In Soboleska -v- Threlfall  EWHC 4219 (QB) Mr Justice Foskett made some important observations about the use of commonsense in assessing the likely cause of serious injuries suffered in a road traffic accident.
The claimant suffered physical injuries and a serious head injury in a car park. The issue was whether the defendant’s car struck her and whether the head injuries were caused by any collision between the claimant and the defendant. The defendant conceded, during the trial, that some physical injuries had occurred. The claimant was unable to give evidence.
- In certain circumstances a judge is able draw inferences and apply common sense in relation to causation even if the precise mechanism of the injury is not clear.
THE APPROACH OF THE JUDGE: THE USE OF COMMON SENSE
The judge considered an argument that the claimant’s (very serious) brain injury was not caused in the accident but by some other means.
- By the end of the trial (which related solely to the issue of liability) the Defendant’s legal team were not continuing to maintain the position that the ankle injury was caused other than as a result of an accident involving the Defendant’s car. For, in my view, very sensible reasons, Mr Tim Horlock QC, for the Defendant, acknowledged that there was evidence of contact between a tyre of the Defendant’s vehicle and the Claimant’s left foot and, accordingly, he acknowledged that her ankle injury was probably caused in some way by that contact. The submission that the head injury was caused other than as a result of contact between the Claimant and the Defendant’s vehicle was, however, maintained.
- I will explain below why I cannot accept that aspect of the way the Defendant’s case is presented. In my view, the evidence establishes clearly (certainly on the balance of probabilities) that there was contact between the Defendant’s car and the Claimant, that she fell to the ground as a result of that contact and her general inter-reaction with the vehicle and in the process sustained the injury to her left ankle and the injury to her head, the injury to her head being caused by the impact with the ground. I reject as highly improbable any scenario that involves the head injury being caused other than as part of the Claimant falling to the ground in those circumstances. I should say that I have reminded myself (by reading the helpful analysis in paragraph 2-08 of Clerk & Lindsell on Torts, 21st edition) that merely rejecting as highly improbable one suggestion as to causation does not mean that I should accept another scenario that is also highly improbable.
- Furthermore, I have reminded myself of what has been said in other cases about the application of common sense to the situation where proving the precise causal mechanism is difficult. The following is said at paragraph 2-07 of Clerk & Lindsell:
“The burden of proving causation rests with the Claimant in almost all instances. The Claimant must adduce evidence that it is more likely than not that the wrongful conduct of the Defendant in fact resulted in the damage of which he complains. On the other hand, there are occasions when the court is permitted to draw an inference that there must have been a causal link, taking a common-sense and pragmatic approach to the evidence, in circumstances where the evidence is somewhat equivocal. So if the Claimant proves that the Defendant was in breach of duty and that damage occurred which was of a kind likely to have been caused by such a breach this may be enough for the court to infer that the damage was probably caused by the breach, even if the Claimant is unable to prove positively the precise causal mechanism.”
- Reference is made in support of the final sentence to Drake v Harbour  EWCA Civ 25 (applied in Vaile v Havering LBC  EWCA Civ 246). It is worth quoting the words of Toulson LJ, as he then was, in Drake at :
“In the absence of any positive evidence of breach of duty, merely to show that a Claimant’s loss was consistent with breach of duty by the Defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a Claimant proves both that a Defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the Claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the Defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the Defendant are on balance improbable, that is likely to fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the proven negligence.”
- Essentially, the exercise is one of applying common sense to the totality of the evidential picture with which the court is confronted. It has been acknowledged by every expert called in this case that their own field of expertise cannot give the definitive answer to the question of precisely how the Claimant sustained her injuries and the mechanisms that gave rise to them. Ultimately, of course, as everyone recognises, it is a matter for the court to put all the evidence together to see if the Claimant has established the case on the balance of probabilities.
REJECTING THE IMPROBABLE
The judge held that it was unlikely that the claimant suffered a head injury after leaving work, and on the way to the car park, and then made her way to the scene when she was ran into by the defendant’s car.
A SIMPLE CASE MADE COMPLICATED
- This is an unusual case, but on proper analysis it is, as Mr McDermott said at the outset, a simple case. It is not necessary to look for a sophisticated analysis of difficult questions. The answer is, within the limits of certainty, clear. The Defendant’s negligence is at the low end of the bracket of culpability, but nonetheless amounts to negligence in law. The evidence does not justify a finding of contributory negligence on the Claimant’s part