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Cite as: [2014] EWHC 4219 (QB)

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Neutral Citation Number: [2014] EWHC 4219 (QB)
Case No: HQ13X02013

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

12/12/2014

B e f o r e :

MR JUSTICE FOSKETT
____________________

Between:
IWONA SOBOLEWSKA
(A Protected Party by E W A SKROWONEK,
her Litigation Friend)

Claimant
- and


MICHAEL ALFRED THRELFALL
Defendant

____________________

Gerard McDermott QC and Nathan Tavares (instructed by Stewarts Law LLP) for the Claimant
Tim Horlock QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing dates: 18 21 November 2014

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Foskett:

  1. On 10 February 2012 the Claimant, then aged 39, sustained a fracture of her left ankle and a significant head injury that caused brain damage leading to aphasia (namely, a difficulty to communicate), certain cognitive deficits and a weakness in her right arm.
  2. Her case is that these injuries were caused when a car driven by the Defendant in the car park of Whiteheads (a convenience store and off licence) in Great Harwood, Blackburn, came into contact with her, sending her to the ground. It is not in issue that the vehicle was travelling very slowly at the material time. It was a cold and frosty night.
  3. Apart from the Defendant, whose own appreciation of precisely what occurred was limited for reasons that will become apparent, there were no witnesses to what occurred. The brain injury sustained by the Claimant means that she has no recollection of what occurred. That has made the precise reconstruction of events difficult. Unfortunately, quite wrongly, those who came to the scene immediately after it was appreciated that the Claimant was injured thought that she may have been under the influence of alcohol. That was not so, but it made a difference to the way in which her injuries were investigated initially. Equally, because the Defendant was uncertain about what occurred, including whether his car struck the Claimant at all, the Police were obliged to consider alternative possibilities as to the cause of her head injury, including whether she had been the victim of an assault (not, I emphasise, by the Defendant but) by some unidentified party.
  4. The whole investigation of the circumstances in which she came to suffer her injuries became side-tracked initially by virtue of the Police investigation. That investigation did not take long and in due course the view was formed that there was no evidence of an assault such that a criminal prosecution could be launched against anyone. However, given the Defendant's own perception (that his car had not impacted on the Claimant), those representing his interests (or the interests of his insurers) have pursued his case on the basis that the Claimant's head injury and indeed her ankle injury may have been caused, or probably were caused, at some point before her arrival in the car park and thus had nothing to do with any accident in the car park. That position had changed in respect of the ankle injury by the end of the trial as I will mention below (see paragraph 5).
  5. By the end of the trial (which related solely to the issue of liability) the Defendant's legal team were not continuing to maintain the position that the ankle injury was caused other than as a result of an accident involving the Defendant's car. For, in my view, very sensible reasons, Mr Tim Horlock QC, for the Defendant, acknowledged that there was evidence of contact between a tyre of the Defendant's vehicle and the Claimant's left foot and, accordingly, he acknowledged that her ankle injury was probably caused in some way by that contact. The submission that the head injury was caused other than as a result of contact between the Claimant and the Defendant's vehicle was, however, maintained.
  6. I will explain below why I cannot accept that aspect of the way the Defendant's case is presented. In my view, the evidence establishes clearly (certainly on the balance of probabilities) that there was contact between the Defendant's car and the Claimant, that she fell to the ground as a result of that contact and her general inter-reaction with the vehicle and in the process sustained the injury to her left ankle and the injury to her head, the injury to her head being caused by the impact with the ground. I reject as highly improbable any scenario that involves the head injury being caused other than as part of the Claimant falling to the ground in those circumstances. I should say that I have reminded myself (by reading the helpful analysis in paragraph 2-08 of Clerk & Lindsell on Torts, 21st edition) that merely rejecting as highly improbable one suggestion as to causation does not mean that I should accept another scenario that is also highly improbable.
  7. Furthermore, I have reminded myself of what has been said in other cases about the application of common sense to the situation where proving the precise causal mechanism is difficult. The following is said at paragraph 2-07 of Clerk & Lindsell:
  8. "The burden of proving causation rests with the Claimant in almost all instances. The Claimant must adduce evidence that it is more likely than not that the wrongful conduct of the Defendant in fact resulted in the damage of which he complains. On the other hand, there are occasions when the court is permitted to draw an inference that there must have been a causal link, taking a common-sense and pragmatic approach to the evidence, in circumstances where the evidence is somewhat equivocal. So if the Claimant proves that the Defendant was in breach of duty and that damage occurred which was of a kind likely to have been caused by such a breach this may be enough for the court to infer that the damage was probably caused by the breach, even if the Claimant is unable to prove positively the precise causal mechanism."
  9. Reference is made in support of the final sentence to Drake v Harbour [2008] EWCA Civ 25 (applied in Vaile v Havering LBC [2011] EWCA Civ 246). It is worth quoting the words of Toulson LJ, as he then was, in Drake at [28]:
  10. "In the absence of any positive evidence of breach of duty, merely to show that a Claimant's loss was consistent with breach of duty by the Defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a Claimant proves both that a Defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the Claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the Defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the Defendant are on balance improbable, that is likely to fortify the court's conclusion that it is legitimate to infer that the loss was caused by the proven negligence."
  11. Essentially, the exercise is one of applying common sense to the totality of the evidential picture with which the court is confronted. It has been acknowledged by every expert called in this case that their own field of expertise cannot give the definitive answer to the question of precisely how the Claimant sustained her injuries and the mechanisms that gave rise to them. Ultimately, of course, as everyone recognises, it is a matter for the court to put all the evidence together to see if the Claimant has established the case on the balance of probabilities.
  12. I propose to express myself fairly briefly notwithstanding the extensive evidence I received because I consider that by the end of the trial the position was clear to all in the sense that, applying the usual approach to the evaluation of evidence, it was established that, more probably than not, the Claimant's injuries were caused in an accident involving the Defendant's car. Whilst the case is indeed unusual and it is possible to point to some uncertainties, those matters do not undermine what seems to me to be the clear conclusion on the balance of probabilities.
  13. Returning to the approach in Drake, for my part, it seems to me to be wholly clear that the injuries sustained by the Claimant were of a kind likely to have been caused by falling to the ground after being run into by a motor car. I do not think that is truly in dispute in this case. What is said, however, so far as the head injury is concerned, is, first, that insufficient force would have been applied to the Claimant in this low velocity collision for her to have fallen and to impact with the ground with sufficient force to cause an injury as severe as the injury she sustained. Mr Robert MacFarlane, the Consultant Neurosurgeon called on behalf of the Defendant, said that he could understand that sufficient energy would have been imparted if the car had been travelling at 20 mph, but not for a vehicle that was "barely setting off". He also said that he would not have expected to see the injury in precisely the location on the Claimant's head where it was occasioned (the temporal region) if it occurred in the process of falling sideways (which is what he understood to be suggested on her behalf). He said that, in his opinion, it would have been at a point higher than shown on the scan taken after her admission to hospital because a sideways fall would have resulted in the shoulder hitting the ground first with the consequence that the upper part of the head would have travelled onwards to the ground and impacted with it. He also said that the place where the injury occurred is a relatively flat part of the head and that if it impacted with the flat ground a linear fracture would be expected and not one that, as he described it, was "pushed in" in other words, a depressed fracture.
  14. I will return to these issues shortly, but the alternative scenario postulated for the cause of her head injury needs to be addressed. The Claimant was working at her usual workplace on the day in question which was a Friday. She had been working a shift from 1.00pm to 8.00pm at Metflex Precision Holdings in Alan Ramsbottom Way. The arrangement is that an employee should swipe in and swipe out. The evidence suggests that the Claimant was usually conscientious about doing both, though on this particular day there is no record of her having swiped out. Nonetheless, there is a record (which she signed) that she worked until 8 o'clock. It is difficult to see why she would not have done so and there is no evidence to suggest that she left earlier, or significantly earlier, than normal. I would conclude, therefore, that she left work at or about 8.00pm.
  15. Reference to a map of the area will show that had she taken a direct route to her then home she would have effectively turned left out of the entrance to Metflex and then shortly thereafter would have turned right along Meadow Street and then into the road system that would have led her home. That would have taken her about ten minutes or so. In fact it is clear that she turned right and took a somewhat more circuitous route. She said in her unchallenged witness statement that she would sometimes take a longer route home after work when she was not in such a hurry as she would have been when going to work. A route she took from time to time, having turned right out of the Metflex entrance, was first left from Alan Ramsbottom Way into St Huberts Street and then, after a while, right into Princess Street (in an easterly direction) and then back along Queen Street (in a westerly direction) until she reached a road on her left that would have led to where she then lived.
  16. Whiteheads is situated on an area of land that is bounded by Princess Street to the south and Queen Street to the north. The building that comprises Whiteheads itself is at the eastern end of this area of land, the rest being laid out as the car park which had places for vehicles to be parked marked out in a herringbone pattern.
  17. Whilst she cannot remember what occurred, the Claimant believes that the reason she was in this area was that she took one of her longer walks home. On the evidence, I can see no other explanation and I accept it.
  18. The distance from the entrance to Metflex Precision Holdings to the car park of Whiteheads is in the region of 800 metres, possibly slightly less. Apparently, the lie of the land is such that the walk from Metflex along Alan Ramsbottom Way in this direction is downhill, but having turned left into St Huberts Street, the gradient becomes uphill.
  19. One piece of evidence from the reconstruction experts (who accept that generally they have little to offer to assist the court in this particular case) is that the 50th percentile speed of walking for a 40-year old woman is 1.6 metres per second. Reducing that to 1.5 metres per second suggests that it would have taken in the region of 9 minutes (walking at a constant pace) for the Claimant to walk from Metflex to the area of the car park. This is plainly not a definitive finding of fact, but it informs helpfully the known chronology.
  20. It is clear that within a very short while of the Defendant appreciating that the Claimant was lying on the ground injured, an ambulance was called because he went quickly in to Whiteheads and asked for an ambulance to be called. That call was timed at 20.11.
  21. Those two pieces of evidence, in particular, suggest that the probabilities are that the Claimant did leave Metflex at about 8.00 pm (maybe marginally before) and that she walked straight to the area where at around 20.10 or very shortly before she was found lying on the floor injured.
  22. For the head injury to have been caused in some way before the accident involving the Defendant's car, what has to be envisaged is that the Claimant either fell and hit her head on the ground at some stage earlier in her journey from Metflex to the car park or was the victim of a quite serious assault at some stage that involved her head being struck. (Until Mr Horlock sensibly abandoned the argument, much the same was being said of her ankle injury, which, certainly according to Mr Alistair Wilson, the Consultant in Accident and Trauma called by the Claimant, would have made it impossible for her to walk.) It follows that whatever occurred to her head in this scenario occurred when no-one witnessed it (since the police discovered no evidence of an assault and no-one seems to have reported any incident) and she managed to recover sufficiently for her to get unaided to where she was found on the ground in the car park. She still had her rucksack with her, so that had not been stolen. Both neurosurgeons (in other words, including Mr Peter Kirkpatrick who was called for the Claimant) agreed that the severity of the head injury was such that it would "almost certainly have been associated with transient loss of consciousness", but they also agreed that after an interval "she may have been capable of walking for a time in a disorientated manner." Mr Kirkpatrick, when giving evidence, said that this was a coma-producing head injury and he thought that he and Mr MacFarlane would agree that an injury of the type in question would have led to a loss of consciousness, probably for many minutes, and then a period when the Claimant became arousable in the sense of opening her eyes and moaning and being combative. Mr MacFarlane accepted that she would not have got immediately to her feet and would have been confused and disorientated.
  23. Looking at the issue as sensibly as one can, it seems to me inconceivable that at some stage in the period of probably 10 minutes or so from leaving Metflex to being found on the ground of the car park having had some inter-reaction with the Defendant's car, she suffered a head injury which rendered her temporarily unconscious, but she recovered sufficiently to get to the car park (which was very much on her established, albeit more circuitous, route home). There was, in my view, insufficient time for this to have occurred, leaving aside the fact that there is no other evidence that such an incident occurred. It would also mean that she would have suffered two periods of unrelated unconsciousness that evening the first when the first incident occurred and the second when she was lying on the ground near to the Defendant's car. Mr MacFarlane accepted that the description given by the Defendant of the Claimant when he found her (that she was not moving, staring with glazed eyes) was indicative of her being unconscious.
  24. For these reasons, it seems to me much more likely that she left Metflex at the usual time, walked at a normal pace in a direction with which she was familiar and as part of that overall journey was crossing the car park when she and the Defendant's car inter-reacted. I use the expression "inter-reacted" because, in my view, it describes more accurately than the word "collided" what I infer took place. I will return to that shortly.
  25. As conceded by Mr Horlock, there is evidence in the form of more marked scuffing on the Claimant's left shoe than her right shoe (the shoes being standard steel toe capped work shoes), that the Claimant's left foot was probably run over, at least partially, by the front nearside tyre of the Defendant's car. This is also consistent with how the Claimant was found lying (see paragraph 31 below). The collision experts agreed that the other marks found on the car and on the Claimant's jeans were inconclusive so far as any impact between them was concerned and indeed the lack of clear evidence of contact suggests that there was no significant bodily contact with the vehicle. That was the conclusion of PCs Brown and Wilson who attended the scene at 20.20, neither of whom could find any marks or damage consistent with a collision. The Defendant himself did say to the police that he did not think he had collided with her, although when he first ran into Whiteheads he told Rebekah Harrison, who worked there, that he thought that he had "run someone over". Equally, however, he said he did not know what had happened.
  26. One thing the Defendant has said about what occurred that does, when pieced together with the other features of the evidence, give a clue as to what occurred is this: in his witness statement, after describing what he did before getting back into his car and before driving off (to which I will return later), he said that he "suddenly noticed a shadow on the left hand side of me which appeared to disappear." In a statement he made to the police a little while after the incident he said that after he had set off and travelled about three quarters of the length of his car "in my peripheral vision I saw a shadow near the left front wing of my car [which] looked like it ducked down." PC Brown recalls him saying that he looked over his shoulder towards the entrance to the car park (which was the entrance in the south eastern corner) to see if anything was coming, pulled away and looked back round to the front "only to see a shadowy silhouette near the front of his vehicle suddenly drop to the ground out of his sight." In his oral evidence he said that "just as I was setting off something just disappeared at the side of the car, which at first I thought was a child ducking down, may be picking something up, or a ball or whatever".
  27. These descriptions convey the impression that the Claimant (who the shadow must have been) both appeared and disappeared from the Defendant's view extremely quickly. The expression "ducked down" suggests that, for whatever reason, she fell or was brought to the ground very quickly and, more likely than not, in an uncontrolled fashion. This accords with the description given to PC Brown. Applying what, I trust, is common sense to that picture in the light of the head injury she must have sustained as a result of that fall, it suggests plainly that she fell with sufficient force to cause that injury. Mr MacFarlane's reservation about insufficient force having been applied to her by a slow-moving vehicle is, of course, predicated on the basis that it was the vehicle that was the source of the force to impel her to the ground. However, it is, to my mind, tolerably clear that an awkward fall onto a car park surface of the kind in question here, in which the hands of the person falling do not move sufficiently quickly or in the right direction to break the fall, could easily lead to the kind of injury the Claimant sustained here. If the inference I draw about her reaction to the movement of the Defendant's car is correct (see paragraph 41 below), it is likely that she will have created some momentum of her own in trying to move away from the car when the initial impact occurred. Given that there is no other credible explanation for either the injury to her ankle or her head that evening, that, as it seems to me, ought to be the end of the debate. I am inclined to think that a jury, if asked whether they were sure that the head injury was caused by the Claimant's fall as a result of her inter-reaction with the Defendant's vehicle, would conclude that they were. I, of course, have to apply a lower standard of proof and the inference, on the balance of probabilities, seems to me to be clear.
  28. As I have said, some doubts have been expressed by Mr MacFarlane about the precise causal mechanism of the injury to the Claimant's head (see paragraph 25 above), but he would not, I apprehend, dispute that the injury was of a kind likely to have been caused by an uncontrolled fall to a hard surface. As I have said, that in my view is sufficient for the court to infer that the injury was probably caused as a result of whatever happened between the Claimant and the Defendant's vehicle.
  29. In terms of causation of injury, I do not believe it is necessary for me to go further.
  30. If, contrary to that view, it was necessary to say anything about the expert evidence, I would be inclined to say that the combined evidence of Mr Wilson and Mr Kirkpatrick comes as near as it is possible to go in demonstrating the likely nature of the fall and the mechanism of the injury. Everyone accepts that it is impossible to give a completely definitive analysis that fits every aspect of the somewhat sparse evidence, but the picture they paint is persuasive once one accepts, as I have, that her injuries were caused in an accident involving the Defendant's vehicle and not at any other time. In one sense, Mr Wilson's opinion, which was primarily directed to the mechanics of the ankle injury, becomes irrelevant once it is conceded that that injury was caused in her fall by the Defendant's car. However, he postulated a manner of falling that, in his view, was consistent with the ankle injury and with the head injury. Mr Kirkpatrick, who had the benefit of that opinion when he reported on the mechanism of the head injury, subscribed to Mr Wilson's view as being consistent with the manner in which the head injury could have occurred. The way their collective view was expressed in their reports was as follows -
  31. Mr Wilson said this:

    "116. The ankle fractures must have been caused at the locus of the accident as [the Claimant] could not have been able to walk with them.
    117. The usual mechanism of injury for this sort of fracture is as a result of pronation and exorotation (outwards rotation) of the foot .
    118. Working on the assumption that [the Claimant] was walking towards [the Defendant's] Peugeot from the front nearside, or from the left of the car when it was still parked, the front nearside wheel interacted with [the Claimant's] left foot as the car moved to its left side and as she attempted to move away. Her shoe became entrapped by the moving tyre, turning her foot outwards and pinning it downwards. This would have had the effect of rotating [the Claimant's] body, spinning her to her left side as she fell backwards, and whipping her around forcefully to the ground.
    119. The resultant entrapment and pronation of the foot is likely to have caused the medial malleolus fracture and the fractured fibula. Torsion of the foot would have caused the flake fractures of the talus and cuboid. Without entrapment as a result of interaction between the foot and tyre it is difficult to explain these injuries and I believe this mechanism to be the most likely.
    120. I think it is likely that, having fallen backwards and been spun to her left side, [the Claimant] hit the left side of her head forcefully on the ground. The skull fractures resulting are severe and the brain injury extensive, but not inconsistent with her being pitched to the floor in the manner I had described."

    Mr Kirkpatrick said this:

    "viii) On balance of probabilities it is my view that [the Claimant] was struck by the vehicle, albeit at low speed, causing her to lose balance falling and striking her head on the ground. There can be little doubt that to cause such injuries an unprotected fall to the ground would be needed leading to an unprotected strike of the head on a hard surface causing the skull fracture and intracranial injuries. I do not believe that a direct impact to the head by a vehicle travelling at such a low speed is a plausible mechanism.
    ix) The alternative explanation, namely that [the Claimant] was not struck by the vehicle and simply slipped and collapsed as part of an incidental event, is most unlikely to have resulted in such severe injuries. Injuries of this type can occur following stumbles but usually in an intoxicated individual who does not protect their fall. This would represent the extreme end of a broad spectrum under the circumstances. Taking into account Mr Wilson's analytical review, particularly in relation to the left ankle injury, I think this is by far the more plausible scenario namely that the ankle was caught by the third party vehicle resulting in the fracture, and her pivoting over in an unprotected way resulting in a direct strike of the head to the ground.
    x) In addition of course [the Claimant] was found in the immediate vicinity of the third party vehicle. It is my view that the point of impact was there as it is highly improbable that, after such a severe head injury, [the Claimant] could have walked any distance if at all.
    xii) In summary my view is that the overwhelming balance of probabilities would be towards [the Claimant] suffering a severe head injury as a consequence of her ankle being caught by the third party vehicle as described and concluded in Mr Wilson's report."
  32. Each discussed his position with his counterpart for the Defendant and neither modified these views to any material extent. Mr Kirkpatrick and Mr MacFarlane discussed the implications of a contrecoup contusion to the right frontal pole rather than, as might have been expected, to the right temporoparietal region. Mr MacFarlane was of the view that this suggested that the direction of the blow to the left side of the Claimant's head was probably not directly from the side, but slightly from behind, a view with which Mr Kirkpatrick did not disagree save to observe that the forces occurring within the skull following a severe blow "can be somewhat chaotic". Mr MacFarlane expressly agreed with that when he gave evidence and each explained, in terms that seemed to coincide, why that should be so and why it is difficult to draw conclusions from such evidence.
  33. I should just say that I thought Mr Newman's assertion that Mr Wilson, when being challenged about his views in cross-examination, was making things up "on the hoof" was an ill-judged comment and one which, to be fair, Mr Newman toned down subsequently. What he was trying to say, in my view, was that he could not see how Mr Wilson's view fitted with his (Mr Newman's) perception of biomechanics and, as he put it, "the laws of physics as interpreted biomechanically". The impression I gained from Mr Wilson, however, was that he was doing his honest best, based upon his very extensive experience of injuries caused by trauma, to assist in giving an explanation of what occurred in a situation where, as Mr Newman himself conceded, the forces that operate when people fall are, borrowing Mr Kirkpatrick's phrase, "somewhat chaotic". For the avoidance of doubt, I thought Mr Wilson was an impressive witness and where his views differed from those of Mr Newman, I would prefer his views.
  34. There is some reliable evidence about how the Claimant was positioned immediately after she fell. Understandably and sensibly, the Defendant did not try to move her at all, but a Mr David Blackburn who, with his wife, arrived in the car park shortly after the Defendant returned to the car park having gone into Whiteheads and spoken to Miss Harrison. Mr Blackburn is a qualified first-aider. He described how the Claimant was lying on the ground in what he said was "almost a recovery position", with her head away from the side of the car and her body and legs more towards its nearside. Her left leg ("somewhere below her knee") was under the nearside sill of the car on the passenger side of the vehicle. It was, in his opinion, in an awkward position and he decided to move it in case the car moved. It follows that the position the police officers who attended saw her in was slightly different from where she fell, but only in the sense that her left leg had been moved. As PC Wilson confirmed when she gave evidence, the general disposition of the Claimant when she was on the ground was that her head was in the direction of Queen Street (in other words, broadly to the north) and her legs were pointing towards Princess Street (in other words, broadly to the south).
  35. The way that the Claimant fell does (when considered in the context of the evidence of the scuff marks on her left shoe) suggest that Mr Wilson was correct to say that her left foot became temporarily trapped by the front nearside wheel of the car and as she tried to move backwards to prevent any further contact with the car she twisted as she fell and was unable to use her hands or arms to break her fall.
  36. Although Mr McDermott says that it is unnecessary, I will, so far as possible on the evidence, come to a conclusion about where she was when the Defendant started moving his car, but as a general proposition there can be little doubt that she was not far from his vehicle when it started moving. The first question, of course, is 'should he have seen her?'
  37. There is no dispute that the lighting in the area was not at its best that evening. The street lighting on Queen Street was not functioning that night (that is common ground), although there would have been some light coming from the Tesco store on the other side of Queen Street. However, the car park of Whiteheads was not of itself lit, or at least, if it was from time to time lit by some spotlights or floodlights on the outside of the store, it does not seem that it was so lit that night. The Defendant did say in his evidence that the street lighting was also not operating in Princess Street. However, on examination this appears to have been the first occasion when he mentioned this to anyone other than, he suggested, Mr White and its reliability was not borne out by a statement obtained from a Mr Lodge, a street lighting engineer employed by Lancashire County Council, that was put in evidence. It follows that there was some lighting from that source, but I am prepared to accept that generally the car park was not well lit.
  38. The Defendant was familiar with the car park and was, he said, conscious that, as he put it, "kids were often messing about there with bikes". He would also have known, of course, that there might be other pedestrians in the car park, either walking to or from other cars or perhaps simply walking across it from one side to the other. The car park is not fenced in any way so as to prevent people walking across it. Indeed he had walked across the car park to Tesco's to find the bottle of wine that he could not find in Whiteheads. It follows that he was aware, as indeed anyone would be, that checking for pedestrians (or children on bikes) would be important before setting off, particularly when it was dark. He accepts, as he must, that he did not see the Claimant before he moved his car forward and before the front tyre of the car ran over her foot. Why was that?
  39. From the outset, when questioned by the police, his constant theme had been that, having got into the car, putting his purchases on the passenger's seat, switching on the ignition and putting his seatbelt on, he looked over his right shoulder to check whether there was anything to his right and behind. At no stage did he ever say that he checked to his left. He did suggest this at one point when giving his evidence, but it was very much of a "I must have done so" quality, rather than being said with a conviction that he definitely did so. Indeed it must be observed that when he made a statement to the police, initially there was a suggestion within that statement that he did look to his left, but he then deleted that and initialled the deletion. In my judgment, he did not look to his left before he moved off. Whilst Mr White, the Defendant's reconstruction expert, has put forward various scenarios suggesting that it might have been difficult for the Defendant to see the Claimant in certain positions (particularly if she was, as she was, wearing dark clothing), I do not think that that assists. The short point is that she must have been somewhere not far away from his car, to its left, and he did not look to check that his passage on that side was clear before moving off. (For reasons I will give shortly, I think it more likely that she was broadly to the left of his car rather than approaching the car from the Queen Street direction.)
  40. The way in which he was to move off is of itself of some significance. His car was pointing in a diagonal direction such that if the car park is envisaged as a square or a rectangle, the front of his car was pointing at something like a 45 angle to the right of a straight line from south to north across the car park and thus also at about 45 towards the front of the store. The exit to the car park was to his left in Park Street. He did not move directly forwards in a straight line when he moved off, but immediately turned his car to the left to head in the direction of the exit. Whilst that was an understandable and legitimate manoeuvre for him to make (particularly as there was no other car in his way), it was incumbent upon him to check that it was safe from the point of view of pedestrians or other users of the car park to turn in this slightly unusual way. He did not do so and, in my judgment, thus deprived himself of the opportunity of seeing the Claimant who, notwithstanding the lack of lighting, would have been visible if he had looked carefully.
  41. In my judgment, primary liability is thus established. I should say, and say clearly, that this was a pure piece of momentary inattention and I have no reason to think that the Defendant is not ordinarily a careful driver. But momentary inattention is sufficient in law to establish primary liability and, as I have said, it is, in my judgment, established in this case.
  42. The next issue was whether the Claimant was herself partly responsible for what occurred. It is, of course, for the Defendant to establish this. His evidence is that once the ignition was triggered in his car the headlights would come on automatically because a sensor would detect if it was dark. I see no reason not to accept that even though there were apparently some mechanical issues with the Defendant's car. It does mean, of course, that if the Claimant had been approaching the Defendant's car directly from the front, or indeed anywhere to the front such that its lights would have been visible, she would have seen the lights of the car come on before it moved away. There would also have been a reasonable chance of the Defendant seeing the Claimant if that was the case, but, as I have said, more importantly she would have been alerted rapidly to the car's existence at that point. In my view, if she had been approaching the Defendant's car from anywhere to its front, she could not have missed the lights coming on and I am sure she would have taken steps to avoid the car once it moved. There is no evidence that she was being distracted by, for example, listening to music through earphones and there is no suggestion that her mobile telephone (if she had one) was found after she had fallen so there is no evidence that she was not paying attention to what she was doing. If her hood was up it would not have affected her vision. Equally, I cannot see why she would have been moving in the direction from Queen Street to Princess Street it was not the direction in which to go for her to be going home.
  43. In my view, therefore, she was much more likely to be approaching from the left of the Defendant's vehicle and probably, to a degree, from behind which was the assumption Mr White had made for the purposes of his reconstruction. I had at one stage considered it possible that she had been crossing the car park from the vehicle entrance that was in its south-eastern corner, but on further reflection I think it is most unlikely that the accident would have occurred in the way that it did if she had done so she would have been approaching his car from an angle that required her, at the material moment, to turn her body quite significantly for her left foot to be run over by the front nearside wheel which I consider to have been unlikely. In any event, she would, if approaching the Defendant's car from its rear, have seen its rear lights go on after the ignition was activated. For similar reasons to those that have led me to reject an approach on her part to the front of his car, I reject the likelihood of an approach from its rear.
  44. The question, therefore, is whether, approaching the Defendant's car from its left, she ought to have seen it and appreciated that it was about to move. If I am right about the direction in which she was approaching and that she was close to the car before it started to move, she would not have been in the direct line of view of either its front lights or its rear lights. The car park would have been dark from her point of view too. However, even if she had seen the beams of the front lights or the glow of the rear lights she would have seen a vehicle pointing away from her. It is not difficult to envisage the situation that she saw the Defendant's car and either was proposing to walk in front of it not appreciating it was about to move or that she was waiting for it to move forwards when, quite unexpectedly from her perspective, it started to move in her direction (because of the immediate turn to the left that it undertook). That would have caused surprise and alarm to her and, once she could not avoid her foot being run over, an attempt on her part to get back or away from having a more significant impact with the car. That, as it seems to me, is the most likely cause of the fall that took place with the consequences to which I have referred. On that basis, I cannot see that the Claimant was at fault at all. As I have said, had she been distracted by listening to music or had she been focusing on her mobile telephone shortly before the accident, the position might have been different. However, the evidence does not support such a conclusion and, accordingly, the issue does not arise.
  45. Conclusion

  46. This is an unusual case, but on proper analysis it is, as Mr McDermott said at the outset, a simple case. It is not necessary to look for a sophisticated analysis of difficult questions. The answer is, within the limits of certainty, clear. The Defendant's negligence is at the low end of the bracket of culpability, but nonetheless amounts to negligence in law. The evidence does not justify a finding of contributory negligence on the Claimant's part.
  47. I should say that I have addressed those aspects of the evidence that seem to me to have been of importance. I have not focused on issues that seem to me of peripheral relevance.
  48. For those reasons, there will be judgment for the Claimant with damages to be assessed.


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