Martini and Zeqo v (1) Royal & Sun Alliance (2) Axa Corporate Solutions Assurance (3) Southern Rock Insurance [2022] EWHC 33 (QB)

On Thursday 15th October 2015 an accident occurred on the M20 motorway near Charing in Kent between junctions 8 and 9 (coastbound carriageway) at about 4.40 am. This section of the motorway is unlit.

The vehicles involved were:

1. A Mercedes lorry and trailer.
2. A Fiat van whose driver’s insurers are Royal & Sun Alliance.
3. A Scania lorry and trailer.
4. An Audi car driven by Mr Martini. Ms Zeqo was the front passenger. Southern Rock are Mr Martini’s insurers.
5. A Vauxhall van whose driver’s insurers are Axa.

The Mercedes was travelling in lane l. The driver of the Fiat fell asleep. The Fiat collided with the rear of the Mercedes’ trailer. The Fiat ended up stationary in lane 2 and because of the damage to it not displaying any lights.

The Scania was travelling behind the Fiat and Mercedes and moved from lane 2 to lane 3.

The Audi was travelling in lane 3 at between 65 to 70 mph. The Scania moved in front of the Audi.

To avoid a collision with the Scania Mr Martini steered to his left. The Audi then hit the stationary Fiat. The Audi was deflected towards the rear nearside corner of the Scania’s trailer which it hit. The Audi also stopped in lane 2 a short distance in front of the Fiat.

Mr Martini and Miss Zeqo got out of the Audi and went onto a grass verge by the hard shoulder.

The Vauxhall which was travelling in lane 1 moved into lane 2 where it collided with the Fiat. The Vauxhall lost control, went to the left onto the hard shoulder and verge where it hit Mr Martini and Ms Zeqo.

After a trial at Maidstone Crown Court in June 2017 the driver of the Fiat was convicted of offences of dangerous driving and causing serious injury by dangerous driving.

Mr Martini and Ms Zeqo issued proceedings. Their primary case was that this multi-vehicle accident was caused by the driver of the Fiat. However, pre-issue Royal & Sun Alliance had alleged that the driver of the Vauxhall was negligent and that his actions had broken the chain of causation. Consequently, they also sued Axa. In their Defence, Royal & Sun Alliance contended among other things that Mr Martini’s driving had been negligent. As a result Mr Martini’s insurers, Southern Rock Insurance, were added as the Third Defendant.

The case was heard by Jon Turner QC sitting a Deputy High Court Judge in a four-day long trial at the Royal Courts of Justice starting on 29th November 2021.

RSA’s defence at the start of the trial was that although their driver was negligent and had caused the collision between his vehicle and the Mercedes his negligence was not an operative legal cause of any of the subsequent collisions nor of the resulting damage and injuries sustained by the Claimants.

RSA’s case against Mr Martini was that he did not keep a proper lookout. If he had done so he would have noticed the Scania moving across towards him and slowing down. He ought to have noted the movement of the Scania as a potential hazard before it started to move into lane 3. If he had kept a proper lookout then he would have been aware of its movement into his lane earlier so that he would not have had to carry out emergency braking and instead could have braked firmly so that he slowed to a speed which would have enabled him to remain behind the Scania. Instead by reason of his failure to maintain a proper lookout he had to brake and swerve as an emergency. He had swerved into lane 2 which was a risky and dangerous manoeuvre.

RSA’s case against the driver of the Vauxhall was that he failed to slow down before the collision with the Fiat even though he had warnings of there being hazards ahead. If he had exercised care he would have avoided the collision with the Fiat, and there would have been no consequent injuries suffered by Mr Martini and Ms Zeqo.

In closing submissions RSA’s counsel abandoned the break in chain of causation argument and accepted that their driver’s negligence caused in part all the collisions and resulting injuries. It was submitted that Mr Martini and the drivers of the Fiat and Vauxhall should bear an equal share of the blame.

The Judge accepted that the issue of apportionment of liability in a road traffic accident case was fact sensitive. He accepted, however, the submissions made by counsel for Mr Martini, Axa and Southern Insurance that Mr Martini and the driver of the Vauxhall had been required to act in the “agony of the moment”. The court should not require the same standard of care from a party who is forced to exercise judgment in the agony of the moment as it may do from a party who reaches a decision without being subjected to such pressures.

The Judge found that the movement of the Scania into lane 3 was rapid and unexpected. He rejected the submission that Mr Martini should have appreciated that the Scania was a potential hazard to him even before it moved into lane 3. If the Scania’s swerve into lane 3 had been more of an emergency swerve then this might have meant that Mr Martini had as little as 5 seconds in total to react and avoid a collision. For Mr Martini to decelerate from 70 mph to 30 mph (the speed the Scania was traveling at) could have taken around 4.8 seconds according to the experts instructed in the case. However, if Mr Martini’s perception response time (the time between the onset of an emergency situation and when a driver begins a measurable manoeuvre) had been at the higher end of the range given by the experts say 1.6 seconds rather than the central estimate of 1.2 seconds then Mr Martini’s overall time to carry out his emergency braking would have been 5.2 seconds when he may only have had around 5 seconds in total before his car hit the Scania. The judge accepted that it was possible if one made “certain doubtful assumptions” there might have been enough time for Mr Martini to have remained in lane 3 and to have braked safely, but it was in his judgment more likely that Mr Martini could not have achieved this.

The Judge said that Mr Martini reacted to the unexpected movement of the Scania in front of him by taking an “agony of the moment” decision to steer from lane 3 into lane 2 as well as braking. The Judge said that it was not appropriate for the Court to engage in a fine-grained mathematical calculus, on the basis of imperfect information, doubtful assumptions and with the benefit of hindsight, in order to assess the liability in negligence of Mr Martini. There was no sufficient basis to find negligence on Mr Martini’s part.

The Judge found that it was likely that on his approach that the Vauxhall’s driver’s sightline would have meant that he would have seen the nearside tail and indicator light on the Mercedes on the hard shoulder but jutting into lane 1 which would have appeared to be indicating left. He would also have seen the rear nearside hazard warning light of the Audi proximate to the lane-line of lane 1. These lights would have been visible around 500 metres before he reached the accident scene.

The Judge rejected RSA’s submission that the Vauxhall’s driver was negligent for failing to slow down significantly in response to the two flashing lights ahead from the parked vehicles and for not putting on his main beams to survey the road ahead. The two lights may have appeared to be on the hard shoulder or affecting lane 1. It was a reasonable response for the driver to move into lane 2 to give a wide berth to whatever it was. There may have been oncoming vehicles at the time so that the driver may not have been in a position to use his main beams. There were no good grounds for accepting RSA’s submission that the driver ought to have moved from lane 1 into lane 2 earlier so that he could then have moved into lane 3 thereby avoiding the Fiat. Likewise, the driver’s decision to move into lane 2 was not negligent when he did so. He most likely did this to give a wide berth to the perceived objects in the hard shoulder or lane 1. The judge accepted the experts’ conclusion that once the driver committed to the movement into lane 2 the collision with the Fiat may have been unavoidable. The judge consequently rejected RSA’s case that the driver acted negligently.

Adrian Higgins appeared for Mr Martini. He was instructed by Sohail Mahmood of Broadgate Legal Solicitors.

18th Jan 2022

Adrian Higgins

Call 1990