The claim arose from a road traffic accident in the Limehouse Link Tunnel on 23 February 2018. On the day of the accident, the claimant, Arron Macdonald, was riding a motorcycle scooter on his way home from work when he collided with the rear of a stationary tipper lorry which had been parked in the tunnel by the defendant driver, Mark Chilvers. Senior Associate, Kimberley Owen represented Arron along with David Sanderson of 12 King’s Bench Walk. Kimberley reviews the case here.

Arron suffered life-changing injuries in the accident, including a spinal injury and severe traumatic brain injury. After the accident, he was erroneously advised by the police that the fault for the accident lay with him. However, one and a half years after the accident, he instructed Stewarts to represent him in his personal injury claim against Mr Chilvers’ insurer, MS Amlin Corporate Member Ltd.

The defendant denied liability from the outset and no interim payments were made to Arron despite his desperate need for intensive rehabilitation.

Court proceedings were issued in January 2021 and the issues of liability and contributory negligence were tried as preliminary issues in a three day trial before His Honour Judge Salmon in July 2022. Judgment was handed down on 13 March 2023.

The issues

There were three issues under consideration:

1. Was the defendant driver negligent when he chose to park the tipper lorry where he did, just after a bend in the tunnel and at the commencement of a slip road?

2. Was the claimant at fault in failing to observe the lorry was stationary in time to avoid the collision?

3. If the claimant proved the defendant driver’s negligence and the defendant proved the claimant’s contributory fault, to what extent should the claimant’s damages be reduced to reflect his share of the blame for his injuries?

The claimant’s submissions

Arron submitted that the tunnel and the roads leading up to it were urban clearways, which forbid any vehicle from stopping and, as such, road users would not expect anyone to stop. The lorry created a substantial, dangerous and unnecessary obstruction of the road covering the whole slip road.

Unfortunately Mr Chilvers died before providing a full account of his actions which made it difficult for the court to be satisfied there was a sufficiently good reason for him to stop where he did. There was no evidence of a need to stop the lorry to prevent imminent danger to others. A prudent driver would leave the clearway and then find a safe place to stop. To stop and cause a fresh danger was negligent.

Alternatively, if there had been a valid need to stop the lorry, the defendant driver could have greatly mitigated the obstruction his stationary lorry would create by parking 40 metres or so further along the slip road where it widens into two lanes.

Arron contended that for the defendant driver to stop the lorry where he did in the tunnel was negligent. It was also negligent for him to have failed to switch on his hazard warning lights as soon as he came to a halt (as he falsely asserted to the police he had done). Flashing hazard lights would have given a much clearer indication that the lorry was stationary.

Defendant’s submissions

The defendant driver told the police he had heard a noise and judged it necessary to stop. Had he not stopped, he would have exposed other road users to risk, which could have included something falling from the lorry with potentially fatal consequences.

He decided to stop, minimising any risks associated with this by activating his flashing beacons and stopping in the slip road where the tunnel was straight; vehicles entering behind him in the slip road would have been able to stop if travelling within the speed limit.

In moving from lane two into the slip road, Arron was riding dangerously. He failed to see the lorry, which was clearly visible from its beacon, flashing LED lights and the lighting within the tunnel and he failed to control his scooter by braking or otherwise to avoid a collision.

Consequently, any negligence on the defendant’s part was limited to between 15% and 25%.

Trial judge’s findings

The judge ruled that it was common ground that the lorry created an obstruction.

The obstruction was objectively dangerous because:

• It blocked the entire slip lane.
• It created a risk of a collision with the potential for serious injury.
• While the illumination of the lorry created an element of visibility, rotating flashing lights off the tunnel walls do not provide any significant assistance and could easily be confused with movement.
• Flashing lights do not automatically signal a lorry is stationary as opposed to slow-moving and are not sufficient to mean stopping in the slip lane is not dangerous.
• It is entirely foreseeable that vehicles might seek to move across from lane 2 into the slip road. It is, therefore, foreseeable that vehicles might join the slip road where they have little or no opportunity to react to the obstruction ahead of them.

The judge said the dangerous obstruction was not justified because:

• A reasonably competent motorist would have appreciated it was not permitted to stop in the tunnel. The effect of this is that any user of the tunnel should have appreciated that to stop on what is otherwise a free-flowing road had the potential to cause serious danger to other road users.

• While Mr Chilvers heard a noise, a reasonably prudent motorist would not have reacted by parking in the tunnel as he did. They would have exited the tunnel slowly and cautiously and illuminated their lights.

• Alternatively, if he had a valid reason to stop, he should have stopped further along the slip lane, where it widens into two lanes. Had he done this, he would have still created an obstruction but the danger caused would have been substantially less, and the claimant would have been able to avoid the collision.

In parking up the lorry in the position that he did, Mr Chilvers was negligent as his actions created a dangerous and unjustified obstruction. Arron, therefore, succeeded in establishing primary liability.

Contributory negligence

A finding of 60:40 was made in Arron’s favour in respect of contributory negligence

The judge found that Arron should not have moved across lanes as he did after emerging from the bend in the tunnel without establishing that it was safe to do so.

He should have seen the flashing lights when in lane one, and they should have altered him to a potential hazard ahead. The Highway Code provides that the existence of flashing lights may indicate a stationary or a slow-moving vehicle. As such, Arron should have been alert to either scenario.

Arron should not have commenced his move into the slip lane until he was in a position to see and assess what was in front of him and, if necessary, stop. The presence of the lights should have alerted him to the need for increased caution. In moving between lanes as he did and entering the slip lane without ensuring it was safe to do, Arron failed to take reasonable care.

Once in the slip road, Arron had insufficient time to perceive the danger and react accordingly. His reactions were considered to be within the bounds of a reasonable motorist.

In summary, the judge determined that Arron should not have moved into the slip lane without having established that it was safe to do so. However, Mr Chilvers should not have stopped in the tunnel and created an obvious and very dangerous obstruction.

Conclusions and next steps

The defendant insurer accepted the judge’s finding of primary liability but disputed the 60:40 liability apportionment. Consequently, the defendant applied to appeal the apportionment at a hearing before His Honour Judge Salmon on 1 March 2023. This was rejected by the judge on the basis that there were no real prospects of the Court of Appeal determining that his decision was not reasonably open to a judge at first instance. No error of law was alleged.

The defendant has 28 days from 1 March 2023 to apply to the Court of Appeal for permission to appeal the apportionment of liability

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