Child pedestrian claim dismissed: evidential burden remains on the claimant to prove negligence
Master Leo Arkelaos v Kimberley Phillips [02.07.21]
In this child pedestrian road traffic accident claim, the main issues to be decided by the court included whether the defendant had the opportunity to see the claimant prior to the accident occurring and if so, whether the defendant “would have had time to react appropriately”.
This was a claim as a result of a road traffic accident on 18 August 2016. The claimant was 12 years of age at the time of the accident. He was struck by the defendant’s van on a residential street and sustained various injuries. Kennedys acted on behalf of the defendant driver’s insurer, Markerstudy, and instructed Derek O’Sullivan QC.
Liability remained in dispute throughout the course of the claim and at the liability only trial in June the Judge was required to determine if primary liability was established, and subject to that whether there was any contributory negligence.
The defendant was driving her van along a Heywood Road, which had houses on both sides. As she approached a junction on her right, Maple Road, a boy (subsequently confirmed as the claimant’s friend) ran from her right directly across her path. She braked and there was no collision with the claimant’s friend but the claimant was also running into the road and he collided with the front offside of her van.
The claimant’s case was that he and his friend had turned into Maple Road and found some friends having a water fight. As they got closer they were chased by a boy with a water pistol which caused them to run from Maple Road back into Heywood Road.
The claimant alleged, amongst other things, that the defendant had failed to see or heed the presence of the children playing in Maple Road and had failed to slow down to take account of the risks. The defendant’s case was that she could not see into Maple Road due to hedgerows and therefore could not have seen the children until the claimant’s friend ran into her path. She was able to brake and avoid a collision with him and there was nothing she could have done to avoid the claimant running into her van.
The case was complicated by the fact that there was a statement in the police report from an unidentified, but apparently independent, witness who did not attend trial. The claimant also relied upon the unsigned witness summary of another of his friends’ who was at the scene, but he too did not give evidence.
In his Judgment, HHJ Bird identified two key questions to be answered on the facts: 1. did the defendant have an opportunity to see the claimant prior to the collision?, and 2. if so, when and over what time?
The Judge found that the accident happened when the claimant came into contact with the side of the van and its front wheel as it was slowing, in order to avoid the claimant’s friend. The Judge found that the van was travelling at a speed no more than 20mph prior to the accident and it was accepted that this was not negligent if the defendant had no opportunity to see the children playing in Maple Road. Equally, it was accepted that if she had (or should have) seen the children this speed was too high.
There was a dispute between the accident reconstruction experts in relation to the height of the hedge on the date of the accident and the visibility afforded to the defendant. The claimant’s expert suggested that the defendant could have seen the top of the claimant’s head above the hedge. The defendant’s expert stated that he would have been totally obscured from the defendant’s view.
The Judge concluded that the claimant’s accident reconstruction expert was incorrect in saying that the height of the hedge was 1.3 metres tall in September 2016. The Judge’s view was the hedge was at least 1.5 metres tall at that time. He reached that conclusion in particular based on photographs taken shortly after the accident. That conclusion meant that the defendant could not have seen the claimant beyond the hedge. It followed that the first notice she had of children playing was when the claimant’s friend ran into her path.
The Judge therefore concluded that the defendant’s driving did not fall below the standard to be expected of a reasonably competent driver. The Judge accepted the defendant’s evidence that she did not see the claimant before the accident. That was not as a result of a lack of care or attention on her part but rather because the claimant was hidden from her view, first by the hedge and then by a parked Smart car. She saw the claimant’s friend and was able to stop in time, so she avoided hitting him. As she was slowing, the claimant ran into her van.
The Judge was satisfied that there was nothing the defendant could have done to prevent the accident. In the circumstances the claim was dismissed in its entirety.
More often than not, the driver of a motor vehicle who comes into contact with a pedestrian is likely to be found to have contributed to the collision, at the very least.
However, this case has highlighted the importance of good evidence and is a useful reminder that the evidential burden does still remain on the claimant to prove negligence. In this particular case, the claimant sought to place heavy reliance upon the untested evidence of a witness not called to give live evidence, which the Judge was not prepared to accept where it conflicted with other evidence. Ultimately, the claim almost entirely turned on one very simple issue, the height of a hedge, and contemporaneous photographs proved crucial.