SANDRA ZANATTA v METROLINE TRAVEL LTD

The standard is that of a reasonable road user, not an ideal driver judged with hindsight. A driver is not required to treat every pedestrian on a pavement as a hazard or to sound the horn merely because a pedestrian might unexpectedly enter the road. Accident reconstruction evidence must assist the court with technical matters; experts must not decide facts or express opinions on negligence. Where evidence is missing, an adverse inference is discretionary and requires a proper evidential basis, such as deliberate concealment, bad faith or breach of duty. Courts should avoid unwarranted mathematical precision when reconstructing fast-moving accidents from incomplete evidence.

The claimant sought damages for severe injuries sustained when she stepped into the path of a bus driven by the defendant’s employee. The trial concerned liability only. There was no live eyewitness evidence, the driver had died, and CCTV and telematics data were unavailable. Both parties relied on accident-reconstruction experts. The issues included whether the driver should have sounded his horn, slowed earlier, braked more heavily, or otherwise avoided the collision, and whether the missing telematics justified an adverse inference against the defendant.

1. Claim dismissed. The claimant failed to prove that the driver’s conduct fell below the standard of a reasonable road user.
2. The court adopted the approach in Clayton v Lambert [2009] EWCA Civ 237. In a fast-moving accident with limited forensic evidence, findings should not be expressed with unwarranted precision. The burden of proof remains significant where the evidence cannot establish the facts on the balance of probabilities.
3. The relevant standard was that of a reasonable driver, not an ideal driver or one assessed by fine considerations and hindsight, as explained in Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274.
4. Following Liddell v Middleton [1996] PIQR P36, the experts could give technical assistance on perception-response time, braking and collision reconstruction. They could not determine what the driver ought to have seen, whether he should have sounded his horn, or whether his conduct amounted to negligence. The claimant’s expert had exceeded that proper role.
5. The missing telematics did not justify an adverse inference. The evidence did not establish deliberate loss, bad faith, breach of duty, or blameworthy conduct. The authorities relied on concerning missing evidence were distinguishable. Telematics would not in any event establish when the driver perceived the claimant as a collision threat.
6. On the facts found, the driver noticed the claimant, eased off the accelerator, covered and lightly applied the brakes, and then braked hard and steered away when she stepped into the road. The claimant entered the road at close range and was there for no more than about two seconds. The response was within the range reasonably available to a bus driver who also had to consider unsecured passengers. Failure to sound the horn, failure to brake earlier, failure to heed the claimant’s presence, failure to avoid the collision, and failure to mitigate the injury were all unproved.
7. Obiter: if the claimant had succeeded, her contributory negligence would have been assessed at 70%. The principle in Eagle v Chambers [2003] EWCA Civ 1107 recognises that a pedestrian will rarely bear greater responsibility than a motorist, but sudden movement into the vehicle’s path was an applicable exception.