Sallah v Mahmood - Liability? It really is all about the evidence

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Sallah v Mahmood - Liability? It really is all about the evidence

Published 7 June 2022

Jackie Fulford of the Complex Injury team and Jamie Baird of RSA achieved a great result on behalf their policyholder when the claim, which was pleaded at around £500,000, was dismissed by HHJ Bird following a liability trial.

The accident

At 7.30pm on 8th June 2018, the claimant (C) and two companions had got off a bus heading out of Birmingham. They all crossed the westbound carriageways of the A456 Hagley Road and started walking along the wide central reservation with the intention of crossing the eastbound carriageways to reach their destination. The Hagley Road is one of the main roads into and out of Birmingham and is very busy all day and into the evening. At the point at which this accident occurred, there are four lanes in the eastbound direction. There was a controlled crossing about 25 metres away.

Two of the three women crossed the road safely. C was the last to cross and was unfortunately struck by a car driven by Mrs Mahmood, the defendant (D) in doing so. Neither of the two women who had made it across the road saw the accident and were unable to say in which lane D’s car was or estimate its speed.

The evidence

D’s evidence was that she had been driving in lane three (counted from the central reservation towards the opposite pavement) but had moved into lane two. There was a line of traffic in lane one which obscured her view of the central reservation.

One of the vehicles in lane one was a taxi. We were able to trace the passenger though not the driver. The passenger said that the first he knew of anything amiss was when the taxi driver made an emergency stop to avoid hitting C. He then saw her being hit by D. He confirmed that the taxi was not in the process of slowing down prior to the emergency braking.

One of C’s witnesses said that D had stopped some distance beyond the taxi, but the taxi passenger said that D had stopped almost alongside the taxi.

It was also alleged by one of C’s witnesses that the traffic lights had been showing red for oncoming traffic at the time of the collision.

At the Case Management Conference, C applied for permission to rely on accident reconstruction evidence. We objected to this on the basis that there was no physical evidence on which an expert could base an opinion. The court agreed but did allow C to re-cast her application and try again but no further application was made. The evidence relied upon was solely that of the various lay witnesses. C herself had suffered a serious head injury in the accident and could not recall anything about it.

Jamie Baird arranged for photographs to be taken by an investigator within two weeks of the accident showing the foliage and trees on the central reservation as they would have been at the time of the accident.

The trial

The court ordered a trial on liability which was heard on May 5th, with judgment given the next day.

At the trial, C’s counsel made much of an apparent discrepancy between what D had told the police immediately post accident about her speed at the point of impact (30mph) and what she later said in her statement (20-25mph). This, he said, was evidence that not only could and should D have seen the women walking along the central reservation but, had she been driving slower she would have avoided the collision entirely. C’s counsel also emphasised the evidence from one of the witnesses that the lights had been on red at the point at which C started to cross the road.

C’s counsel also referred to two well-trodden paths which could be seen traversing the width of the central reservation close to the point where the accident occurred.

Counsel for D, Michael Jones of Cobden House Chambers, referred to the poor quality of the lay witness evidence and the fact that there was no expert evidence. C had to prove the accident was entirely avoidable. Without expert evidence she could not do that. The lay evidence of itself did not get her home on this point.

On the question of whether the lights were showing red at the time of the impact, this seemed unlikely given the small distances involved. Had they indeed been on red then, at the speed they were going pre-impact, both D and the taxi were about either to collide with the traffic in front of them or overshoot the lights.

The decision

The judge held C liable for her injuries and dismissed the claim against D.

He found that the traffic lights were on green for D at the crucial time. Neither she nor the taxi were in the process of slowing down, even though they were only 25 metres or so from the junction. Had the lights been on red as alleged then, as D’s counsel had said, they would have collided with the vehicles in front of them and this would have been an inherently dangerous manoeuvre.

The judge also found that D had been driving at between 20 and 30 mph in lane two. The actual speed did not matter and there was no evidence on this point in any event. There was a green light ahead of her and she was keeping a good lookout.

D did not see C before the collision as there was a continuous line of vehicles in lane one. D was unable to avoid the collision and only became aware of C when she ran into the path of her vehicle. D had no time to conduct effective emergency braking.

Even if D had seen C or her witnesses on the central reservation, that would not necessarily have put her on alert. If she had seen one or more of them, she had no reason to take advance steps. C and her witnesses were sensible young ladies.

C admitted she had not seen D’s vehicle prior to the collision. Had she done so, she admitted she would not have crossed.

There was no basis on which to conclude that D’s driving fell below the standard of a reasonable and prudent driver and therefore there had been no breach of duty by D.

Had he been required to rule on whether contributory negligence applied, he would have found none against D. Interestingly C had conceded that, had the judge found for C, then a finding of 50% contributory negligence would have been appropriate.

Conclusion

  • Just because a pedestrian has been injured in a collision with a vehicle, it does not mean that liability is a foregone conclusion. Each case, as ever, will turn on its own facts but the onus is on the claimant to prove the case. In this one, C could not establish that D had breached her duty of care and the claim failed.
  • There have been a couple of similar cases recently in which claims by pedestrians have been dismissed. In Vincent v Walker and Anor [2021] EWHC 536 (QB) the claimant was struck by D’s vehicle when 2/3rd across a staggered toucan crossing and in Chan v Peters [2021] EWHC 2004 (QB) the claimant was severely injured after being struck by a car whilst he was crossing the road outside his school.

The evidence, or lack of it, was crucial. Let the judge have the last words on this: “in the absence of accident reconstruction evidence, no good plan, witnesses giving evidence for the first time three years later and photographs that needed working out, the position is far from ideal”.

Authors

Sophie Lawless

Sophie Lawless

Birmingham

+44 (0)121 698 5232

Jackie Fulford

Jackie Fulford

+44(0)121 698 5253

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