Emma Spencer and Aaron Reynard of Keoghs on behalf of Cally Marsano at Hastings Direct are successful in having a claim dismissed at first instance.
Emma and Aaron instructed Brian McCluggage of 9 St John Street Chambers,
The claimant was involved in a multi-vehicle RTA in July 2017, sustaining serious injuries including a traumatic brain injury (TBI) as well as numerous orthopaedic and soft tissue injuries. She was the driver of a Renault Clio travelling on a country lane in a southerly direction towards Great Horton, South Yorkshire. It was late in the evening, around 22:30pm. The country road was dark, unlit and had overhanging foliage in places.
An initial collision took place when the claimant, driving alone, allowed her vehicle to cross the dividing white line and enter into the opposite carriageway, colliding head on with an oncoming Suzuki Alto. As a result of the impact, the Suzuki was forced off the road and rotated 180° coming to rest in bushes.
The impact also rotated the Clio 180° and the vehicle was left facing north, the wrong way in the southbound carriageway. After a period of time, Hastings’ Insured, the defendant, driving a Seat Leon, approached the scene and the second incident occurred as the defendant’s Seat struck the Clio causing it to overturn. The claimant was found ejected lying in the vicinity of the Clio.
On approach, the Seat was travelling at approximately 60mph – the speed limit for the road and was using dipped beam headlights. The defendant’s case was that his attention was momentarily brought to the Suzuki on his offside in the bushes immediately prior to the impact with the Clio and that there was no chance of avoiding the impact with the stationary vehicle which was not displaying any headlights.
The claimant asserted that headlights were illuminated and that the defendant was negligent in travelling at an excessive speed and failed to slow, brake or avoid her vehicle. There was no allegation raised about the use of dipped beam headlights only.
Liability was disputed from the outset.
There were a number of additional features of the case which were of relevance. It was recorded within the claimant’s medical records by the paramedics and then later in hospital by various medics that she smelt of alcohol.
As a result, the Police Force Surgeon attended and took a sample of blood from her. It was also established that the claimant did not have a valid driving licence and was using a provisional licence only. Police examination found no ‘burn marks’ on the claimant’s seatbelt webbing or buckle, suggesting it had not been worn at the time of either accident.
Subsequently, the claimant failed to provide her consent to allow the sample of her blood to be examined for alcohol/drugs. In November 2017 she was charged and pleaded guilty to: (1) failing to allow a specimen of blood to be analysed, (2) driving without due care and attention, (3) driving otherwise in accordance with a licence, and (4) driving whilst uninsured. She received an eight-week term of imprisonment suspended for 24 months and was disqualified from driving for two years.
Proceedings were commenced in March 2020 with a pleaded value over £200,000. A preliminary schedule was served which included heads of future loss for earnings, care, aids and equipment and medical treatment.
It was agreed the case was suitable for a split trial to determine the issue of liability. Both parties were permitted to adduce evidence from accident reconstruction experts. A joint statement was prepared by experts for both parties. Amongst other issues, it was agreed:
There were no areas of disagreement.
At trial in June 2022 the claimant applied prior to the hearing commencing to amend their pleaded case to introduce a further allegation of negligence pertaining to use of dipped beam headlights only. This was allowed by the Court. The claimant also conceded prior to the trial she was entirely at fault for the first accident and that her headlights were not illuminated after the impact with the Suzuki.
The Court heard oral evidence from both the claimant and defendant. Given there were no areas of disagreement between the accident reconstruction experts, they were not called to give evidence.
HHJ Sadiq dismissed the claim found:
The claimant was, unfortunately, the author of her own misfortune. Her vehicle presented an unlit, stationary hazard on a dark, straight stretch of country road.
Although the defendant was travelling at the speed limit of 60mph and with dipped beam headlights, the Court found he had acted reasonably in the circumstances and lost critical reaction time being distracted by the Suzuki to the side of the road, which was present due to the claimant’s own negligence.
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