Jessica Rose Gadsby (A Protected Party By Her Mother And Litigation Friend Laura Youmans) v Julie Hayes [2024] EWHC 2142 (KB): Ms Clare Ambrose Sitting As A Deputy High Court Judge

This case contains a helpful summary of the law applicable in road traffic collision cases along with a reminder that the court often prefers the evidence of witnesses from whom statements have been taken nearer the time of the incident.

On 31st October 2014 the Claimant who was then 12 years old was crossing a pedestrian crossing in Leicester on her way home from school when she was hit by a car driven by the Defendant. The trial concerned liability only.

The Claimant’s case was largely based on the evidence of her sister, Kacie, who was 11 at the time of the accident. Kacie said that she was standing with the Claimant on the pavement. When the lights turned to green in their favour the Claimant and others started to cross the road, but Kacie stayed on the pavement. Kacie said that she then called out to her sister to come back because she had seen a girl on the other side of the road who she thought was going to cause trouble. The Claimant turned around and was walking back to her when the Defendant’s car collided with the Claimant. Kacie said that the lights on the crossing were at green in the Claimant’s favour throughout.

The Defendant’s case was that the lights were showing green for her and red for pedestrians. She was looking out and knew there was a crossing and children were around. She had approached the crossing at about 20 mph reducing to about 15 mph at the crossing. When she was very close to the crossing the Claimant had run into the road having looked to her left but not to her right which was where the Defendant was approaching from.

At paragraph 13 of the judgment the judge outlined the applicable law mentioning the authorities of Chan v Peters [2021] EWHC 2004 (QB), AB v Main [2015] EWHC 3183 (QB), Foskett v Mistry [1984] 1 RTR 1, Stewart v Glaze [2009] EWHC 704, Lunt v Khelifa [2002] EWCA Civ 801, Lambert v Clayton [2009] EWCA Civ 237, Sam v Atkins [2005] EWCA Civ 1452 and Ahanou v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274. The main principles to be derived from these authorities were that:

1. A defendant will be liable if they fail to attain the standard of a reasonable and careful driver, and the accident was caused by that failure. The burden of proof, on a balance of probabilities, remains on the claimant.
2. 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 such extraordinary precautions (Foskett). The defendant is not to be judged by the standards of an ideal driver nor with the benefit of 20/20 hindsight however (Stewart).
3. Drivers must always bear in mind that a motorcar is potentially a dangerous weapon (Lunt).
4. Drivers are taken to know the principles of the Highway Code.
5. Trial judges must be cautious about making findings of fact of unwarranted precision when that is 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. That may 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. If a case cannot be demonstrated on a balance of probabilities then it will fail (Lambert).
6. Trial judges should also be cautious in relation to the evidence of accident reconstruction experts. Firstly, there is a danger that these experts give opinions on matters beyond their expertise and act as advocates seeking to usurp the role of the judge. Secondly, their admissible evidence about reaction times, stopping distances etc should not be elevated into a “fixed framework or formula, against which the defendant’s actions are then to be rigidly judged with a mathematical precision” (Stewart).
7. There is a danger that consideration of the question of whether or not the defendant’s driving fell below the requisite standard is done in a vacuum without reference to the actual circumstances of the actual collision against which the standard is to be judged (Sam). Compliance with speed limits and proper awareness of potential hazards can often be critical in such situations. It is primary factual evidence that is of greatest importance. The expert evidence comprises a useful way in which that factual evidence and the inferences to be drawn from it can be tested (Stewart).
8. It is important to ensure that the court does not unwittingly replace the test of the standard of a reasonable driver with the standard of an ideal driver (Stewart). “There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant’s safety than a duty to take reasonable care” (Ahanou).

Kacie’s statement was given on 16th November 2015 almost 11 months after the accident. She made a later statement in 2019.

The Defendant gave a short statement to the police about 25 minutes after the accident in which she said the lights for her were green, that she was travelling at under 30 mph and that the Claimant had run out in front of her. Her witness statement was dated 3rd January 2015. The judge said that the Defendant’s oral evidence was confused and inconsistent in some respects however. The judge found that the changes in the Defendant’s evidence were not self-serving, but the Defendant did not have a reliable independent recollection across all aspects when cross-examined ten years after the event.

The Defendant called two other witnesses who were present at the time of the accident. The first gave a statement to the police dated 9th January 2015 confirmed by a witness statement dated 2nd September 2021. He said that the lights were on green for the traffic and red for pedestrians, and as soon as the Claimant stepped onto the crossing she was hit by the Defendant’s car. The second witness gave the police a statement dated 30th November 2014. She said that she saw the WAIT sign was illuminated on the pedestrian crossing, and the red man was showing. She then saw a young woman step into the road appearing to be trying to run across the road. When she did this a car was only two metres away from her. At this point she could not say what colour the traffic lights were on for the car, but her best guess was either amber or green. She did not think they were on red for the car.

Kacie had said in evidence that she was in shock after the accident and that the events had had a profound effect on her and her family. She said that she had had nightmares and flashbacks about the incident. The judge said that no statement was taken from Kacie at the time of the accident, and she was then asked to provide a statement almost a year after the accident and another four years later when she was 15 years old. The judge said that it would be challenging for anyone accurately to piece together matters of this sort a year or several years later. For a traumatised 11 or 15 year old that had lived through the accident and its consequences over the previous years it would be more difficult. Although her evidence had been given honestly the judge having examined the expert and witnesses’ evidence in considerable detail preferred the account given by the Defendant to the police on the day of the accident and the two independent witnesses. The Defendant’s statement to the police was given immediately to them rather than to her own solicitors. It was consistent with the evidence of the two independent witnesses.  The evidence of the two independent witnesses was more contemporaneous and both gave a consistent account independently of each other. Their evidence could not be reconciled with that of Kacie’s. Kacie’s evidence was not contemporaneous since it was not given until almost a year after the accident. She was also not independent.

The judge dismissed the claim.

Case note by Adrian Higgins. 

6th Nov 2024

Adrian Higgins

Call 1990