Jacqueline Colizzi v Adam Coulson & Anor

This is my judgment following a preliminary liability and causation trial arising out of a road traffic accident in 2015 in which the Claimant, Jacqueline Colizzi (C), was seriously injured after being hit by a car being driven by the First Defendant (D1), insured by the Second Defendant (D2). She was 45 years old at the time of the accident. Nothing I say is intended to minimize the loss and suffering of Ms Colizzi, her family or her friends. As everyone accepts, this is a tragic case.

C is represented by Mr Hartley KC and D1/D2 by Mr McCluggage. I am grateful to both of them and their teams for their assistance. D2 is indemnifying D1 and is a party as a matter of legal formality, but has taken no direct part in the proceedings.

As well as my detailed notes, I have consulted the audio recordings of the hearing in preparing this judgment. There was a lot of detail in the trial, with three important eyewitnesses and four expert witnesses. My failure to mention a particular point does not mean it has been overlooked.

The following facts are not in dispute.

The accident occurred on Myton Road, Warwickshire, at about 5.15pm on 9 November 2015. The speed limit where the accident occurred is 30mph.

Myton Road runs roughly west to east between just south of Warwick and Leamington Spa. At its western end is a roundabout where vehicles heading west generally either go around the roundabout and head north towards Warwick, or go left and southwards towards the M40 (there is another smaller residential exit road, which I do not need to consider).

The southern, westbound, carriageway of Myton Road is wide enough for two lines of cars as it approaches the roundabout. In that stretch of the carriageway there are dashed white lines separating the lines of traffic, and arrows directing vehicles to turn either north or south at the roundabout. The northern carriageway of Myton Road heading east from the roundabout is only wide enough for a single line of cars.

The 9 November 2015 was a Monday. By 5.15pm the sun had set and it was dark. The area where the accident occurred was reasonably well-illuminated by street lights and car headlights. There may have been some light precipitation around the time of the accident. Visibility was described as having been generally good.

The traffic at the time was reasonably heavy, it being rush hour. There were two lines of traffic approaching the roundabout westbound along Myton Road. The traffic was effectively stop-start and ‘bumper to bumper’, although the left hand lane of traffic in the westbound carriageway may have been moving slightly more easily than in the other lane in that carriageway, which was stationary. The traffic in the eastbound carriageway towards Leamington Spa was flowing freely.

The accident occurred about 25m or so eastwards along Myton Road from the roundabout junction, just before the beginning of the white lines in the westbound carriageway separating the lines of traffic. The road has a gentle right-hand curve (travelling eastwards) at the point of the accident. There is an automated pedestrian crossing about 100m further eastwards from that point. Below is a Google Maps image of the locus taken from one of the expert reports (the lines are shown black for clarity; the top of the picture is north):

This image shows the section of road where the accident occurred concerned looking west:

C was seen walking eastbound along Myton Road on the pavement on the southern side of the road. She then turned to her left to cross Myton Road heading north. She entered the (more or less) stationary lines of traffic in the southern westbound carriageway, and passed between the cars, before reaching the centre line of the road. As she crossed that carriageway, she passed immediately in front of a Renault Clio being driven by Lewis Malin, which was stationary. His girlfriend Sophie Bryant was in the front passenger seat. They were in the outer lane of the two lines of traffic of their carriageway and both witnessed the accident. A Ms Anderson, who gave a statement but was not called as witness, was in the car to their left, and C passed in front of her car before passing the Clio.

After C had crossed in front of Mr Malin’s car and had entered the eastbound carriageway, or was in the process of entering it (and that, and how she was moving, eg walking or running, are some of the matters I have to decide), she was struck by a Ford Fiesta Zetec being driven by D1 along the eastbound carriageway.

D1 had just left work and was driving with three colleagues to an after work football game. He had approached the roundabout from the south, gone around it, and then entered Myton Road heading east. He was driving well under the speed limit, at between 10mph and 20mph at the point of collision. He had just moved up from first gear to second gear and was accelerating. He was in the middle of his carriageway at the point of impact.

D1’s car struck C in the area of the front offside bumper near the fog lamp. It is common ground that it is most likely that C’s leading leg was struck by the Fiesta, which caused her to spin or rotate, and then travel a distance down its side. She then fell, and her head struck the Clio around the rear driver’s side wheel/wheel arch, and her head then hit the ground.

D1 pulled up a short distance down the road and came back to assist.

Those who witnessed the accident provided help to C before the police and ambulances arrived. She was unconscious and obviously seriously injured. She was taken to hospital, where she underwent emergency surgery.

As I am only concerned with liability and causation, it is not necessary to set out C’s injuries in any detail. She suffered very serious skull and brain injuries. These were two skull fractures and axonal injury (which is where the two hemispheres of the brain ‘shear’ as a result of a lateral force, causing brain damage). She has been left with severe neurological deficits and has been resident in hospital and rehabilitation units for the more than eight years since the accident. She is a protected party and cannot give evidence. She will never be able to work again and will require 24/7 care for the rest of her life.

C’s case is that the accident was caused by D1’s negligent driving. It is not said on behalf of C that D1 was travelling at an excessive speed. The particulars of negligence are as follows (Particulars of Claim (PoC), [7]):

Mr Hartley put it thus in his Opening Skeleton Argument, [8]-[12]:

Mr Hartley accepted that if I found that C moved out into the eastbound lane without stopping then his claim would fail because it would follow inevitably that D1 would not have had time to take avoiding action. However, if she stopped, he said allied issues were: where she stopped (ie, how far past Mr Malin’s offside headlight); and for how long.

A related issue on where she stopped was how far to the left or right of the mid-line between the Clio and the car in front of it C was. That other car was generally described as a 4x4 that was bigger than the Clio. Mr Hartley said if C was hard against the 4x4 then that would have reduced her visibility to D1, whereas if she was closer to the Clio (as Ms Bryant said she was in one of her statements) she would have been more visible to D1.

His case is that C stopped just before the white line, and looked left and then right. He did not have a specific case on how long she stopped for. He did not suggest D1 was racing, but his case was that a driver driving that stretch of road at night during rush hour, which he knew well (as D1 said he did), would know that people crossed and that pedestrians had to be anticipated. He said C was there to be seen (ie, she had good ‘conspicuity’). All the witnesses said visibility was good. He said if she was there, having looked left, she was a hazard, and D1 should have ‘eased off’ the accelerator and perhaps moved left.

Therefore, his primary case is that with reasonable driving from D1, he having been put on notice, the collision was avoidable.

C’s secondary case is to do with the threshold of serious injury. Mr Hartley said the collision took place at about 20mph. There was no braking before collision. The mechanism of accident was unusual and unpredictable. C’s leading leg struck the bottom right hand side of the Fiesta and she was spun and made contact with the Clio and then the ground. Even if the collision could not have been avoided entirely, the opportunity was there for a reasonable driver to take avoiding action short of a collision; ie, D1 ought to have collided with C at a slower speed and serious injury would likely not to have occurred. She would not have struck the Clio. It would have been a frontal impact at c. 15mph and not a side impact at 20mph. On the balance of probabilities, in light of the medical experts’ evidence, serious injury was very unlikely at 15mph and at 10mph would have been almost impossible. She would have suffered some injury, but not the catastrophic injury she suffered.

Mr Hartley accepted that either way there was contributory negligence by C. He accepted C had made a mistake.

In response, D1 pleads as follows (Defence, [5], [6]-[10]),

As well as denying negligence, D1 advances a positive case that the accident was caused by C’s negligence, in whole or in part.

The pleaded particulars are as follows (Defence, [11]):

Some of the principal issues of fact which may fall for determination seem to me to be as follows

Before turning to the evidence, it will assist if I set out some legal principles. These are not materially in dispute.

The burden of proving the claim rests upon C. She must prove her case on the balance of probabilities. The burden of proving contributory negligence rests upon D1, again on the balance of probabilities.

A driver owes a duty to use reasonable care to avoid causing injury to persons or damage to property; reasonable care means the care which an ordinarily skilful driver would have exercised, under all the circumstances: Charlesworth & Percy on Negligence (15^th Edn) at [11-202]. The reasonably careful driver is deemed to be armed with common sense and experience of the way other road users are likely to behave.

In Chan v Peters [2021] EWHC 2004 (QB), a case whose facts in some ways resemble the facts of the present case, Cavanagh J distilled the main principles from earlier cases (in particular, AB v Main [2015] EWHC 3183 (QB))that may be in play when the court is considering liability and contributory negligence in a road traffic accident case.

In that case, the claimant was 17 when he was struck by the defendant’s car as he was crossing a road near his school at lunchtime in circumstances of good visibility and weather conditions. The defendant was driving at 25 mph, well within the speed limit. The criticism of her driving was that she had failed to meet the standard of the reasonably competent driver in relation to her observation of potential hazards or the precautionary steps taken. The claimant had emerged into the road from between two parked vehicles (a car and a bus) on the defendant's nearside. He did not look before doing so; the defendant's view of the claimant was obscured because of the parked vehicles. The defendant saw the claimant when he emerged from between the parked vehicles, 0.6 seconds before the collision. She immediately slammed on the brakes but could not avoid a collision.

Due to his significant injuries and inability to recall the incident, the claimant was unable to give evidence, but other eyewitnesses were called. CCTV from a nearby bus was obtained, enhanced and analysed; collision reconstruction experts were called to give oral evidence at trial; and vehicle examiners and the police took part in the proceedings.

Whilst recognising that it was a ‘back to basics’ discussion, the judge set out the relevant principles as follows:

In Chan, whilst regretting the effect his decision would have on the claimant, Cavanagh J found the defendant had not been negligent in her driving in the circumstances of the case, and the claim was therefore dismissed.

Of course, that was a conclusion on the particular facts of that case. But I find the judge’s recitation of legal principles to be helpful.

I also remind myself of the cautionary observation of Laws LJ inAhanonu v South East London & Kent Bus Company[2008] EWCA Civ 274. [23]:

As is to be expected in relation to a sudden and traumatic incident occurring over eight years ago, the witnesses’ recollections differed about what they had seen occurring. Added to that is that Ms Bryant, Mr Malin and D1 have given statements, variously, to the police and to C and D1’s solicitors. D1 was also interviewed under caution by the police. In terms of the unusual length of time it has taken for the case to come to court, I note that the claim form was not issued until 4 February 2021, over five years after the accident.

Let me say at once that I am satisfied that all of the witnesses did their best to give true and honest recollections of what they witnessed, and that any differences between them are explicable on the basis of the fallibility of human memory. No-one suggested I should take a different approach.

Sophie Bryant was C’s first witness. She gave witness statements to: the police (on 11 November 2015); to C’s solicitors (on 20 March 2017); and to D1’s solicitors (on 2 August 2018). She adopted all of her witness statements as being true. She was in the front passenger seat of the Clio. Mr Malin was driving. They were heading west from Leamington Spa along Myton Road towards the roundabout.

To the police, Ms Bryant said they were in traffic and stationary and she had been looking at Facebook on her phone and then:

In her statement to C’s solicitors, Ms Bryant said broadly the same thing, but added that she initially looked up because she heard Mr Malin make a comment about a woman trying to cross the road. Ms Bryant said:

In her witness statement to D1’s solicitors she said:

In her evidence to me, she said that she was scrolling on her phone when she first saw C at the ‘top of her eyeline’ as she passed in front of her. She thought she turned to Lewis and said, ‘She’s going to get hit’. C went in front of Lewis’s car and stopped ‘for about a second’. C looked towards her left first and then to the right and then stepped out in front of the oncoming vehicle and was struck.

Ms Bryant said she thought C was stationary for ‘a second, two seconds’. C stopped on Lewis’ side of the vehicle at just about the headlight. In terms of how close to their car C was, Ms Bryant said it was as close as a pedestrian would cross in front of a vehicle, about a foot ‘maybe’. She stopped about a foot from the centre white line. As to C’s speed, Ms Bryant said she was not running or jogging but was ‘walking with purpose … quite quick’. After stopping for the second or two, she ‘just put a foot out and that was it really’. She saw the lights of car that hit C as she stepped out.

The key point about Ms Bryant’s accounts is their broad thrust that she said C stopped, or appeared to stop, before entering the eastbound lane and being hit.

In cross-examination, she agreed it was dark and there was busy traffic with people going home. The vehicles in their lane were not moving much. The other lane was moving more freely. Given it was eight years ago, she was asked whether she had a clear recollection. She said ‘you do not forget something like that’, but her memory was ‘a bit hazed’. She agreed it was a surprising place for a pedestrian to cross because there is a crossing down the road. She recalled either her or Lewis saying something like, ‘Look at that idiot crossing’. She then agreed it was Lewis who said that. She did not see what direction C had come from, just that it was from the left side. As to how C walked, Ms Bryant said she was walking ‘how I would walk if I were late for a train’. She disagreed with the suggestion that D was doing a ‘slow jog’ but said she was taking ‘long strides … like long quick strides’.

She was shown part of a police report which recorded under her details and the heading, ‘Initial Comments’, ‘Pedestrian ran out in front of vehicle’. She said she recalled speaking to a police officer because she needed medication from their car. She was crying and hysterical because of what she had seen. She did not recall telling a police officer that C had ‘run’ out in front of the vehicle. She agreed that although she was upset, events would have been clearest in her mind at that time.

The traffic to her left was moving more freely; the other line was moving more freely than her line of traffic, it was ‘stop start’. She agreed the car in front of them was wider and taller. She thought the tyres of the 4x4 were closer to the white line than their tyres. She said C paused at about the point of the headlight on their car on Lewis’ side. C moved her head towards the roundabout and then right. She demonstrated to me how C moved her head left then right, which I noted as ‘quickly’. She agreed it was not a ‘careful’ look, and that C should have looked back towards the roundabout before she stepped out. Ms Bryant said again that C stopped, ‘I want to say for a second or two’; looked left, looked right; and then stepped out. She agreed that C paused and looked ‘as she came to that stop.’ She said that from where was sitting as a passenger C would not have been able to see far past the edge of the 4x4. She said C would ‘potentially’ have been shielded from oncoming traffic by the 4x4. She was ‘potentially’ by the brake light of that vehicle. C moved off quickly from that pause. She did not jog, but ‘took a wide step out’. She said everything that happened was ‘very quick’. She was shown a handwritten annotation to her witness statement to D’s solicitor where she wrote ‘Visibility was limited ! Driver did not see Mrs Colizzi as he was confused if he even hit anything’. She could not remember what she meant by the first part, but remembered D1 being confused as to what he had hit.

She was shown [9] of her statement to D1’s solicitors where she appeared to say C just looked right, but said she had looked both left and right.

In re-examination, she said that she knew there had been a conversation with D1 after the accident where he had said something along the lines that he knew had hit something, there had been a thud, but he did not know it was a lady. She was shown [12] of her statement to C’s solicitors where she said:

She clarified C stopped about a foot from the centre white line, at around about the offside front headlight of their car. She looked left and right then stepped forward. D1’s car was where she expected the car to be. When she said ‘cleared the bonnet’ in [9] of her statement to D1’s solicitor she clarified she meant C had been at about the front headlight of their vehicle.

That was C’s lay evidence.

Mr McCluggage then called D1.

D1 adopted his statement of 26 July 2018 as his evidence in chief. In that statement he said he had left work and was travelling with colleagues to a football game. He was familiar with the route.

Of the accident, he said that he left the roundabout going into Myton Road and was travelling at about 15-20mph and he had just changed up to second gear. He had his full attention on the road ahead. He was in the centre of his lane. He heard a noise (not a loud noise) from his side of the car and caught a movement out of the corner of his eye. His colleague Michael Johnson, who was in the front seat, said ‘What was that?’, and D1 replied, ‘I think it was a person’. He then pulled over and got out of the car and ran back, where C was being attended to by others.

The police then attended. There was damage to the front fog lamp; the handle on the driver’s door; and the offside sill of his car. He concluded:

He was then cross-examined.

He said that he did not know it was a lady until after he had hit her. It would be wrong to say he saw a lady out of the corner of his eye - he saw an object at the time of collision. It was like seeing a bird out of the side window. He did not recall anyone hitting the front. He recalled her hitting the wing mirror on the right hand side. He accepted that his car had first struck C’s leading leg. He said from a vision perspective it was like a bird flying into the side. It was like something had been thrown at the car at the wing mirror or side window area of the car.

He said that he did not see C. 20mph was his maximum speed. He was going from first gear to second gear. The speed could have been anything from 10mph – 20mph.

He was shown various pictures from Dr Ninham’s report (C’s accident reconstruction expert), and agreed they showed the view he had would have been through the front windscreen

He was asked again about speed. He said it could have been up to 20mph but it was difficult to say. After some more questioning, he said his speed was 10mph to 15mph. He was in the centre of the lane at point of impact. He agreed one can stop very quickly at 10-15mph.

He said his stop was a safe stop, it was not an emergency stop. After the collision Michael, his front passenger, asked ‘What was that?’. He responded that he thought it was a person. He then pulled over, switched on his hazard lights and got out. There was urgency to his stop, but it was not an emergency stop. It was a safe stop.

His car was 1.722m wide. He agreed with the suggestion that there was about 940cm on either side of his car (given its width and that of the lane he was in).

He was asked why he did not see C given she moved up to the centre line, and about a metre after that. He said he did not know and that ‘maybe’ she stepped out fast, late, ‘she just wasn’t in the line of visibility’. He agreed if she was over the white line waiting, he should have seen her. He said ‘I honestly didn’t see her – so it’s difficult to explain why I didn’t see her.’ He said when he was driving he could not see anyone over the white line, on the white line, or in the traffic. He could have seen her when she was on his side of the road or on the white line. All her could remember was a line of parked traffic.

He said knew there were potential for pedestrians to cross Myton Road (eg walking from the Technology Park to Warwick town centre) because it was a short cut. It saves a couple of minutes compared with walking down to the pedestrian crossing.

He said he had a friend and two people he did not know going to football in the car. He said, ‘There was no distraction in the car.’ He agreed any danger of pedestrians would have come from the right.

In re-examination, he said he was not looking at his speedometer. His speed estimate was ‘10-15mph up 20mph’. He drove this route once or twice a week at this time. There was nothing out of the ordinary about how he accelerated onto Myton Road from the roundabout. He had not read any papers about the impact of a car’s ‘A pillar’ on visibility of objects to the off-side. He was paying full attention to his driving. There was not a pedestrian standing on or about the white line. It is not too heavy a pedestrian area, it is not a large or heavy residential area. He had never seen a pedestrian doing this manoeuvre before. The traffic pattern was fairly typical.

In answer to a question from me, he said that if he had seen someone standing on the white line, and he had seen them, he would have taken his foot off the accelerator and, depending on their movement, put it over the brake pedal and driven cautiously and manoeuvred left, but he could not rule out that he might have stopped and let them cross if it was safe to do so (bearing in mind the possibility of cars behind). He said his stop had not been a sudden emergency stop but a ‘controlled stop’.

The next witness for D1 was Lewis Malin, the driver of the Clio.

He made three statements: to the police, and to C and D1 solicitors. He had read through all three. He felt that his police statement (given on 10 November 2015, the day after the accident) was the most accurate about what he recalled happening. He was interviewed in person by an officer.

Whilst there were differences between them in some details, Mr Malin’s accounts were consistent on the key issue that at no point did C stop as she tried to cross the road into the eastbound lane, in contrast to Ms Bryant’s evidence.

In his police statement Mr Malin described seeing C (whom he calls ‘female one’) walking from Banbury Road into Myton Road, then losing sight of her briefly, and then seeing her take a step into the road from the pavement. He said that she:

He later said:

To C’s solicitors, at [15]-[17] he said:

To D1’s solicitors he said:

Mr McCluggage clarified Mr Malin’s evidence about what he recalled C wearing. To the police he said she had been wearing dark blue jeans; a red top; white top and brown boots. Later in his police statement, he said:

He was asked if he could assist with what might be interpreted as a difference between ‘dark clothing’ and a ‘red top’. He said it was hard to recall given it was some years ago, but that ‘red can be quite a dark colour’. He did not remember C wearing a coat.

He was also asked about his car headlight which was found on examination after the accident not to be working properly (the offside front dim beam and side light bulbs were defective.’ He did not know this and did not challenge it.

He was then cross-examined.

He was asked about [15] of his statement to C’s solicitors and confirmed his comment to Ms Bryant was because something unusual was happening. He said C seemed to try to turn to the right and pull back and turn out of the way as she arrived at the front wheel of the Fiesta but it was too late.

It was put to him whether C moved with a purposeful walk rather than a jog. He said having thought about it, knowing this case was coming to court, he did not remember her stopping at any point. The way C moved was ‘somewhere between’ a purposeful walk and a jog. He did not remember her stopping ‘at any point’. He said there was a difference between how she walked on the pavement, and how she crossed the road. On the pavement it was just a normal walk. As she stepped into the road in front of the car to his left, ‘it turned into more of a jog’.

He agreed C was two or three steps over the white line when the collision happened.

His best recollection was that C had long hair, was wearing a white scarf, light tan boots, and was carrying some form of bag. Visibility was good on the night. He further clarified she was wearing brown boots.

In re-examination, he was asked whether she stopped. He said:

In response to a direct question from me, namely, whether he would agree or disagree with the suggestion that C stopped for a second or two, he said he would disagree.

There were two agreed statements which were taken as read by agreement as hearsay and not challenged (but subject to the usual caution about such evidence), namely PC Rance, and Christopher Holmes who was in the Fiesta with D1. Mr Holmes said D1 was not driving fast, and he thought it was between 10-20mph.

The trial then moved to the expert evidence. It was agreed the relevant experts would be heard ‘back to back’, as is now common.

C’s accident reconstruction expert was Dr Andrew Ninham. D1’s expert was Mr Stuart Blackwood. They each produced lengthy reports covering a number of matters. They were also cross-examined at length. Both were agreed that, ultimately, matters would turn on my findings of primary fact about how C crossed the road and, in particular, whether she paused or stopped before she entered the eastbound carriageway and was hit; if she did, where she stopped; and where between the Clio and 4x4 she passed. I have had regard to their full reports and their evidence in cross-examination in producing this judgment.

They produced a joint report dated 28 February 2023. I summarise this as follows:

Section 4.7 of Dr Ninham’s report, referred to in (bb) above, analysed outcomes by reference to various different assumptions about: (a) the length of time between C arriving at the centre line and impact; (b) different assumptions about D1’s reaction times to take his foot off the accelerator upon first seeing C at the centre line, and his reaction time before commencing hard braking upon perceiving her moving. The two assumptions in (a) are, respectively, that the period in question was three seconds, and two seconds.

His Table 1 [at [4.7.11] illustrated that on these various assumptions D1 would have stopped in time (on one set of assumptions only), or else would have been travelling more slowly at the point of impact by reason of his braking actions.

The table is:

So, for example, at [4.7.4]-[4.7.5], he explains says that if C was visible (whilst waiting) to D1 for three seconds before impact (when his car would have been approximately 23m from her, as calculated by Dr Ninham) and he had seen her waiting there and decided to lift his foot from the accelerator after a one second perception-response time, the car could then have decelerated gently (under engine braking) for 1.33 seconds. By the end of that period C would have already begun to move across the road, and it would likely have been evident that she was in motion. If D1 had continued to watch her and had been covering the brake, he could have responded with a further perception-reaction time of 0.5 seconds (a very short perception-response time but applicable to someone observing a potential hazard). On these assumptions, Dr Ninham calculates the D1 would have stopped one metre short of the impact point (and so the accident would have been avoided).

At [4.7.9], assuming D1 had first seen C waiting near the centre of the road two seconds before impact, at that time his car would have been about 16m from the point of the accident. If he had reacted to her presence in 1.0 second and taken his foot from the accelerator and begun to cover the brake, then responded with emergency braking commencing a further 0.5 seconds after it became evident she was setting off, the car could have been slowed to a speed of approximately 15 mph on reaching the point where the impact occurred. The car would have reached that point about 0.12 seconds later than it did in the collision that occurred.

He concluded at [4.7.12]:

As to point (v) above, Dr Ninham accepted that if C went across the road without stopping (whether she was walking or running) then there would have been insufficient time for D1 to have avoided the accident. He said at [4.7.1] of his report;

He said at [4.4.5] and [4.4.6]:

At [5.2] he said:

Both sides also adduced expert medical evidence. C called Professor Michael Vloeberghs, a consultant paediatric neurosurgeon at Nottingham University Hospital, and D called Mr Robert Macfarlane, a consultant neurosurgeon. Again, I have carefully considered their evidence.

They also produced a joint report, dated 14 July 2023, which I can summarise as follows:

Both sides produced written closing submissions, for which I was grateful, and I also heard oral submissions.

On behalf of C, Mr Hartley submitted as follows, in summary.

The issues before me were breach and causation. The standard of driving is that of the reasonably careful driver, armed with common sense and experience of the way pedestrians, are likely to behave: Chan, [17].

He said that in this case if the reasonable driver saw a pedestrian in the middle of the road, he should know that this was a real hazard. Any reasonable driver would know this. It is not a matter for expert evidence. Indeed D1 stated that if he had seen C in the centre of the road he would have regarded her as a hazard and would have had to decide whether to stop and let her across or continue with caution.

If a real risk of a danger emerging would have been reasonably apparent to such a driver, then reasonable precautions must be taken; if the danger was no more than a mere possibility, which would not have occurred to such a driver, then there is no obligation to take extraordinary precautions: Foskett v Mistry [1984] 1 RTR 1, per May LJ.

This is not a case of excessive speed. C’s case is that she was there to be seen and should have been seen by D1, who should then have taken avoiding action by braking or steering away from her. If C walked or ran into the eastbound lane without stopping then her case fails, as was made clear in opening. However, if she stopped in a position where the reasonable driver in D1’s position ought to have observed her, then C should succeed.

Whilst there is undoubtedly contributory negligence in this case, the primary issue for the Court is whether D1 was negligent in the control of his vehicle and whether, had he driven non-negligently, the collision could have been avoided (C’s primary case) or reduced in severity (his secondary case) such that the C’s brain injury would have been avoided entirely or significantly reduced. The avoiding action which D1 should have taken (and said he would have taken had he seen C) was to have taken his foot off the accelerator and/or steered away, or possibly even stopped completely (which he said he might have done, subject to other cars being behind him).

Mr Hartley invited me to find that C crossed between stationary or slow moving traffic in the westbound lane and that she stopped near to the centre white line of the road, about a foot away, according to Ms Bryant in oral evidence, and that she looked left and right before she stopped. She was walking purposefully, but was not jogging. He said that Ms Bryant had described C stopping, in all of her statements. He invited me to find she stopped for one to two seconds, per Ms Bryant’s estimate.

It is C’s case that as she crossed the first half of the road (and in particular when she stopped about a foot just before the centre line, she ought to have been visible to and seen by D1 as he approached. If D1 had been looking properly and driving reasonably, he ought to have seen her; and if he had seen her he ought to have braked and/or moved to his left in which case a collision would have been avoided or reduced to an inconsequential event.

D1 has made much of what is no more than common sense – namely that C could not have been seen until she could be seen. But, said Mr Hartley, this is tautologous. Of course D1 could not see C until she was clear of the obstruction caused by the 4x4 vehicle to her left.

C looked left – it must be assumed that she could see alongside the 4x4 or she would simply have been looking at the back of it. Her error was in not looking again to her left, having looked right – not that she could not see if she had done so. It is also likely that she was about a foot from the white line.

In that position she could be seen, as shown by Dr Ninham.

Mr Hartley said that Mr Malin should not be preferred and made two points: the accident reconstruction experts found no evidence to support the suggestion that she was running or moving quickly at the point of collision. He also said Mr Malin had been wrong about C’s clothing. He said Ms Bryant’s evidence tallied with that of Alexandra Anderson, who was in a Nissan car behind the Clio on the near side, who said C stopped for ‘maybe a second’.

Overall, Mr Hartley said on his primary case D1 failed to keep a proper lookout. If he had done he would have seen C and appreciated the hazard (just as D1 said in evidence he would have done). Instead, he failed to lift his foot off the accelerator and engine-brake. He failed to slow or steer a wider berth. Then when C moved forwards, he was unable to do anything – whereas he should have been able to do so.

On his secondary case, Mr Hartley said that if (which is denied) the collision was unavoidable then it ought to have occurred at a significantly lower speed such that, on balance of probabilities, the injuries suffered by the C would have been lessened. It is this secondary case to which the medical evidence is directed.

He relied on Professor Vloeberghs that if C had been hit at a slower speed she would very likely not have suffered such severe injuries because she would have been flung up and onto the bonnet.

Finally, Mr Hartley accepted that C was partially responsible for the accident, so that if I found for her, I would have to assess her contributory negligence.

On behalf of D1, Mr McCluggage submitted as follows, in summary.

I should find that C did not pause after entering D1's sightline. The experts agree that, if so, the collision was unavoidable. It does not matter whether she was walking, jogging, or something else. C’s case can only succeed on primary liability on the very specific findings that: (a) C paused; (b) C paused in a position within D1’s approaching line of sight; (c) that C paused for a sufficient period of time that a reasonable driver could take action; and (d) that a reasonable driver would have avoided the accident, or reduced speed sufficiently to reduce the severity of injury.

He said that if C paused, the duration of the pause, and C’s conspicuity, are too uncertain to establish D1 had the opportunity to react. Even if he could have slowed down, C cannot prove that her injuries would have been substantially reduced (ie, even on that basis, C’s secondary case should fail). Alternatively, substantial contributory negligence applies.

Like Mr Hartley, he emphasised that this was not a case of excessive speed but was about perception and reaction. The standard is the ‘competent and experienced driver’: Nettleship v Weston [1971] 2 QB 691, 703. This is the standard of a reasonable, prudent driver, not a counsel of perfection or an ideal, infallible motorist.

Mr McCluggage said I should find the following facts (inter alia): (a) the road was likely damp and which would have increased glare from the headlights and added to the difficulties in identifying a pedestrian; (b) Mr Malin’s Clio was 26.5m from the roundabout give way lines, likely the fourth or fifth queued car; (c) D1 turned right at the roundabout into eastbound Myton Road, driving his Fiesta within the 30mph limit at a maximum of 20mph with three adult passengers and was obviously a careful driver; (d) any other speed is a ‘guesstimate’ because D1 was not looking at his speedometer; (e) a pedestrian crossing lay 107 metres further east from the scene; (d) C was wearing dark clothing: a dark coat, dark trousers and brown boots; (e) C passed in front of Mr Malin’s Clio, and a ‘large’ white 4x4 was queued ahead of the Clio; (f) the Clio’s offside front light was defective, impacting C’s conspicuity; (g) C was not moving quickly by the time of impact; (h) D1 saw C at the last moment from his peripheral vision. The obvious explanation for D1 not seeing C until out of the corner of his eye is because she strode out from a hidden position into the front offside of his vehicle.

The key issue is whether there was sufficient time/visibility for D1 to perceive and react. This question factually underpins breach and causation arguments. D1 articulates the issue: can C prove D1 had a line of sight enabling any reaction/braking before impact? If not, C’s case must fail. If yes, Mr McCluggage said I would then have to consider avoidability, and/or reduced injury (the latter being C’s secondary case) (Mr McCluggage’s issues 2 and 3).

The evidence of Ms Bryant and Ms Malin is not consistent on whether C stopped. She says she did; Mr Malin says she did not. All are agreed that if C emerged without stopping, the collision was unavoidable as D1 could not reasonably have reacted. A short pause does not change this. Dr Ninham said at [6.2] of his report, there would have been no opportunity to avoid if she walked or ran continuously (or essentially so) across the road.

For C to succeed, a pause in itself is insufficient. C needs to prove that her pause and position (a) gave a sufficient line of sight, and (b) lasted for adequate time, and (c) allowed reasonable conspicuity, for a competent driver to heed danger and react. As to this, there are many possible permutations regarding if, where and for how long C paused, making definitive findings challenging if not impossible. Mr McCluggage’s essential point was that the underlying variables or factors which would need to ascertained for such conclusions to be reached are too uncertain.

As to issue 2, what Mr McCluggage terms the counter-factual, namely, avoidability if C paused in line of sight, he made a number of criticisms of Dr Ninham’s evidence, and in particular the assumptions on which his Table 1 ([4.7.11]) is based.

As to issue 3, Mr McCluggage made a number of points. He observed that the actual injuries suffered by C were produced by an unusual mechanism, namely, a blow to her leg (which itself did not cause any injury), followed by the spin into the Clio and then ground. He said that C’s secondary case was far too speculative in that: (a) it is speculative as to how much progress C would have made in front of the Fiesta if it had slowed; (b) hence, it is speculative as to where C would have hit the vehicle. As Mr Blackwood explained, the A-pillar is hard. Both Dr Ninham and Mr Blackwood described the windscreen as potentially being forgiving, but as Mr Blackwood pointed out in cross-examination, if one hits around the edge of the windscreen it is very robust and has a structural nature. The bonnet is softer, but not all of it. Further, he said I had no evidencethat an ‘alternative head injury’ would have led to functionally less severe symptomatology than C unfortunately suffered.

I begin by saying that this has not been an easy case to decide. As I have already said, by the time the witnesses came to give evidence before me, well over eight years had passed since the sudden, quick and traumatic incident on 9 November 2015 in which C was tragically injured.

Ms Bryant, D1 and Mr Malin did their best to recall what they saw, but that passage of time and, as I have already remarked, the fallibility of human memory, mean that I have to look with care at their evidence. That is especially so because their accounts not only differed from each other, they differed from themselves in places. And of course, they have no doubt thought and spoken about the incident many times over the intervening years (perfectly understandably).

This eyewitness evidence is crucial. As I have said, the experts were all agreed that their opinions, and the reliability of their conclusions, depend on my findings of facts based upon the lay witnesses’ evidence as to what occurred.

As to those facts, I am satisfied on a balance of probabilities:

Overall, therefore, I find D1 was not negligent in any way and C’s case fails on both its primary and secondary aspects. I find C to have been entirely responsible for the accident.

I have reached these conclusions on the basis of the weight of the evidence which I set out earlier, and for the following reasons.

On the key issue of whether C stopped for any appreciable length of time, I prefer Mr Malin’s evidence that she did not, to Ms Bryant’s evidence that she did.

Firstly, Mr Malin was the best and most complete witness to the incident. He was placed closest to where C was hit. Only he saw the whole of the incident from when C appeared on the pavement on Myton Road (having turned into it from Banbury Road) until she was hit. His attention was on her throughout.

In contrast, Ms Bryant only began observing part way through, having been on her phone until her attention was drawn to C, whom she said she first saw at the top of her eyeline. I interpreted this answer as meaning that while she was aware of C, she was not completely focussed on C in those moments.

Mr Malin said his account to the police on 10 November 2015 was his best account. Crucially, at the end of his evidence, I asked him directly whether C stopped at, or before, the centre line before she was hit, and he said she did not. I accept this evidence. On this key issue, what he said is consistent with what he had said in his earlier oral evidence, and also with what he had said in his various witness statements, which I set out earlier.

This means, as all are agreed, that C’s case cannot succeed on either its primary or secondary basis because D1 did not have sufficient time to react in order to avoid hitting C, or by slowing sufficiently to avoid serious injury.

I also rely on Mr Malin’s first account as recorded in a police officer’s notebook at 17.45 (so approximately 30 minutes after the accident). The officer recorded Mr Malin as having said:

I need to have regard in the usual way that this is a summary only, and hearsay, and so I have to be cautious about it. There is no reference to C stopping (or not stopping), but I think the clear import of this account is that she did not stop, and so is consistent with what Mr Malin said later. Also, Mr Malin’s description of where the Fiesta struck C matches the objective forensic evidence. This supports, overall, the reliability of this account.

Ms Bryant said C did stop, and this is obviously the high point of C’s case. I accept Ms Bryant was giving her best and honest accounts, however there are points of her evidence which are inconsistent, to a greater or lesser extent.

Firstly, there is what she said to the police minutes after the accident which I set out earlier, where she said that ‘Pedestrian ran out in front of vehicle’. Although, again, I have to be cautious about this hearsay evidence, and Ms Bryant could not recall saying it, I consider it unlikely that the officer would have recorded her saying C ‘ran out’ if she did not say it. Given the obvious importance of an eyewitness’s first account of such a serious accident. On a balance of probabilities, I find that was the phrase she used.

Second, Ms Bryant described the nature of the stop in somewhat different terms on different occasions. She said in her police statement that C ‘stopped’. To C’s solicitors on 20 March 2017 she also said C ‘stopped’. To D1’s solicitors she said that C ‘appeared to stop ..’ (my emphasis). In her oral evidence to me she said that C stopped, ‘I want to say for a second or two’. She demonstrated how C looked left and right as she stopped, which was quite quickly and not for two seconds. C also relies on Ms Anderson, in the vehicle to the Clio’s left, who said in her police statement (but was not called) that C stopped ‘for maybe a second’ (my emphasis).

Third, I cannot rule out the possibility, as Mr McCluggage suggested, that what Ms Bryant and Ms Anderson were actually recalling was the ‘stop and turning back’ movement which Mr Malin, in all three of his statements, described C as doing just before she was hit, and to which Ms Bryant also referred.

Overall, I find the evidence of a pause or stop by C to be too vague and imprecise for me to be able to base any firm conclusion upon it in C’s favour, and certainly not that she stopped for long enough so that D1 had a reasonable chance to avoid or lessen the accident – in other words, that she was ‘there to be seen’ by D1, as Mr Hartley put it. No-one had a stop watch, and all Ms Bryant was able to do was give her subjective impressions of what she recalled C doing.

In her August 2018 statement Ms Bryant referred to Mr Malin having said something to the effect of ‘look at that idiot crossing’ when she was looking at her phone, which drew her attention to C. This account is at odds with her first statement to the police where she said that nothing C did had caused them concern, and also with Mr Malin’s statements to C’s solicitors and D1’s solicitors, in which he said something about how C was crossing to Ms Bryant. Ms Bryant also said to me that as C passed in front of their car she thought that she was going to be hit.

Looking at both Ms Bryant’s and Mr Malin’s evidence as a whole on this point, there was obviously something in the way that C moved from the pavement into the road and then crossed which caused Mr Malin sufficient concern to draw Ms Bryant’s attention to her. It may also have concerned Ms Bryant. I think this evidence is significant. I consider it to be unlikely that he would have had this reaction if C had done as Mr Hartley invited me to find, namely, that C crossed the road carefully and waited for an appreciable number of seconds just before the centre line whilst looking left and right.

At this point, I observe that various descriptions were given by witnesses as to how C moved across the road. It was variously described as a ‘run’; a ‘jog’; a ‘slow jog’; a ‘purposeful’ walk; walking with ‘deliberation’; and, as Mr Bryant said orally, how she would walk if she were late for a train. All of these are subjective descriptions, incapable of further precise definition. In many respects they shade into each other. However, the clear impression that I was given, and I so find, is that once C stopped into the westbound carriageway, she began moving at considerably more than a normal walking speed, and was in a hurry to cross the road, rather than proceeding carefully and cautiously. I was struck by the distinction Mr Malin drew between C first walking, and then running or jogging whilst she was still in his lane. That strongly suggests that there was a change in how C was moving and that she sped up as she tried to cross.

Coming back to the crucial question of whether C paused for an appreciable period of time, for the reasons I have given, I prefer Mr Malin’s evidence that she did not stop, to Ms Bryant’s evidence that she did or may have done.

But if I am wrong to accept Mr Malin’s accounts, I still consider Ms Bryant’s accounts to be too vague and imprecise to be reliable. Where this leaves me is with two witnesses who were literally sitting side by side witnessing the same incident, and who have then given different evidence on a central and crucial matter. In that case, I therefore cannot choose between them and determine who is right. Thus, the burden of proof comes into play. As Smith LJ said in Lambert v. Clayton [2009] EWCA Civ 237, [39]:

For this reason, and on this evidential scenario, C has not satisfied me, as she has to, on a balance of probabilities that she did stop for a sufficient period for D1 to have been able to see her. Her case must therefore fail on that alternative basis.

I turn to the allied point about where C stopped, assuming (contrary to my earlier finding) that she did. Here, again, it seems to me that there is too much evidential uncertainty for me to reach a conclusion in C’s favour. No-one had a tape measure, and so all I am left with are general impressions and ‘guesstimates’. In a case where fine margins make a considerable difference, this absence of firm evidence is very important.

That these unknown variables affect the potential evidential conclusions is made clear by the experts. Point (z) and (aa) of the Dr Ninham’s and Mr Blackwood’s joint report says this (my paraphrase and emphasis):

Hence, it seems to me that there are at least three principal difficulties about determining C’s position. Firstly, no-one was able to say precisely how far between the Clio and the 4x4 C passed, ie, whether it was along the mid-line between them, or closer to one or the other. Mr Blackwood gave a figure of 1.5m as the space between the two cars (report, [7.6]) but this was no more than a reasonable assumption. Second, no-one could say where exactly C stopped in relation to the centre of the road. Third, aside from a general agreement (as Ms Bryant said) that the 4x4 was bigger than the Clio, there was no specific evidence about its dimensions from which inferences can be soundly drawn.

As to the first of these points, Ms Bryant’s evidence was that C crossed ‘as close as a pedestrian would cross in front of a vehicle,’ about a foot ‘maybe’. It is no criticism of Ms Bryant, but I do not find that that evidence advances matters much.

As to the second point, the general thrust of the evidence is that if C stopped, it was somewhere around the driver’s side headlight, give or take. In her police statement Ms Bryant said C stopped ‘as she reached the front off-side corner’. Ms Bryant’s statement to C’s solicitors at [10] was similar; ‘As the female pedestrian reached the front offside corner of Lewis’ vehicle she stopped …’. To D1’s solicitors she said at [10] that, ‘She appeared to stop just as she had cleared Lewis’ bonnet …’. In her oral evidence she clarified she meant the centre of the bonnet. She also said that C stopped about a foot from the centre white line, at around about the offside front headlight of their car.

None of these were, or purported to be, precise positionings, nor could they be. If C was in line with the Clio’s offside headlight then she would likely have been inboard of the larger white 4x4, and out of D1’s line of sight. I take Mr Hartley’s point that she would not have stopped to look left at a point where she could not see left, but one possibility is that she was bodily out of sight but perhaps just peered around the 4x4. I cannot make a finding about this, but it is not necessarily the case that C must have stopped in place where she was in D’s line of sight and ‘there to be seen’.

As to the third point, it was agreed that the 4x4 was wider and taller/larger than the Clio (a relatively small car), and its wheels were closer to the white line than the Clio’s. However, no-one was able to say what make it was; how wide it was; how long it was; how far in front of the Clio it was; and so were not able to say exactly how it would have impacted on the sight line from D1’s car, other than if C was behind it she would have been hidden from his view.

It follows that I can place no weight on the conclusions Dr Ninham invited me to draw as to sightlines from the Fiesta to the impact point on the basis of where he interpreted C as having been standing and for how long she might have been visible for (report, [4.4.5], [4.4.6], [4.4.7]). This is even leaving aside his admitted error in positioning the cars. I accept his calculations remained correct because the relative positions of the Fiesta and the Clio are right, but given the accident took place on a bend, whether that error affects the sight lines as show in his report, I do not know. But even assuming it did not, Dr Ninham himself qualified opinion his views by reference to unknown variables: see eg, [4.4.7] (my emphasis):

Some of the lines drawn by Dr Ninham from the Fiesta when it was a distance away, to the point he interpreted C has having been standing, pass hard along the side of the 4x4 in front of the Clio. However, the cars are shown by generic pictograms which do not necessarily reflect the relative sizes of the vehicles – which as I have said is not known - and so I do not consider I can place any reliance on his illustrations as accurately depicting what the sight lines would have been.

Added to this is Ms Bryant’s evidence that from where she was sitting as a passenger, at the point C stopped, she would not have been able to see far past the edge of the 4x4. She also said C would ‘potentially’ have been shielded from oncoming traffic by the 4x4. On this point Mr Malin agreed with her. He said in his statement to D1 solicitors:

I come to the question of C’s conspicuity. On this, there are points going both ways. In their joint report the experts made a number of points tending to show that C had greater or lesser conspicuity. She was agreed to be wearing dark clothing (and Ms Bryant in her police statement referred to C wearing ‘a dark coloured trench coat’), but could potentially have been seen in silhouette. On the other hand, the hypothesis is that if she was standing where she could be seen, she would been in front the black Clio which had a defective headlight, reducing the ‘silhouetting’ of her. There is also reference to light ‘clutter’ and ‘glaring’, for example if light was refracted through glazed surfaces so as to be scattered in random directions. Dr Ninham and Mr Blackwood agreed that glare hampers a driver’s ability to detect objects such as pedestrians.’ (joint report, [5.7]).

Overall, I cannot reach any firm conclusions about how conspicuous C would have been if she had stood for any appreciable length of time in a position where she could (in theory) have been seen by D1. As I said during the hearing, I have to be cautious about placing too much weight on the photographs in the bundle which attempted to re-create the scene. A number of the photos have artefact on them (ie, details which do not exist in reality).

Drawing the threads together, I am not satisfied on a balance of probabilities that C was standing for any appreciable length of time in a place where she should have been seen by a reasonable driver, driving appropriately and keeping a proper lookout. In other words, I am not satisfied that C was ever in D1’s line of sight before she emerged moving, by which time the accident could not have been avoided at all, or lessened by D1 taking avoiding action.

This conclusion makes it strictly unnecessary for me to consider Mr McCluggage’s Issue 2 and 3. However, I will do so, in case I am wrong in my primary conclusions.

Regarding Issue 2, the key question is whether D1 could still have avoided the collision if C paused for sufficient time to be reasonably noticed.

C’s case on this is principally based on Dr Ninham’s table at [4.7.11] (set out above) where he set out the results of his calculations based upon D1’s assumed perception reaction times, first on the assumption that C was visible to D1 and waiting for three seconds before impact, and then alternatively, that she was visible to D1 and waiting for two seconds before impact. He assumes two periods of reaction time by D1: (a) the time it would have taken him to have perceived C as a potential hazard, by releasing the accelerator and covering the brake; and (b) the time it would have taken him to react to C moving by braking fully.

Thus for example, assuming a visibility period to impact of three seconds; and the two reaction times having been one second and half a second respectively, then the Fiesta would have stopped in time, and the accident would have been avoided. These are the only parameters used by Dr Ninham which produced this result. In every other scenario he considered, there would still have been a an accident, but with the Fiesta travelling at a lower speed.

I do not challenge the arithmetic of Dr Ninham’s calculations on the basis that his assumptions are correct. But whether they are correct is the key question. On that, there are serious doubts about them, which mean I cannot reach any conclusion in C’s favour based on Dr Ninham’s table.

Firstly, the assumption on which his first set of calculations is based – that C was visible to D1 to point of impact for three seconds – is not supported by the eyewitness evidence. As the Court of Appeal emphasised in Taylor v Raspin [2023] EWCA Civ 613, [34], that evidence should be the primary focus.

I have already found Ms Bryant’s evidence to be vague on the question of whether C stopped and, if so, for how long. The best Ms Bryant put it from C’s point of view was in her oral evidence to me that C stopped for ‘a second, two seconds’ and it was then a ‘split second’ after she started to move that she was hit. In her various statements she did not give a length of time, but described the pause in terms of how long it took C to look left and right. In her evidence to me she demonstrated how how recalled C looking, and they were quick glances left and right. They certainly did not take two seconds. I therefore find it impossible to interpret her evidence as supporting the figure of three seconds assumed by Dr Ninham.

Hence, I consider the calculations in this part of Dr Ninham’s table to be not supported by the evidence. I appreciate Dr Ninham calculates that the period from C setting off at a ‘brisk pace’ from rest near the centre line to her being hit would have been 0.94s (report, [4.7.3], meaning that (taking a pause period of two seconds from Ms Bryant’s evidence – the longest she suggested) the total period was 2.94s. But in my judgment there is too much imprecision in the evidence to reach this conclusion. Ms Bryant was not asked what she meant by a ‘split second’. It also cannot be determined how fast C moved once she started to cross. Some evidence speeds of female pedestrians in their mid-40s was given (see eg Dr Ninham’s report, [4.3.5]), but these just demonstrate there are significant variations (as is to be expected)). And as I have said it is not known with sufficient precision where C stood at rest (if she did). Dr Ninham based his calculations on his interpretation of where C stood, but there is no evidence as to whether that interpretation is right or wrong.

Dr Ninham’s evidence on reaction times is at [4.6.2]-[4.6.4]:

Mr McCluggage therefore questioned the reliability of Dr Ninham’s assumptions about D1’s reaction times. He said that Dr Ninham had taken the minimum times, and had not allowed for difficulties in C’s conspicuity given her clothing and the conditions. I consider there to be force in that criticism.

Mr McCluggage also said braking (even hard braking) is not an instantaneous process, because there is a delay in a brake pedal being pressed and the braking process starting, which Dr Ninham had not allowed for. Again, I agree.

For these reasons, I cannot rely on Dr Ninham’s first or second set of calculations (ie, those based on three seconds and two seconds respectively). Furthermore, this second set of calculations even if justified, show that the accident could not have been avoided, only that C would have been hit at a slower speed.

As Mr McCluggage said (Closing Submissions, [5.5]), and I agree, Dr Ninham’s assumed figures for complete avoidance (three seconds/1.5s/0.5s) rely on excessive reaction time combined with factual speculation.

On this basis, C’s case on avoidability fails on a balance of probabilities.

I come, then to Issue 3, and C’s secondary case, namely that at lower speed C’s injuries would either have been avoided or lessened. Here, I will assume in C’s favour as a general proposition that if D1 had slowed, C would likely have been further out into the eastern carriageway to some degree when she was struck.

In my judgment there are just too many uncertainties to enable a conclusion to be reached in C’s favour to the relevant standard. C’s case relies upon her being hit by the Fiesta at a slower speed, and in a different place, so that she would have gone onto the bonnet and so not have been injured as she was. The central problem with this is that the mechanism of injuries in road accidents involves a multi-factorial analysis and the evidence is too imprecise and uncertain to allow that to happen.

The impossibility of making any sort of reliable assessment of outcome in that scenario is underscored by the fact that the mechanism of actual injury here was unusual, in that C was hit at a relatively slow speed and, in fact, so slow that she did not suffer any leg injuries despite being hit on her leg by the Fiesta, but that it was her spinning/twisting and falling and two head strikes whereby she sustained her tragic injuries.

C’s witness, Professor Vloeberghs, referred in his report (which he adopted as his evidence in chief) to the paper by Cuerden and Richards, Pedestrians and their Survivability at Different Impact Speeds. They say (my emphasis, footnotes omitted):

Professor Vloeberghs broadly agreed with these paragraphs and acknowledged, as I have said, that a pedestrian’s outcome after being hit is a ‘multi-factorial issue’. As to the first sentence of the second paragraph he said ‘many things can happen’, but they become rarer at slower speeds. In his clinical practice he had dealt with cyclists who had suffered brain injury at 15mph even wearing helmets. He said that the sort of injuries C suffered (including bilateral fractures and axonal injuries), ‘you would not expect to see at low speed’. He agreed that fatal injuries could be caused by low velocity impacts, eg, by falling over, but would need to define what sort of injury is involved, eg an extra-dural haematoma. He referred to the exponential curve in the paper showing that the cumulative percentage of non-minor injuries starts to increase significantly above 20kph (about 12.4mph). The percentage at 20mph is about 25%. He agreed (although not in terms) it is unlikely that serious brain injury would be caused in a pedestrian being hit at 20mph.

At a minimum, I find Cuerden and Richards’ research does not assist C’s case.

Mr McFarlane gave evidence. He adopted his report subject to one minor immaterial correction in [104].

In cross-examination he accepted some energy had been imparted to C by the Fiesta, but he could not say how much, which caused C to rotate and fall. He thought the right side strike was with the wheel of the Clio and the left strike was with the ground. As a generality, he agreed if C had been hit at a slower speed, less energy would have been imparted to her.

He said that he had not considered the question of frontal impact because he had not had both reconstruction experts’ reports when he wrote his report. His opinion on this issue is set out in the joint statement with Professor Vloeberghs (see above at (q)).

He said, on the hypothesis C would have been hit more ‘square on’ by the Fiesta at lower speed, he said that predicting outcome would depend on number of factors, including how she interacted with the bonnet, and where her head hit, eg, on the windscreen (which is generally more ‘forgiving’) or the edge of the bonnet (which is not).

He said this accident occurred at substantially below the speed where one not have expected a severe brain injury of the type C suffered to have resulted; whether a lower speed would have changed the outcome would depend upon findings of fact, rather than matters of medical opinion.

He said one of the problems with relying upon statistics is the that the type of impact (eg, glancing or frontal) all ‘get lumped together’.

I accept Mr McFarlane’s evidence that the predicted the outcome had C been hit at a slower speed depends on a number of variables, as I have already indicated. Having carefully thought about it, I have reached the conclusion that Mr McCluggage is right that there is simply too little objectively certain evidence to allow for these variables to be determined, and hence the outcome predicted. I could only uphold C’s secondary case on the basis of impermissible speculation.

Among the uncertainties are these. I do not know and cannot determine: how slow D1 would have been travelling; where C would have been bit by the Fiesta had it been travelling at that speed, ie, how far along the bonnet (and Dr Ninham’s calculations, if they show anything at all, show we are dealing in fractions of a second); how C would have reacted in that scenario, and what effect that would have had; how C would have interacted with the Fiesta; whether she would have been thrown up; whether her head would have impacted the car; if so, where (eg, the ‘harder’ A-pillar, or the ‘softer’ central windscreen); what injury would have been caused at that point; whether her head would then have impacted the ground after being thrown from the car; and if so, with what consequences.

For example, the second set of Dr Ninham’s calculations have the car travelling at between 15mph and 18mph, and the impact occurring between 0.12s to 0.03s before it actually did. The difference is less than one tenth of a second. Given the inherent imprecision of the evidence, I simply cannot determine how far across the car C would have been in these fractions of a second and what effect that would have had.

In short, I cannot accurately or reliably determine whether a slower speed would have altered C’s specific injuries and if so, to what extent, if at all.

For these reasons, whilst I have great sympathy for C, who has suffered serious and life changing injuries as a result of a moment's inattention, and for her family, I must dismiss her claim in negligence against the Defendants.

In light of this finding, the question of contributory negligence does not arise. Suffice it to say that if I had found D1 to have been negligent, I would have reduced C’s damages very substantially to take account of her contributory fault.