Sobolewska v Threlfall (Rev 1)

Where the precise causal mechanism is difficult to prove, a court may use common sense and draw an inference from the totality of the evidence. The claimant must still prove negligence and causation on the balance of probabilities. It is sufficient that the damage was of a kind likely to have resulted from the defendant’s negligence, provided the court considers any credible alternative explanations. Momentary inattention by a driver can establish negligence. Contributory negligence requires evidence that the claimant failed to take reasonable care and caused or contributed to the damage.

The claimant suffered a fractured ankle and serious head injury after an incident involving the defendant’s slowly moving car in a dark car park. She had no recollection of the event, and the defendant was uncertain whether his car had struck her. The defendant ultimately accepted that the car probably caused the ankle injury but disputed that it caused the head injury. He also alleged that the claimant might have been partly responsible.

The court determined liability only. The central issues were whether the defendant’s vehicle caused both injuries, whether the defendant was negligent in moving the car without checking to his left, and whether the claimant was contributorily negligent.

1. Causation. The court applied the common-sense approach described in Drake v Harbour [2008] EWCA Civ 25. The burden of proving causation remained on the claimant. However, where negligence is established and the damage is of a kind likely to have resulted from it, the court may infer causation even though the precise mechanism cannot be demonstrated.
2. The evidence showed that the claimant’s foot was probably caught by the defendant’s front nearside tyre as he moved off and turned left. She then fell in an uncontrolled manner and struck her head on the hard surface. The alternative theories, including an earlier fall or assault, were highly improbable and inconsistent with the chronology, the severity of the injury and the surrounding evidence. The claimant therefore proved on the balance of probabilities that the car caused both injuries.
3. Primary liability. The defendant knew that pedestrians might use the car park and that visibility was poor. He checked to his right but did not check to his left before moving and turning towards the exit. That momentary inattention deprived him of the opportunity to see the claimant and amounted to negligence, although the culpability was at the low end of the range.
4. Contributory negligence. The defendant failed to establish that the claimant was at fault. The most likely account was that she approached from the vehicle’s left, where its lights would not have alerted her to the immediate turn. There was no evidence that she was distracted by music, a telephone or any other circumstance.
5. Judgment was entered for the claimant, with damages to be assessed.

First-instance liability judgment. Damages were to be assessed.