TEXTING WHILE DRIVING AND CIVIL LIABILITY: JUDGES KNOW, YOU KNOW: “A CONCLUSION I REACH WITHOUT ENTHUSIASM BUT THE EVIDENCE IS COMPELLING”

In HRA v KGC [2022] EWHC 650 (QB) Mr Justice Turner considered the question of liability. It is an example of a phone record playing a part in the decision that the defendant was negligent.  The judge found that the defendant driver was engaged in a series of text messages, whilst driving, and this contributed to her inattention to the road and her negligent driving.

“The reasonable observer may, however, be tempted to ask the question as to how the defendant, as a competent driver of a familiar vehicle on a familiar road, could have made such a serious error. In my view, the explanation was found in a cavity to the right and beneath the level of the steering wheel of the Range Rover. It was the defendant’s mobile telephone.”

THE CASE

The child claimant was a passenger in a car driven by the defendant, his mother.   A car coming in the opposite direction attempted to overtake a lorry.  A collision occurred with a vehicle in front of the mother’s car and the oncoming car and debris scattered onto the road. The mother’s vehicle did not stop, the manoeuvre she took meant, it went across to the opposite carriageway, through a fence and collided with a freight train on a railway line that ran parallel to the road.  The claimant suffered catastrophic injuries.

The defendant’s case was that this was an “agony of the moment” case. She was faced with a sudden emergency in the road and it was a counsel of perfection to criticise her driving.

THE JUDGE’S DECISION

The judge analysed the evidence and came to the conclusion that the defendant was not paying adequate attention to the road ahead in the moments leading up to the incident.  The suddenness of her delayed reaction explained the what subsequently happened in relation to the lack of braking and the unusual course in going onto the opposite carriageway.

TEXTING WHILST DRIVING

The judgment went on to consider the evidence in relation to the defendant’s use of the mobile phone.

1. 1. The above analysis is sufficient, of itself, to lead to the conclusion that the claimant must succeed. The reasonable observer may, however, be tempted to ask the question as to how the defendant, as a competent driver of a familiar vehicle on a familiar road, could have made such a serious error. In my view, the explanation was found in a cavity to the right and beneath the level of the steering wheel of the Range Rover. It was the defendant’s mobile telephone.

1. 1. This a conclusion which I reach without enthusiasm but the evidence is compelling.

1. 1. Firstly the call sequence table with respect to activity on the phone reveals a series of no fewer than four text exchanges between the defendant’s phone and that of her boss at work; all within the period of about eleven minutes immediately preceding the accident. To every text received from her boss, the defendant responds within a minute. The last text to the defendant was sent at 16:24:11. Ms Van-Daal telephoned 999 at between 16:24:00 and 16:24:59. The timing thus coincides compellingly with the period during which the defendant would have been likely to be either reading or preparing to respond to the last text she had received.

1. 1. Of course, on this evidence alone, it might have been possible to conclude that the regularity of text exchanges had, by coincidence, stopped very shortly before the accident. However, I reject this explanation mainly because of the defendant’s lack of candour during the police investigation. The following features are relevant:

(i) In her first statement to the police dated 15^th January 2013, the defendant gave a detailed description of how her mobile phone connected through Bluetooth in the car for the purpose of making and taking calls during the course of the journey. She conspicuously made no reference to sending or receiving texts;

(ii) In her subsequent police interview, she was twice invited to recall anything that had occurred specifically in the last the minutes before the accident which she had not previously mentioned. This provided the defendant with a clear and obvious opportunity to volunteer the information that she had been texting. She did not take this opportunity;

(iii) When later confronted with the sequence table, she asserted, wrongly, that she had previously said that she had “had texts” when, in fact, she had made no earlier mention of any texts whatsoever;

(iv) She went on to claim that she had sent only one text to her boss comprising two words. In fact, the table shows that the she sent no fewer than four texts in the period of about eleven minutes prior to the accident;

(v) The claimant asserted that she would only have sent a text when her vehicle was stationary whether at traffic lights or for some other reason. This was not true; as Ms Van-Daal was able to confirm. The defendant had been driving in front of her without stopping throughout the entirety of the period over which the exchange of texts was taking place.

(vi) In his second witness statement of 1^st December 2020, the claimant’s brother referred to the fact that if he were in the car with his mother when she received a text, she would normally ask him to read out the text to her and dictate a response. This, however, was a red herring because the defendant had earlier and unequivocally denied to the police that the claimant’s brother had used the phone on the journey in question.

1. 1. Of course, the possibility that the text exchanges may coincidentally have concluded before the collision could readily have been explored simply by accessing the defendant’s phone and reading them. However, the defendant, without plausible explanation, was unable to disclose her PIN number to the police. I am driven to the conclusion that she deliberately frustrated their enquiries because she knew that the contents of the text messages would reveal that, at the time of the crash, her boss was awaiting a response from her and that the defendant was distracted.

CONCLUSION

1. 1. In summary, I have concluded, on the balance of probabilities, that:

(i) A reasonably careful driver would and should have seen and reacted to the events unfolding before her in such a way as to steer to the left and apply her brakes so as to avoid any collision or loss of control;

(ii) The likeliest explanation as to why the defendant was not keeping a proper look out or paying proper attention to the traffic ahead of her was because, at the crucial time, she was using or about to use her mobile phone.

1. The issue of liability now having been resolved, the case will proceed, in due course, to the assessment of quantum.