Dickens v Bearman, Court of Appeal, 2 October 2003

Road traffic accident – pedestrian – CCTV – evidence.

The Defendant was the driver of a Mitsubishi Shogun, which was parked hard against a kerb with a slight right hand lock. The Claiment was a pedestrian, standing close by the car. As the car reversed it came into contact with him causing him to fall heavily to the ground and suffer a fractured skull and brain damage. The Claimant had no recollection of the circumstances immediately preceding the accident. Although the Defendant disclosed witness statements in respect of the driver and several passengers in the vehicle, neither he nor the passengers attended the Hearing. No Application for adjournment was made. The statements were not admitted in evidence. The incident was however caught on film by means of a CCTV camera. The CCTV film showed the Claimant approaching the nearside door of the vehicle, which was opened, possibly by him. He then went behind the door apparently for the purpose of some sort of exchange with someone in the vehicle. The door was then shut. The Claimant moved away at a slight angle towards the rear before returning quite deliberately towards the nearside door. He was standing at the door for no more than a moment before the Shogun began the process of reversing. The Judge viewed the film – this being the only evidence before him as to liability and concluded that whilst primary liability was established in that the driver failed to keep a proper look out before commencing his manoeuvre, the Claimant was contributorily negligent to the extent of 50%. The Claimant appealed.

1. A viewing of the film by itself entitled the Judge to reach the conclusion that the driver was at fault.

2. The same could not be said of the finding in respect of the Claimant. The fact that the Claimant returned to the vehicle whether or not the engine was running and whether or not he could anticipate that sooner or later the driver was intending to reverse was not in itself evidence of negligence. It might have been had the full facts of the case come out that there was evidence of the Claimant’s negligence, but there was no such evidence available to the Judge. It was at least a possibility that he had been summoned by someone in the car or that he had heralded his return by saying or shouting something to people in the car. The Court was unable to say.

3. In these circumstances, the Order in respect of contributory negligence would be set aside and the Defendant would be found 100% to blame.

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