While reconstruction of a road traffic accident can be useful in determining liability, a recent case confirms primary factual evidence is of the greatest importance. Val Jones, partner Berrymans Lace Mawer, explains.

Last month, Mr Justice Coulson gave his judgment in the case of Stewart v Glaze, which centred on the question of what is a reasonable driver when determining liability in a road traffic accident case.

On a typical Friday night in September 2004, Mr Stewart and his good friend Mr Marfleet - young men in their 20s - went out drinking. They both consumed between five and seven pints. Mr Stewart was looking forward to moving into Mr Marfleet's flat the following week; and Mr Marfleet was anticipating his game of rugby the following day.
Sometime in the early hours of Saturday morning, they returned home, got off the bus and, for reasons that were never explained, sat down at the bus stop before going home.

The defendant, Mr Glaze, had spent the early part of that Friday evening with his wife and young daughter before going to visit his sister. This was a typical Friday night for him too; he regularly helped his sister with various jobs around the house before returning to his family. Mr Glaze was driving along Sale Road, near Manchester, at about 2am on that Saturday morning returning home. He saw the bus stop and was aware of people sitting within it. He was in no rush, there was nothing to distract him and Mr Glaze was driving carefully at around 30mph. What happened in the ensuing one to two seconds, was - as Mr Glaze put it and Mr Justice Coulson agreed - every driver's worst nightmare and, tragically, one that had a profound effect upon the life of Mr Stewart and his family.

As Mr Glaze approached the bus stop, for some inexplicable reason Mr Stewart got up from his seat, walked to the edge of the road and then ran at an angle directly towards Mr Glaze's car. At the point Mr Stewart entered the roadway, the court found that Mr Glaze had approximately one second within which to take any evasive action. Mr Glaze did his best; he swerved and then braked to try to avoid the collision. Sadly, an impact occurred between four to six metres away from the bus stop leaving Mr Stewart with catastrophic head injuries and in a persistent vegetative state.

The facts of law:
So what is the standard of the reasonable driver? Mr Justice Coulson underlined that it was important to ensure that the court does not unwittingly replace that test with the standard of the 'ideal' driver and reinforced the observations of Mr Justice Laws in Ahanonu v South East London and Kent Bus Company (2008) who said: "There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the courtroom, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care."

While accepting it is important to have in mind a car is "potentially a dangerous weapon" - Lunt v Khelifa (2002) - Mr Justice Coulson found that Mr Glaze was not negligent.

Expert evidence:
Both parties had used accident reconstruction evidence. The defendant's approach was to examine the factual evidence - there were only two lay witnesses, Mr Glaze and Mr Marfleet - and then to test whether that evidence was inconsistent with the forensic evidence available at the scene. Significantly, Mr Glaze had maintained throughout that the claimant was running towards his car at the point of impact.

The claimant, through his expert witness, preferred to speculate on what might have occurred prior to impact and put forward a number of possible scenarios - that the claimant was either walking, running or stationary at the point of impact.

The court was not impressed by this approach. Mr Justice Coulson underlined that it is the primary factual evidence that is of the greatest importance in a case of this kind. While recognising that accident reconstruction expert evidence can be useful to test the factual evidence and inferences to be drawn from it, he added: "It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula against which the defendant's actions are then to be rigidly judged with a mathematical precision."

In this case, the claimant's case depended - as it had to - on the unspoken assumption that Mr Glaze should have been watching Mr Stewart as he walked towards the kerb and as he stepped off the kerb, essentially excluding all other considerations.

"In my judgment that was not a realistic scenario," commented Mr Justice Coulson. "It largely ignored the standard of the reasonable driver; and it elevated what might have happened into an assumption of what should have happened."

The claimant's secondary case was that Mr Glaze could and should have slowed down before he struck Mr Stewart, as he had time to do so if he had been watching Mr Stewart within the bus stop.

Mr Justice Coulson found there was no evidence to suggest that, on the balance of probabilities, Mr Stewart would have suffered any different or lesser injuries. The claimant's case depended upon the evidence of the accident reconstruction expert who asserted that Mr Stewart's injuries would have been less severe, based upon general statistical evidence.

Finally, Mr Justice Coulson considered the issue of contributory negligence and concluded that the collision was the principal responsibility of Mr Stewart. Had primary liability been found, that would have been reflected in a reduction of 75% for his actions.

Mr Justice Coulson's analysis of recent cases, and the approach to be adopted by the court in assessing the standard of the reasonable driver, will be welcome news to motor liability insurers who must at times feel there is all but strict liability in RTA cases - particularly where a claimant has suffered severe injury.

The court's finding that the primary factual evidence is of the greatest importance is a helpful reminder to all about the role played by accident reconstruction evidence in such cases. The lengthy analysis of experts in cases involving events that occurred over a period of no greater than two seconds often clouds the primary factual evidence and can take precedence if not carefully controlled.

On a cautionary note, the party with the burden of proving causation should be aware not to rely upon general statistical evidence in support of their case without further consideration to obtaining specific medical evidence.

In borderline cases, the judge's finding of contributory negligence may also assist, providing an illustration of what is often regarded as the general rule that it is rare for a pedestrian to be found more liable than a driver - Eagle v Chambers (2003).

In conclusion, we must remind ourselves and reflect upon the awful consequences of those two seconds for Mr Stewart and his family while at the same time recognising that accidents sometimes do happen without a party bearing legal liability.

Val Jones is a partner at Berrymans Lace Mawer, which acted for Allianz Insurance, the insurer of the defendant in Stewart v Glaze.

INSURER RESPONSE:
Martin Saunders, motor and casualty manager at Allianz Insurance, added: "It is important to remember in the tragedy of the night in question's events, that accidents can and do happen through no fault or blame on the part of the driver of a motor vehicle. Such experts are widely used in a variety of contexts around investigation and reconstruction yet it is the evidence and first-hand accounts of those involved that must be given greatest weight. It is crucial for good quality witness evidence to be assembled at the earliest opportunity and for cases to be assessed quickly on their individual merit."

This article first appeared in Post Magazine 14 May 2009 edition. The article is not a substitute for specific legal advice and should not be relied upon as such.