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FLR v Chandran (2023) KBD

News | Fri 7th Jul, 2023

Giles Mooney KC, instructed by Kim Milan of Boyes Turner, wins RTA trial where the Claimant, a 12 year old girl, walked out in front of the Defendant’s car at a pedestrian crossing. Liability apportioned 60/40 in the Claimant’s favour.

On 18th and 19th April 2023 Dexter Dias KC, (Sitting as a Deputy High Court Judge) heard the liability trial of this matter (a split trial having been ordered). The case concerned a road traffic accident which occurred on 15th January 2018 in which the Claimant sustained serious brain injury. The Claimant had no memory of events and no independent lay witnesses were called. Accordingly, the case was determined on the evidence of the Defendant and each parties accident reconstruction experts.

The key material facts were not in dispute. The Defendant was driving along Buckingham Road on her way to work. She was travelling at 28mph which was within the 30mph speed limit for the road. As the Defendant drove across a controlled pedestrian crossing with the lights in her favour she hit the Claimant who had attempted to cross the road at the crossing despite the lights showing red against her. The Claimant had waited at the lights for 2.3 seconds before setting off across the road less than a second before the Defendant’s car reached the crossing.

The Claimant’s case was that the Defendant was driving too fast and had failed to keep sufficient observation of the road ahead. The Defendant argued that she had done nothing wrong. She was driving within the speed limit and the Claimant was only in the carriageway for 0.4 seconds meaning that even if she had seen her, the Defendant would have had insufficient time to react.

In the course of cross examination Giles took the Defendant through various parts of the Highway Code and illustrated that in contravention of the Code, the Defendant had failed to adapt her driving to take account of (a) the wet weather conditions, (b) the darkness (the accident occurred before sunrise), (c) the fact that there were bus stops in the vicinity and (d) the presence of school children on both sides of the road. The Defendant also conceded, under cross examination, that had she seen the Claimant waiting to cross she should would have slowed down.

In the face of the concessions extracted in cross examination the Judge found that the Defendant was in breach of duty in that she was driving too fast. The Judge held that 20mph would have been a reasonable speed in the conditions that the Defendant found herself.

Whilst breach was established on the Defendant’s own evidence, causation was somewhat trickier. One of the oddities of this case was that despite the Defendant telling the police at the scene that she had not seen the Claimant until the impact, repeating that in her statement and being adamant on that fact in the witness box, both experts identified that she did in fact swerve at or just before the impact. The experts speculated that this suggested that the Defendant had shown extremely quick reactions to seeing the Claimant start to move 0.7 seconds before the impact. This evidence was at odds with the Defendant’s repeated assertions that she never saw the Claimant. The experts took the reaction time of 0.7 seconds and agreed that to stop before the accident spot the Defendant would have to be driving at below 17mph. In other words at 20mph the Defendant would still have reached the site of the accident. The Defendant relied upon this finding to argue that the accident was unavoidable.

In order to deal with the causation point Giles urged the Court to consider the speed of the Claimant and argued that had the Defendant been driving more slowly the Claimant would have had time to pass in front of the Defendant’s car before it got to the accident site (This argument was successfully deployed in Parker v McClaren [2021] ALL ER (D) 83, a case involving our very own Jacob Levy KC).

The difficulty in this case was that (a) the Claimant stopped in the road before the impact and (b) the Defendant swerved. If the Claimant would have stopped in the road even if the Defendant was only doing 20mph then the accident would still have happened. Similarly, if the Defendant had chosen to swerve to the right at 20mph the distance required for the Claimant to reach safety would have been extended. Giles urged the Judge to look at the case in terms of what the parties were likely to do if the Defendant had only be driving at 20mph. On this analysis the Judge accepted the argument that (a) the Claimant would, on the balance of probabilities, not have panicked and stopped but would have kept running having realised she had time to make it safely across and (b) the Defendant would have braked rather than swerved.

In all the circumstances the Judge was satisfied that the accident would not have happened had the Defendant been driving at 20mph and hence causation was made out.

Contributory negligence was assessed at 40% because it was clear that the Claimant stepped out into the crossing against a red light at a time when it was clearly unsafe and when the Defendant’s vehicle would have been fully visible to her had she looked.

The Judge concluded his Judgement noting that 1,700 people were killed in traffic collisions in 2022 and then gave what may prove to be useful observations to Claimants in cases involving excessive speed:  “While this case is not about a fatality, it shows yet again how dangerous it is to drive at excessive and unreasonable speed. There is a common misconception that if one is driving just below the speed limit, this is sufficient to be a reasonable and competent driver. It may not be. The maximum speed limit is not a target or an infallibly safe measure. It is an absolute upper limit, only justified if conditions and the road situation are sufficiently good to permit it”.   

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