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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Chan v Peters & Anor [2021] EWHC 2004 (QB) (16 July 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/2004.html Cite as: [2021] EWHC 2004 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
MR TOBY OLIVER CHAN | Claimant |
|
| - and - |
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(1) MS PAULA PETERS(2) ADVANTAGE INSURANCE COMPANY LIMITED |
Defendant |
____________________
Christopher Kennedy QC (instructed by Keoghs) for the Defendants
Hearing dates: 28 and 29 June 2021
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Mr Justice Cavanagh:
very
helpful submissions, both oral and in writing.
vehicles
and to assess repair requirements. Mr Haigh examined the damage to the Defendant's
vehicle
after the accident. In addition, I was provided with a witness statement from PC Daniel Lumley who attended the scene after the accident.
visible
to the Defendant differs from the Defendant's recollection and is at odds with the Defendant's expert evidence.
view,
she was driving in a reasonable manner, and I have no doubt that this opinion is genuinely held, though this does not, of course, compel the court to come to the same conclusion.
view
of the Claimant's movements in the few seconds before the collision. As a result, the Claimant's movements in the 20 or so seconds before he moved into the road are not
visible
on CCTV.
(1) The Defendant's level of observation had been insufficient and this was the root cause of the accident and the "central limb" of her failings. For some distance (since she passed the entrance to Thornbury Hospital which is some 250 metres down the road from the locus of the accident), she had failed to look at and take account of her surroundings in the manner that was expected of a reasonably competent driver. She failed to appreciate the road in front of her and the developing hazards, including the presence of the School, and of some students coming out of School during the lunch break, and of the presence of a bus and a parked car in a parking bay (with a person, the Claimant,
visible,
or partially
visible,
between the bus and the parked car);
(2) The Defendant had failed to see the Claimant when he was there to be seen. He came out of the school gate and stood at the kerb ready to cross the road. Mr Bradley said that the Defendant should also have seen that the Claimant was distracted and was about to cross the road;
(3) Had the Defendant's level of observation and actions been those of a reasonably competent driver, she would have seen the Claimant, lifted her foot off the accelerator pedal, covered the brake pedal and been prepared and ready to stop, and, in all likelihood, have been ready to sound her horn;
(4) If the Defendant had acted in the manner to be expected of a reasonably competent driver, she would have stopped in time and avoided the collision entirely.
very
moment that he emerged into the road in front of the Defendant's car. The suggestion on the Claimant's behalf that the Defendant should, by then, have slowed down and been covering the brake was a counsel of perfection. The Defendant braked immediately when the Claimant came into contact with her car.
The law
very
helpful summary of the law was set out by HHJ Stephen Davies, acting as a Deputy High Court Judge, in AB
v
Main [2015] EWHC 3183 (QB), at paragraphs 8-14, in which he said, in relevant part:
"6. First, and stating the obvious, it is for the claimant to establish on the balance of probabilities that the defendant was negligent. The standard of care is that of the reasonably careful driver, armed with common sense and experience of the way pedestrians, particularly (in this case) children, are likely to behave: Moorev
Pointer [1975] RTR, per Buckley LJ. 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. The defendant is not to be judged by the standards of an ideal driver, nor with the benefit of "20/20 hindsight": Stewart
v
Glaze [2009] EWHC 704, per Coulson J at [5].
7. Second, however, drivers must always bear in mind that a motorcar is potentially a dangerous weapon: Luntv
Khelifa [2002] EWCA Civ 801, per Latham LJ at [20].
8. Third, drivers are taken to know the principles of the Highway Code ….
….
11. Fifth, in another decision of the Court of Appeal, Lambertv
Clayton [2009] EWCA Civ 237, [Smith LJ] also cautioned trial judges against making findings of fact of unwarranted precision when that was not justified by the evidence, on the basis that treating what could in truth be no more than "guesstimates" as if they were secure findings of fact could easily lead to an unjust result either way [35-38]. At [39] she said this:
"If there are inherent uncertainties about the facts, as there were here, it is dangerous to make precise findings. This may well mean that the party who bears the burden of proof is in difficulties. But that is one of the purposes behind a burden of proof; that if the case cannot be demonstrated on the balance of probabilities, it will fail."
12. Sixth, trial judges should also exercise caution in relation to the evidence of accident reconstruction experts. Lambert itself was a case in which the trial judge had relied heavily on the evidence of accident reconstruction experts and the calculations which they had produced. In Stewartv
Glaze (ante) Coulson J, in §2.2 of his judgment at [8-10], warned of the danger of: (i) such experts giving opinions on matters beyond their expertise and acting as advocates seeking to usurp the role of the judge; (ii) elevating their admissible evidence about reaction times, stopping distances and the like into a "fixed framework or formula, against which the defendant's actions are then to be rigidly judged with a mathematical precision". These are dangers of which I should remind myself in this case, where both parties have relied upon such evidence.
….
14. Eighth, a further danger of which Mr Kennedy reminded me is that of approaching the question of whether or not the defendant's driving fell below the requisite standard in avacuum,
without reference to the actual circumstances of the actual collision against which the standard is to be judged: per May LJ in Sam
v
Atkins [2005] EWCA Civ 1452."
v
Glaze, at paragraph 7, Coulson J said that, when considering allegations of negligence against the drivers of cars, "Compliance with speed limits and proper awareness of potential hazards can often be critical in such situations." At paragraph 10, Coulson J said:
"10. In my judgment, it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inferences to be drawn from it, can be tested."
v
Atkins, the Court of Appeal emphasised that the Court must take care, when considering whether negligence has been proved, to consider whether the lack of reasonable care on the part of the defendant, if established, had been causative of the accident. In that case, the judge found that the defendant had been negligent but that her negligence had not been causative of the accident. At paragraph 14, Hale LJ said:
"In my judgment, the judge was technically wrong to express the obvious findings that he made in the way in which he did. It is commonplace to analyse a cause of action in negligence compartmentally, examining a duty of care, breach of the duty, causation and damage. That is convenient, but technically wrong. Negligence is a composite concept necessarily combining all the elements I have mentioned."
v
Atkins made clear that if a defendant acts without reasonable care but that failure does not cause the accident, the defendant is not negligent (see paragraph 24).
"There is a risk of pedestrians, especially children, stepping unexpectedly into the road. You should drive with the safety of children in mind at a speed suitable for the conditions."
"Drive carefully and slowly when
….
- Driving past bus…stops….
- Passing parked
vehicles
…."
"Near schools. Drive slowly and be particularly aware of young cyclists and pedestrians. In some places, there may be a flashing amber signal below the 'School' warning sign which tells you that there may be children crossing the road ahead. Drivevery
slowly until you are clear of the area."
v
Murray [2015] UKSC 5, when giving the judgment of the majority of the Supreme Court, Lord Reed JSC said, at paragraph 28, that "the apportionment of responsibility is inevitably a somewhat rough and ready exercise."
The facts
The background facts
Visibility
was good and it was not raining. There was a steady stream of traffic at the time of the accident, but the road was not congested. The traffic was flowing freely.
very
busy in the morning and
very
busy at the end of the school day. Mr Davies said that there is often a cluster of students outside the school at lunchtime, but not as many as at the start and the end of the day. Only sixth formers are allowed out of the school during the day. A few years before this accident, another student was knocked down by a car and a pedestrian crossing was installed on Fulwood Road, some one and a half minutes' walk away from where the accident between the Claimant and the Defendant happened. Elijah Clayton said that students had been told to use the pedestrian crossing.
vehicles
in the parking bay. One was a double-decker bus and the other was a
Vauxhall
Zafira car belonging to Mr Wayne Alleway. Mr Alleway was either dropping off or picking up (or delivering something to) his daughter who was a student at the school. Mr Alleway did not give evidence in court but he gave a
very
brief statement to PC Lumley shortly after the accident, which PC Lumley recorded in the accident booklet.
view).
This manoeuvre had finished by the time that the Defendant came into sight of the locus and so played no part in the accident.
very
familiar with this stretch of Fulwood Road. The Defendant was on the way to a work meeting at the time of the accident but she was not late for it, and she was in no particular hurry.
The accident
The CCTV evidence
view
of the camera on the offside of the bus. This camera is facing backwards and so is facing in the direction from which the Renault is arriving. He is emerging from the parking bay, in between the bus and Mr Alleway's Zafira. The experts are in agreement that the Claimant was between the two
vehicles,
slightly closer to the Zafira, about 1 metre away from it. The experts are also in agreement that the Claimant was moving at faster than walking pace when he came out into the road. He was described as "jogging" by the eyewitnesses and by the experts and I find that this is what he was doing. As Mr Hague said in his evidence, the angle of the Claimant's body as he started across the road, as seen from the still made from the CCTV footage 0.6 seconds before impact, is consistent with jogging or running, rather than with a walking motion. It is clear that the Claimant was hurrying across the road to meet his friends.
very
suddenly. On the basis of my examination of the CCTV footage, it appears that the impact was with the side of the Renault, rather than the front, but
very
close to the front of the
vehicle.
There was some disagreement about whether the impact was with the side or the front of the
vehicle
(and so whether the Claimant hit the car or the car hit the Claimant) and I will return to this.
The eyewitness evidence
Elijah Clayton and Nathaniel Montgomery
The Defendant
"As I approached the area, I noticed a bus stationary on the left side of the road outside the school. At this time I saw two children on the offside pavement standing close to a street lamp. I noticed the two boys as they appeared to wave towards the opposite side of the road.
I was driving in a straight line close to the centre white line, in order to pass the stationary bus.
I first saw the Claimant, who I now know to be called TobyChan,
when he was situated close to the rear offside of the bus. My attention was immediately drawn to him when he broke out into a run, heading towards the offside of the road. His movement was
very
quick and unexpected. The only way I can describe it is that he appeared to leap towards my car.
My immediate reaction was to perform an' emergency stop; I cannot recall whether I had time to steer. I brought myvehicle
to a stop
very
quickly. Unfortunately a collision occurred since the Claimant ran towards my car at a point when I had insufficient time to react. He collided with the nearside of my
vehicle,
just above the front nearside wheel arch."
"I was driving to a meeting along Fulwood Road in Sheffield. I was travelling out of city. As I got to the Notre Damn (sic) School, a boy walked out in front of me. He stepped out from in front of a car. I think he had been speaking to a group of friends who were across the road from him. I just saw him step out."
very
brief note made in difficult circumstances in the immediate aftermath of an accident. It did not purport to be a
verbatim
note of the Defendant's words: it was just a brief and broad summary of what she said. The Defendant clarified that the reason why she said she thought that the Claimant had been speaking to his friends was not because she had seen him do so, but because she had drawn the inference after the accident that this must have been what had happened.
view,
she had been driving with due care at a reasonable speed. She reiterated that she had not seen the Claimant until the moment of impact and, and said that if she had seen him moving into the road she would have slammed her brakes on and stopped.
Nicholas Wilkinson
vague.
He said that he was not sure how many buses were parked in the parking bay, and that he was not sure whether there was a car parked there.
vagueness
of recollection set out above lead me to the conclusion that I should be cautious about placing reliance upon Mr Wilkinson's evidence, unless it is corroborated by evidence from elsewhere.
view.
"I first saw the pedestrian involved in the accident when he walked down the pathway to my left. He walked behind the bus and then stopped. He stopped right on the corner at the rear of the bus as if he was going to look and check the road. He only stopped for a brief second and the Nissan Juke must have been level with the bus at that point.
I was around 30-40 metres away from the boy.
I think that he might have been checking his phone or looking over to the group of boys on the opposite side of the road.
The pedestrian did not look to his right at any time and walked out into the road.
The nearside wing of the Nissan Juke made contact with the pedestrian and he must have hit the windscreen and then he tumbled to the right hand side of the Nissan and he landed on the road.
….
I think the pedestrian is responsible for the accident as he did not check the road and look to his right and the car was right on him when he stepped out."
very
very
brief amount of time" between the Claimant stopping behind the bus and moving out into the road.
visible
to the Defendant and in my judgment this evidence is more reliable than Mr Wilkinson's evidence, provided many months after the event. I will deal with this expert evidence in a later part of this judgment.
view
at that stage. This means that Mr Wilkinson must be mistaken about his recollection of seeing the Claimant moving up the pathway towards the pavement. Also, Mr Wilkinson said that the Claimant walked behind the bus and only stopped for a brief second before walking into the road. However, it can be established from the CCTV evidence that the Claimant was in the
vicinity
of the back of the bus and the front of Mr Alleway's Zafira for at least 20 seconds (the period in which he was out of sight of the bus cameras, apart from the rear camera whose lens was obscured by dirt). Third, Mr Wilkinson said that the Claimant walked into the road when the other eyewitness evidence and the expert evidence shows that he jogged into the road. Fourth, and in any event, as Mr Wilkinson's car was further back on the road than the Defendant's car, even if Mr Wilkinson's recollection is correct that he saw the Claimant for a brief period before the accident, it does not follow that the Defendant would have done so. The Defendant's
view
might have been blocked by the Zafira in a way that Mr Wilkinson's might not have been. It is noteworthy that Mr Wilkinson did not think that the Defendant could have avoided the accident.
vicinity
at the time of the accident, and it may be that Mr Wilkinson confused the Claimant with another student in the period leading up to the accident.
Mr Wayne Alleway
chance
to see or stop for him." In PC Lumley's witness statement he said that Mr Alleway told him shortly after the accident that he was sat in his parked
vehicle
when the boy just walked out in front of the Renault and the driver would not have seen the boy until the
very
last second. He told PC Lumley that the boy looked left and right
very
quickly without taking any thought.
The expert evidence
(1) There is no CCTV footage from a point about 20 seconds before the collision, when the Claimant can be seen walking to a position ahead of the parked Zafira, until less than 1 second before the collision (when the experts said that the Claimant was "ahead" of the parked Zafira, they meant that he was between the Zafira and the bus. In her direction of travel, westbound, the Defendant first passed the Zafira and then the bus). It appears likely that the Claimant stopped for a period before he attempted to cross, but it is not possible to assess from the footage where he stopped;
(2) The Claimant started to cross the road when he was no more than 1 metre ahead of the Zafira;
(3) The Claimant was either jogging or running across the road. He was probably jogging, rather than sprinting. The Claimant would have needed to cross at faster than walking pace in order to cross between the flow of eastbound
vehicles;
(4) The Claimant was jogging directly across the road, rather than diagonally (Mr Dawson considered that it was possible that the Claimant was moving diagonally across the road but he agreed with Mr Hague that it was on balance more likely that the Claimant was travelling directly across the road);
(5) The collision occurred at the front nearside corner of the Defendant's Renault, when the car was travelling close to the centre lines of Fulwood Road;
(6) The Claimant was projected along the road by the collision, beyond the Renault's final stopping position. This indicates that it was not a glancing collision, and that the Defendant was braking at an emergency rate at the time of impact. The Renault stopped around 8 metres after the impact position, and the Claimant was projected around 9 to 10 metres to his final rest position at the rear of the bus;
(7) The Claimant could have avoided or reduced the likelihood of a collision if he had:
(a) Properly checked forvehicles
before entering the live carriageway, so that he could have waited for the Renault to pass (the Joint Statement refers to the
Vauxhall,
but I think that this is a typo);
(b) Chosen to cross from a position that was not directly ahead of a parkedvehicle.
If he had crossed to the rear of the
Vauxhall,
he would have been
visible
to approaching westbound drivers and could have seen westbound
vehicles
approaching from a distance of around 160 metres;
(c) Chosen to cross from the west end of the layby, where the footway abuts the live carriageway, so that he would have had a clearerview
of approaching
vehicles
and would not have been obscured from the
view
of approaching drivers by the
vehicles
parked in the layby;
(d) Used a zebra crossing around 130 metres west of the locus, or used a controlled pedestrian crossing around 160 metres to the east, i.e. the direction in which the two other pedestrians were travelling (pedestrians typically take 1 minute to walk 100 metres).
The Defendant's speed at the time of the accident
vehicle
braking rates. Using this methodology, he assesses the Claimant's speed as being between 23-27 mph. He expressed the
view
that an approach speed of 27 mph was compatible with the Defendant's and Mr Wilkinson's evidence regarding their speed. Mr Hague, the Defendant's witness, focused on the CCTV evidence, the Defendant's approach and the time taken to brake. The bus camera took one frame per second. Using this knowledge, Mr Hague estimated the Defendant's speed as being about 25 mph.
very
confident or accurate estimate. Both of them took account of the CCTV footage which, as I have said, was of poor quality. I accept Mr Hague's evidence that there are limitations to estimates based on the pedestrian throw distance.
v
Lambert against making overly precise findings. However, having assessed the expert evidence on this subject, I find that the Defendant was driving at about 25 mph at the time of her accident. In my
view,
Mr Hague's evaluation is the most persuasive. Even though the CCTV footage was poor, I think that it helps that his assessment took account of the measurement (using the knowledge of one frame per second) of the distance travelled by the Defendant's car on the footage before the moment of impact. Mr Dawson took account only of the frames that span the impact. The evidence of the witnesses of fact does not help resolve any disagreement about the precise speed. Both the Defendant and Mr Wilkinson say that she was travelling within the speed limit, but they are no more specific than that. Moreover, as Mr Hague pointed out, most speedometers are calibrated so as slightly to exaggerate a car's speed.
The damage to the Defendant's car
vehicle
is consistent with the Claimant being hit by the car, rather than the other way round. On his behalf it was submitted that the damage shows that the Claimant was hit by the front of the car, close to the corner with the nearside. The Defendant's submission was that the impact was on the nearside corner of the car. Mr Hague said it can be seen from the CCTV that the Claimant's leading leg struck the nearside corner of the car, and that the initial damage was to the side and corner of the car. He said that the damage to the front bonnet of the car and to the windscreen came from contact from the Claimant's body and head after the initial impact, and that the impact to the corner of the car had caused the bonnet to crease.
video
evidence of the accident. It is also consistent with the Defendant's own evidence that the Claimant collided with her nearside wheel arch. To put it colloquially, the Claimant jogged into the Defendant's car. The impact was with the corner of the car. However, in my judgment nothing rests on whether the impact was slightly towards the front of the car, or slightly towards the side of the car. This does not shed any light on the question whether the Defendant was negligent, or on the extent of any contributory fault on the part of the Claimant. Nothing rests on whether the collision is described as the Claimant hitting the car or the car hitting the Claimant. In this case, that is a distinction without a difference.
Sight lines and
visibility
view
of the locus whilst negotiating a left-hand bend and from a distance of around 180 metres. Fulwood Road is essentially straight for the final 130 metres to the locus but there is a line of trees along the nearside
verge
which obstructs the
view
of the nearside pavement until a driver is around 100 metres from the locus. There is a "School" hazard warning sign on the nearside
verge
around 100 metres from the locus. I also accept Mr Hague's evidence that, if (as I have found) the Defendant was driving at a speed of 25 mph, her car would have been around 220 metres from impact when the Claimant arrived close to the kerb some 20 seconds before the collision. Because of the curve of the road, this means that they would have been out of
view
of each other at that point.
view
of the Defendant of him would have been obscured, at least to a substantial extent by the Zafira. From the Defendant's perspective, the Claimant was standing behind the Zafira. Although there is no CCTV of the Claimant's movements in the 20 seconds or so before the accident, I find, on the balance of probabilities that he was standing next to the Zafira for all or most of this time. He can be seen, 20.1 seconds before the collision, standing close to the kerb, possibly stepping into the parking bay in front of the Zafira. In my judgment, there would be no reason for him to move backwards at this point and so I find that he spent the intervening period between then and the accident in the bay next to the Zafira. He only became
visible
from the bus camera 0.6 seconds before the collision and so this must have been first point at which he emerged beyond the parking bay.
visible
above the roof of the Zafira, whilst he was standing behind the Zafira. The Claimant was 1.73 metres tall. The experts referred to published data which shows that a
Vauxhall
Zafira, with the tailgate closed, is around 1.64 metres tall. Account must be taken of the Defendant's eye level. This was not taken into account by Mr Dawson when he wrote his report, but after discussing the matter with Mr Hague he agreed that this was something that has to be taken into account. The Defendant was sitting in her car, and this affected her eye-level. I accept Mr Hague's estimate that her eye level was 1.2 metres. The closer the Defendant's car came to the Zafira, the smaller the amount of the Claimant's head that would have been
visible
over the roof of the Zafira.
visible
above the roof of the Zafira. The figures provided in the experts' Joint Statement say that at 100 metres away from the Claimant, and taking account of the Defendant's eye level, 7 cm of the Claimant's head would have been
visible
above the Zafira. 75 metres away, this would have reduced to 6-7 cm; 50 metres away, this would have reduced further to 4-5 cm; and at 25 metres, between nothing and 1 cm would be
visible.
visible
above the roof of the Zafira would have been conspicuous. Mr Dawson's report contains a photograph of a person standing in this location. However, this person was wearing high-
visibility
clothing. I accept Mr Hague's evidence that, particularly as he was not wearing high-
visibility
clothing, the Claimant would not have been conspicuous.
visible
to the Defendant once he was outside the line of the parked Zafira. It is possible that the top of his head might
visible
to the Defendant, over the bonnet of the Zafira, just before he reached a position alongside the offside edge of the Zafira. However, in my judgment, in light of the eyewitness evidence, the expert evidence, and the CCTV evidence, the Claimant would have been
visible
to the Defendant at most only a small fraction of a second before he emerged beyond the offside edge of the Zafira.
What was the Defendant's response time, if she did not see the Claimant until he emerged from behind the Zafira?
view,
if she was looking in his general direction, around 1.0 second before the collision, but that the top of his head may have been
visible
above the roof of the Zafira slightly earlier than 1.0 seconds before the impact. On this basis, Mr Hague estimated that the Defendant's response time was 1.0 second.
Avoidability
(1) Scenario 1. Scenario 1 applies if the Claimant would not have become apparent to a reasonable driver as a hazard requiring a response until he either emerged into
view
or set off from a position already in
view.
Using published data for drivers who had not been pre-warned of a hazard, the experts agreed that a reasonable response time in these circumstances would be 1.0 to 1.5 seconds. Using these response times, and on the basis that Renault was travelling at a speed of 25 mph at the point of impact, then in order to have stopped at the point of impact the Defendant would have had to be travelling at a speed of around 16-18 mph.
(2) Scenario 2. This is based on a response time of 0.75 seconds. This would be the expected response time for a driver who was looking towards the position from which the Claimant emerged or set off (rather than towards the other pedestrians or the front of the stationary bus) and immediately saw the need to apply emergency braking. This calculation is based on the premise that the Claimant was apparent as a hazard requiring an emergency response for between 1.0 to 1.5 seconds before the collision. On this Scenario, if the Renault was travelling at a speed of 25 mph on the approach to the collision, then in order to have stopped at the point of impact, the Defendant would have needed to be travelling at a speed of around 18 mph, if the Claimant was apparent as a hazard for 1.0 second, and at a speed of around 25 mph, if the Claimant was apparent as a hazard for 1.5 seconds.
(3) Scenario 3. This is based on a response time of 0.50 seconds. This would be the expected response time for a driver who was looking towards the position from where the Claimant emerged or set off (rather than towards the other pedestrians or the front of the stationary bus), was already covering the brake pedal and immediately saw the need to apply emergency braking. This calculation is also based on the supposition that the Claimant was apparent as a hazard requiring an emergency response for between 1.0 and 1.5 seconds before the collision. On this Scenario, if the Renault was travelling at a speed of 25 mph on approach to the collision, the in order to have stopped at the point of impact, she would have needed to be travelling at a speed of around 20 or 21 mph (if the Claimant was apparent as a hazard for around 1.0 second) and could have stopped from her speed of around 25 mph (if the Claimant was apparent as a hazard for around 1.5 seconds).
visible
for 1.5 seconds, the Defendant could have stopped even if she had been driving at 25 mph. If the Claimant was
visible
for 1.0 seconds, she would have been able to stop if she was driving at 20 or 21 mph, and, on the Defendant's case, this would have been a reasonable speed to have been travelling at (as she should have slowed down in light of the potential hazard).
view,
relatively straightforward. If the Claimant's case on the facts and on what can be expected from a reasonable driver is correct, then the Defendant's failure to meet the standards of a reasonable driver caused the collision, and so the case on negligence will be made out.
Conclusions
(1) After coming up the pathway from the School, the Claimant saw his friends, Mr Clayton and Mr Montgomery. They waved to each other and the Claimant decided that he would cross the road to see them;
(2) Around 20 seconds before the collision, the Claimant moved off the pavement into the parking bay, between the bus and the Zafira. He remained in the parking bay, behind the Zafira from the Defendant's point of
view,
for the next 20 seconds or so, until about 0.6 seconds before the collision, when he started to jog into the road;
(3) The Claimant did not look right in the direction of the Defendant's car before he set off into the road. He did not see the Defendant's car;
(4) At the time of the collision, the Defendant was driving at about 25 mph, well within the 30 mph speed limit. She was not covering the brake pedal in the moments leading up to the accident, and she was not slowing down;
(5) The Defendant was keeping close to the white lines in the middle of the carriageway to give the parked car and bus as wide a berth as possible;
(6) From the point at which the Defendant rounded the curve in Fulwood Road and the locus came into
view
until the moment of the collision, the Claimant was obscured because he was standing in the parking bay between the Zafira and the bus. He was not so far forward in the parking bay that he could be seen in front of the Zafira. Given the sitting position of the Defendant in the driving seat (1.2m from the ground), the Claimant's height (1.73m) and the height of the roof of the Zafira (1.64m), only a
very
few centimetres, at most, of the Claimant would have been
visible
above the Zafira, and this would have reduced to nothing or
virtually
nothing, by the point at which the Defendant was 50m from the locus. The Claimant was not conspicuous;
(7) The Defendant did not see the Claimant until he moved out into the road beyond the offside of the Zafira. This was 0.6 seconds before the collision;
(8) The collision consisted of the Claimant's leading leg hitting the front nearside of the Defendant's car, next to the front wheel arch and the front corner of the Renault. The force of the contact and the momentum resulted in the Claimant colliding with the bonnet and the front windscreen of the car before being propelled along the road, coming to rest by the back of the bus;
(9) The Defendant slammed on the brakes as soon as she saw the Claimant and came to a halt. The Defendant's response time was 1.0 second.
virtually
entirely, obscured by the Zafira from the point at which the locus came into sight until 0.6 seconds before the accident. In those circumstances, a reasonably competent driver could not be expected to see the Claimant until 0.6 seconds before the collision, and, therefore, could not be expected to take any precautionary steps. I do not accept that a reasonable driver in the position of the Defendant should have worked out, from the fact that Mr Clayton and Mr Montgomery were waving from the other side of the road, that there was a real possibility that someone would emerge unexpectedly from the parking bay into her path, and should have slowed down, covered the brake pedal, or taken other steps to deal with such a risk.
view, 0.6 seconds before the collision, and as soon as that happened the Defendant reacted quickly and well within the 1.0 to 1.5 second response time that can be expected of a reasonably competent driver.