HRA v KGC

This is a tragic case. It involves a claim brought by a son against his mother for damages arising out of the catastrophic injuries which he sustained in a road traffic accident when he was a passenger in the vehicle she was driving. The central issue before me is as to whether that accident was, at least in part, the defendant’s fault.

On 5^th December 2012, at about 4:25pm, the defendant was driving her Range Rover Sport west along the A69 in Northumbria. Darkness had fallen and wintry showers had made the road surface wet. Her passengers were the claimant, sitting in the rear, and her other son in the front. She was travelling in a line of traffic. In front of her was a Nissan Qashqai being driven by one Alan Ridings. Behind her was a car being driven by one Laura Van-Daal.

Approaching them on the other side of the road was a lorry leading a line of cars. There followed a depressingly familiar sequence of events. Some of the more impatient drivers behind the lorry took the risk of trying to overtake it. One such vehicle, whose driver has remained untraced, strayed out into the path of Mr Ridings’s Qashqai and their respective driver’s side wing mirrors made contact causing debris to scatter onto the road surface.

There can be no doubt that the untraced driver had taken a wholly unjustifiable risk and had thereby seriously jeopardised the safety of other road users in the vicinity. The central question before me, however, is whether or not the defendant’s response to the developing situation in the road ahead of her fell below the standard of the reasonably competent driver.

The defendant did not, as one would have hoped, come to a halt safely behind the Qashqai which had pulled over to the left hand side of the road and onto the adjacent grass verge before coming to a halt. She drove across the opposite carriageway, though a gap in the line of traffic and then though a fence. Beyond that, her Range Rover collided with a freight train which had been traveling on the railway line which ran parallel to the road.

As is so often the case, there were a number of significant differences not only between the evidence given by the witnesses but also between the evidence given by some of the same witnesses at different times. Given the fast pace at which the events unfolded and the long passage of time since the accident occurred, this is hardly surprising. Some care is therefore required in determining which evidence to accept and which to reject. I have not, however, considered it necessary to resolve each and every issue of fact which has arisen in this case but only those the determination of which has been necessary to equip me to reach my central conclusions. Where, therefore, I have made no, or only passing, reference to certain issues it is not because I have overlooked them but because I am satisfied that deciding them would have made no difference to the outcome.

The defendant’s stance, in a nutshell, it that this is an “agony of the moment” case. The defendant was faced with a sudden emergency in the road ahead of her and it would be a counsel of perfection to criticise her actions in response.

The burden of proof lies on the claimant; this is not a res ipsa loquitur case.

The defendant’s case was that her first reaction had been to steer to the left but that she thereafter went right and ended up crossing the opposite carriageway. The lane in which she had been travelling was bordered by an unbroken white line to the left the propose of which was to delineate the edge of the carriageway. The asphalt surface of the road, however, stretched beyond this; thereby separating the carriageway, as defined, from a grass verge running parallel to it and on its left.

Much time was spent during the hearing addressing the question of whether or not the defendant moved to her left before moving to the right and off the road.

There was a body of evidence from witnesses called to give evidence at the trial suggesting that the defendant had not turned left at any stage:

On behalf of the defendant it is argued that she would have been distraught at the time she spoke to Mr Smith and that the eye witnesses may have missed the fact that she first turned to her left because the incident occurred out of the blue and their attention may well not have been concentrated on the Range Rover at the beginning of its manoeuvre.

In addition, reliance is placed upon the evidence of the claimant’s brother who told the police in interview that “my mum swerved to the left to get out of the way of the car so it didn’t hit us ‘cos at that place it was going to hit us, there was no way it was going to get out of the way in time unless we moved, so we moved to the left which went up the grassy hill but it was very steep and I think the grass might have been wet which is why we came back down again ’cos if we’d carried on going up that way we would have lost control and gone down backwards ‘cos it was too steep to go up. So we headed back down again off the grassy hill. We couldn’t just come down off the hill. We had some speed at this point. We went straight across the road…”

It has, however, realistically been conceded on behalf of the defendant that this account cannot be entirely accurate. The accident reconstruction experts, Mr Sorton called by the claimant and Mr White by the defendant, were agreed that this description is wholly inconsistent with their respective findings. The defendant, however, contends that, even though the description of the Range Rover going up the grassy bank cannot be right, it may provide some evidence that the vehicle turned left before turning right.

I have to say that I was unable to give the claimant’s brother’s evidence any significant weight. His account was so much at variance with what must have occurred that, on this issue, it retained little of value.

A police officer, PC Luther, gave evidence to the effect that he had inspected the verge on the left hand side on two occasions after the accident and found no sign that the Range Rover had been on the grass verge. It was argued on behalf of the defendant that this evidence was undermined by a number of factors. The initial examination must have been done under time pressure because a senior officer had given orders that the road should be opened to traffic sooner than PC Luther considered to be appropriate. Other vehicles may well have been parked up on the verge in the aftermath of the accident as evidenced by footage proved by a film crew which, by chance, had been in attendance with Cumbria Police. There is no mention in PC Luther’s report of the suggestion that he had positively excluded the possibility that the defendant had encroached up the verge as a result of his examinations. He simply did not allude to it.

Notwithstanding these points, and having had the advantage of hearing PC Luther give oral evidence, I am satisfied that it is more likely than not that he was correctly recalling the searches which he carried out and that, if the Range Rover had travelled left and over the grass before turning right back onto the asphalt, there would have been at least some physical evidence of this.

Mr White, the expert called by the defence, used an accident reconstruction programme by the name of PC-Crash. He fed into the programme certain information, such as the relevant coefficients of friction and the speeds of the vehicles. There was a margin of error in the values attributed to these variables and the accuracy of the output was, necessarily, dependant on the reliability of the data input. However, even assuming, which I am prepared to do, that the input values chosen by Mr White were sufficiently close to the actual values at the time of the accident, the upshot of his results did not suggest that the Range Rover would have to have encroached on the grass verge before the defendant steered to the right.

Against this background, it is necessary to consider the defendant’s first account to the police on 15^th January 2013. She said:

“As we continued along the A69 I remember suddenly seeing the car in front” disappear”. I think it suddenly moved to the left but I then remember seeing two separate sets of vehicle headlights coming towards my location. One set was in the correct lane heading east. The other was also heading east but was in my lane on the west bound carriageway. I can only describe the road as being “full” as the headlights from the car in my lane were such that it was obvious it was not just a little way across the carriageway but was well into my lane. I knew I had to do something to try to take avoiding action. I went the only way I thought was safe. I went one way and then the other. I remember steering to the left and then went across the carriageway to the right.”

Under cross examination, she was unable to recall how far the car in front of her had been. She said that she did not remember saying in her conversation with Mr Smith that she should have gone the other way.

There are a number of salient features of the defendant’s account:

These factors, taken together, lead me to the conclusion that the defendant was not paying adequate attention to the road ahead in the moments leading up to the incident. She first became aware of what was unfolding only after the Qashqai had already moved significantly over to the left. The suddenness of her delayed perception of what was happening explains the lack of braking and the unusual course she took across the opposite carriageway.

I further conclude that even if the defendant did, in fact, steer to her left this manoeuvre was not such as to take her onto the grass verge. She remained on the asphalt surface of the road even if she may have strayed beyond the white line delineating the boundary of the carriageway. The fact that the Range Rover went on to cross to the right and over the opposite carriageway was as a result of her deliberate but disastrously wrong decision. There was no loss of control caused either by driving on the verge or otherwise.

The above analysis is sufficient, of itself, to lead to the conclusion that the claimant must succeed. The reasonable observer may, however, be tempted to ask the question as to how the defendant, as a competent driver of a familiar vehicle on a familiar road, could have made such a serious error. In my view, the explanation was found in a cavity to the right and beneath the level of the steering wheel of the Range Rover. It was the defendant’s mobile telephone.

This a conclusion which I reach without enthusiasm but the evidence is compelling.

Firstly the call sequence table with respect to activity on the phone reveals a series of no fewer than four text exchanges between the defendant’s phone and that of her boss at work; all within the period of about eleven minutes immediately preceding the accident. To every text received from her boss, the defendant responds within a minute. The last text to the defendant was sent at 16:24:11. Ms Van-Daal telephoned 999 at between 16:24:00 and 16:24:59. The timing thus coincides compellingly with the period during which the defendant would have been likely to be either reading or preparing to respond to the last text she had received.

Of course, on this evidence alone, it might have been possible to conclude that the regularity of text exchanges had, by coincidence, stopped very shortly before the accident. However, I reject this explanation mainly because of the defendant’s lack of candour during the police investigation. The following features are relevant:

Of course, the possibility that the text exchanges may coincidentally have concluded before the collision could readily have been explored simply by accessing the defendant’s phone and reading them. However, the defendant, without plausible explanation, was unable to disclose her PIN number to the police. I am driven to the conclusion that she deliberately frustrated their enquiries because she knew that the contents of the text messages would reveal that, at the time of the crash, her boss was awaiting a response from her and that the defendant was distracted.

In summary, I have concluded, on the balance of probabilities, that:

The issue of liability now having been resolved, the case will proceed, in due course, to the assessment of quantum.