This was a substantive appeal by the Plaintiff/Appellant from the County Court decision of Her Honour Judge Kennedy on the 3rd March 2011 dismissing the Plaintiff/Appellants claim. The subject accident occurred on the 1st day of June 2010 on the forecourt of Simpson’s Garage at Junction One in Antrim. On the day in question the Defendant/Respondent was parked at a petrol pump when on opening her car door it struck the Plaintiff/Appellants vehicle which was approaching from her right and behind. The accident was captured on the garage’s CCTV cameras and copies of the footage taken from various angles are available for the Court. Primary liability for the collision was admitted by the Defendant/Respondent’s solicitors on her behalf however causation, and in particular whether the Plaintiff/Appellant could have sustained any injury, remained an issue.
After hearing the evidence and viewing the CCTV footage Her Honour Judge Kennedy in the County Court dismissed the Plaintiff’s claim on the basis that he had not satisfied her on the balance of probabilities that he had sustained an injury in the accident. The Plaintiff/Appellant appealed against this decision.
The Defendant/Respondent set out their case in Skelton Arguments. The Defendant/Respondent contended that the impact between the vehicles and the movement of the Plaintiff/Respondent within his vehicle was not sufficient to cause him to sustain an injury. Any movement of the Plaintiff/Appellant within his vehicle was caused by braking attributable to the speed of his approach to the petrol pump rather than to the impact with the door of the Defendant/Respondent’s vehicle. The Defendant/Respondents Expert Collision Investigator also having viewed the CCTV footage argued that based on testing carried out and considering the physical evidence the Plaintiff/Appellant’s vehicle would most likely have experienced lateral accelerations in the region of 0.5 to 0.8g which would have induced accelerations in the occupants of less than 0.8g. It was further argued that accelerations of 0.5 to 0.8g are similar to or below those experienced in normal daily activity.
It was further argued that as evidenced on the CCTV footage the Plaintiff/Appellant moved freely and appeared uninjured in the aftermath of the accident and that when he first attended his GP on the 9th June 2009, 7 days post-accident, he made no reference to aggravation of his back pain.
The Defendant/Respondent’s nominated medical expert Mr. Yeates, FRCS, having viewed the DVD footage set out that it was probably unlikely that any forces to the Plaintiff/Appellant’s person were such as to cause any bodily injury and that the probability is that he did not sustain any injury in this particular accident. As per the leading Judgment of Brooke LJ in Kearsley v Klarfeld (2005) EWCA Civ 1510 the Defendant/Respondent contended that there was no burden on the Defendant/Respondent to prove fraud on the part of the Plaintiff/Respondent in order to succeed.
Following the submission of the Defendant/Respondent’s skeleton arguments the Plaintiff withdrew the appeal.