PODESTA v AKHTAR & AVIVA INSURANCE LIMITED

This is a recent case which went to trial before Her Honour Judge Melissa Clarke in April and she handed down her judgement on 16 May 2019.

The claimant, Ms Podesta, suffered significant injuries as a result of a road traffic accident on 19 December 2015. She was crossing Aldwych in Central London when she was struck by a vehicle driven by the defendant, Mr Akhtar. Liability for the accident was in dispute. Mr Akhtar’s insurers denied that he was negligent in any way. The court directed liability be tried as a preliminary issue.

The facts of the case are that Ms Podesta had attended a work function on the evening of 18 December and she did not leave for home until around 2.30am the next morning. She was making her way home and was crossing Aldwych, which is a one-way road comprising of four lanes. Ms Podesta had safely reached the traffic island in the middle of the carriageway. As she stepped off the traffic island to cross the rest of the road she was struck by Mr Akhtar’s vehicle.

Ms Podesta had no recollection of the accident as a result of the traumatic brain injury she suffered. Mr Akhtar said that Ms Podesta stepped out into the road from behind a stationary group of pedestrians (also standing on the traffic island) straight into his path and that he had no time to react.

The judge was able to consider CCTV footage of the accident but the quality was poor because the camera was positioned some distance from the accident scene and it was obscured by branches of a tree. Despite these issues, the footage did provide some assistance to determine how the accident occurred. It disproved Mr Akhtar’s claim that Ms Podesta stepped out from behind a group of stationary pedestrians. The footage showed that Ms Podesta was only pedestrian on the traffic island as she stepped into the road. It also showed that the evidence from the only independent witness was somewhat unreliable. The independent witness claimed that Ms Podesta had run into the road from the traffic island, when the footage clearly showed that she walked.

The judge was also assisted with expert evidence from accident reconstruction experts instructed by the parties, namely Mr Hague for Ms Podesta, and Mr Stedman for the insurers. The judge was clear in her judgment that she preferred the evidence of Ms Podesta’s expert, Mr Hague. She commented that “I found Mr Stedman a less than satisfactory expert witness”. Mr Stedman refused to acknowledge that by zooming in on the CCTV footage you could clearly see that the Clamant did not run into the road. He was entrenched in his position that Mr Akhtar was not at fault for the accident despite the factual evidence available.

The judge made the following findings of fact:

• That Ms Podesta was stationary on the traffic island for 4.2 seconds;
• That Mr Akhtar had an unobstructed view of the traffic island for 5.85 seconds before impact;
• That Ms Podesta began to walk forward 3 seconds before impact;
• That Ms Podesta stepped off the traffic island 2.175 seconds before impact;
• That Ms Podesta stepped into the nearside lane 1.575 to 1.6 seconds before impact;
• That Mr Akhtar was not driving in excess of the speed limit.

The judge found that Mr Akhtar was primarily liable for the accident in that he had failed to exercise the standard of care to be expected of a reasonable driver. She justified this on the basis that Ms Podesta was there to be seen by him, standing on the traffic island for some time, and that he had 5.85 seconds before impact to identify her as a potential hazard.

She distinguished this from the case of Stewart v Glaze (2009) EWHC,  where the injured claimant was sitting at a bus stop and chatting with his friend, and then suddenly ran into the road and was struck by the defendant’s vehicle. Both the claimant in that case and his friend in that case accepted that a reasonable driver would not have perceived them to be hazard. Her Honour Judge Clarke said the facts of the case before her were quite different, and in her view a reasonable driver should have anticipated that it was likely that a pedestrian standing on a traffic island in the middle of the road might walk into the road.

The judge found that had Mr Akhtar perceived Ms Podesta as a hazard that he should have been ready to react three seconds before the collision and would have taken preventative action.

After finding that Mr Akhtar was negligent, the judge still had to resolve the issue of contributory negligence.  Ms Podesta’s representatives  conceded that she was contributorily negligent but argued that Mr Akhtar had a higher degree of blameworthiness. On this basis they submitted that Ms Podesta should only be found 25% responsible. The insurers argued that Ms Podesta was contributorily negligent at 80%.

Both parties relied on the case of Eagle v Chambers (2003) EWCA Civ 1107 in which it held that it was rare for a pedestrian to be found more responsible that a vehicle driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle.

The insurers submitted that Ms Podesta in this case had suddenly moved into the path of his vehicle and again relied on the case of Stewart v Glaze where the claimant had been found to be more responsible than the defendant.

The judge did not accept the insurers’ submissions on the issue of contributory negligence. She considered the level of contribution based on the facts of the case rather than other precedents. She stated that the key factors in this case were the length of time Ms Podesta was standing on the traffic island, that the road was well lit, and that Mr Akhtar had accepted he was aware that there were likely to be pedestrians around in this area who were worse for wear. On this basis, she found that Mr Akhtar should bare a higher degree of blameworthiness and she assessed that Ms Podesta’s contributory negligence at 30%.

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