr Sawtell’s description of the silver Lexus reversing at “the speed you would expect in a car park”, and I considered 2.5 mph an unusually slow speed at which to make a short reversing manoeuvre of the kind that the Defendant described. If he had been driving that slowly, I considered that it was highly likely he would have seen the Claimant’s car at some point before the collision.

In my view, it was probable that the Defendant reversed quickly and without keeping a proper look-out because he was frustrated at losing the parking place to another driver; because it was only a short distance; and because, on my assessment of him when giving evidence, he was a somewhat impatient personality who was a confident driver in this car as he drove it regularly, even though he was not familiar with the location.

The Claimant said that, at the moment of collision, there was a large impact, an audible loud bang and all three occupants of the car were thrown violently in their seats. Mr Sawtell, made no mention of noise in his initial statements to the insurers and the police. When he was making his statement for the litigation, he was asked by the Claimant’s solicitors whether he had heard any noise at the time of the collision. He said that he remembered the sound of the collision very well and could hear a “crunch” as the cars collided, even though he was some distance away and his car windows were closed. In his oral evidence he said he heard the sound of an impact which was consistent with what he saw, namely, a collision between two heavy metal objects. He was pressed in cross-examination as to why he had not mentioned this in his earlier statements. He explained that he had a fuller discussion about the chain of events with the solicitors, and he had either been asked about a noise or volunteered it, he could not recall. I found Mr Sawtell to be a reliable witness and I accepted he was telling the truth.

I also found that Mrs Pond-Jones was telling the truth when she said that she heard a loud bang which she recognised as the sound of two cars colliding. She said that the noise was loud and audible despite the heavy rain. She did not see the collision, as she was getting out of her car, further down the car park. However, as she approached the bin area, she heard the Claimant crying out and she then saw the Claimant lying injured on the ground. In the absence of any evidence of another collision at around that time, it seemed to me more likely than not that the bang which Mrs Pond-Jones heard was the sound of the black Lexus and silver Lexus colliding. It was suggested that the reliability of her evidence was undermined by her reference to heavy rain, when the evidence of the Claimant, the Defendant and Mrs Sawtell was that it was not raining at the time the collision occurred. The Defendant said it had been raining earlier in the morning and the road surface was damp but it might have stopped by the time he arrived at the Club. Mr Sawtell said in his email of 26 March 2013 that it was overcast and later on in the morning it rained. In his oral evidence, his recollection was that it began to rain when he was waiting with the Claimant for the ambulance to arrive. The Claimant made no mention of rain in his witness statements. The police arrived at 11.08 am when the ambulance was already on scene. The police report stated it was raining and the road surface was wet/damp. In my view, it seemed likely that Mrs Pond-Jones mis-remembered the time at which it was raining heavily – it was raining that morning before and after the time of the collision but not at the time of collision. Despite this weakness in her evidence, I found her account of the loud noise convincing.

The Defendant’s evidence as set out in his witness statement was as follows:

“I felt a very light contact on my car. It was something that I heard rather than felt because it really was very gentle. My car was not jolted or shaken or moved from its position.”

He was cross-examined on this issue, and said it was no more than a gentle bumper touch. He said he heard a bump or bang, not the sound of a heavy collision. He was not shaken in the car, and he was not particularly worried.

The Defendant would probably not have felt the impact as much as the Claimant because the Defendant’s silver Lexus was a 4 x 4 which was larger and 26% heavier than the Claimant’s black Lexus hatchback. The rear of his car was also protected by a layer of foam behind the bumper area. However, I also considered that the Defendant was not being truthful about the severity of the collision, which I concluded was more accurately described by the Claimant, whose evidence was supported in relation to noise by Mrs Pond-Jones and Mr Sawtell.

In my view, the Defendant’s evidence to the court on the noise and impact was another instance of him seeking to minimise both the seriousness of the collision and his involvement in it. The first occasion was immediately after the collision when he drove away without first getting out of his car to inspect the damage, or exchange particulars with him, or at least speak to the Claimant to explain that he was just parking his car and would be back shortly. I did not find his explanation - that he was merely moving his car out of the way to let others pass – plausible, and I thought it was more likely that he hoped to escape any confrontation with the Claimant by driving to another part of the car park out of sight of the Claimant, and then walking into the Club.

Next the Defendant minimised his involvement when he was interviewed by the police at the scene. The statement of PC Morrice read as follows:

“We were then approached by a French male Mr Arnoud Andre who explained that he had been attempting to park, the car park was busy and as he attempted to reverse into a space he had been stopped from doing so by a black Lexus, he then pulled forward into another space further up and past the bin area, as he was walking to the entrance of the club he saw the black Lexus rolling backwards with a male trying to stop it at the rear but it continued slowly stopping against a black post.”

PC Wall gave a similar account in his statement and added:

“He was asked whether there was any collision with the other vehicle which he denied.”

The Defendant said that he did not tell them that the black Lexus drove into the parking space he had been waiting for; that he did not deny colliding with the Claimant’s car; that he told them there had been a “bumper touch” and that was why they inspected his car for damage. I considered it was likely that the police partially misunderstood the Defendant’s account of events, probably because English was not his first language. I accepted that they must have thought there had been some contact between his car and the Claimant’s otherwise they would not have inspected his car to check for damage. Nonetheless, I also considered that he gave an account of events which was inaccurate, suggesting that the collision was not his fault and that it was less serious than it was.

Subsequently, the Defendant also sought to minimise his involvement in the accident when he told his insurers and their solicitors that the Claimant was responsible for the collision because he was stationary when it occurred and the Claimant had reversed out of a parking bay into his path. He made a witness statement to that effect, and the Defence served on his behalf reflected his account of events. However, at trial he admitted that the Claimant was probably correct in his claim that he was stationary and the Defendant reversed into him.

Overall, my assessment of the Defendant was that he was not a truthful witness.

By the time of the trial, the earlier issues as to how the black Lexus could have rolled backwards down the slope had been substantially resolved. A mechanical fault with its gears or its brakes had been ruled out. There were several ways in which the car could have been safely parked and braked. First, by pressing the “Park” button (equivalent to a “Park” gear on other cars) which would have engaged a pin into the rotating parts of the transmission, preventing it from turning, thus locking the car’s driven wheels. Second, by pressing the parking brake pedal in the foot well (equivalent to a hand brake on other cars) which would have applied the car’s rear wheel brakes. Third, by switching off the ignition, which would have automatically engaged the car in “Park” mode. It was agreed by the experts that if the car had been parked or braked, it could not have rolled down the slope, and so the Claimant must have failed to take any of the three steps set out above to prevent the car from moving. On arrival at the scene, PC Morrice got into the car and found that “all the electrical equipment was illuminated” indicating that the Claimant had not turned off the ignition. The experts were agreed, and the Claimant reluctantly conceded, that when the Claimant got out of the car he left the ignition on and the gears in neutral. The experts ruled out the possibility that the Claimant left the car in reverse gear because, after it ran into his leg and the gate post, it rebounded back and did not continue to move back. If the car had been in reverse gear it would have continued to travel slowly in reverse, and not rebounded and come to a halt.

There was inconsistent evidence on the exact position of the black Lexus. The evidence of the Claimant and Mr Sawtell was that the Claimant was reversing out of the second and third bays (straddling the two). I accepted that evidence as convincing. The expert evidence was based on incorrect assumptions about the position of the black Lexus. Mr Handy incorrectly identified a row of four disabled bays, followed by a hatched area, on his plan, when in fact there were only three disabled bays, followed by a standard bay and then a hatched area. Mr Bright’s opinion was based on the assumption that the Claimant was reversing out of the hatched area. Mr Mottram’s opinion was based on Mr Handy’s incorrect plan, from which he assumed that the Claimant was reversing out of the standard bay, not the disabled bays.

However the experts were satisfied that these false assumptions did not really affect the validity of their assessments of the slope, and the point at which the black Lexus would have rolled down it. Mr Handy measured and mapped the slope gradients across the car park. Both experts carried out reconstructions in the car park which I observed on video. Both experts were agreed that the black Lexus would have rolled down the slope towards the entrance to the bin area once the rear end of the car was 10 metres from the gate post, where the slope was 3 degrees, but not at any point further away from the gate post. The video reconstructions showed a car inching backwards and the point at which it began to roll. They also demonstrated a tipping point, at which the car was stationary but when lightly touched with a man’s hand, it started to gently roll backwards.

During the trial, Mr Mottram measured, by reference to a scale plan, the distance from the gate post to the mouth of the disabled bays from where the evidence indicated that the Claimant had been reversing. That distance was 15.9 metres. So if the rear of the Claimant’s car was 10 metres from the gate post, and as the car was 4.32 metres long, the front of the car would have been 14.32 metres from the gate post and 1.58 metres from the mouth of the disabled bay. I accepted this evidence. It indicated that the Claimant was mistaken when he said in evidence that when the collision occurred his car was half in and half out of the disabled bays. Indeed, under cross-examination, he accepted he was not sure. Mr Sawtell said that the Claimant’s car was completely out of the disabled bays at the point of collision, though still close to the mouth of the bay. This was broadly consistent with the measurements I have described above.

In his statements to his insurers, the police and in these proceedings, the Claimant described a loud wrenching sound as the silver Lexus moved away, and said that his car jumped. For example, the Claimant said in his statement to the police:

“…the Silver Lexus suddenly accelerated quickly forward. I heard an extremely loud wrenching sound as the Silver Lexus pulled away from my vehicle. I could tell that both vehicle bumpers and/or bodywork were locked in some way together as the motion of the Silver Lexus forced them apart. It also caused my vehicle to jump on the suspension as they came apart.”

Although the Defendant denied that there was a wrenching sound, I preferred the evidence of the Claimant. His description, soon after the event, was so graphic and sufficiently unusual that I did not believe it had been manufactured or exaggerated.

Mr Sawtell made no mention of a wrenching sound in his statement to the insurers, the police or in his witness statement in the proceedings. In his oral evidence he said that, even though he was some 15 metres away in his car, he had heard a “crunch”, “a slight shattering sound” suggesting that the two cars were locked. When he was challenged in cross-examination as to why he had not mentioned this before, he said he had always been aware that he had heard a sound but did not think that it was necessary to include it in a witness statement. When he arrived at court to give evidence, he was asked for the first time - the Claimant’s solicitors asked him if he had heard a wrenching sound, and he agreed that he had. Although Mr Hunter and I were concerned about the reliability of such a late addition to the evidence, and the danger that the Claimant’s solicitor had inadvertently prompted a false recollection, I was satisfied upon hearing Mr Sawtell’s account that he had a genuine and clear recollection of the noise and that he was telling the truth.

Mr Bright considered (and Mr Mottram accepted in cross-examination) that, if there was a wrenching noise, then the two cars were probably interlocked in some way. The cars might just have “parted noisily” or the silver Lexus might have pulled the black Lexus as they separated, precipitating the descent down the slope. Both experts agreed that in their undamaged states the shapes and dimensions of the two vehicles would not have resulted in any interlocking; it could only have been caused by some damage or displacement which occurred in the collision, and which ought to be visible upon inspection.

The Claimant’s car suffered significant damage. There was a dispute as to the extent of the damage caused in the initial collision with the Defendant’s car as opposed to the second collision into the gate post. On behalf of the Defendant, it was inspected by Mr McKinnon at the Club on 25 May 2013.

Mr McKinnon, whose evidence I accepted, described the damage in the following way:

“11.

The nearside of the rear plastic bumper cover had been split both horizontally and vertically. The split plastic had been pushed forwards, exposing the underlying metal structure. Surrounding the splits there were numerous predominantly vertical scratches and scuffmarks and radial stress fractures in the plastic. A parking sensor positioned within the bumper cover, approximately 20 centimetres to the nearside of the vehicle’s longitudinal axis had been displaced.

12.

This damage commenced approximately 17 centimetres to the nearside of the longitudinal axis and extended towards the nearside corner of the bumper cover for approximately 57 centimetres.

13.

The major split in the cover extended from the displaced parking sensor in a horizontal line for a span of approximately 38 centimetres. The split was located approximately 51 centimetres above ground level and directly above the exposed underlying metal structure.

14.

Between approximately 39 to 46 centimetres to the nearside of the longitudinal axis a further split extended upwards for approximately 13 centimetres to the top of the cover, where it then fragmented into further horizontal and longitudinally aligned splits directly below the lower nearside edge of the hatchback door.

15.

Photographs 9 and 10 show the splits in the rear bumper cover, the numerous scratches and scuffmarks, the displaced parking sensor and the exposed underlying metal structure.”

During the hearing, for ease of reference, we referred to the damage to the black Lexus as (1) the small L-shaped split; (2) the large split/flap; (3) the scratches. There was also distortion of the crush can, not referred to by Mr Mackinnon.

The Defendant’s car had only minor damage. Mr Mackinnon inspected the silver Lexus on 18 June 2013 and found as follows:

“21.

Upon inspection of the rear plastic bumper cover, numerous minor scratches, scuffmarks and blemishes were observed. There was no visible indication of any distortion to the bumper cover or underlying structures.

22.

All of the scratches and scuffmarks appeared to be consistent with having been caused by minor parking type incidents.

23.

Approximately 53 centimetres to the offside of the vehicles longitudinal axis there were faint scratches and scuffmarks within the mid section of the bumper cover as seen in Photograph 16.

24.

Between approximately 22 and 25 centimetres to the offside of the longitudinal axis there was a line of minor scratches within the lower edge of the cover as shown in Photograph 17.

25.

Between approximately 40 and 47 centimetres to the nearside of the longitudinal axis there was a line of small vertical scratches in the mid to lower part of the cover. To the nearside of the scratches there was a minor crack in the lower edge of the cover as shown on Photograph 18.”

The Claimant stated to the insurers, the police, and in his initial witness statements in these proceedings that the collision occurred between the rear nearside of his car and rear offside of the silver Lexus, creating a V shape. The Claimant’s drawing to his insurers also demonstrated this. Mr Sawtell’s account to the insurers, the police and in his witness statement and oral evidence in these proceedings was that the collision occurred between the rear nearside of the black Lexus and the rear offside of the silver Lexus, at an angle of 120 degrees. The Defendant confirmed this in his witness statement. The police report, presumably based upon information provided by the Defendant and Mr Sawtell, indicated on the vehicle drawings that the point of collision was the rear nearside of the black Lexus and the rear offside of the silver Lexus.

Initially the experts proceeded upon the basis of an offside/nearside collision as that was the agreed evidence. The experts agreed in their Joint Statement that, if the collision occurred at the rear offside of the silver Lexus, the lack of significant damage to the silver Lexus meant that, on the balance of probabilities, both cars only sustained superficial cosmetic damage e.g. scratches and scuffing in that collision. Such limited damage was consistent with the silver Lexus only travelling at a “creep” of 2.5 mph without use of the accelerator. They said that generally similar damage to both vehicles would be expected and so the more serious damage to the black Lexus must have occurred in the second collision with the gate post. Further evidence produced at trial indicated that the damage and impact to the silver Lexus could have been reduced because of a foam lining inserted behind the bumper area of the silver Lexus. This would have absorbed energy and maintained the firmness of the bumper when pushed. The black Lexus was not fitted with a foam lining.

There was no sign of any damage or displacement on the offside of the silver Lexus which could explain an interlocking with the black Lexus or a loud wrenching noise. The experts accepted at trial that the black Lexus could have moved on its suspension after the silver Lexus withdrew, even in a bumper to bumper collision without any interlocking.

The difficulty with this analysis was that I have found, on the evidence, that there was a loud wrenching sound as if the two vehicles were interlocked in some way. I have also found that the silver Lexus was travelling at the faster speed of 6 to 10 mph, which would be likely to cause more damage than a collision at 2.5 mph. It also did not offer an explanation for the large area of vertical scratch marks on the black Lexus, characteristic of one bumper moving up and down against another bumper, when there were no scratch marks on the offside of the silver Lexus which corresponded to them. These vertical scratches were not likely to have been caused in the collision with the gate post, because of their pattern and location, but also because the collision was with the Claimant’s leg, not the sharp metal edge of the gate post.

Mr Bright’s alternative analysis was that the nearside of the silver Lexus collided with the black Lexus, not the offside. In his opinion, such a collision would have caused the vertical scratch marks on the black Lexus which corresponded to scratch marks found on the silver Lexus on the nearside. It would also have caused the L-shaped split on the black Lexus and the cracking damage on the nearside of the silver Lexus, and the inward displacement of the panel joint. The photographs demonstrated that there was an inward step on the L-shaped split on the black Lexus (described as Edge B) and an inward step at the panel joint on the silver Lexus (described as Edge A). After the accurate measurements were obtained at a further joint inspection of the silver Lexus on 15 March 2016, it became apparent that Edge A and Edge B were sufficiently close in height, to make it feasible that they overlapped and engaged. The distinctive shape and size of the damage to both cars matched, and I concluded that it would be an extraordinary coincidence if, as the Defendant said, the damage to his car had been caused in a different accident in the previous year. In the light of his previous attempts to minimise the seriousness of the accident, and my overall finding that he was not a truthful witness, I did not accept the Defendant’s account of how this damage had occurred.

Mr Mottram argued that, if the two cars had collided in the manner suggested by Mr Bright, they would have been positioned in a straight line, one behind the other, with the black Lexus in a line with the gate post which it subsequently ran into. He considered that this was at odds with the direction in which each car was travelling immediately before the collision, and the position in which they ended up after the collision.

During Mr Mottram’s evidence, it became apparent that he had misunderstood the Defendant’s evidence of the position of silver Lexus and so his sketch was inaccurate. Mr Mottram erroneously thought that the silver Lexus was facing forwards into the car park and the Defendant was seeking to turn around and leave the car park. In fact, the silver Lexus was pointing in the direction of the space that the Defendant was about to drive into, to such an extent that he could not then drive forwards when he wanted to drive on into the car park to look for another space. He had to reverse to gain sufficient room to straighten his car, and I accepted his evidence that he reversed in an arc, curving round to the offside. As I have already described, Mr Mottram had also been misled by Mr Handy’s plan as to the position of the Claimant’s car, believing that it had reversed from a bay next to the hatched area, instead of the second and third bays down from the hatched area. Based on my findings as to the actual positions of both cars during the reversing manoeuvres, and after consideration of the plans and the photographs, I concluded that a nearside/nearside collision was consistent with the positions and direction of travel of both cars.

Although it was correct to say that, on Mr Bright’s analysis, the cars would have been aligned bumper to bumper at the point where they interlocked, this was only at the nearside of each car, and it did not mean that the bumpers had to be aligned along their entire length. Given the direction of travel of each car, I did not consider that there would have been a full bumper to bumper collision.

I considered it was plausible that the angle which the Claimant and Mr Sawtell recalled seeing was created by the cars being in contact only at one point on the nearside, not a full bumper to bumper collision. In my view, it was possible that they both mistakenly recalled it as nearside/offside. I thought it was telling that when Mr Sawtell was asked, during his evidence, to demonstrate the collision with two model cars, he immediately held them at an angle, nearside to nearside. When he was pressed on the point, and it was explained to him that these were right-hand drive model cars, he moved the point of contact on the silver Lexus to the offside, to correspond with his statement. The Claimant, in his third witness statement, and in his oral evidence, said he had struggled to understand how the silver Lexus had no damage on the offside when he had a clear recollection of a wrenching sound and an interlocking between the two vehicles, and he had seen noticeable damage to his car before the car ran into the gate post. He confirmed his initial recollection that the cars had met at an angle but considered that the angle could also have been created by a nearside/nearside collision, and that he could have been mistaken in his earlier recollection that it was a nearside/offside collision. I placed little weight on the Defendant’s recollection of the point of impact, as I found him to be an unreliable witness. He did not get out of the car to inspect the point of impact and the view of the bumpers from his reversing camera was limited.

Mr Mottram argued that the L-shaped spit and the large split/flap were all part of the same damage, occurring when the black Lexus hit the gate post. Mr Bright disagreed, saying that the damage was over too wide an area to have occurred at one time. Mr Mottram interpreted paragraph 12 of Mr Mckinnon’s statement above as meaning that the width of the damage was 40 cm i.e. from a point at 17 centimetres from the longitudinal axis (the middle point at the rear of the car) to a point at 57 cm from the longitudinal axis. I agreed with Mr Levy’s submission that paragraph 12 was intended to mean what it said i.e. that the damage extended for 57 cm. I formed this view after considering the car’s width, the dimensions of each item of damage and matching them to the photographs. In my view, Mr Mottram’s figure of 40 cm was not wide enough to include the scratches to the nearside of the small L-shaped split. However, I accepted Mr Mckinnon’s evidence (who unlike Mr Mottram examined the black Lexus and photographed it) that the bumper casing was cracked all the way along. This was also visible in the photographs, and confirmed by Mr Mottram from his inspection of the photographs. My conclusion was that the two splits could have been caused in second collision alone, but because of the evidence of a wrenching noise and interlocking, it was probable that the L-shaped split had been caused in the first collision, together with the scratches.

Mr Bright accepted under cross-examination that the distortion of the crush can was inconclusive as it could have occurred in either collision – the fact that it was situated behind the L-shaped split did not mean that it could only have been caused at the same time as that damage.

I concluded that Mr Bright was mistaken in his suggestion that, if the damage had been caused in a collision with the gate post, there would have been a vertical indent from the metal edge of the gate post. The car did not collide directly with the post because the Claimant’s leg was in the way. Mr Bright’s suggestion that the nature of the injury to the Claimant’s leg meant that little force would have been transmitted to the car was successfully undermined in cross-examination by Mr Hunter, by reference to the speed at which the car was travelling, the extensive injuries to the leg, and the fact that the car struck the leg and the post with sufficient force to cause it to rebound back up the slope.

Taking all these matters into account, my conclusion was that, on the balance of probabilities, the initial collision occurred between the rear nearside of the black Lexus and the rear nearside of the silver Lexus. Although the witnesses described the point of contact as being the rear offside of the silver Lexus, the inspection of the vehicle indicated that it was the nearside. There was no damage on the offside, despite the collision into a stationary car at a speed of 6 - 10 mph, and no possible explanation for the loud wrenching noise. Whereas on the nearside, there were scratches and cracking damage and the inward displacement of the panel joint which corresponded to the L-shaped split on the black Lexus. On the balance of probabilities, I found that the cars were interlocked at Edge A and Edge B. When the silver Lexus moved forward, there was a loud wrenching noise as the cars came apart, and the black Lexus moved on its suspension. The black Lexus was probably at the tipping point where it was liable to roll down the slope if any pressure was applied. The forcible separation of the two cars probably created the slight impetus required to set the black Lexus rolling down the slope towards the service area. It is possible that the silver Lexus dragged the black Lexus, but this could only have been a very slight movement, as otherwise the small, thin area of plastic at Edge A would have snapped under the pressure. The Claimant did not apply the brakes and left the car in neutral with the ignition switched on. Once the silver Lexus moved away, there was nothing to prevent the black Lexus from rolling down the slope, which it duly did. The severe injuries to the Claimant’s leg were caused by the force of the car crushing his leg against the metal post.

At the close of the trial, in the light of the Defendant’s evidence, Mr Hunter conceded that the Defendant was in breach of the duty of care, by failing to keep a proper look-out and reversing into the Claimant’s car.

Although I found that the Defendant was driving more quickly than he claimed, I did not consider that reversing at the low speed of 6 to 10 mph in a car park was, of itself, negligent. He could have driven safely at that speed if he had kept a proper look-out.

Clerk and Lindsell on Torts (21^st Ed.) states at paragraph 2-09:

“The first step in establishing causation is to eliminate irrelevant causes, and this is the purpose of the “but for” test. The Courts are concerned not to identify all of the possible causes of a particular incident, but with the effective cause of the resulting damage in order to assign responsibility for that damage. The “but for” test asks: would the damage of which the Claimant complains of occurred “but for” the negligence (or other wrongdoing) of the Defendant? Or to put it more accurately, can the Claimant adduce evidence to show that it is more likely than not, more than 50% probable, that “but for” the Defendant’s wrongdoing the relevant damage would not have occurred…..It is worth bearing in mind that the “but for” test functions as an exclusionary test, i.e. its purpose is to exclude from consideration irrelevant causes. The fact that the Defendant’s conduct is found to be a cause, applying the “but for” test, is not conclusive as to whether he should be held responsible in law since the function of the causal enquiry in law is to determine which causes have significance for the purpose of attributing legal responsibility. It is sometimes said that the law seeks the causa causans (effective factor) rather than the causa sine qua non (factors without which damage could not have occurred).”

I have concluded that the Claimant has satisfied the “but for” test, since but for the Defendant’s breach of duty which caused the collision:

However, even where the “but for” test is satisfied, and the Defendant’s breach of duty is established as a cause of the damage, the court has to determine whether there has subsequently been an intervening cause of the damage – a novus actus interveniens.

The Defendant is liable only if the damage caused by his breach was foreseeable as a matter of law, in the sense that it was not too remote. The principles to be applied were helpfully set out by Lord Rodger in Simmons v British Steel Plc [2004] UKHL 20:

“These authorities suggest that, once liability is established, any question of remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid; Bourhill v Young [1943] AC 92, 101, per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874, per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid: Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent that was foreseeable, or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837, 847, per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young [1943] AC 92, 109-110, per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] AC 155, 197F-H per Lord Lloyd of Berwick.”

In my judgment, it was reasonably foreseeable that, by failing to keep a proper look-out and reversing into another vehicle, personal injury to the occupants of the vehicle, and damage to the vehicle, could be caused. Provided the chain of causation was not broken by a novus actus interveniens, the Defendant is liable for the personal injury actually suffered as a consequence of his breach.

Where there is an intervening act on the part of the Claimant between the breach of duty of a Defendant and the damage complained of, such conduct may result in the breaking of the causative chain and amount to a ‘novus actus interveniens’. Clerk and Lindsell on Torts (21^st Ed.) states the principle as follows:

“When the conduct of the Claimant exacerbates or adds to the injuries of which he complains, that conduct will generally result in a reduction in his damages on the grounds of contributory negligence… However it may be that the conduct of the Claimant is so wholly unreasonable and/or of such overwhelming impact, that the conduct eclipses the Defendant’s wrongdoing and constitutes a novus actus. His own conduct is found to be the effective cause of his injury.”

In McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621 HL, Lord Reid said:

“In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment, he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability, which in turn was caused by the defender's fault. But if the injured man acts unreasonably, he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus. It only leads to trouble if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does, he cannot hold the defender liable for the consequences.”

In Spencer v Wincanton Holdings [2009] EWCA Civ 1404, the Court of Appeal considered McKew and emphasised the aspect of fairness. Sedley LJ said at [15]:

“Fairness, badly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, whilst it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.”

Aikens LJ said at [38]:

“The question is, always having established the facts, what is the extent of the loss for which a defendant ought fairly or reasonably or justly be held liable?”

I was also referred to a number of other authorities, including Hicks v Young [2015] EWHC 1144; Dalling v RJ Heale and Co [2011] EWCA Civ 365, Wilson v Coulson 2002] PIQR P22 QBD; Knightley v Johns [1982] 1 WLR 349, Crossley v Rawlinson [1982] 1 WLR 369.

Applying the principles established in these cases, I consider that the Defendant fairly and reasonably ought to be held liable for the entirety of this incident, which on the facts as I have found them, flowed directly from his negligent act. Although there was negligence on the part of the Claimant, it was secondary to, and arose in the context of, the Defendant’s primary breach of duty.

In my judgment, the Defendant has established that the Claimant’s negligence was a material cause of the injury which he suffered, and his award of damages ought to be reduced accordingly, pursuant to section 1, Law Reform (Contributory Negligence) Act 1945.

As I have explained above, the black Lexus would not have rolled down the slope and injured the Claimant if the Claimant had engaged the car in “Park” mode, or applied the foot brake, or switched off the ignition. In the Joint Statement, the experts said:

“2.7.2

We agree that there were numerous features on Mr Sparrow’s car that might have indicated to him that it was unsafe to exit his vehicle, and that Mr Sparrow would have had to have ignored when he got out. Those features were:

1.

The car’s ignition was almost certainly still on (had the ignition been turned off, the transmission would have gone into Park automatically).

2.

The parking brake pedal would have been in its raised position and had not been pressed down.

3.

The parking brake warning light on the dashboard would not have been lit.

4.

The transmission incorporated a feature whereby it was necessary to hold the transmission lever over to the right for more than about 0.5 seconds in order to select Neutral, and it appears that Mr Sparrow held the lever over to the right for this period before he got out of the car which changed the transmission from Reverse to Neutral.

5.

The green light on the Park button would not have been lit.

6.

The P symbol on the dashboard would not have been lit.

7.

The N (Neutral) symbol on the dashboard would have been lit.

8.

The warning message ‘Shift to P Position’ would have been displayed on the dashboard.

9.

An audible alarm would have sounded for the period of several seconds it took Mr Sparrow to open his driver’s door and get out of the car.”

The Claimant’s evidence was that he was shaken and confused as a result of the collision. He believed he had pressed the “Park” button and must have moved the gear lever to neutral by accident.

Although usually it would be very foolhardy to stand behind a car rolling down a slope, I accept that in the unusual circumstances of this case, the Claimant felt obliged to take this dangerous course of action to protect his children who were in the car. He was fearful that his children might be injured if his car hit the electrical switch room and large propane gas cylinders in the service area so he ran to the back of the car and attempted to hold it back with his hands. However, as the car increased in speed, he was overwhelmed by it, and he could not get out of the way in time to avoid being crushed against the metal post.

In my judgment, the appropriate reduction by reason of contributory negligence is 60%.