QB-2019-000783 - [2025] EWHC 2002 (KB)

The court’s finding on Issue 11 is, I recognise, crucial. I find that:

This issue is divided into two parts (A) the claimant’s positioning; (B) the reasons for his positioning.

The claimant’s positioning

A substantial body of evidence was directed towards this issue. To provide structure to the analysis, I examine four sub-issues:

Mr Gornals provided two accounts of his speed along the road. The first account was given to the police officers who attended the scene. The precise time that the account was given is not recorded, but it can be confidently placed between 01:47 hours when the officers on patrol were called to the scene and 03:30 hours when the police report was “issued as a statement”. The officers were “only 400 metres from the location”, so likely attended promptly, given the seriousness of the incident, with “an injured person lying in the road”. Indeed, it is recorded that they proceeded to the scene “without delay”. Having examined DHV, and spoken to the wedding guests around him, the officers spoke to Mr Gornals. Mr Gornals gave this account to the attending police officers:

“Mr Alia [Gornals] said that he was the driver involved in the collision, and he told us that he was coming from Cala Egos towards Cala D’Or to go running, as he often does at night. He said that he was driving in his lane, at a speed of approximately 40 km/h, that he was focused on the road and felt something hit his vehicle, braked and stopped a few metres ahead. Until he got out of the vehicle, he was not aware that he had hit a person.”

Later that same day at 14:25 hours, Mr Gornals provided the police with a more detailed account in a “Statement Document”. He said when asked about his speed, “that it was about 40 kph”. This statement was read by Mr Gornals and signed by him, the investigating officer and witnessed by the “secretary”.

At the scene, the police also encountered a driver of a vehicle coming in the opposite direction Mr Sanchez. The police report states:

“At the location, we found EUSEBIO SANCHEZ ALVARO … who said that he witnessed the accident and gave us his details in case they were needed, in case we wanted to call him in to describe what he had seen.”

It can be seen that Mr Sanchez was a cooperative witness. True to his word, he did assist the police later that day and provided a statement at 17:55 hours, which he also signed, along with the investigating officer and the secretary. He stated that “The vehicle in question [the Hyundai] was not driving at excessive speed, that it must have been travelling at about 40 km/h.” This is the assessment of a disinterested third party who observed the aftermath of the incident immediately following the collision and provided police authorities with a contemporaneous account.

In closing submissions, neither party sought to rely on KLQ’s account of speed. In her original statement, she stated at para 20:

“20.

I have in my head an image of DHV stepping off the road but I cannot quite say that I saw it. It all happened very quickly. I saw the car coming down very fast, When I saw the report, I thought the car was travelling at 40mph and I was OK with that, this is the speed I would say he was doing, 35 to 40 mph. As I reckon now that 40km/h is 25mph I would say no way – the car was going faster than that.”

In trial evidence on oath she stated that she cannot say what the speed was and could not disagree with the suggestion that the vehicle was travelling at approximately 40 km/h, thus not being driven at excessive speed.

It is noteworthy that the claimant’s pleaded case as set out in the particulars of claim (para 4) is that:

“M. Gornals was at fault and negligent in that he:

(a)

Drove too fast in all the circumstances.”

At trial, the claimant was presented with a forensic difficulty. Driving “too fast” would make it more likely that an upright impact would cause damage to the front of the vehicle. Therefore, the claimant was eager to urge upon the court an impact speed at collision of under 40 km/h. At times the suggestion was that there could have been braking from an excess speed so that at point of impact the speed was lower to reduce the possibility of frontal damage – a real difficulty in the claimant’s case. There are problems with this argument. The pleaded case at para 4 continues that Mr Gornals:

“(b)

Failed to slow down in the vicinity of a pedestrian crossing.

(c)

Failed to keep a proper look out.

(d)

Failed to see the Claimant in the road in time or at all.

(e)

Failed to brake in time or at all so as to avoid a collision.”

Therefore, the original claim was that Mr Gornals failed to slow down; he failed to brake in time or at all; and he failed to see the claimant in the road in time or at all. This is how the case has been pleaded. There has been no application to amend these elements of the pleadings. It is clear that the claimant’s case was that Mr Gornals was driving “too fast”. If he did not see the claimant, he could not have had the trigger or cause to brake and this is consistent with the claimant’s assertion that he “failed to slow down”. Therefore, Mr Vincent’s submission that Mr Gornals “probably did [brake]” prior to impact is rejected. It is speculative, based on no evidence and is contrary to the claimant’s pleaded case.

Mr Gornals’s original account given at the scene is that he was driving at approximately 40 km/h. That is not surprising given that 40 km/h is the speed limit. In his second account, which he read and signed, he gave a consistent speed of 40 km/h. Mr Sanchez, a disinterested stranger, also independently supports this approximate speed. Their evidence taken together - and the cumulative effect is important - more than counters the claimant’s argument that Mr Gornals may have been exaggerating his speed and in fact he may have been driving more slowly. This struck me as an implausible suggestion. It must be remembered that Mr Gornals’s first account was in the immediate aftermath of the impact and at the scene. It is at the very least as likely, if not more so, that if he were providing an inaccurate speed to the police that it would have been to suggest he was driving more slowly than he actually was. Mr Vincent submitted later that Mr Gornals’s comments may have been “exculpatory”. The point offered is that Mr Gornals may have been “pretending” to drive faster than he actually was to indicate that he has less time to react. This is an unconvincing argument. It does not in any event fit with two other pieces of evidence: first, that Mr Gornals said from the outset that he did not see DHV at all in front of his vehicle, so reaction time had nothing to do with it on his account; second, Mr Sanchez provides material and consistent support for the speed Mr Gornals told the police he was driving at.

I find that little weight can be placed on KLQ’s account of speed. Her trial evidence differed significantly from her original statement dated 20 August 2020. She accepted on oath that she “could not disagree” with the suggestion that the Hyundai was not travelling at excess speed, even though she originally stated that there was “no way” he was only driving at 40 km/h. In any event, her evidence provides no reliable support that the Hyundai was being driven materially more slowly than 40 km/h. Finally, it should be noted that Mr Gornals volunteered to be breathalysed, as indicated in the police report. The result was a “zero” alcohol reading.

I accept Mr Vincent’s submission that the reconstruction experts cannot say anything about impact speed from the physical evidence. It is a sound point, well made. The evidence of these experts fundamentally depends on the finding about speed that the court makes. However, I cannot concur with Mr Vincent’s further submission that the court “has very little to go on” in respect of vehicle speed. As I have indicated, there is a body of unconnected, mutually consistent contemporaneous evidence provided shortly after the incident in July 2017. Courts have repeatedly emphasised the importance of contemporaneous evidence (“always of the utmost importance”, per Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431). Assembling the available evidence, the court finds that it is likely that Mr Gornals was driving his Hyundai at 40 km/h or very close to it. I add that qualification because it is unrealistic to find he was driving at precisely 40 km/h. I reject the claimant’s submission that the court “has very little to go on” to determine speed. A holistic analysis of the evidence firmly points to 40 km/h or very near to that as being the Hyundai’s speed at point of impact.

The police report records that the officers, while detailing the injuries of the claimant, noted that he was “smelling significantly of alcohol” (counsel frequently referred to this as smelling “strongly” of alcohol, but the translated police report states “significantly”). The officers also spoke to the people from the wedding who were attending DHV. The officers recorded:

“None of the people who were with the injured man wanted to make a statement, as they were very nervous. They simply told us that they were coming from a wedding and that the person who was hit had been very drunk.”

When Mr Gornals provided his second account at the police station later that day, he was asked whether he wanted to add anything or make any allegations. He said that, when he stopped the vehicle and moved to the rear “he saw a group of about 15 to 20 very drunk people heading towards his vehicle” and that “the friends and family of the man were very drunk in that place”. From among this group of wedding guests, it seems, the statement was contemporaneously made to the police that DHV had been “very drunk”. According to Mr Gornals, they also were very drunk, and his description of their being “very drunk” matched their description of DHV being “very drunk”. It is a small piece of evidence indicating the kind of drinking that was taking place at the wedding and supporting in a limited way that DHV was “very drunk” and “was smelling significantly of alcohol”. This evidence does not sit in isolation, but must be viewed in the context of the contemporaneous scientific testing. This shows that DHV had an ethanol (blood-alcohol) level of 2 grams per litre. This is four times the Spanish permitted limit for driving and 2.5 times the driving limit in the UK. The testing was conducted at 04:13 hours. This is therefore two hours after the collision. It is a widely recognised scientific fact that the body metabolises (eliminates) alcohol over time, but I have received no “count-back” evidence, as one might have received in a drink-driving case in the UK. While it is likely as a matter of science that the actual alcohol level at point of impact was higher than 2 grams per litre, I proceed on the recorded figure in the absence of other scientific evidence and decline to speculate.

As to KLQ’s account about DHV’s drinking, it must be remembered that I found that her evidence about speed to carry little weight. In respect of the claimant’s drinking, her difficulty is that by her own admission she had not consistently monitored what he was doing as she had spent time dancing without him. Therefore, little store can be placed on her observations about the alcohol he had consumed. She had certainly seen him drink around 8 alcoholic drinks, but accepts that he could have consumed more. Indeed, DHV accepts that he may have consumed 11 alcoholic drinks at least, including 2 glasses of champagne, 6 Corona beers, 2 rum and cokes and a glass of table wine. I find that KLQ’s statement that “we were not drunk” to be unreliable, self-serving and unlikely to be accurate. It runs contrary to the observation of Mr Gornals, as related to the police in his police station statement, and the police impression that DHV was smelling significantly of alcohol. It seems likely that more alcohol was being consumed than KLQ and DHV were prepared to accept, for obvious reasons.

It must be immediately observed that the police officers did not make sworn statements, did not give evidence on oath and were not cross-examined and thus their account was not tested. I take all of that into account in assessing the weight that can be placed on their account. Equally, what the officers were told by the wedding guests that DHV was “very drunk” is hearsay. The wedding guests, whoever they were, have not been identified, nor have they given statements (assuming one of them is not KLQ) and have not been cross-examined. This also diminishes the weight the court can place on their accounts. That said, what is recorded is not that DHV had been drinking, but that he was “very drunk”. This is consistent with the police observation that he smelled “significantly of alcohol”. It seems to me that scientific testing evidence forms an invaluable anchor-point and means of comparison. DHV was on any view significantly over both the Spanish and English legal limits for driving (4 times and 2.5 times respectively). He was not driving, but a pedestrian. As pointed out, there is not a legal limit prescribed for pedestrians. One then reconsiders DHV’s account. He denied drinking to the point “where I do not know what I am doing”. Mr Vincent submits on the back of this that there is no evidence to the contrary. This misses the point. The case does not turn on whether DHV had drunk so much that he became an automaton or incapable of exercising any control over his body. What the totality of evidence establishes as likely to the civil standard is that DHV had drunk alcohol to the extent that his judgment and self-control were materially impaired. This is a different matter. I carefully allow for the qualifications to the sources of evidence I have identified, so important that I repeat them: Mr Gornals and the police officers did not give evidence; the wedding guests’ comment is hearsay and they remain unidentified and not cross-examined. But all this evidence interlocks and is supported significantly by the scientific blood testing. Mr Vincent submits that it is “impossible to know what ‘very drunk’ means”. It is certainly - and at the least consistent with - having one’s bodily control impaired. Mr Vincent further submits that “very drunk” does not equate to being drunk enough to “collapse unconscious in the road”. It could do. But it is unnecessary to go that far. It is not necessary for the defendant to prove that DHV going from an upright position to being flush to the ground was solely caused by his level of inebriation. The court considers matters probabilistically. I must consider the question of negligence (breach of duty or “fault”) and contribution at Issue 4. Here I simply examine what can be proved by the evidence about the claimant’s bodily positioning.

It is certainly the case that when someone is four times the legal alcohol limit for Spain or twice that for the United Kingdom, she or he on balance and on average:

Mr Vincent submitted that if there were other evidence to show that the claimant were lying in the road then “the blood alcohol level might well explain why he was doing it.” This is adopting a fragmented and siloed approach to the evidence. All the evidence must be viewed together. It is not that there must be some “smoking gun” evidence that DHV was lying horizontally which the scientific testing can then be deployed to support. Instead, the proper evidential analysis is to examine all the evidence together and in the context of all the other evidence to assess what can be proved to the civil standard. The blood alcohol levels are not shut out from the analysis until some other evidence exists of the claimant being flush to the road surface. Rather, the proper analysis is probabilistic, contextual and holistic.

Viewing all the evidence together, I find that it is likely that DHV had consumed alcohol to an extent that he was drunk. Further, it is likely that his judgement, bodily control and reactions were impaired without being altogether removed.

I now examine the lay witness evidence about DHV’s positioning in the road. DHV was adamant that he was not lying in the road and had no reason to do so. His difficulty is that he cannot recollect the moment of impact. Therefore, objectively, the most he can say is that he does not believe he would have been flush to the carriageway. While he was vehement about this, I found DHV’s evidence about his movements after leaving the Yacht Club to be unreliable.

He has provided three materially inconsistent accounts of what he did. In his September 2017 account to his case manager, he stated that he followed “a gentleman”. KLQ saw no such person. In cross-examination, DHV accepted that he did not in fact follow anyone. Second, his sworn witness statement narrates how he was struck on the zebra crossing. Here was an attempt to suggest that he was complying with good road sense and using a designated crossing. This account could not survive the developing evidence and at trial he abandoned it as being “a bit inaccurate”. On oath in the witness box he provided a third version. He claims to be “concrete” about the new version. Nevertheless, the account contained further problematic elements. He stated that he could see “the sea” at the end of the road. That was plainly impossible. He changed his account to what he saw being “a pond” or “the car park”. He spoke of passing six buildings. There are not six buildings to pass. Further, the fact that he crossed the road at a non-designated place when there was a zebra crossing in the vicinity, lends some support that he was not observing better road safety practice. This also in a small way is a factor affecting his credibility. Consequently, I can place little weight on DHV’s adamance that he was upright at point of impact.

KLQ provides little assistance as she did not see the collision. She cannot say what happened to DHV after she last saw him on the kerb when he must have been upright.

Mr Gornals did not see the collision. He was not aware that he hit a pedestrian until after he got out of the vehicle upon stopping in the car park. At the local police station later that afternoon, Mr Gornals told the police that he “felt an impact on the underside of the vehicle”. The claimant submits that this is “an extraordinary account”. I am not persuaded by that submission. Common sense and experience tells us that it is often possible to distinguish between a vehicle being struck on its top as opposed to its underside. Few people would argue with that. It may certainly be the case that it is more difficult to distinguish between an under-vehicle impact and a frontal one, but it is not impossible or implausible for Mr Gornals to have sensed the location of impact. However, I find that a degree of caution must be exercised about Mr Gornals’s degree of attention.

First, he explained that he continued driving forward due to concern about cars coming from behind. There is no evidence of immediately following traffic. Then he says that he did not see anyone in front of him. The experts agree that due to DHV’s white T-shirt and shorts with pale legs exposed, Mr Gornals should have seen him even if the claimant was flush to the road. Further, the Hyundai’s headlights, even if dimmed, would have illuminated the roadway in front of the vehicle. Yet Mr Gornals did not see the claimant despite stating to the police that he was “focused on the road”. This indicates a significant degree of inattention on Mr Gornals’s part. However, his contemporaneous accounts to the police include that he felt something strike the underside of vehicle and that is why he thought it was “some kind of object, a bin or a parked motorcycle”, in other words, something lying low in the road and that he “was not aware that he had hit a person” until he got out of the vehicle. Ms Wyles makes the point on behalf of the defendant that if DHV had been upright at point of impact it would have been materially more likely that Mr Gornals would have seen DHV.Counsel submitted with some force that there is a difference between someone lying in the road and someone “standing right in front of your windscreen”.

Mr Sanchez did not see the impact. However, he saw the Hyundai very shortly after the collision with DHV and before the Hyundai turned into the car park. Indeed, Mr Sanchez “gave way to it” as it crossed his side of the road. He noticed “what appeared to be a loose piece of plastic hanging from beneath the sump guard/bumper” and “and as the vehicle continued forward he saw an unconscious person come free from underneath it.” Graphic though it is, Mr Sanchez’s account cannot support one party over the other on this sub-issue.

The lay witness evidence does not assist greatly in determining DHV’s positioning at impact. I cannot place much weight in DHV’s assertion that he was or must have been upright as his accounts are inconsistent and unreliable. KLQ did not see the collision, nor did Mr Gornals or Mr Sanchez. However, Mr Gornals did feel an impact on the underside of his vehicle. I find that this is not implausible, despite the claimant’s criticisms. His belief that he had struck some object or bin in the road in the road supports his sense that the impact was underneath his vehicle. It is some, albeit limited, evidence consistent with DHV being flush to the road surface at impact.

Let me emphasise at the outset that I place no weight on the conclusion of the Spanish police officers that the pedestrian was crouched or lying in the roadway. Beyond what Mr Sorton said that their investigation was of poor quality, they did not give evidence and there is no information about their qualifications for offering such an opinion. I sharply distinguish between their assessment of the position at point of impact and their contemporaneous recording of what they saw and were told at the scene. Having cleared the way, I turn to my assessment of the two reconstruction experts, Mr Sorton and Ms Escobar.

Ms Escobar states that what was conclusive to her opinion of an upright impact was the nature of the injury to DHV. This is problematic. Ms Escobar is not medically trained. Biomechanics is not her area of expertise and she has no qualifications in the field and has left incomplete her doctoral research. Her central reliance on injury mechanism causes the court to question her reliability and authority as an example of unjustified overreach. Thus while she persisted in stating that what was “conclusive” of an upright impact was DHV’s injuries, she does not have the expertise to reliably or safely advance this opinion to the court.

Her claim that there was a dent to the left-hand side of the vehicle which she could not then substantiate also adversely effected the court’s assessment of the expert. Ms Escobar stated that if there was a collision when the vehicle was moving at 40-50 km/h there would “not necessarily have to be any damage”. This might be a theoretically possibility, but it is highly unlikely. By contrast, I found Mr Sorton to be a reasonable and thoughtful expert witness. For example, he readily accepted that the misalignment of the bonnet could conceivably be due to a collision with DHV upright. He need not have made that concession and it speaks to his reasonableness that he did. Mr Vincent submitted that the court might feel that “there was not much between these two experts”. I cannot accept that submission. There were very significant differences between the quality of evidence presented by Ms Escobar and Mr Sorton.

First, the bonnet misalignment. The “gap” that could be seen in what Mr Sorton called the “shut line” of the bonnet was variable, an inconsistent area of misalignment. This supported Mr Sorton’s suggestion that it may just be a bonnet that does not fit properly, probably due to the age of the vehicle. Mr Sorton fairly accepted that the bonnet gaping could be due to an impact, and accepted that he could not “absolutely” exclude that mechanism. However, he did not believe that this was likely as the area was “too discrete”. It was revealing that Ms Escobar had not mentioned the factor before the joint statement. She said it was “relevant” to the accident, even though she had not mentioned it once in her report. She said without any source or supporting evidence that it was “statistically unlikely” that the bonnet was deformed before the accident. It was not a reliable or safe suggestion and without foundation. Her explanation of the mechanism of deformation whereby an impact on the left-side would lead to a raised right-hand side of the bonnet is inconsistent with the photographic evidence showing a gap on the left. In the end, Ms Escobar accepted that the malalignment of the bonnet could be attributed to a badly fitting bonnet in this 17 year-old vehicle.

Second, the licence plate. Ms Escobar accepts what is the obvious drawback with advancing this as a candidate for the impact with DHV: it cannot be known whether this disfigurement to the licence plate predated the collision. It must be emphasised that this Hyundai vehicle was well over a decade-and-a-half old at the date of accident. Mr Sorton made the telling point that the area of damage is too far across from the impact with the left wheel. The blood trail indicated that part of his body was lined up with the left wheel. If so, it is improbable that the area of licence plate damage could have been caused by DHV’s leg. Ms Escobar also could not explain how there could be an upright frontal impact that caused this damage and nothing else. This area of the vehicle provides no material support for an upright impact.

Third, the dent to the vehicle’s left-hand side. Ms Escobar spoke about a dent to the left-hand side of the vehicle in the Joint Statement. When during her evidence, Ms Escobar was asked to identify the dent she claimed to have observed, she was unable to. This could not possibly support a collision in an upright position. I found that the Newcastle collision example proffered by Mr Sorton was of value. Mr Vincent submits that “if one removes the damage to the vehicle’s windscreen, there is nothing [no damage] to see”. This fails to recognise that Mr Sorton brought this example specifically to the attention of the court in his evidence. I found him to be a fair, balanced and reliable witness and accept his evidence that having been involved in the Newcastle case there had been damage to the front of the vehicle (“a crack to the bumper”). In that case, the experts agreed that the taxi was travelling at 28 mph or 45 km/h. It is true that the damage from that other case was not clearly visible on the photographs produced for the court, but that is not the end of the matter. Mr Sorton also produced another example in his report, a white van that was travelling at 25-28 mph (40-45 km/h). This was an “upright” impact with a pedestrian. It produced both damage to the windscreen from a head strike but also “a crack to the lower plastic valance” plus the nearside grille “pushed in” and the bonnet dented “over its full length”. There is nothing remotely akin to such damage in this case. Mr Sorton was keen to emphasise that whether there was a “head strike” (contact with the windscreen) depended on many factors including the shape of the bonnet.

As indicated, I reject Mr Vincent’s submission that in truth “there might not be much between the experts”. There was. The divergence between them is clear and must be resolved by the court. While I agree with Mr Vincent that “there is no reason to assume that the impact speed was in fact 40 km/h”, the assessment of the speed of the Hyundai is not a matter of assumption but evidence. The court has undertaken a global analysis of all the evidence together.

Damage. I reject Ms Escobar’s suggestions of damage to the vehicle consistent with a frontal upright impact. There is nothing to suggest what the condition of the licence plate was before the accident. At the time of the incident, the vehicle was 17 years old. The gap in the bonnet is variable and as Ms Escobar accepted in the end could be consistent with a bonnet that simply did not fit well. The dent she once believed to have spotted did not materialise.

Consequences. There was a clear difference in credibility and reliability between these witnesses, significantly in Mr Sorton’s favour. I accept Mr Sorton’s evidence that at 40 km/h it is unlikely that a vehicle will “escape damage” if colliding with an upright pedestrian head on. It is not surprising that in his extensive experience over many years and approximately 2000 cases he has not come across a case where a 40 km/h impact had not caused “meaningful damage” to the vehicle. I accept Mr Sorton’s evidence that the shape of the front of the Hyundai does not affect the level of damage as opposed to the position of the impact on the pedestrian. I found Ms Escobar’s evidence to be unconvincing in critical parts and raised doubts about her as a source of reliable opinion. In the end, however, and crucially, she accepted that the lack of damage is consistent with someone lying in the road. I find that since the vehicle was (on the finding of the court to the civil standard) travelling at 40 km/h (or very closely to it), it is unlikely that the vehicle would not be damaged if colliding with an upright pedestrian in front of it. There was no damage to the vehicle consistent with a vehicle being driven at 40 km/h and colliding with an upright pedestrian.

Therefore, I find that:

Reasons for positioning

The court has found to the civil standard that DHV was flush to the road at point of impact, it must now consider the reason. The fact that he crossed the road in a non-designated place is also a relevant factor about his conduct and lends some limited support for his conduct in the roadway. All the relevant factors must be considered together. It is likely that DHV’s alcohol consumption impaired his judgement, bodily control and ability to react effectively and in a timely way without removing them. I cannot accept that DHV deliberately placed himself flush to the roadway in an act of self-harm or protest or as an unfathomable prank. But he was flush to the road surface when the Hyundai struck him. It is likely that his level of intoxication contributed to the collision for the reasons of impairment given at Issue 3A and in this paragraph. The precise mechanics may never be definitively known in the absence of clear eye witness evidence. But that does not mean that the defendant cannot prove its case on this issue. I do not accept that it required something “pretty extraordinary” for DHV to find himself in that reduced position in the roadway, as Mr Vincent submitted. Drunken people are more likely to have their judgement impaired. People who are drunk can stumble and are more likely to than a sober person. They are more likely to have their bodily control and reactions impaired. One does not need expert evidence to understand these common features of daily life. Here the claimant was significantly intoxicated with alcohol. I accept Mr Vincent’s submission it would be “unfair” – alternatively viewed, not reflective of the evidence – to assume or conclude the claimant “had all the drinks in a short period of time”. But the blood alcohol level is an objective marker. Realistically, Mr Vincent accepted that the claimant “clearly was not sober”. It is a necessary concession to make. As counsel for the claimant further conceded, “alcohol in the blood can explain all sorts of careless and negligent behaviour”. The evidence establishes to the civil standard that DHV had been drinking and was drunk. He likely stumbled rather than deliberately choosing to lie in the middle of the road. I make it clear that the court simply cannot say definitively whether he stumbled because of his drunkenness or because of his inebriation he was not able to react effectively following stumbling. But I accept Ms Wyles’ submission that either he stumbled because he was drunk or his intoxication contributed to his inability to take evasive action to avoid the oncoming vehicle once he had stumbled. Certainly, reviewing the photographic evidence of the roadway at the collision site from the police report, there is no clear or obvious reason why a person crossing the road with due diligence would stumble and end up flush to the carriageway. The road surface is smooth and even without any visible potholes or trip hazards and none have been mentioned in the police report or by any witness. There is no evidence of rain or that the carriageway was wet. This was Mallorca at the height of the summer. Therefore, I find that it is likely that the claimant’s level of intoxication contributed to his being positioned flush to the road surface at point of impact. Mr Vincent submitted once more that the evidence does not establish that the claimant was “so drunk he might have lost consciousness while crossing the road.” That is not what is needed for the defendant to prove this sub-issue.

In a civil trial it is both unnecessary and in any event often impossible to reach conclusions to a far higher standard. The balance of probabilities is the applicable standard for good and proportionate reason. The defendant has discharged its burden and proved the issue to the requisite level of likelihood. It is submitted on behalf of the claimant that “tripping or losing his footing” is not negligent. I consider negligence in Issue 4. However, to anticipate, the breach of duty lies in crossing the road not at the zebra crossing (accepted not at a designated crossing point), at a place where the Hyundai vehicle had right of way (accepted), and after consuming so much alcohol that DHV was drunk (court finding, and accepted he was “not sober”) and likely had his judgement, bodily control and reaction times impaired which is in turn likely to have impaired his ability to evade the oncoming Hyundai minivan effectively and swiftly.

Therefore, I find that:

Issue 4 can be usefully divided into two sub-issues (A) proving contributory negligence; (B) apportionment.

Proving contributory negligence

The parties agree that in Spanish law damages can be reduced in proportion that the driver proves that the pedestrian contributed to the account due to her or his conduct (article 1 of Act 8/2004 and as noted in the experts’ Joint Statement at para 12). The summary of the position by the Spanish law experts in their joint statement will sound very familiar to those practising English law. The experts agreed:

“that where there is concurrent fault of both the victim and the driver, then recovery of damages is reduced in proportion to the comparative fault and responsibility of each of them. This obviously involves looking at both the degree of fault and the contribution that that fault made to the outcome.”

It is for the defendant to prove the nature and level of contribution. When a driver has admitted liability and the pedestrian is aged 14 or over, the maximum contribution of a pedestrian is limited to 75 per cent. I reference but do not repeat the analysis in the previous issue that DHV’s level of inebriation resulted in his having his bodily control impaired, which likely contributed to his stumbling and inability to take effective or timely evasive action once he was flush to the carriageway. It is a breach of duty when drunk in this way to attempt to cross the road at a place where vehicles have right of way and is not designated for pedestrian crossing (the last point now agreed between the parties). The conduct of pedestrians crossing the road is regulated by article 124 of Decree 1428/2003. It provides:

“Article 124. Pedestrian crossings and road crossings.

1.

In areas where there are pedestrian crossings, those who intend to cross the roadway must do so precisely through them, without being able to do so through the surrounding area, and when such crossings are at level, the following rules must also be observed:

a)

If the crossing has traffic lights for pedestrians, they will obey their instructions.

b)

If there is no traffic light for pedestrians but the circulation of vehicles is regulated by an agent or a traffic light, they will not enter the roadway while the signal from the agent or the traffic light allows the circulation of vehicles on it.

c)

In the remaining pedestrian crossings marked with the corresponding road markings, although they have priority, they must only enter the roadway when the distance and speed of the approaching vehicles allow them to do so safely.

2.

To cross the roadway outside a pedestrian crossing, they must ensure that they can do so without risk or undue hindrance.

3.

When crossing the road, they must walk perpendicular to its axis, not delay or stop unnecessarily and not impede the passage of others.”

There is a zebra crossing 32 metres from the point of impact. The parties dispute whether a Spanish court would find that such a distance renders the claimant’s crossing point beyond an area “where there are pedestrian crossings”. On this, I am persuaded by and accept the evidence of Professor Carreras, viewed in the context of all the evidence, that a Spanish court would find that 32 metres is sufficiently proximate to a designated crossing point to require the pedestrian to use the specified facility. In not using the zebra crossing, the claimant was at fault. I reject the claimant’s argument that there is no breach of article 124. Mr Vincent submits that the significance of the distance is “a matter for the court”. That is correct in part. The true question is how a Spanish court would assess this. I find that a Spanish court would clearly find that there was fault and I accept Professor Carreras’s evidence, having listened to both experts on this question.

I have been provided with decisions from Spain in which high levels of fault and contribution have been found by the Spanish court against the pedestrian. On 24 April 2014, the Supreme Court found a 70 per cent contribution. This was a case in which a pedestrian attempted to cross a street at the pedestrian crossing when the traffic light was red and was run over by a car that was found to drive slightly over the speed limit. The Court of Appeal allocated 30 per cent liability to the driver and 70 per cent to the pedestrian. The Supreme Court dismissed the appeal because

“in view of the facts declared proven we must consider reasonable the share of responsibility attributed to each one of the intervening parties, namely, 70% to the pedestrian and 30% to the driver of the tourism. This unequal influence on the development of the accident is derived from the fact that the pedestrian crossed a pedestrian crossing in a red traffic light phase for her, with a vehicle speed of 52 km / h when the limit was 50 km / h, when a vehicle stopped at the right lane reduced visibility to the driver. The rest of the pedestrians did not cross and the pedestrian when noticing the defendant's vehicle, instead of stopping, she ran. Therefore, the significant, although not exclusive, intervention of the victim is the one that favors the appreciation of the concurrence of faults, with the consequent proportional moderation of compensations, which adjusts to the proven facts that have been appreciated without any sign of arbitrariness, the court having decided the case according to logic and reasonableness”.

In a pedestrian injury case decided on 24 November 2020, the Court of Appeal of Huesca assessed contribution at 75 per cent. On 30 June 2015, the Court of Appeal of Pontevedra set contribution at 75 per cent. Therefore, Spanish courts are prepared to find high levels of pedestrian fault up to the maximum of 75 per cent. In the instant case, the zebra crossing was sufficiently near to the claimant to require that he should cross the road using it. By placing himself in the roadway beyond the perimeter of the nearby zebra crossing, I find that DHV was at fault and the suggestion that he was crossing “without risk” as specified in the article 124 bears little scrutiny given how DHV was struck by the minivan. His crossing in this way was obviously risk-laden. His drunken state resulted in his creating an “undue hindrance”. His intoxication meant that he was hindered and so was the oncoming traffic.

The traffic had a right of way at that point of the road. Mr Vincent submits that there might be some “non-negligent explanation” for the claimant’s flush position in the carriageway. But while there conceivably may be several remote, theoretical or hypothetical explanations, the court must focus on probabilities. I have carefully analysed then weighed all the relevant evidence together and in the context of the totality, and can with no difficulty reject the speculative explanations suggested on behalf of the claimant. I look for what is probable. Here the evidence clearly points to the explanation of DHV being drunk and not in sufficient bodily control as the most likely explanation by far for his positioning at point of impact. His counsel submitted that to end up flush to the carriageway would be an “extreme” reaction to alcohol, and DHV gave evidence that he did not have an alcohol problem. However, it is not uncommon for people without alcohol problems to trip or stumble when drunk, that is simply our experience of the world. There is nothing fanciful in that. A straw man argument is advanced on behalf of the claimant that the defendant must prove that DHV was “lying there deliberately or was unconscious”. To prove negligence, the defendant need not go that far. It is important not to lose sight of what needs to be established. Having focused carefully on the live issues, I am satisfied that the defendant has proved on a balance of probabilities that DHV was flush to the carriageway at point of impact due to his negligence in the ways identified above. I shortly turn to the degree of contribution. I reject the claimant’s submission that “there is an absence of proof of fault on his part”.

Overall, I accept the defendant’s submission that if the court finds that the claimant was flush to the road surface, the reasonable and safe inference is that either he stumbled because of his inebriation or his level of intoxication affected his ability to right himself and get up and effectively evade the oncoming Hyundai minivan. I have firmly in mind the requisite civil standard and am satisfied to that forensic standard. By acting so he was placed “in the middle of the roadway”, as Ms Wyles puts it, he did something that was “an unsafe thing to do” and “occupied the traffic lane when the vehicle had the right of way”. As such, I am satisfied that, as the defendant submits, “there is a clear link between DHV’s conduct and the damage [collision and injury]”.

I find that:

Apportionment

While I have read the Spanish authorities on pedestrian fault, I reach my conclusion about contribution on a fact-specific basis, acutely based on the evidence in this case and the findings of the court about the conduct of the parties. I have identified at sub-issue 4A. above the nature of the claimant’s contribution to the accident. I now consider the elements of fault that can be properly attributed to the driver Mr Gornals. On behalf of the claimant a Spanish judgment was presented to the court where the driver was found to be 100 per cent “at fault”. There an 84-year-old pedestrian crossed a roadway using two crutches. The driver was blinded by the sun in an area of good visibility. The Spanish court held:

“He is acknowledging that he was driving without looking around him. He did not see that there was an obstacle in front of him. Before the collision he did not see it. The fault of the driver is of such intensity that it absorbs any slight lack of diligence that could be attributed to the pedestrian. The circumstances actually concurrent in circulation are the fundamental parameter from which the behaviour of the driver of the vehicle has to be assessed in order to determine whether the accident is or is not related to his duty to drive in with foresight and in a safe manner that enables him to control his vehicle at all times without risk to other users (art. 45 RGC).”

This example, urged upon the court on behalf of the claimant, shows the dangers of extrapolating indiscriminately from other highly fact-sensitive decisions without being alive to the material differences. There are significant factual difficulties with the instant case. I cannot accept that there was only a “slight lack of diligence” on the part of the claimant here. On the other hand, I agree that Mr Gornals cannot appeal to anything like blinding sunlight. He sought to rely on other factors, as he told the police: the street lighting is insufficient (“a poorly lit area” as per his statement); the visibility not good; the “ground level changes making road visibility difficult”. He nevertheless had a duty to pay sufficient attention and did not. On the other hand, as Professor Carreras stated in evidence I accept:

“the driver can circulate [drive a vehicle] with the reasonable expectation that no pedestrians will stand in the trajectory of the vehicle when the vehicle has the right of way.”

To summarise the position of Mr Gornals:

I cannot think that except for the 75 per cent maximum that the English and Spanish courts would decide the question of contribution differently, and both parties accept this proposition. In both jurisdictions, the question of apportionment centres around degree of fault. Applying the facts as I have found them, I have assessed what a Spanish court would conclude about apportionment.

The starting-point is that both the claimant and the driver are at fault. Both have significantly contributed to this collision. The accident is unlikely to have happened if DHV had not crossed the road at an undesignated place when drunk and ended up flush to the surface near the middle of the roadway. The accident could and should have been avoided if Mr Gornals had been paying proper attention to the road. Both factors are significant. In argument, both parties have materially underplayed the fault that lies at their door.

The defendant argues for 75 per cent contribution by DHV. That is the maximum amount. While I accept Ms Wyles’ submission that the claimant “occupied the middle of the road” when “it was unsafe to do so” and “did not get out of the way” of an oncoming vehicle that had right of way, the very significant level of contribution by the claimant she invites the court to find is too high. It fails to reflect the level of inattention and thus careless driving by Mr Gornals. Ms Astigarraga’s opinion is that a Spanish court is “unlikely” to conclude that DHV contributed to the accident since Mr Gornals could have stopped if he had been paying proper attention. Supported by Ms Astigarraga’s opinion, the claimant submits that there is no fault attributable to DHV “whatever”, irrespective of the court’s findings about his “positioning in the road”. Mr Vincent’s argument extends to the proposition that even if DHV were “lying in the road”, that positioning cannot be attributed to his intoxication. The court has rejected this argument, and found that his level of intoxication impaired his bodily control. Further, he chose to cross in a risk-laden way. The “no fault” argument is untenable. As Ms Astigarraga accepts, the fact that DHV crossed at a place that was not designated is “a very important factor”. I cannot see how this is consistent with no or “very little” fault on DHV’s part.

I have indicated that applying the rules of road use in Spain, DHV was at fault. Purely by way of example, the Court of Appeal of Malaga decided in 2005 that the pedestrian was “manifestly” at fault when intoxicated and lying in the road (Sentencia de la Audiencia Provincial de Málaga no. 587/2005, 13 July 2005). However, this decision is of limited value to the defendant because in that case the defendant driver had “no possibility of reaction or evasive manoeuvre whatsoever”. Mr Gornals had such an opportunity and failed to take it due to his culpable inattentiveness. Ms Astigarraga proposes that if the court finds DHV to be at fault, the apportionment should be no more than 25 per cent. I cannot think that a Spanish court would so conclude. In closing argument, Mr Vincent modified the claimant’s position to argue for a maximum 33 per cent contribution by DHV. On this, I repeat that I have not found that DHV deliberately sought to lie in the road for whatever reason, whether self-harm, protest of some kind, or risk-laden dare or prank. But I cannot accept Mr Vincent’s submission that the claimant did not make a “deliberate decision to run a risk”. DHV intentionally took a risk-laden course as previously identified by crossing the road at a non-designated point where traffic has a right of way and when he was drunk and had impaired bodily control and ability to take effective and timely evasive action.

Professor Carreras states that the Spanish court would find a “higher degree of fault on the pedestrian’s part”, that is more than 50 per cent. In submission, Ms Wyles argued for 75 per cent, that is, the maximum permitted contribution. To my mind, this fails to reflect the true degree of Mr Gornals’s fault. Therefore, the rival arguments about the contribution of the claimant are “a maximum of 33 per cent” (DHV’s position) or the “allowable maximum” of 75 per cent (the defendant’s stance).

I cannot accept either submission. I have read all the Spanish cases placed before the court. Each case is fact-specific as is DHV’s case. The Supreme Court of Spain endorsed a first instance apportionment of 50:50 liability in an accident between a truck and a cyclist, where both were at fault. The Court of Appeal of Huesca had apportioned liability as 100 per cent to the driver. The truck began to move after being stopped by a traffic light in the red phase when the cyclist tried to overtake the truck on the right side in a stretch of the road that narrowed and in adverse weather conditions. The cyclist was hit by the truck and sustained very serious injuries. The Supreme Court ruled that

“the cyclist, from the moment he joins the circulation, assumes in part and consciously the risk created by the circulation of motor vehicles, which the law initially attributes to the driver of the truck. This risk finally materialized when he was run over, when he could have avoided the accident circulating as and where he did it, and also the driver of the truck could have avoided it if he had been more cautious and noticed the presence of the cyclist to his right.”

Here was a case, therefore, where both parties could have avoided the accident if they had not been at fault. The cyclist by his negligence put himself at risk. The driver failed to pay due attention, which would have averted the accident. In DHV’s case, he as a pedestrian was flush to the road when he should not have been there and this was due to his negligence. Therefore, it seems to me that his contribution is higher than the cyclist in the Supreme Court case.

In the Pontevedra case decided on 30 October 2020, a pedestrian without due attention stepped into the road in front of a motorcycle. The Court of Appeal found that visibility was good and the motorcyclist failed to pay sufficient attention and there was no evidence of braking or evasive action. Such lack of diligence contributed to the collision. The apportionment was 75 per cent liability for the pedestrian and 25 per cent for the motorcyclist.

In the Court of Appeal of Huesca case decided on 24 November 2020, in very poor visibility conditions, a pedestrian without a reflective waistcoat stepped out into the road and collided with a motor vehicle. The pedestrian had a blood-alcohol level of 1.54 grams per litre. The driver did not see the pedestrian at all before impact. The court found that the driver had a margin, not a very great one, but material nonetheless, to stop or slow down to avoid the pedestrian. This resulted in 75 per cent liability to the pedestrian and 25 per cent to the driver. In that case, ambient conditions and the lack of visible clothing meant that it was difficult for the driver to see the pedestrian. By contrast, DHV was wearing a white T-shirt and his bare white legs were exposed and the Hyundai’s headlights would have illuminated the roadway. Therefore, DHV would have been more visible than in the Huesca case. On the other hand, DHV was flush to the road surface and had a higher blood-alcohol level (2 grams per litre). In cases where there has been a vehicle right of way and the pedestrian has negligently stepped into the road, the Spanish courts have tended to assign a higher degree of fault to the pedestrian. A measure of attribution of fault to the driver is found where the driver was paying insufficient attention and could have taken evasive action or even avoided the collision. I remain unpersuaded by Mr Vincent’s submission about the fact that the driver continued driving for 57 metres after impact, save that it is indicative of the level of inattention paid by Mr Gornals. That said, I do not accept the claimant’s submission that “it is difficult to see what difference a crossing would have made”. A marked zebra crossing is a different matter to a roadside sign alerting drivers to pedestrians. I accept Ms Wyles’ submission that this presents “a completely different case”.

Stepping back, and considering everything, I ask myself whether either party was more at fault in causing this collision and then what the contribution of the other party is. I cannot accept the claimant’s submission that there is no contributory negligence “at all” on the part of DHV. That is an entirely unrealistic submission in defiance of the great weight of evidence. Equally, I cannot accept “that it was the driver who is more at fault”. On the totality of evidence, the opposite is the case.

I find that:

I agree with the submission made on behalf of DHV that the nature of the injuries “are not the subject of any great dispute”. Such contestation as remained centres on two matters (A) hearing loss; (B) future earning capacity. Future earning capacity is determined at Issue 13(g)(iii).

Hearing loss

Submissions. The claimant submits that there are two questions (1) is the court satisfied that there is a hearing loss on the evidence? (2) applying Spanish law, can this court make an award under the Baremo? Mr Vincent argues that the claimant sustained damage to the temporal bone and points to the fact that the claimant has made self-reports about his difficulties with hearing and “there can only be so much that can be proved by testing”. Consequently, the court can make an award. The defendant disputes that an award can be made on the evidence before the court given the clear terms of the Baremo and the requirement for audiometry testing.

First, the burden is on the claimant to prove that an award for hearing loss should be made.

Second, it must be remembered that the court is evaluating whether the Spanish court would make an award under the Baremo on the evidence before this court. In respect of “hearing system”, the Baremo specifies in detail the conditions necessary for evaluation and award:

“B)

HEARING SYSTEM

02028 Loss of hearing acuity. (See tables B and C). 1-70

The evaluation of a hearing deficit must be based on a clinical examination complete and thorough accompanied by evidence which must include, at a minimum, a tone audiometry, a vocal audiometry and a impedanciometry (tympanometry with determination of the threshold of reflexes stapedians). The reality of hearing loss can be confirmed by the performance of objective tests such as otoacoustic or potential emissions auditory evoked. The assessment is carried out in two stages; determination of the average hearing loss measurement and evaluation of possible auditory distortions.”

Third, it is plain from the Baremo that there must be audiometry testing. This was confirmed by the expert instructed on behalf of the claimant Dr Dominguez. He stated that loss of hearing acuity is “to be determined by ENT specialist”. Dr Patron stated in evidence that there must be validated expert audiometry assessment if “points” are to be awarded under the Baremo. Code 02028 makes plain that such testing is “a minimum”. Therefore, I cannot accept Mr Vincent’s submission that DHV’s self-reported hearing loss would “be good enough in English courts” and thus sufficient for an award. The key point is how to apply the evidence, such as I find it to be, to the Spanish compensation rubric. On that basis, the absence of testing is critical.

Fourth, no such testing has been obtained. This was confirmed by DHV in cross-examination when he stated that he had not been formally tested. I reject the submission that DHV’s self-reports of hearing difficulties recorded in medical reports convert his comments and concerns into sufficient medical evidence or testing under the Baremo. The Baremo requires confirmation of hearing loss through “objective tests”. There are no objective tests of DHV’s hearing.

Fifth, there is no evidence of medical assessment of vestibular damage. However, despite being pleaded originally in the particulars of claim, it seems this is not pursued as a sequela.

I find that:

The date of consolidation is, the experts agree, the date on which the injured person has finalised the healing process or the injury turns into a sequela. Both instructed Spanish medico-legal experts, Dr Dominguez on behalf of the claimant and Dr Patron for the defendant, agree that the date of consolidation in Spanish law is 25 January 2018. Professor Carreras agrees with them. One might have expected given the agreement of the medico-legal expert instructed by the claimant that this issue would be concluded. It is not.

The claimant relies on the dissenting opinion of Ms Astigarraga and a survey of the English medical evidence. Ms Astigarraga’s opinion is that the date of consolidation is 8 January 2023, that is, five years after the joint medico-legal expert view. She states that is because the extent of DHV’s permanent symptoms arising from the accident was not established until his residency at the Transitional Rehabilitation Unit (“TRU”). She says that this approach is based on the doctrine of the Spanish Supreme Court that the point of consolidation is reached when “the permanent symptoms can be established” (her opinion in the Joint Statement, para 113).

The difficulty for the claimant’s argument is that the interventions must be curative rather than rehabilitative. This is because by definition the consolidation date is when there is stabilisation and the injuries that remain turn into sequelae. Sequelae can, of course, receive medical or other attention with a view to alleviating or living with their effects rather than their elimination or “cure”.

The interventions in DHV’s case have been directed at rehabilitation, but that does not render the interventions curative. There is no evidence offered in the written reports of any English medical expert that the intervention provided is curative. Clearly what has been happening is that attempts have been made to address the consequences of DHV’s injuries. That is not the same as curing them. The flaw in the claimant’s argument on this issue is revealed by his noting that “it is of interest to see what the two Spanish medico-legal experts have to say”. He then submits that “this is a paradigm example of the possibly different outcomes” where the English law of evidence is applied to a case where Spanish law is applicable. The claimant’s reliance on Wall v Mutuelle is misconceived.

The evidence before this court must be regulated by English laws of procedure and evidence. But once that is done, the duty of the court is to determine as best it can what a Spanish court would do applying the lex loci, Spanish substantive law. This court may exercise a discretion that the Spanish court would exercise and should have regard to not just Spanish black letter law but judicial conventions, practices and guidelines found in Spain. Wall v Mutuelle makes all this perfectly clear (albeit with France as the state of accident) and beyond doubt. I find that the Spanish court’s approach to date of consolidation would be influenced by the terms of the Baremo. Article 37.1 provides:

“Article 37. Necessity of medical report and reciprocal duties of cooperation

1.

The determination and measurement of sequelae and temporary injuries must be carried out by means of a medical report in accordance with the rules of this system.”

Ms Astigarraga accepted that the consolidation date required medical evidence. Ms Astigarraga herself is not medically qualified. She can provide no authoritative or reliable medical opinion. I cannot accept that a Spanish court would prefer Ms Astigarraga’s opinion on date of consolidation to the consensus view of the two medico-legal experts. However, I am persuaded that a Spanish court would receive and consider the medical evidence from England. I can see no credible reason why it would not. Thus this court must examine carefully what the substantial body of English medical evidence reveals.

The Spanish medico-legal experts agree that the interventions following 2018 have been rehabilitative. I have examined the English medical evidence and conclude that a Spanish court would reach the same conclusion. For example, in August 2018 Professor Worthington speaks of the claimant being “likely to benefit from rehabilitation for at least another 12 months”. In September 2023, Dr Scott notes the variability in the claimant’s clinical presentation, but that is not the same as providing evidence of curative interventions after January 2018. While in November 2021 both neuropsychologists speak of DHV benefitting from further treatment, that is not to say that such intervention is curative. One hopes that medical intervention is of benefit in the management of sequelae; that is the point of intervention. Both Dr Agrawal (2020) and Professor Trimble (2023) speak of DHV’s need for further treatment. Once more, this is not the same as indicating that such intervention is curative. When counsel for the claimant was asked if any of the medical experts had said that the interventions or treatment were curative, the answer was that there was nothing in the reports that said that expressly. The English medical reports are very detailed and substantial. It is surprising indeed if these medical interventions were curative that not a single medical report indicates as such or anything that materially amounts to it. Some of the reports contain the comments and self-reports of DHV that the counselling sessions have been of “benefit” to him. That may be so, but it is not evidence of curative treatment. It is clear that DHV’s mood, emotional state and presentation are not constant, but variable dependent on many factors, including problematic or dysfunctional personal relationships, lifestyle choices and substance abuse (drinking heavily, gambling, using cocaine).

I judge that the two medico-legal experts are correct and Ms Astigarraga wrong. Their jointly agreed position is not merely a curiosity or “of interest” as Mr Vincent seeks to confine its value to. It is persuasive and powerfully probative evidence directly on the issue of the kind that is admissible before the Spanish court and that both parties agree can and would be taken into account by it. I accept it. The submission that this evidence subverts or incorrectly usurps the “English expert evidence”, as Mr Vincent termed it, does not engage with the detail and effect of that domestic evidence. The true position is that there has been a sustained attempt to manage DHV’s sequelae and provide rehabilitation, which is precisely what one would expect. A person may have permanent sequelae and at the same time receive medical interventions to manage them. That is what has happened here. In this vein, DHV was admitted to a rehabilitation unit (the TRU) in September 2022. Thus Mr Vincent’s submission that the claimant “underwent treatment after January 2018 which produced objectively beneficial long-term effects” misses the true focus. There have been interventions which alleviate and ease the claimant’s life situation. That is not the same as being curative.

I find that:

The claimant relies on Ms Astigarraga. She states that the table to be used must be the updated table “as of the date of settlement or judgment” and that this applies “even if the Court decides to award Penalty Interest under Article 20 of the Spanish 50/1980 Insurance Contract Act.” Ms Astigarraga points to an article by Professor Mariano. She also relies on a supportive Supreme Court decision.

The defendant relies on Professor Carreras. He states that Ms Astigarraga is wrong. It is the table at the date of consolidation that applies, here 2018 (see finding on Issue 6). He states that the Supreme Court in Spain established this principle in its ruling of 26 October 2011, and subsequently confirmed it, with lower courts following the decision. As to interest, in almost all cases in Spain the claimant will claim interest, as DHV has. The correct table is either for the date of accident or of consolidation, whichever is later. Here it should be the date of consolidation in 2018 – the later date.

First, it is necessary to be clear what the Baremo says:

“Article 40. Time of determination of the amount of the compensatory items

1.

In any event, such discounting shall not apply from the time when any interest in arrears begins to accrue.”

I find that a Spanish court would deem Professor Carreras correct. The notionally correct date should be the date of consolidation as interest is claimed from the accident, but the date of consolidation postdates it, and thus that is the later date.

Second, the Supreme Court case Ms Astigarraga sought to rely on was decided in the criminal chamber of the court. It was in any event decided before Article 40 came into force. I accept the evidence of Professor Carreras that it would carry little weight with the Spanish court. He further stated that the Spanish civil court never cited or relied on decisions from the criminal chamber. Ms Astigarraga was invited to provide any civil case in support of her argument. She was not able to do so. Further, it must be remembered that Professor Carreras lists as part of his professional experience practising in criminal cases (see B1324, para 3). While this is of little additional weight, it meets the suggestion that Professor Carreras has no experience in criminal matters. He evidently has and was not challenged to the contrary.

Third, while I accept Ms Astigarraga’s evidence that the Spanish court may well consider the academic article of Professor Mariano, it remains the opinion of a lawyer and not a court judgment. Professor Carreras stated that Professor Mariano is a well-known advocate who seeks to maximise the damages claimants may claim. There is nothing wrong in that, but it affects balance. Further, Ms Astigarraga was unable to provide any decided civil decision that has adopted or endorsed the approach of Professor Mariano. Professor Carreras was not challenged about his characterisation of Professor Mariano and his affiliations. Accepting Professor Carreras’s evidence, I judge that Professor Mariano’s article would carry little weight with the Spanish court, especially in light of the clear wording of article 40 itself. Whether it amounts to “wishful thinking”, as Professor Carreras terms it, is less important than there being no legal support in any case decided by the Spanish civil courts for Professor Mariano’s suggestion. It is undoubtedly an interesting approach, but not one that has been endorsed by any Spanish civil judgment that has been put before this court.

Fourth, I accept Professor Carreras’s evidence that to use the updated table as a judgment or settlement alongside the award of interest (whether penalty or not) would amount to “unjust enrichment”. It is for this reason, as Professor Carreras has said, that “it never happens”.

I find that:

Ms Astigarraga conceded that pre-consolidation care could not be recovered under the Baremo. Mr Vincent sought to revive this part of the claim by submitting that the combination of recital 33 of Rome II and article 33 of the Baremo could operate to permit the court to make such an award. Ms Astigarraga never said this. It is correct, therefore, as the defendant points out, that there is no evidence to this effect. Nevertheless, I examine whether a Spanish court would make an award for pre-consolidation care by relying on recital 33 and article 33. There is no decided case from Spain in which this has happened or even been suggested as a possibility.

Furthermore, this argument depends on the court’s decision in respect of Issue 11 where recital 33 and article 33 are fully considered. As has already become clear, the court concludes that neither provision alone or in combination would result in the Spanish court making an award outside the rules and limits of the Baremo.

Therefore, I find that:

The claimant made clear in written closing submissions that the claim under this issue depended on the court ruling in favour of Ms Astigarraga’s opinion that the court could go beyond the Baremo limits and tables by invoking article 33 (and recital 33). This approach is rejected by the court in Issue 11, one of the reasons it was essential to provide the court’s answer to Issue 11 early in the judgment.

Therefore, the Spanish court would receive actuarial evidence in accordance with the explicit terms of the Baremo. That is, article 88.3 (financial dependency in fatal accident cases), article 125.6 (future third party assistance) and article 132.4 (future loss of income). Professor Carreras refers to these three provisions as “three exceptional situations” that have been expressly made allowance for under the Baremo.

Ms Astigarraga mentioned a case involving a Danish resident injured person where the public pension benefit parameter was altered. However, this is explicitly permitted under article 88.3. It is further support that compensation is calculated within the parameters of the Baremo’s limits and tables. The Danish case fell within article 88. I cannot accept Mr Vincent’s submission that Ms Astigarraga’s evidence about article 33 of the Baremo is “reasonable” and “needs no explanation” or the Baremo “system” and its policy under article 33 is just “philosophical puff”. As I found in Issue 11, a proper analysis of both recital 33 and article 33 points firmly away from Ms Astigarraga’s evidence. She is wrong about these provisions.

I find that:

This issue is divided into two areas of future expenses (A) rehabilitation and (B) care. They are examined in turn.

Future rehabilitation

In respect of future rehabilitation and care expenses, article 113 of the Baremo must be read in combination with article 116. These articles provide:

“Article 116 Home and Outpatient Rehabilitation

1.

The injured person shall be reimbursed directly the amount of the costs of future rehabilitation which, according to the corresponding medical report, the injured person requires at home or in an outpatient setting in respect of the sequelae referred to in letters a), b) and c) of paragraph 3 of article 113, after which stabilisation occurs.

Article 113. Foreseeable future healthcare costs

3.

The sequelae which, in any case, give rise to compensation for future healthcare costs are:

a)

Chronic coma or chronic vegetative states.

b)

Very severe and severe neurological sequelae.

c)

Spinal injuries equal to or greater than fifty points.

d)

Amputations or other sequelae requiring the fitting of prostheses.”

Therefore, to come within article 116, DHV must bring himself within para 3 of article 113. It is common ground that his injuries do not accord with any of the specified injuries at a) to d). The claimant’s submission is that this is an example where this court could invoke the “spirit” of the Baremo and the terms of article 33.2 to provide full reparation to DHV notwithstanding his not fitting within the terms set out in articles 116 and 113.

As indicated in Issue 11, I find that a Spanish court would not use article 33 or any other provision to go beyond what is set out in the Baremo scheme. The analysis at Issue 11 applies. But as a further example, article 116.3 makes plain:

“The maximum amount of compensation is the amount set out in Table 2.C for this type of expense.”

This means that in Spain if the actual rehabilitation costs exceed the stipulated maximum in Table 2.C, that amount of expenses recoverable are limited by the Table 2.C limit. This supports Professor Carreras’s point that the scheme allows for “full reparation” within the limits set out in the Baremo.

I find that:

Future care

The Spanish law experts agree that post-consolidation care is recoverable under article 121 where a claimant has a single sequela attracting at least 50 points or his personal autonomy is affected analogously to the sequelae under Table 2C2. DHV’s case originally was based only on a single sequela attracting 50 points (see Ms Astigarraga’s report, para 192). By closing submissions, the claimant also relied on the personal autonomy head. Article 121 provides:

“Article 121.

Need for assistance from a third person

As to the 50 points claim, this is addressed in Issue 13. There is no sequela that a Spanish court would find attracting 50 points. Therefore, this basis fails.

As to personal autonomy, the claimant’s case is that “there is ample medical evidence about his lack of capacity to manage his own finances”. That lack of capacity in this specific domain is not disputed by the defendant. Managing finances is just one aspect of personal autonomy. The evidence that emerged clearly during the trial is that in many other significant respects, while DHV lives with several ongoing problems, his personal autonomy remains substantially intact. It has certainly not been “particularly” impaired in a way analogous to what is required in the Baremo, where Table 2.C.2 refers to amputation. As the initial basis of the claimed award was on a points basis, it is accepted on behalf of the claimant that the experts did not deal with or identify medical evidence that is capable of supporting such an award (see article 121(2)). Nevertheless, the claimant maintains that there is sufficient medical evidence to justify the award. I find nothing indicating that the loss of autonomy, which must not be underestimated, is analogous to that following amputation.

I find that:

I deal with two areas of expert evidence (A) medico-legal experts and (B) Spanish law experts.

I return to my conclusions on Issue 2. The task of the English court is to determine what compensation the Spanish court would award on the evidence before the English court, having used the English law of evidence and procedure, and then applying Spanish law to the facts (and vice versa). In this task, there is no doubt that the Spanish court would be informed by the medico-legal experts. That is a distinctive feature of Spanish law. The Baremo expressly states at article 37:

“Article 37. Necessity of medical report and reciprocal duties of cooperation

1.

The determination and measurement of sequelae and temporary injuries must be carried out by means of a medical report in accordance with the rules of this system.”

Therefore, the English court in determining what a Spanish court would do in the “assessment of awards under the Baremo” must take into account the judicial conventions, practices and guidelines of Spain. Wall v Mutuelle makes this clear. Professor Carreras explained how a Spanish court would take medico-legal evidence into account. I accept his evidence. No one has said that such evidence is binding or determinative. The Spanish court could prefer one expert over the other or some parts of one expert over the other. Professor Carreras explained how the expertise of medico-legal experts is to assist with how the medical evidence fits within the categories of injury and sequelae under the Baremo.

I cannot accept the claimant’s submission that the evidence of the two medico-legal experts, Dr Dominguez and Dr Patron, who each gave such extensive and detailed testimony, should only be regarded as “illustrative”. I am not persuaded that they do not assist with “whether the requirements of each injury code are met or not”. I do accept that ultimately this court must make the decision. But it cannot be right to ignore the evidence of the medico-legal experts or to relegate their evidence to illustration. I am not convinced that this is what Wall v Mutuelle decided. In that case, the Court of Appeal stated in terms that the judicial conventions and practice of the state of accident should be considered by the English judge. There is clear and convincing evidence that a Spanish court would take the medico-legal evidence into account. So should this court. Indeed, as submitted on behalf of the defendant, the medico-legal experts are performing exactly the exercise needed under the Baremo to assist in quantifying the points. I accept the submission that they have expertise in how injuries fit within the Baremo. I am bound to say that I have not been troubled by adopting this course, despite Mr Vincent’s submission that this court “is not used to dealing with such evidence”. Our courts have great experience of tailoring our approach to a great variety of sources of evidence. My approach has been that the medico-legal evidence is another part of the totality of evidence to be carefully weighed alongside and in the context of all the other evidence.

I agree with Mr Vincent that this court is “not recreating a Spanish courtroom”. But the claimant did not dispute the admissibility of the medico-legal expert evidence. He sought to rely on Dr Dominguez. I cannot accept that the evidence should be relegated into illustrative insignificance. While the evidence of the medico-legal experts is not determinative, a Spanish court would take it into account as a judicial convention or practice. So should the English court.