Chan v Peters & Advantage  EWHC 2004 (QB) 16 July 2021
In a collision with a pedestrian the defendant had met the standard of a reasonably competent driver – but without the right evidence, this could have been more difficult to prove.
The circumstances surrounding this accident were straightforward, being a situation insurers and defence solicitors have encountered on many occasions.
The claimant was a 17-year old student in Sheffield at the time of the accident, which occurred at 12:45pm on 29th November 2017. He was injured crossing the road outside his school when he collided with the first defendant’s car. He sustained a traumatic brain injury, and the initial letter of claim described the consequences as being significant (although later enquiries revealed he had successfully passed his A levels after the incident, and proceeded to university).
At interview the insured was found to be traumatised by the accident, while at the same time presenting as entirely credible and with a very good recall of events. Her account was subsequently validated by the CCTV footage. The claimant entered the road from the defendant’s nearside, passing through a parking bay immediately outside the school before doing so. There were two vehicles in that bay: a Vauxhall Zafira first, with a small gap before a double-decker bus (from the defendant’s perspective, travelling east). The claimant entered the road jogging from between those two vehicles. As such, his entry into the road was obscured from the defendant’s view by the Zafira. To complicate matters, two of the claimant’s friends situated on the offside pavement were waving to him in the seconds before the accident occurred; in addition, an independent witness travelling behind the defendant indicated he saw the claimant’s approach, while the defendant had not.
It was alleged the defendant should have seen the claimant’s approach, in common with the witness behind her, and that the waving pedestrians should have put her on notice there was the possibility of a hazard emerging from the nearside.
The court’s findings of fact were universally unfavourable to the claimant:
- The defendant had not failed to take account of her surroundings
- The claimant did not look right in the direction of the defendant’s car before he set off into the road
- The defendant’s speed of 25mph (in a 30mph zone) was appropriate, since it was not the start or end of the school day with a significant amount of pedestrians; furthermore, the defendant had given the car and bus a wide berth as a precaution
- The claimant was virtually or entirely obscured by the Zafira before entering the road, and only visible for 0.6 seconds
- Once visible to the defendant she had reacted in about one second, and that was all that could have been expected from a reasonably competent driver
- The accident could not have been avoided
- The pedestrians waving did not serve to put the defendant on notice a hazard may be about to emerge from the nearside
- Nothing rested on whether damage to the car was slightly towards the front or slightly towards the side of the car
- Critically, the court did not rely upon evidence from the driver behind the defendant, since his account of the claimant’s visibility could not be reconciled with CCTV, and it was suspected he may have confused the claimant’s approach with another student. In any event, this witness exonerated the defendant.
- It is of paramount importance to exhaust enquiries in connection with CCTV. In this case, there were cameras on the bus which captured the incident, and some of the events leading to it (although there was a gap, such that the claimant’s approach across the parking bay was not recorded). Without CCTV, and expert commentary upon it, this defence would have failed. The witness travelling behind the defendant was a doctor, and entirely credible. Without footage of the incident the court would no doubt have accepted the claimant was there to be seen; after all, a driver further back had watched his approach.
- In a case with some quantum potential it is always beneficial for the conducting solicitor, or a member of their immediate team, to interview the insured; a conference with counsel is not a substitute for this exercise. Witness evidence is paramount in these cases.
- All cases carry risk, but when CCTV is available this can provide a degree of comfort when viewing the evidence from a risk management perspective. The judge is likely to be a driver, and there can be a sympathy factor for the defendant, despite serious injuries suffered by a claimant.
- Once you have set out your stall with an opponent after conducting a risk matrix for the case, continue with that robust stance as the case progresses, unless and until any evidence comes to light which upsets the balance in the claimant’s favour. As this case evolved there were some minor aspects arising which caused us to rethink; but nothing of such magnitude that we felt obliged to make settlement proposals to a claimant of driving age, who simply ran into a road without looking in the defendant’s direction.
This case was handled by Keoghs Partner Mike Pope and solicitor Joanna Knapman.