MW (a child by his litigation friend DW) & Anor v Graham Wilkinson & Anor

On 7th February 2014 at about 3:40 PM a collision occurred on Chapel Street, Norton Canes, Cannock between the First Claimant M who was then five years old (2 months short of his 6^th birthday) and a Ford Ranger motor vehicle driven by Mr Wilkinson the first Defendant. The accident was witnessed by M’s twin sister, the second claimant E who it is said has suffered psychiatric injuries as a result. Although the trial of this matter has dealt exclusively with liability issues, it is not in dispute that M had life changing injuries as a result of this collision.

As a result of the anonymity order I have made in this matter I will refer to the parties as M (First Claimant), E (Second Claimant) and, given that there is no issue of insurance indemnity, I will refer to Mr Wilkinson simply as the Defendant.

Following some discussions that arose in closing submissions, the issues for me to determine in this judgment are agreed between the parties as follows:

On the day in question M and E had been picked up from school by their older brother Ryan who was then age 15. Both twins attended Jerome Primary School, the entrance of which was on Hussey Road, which abuts Chapel Street. Ryan arrived to pick up the twins at about 3.30pm. The school day finished at 3.15pm and the twins went into after- school club until Ryan arrived from his own school to collect them. They all walked up Hussey Road to the junction of Chapel Street. Ryan and E stopped to talk for about 5-10 minutes with a teacher, Mrs Robinson. Whilst E stood holding Ryan's hand talking to the teacher M became separated and made his own way across Chapel Street to the other side of the road. He was seen by the teacher who said, words to the effect of “Look at him!”. The teacher left, and Ryan, having called to M and told him to stay where he was, walked on to Chapel Street, on the other side of the road to M. Unfortunately, M decided that he would re-cross the road. He made his way into the carriageway of Chapel Street. As he did so he came into a collision with the driver’s side front bumper/headlight of a Ford Ranger pick-up vehicle being driven by the Defendant. M had therefore come from the Defendant’s off-side. The police record the accident having occurred at 3.40pm and the ambulance was called at 3.41pm. This is some 25 minutes after the end of the school day.

The speed limit on the road was 30 mph. Given the location was near to a school there was an advisory speed sign in place of 20mph. There were some speed bumps on the road, presumably as a traffic calming measure. It is the case on behalf of the Claimants that this accident was caused by the excessive speed and the lack of observation of the Defendant. The pleaded allegation is that the Defendant was driving at excessive speed (no specific speed having been alleged). The Claimants, in opening, stated that the Defendant was driving at a significantly excessive speed in the circumstances, and should have been driving at below 20 miles per hour. In closing submissions this was modified to allege that the Defendant ought to have seen M and therefore ought to have been driving at 10-15 mph along the road. It is the Claimants’ case that, had the Defendant been driving at a lower speed, the accident could have been avoided or alternatively the injuries suffered by M would have been significantly reduced.

It is the Defendant’s case that the speed driven by the Defendant was reasonable in all the circumstances. Further he contends that his view of M was obscured by a parked car. M must have stepped from behind the parked car leaving the Defendant no opportunity to see him or take sufficient avoiding action so that a collision could be avoided. It is the Defendant’s case that, even if he had an opportunity to reduce his speed, on balance this would not have prevented the injuries M had suffered.

I remind myself that that the Claimants have the burden of establishing on the balance of probabilities that the accident was caused by the negligent driving of the Defendant i.e. that his driving on that day fell below the standard of the reasonably careful driver. The Claimants also have to establish, on balance, that, had the Defendant driven in a non -negligent manner, there would have been no collision or that the collision would have been at a lower speed and that M was injured as a result of the negligence. Given his young age, this is no allegation of contributory fault made against M.

In terms of the standard of driving expected, I am assisted by the analysis set out in and summarised in the judgment of Clare Ambrose, sitting as a Deputy High Court Judge, in Gadsby vHayes [2024] EWHC 2142 at paragraphs 10 onwards. I accept that every road traffic accident will very much depend on its own facts, and I do not rely upon that case to support any specific finding. However, some well-established principles are there set out, which I set out in full below as a useful starting point in analysing the legal duties owed by a driver in an accident of this nature:-

“The law

Although it is the Defendant who has referred to the above guidance, the Claimants do not urge any different test upon me, nor contend that the above is incorrect. Whilst being careful to consider this case on its own facts, I apply the principles set out above as useful guidance.

I have considered both lay and expert evidence in this matter. The lay evidence is from witnesses who were present at the scene (and I am also asked to consider statements provided to the police in the aftermath of the accident, although one of the makers (Linda Baker) has not been called to give evidence). Further each side relies upon experts in the field of accident reconstruction in terms of how the accident happened, the speed and issues of perception response times. Unusually in a case of this nature the parties also each rely upon medical evidence from a neurosurgeon, seeking to address what difference, if any, it may have made had the Defendant’s vehicle been travelling at a different (lower) speed. This is said to be an argument that goes to causation, and the Claimants’ pleaded case that M would have avoided the serious injuries which he suffered, or his injuries would have been significantly reduced.

I have had the opportunity to listen to and assess oral evidence from a number of witnesses all of whom, I find, were doing their best to recall a traumatic incident which occurred in a matter of seconds almost eleven and a half years ago. In the case of Ryan and E they were giving an account of an incident in which their brother was very seriously injured. Further E was not yet 6 at the time of the incident and her young age is a factor has to be taken into consideration. I am sure that all who were present that February afternoon and who gave evidence to this court were doing their absolute best to properly recall what they believe they saw and heard on the day. I do not for one moment, suggest that anyone is attempting to mislead the court. However as is inevitable in circumstances such as this, given the passage of time and the reconsideration of events for the preparation of statements for the police and solicitors (in some cases many years after the accident) it is unsurprising that there are inconsistencies in terms of evidence both internally in witnesses’ own accounts but also in between the witnesses themselves. My role is to assess the evidence as a whole, to consider what weight I can place on different recollections and, weighing up and balancing all of the evidence, to determine what has been established as more likely in all the circumstances. I have summarised many parts of the lay witness evidence below: it is inevitable in doing so that I may have omitted reference to some parts of the evidence. However, for the purpose of this judgment I have reviewed all of the written evidence and my extensive notes of the oral evidence and considered it in detail. Simply because it is not referred to does not mean that it has not been considered.

It has long been recognised by these courts that memory can play tricks. I have considered the judgment in Kimathi and others v Foreign and Commonwealth Office (2018) EWHC 2066 (para 96) where Stewart J succinctly analysed a number of authorities on the issue of witness reliability:

“Rather than cite the relevant paragraphs from these judgments in full, I shall attempt to summarise the most important points:

i)

Gestmin:

•

We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.

•

Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of "flash bulb" memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.

•

Events can come to be recalled as memories which did not happen at all or which happened to somebody else.

•

The process of civil litigation itself subjects the memories of witnesses to powerful biases.

•

Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.

•

The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. "This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth".

ii)

Lachaux:

Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. I extract from those citations, and from Mostyn J's judgment, the following:

"Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…"

"…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…"

Mostyn J said of the latter quotation, "these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty."

iii)

Carmarthenshire County Council:

The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.

However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said:

"…this approach applies equally to all fact- finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context."

Of course, each case must depend on its facts and (a) this is not a commercial case (b) a central question is whether the core allegations happened at all, as well as the manner of the happening of an event and all the other material matters. Nevertheless, they are important as a helpful general guide to evaluating oral evidence and the accuracy/reliability of memory.”

Whilst recognising that every case is fact dependent and that this is not a commercial case, I take into consideration and place some reliance upon the above summary and particularly the need to exercise care in assessing the reliability of memories from events which took place many years previous. In approaching my assessment of the witness evidence therefore, it is useful to look at the accounts recorded by the police in the hours or days post-accident. Whilst, of course, there may be arguments that such records may not be accurate, or open to interpretation, I consider it is appropriate to place some weight on what was said shortly post-accident. It is likely to reflect the best recollection and understanding the witnesses had close in time to this accident.

One point of note in relation to this accident is that there is no witness who actually saw the impact between M and the Defendant’s vehicle. The entirety of the evidence (save for that of the Defendant himself) relates to the circumstances surrounding it, both before and after.

Ryan (surname same as Claimants, therefore not included to maintain confidentiality): Ryan was 15 years old at the time of this accident and was picking his young twin siblings up from school. This was a regular event for him, taking on such responsibilities when his parents were at work. Ryan has provided a number of accounts of this accident. The most contemporaneous was to the police on 26th February 2014 (some three weeks post-accident). In that statement Ryan explained how he had picked E and M up from school at about 3.30pm and stopped to talk with his old teacher Mrs. Robinson for about 5 minutes. Mrs Robinson then said to him “Look at him” pointing towards M who had crossed the end of Hussey Road and then crossed Chapel Street onto the far side about 10 to 15 metres away. Ryan described the road as quiet, and he did not remember any car passing. He shouted to M to stop there. M did stop. Mrs Robinson, the teacher then left to go home (nearby). Ryan with E then crossed Hussey Road, still on the same side of Chapel Street. He again shouted to M to stop because he'd walked a few metres further up towards the top of Chapel Street where Hednesford Road is. He looked down to E and said: “He's going to get a smack when he gets home” expressing his annoyance because M “often runs off and doesn't listen to me”. He heard something go past (“a car or something I don’t know what. It didn’t sound like it was going fast and I didn’t look at it”). He was still talking to E. He then heard a loud bang and looked over to where M was and he could see him lying on the road on his back with his head to the side He then realised that the car that had just gone past had stopped about 3 to 4 houses further up and it was a grey 4x4 type pick-up. “M was probably only as high as the tyres”. He ran over to M and picked him up and carried him to the grass at the front of a house.

Ryan’s statement made for the purpose of this litigation is dated 1^st March 2020 (some 6 years post-accident) and confirmed by another statement dated 13th April 2024 (10 years post-accident). Ryan provides a little more detail to the events on that day. At paragraph 6 he states: “There were no obstructions to my view of M. M was really visible as he was wearing a bright green coat that almost looked like a high-vis jacket. I then remember looking down to E and I remember hearing something drive past at this point; I think it was a car but I didn't look at it as I was still talking to E. I remember hearing an engine that's quite loud; It sounded like a big car engine that definitely wasn't going slowly”. I note that this comment as to the speed and engine size of the vehicle differs from the police statement. At paragraph 7 Ryan confirms that he heard the bang but did not hear any brakes or car horn beforehand. He didn't see the accident as his walking stance was with his head down but E was looking straight ahead. He mentions seeing M lying in the road on his back with his head to this side. He could see the hood to his jacket in the middle of the road: “I let go of E’s hand and ran straight over to M picked him up out of the road and carried him to the grass at the front of a nearby house” At paragraph 9 he stated : “At the time of the accident I don't remember there being any cars around. I remember seeing one car parked up the road. This wasn't the KA but was another car parked on that the side of the (road), I remember other cars having to pull round it. This car wasn't near where the accident happened and was out of the picture really. There was nothing there that could block my view of M with no parked cars in the way. You couldn't have missed him particularly as he was wearing his bright green coat”. I note that within that statement Ryan mentioned a parked car and others further up the road which is not mentioned in the police statement (he does not comment on the presence or absence of any parked cars at that point in time).

I have had the opportunity of listening to and assessing Ryan's evidence provided to the court. He is now a young man training to be a doctor. He gave his evidence clearly and made sensible and reasonable concessions. He had not considered M to be in urgent or immediate danger albeit it he was a young unaccompanied child on the other side of the road. M was in his full vision. He accepted that now, as perhaps a more mature young man, he could envisage risks from the situation but at the age of 15 when he hadn't experienced trauma such as this did not consider it to be a particular danger. Nevertheless, he confirmed that Mrs Robinson, his teacher, had not expressed concern or any alarm about M being on the other side of the road. She had not gone to M, nor said that Ryan should. He agreed that it was fine and normal for M to be on the other side of the road, on his own.

Ryan was clear in his recollection that he was looking down at the point of impact having a prolonged conversation with E. He could see that E was looking straight at the accident. He stated that at the point M was hit, he and E were walking (not an assertion contained in Ryan’s police statement). Of note, in my judgment, despite the fact that M was unaccompanied on the other side of the road, Ryan was not concerned when he heard the car go past. My summary note of his evidence is that he said “Why would that car be any different. I have passed them many times and it was never an issue”. Ryan accepted that he had said at the time that M would “get a smack” as he often ran off and didn’t listen to Ryan.

Ryan accepted that his mother attended at the scene and although he didn't hear her say so she may well have said that he M had been told many times not to run into the road. He said M was impulsive, had a tendency to run across roads (and not listening) and had been told off about it. Insofar as there are references in the medical records to M running (as opposed to walking) into the road on the day in question Ryan was not really in a position to comment us to their accuracy save for making a very valid point that he and presumably other family members would have been focusing on M's well-being rather than such details in medical records.

In terms of his view, Ryan’s evidence was that there were no cars which were obstructing his view of M on his approach. There was a car parked “well up the road”. In so far as it was suggested that M came out from behind a parked car this was denied by Ryan but I note he did not see M on his approach to the accident, or where or how he entered the road. He was talking to E and looking down. His first mention of any parked vehicle was some six years post-accident and therefore I have to treat with care his recollection of where such vehicle may have been positioned. Understandably, after the collision occurred Ryan’s attention was wholly on his young brother.

The second Claimant E is now age 17. She was approaching her 6th birthday at the time of this incident. I have to exercise considerable caution therefore in my assessment of her evidence. The police did not take any account of the accident from E (she is not even recorded as having been a witness in the police report). Her witness statement for this case is dated 30th April 2024 so over 10 years after the accident. In the statement she says that it is a day that she would never forget, and the scene plays over in her mind regularly. That is understandable and of course very painful. She confirmed that Ryan collected her and M from school and Ryan stopped to talk with Mrs. Robinson. M however continued walking. When she turned to look to see where M was she could see that he crossed over Chapel Street and was on the other side of the road. She remembers telling Ryan that M had crossed the road (I note that this is not what Ryan recalls). She could see that M’s hood had fallen off his coat and was lying in the middle of the road which she says must have fallen when he first crossed Chapel Street. She states “M then started to cross back over Chapel Street onto the side of the road that Ryan I were on. He did not run, he was walking. I saw him look to his right before he stepped into the road. The next thing that I saw was the pick-up truck go past me it was going very fast and then it hit M. It was the noise of the truck as it went past that caught my attention, it sounded very loud and it was going fast.” She states that she cannot recall whether any parked cars were there but there was nothing obstructing her view.

On 29th December 2022 E was examined by way of a video meeting by a psychologist Dr Abbye Hughes who produced a report dated July 2023 which is contained within the bundle at B58. An account of the accident was provided by E to Dr Hughes, which I accept was not verified by a statement of truth as a witness statement would have been. Nevertheless, in cross-examination E confirmed that she knew when she was providing her account of the accident to Dr Hughes it was very important. As far as she was aware, no one (i.e. her litigation friend or solicitor) had sought to correct or clarify what had been recorded by Dr Hughes. The history recorded at paragraph 2.3.1 is as follows: “She and her twin brother M had been to after school club and their older brother Ryan who was 16 had come to collect them. They were walking together and approaching a road to cross. She then recalled shouting. M had dropped his hat as he crossed the road and as he tried to get it he was struck by a 4x4 vehicle”. This account was put to E in cross examination. Having confirmed that she knew that it was important that an accurate account was given she confirmed that the account contained in Dr Hughes’ report was correct. She specifically confirmed that they were all walking together i.e. she, M and Ryan. They were approaching a road. She recalled shouting to M that he had dropped his hat. As he tried to get it he was struck by a vehicle. He went back to get his hood. That's when he got hit.

In my judgment that account given by E, both in Dr Hughes’ report and confirmed in oral evidence, is a very different account from that provided by other witnesses in the case. It does not say that M was separated from E and Ryan. It does not have M on the other side of the road. It has all three siblings together and has M going back to get a hood. This is not an account which any of the other witnesses have given. Although in re-examination E said that she thought the account contained in her statement was probably more detailed and more accurate that is entirely contrary to what she had said only moments before. It is clear that there are very real inconsistencies between these two versions of the accident. I do not suggest for one moment that E is not doing her best to recall what happened when she was a very young child over 11 years ago and witness to a traumatic incident. In my judgment it is likely that the “flashbulb moment” has been replayed by E on a number of occasions and her memory appears to have been overwritten leading to these different versions of events. It is not possible to pick out bits of E’s evidence and contend (as the Claimants do) that some parts are likely to be reliable. I cannot rely on E’s account in her witness statement that M was walking. The age of E, the obvious gross discrepancies in account and her change of position in the witness box lead me to conclude that I cannot place any reliance on any details in E's evidence.

There were three independent witness called on behalf of the Claimants. Emma Lloyd is a mother and now a teacher. She provided a statement to the police on 18^th February 2014 (11 days post-accident). Her civil evidence act statement for this litigation is dated 14^th January 2020 (over 5 years post-accident) and confirmed in a statement from 2024. Ms Lloyd was the driver of a black Renault Clio which at the time of the collision was parked directly outside her father’s house at no 31 facing in the direction of the school: that is on the same side of the road that M was on before the accident and some distance further up away from the school. She recalls leaving her father’s home, sitting in the car and checking messages on her phone. She then started her engine, and did her shoulder checks (not indicating, because it was clear): “…just as I was about to go I looked forward I saw the silver 4x4 travelling from the opposite direction hit the small boy on the right side with the drivers’ headlight area. The boy spun round the driver’s side of the car and fell to the floor… The driver of the 4x4 got out at the same time and said something like “Shit what was that or “What’s happened”. She did not see the 4x4 approaching before the collision and did not remember any other pedestrians. She described the aftermath of the accident, talking to Ryan, putting M into the recovery position. She does not recall seeing M before she went to pull out; he might have been there but she didn’t notice him and she did not know where he had come from. She confirmed that on her side of the road “ I do not remember any cars parked either in front or behind me. On the other side of the road, I do not remember any parked cars but there may have been further up ahead of me on the right” Attached to her police statement is a very primitive sketch plan which has no vehicles other than hers and the Defendant’s marked upon it.

In the statement prepared for these proceeding Ms Lloyd’s statement is very brief running to only six paragraphs. She stated: “When I had finished using WhatsApp I then looked around the car, doing my checks before pulling away, Suddenly I heard a loud bang. I immediately looked in the direction of the accident and saw M lying in the road…I don’t think I saw M or the car before impact. As I was looking at my phone and then around the car I did not see M or the vehicle involved before that point. … I remember that one of the boy’s shoes had come off and was on the road…I just remember hearing the bang.” In terms of the presence of other vehicles she stated that there was nothing obstructing her view or that she could recall obstructing a driver’s view coming the other way. She did however remember “there being a couple of parked cars as school had not long finished”. She does not say where they were positioned or on what side of the road.

In her oral evidence Ms Lloyd was a careful and considered witness. She confirmed that she was familiar with the area and chose to leave her father’s house at that time because the after-school traffic would have cleared. She accepted, with the passage of time that she may have been mistaken in her recollection as to how many cars had gone past her, having no particular reason to recall it. She did not recall having seen the impact but heard it. She accepted that if it had been possible to have seen M on the pavement, as she was preparing to move off, she (as a mum) would probably have noticed him, albeit she may have been doing her shoulder checks at that point. However, before pulling off and doing her checks she would broadly have been looking ahead. She accepted that events took place a long time ago and it was difficult to recall. When she referred to “nothing obstructing her view”, she was referring to there being nothing in the road itself. She accepted that there was sometimes a car parked outside a neighbour’s house, on occasion half on the kerb, but could not remember if it had been present on that day. She accepted that if M had been behind cars her view of him crossing the road would have been blocked. She honestly could not recall specific details including whether there was a parked car there. The impression I gained is that Ms Lloyd was a witness doing her absolute best but could not remember details and was only giving an overall impression of her recollection. The account given in her police statement of seeing the impact was not one that she could confirm at this stage. Whilst there may have been cars, she could not say where, or how many.

Mr Michael Boden was a witness who was a cyclist on the road at the time. He provided a statement to the police on 9^th February 2024 (2 days post-accident). His Civil Evidence Act statement for this claim was dated 30^th August 2018 (4 and half years post-accident) and confirmed in an additional statement in 2024. In his police statement Mr Boden explained that he was cycling home from work on that Friday afternoon. At about 3.35 he passed a junction of the left-hand side where there was an Infant school, there were a few children and parents in the general area. As he passed the junction, his attention was drawn to M, as he looked quite young and “…he was on his own. He stood out as he was wearing a very bright green jacket, he had his back to me and was walking in the same direction about 30 metres ahead of me, I could also see an older white male standing talking to a white female on the opposite footpath”. He explains that within seconds of seeing M his view was obscured as he was overtaken by a silver coloured 4x4 pickup. As the pick-up went past, Mr Boden looked down into his pocket to get out his cigarette lighter. He “quickly looked up as I heard a dull thud immediately ahead of me” He could see M lying in the road, the pick-up had stopped a little further ahead, and Ryan was running to pick-up M. He waited at the scene but was not directly involved. He noted that the Defendant driver was visibly shaken. He confirmed that the Defendant, when he went past did not appear to be going fast and “never gave me any cause for concern regarding his driving”. He makes an assumption that M had walked out into the path of the pickup but did not see this. He was asked direct questions by the police but could not assist with any recollection of braking, sounding of a horn and “I do not remember the placement of any vehicles parked at the side of the road at the time of the accident, however my full focus was drawn to (M).”

In his Civil Evidence Act statement for these proceeding (again brief) Mr Boden stated that he still (in 2018) remembered the accident quite clearly. He places the time of the accident at 3.30 to 3.45. The road itself wasn’t very busy. He states: “My attention was drawn to a young boy on the pavement to my right slightly further up the road. He had his back to me and walking in the same direction as I was travelling. There was nothing obstructing my view of the boy, there were no parked cars on the road and the area was generally quiet” (I note that this appears to be rather more positive an assertion than the police statement where he did not remember the placement of any vehicles). At the point he saw M he was about 30 metres in front. He confirms that he was overtaken by the 4x4. The vehicle was 10-15 metres in front when the collision occurred. He did not see the accident.

Mr Boden gave his oral evidence in a straightforward manner. He stated that he was a relaxed (non-racing) cyclist on a mountain bike. He was reaching down for his lighter, travelling “probably not even at walking speed”. When he was overtaken by the 4x4 M was 30 metres or a little less ahead (he then said it may have been 20-25metres when overtaken, but that he saw M at about 30 metres back), and at the point of the collision he was 10-15 metres behind on his bike. He was clear that the car was not driving in any way that was of cause for concern, even knowing this was a school zone and accepting that he would probably be alert if cars were going faster than sensible in those circumstances. There was nothing about M’s presence that had made him think that he would come out into the road. He is unable to say if M came out from behind a parked car, as he was not concentrating on them, as they may have been some way ahead. His evidence as to the presence or absence of parked cars was entirely neutral. In my judgment that oral evidence tied in with his police statement that he “couldn’t recall the placement of parked vehicles.”

The final witness for the Claimant was Mrs Joan Treadwell (who at the time of the accident was a retired taxi driver, having worked as such for approximately 10 years). She provided her oral evidence by video link. Although there was some delay on the connection, I am satisfied that this did not interfere with the quality of Mrs Treadwell’s evidence. Mrs Treadwell is a witness whose recollection appears to have changed in a number of significant ways with the passage of time. I note that she is an older lady who has suffered ill-health over recent years including, she told me, two strokes which had affected her memory. I take that into consideration when assessing her evidence.

At the time of the accident and when she made her police statement, there is nothing to indicate that Mrs Treadwell had any health issues which affected her memory. In her statement to the police on the day following the accident (8^th February 2014) Mrs Treadwell stated that she had been to pay for a freezer for her grand-daughter. She did not know the area well. She pulled out of Chasewater Way, and turned right onto Chapel Street, quickly realising that it was the wrong way. She looked for a junction to turn around. She stated: “I noticed to my left a little boy stood on the pavement and looking back towards a lady who was stood on the opposite side of the road and stood on the far side of a junction to my right approximately 20 yards ahead. I remember thinking “Stay there and don’t run out” …I thought it looked as if he was with the lady. The lad did not look as if he was about to cross the road”. She stated that only a few metres beyond the lad and on the same side was a green/blue small car, similar in size to a Fiesta. That car was indicating to pull out. “In front of me was another car, I do not recall the size or colour, the car passed the stationary car indicating to pull out…I slowed and hung back expecting the stationary car to pull out. I gave it a few seconds and I think the driver turned the indicator off. I then passed the stationary car”. This is therefore quite a detailed description of a parked (or pulled in) vehicle in the vicinity. She went onto say she did not recall any other cars parked to the left and there were definitely no cars parked on the right. She then travelled to the junction, where the lady was, indicated right and stopped, intending to turn right and turn round. She could not turn immediately because there was a grey pick-up approaching in the opposite direction “I was then able to turn into the junction, round and then back onto Chapel Street, stopping briefly to check nothing else was coming, I started to drive back onto Chapel Street and a short distance ahead I realised that the grey pick-up had stopped”. She drove closer and then noticed M lying on the front lawn outside 36 Chapel Street. She pulled over, offered help and said she saw the Defendant who “looked quite agitated and was pacing up and down the pavement”. She then parked up, a bit further along and went to help. The paramedic arrived swiftly (within about 3 minutes). Mrs Treadwell stated that she spoke with the man (the driver) who said: “I did it. I never had chance to apply my brake. He just ran out...I think he went under the car”. Mrs Treadwell offered assistance to the paramedic, and to Ryan. She stated: “Looking back I do recall thinking the pick-up was going a bit quick. I do talk to myself in the car and said, “Slow down”. I do not think he was exceeding the speed limit but did think he was going quicker than I would and a bit quick for the school finishing time.”

In her witness statement dated 23^rd August 2016, there are significant parts of Mrs Treadwell’s evidence which appear to differ from her police statement but other points she confirmed. She confirmed that there were “2 or 3 cars parked up on the grass verge”. There were 2 cars travelling in front and she “could see a young boy just up the road on my left hand side, talking to someone on the opposite side of the road on the right”. She remembered saying to herself “don’t run out into the road” and said that he didn’t look like he was going to cross the road. She did not say that she braked or took any other precautions having noted M on the side of the road. She confirmed that she waited at the junction of Hussey Road for cars travelling in the other direction to pass. The statement then has some confusion contained within it. At paragraph 7 she stated “As I was waiting to pull out from the cul de sac I saw a silver pick-up driving past the cul de sac…. Passing me as I was waiting to pull out when clear in the opposite direction”. This suggests that she was already within Hussey Road at that point. At paragraph 8 however, having said that she had already seen the 4x4 she states that she drove into the cul de sac and turned round. It is therefore unclear where exactly Mrs Treadwell is placing herself at the point that she saw the Defendant’s vehicle. This is an important point because her statement provides a detail wholly absent from the police statement: “I immediately thought that the pick-up was going too fast given that he was travelling past a school and there were clearly children and their parents around, so I waved my arms saying “slow down””. This account obviously differs from the earlier one, providing a vivid description of the action she took when she believed that the Defendant was driving too fast. It also rather hardens her assessment of speed, moving from the police statement where “looking back”, she assessed the driver as going “a bit quick”.

In her oral evidence, there were additional parts of Mrs Treadwell’s evidence which had not been included in previous written statements. She confirmed for the first time her own speed, stating it was about 20mph. She confirmed the presence of 2 or 3 parked cars on the grass verge on the same side of the road as M. When she saw M he was somewhere around those cars. She recalled (seemingly for the first time) that her window was open and she shouted to M to stay where he was. That detail is different from her earlier statements. It was put to her that she did not actually speak to the driver post-accident: she was definite that she had done so. Whilst giving evidence she indicated that with hindsight she could have stopped to prevent M crossing, but there is no mention of anything similar in her earlier accounts. Further, she positioned herself at the mouth of Hussey Road, with her handbrake on, waiting to emerge when the 4x 4 drove past. That differs from the accounts given above. She said she waved both her hands and flapped her arms at the Defendant: again that appears to be building upon what was said in her witness statement and something that was not mentioned at all to the police. Of note, Mrs Treadwell stated had been in contact with the Claimants’ family in the aftermath of the accident because of her genuine concern as to M’s wellbeing. She accepted she had said she hoped M “gets the justice he deserves”. She placed the Defendant’s speed at between 25 and 30 mph. and said she was confident it was more than 20mph. She was unable to explain how that fitted with what she had told the police at the time about speed.

Given what I find are internal inconsistencies in Mrs Treadwell’s different accounts, and of course the fact that she accepts that her memory has been affected by her ill health over recent years, I have to exercise some caution in assessing Mrs Treadwell’s evidence. She remained very consistent as to the presence of parked cars on M’s side of the road, and in the vicinity of where he was. In my judgment, her assessment of the Defendant’s speed, which has increased post-accident, is unlikely to be reliable. I say that because she has confused or changed her own position on the road and what action she says she took to attract the attention of the Defendant. It is likely that her assessment the day following the accident is more reliable. She (after the event) felt the driver was travelling “a bit quick” but she herself considered a speed of about 20mph to be safe in the circumstances.

I turn now to the evidence of the Defendant, Mr Wilkinson. I have considered with care his written evidence and his oral evidence tested in extensive cross-examination. He provided an account of the accident in its immediate aftermath to a police officer, who recorded it in a pocket notebook. He also provided a detailed witness statement dated 7^th May 2024. I am told that the Defendant was also interviewed under caution on a later date at the police station and a decision as taken not to prosecute. Unfortunately, it appears that this evidence was not retained by the police (possibly because it was not requested until over 6 years post-accident). As such, when the Defendant asserts (as he did in his oral evidence) that he had told the police certain things which are not contained in the account in the police notebook, there is no evidence to corroborate or contradict him.

The Defendant lives on Chasewater Way, which is a road just off Chapel Street. He told the court that at the time of this accident his granddaughter was aged 5 and attended Jerome Primary School. The area is therefore well known to him. In his witness statement he makes no mention of his police interview, either at the scene or afterwards. In his evidence in chief, however, he confirmed that he was happy for his statement and the account in the police notebook, which he had signed, to stand as his evidence. I note that he accepted that he had an opportunity to read through what was in the pocketbook. He did say that this account was recorded very shortly after the accident, when he was sitting in a police car and feared that the accident had caused the death of a young child. Nevertheless, it is important to consider what was recorded in the interview at the time. It was noted that the Defendant was “very shaken.”. The account provided was as follows:

“I was coming up past the school on the way home from work. I was tootling along at about 20mph as the kids had just come out of school…Just before a couple of speed bumps there were cars parked on the right hand side (opposite side to me). I think there were three or four cars pulled up to give me the right of way. I’ve come through and the next thing I knew the young lad had ran into my car. I couldn’t of done anything. I just caught sight of him for a split second before he ran out…It was that quick I didn’t get chance to brake. I must have travelled a couple of car’s lengths before stopping. I could see somebody in the road trying to move the young lad, so I reversed back and joined them”. I note that the police file contains some photographs of the scene of the accident but they appear to have been taken at some later point in the evening, as they show a scene in darkness. There is no police evidence therefore as to the presence (or absence) of parked vehicles in the vicinity of the collision.

In his written witness statement the Defendant reasserted that he was driving “at around 20mph” on his approach, which was the advisory speed limit due to the school. He confirmed that he had driven over speed humps past the junction of Hussey Street. Opposite number 32 was a 4x4 vehicle parked facing him, which he thought was a Kia. There were 2 cars behind it waiting to go round it. He had the right of way so they stopped to let him through. The first car flashed him forward. “As I drew level with the rear of the 4x4 a small boy ran out from behind the rear of it into Chapel Street. He wasn’t running straight across the road, but was turning to run diagonally across the road towards me. I hit the brakes as soon as I could to perform an emergency stop but felt an impact. I did not have time to swerve out of the way or to stop in time. There was only about a second between the boy coming into sight behind the 4x4 and the impact.” He then describes the aftermath, being distraught, and the emergency services attending. He understands that the boy did not go under the wheels but hit the corner of the pick-up. After the accident he recalled the older boy (Ryan) being very upset, and that Ryan said he was sorry, it was not the Defendant’s fault as his brother “just keeps running out.”

There are some material differences between the account in the witness statement and that recorded in the police notebook, upon which the Defendant was vigorously cross-examined. There is no mention of a specific 4x4 being parked up in the police statement (although there is mention of parked cars). Further, there is no mention of him having been flashed out (although he did say he was given the right of way). The Defendant was challenged as to his recollection of the position of such vehicles, and where they were in respect of the speed humps. In oral evidence the Defendant stated that he had driven over the speed humps, and reduced his speed as a result. He said it was possible that he was driving at 10-15 mph whilst going over the humps, The parked cars were, he said, straight after the second speed bumps. There were possibly two, three or even four parked cars. He denied that this was inconsistent with the account recorded by the police officer: he said the police officer could see the speed bumps for himself from where they were. He denied that he had “changed his story.” He said he has always believed there was a Kia there and told the police at the time (although no model of vehicle is recorded in the police notebook account). It was possible, he accepted that he has made a mistake given the distressing circumstances, or that the police had recorded things incorrectly and he hadn’t noted it when he signed the pocket book.

The Defendant’s evidence as to the precise circumstances of the accident, what he had or had not seen, were vigorously challenged. He stated that he had no chance to brake (as he had told the police). M had “ran into me, not me into him”. “That’s how it felt. It was like a bird, coming quick into the corner of the car. It could have been an animal”. “My view was just an instant. Within a second you know it’s a child, but within that split second I didn’t know if it was an animal or a child. I realised as he went down the side of the car.”

The Defendant had no recollection of speaking to any of the witnesses post-accident, and denied that he had said the things asserted by Ms Lloyd and Mrs Treadwell. He accepts that he did speak to the police and paramedics and the witnesses may have overheard what was then said.

It is clear that there are certain inconsistencies in the evidence of the Defendant, and I have to weigh up those matters in assessing the evidence as a whole. He also made some concessions in cross-examination as to what, in a hypothetical situation, he would now do in terms of his speed (particularly in light of evidence being given by Mr Boden the cyclist that M was there to be seen). It is correct that the police notebook entries would, if read literally, place the parked cars further up the road before the speed bumps. The Defendant contends that is not correct and that he has always said there were parked car or cars where the accident happened. He also did not say, until he was in the witness box, that he has reduced his speed for the speed bumps, which he said was shortly before the collision. This was not mentioned to the police or in his witness statement. If that is correct, that would put his speed at less than the 20mph which had previously been asserted. Further the Kia vehicle is not identified explicitly in the police notebook entry. I do take into consideration however that when the Defendant was giving his account to the police, it was 10 minutes or so after the impact, when he was recorded as having been agitated and distressed and, as he himself said “my mind was everywhere”. That might explain, in part at least, some inconsistencies as to the positioning of parked vehicles and the speed bumps in respect of the point of collision. I also note that the Defendant stated in his witness statement that it was not until 2020 (6 years post-accident) he received a letter notifying him of a claim, and as such the passage of time is bound to have had some effect upon his recollection.

On balance, whilst weighing up those parts of his evidence that are inconsistent, I am satisfied that the Defendant was doing his utmost to assist the court with his recollection. I accept that he made some concessions in cross-examination as to what may (hypothetically) have been available for him to see, but his evidence always was that he had not seen M. On balance, he has asserted from minutes after the accident that he was traveling at no greater speed than the advisory 20mph, that there were parked cars in the vicinity, he came through as he had the right of way (over other cars), that M suddenly appeared from his offside and ran into him and that he had no opportunity to avoid the collision. I find that evidence to be credible, given as it was in the immediate aftermath of the accident, despite the fact that there are other details given over time which are not wholly consistent. I find that such an account is consistent with what witnesses say he either said to them or he said to the emergency services immediately after the collision. Comments such as “What happened?” “What was that?” “He just ran out” are entirely consistent with the Defendant’s impression that M had suddenly emerged into the side of this vehicle, giving him no opportunity to avoid him.

The only other lay witness evidence relied upon by the Defendant is the police statement from a Linda Baker dated 17^th February 2014. Mrs Baker has not provided a witness statement in these proceedings and her evidence has not been tested in cross- examination. As such, despite the fact that the police statement is verified with a statement of truth, I do not place any reliance upon it, save only to note that Ryan accepted that his mother may well have said words to the effect that “I don’t know how many times I have told (M) not to run across the road”.

Discussion and overall analysis of the factual evidence: Although there is expert evidence in this matter which I will address further, the factual findings I need to make in this case are significantly based on the imperfect picture set out in the lay witness evidence above. I have weighed up and analysed that evidence as a whole and draw the following conclusions from it.

There is no satisfactory or persuasive evidence that the Defendant in his approach to this accident was driving at a speed in excess of 20mph. The Defendant has always been consistent as to that. He said so in the immediate aftermath of the accident to the police. He knew the road well. He knew that there was a school. His own young granddaughter was a pupil there. He knew of the presence of speed bumps. These factors are supportive of his position that he would not have been travelling at a faster speed. Mr Boden the cyclist had no concern as to the Defendant’s speed. He was in a very good position to assess such speed having just been overtaken by the Defendant. On his assessment, with the distance covered, the pick-up may have been travelling at double the speed of the leisurely cyclist (estimated by Mr Boden to be similar to walking pace). The Defendant’s speed and driving certainly caused no concern to Mr Boden, even given the presence of the school and an apparently unaccompanied young child on the pavement. Ryan (who was responsible for the care of M at that point) did not identify anything he heard in respect of the Defendant’s vehicle at the time as indicating speed or a danger to M at the time. It is likely that his assessment of speed close in time to the accident when he made his police statement, rather than a number of years later, is likely to be the most accurate. Ms Lloyd cannot assist with the question of speed. The only witness who alleges in a positive way that the Defendant was driving at excessive speed is Mrs Treadwell. As explained above, her evidence as to this has materially changed over time and I do not understand (or accept) that an assessment of speed could become accurate with the passage of time. The best evidence of Mrs Treadwell on this issue must be that provided to the police the day after the accident. At its highest it amounts to her, waiting to turn right into Hussey Street, observing the pick-up driving past her. In the part of her statement where she describes this, she makes no mention of his speed or of giving the Defendant any warning at all. It is only later, when she had become aware of the accident that she had not witnessed, that she stated, “thinking back ..the pick-up was going a bit quick”. This is in the context where she says she was driving at about 20mph herself, a speed she considered to be safe. I find it difficult to place any significant weight on this speed assessment given by Mrs Treadwell. Even though largely contemporaneous, it appears somewhat of an afterthought in her police statement. I also note that, understandably, Mrs Treadwell has wanted “justice” for M, and there is a risk that this has had an impact on her evidence. The way that her evidence on this critical point has been elaborated later (in my judgment in a way that defies credibility and probably supports her expressed wish to see “justice”) means that in weighing up that evidence, against that of others, I do not find it reliable on this issue.

I therefore find on the balance of the factual evidence that the Defendant was driving at no more than 20mph on his approach to the collision.

I have also to consider whether there were any parked cars present and, if so, whether M emerged from behind one into collision with the Defendant’s vehicle. A great deal of the evidence, as set out above, is entirely neutral on the issue of parked cars. Ryan has cars parked “well up the road” at a point further away, but accepts that he was not looking at M at the point that he crossed. Ms Lloyd provided different versions as to whether there were parked cars or not. Her account to the police would suggest that she did not remember any cars being present, but she sensibly conceded in oral evidence that one credible explanation for why she had not seen M (as a mum and schoolteacher who believed she would be alert to an unaccompanied young child) was that parked cars may have obstructed her view. Mr Boden, in his probably most reliable account to police could not remember the placement of any parked vehicle at the side of the road (but accepts that his focus was on M after the accident). All of this evidence is, as stated, largely neutral on the point. The direct evidence of parked vehicles comes from the Defendant and Mrs Treadwell. Both those witnesses have provided accounts which contain inconsistencies over time. Nevertheless from the day of and the day after the accident both have maintained that there were a number of cars present, parked up, on M’s side of the road. In my judgment, this evidence, whilst far from perfect, is reliable and cogent and satisfies me on balance that there were parked cars present at the time of the collision in the area where Mrs Treadwell had seen M shortly before the accident. In my judgment, on balance, the evidence of Mrs Treadwell has remained unchanged and unshaken on this issue (whilst appreciating entirely the concerns I have expressed about other aspects of her evidence). I place reliance on what was said largely contemporaneously to the accident, rather than versions which may have been reworked or reconsidered over time. Her evidence corroborates that of the Defendant namely that there were cars parked, or pulled over, over which he had right of way, at the point of collision. On balance, weighing up the evidence as a whole I find that evidence to be reliable and persuasive. I find that there were parked cars near the point of collision. The Defendant’s impression, in the immediate aftermath of the accident is entirely consistent with M emerging as he came through, having the right of way over cars that were pulled up. He said: “I caught sight of him for split second”: that has remained largely consistent throughout. The police report records (H1) “Driver states child crossed from behind parked cars to his offside giving him no time to react”. That has remained the Defendant’s position from the moments after the accident to date. Having carefully considered the evidence in its entirety I find that M did emerge from behind a parked or stationary vehicle. For the reasons given above I reject the different versions of the accident provided by E as unreliable, and no other person actually witnessed the accident itself.

I have considered whether M should have been a cause of concern to the reasonably careful driver such that the Defendant ought to have reduced his speed further (if M was there to be seen, which I will address below). I accept that M was seen by Mr Boden on his mountain bike, before Mr Boden was overtaken by the Defendant. It is contended therefore that M was there to be seen by the Defendant also. As I have concluded that there were parked or stationary car(s) in the vicinity, it does not follow that the Defendant’s view and opportunity to see M was the same as Mr Boden’s: M may well have (and I find probably had) moved behind a vehicle and out of sight by the time the Defendant was overtaking Mr Boden. It cannot be said that their viewpoint was the same. However, I am not satisfied that even had the Defendant been able to see M on the pavement, it would have meant that M would have been a cause for concern for the reasonably careful driver. The evidence is that neither Ryan nor Mrs Robinson (a primary school teacher) were concerned that M was unaccompanied on the other side of the road. He was seen to be positioned on the pavement and not on the kerb threatening to cross. Mr Boden the cyclist having seen M did not have any evident concerns, he began looking down and taking a lighter out of his pocket. Mrs Treadwell’s evidence differs: she has stated that she was alert to the presence of a young unaccompanied child, and gives evidence (differing in details over time) as to whether she called out loud, in her head, through an open window to M to “Stay there”. I consider the most reliable source of her recollection is that given to the police the day following the accident when, at that point she said she remembered thinking (not saying) “Stay there”. However, even then she did not think that M was about to run out. M was then on the pavement on her nearside. She at no point stated that she slowed her vehicle to below 20mph to take into consideration that M might be a hazard who could emerge into her path. I therefore conclude that she did not consider such evasive action to be necessary in the circumstances. On balance I do not find that there is any (or any sufficient) persuasive evidence to satisfy me that the presence of M on the pavement as an unaccompanied child, was such, on the facts of this case, to require him to be identified by the reasonable careful driver, as a hazard such that avoiding action needed to be taken.

I reach that conclusion whilst of course recognising that young children can behave in an impulsive fashion. It is recognised that they have neither the road safety awareness nor spatial awareness to recognise and assess risks. I have also taken into consideration what is said in the Highway Code. This accident took place in the general vicinity of a Primary school (albeit 25 minutes after the end of the school day). The advisory speed limit, recognising those risks is set at 20mph. I accept that is a limit not a target. However, if the assertion by the Claimants in this case is correct, that a safe speed would be considerably less (and at one point the range of 10-15mph has been stated by Leading Counsel) that would imply that the advisory speed limit by any school should be lower. Experience tells us that, near to a school, children young and older can be walking or running, unaccompanied and possibly distracted. It is not the position that the speed limit by schools throughout the land is therefore 10-15mph to account for that. Further, a careful driver cannot be expected, simply because they see an unaccompanied young child on the pavement, to significantly reduce their speed. That is not a reasonable expectation. One can imagine circumstances where a reasonably careful driver would need to be particularly alert: had M been facing and heading into the road, standing by the kerb appearing distracted, chasing a ball or another child, then that might cause concern. He was doing none of those things. None of the adults present felt the need to do anything on seeing M. Given that I find that there are no circumstances in this case to alert the reasonably careful driver that M presented a particular hazard, I reject the argument that the reasonably careful driver should have been driving at considerably less than the 20mph advisory limit at this time.

The expert evidence Having made the above findings, much of the expert evidence in this matter is no longer relevant. Nevertheless, I briefly review and comment upon it for the sake of completeness.

Each party relies upon the evidence from a reconstruction expert; the Claimants rely on the evidence of Mr Douglas Boulton and the Defendant relies upon that of Mr Peter Davey. Each expert has prepared their own report and a joint statement for the court. In a rather unusual turn of events, just prior to entering the witness box the Claimants’ expert presented through Counsel an A4 sheet of paper with reworked calculations which he wished to rely upon. Given that counsel for the Claimants stressed that this was of great importance and, he said, arose out of evidence that had been heard, the parties agreed after some discussion in court, that an additional joint statement could be prepared. That resulted in the loss of half a day of the trial so that the experts could formulate in written form the additional joint statement which is now included within the bundle at document G11A and onwards.

There is considerable measure of agreement between these experts. It is worth noting however that they take a very different approach to their preparation of the evidence. Mr Boulton who I am sure has many years’ experience in this field relies heavily on his experience as an expert and before that a police officer. He made mention in evidence to his experience as a driving instructor, which I find went rather beyond the remit of his evidence for the court. Mr. Davey who has similar but probably fewer years’ experience also relies heavily on software which he has used to produce scaled maps plans and reconstructions of the accident. Both approaches have their merit but on balance I found the approach of Mr. Davey to be more scientific, more careful and more thorough.

The experts are in agreement with regards to the mechanics of the collision and that debris was found in the road in the close proximity of the collision scene. The Ford Ranger was parked outside number 32 which it is agreed could not be the position of the impact because of the position of the debris on the road further back. It is accepted that M would have crossed up to about 3.5 to 3.8 metres into the carriageway at the point of collision. Of course the time it would have taken him to do so depends on whether he was walking or running or (on the basis of the further joint statement) there being a transition from walking to running. There was no physical evidence which would assist in identifying whether they were parked vehicles present at the scene nor where they were located. There was much discussion as to the perception response time (PRT) and the range of PRT that could be present, all for a reasonable driver. This would depend on a number of factors, including where the Defendant was looking. In the original joint statement the following points were agreed all on the basis of the Defendant’s vehicle travelling at 20 mph:

On the basis of my findings above, there was a parked car present. It is therefore accepted by both experts that in those circumstances the accident would not have been avoided. The Claimants accept in submissions that on this scenario, the claim fails. In those circumstances it is unnecessary and probably unhelpful to delve too deeply into the difference of opinion between the two experts on facts which I have not found. What I do say is that if I had to determine which of the experts’ opinions I would prefer I would unhesitatingly prefer the evidence of the Defendant’s expert Mr. Davey. His evidence was clear, analytical and careful. I find that his approach to the accident reconstruction based on a scientifical analysis was an appropriate and careful one. He was very measured in the way that he gave evidence and made reasonable and sensible concessions. Unfortunately the approach by Mr Boulton I found rather less persuasive. It is no part of this judgment to be critical of an experienced expert particularly where there is no determination which relies upon that. What I would say however is that my impression is that Mr Boulton did not take particular care in preparation of his report. He referred to himself as a lecturer at Aston University when he had not lectured on any course there for approximately 5 years. He was not careful in stating what amount of work was done for claimants as opposed to defendants (and seemed taken aback by the (in my experience) standard question). Further and of some import, he omitted to deal in his report with scenarios in which the Defendant was not negligent. He did not deal with the scenario of M having emerged from behind a parked car despite it being clear on the written evidence that this was the Defendant’s case. His explanation was that he was dealing only with scenarios where the accident could have been avoided. I find that response troubling: it suggests that the witness was seeking to build a case for the Claimants rather than independently analyse the evidence in reaching his opinion. Further he appeared to be overstepping his remit as an accident reconstruction expert in giving evidence as to the nature of this vehicle and the strength of its bodywork when it had not been examined by a forensic engineer. In the circumstances, I considered his evidence to be less thorough and less careful than that of Mr. Davey.

However, as stated the accident reconstruction experts do agree that if there was a parked vehicle and M crossed from behind it, whether he walked or ran, there would have been no time for the Defendant to react and brake and avoid the collision. In those circumstances it is agreed there would be no breach of duty. I do so find. I do not make an explicit finding whether M walked or ran (or transitioned from one to the other) as there is no need to do so in the circumstances and the evidence is, as set out above, entirely neutral on this issue.

The expert neurosurgical evidence: the Claimants rely upon the evidence of Mr Kirkpatrick and the Defendant upon that of Mr McFarlane. Both are eminent neurosurgeons who have worked together for many years in this field. Each prepared a report, a joint statement and gave oral evidence before the court. The issues between them are relatively narrow. There is a significant area of agreement. Given my findings above (that there was a parked vehicle and M crossed from behind it and the Defendant would have had no time to react or avoid the collision) the very interesting discussion and debate between the two neurosurgeons is of academic interest only. I set it out below in briefest terms for the sake of completeness.

The experts agree that when M came into collision with the Defendant’s vehicle he was deflected back to the offside having been struck by the front offside corner of the vehicle. He was not lifted onto the front of the vehicle. They agree that M suffered a Glasgow coma score of 3 at the outset, improving to 9 at the time of ventilation at the scene. He suffered a traumatic brain injury and various physical injuries. There was no evidence of a skull fracture. They agree that the radiology report is consistent with diffuse axonal injury involving the frontal lobe and possibly the corpus callosum. It is agreed that the dent to the leading edge of the bonnet was caused by the impact of M’s head. The experts were invited to provide their opinion as to whether a speed reduction would have resulted in a different outcome for M but were provided with no indication of the speed reduction that should be considered in the hypothetical scenario. There was a disagreement between the experts in relation to matters of causation at a lower speed. Mr Kirkpatrick on behalf of the Claimants contends that if an impact had occurred at all then the corner of the offside wing would not have been involved. This is on the basis that at a lower speed M would have been further in front of the car and the most likely structure would have been the front bumper and bonnet. He contended that M would have had an increased reactive time meaning that he would have been likely to rotate to face the oncoming threat and his upper torso and head would have been rotated further towards the car. He would have had an opportunity to outstretch his arm which would have impacted on the bumper/bonnet as would possibly the front of his head as it followed through. The energy dynamics would have been different. Mr Kirkpatrick states “altering the dynamics even by a fraction of a percent rendered it almost impossible to determine the exact outcome in an individual case”. He therefore relies on generic data from accident statistics as set out in a number of papers, contending this supports the hypothesis that most paediatric pedestrians hit at 20 mph or below avoid significant injury. This leads him to conclude that even if the court considers that only a small reduction of impact speed should have occurred namely by one or two mph, on the balance of probabilities M would have avoided significant head injury.

Mr McFarlane, on behalf of the Defendant, considers this approach to be too speculative. It is unknown whether M was running or walking and therefore the length of time he would have to reach the presence of the vehicle. Without a determination of the actual or appropriate speeds for the vehicle the additional time that would have been available for M to react is also unknown. It is not accepted that the relative mass of the vehicle to M, had he been in front of the vehicle with an outstretched arm, would make any material difference to the head impact speed. Further there is a risk that had been in front of the vehicle he could in fact have been knocked down and run over by it. Mr MacFarlane notes problems with the literature that Mr Kirkpatrick relies upon particularly because the statistics in relation to young children are lacking and the interaction is dependent upon the relative height of the child and the profile of the front of the vehicle. The papers he says do not have any statistics dealing specifically with a child of this age interacting with the front of a vehicle of this size. Because of the height of M in relation to the front of the vehicle it is likely in this different scenario that M would have been projected in front of the vehicle and not rotated onto the bonnet. Whilst it is accepted that the studies show a relationship between impact speed and risk of injury they are not papers which can be directly relied upon. The Richards study relates to fatalities and not specifically head injury. The study by Tefft does not apply to persons of M’s age but records that the risk of severe injury becomes a balance of probability at around 31 mph. No one in this case is contending that the Defendant was driving at that speed and therefore Mr McFarlane considers that it is not logical to use statistics to predict outcomes at a lower speed on a balance of probabilities when those same statistics do not predict severe injury at the actual speed of impact in the case to which they are being applied.

It is accepted by Mr McFarlane that if the court finds there should have been a substantial reduction in impact speed (which the court does not accept) the sequelae would have been mitigated unless of course M would have been knocked down and run over when there could have been other catastrophic consequences. It is not accepted by Mr McFarlane that a lesser speed of only one to two mph would have avoided a significant head injury on the balance of probabilities. He states that there is no evidential basis to conclude that such a small difference would translate from severe traumatic brain injury to none at all. None of the graphs upon which Mr Kirkpatrick relies show such a dramatic reduction in sequelae from such a small reduction in speed.

Mr Kirkpatrick contends that the sigmoid shape of the graphs of increased mortality for the very young ages 1 to 14 in the studies showing a shift slightly to the right as in figure 2.2 of the Richards paper is relevant. Given that it is as he says impossible to paint an accurate picture for the “what if” scenario i.e. if the impact had been at a lower speed he considers that reliance on these statistics is highly relevant and appropriate in the circumstances.

Having carefully considered the oral evidence of both of these experts and reread their primary and joint statements I form the view that I prefer the evidence of Mr McFarlane to that of Mr Kirkpatrick. He impressed me as a careful and detailed witness. On balance I found that the bold assertion by Mr Kirkpatrick that a different reactive time would have caused M to rotate his upper torso is difficult and is probably too speculative. There are many imponderables in the circumstance of an accident such as this, described by Mr Kirkpatrick as “chaotic in their nature”. Whilst there may have been an increased opportunity in some circumstances for M to take protective steps, I found that Mr Kirkpatrick probably went too far in his conclusion that this “would” have happened. I find the approach relying upon generic data which does not correspond with the facts of this case to be a difficult one. I note that the sigmoid graphs which are referred to barely lift at the bottom until past 20 mph leading to the conclusion that most impacts below that do not result in a serious injury. However, this is all very speculative. It is impossible in my judgment to precisely replicate the exact orientation and exact point of impact that could have occurred if the accident circumstances had been different and then to extrapolate forward as to what would have been the outcome. On the basis of the statistical graphs relied upon M, struck at 20 mph, would probably not have had a serious injury yet tragically he did. There are so many imponderables in the chaotic circumstances of a road traffic accident that I find on balance it would not be possible to conclude that a reduction in speed by one to two mph would have made the significant difference in this case that Mr Kirkpatrick says statistically would have been the situation. Whilst I do not therefore need to further engage with this debate, I prefer the approach taken and the evidence of Mr McFarlane. I do not find that a reduction in speed by 1 or 2 mph would have made a material or significant difference to outcome on the facts of this case.

There is no doubt that this is a very tragic accident in which M suffered life changing injuries. Further E has suffered from witnessing the accident or its after-effects. Of course this court has sympathy for the situation that the Claimants and their family find themselves in. The lives of all involved in this accident have been impacted by the events of only a few seconds.

Having considered all of the factual evidence in this case I find that there was at least one parked vehicle present on the road in question. I find that M emerged (whether running or walking I do not know) from behind that vehicle. There was no opportunity in those circumstances for the Defendant to have taken any evasive action. I find that the Defendant was not negligent in failing to observe M before the accident. He would not have been able to see him in these particular circumstances. Further I find on the facts of this case that driving on a road adjacent to a school, 25 minutes after school closing, at no more than 20 mph was reasonably careful driving. There was nothing about the particular circumstances that were present on that day which ought to have alerted the Defendant to have driven at a slower speed or to have adjusted his speed upon approach.

This is not an accident that was caused by any negligence on the part of the Defendant. It was a tragic accident when a young child behaved impulsively and crossed the road in front of an oncoming vehicle, making a collision unavoidable. It was a genuine accident for which no one is to blame.

Answering the questions I need to answer therefore

In these circumstances the claim is dismissed.