Direct Line Group and Keoghs Complex Injury have successfully defended a potential multi-million-pound claim by securing its dismissal at a liability and causation trial before Mr Justice Knowles in Birmingham District Registry.
On 9 November 2015 Mr Coulson, the defendant driver, had finished work for the day and was driving three other work colleagues to a friendly game of football which was being held locally. He had just negotiated a roundabout and was moving into second gear between 10–15mph but not more than 20mph when the claimant, a pedestrian, crossed through stationary queuing traffic on the opposite carriageway. A collision occurred with the front offside bumper of his vehicle. The claimant tragically sustained catastrophic injuries as a result of her head striking one of the queuing vehicles and then the road.
Due to the catastrophic injuries suffered, the claimant lacked capacity. Proceedings were not issued until February 2021 and a split trial order was made with the trial taking place in February 2024, over eight years post-accident.
The court heard from three lay witnesses, including the defendant, as well as expert evidence from two accident reconstruction experts and two medical experts on causation of injury.
The claimant’s primary case was that she stopped in the middle of the road before attempting to cross into the defendant’s carriageway and so was there to be seen. It was argued that the defendant was negligent in not seeing her and not taking any avoiding action, with the accident avoidable had he done so. The claimant’s secondary case was that, if a collision was not avoidable, it ought to have occurred at a significantly lower speed such that, on balance of probabilities, the injuries suffered would have been lessened.
Having heard evidence over three days and making various findings of fact, including crucially that the claimant did not pause or stop in the middle of the road, Mr Justice Knowles found that the defendant was not negligent in any way and that the claimant’s case failed on both its primary and secondary aspects. Read judgment.
He found in particular that:
a. The defendant was a careful and competent driver
b. The defendant was driving properly for the conditions, below the speed limit, and was keeping a proper lookout
c. The defendant was not distracted by anything occurring within the car
d. It was not possible on the evidence to determine exactly how fast he was going at the point of impact, but it was not more than 20mph
e. The claimant walked along the pavement, then turned and stepped into the road, taking up a fast walking or jogging pace which was noticeably different and faster as compared with how she had been walking on the pavement
f. The claimant did not pause or stop for any appreciable length of time before entering the eastbound lane, at which point she was struck by the offside front of the defendant’s car having taken about two paces
g. She could not have been seen by the defendant in enough time for him to have taken evasive action, through a combination of her not stopping before entering his lane, and being shielded until the last moment by a large 4x4
h. The defendant had no opportunity to avoid the accident entirely, or to slow so as to lessen the impact
In any case of this nature, the outcome is determined by very case-specific facts, but certain issues are worth highlighting.
1. The legal principles remain the same
Mr Justice Knowles referred to the key principles that may be in play when considering liability and contributory negligence in a road traffic accident case (per para 37 of his judgment) as those that were set out in Chan v Peters [2021] EWHC 2004 (QB), another case where Keoghs successfully defended a claim in negligence brought by a pedestrian.
So while it applies that “drivers must always bear in mind that a car is potentially a dangerous weapon”, this case is another in a line of authorities to show that it is possible to defend pedestrian claims in full, depending on the factual circumstances. It is a reminder that in the right circumstances, insurers are more than willing to fight cases to establish the lack of negligence on the part of their customers.
2. Lay witness evidence is more crucial than expert reconstruction evidence, but needs to be carefully considered, especially when a significant period has elapsed
On this issue, Mr Justice Knowles commented:
“I begin by saying that this has not been an easy case to decide. As I have already said, by the time the witnesses came to give evidence before me, well over eight years had passed since the sudden, quick and traumatic incident on 9 November 2015 in which C was tragically injured.
(The witnesses) did their best to recall what they saw, but that passage of time and, as I have already remarked, the fallibility of human memory, mean that I have to look with care at their evidence. That is especially so because their accounts not only differed from each other, they differed from themselves in places. And of course, they have no doubt thought and spoken about the incident many times over the intervening years (perfectly understandably).
This eyewitness evidence is crucial. As I have said, the experts were all agreed that their opinions, and the reliability of their conclusions, depend on my findings of facts based upon the lay witnesses’ evidence as to what occurred” - paras 132-134.”
While acknowledging the above, the judge was clearly helped by the most contemporaneous accounts, one day post-accident, when assessing the evidence and reaching his findings of fact. The accounts given by the witnesses to the police in the immediate aftermath, even though in shorthand and subject to a degree of caution on interpretation, helped to assess the overall reliability of accounts provided much later.
3. The issue of lesser injuries due to a lesser speed
This is something which is now being raised more frequently. While it may be trite to state that injuries are normally less serious at lower speeds, it remains incredibly difficult to establish and Mr Justice Knowles summarised the difficulties neatly when he said (paras 184, 185 & 197):
“In my judgment there are just too many uncertainties to enable a conclusion to be reached in C’s favour to the relevant standard. C’s case relies upon her being hit by the Fiesta at a slower speed, and in a different place, so that she would have gone onto the bonnet and so not have been injured as she was. The central problem with this is that the mechanism of injuries in road accidents involves a multi-factorial analysis and the evidence is too imprecise and uncertain to allow that to happen.
The impossibility of making any sort of reliable assessment of outcome in that scenario is underscored by the fact that the mechanism of actual injury here was unusual, in that C was hit at a relatively slow speed and, in fact, so slow that she did not suffer any leg injuries despite being hit on her leg by the Fiesta, but that it was her spinning/twisting and falling and two head strikes whereby she sustained her tragic injuries.
In short, I cannot accurately or reliably determine whether a slower speed would have altered C’s specific injuries and if so, to what extent, if at all.”
He added that he could only uphold the claimant’s secondary case on the basis of “impermissible speculation” and that remains a key problem when seeking to determine this issue in favour of injured claimants.
For further information, please contact:
Ken Young, Head of Complex and CAT PI
Catherine Brewington, Lead Lawyer
Jeremy Jones was the handler at Direct Line Group, with Brian McCluggage, 9 St John Street, counsel for the defendants.
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