Widdowson v Newgate Meat Corp [1998]

FACTS:-

The Plaintiff’s claim arose out of an accident which took place when he was a pedestrian on the northbound lane of the A168 dual carriageway road at River Swale Bridge, Topcliffe in North Yorkshire just before midnight on 18 July 1991. He was knocked down by a Mercedes van which was being driven by Mr Scullion on behalf of his employers Newgate Meat Corporation, and while he was lying on the carriageway he was struck by a Ford Cortina motor car being driven by Mrs Kelly Enaas.

The Plaintiff, sued by his father and next friend, was 40 at the time of the accident. He had been suffering from a serious mental disorder, probably schizophrenia, since 1985, and had had three longish periods in a psychiatric hospital and had no job and lived at a hostel for psychiatric patients. His medical history went back 16 years showed no previous attempt of suicide. The Plaintiff was not regarded by the consultant as a reliable witness so gave no evidence at trial. He told the consultant that he said he was walking back to Middlesbrough to live but the scene of the accident was not situated on this route. Therefore it was not possible to say where he was going or know the direction he was travelling in when Mr Scullion’s van hit him. The Plaintiff suffered from a fractured left femur and ankle, and cuts to his head.

The accident spot was reached via a long sweeping left-hand bend. There was no pavement, but the road was bordered on the nearside by a one-metre strip of tarmac between the edge of the carriageway, which is marked by a thick white line, and the grass verge. Mr Scullion had rung the police from a service station further up the road, and Sergeant Smith saw him there. He said he had been travelling at about 60 mph in the nearside lane when he suddenly collided with something which smashed his nearside door window. He said he had no idea what he had collided with as he had seen nothing in the road at all.

There was no evidence as to whether the Plaintiff was in the roadway or how he came to be in the roadway and at what stage he came into it. In essence, he said, there was no evidence before him as to the circumstances leading up to the contact between the van and the Plaintiff. It might have been due to negligence on the part of one or the other or both, but he did not know on the evidence before him, and he was not prepared to infer on the evidence that the collision was more probably caused by the negligence of the Defendants.

Mr Scullion elected to call no evidence. The judge’s task was to determine whether on the evidence before him the Plaintiff had established a prima facie case that Mr Scullion had been negligent. Although it is not common for liability to be established in a road traffic accident on the application of the maxim “res ipsa loquitur”, it is also rare for a judge to be invited to determine liability for such an accident without hearing from either of the parties who were involved in the accident. We have been referred by counsel to such leading cases as Scott v St Katherine Docks Co

(1865) 2 H&C 596; Barkway v South Wales Transport Co Ltd [1950] AC 185, [1950] 1 All ER 392; and Lloyde v West Midlands Gas Board [1971] 2 All ER 1240, [1971] 1 WLR 749.

The Court found against the Claimant and dismissed his claim for damages.

The Plaintiff appealed the decision in the Court of Appeal.

HELD:-

Brooke LJ found in his judgment the judge was wrong to hold that the Plaintiff had not established a prima facie case that the defendant had been negligent. As the Defendant called no evidence to rebut the inference that he had been negligent, the Plaintiff’s appeal should be allowed. Brooke did state that the situation could have been different if Mr Scullion gave evidence.

There was an issue of contributory negligence which the judge did not find it necessary to address. A defendant has to take his victim as he finds him but despite his mental illness the Plaintiff was a man, according to Dr Webster, who was appreciative of dangers and aware of road safety. He was not wearing any light-coloured or reflective clothing and a person who showed proper care for his own safety would, as Sergeant Smith suggested, have stepped into the grass verge when he saw Mr Scullion’s headlights. Although this consideration does not exempt Mr Scullion from liability for hitting him, it does, in my judgment, mean that the Plaintiff was equally blameworthy, since his dark figure would have been difficult to see. Brooke assessed his contributory negligence at 50%.

Nourse LJ found that the Plaintiff did not follow the advice in the Highway Code, paragraph 4 ‘The Road User on Foot’. Nourse LJ came to the conclusion that a prima facie case of contributory negligence was made out against the Plaintiff and found no alternative to apportion the blame equally between Mr Scullion and the Plaintiff. This case in substance was very comparable to France v Parkinson [1954] 1 All ER 739, [1954] 1 WLR581.

Nourse LJ, agreed with Brooke LJ and the appeal was allowed.

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