CC v TD, Court of Appeal - Queen's Bench Division, May 23, 2018, [2018] EWHC 1240 (QB)

Resolution Date:May 23, 2018
Issuing Organization:Queen's Bench Division
Actores:CC v TD
 
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Neutral Citation Number: [2018] EWHC 1240 (QB)

Case No: HQ17P00106

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23 May 2018

Before:

HIS HONOUR JUDGE FREEDMAN

(sitting as a Judge of the High Court)

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Between:

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Marcus Grant (instructed by Slater and Gordon LLP) for the Claimant

Charles Curtis (instructed by Horwich Farrelly) for the Defendant

Hearing dates: 24 and 25 April 2018

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JUDGMENT WARNING: This judgment is issued subject to a reporting restriction

23 May 2018 11:51 Page 22

His Honour Judge Freedman:

Introduction

  1. On 21 June 2014, at approximately 1am, Mr JC (`the Deceased') was tragically killed in a road traffic accident when crossing on foot the A45 Fletchamstead Highway in Coventry. He was struck by an Audi RS being driven by the defendant at a speed of approximately 86mph, the speed limit for this urban road being 40mph. He was killed instantly. Primary liability was conceded at an early stage but contributory negligence remains in issue.

  2. Mrs CC, the widow of JC (`the claimant'), has brought a claim on behalf of the Deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934 (as amended), and on behalf of herself and her three children as dependants of the Deceased under the Fatal Accidents Act 1976 (as amended).

  3. The Deceased was born on 23 May 1966 and was therefore aged 48 years at the date of his death. The claimant was born on 13 November 1967 and is therefore now aged 50 years. The couple's three children are respectively, RC, born 31 July 1995 and now aged 22 years, BC, born 10 October 1999, now aged 18 years, and LC, born 4 October 2002 and now aged 15 years.

  4. At the time of the accident, the Deceased and the claimant were living separately and apart. The claimant had filed a divorce petition. After the Deceased met his death, on 12 August 2014, a Decree Nisi was granted. Notwithstanding the position as at the date of death, it is the claimant's contention that it was likely that there would have been a reconciliation and that the marriage would have been saved. On behalf of the defendant, it is argued that the marriage was doomed and that a divorce, if not inevitable, was highly probable.

  5. Plainly, the determination of this issue will have a very significant impact upon the amount of damages that the claimant will be entitled to recover as a dependant of the Deceased. Unsurprisingly, therefore, most of the evidence focused on this principal issue and, equally, submissions made by counsel, albeit that it was not the sole issue in the case.

    The Accident

  6. During the evening of Friday 20 June 2014, the Deceased had been drinking in a public house in the company of his mistress, Ms Christina Brown. Immediately prior to the accident, they were attempting to flag down a taxi. Ms Brown decided to return to the public house to telephone a taxi. As she did so, the Deceased attempted to cross the A45 but as he walked towards the central reservation, he was struck by the Audi vehicle driven by the defendant. It seems clear that he was crossing from the defendant's nearside to the offside.

  7. The A45 runs from the north-west to the south-east. It is a dual carriageway, providing two lanes of travel in each direction, with a central reservation. The Audi was travelling in a south-easterly direction.

  8. Mr Peter Sorton, who was jointly instructed on behalf of the parties to consider matters of speed and distance, concluded that on the basis that the Audi was being driven at 86mph and, on the assumption that the Deceased would have taken 5.48 seconds to travel from the footpath to the point of impact, mutual visibility prior to the Deceased stepping into the road would have been 2.32 seconds. At 86mph, the defendant would have travelled 211 metres in the time that the deceased crossed the nearside slip road and nearside lane to the point of impact.

    Contributory Negligence

  9. It is argued on behalf of the defendant that the Deceased was guilty of contributory negligence in two respects:

    i) in failing to use a `Puffin' pedestrian crossing, which was located 87.25 metres to the south-east of the accident location, and therefore crossing the A45 where it was unsafe to do so; and

    ii) in failing to observe the approach of the defendant's vehicle and crossing into its path.

  10. As to the first allegation, as a general proposition, it can properly be said that it is prudent for a pedestrian to use a designated crossing point. But, in my judgment, it does not follow that failure to do so constitutes negligence per se. Much will depend upon the construction of the carriageway, the volume of traffic, the time of day, lighting and visibility. Given that this accident occurred at about 1am, it is virtually certain that the volume of traffic would have been light. It is clear from the report from Mr Sorton that the road was well illuminated by street lighting during the hours of darkness. The unobstructed field of view from the nearside kerb where the deceased crossed was approximately 300 metres. In these circumstances, in my judgment, it would not be reasonable to conclude that the deceased failed to take reasonable care for his own safety by not using the Puffin crossing.

  11. As to the second allegation, it should be noted that the deceased was intoxicated with 202 milligrams of alcohol in his blood. However, as Mr Grant correctly observes, the mere fact that he was intoxicated with alcohol does not expose him to criticism. On the other hand, his actions are to be judged by reference to those of a sober person. It seems to me that a sober person could not have appreciated that the defendant was travelling at more than twice the speed limit. Indeed, it would be reasonable to assume that any vehicle was travelling broadly within the speed limit. Accordingly, there ought to have been available to the Deceased approximately 12 seconds to cross the southbound carriageway to the central reservation. At a normal walking pace, in fact, it should only have taken approximately 6.5 seconds to reach the central reservation. When analysed in that way, it seems to me that it was not unreasonable for the Deceased to attempt to cross the road when the defendant's vehicle was more than 200 metres away. Accordingly, and even if he was guilty of a degree of inadvertence, in my opinion it did not amount to negligence. Equally, I do not think that he can be properly criticised for avoiding the path of the oncoming vehicle when it became apparent to him that the vehicle was travelling at a fast speed. His ``thinking time'' would have been a second or two, which would not have permitted him to reach a point of safety.

  12. In these circumstances, I am entirely satisfied that this accident was caused wholly by the negligent driving of the defendant.

    History of the Marriage

  13. The claimant and the Deceased first met in about 1986. The claimant had been briefly married prior to meeting the Deceased, and she had a child, Anthony, who was just 18 months old at the time. After a while, as they grew closer, the claimant followed the deceased to Southampton where he was working. They then lived in London for a while before purchasing a two-bedroom house in Coventry. As noted above, they went on to have three children (and another child who was stillborn). On 30 December 2004, the claimant and the deceased were married in Florida.

  14. The deceased was the main ``breadwinner''. By trade, he was a steel-fixer. Up until approximately 2008, he ran his business through a limited company, CC R Limited. Eventually, that company was placed into liquidation. Subsequently, he set up another company, JCAT Limited, but that enterprise also failed. Before the recession, it is clear that the Deceased was earning substantial sums, in the order of £80,000 per annum.

  15. The claimant worked in the travel industry. However, in about 2003, she gave up this work to assist the Deceased in his business. During the recession, she returned to part-time work in the travel industry, working approximately 21 hours per week. She told me that she had made significant sacrifices in terms of her own career in order to support the Deceased in his business, and also to look after the...

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