Richardson v Butcher [2010] EWHC 214 (QB)

Case No 9NE90012[2010] EWHC 214 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/02/2010
Before
THE HON MR. JUSTICE BURNETT
Between
CORY RICHARDSONClaimantTRACY BUTCHERDefendant
David Sanderson (instructed by Osborne, Morris and Morgan) for ClaimantDavid de Jėhan (instructed by Keoghs) for DefendantHearing Hearing dates: 21 st and 22 nd January 2010
JudgmentThe Hon Mr. Justice Burnett:Introduction
[1]At about 19.45 on 2 December 2000 the claimant, Cory Richardson, who was just two weeks short of his ninth birthday, was struck by an Audi motorcar driven by the defendant in Stead Lane, Bedlington, Northumberland. He had run out from the pavement on the south side of the road into the path of the defendant’s car which was travelling east. He crossed the westbound carriageway and stopped in the eastbound carriageway. The claimant sustained serious injury. Proceedings were issued on 20 March 2009. The claimant acts through his litigation friend. This is the trial on liability. No contributory negligence is alleged against the claimant, given his age. Accordingly, the questions I have to resolve are first, whether the driving of the defendant fell below the standard expected of a reasonably prudent driver and secondly, if it did, whether the resulting failure was causative of the claimant’s injuries. If the defendant’s driving was negligent and causative of the claimant’s injuries, he recovers in full.[2]For reasons that I shall endeavour to explain I have concluded that the defendant was negligent in her driving and that her negligence was causative of the claimant’s injuries.[3]The test to be applied is whether the defendant’s actions matched those of the reasonable driver. It is well recognised that the courts should avoid imposing standards that amount to a counsel of perfection. Regard must be had to the realities of the situation. So, for example, it must be recognised that it takes time to react to developing dangers and that drivers cannot reasonably be expected to be “all-seeing” of everything at all times. A reasonable driver will necessarily take his eyes off the road from time to time to look in his rear or wing mirrors. He can be forgiven whilst reasonably paying particular attention to one potential hazard if he is slow to appreciate the development of another. As Laws LJ put it in Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274:
“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.”

The Nature of the Evidence

[4]Most of the evidence of the events surrounding the accident was placed before the court in writing. The defendant’s car was being followed by another driven by Stuart Cavens, who was then 18, with Christopher Carr, then aged 17, as his front seat passenger. Both made statements in 2004 in anticipation of these proceedings but had also given accounts the day following the accident which are recorded in the Police Report. The claimant was in the company of two other boys that evening. Both gave accounts to the police on 3 December 2000. Dean Straughan, who was then 12, also provided a statement in March 2004 in anticipation of these proceedings. Jason Martin, the other lad, was 11 at the time of the accident.[5]The defendant provided a very short account at the scene and was then interviewed for 70 minutes the following day. Her descriptions of what happened are set out in the records of what she said which are also with the Police Report. The defendant prepared a statement dated 27 July 2009 for these proceedings and gave oral evidence. She adhered to the account she had given in interview and explained that it represented her best recollection.[6]Both parties instructed road traffic accident experts. Mr. Peter Sorton gave evidence for the claimant and Mr. Steve Parkin for the defendant. The expertise of each was not in doubt. Both recognised the limited role experts should play in a case of this sort. Their evidence was produced within the parameters set by Deputy District Judge Gibson on 2October 2009 which limited it to the following matters: (i). Evidence of the speed at which children run. (ii). Evidence of driver reaction times. (iii). Evidence of driver braking and stopping distances and times. (iv). Evidence of the visibility of pedestrians in dipped head lights. (vi). A physical survey and photographs of the scene. (vii). Evidence of the speed of the vehicle at impact as calculated from the pedestrian throw distance. (viii). Evidence to assist the Judge as to whether there is physical evidence which might indicate the Claimant’s direction of travel at impact. As will become apparent, there was almost no disagreement between the experts. The Scene[7]The physical survey and photographs of the scene enable a short and uncontroversial description to be given. Stead Lane is what might be called an ordinary urban B road. It has houses along both sides. It connects Bedlington to Bedlington station. It is not a quiet residential road but a thoroughfare, although at the time of the accident it was not busy. At the point of the accident, the road is 7.5m wide. The eastbound carriageway, in which the defendant was travelling, is slightly wider than the westbound at that point, being 4m wide. There are pavements on both sides of the road with the houses, for the most part, set back behind small front gardens with low retaining walls. At the scene of the accident, the width of the south footway over which the claimant ran before entering the road itself is 1.8m.[8]Stead Lane is a gentle hill. The defendant was travelling down hill, but it was not suggested that the fact that the road was a hill played any significant part in what occurred.[9]Coming from the west (as was the defendant) towards the point of impact, a driver rounds a right hand bend. As she does so, Rothesay Terrace is immediately on her left, that is to say it joins Stead Lane from the north. It joins Stead Lane at roughly 45 degrees, making it a gentle left turn for such drivers. The mouth of Rothesay Terrace is 39m wide and divided by a central island on which stands a ‘keep left’ bollard. The point of impact was about 8.5m beyond the middle of the island and in the eastbound lane about 1.5m from the broken white lines that divide the two carriageways. Both figures are subject to a small amount of uncertainty because they reflect the assumed path of the claimant when he came out of the alleyway and also the position of the Audi in the road at the point of impact. These were the figures on which both parties were content to proceed at trial given the description of the claimant’s actions by Dean Straughan and the position of the Audi after it came to a halt.[10]Immediately opposite the point of impact is an alleyway that runs between two houses on the south side of the road. It was from that alleyway that the claimant emerged. The alleyway joins Stead Lane to a service road running behind the houses on the south side of the road. The photographs show that the alleyway emerges onto the pavement between low garden walls but with additional vegetation which would conceal a child until he was very close to the pavement. Further photographs illustrate the view available to a driver of an eastbound vehicle as she approaches Rothesay Terrace on her left and the alleyway on her right. For a driver travelling in the same direction as was the defendant, the daytime unobstructed field view of the whole of the carriageway at the point of the accident is about 73m. A pedestrian has a very slightly longer view of cars coming from his left. A driver would have an uninterrupted view of 50m of the whole of the southern pavement to the mouth of the alleyway.[11]The road is illuminated by street lamps. It was dark at the time of the accident. The street lamp at the mouth of the alleyway was not working at the time of the accident but those on either side were. The weather was fine and the road dry.

The Eyewitness Evidence

[12]Jason Martin explained in his statement that he, Dean Straughan and the claimant were out together walking towards Stead Lane intending to go to a sweetshop in Rothesay Terrace. They came to the point where the service road joins Stead Lane when Dean Straughan said he thought it was quicker to go down the service road to get to Rothesay Terrace than along Stead Lane. He and the claimant went down the service road while Jason Martin continued along Stead Lane. He crossed to the north side of Stead Lane and walked towards Rothesay Terrace. There is a telephone box close to the corner of Rothesay Terrace which he had reached when he heard a loud bang. He saw the claimant flying through the air. Jason Martin’s description indicates that he was unaware of any cars passing him before he heard the sound of an impact. At the same time as he saw the claimant in the air, he noticed Dean Straughan standing at the end of the alleyway but then turn round and run away. He noted that he could see well even though it was dark.[13]Dean Straughan’s statement to the police explains that he and the claimant walked along the service road and turned left into the alleyway to go towards Stead Lane. He continued:
“As we approached the end of the buildings all of a sudden Cory who had been walking on my right hand side started to sprint away into the main road, without looking. He did not stop, he just ran straight out into the main road. I could see some car headlights coming from our left. I shouted Cory’s name twice. He didn’t seem to take any notice. He kept on running away from me. I could see that the car coming from our left was going to hit Cory so I turned and ran away because I was scared of what was going to happen.”
Dean Straughan confirmed that he could see well. He also noticed Jason Martin at the corner of Rothesay terrace. In his more recent statement, he confirmed that he soon returned to the scene and saw the claimant in the road with Jason Martin next to him.[14]Mr Cavens’ account of the accident given the following day was in these terms:
“At about 7.45 pm we were travelling east on Stead Lane from the centre of Bedlington towards the Terrier Public House. I was following a Red Audi 80, I cannot recall how long I had been behind it we were both travelling at a moderate speed, below 30 mph. As we passed the junction with Rothesay Terrace I saw the brake lights come on, on the Audi, and what I initially thought was a bag of rubbish come up over the drivers side of the Audi, and land in the road in front of me. I braked and swerved to my left to avoid hitting it, I had braked that hard that I skidded to a halt behind the now stationary Audi. I did not hit what was in the road. I immediately looked in my drivers door mirror and realised what was lying on the road surface was a child’s body … Prior to the actual impact I did not see where the child had come from.”
His passenger, Christopher Carr, remembered the following day that as they passed the junction with Rothesay Terrace he saw the brake lights of the Audi come on and ‘more or less at the same time something come through the air, over the top of the driver’s side of the Audi.’[15]At the scene of the accident the defendant said:
“I was driving down and there was just a figure of a person in front. I saw his face in the light and he was like crouched, standing with his arms out like he had run from somewhere. He was just there. I couldn’t stop because he was right in front of us. I slammed my brakes on but couldn’t stop”
The following day in interview the defendant expanded her account:
“PC116: What can you recall about the collision? Butcher: I had been to Morpeth to drop my husband off. On route back I had stopped at the Chinese take away on Glebe Road to pick up a meal. I then drove down past the Police Station onto Beech Grove past Hirst Head and on to Allgood Terrace. I had followed another car down and it indicated to turn left down Rothesay Terrace. I slowed down behind it as it turned, and then I gently accelerated away again. I was intending to continue eastbound on Stead Lane to go home. As I got to the east side of the Rothesay Terrace junction I was aware of a person in the carriageway directly to my offside. It appeared to be at a strange angle as if he had slipped and [was] trying to regain his footing. He didn’t appear to be at his normal height. His face and head appeared to be level with my offside headlamp. He appeared to be attempting to turn back. It is difficult to describe as it all happened so quickly. I think that as I braked I felt the bump. I didn’t have enough time to steer. After the impact I saw the body go down on to the road. I then stopped and another car came to a stop behind me. We got out of the car and ran back to the body lying in the road, very shortly afterwards a police panda car was at the scene within seconds… PC116: Do you know where the child came from prior to the impact? Butcher: I didn’t have a clue where he came from. PC116: Did you have your headlamps on at the time? Butcher: Yes I had dipped beam on. PC116: Other than it being dark how would you describe visibility. Butcher It was dark but it was dry and clear.”
The defendant went on to confirm that there was no oncoming vehicle at the time and that a police panda car came on the scene by chance very shortly after the collision. She indicated that she was not distracted by her children and was in no hurry. In answer to a question about her speed the defendant said that she could not recall it but had ‘slowed down for the car that had turned left into Rothesay Terrace and I had just started to re-accelerate again’. She did not skid to a halt. The Audi had anti-lock brakes. The defendant confirmed that she had consumed no alcohol. She had a cough and had taken penicillin earlier in the day but that did not make her drowsy. At the end of the interview the defendant summarised the position thus:
“the actual incident happened in a split second. I could not have avoided hitting him. He was just there. I didn’t have any time to do anything.”
PC116: Do you know where the child came from prior to the impact? PC116: Did you have your headlamps on at the time? Butcher It was dark but it was dry and clear.”

PC116: Did you have your headlamps on at the time?

[16]The defendant’s statement made in these proceedings adds a number of features. She said that it was not normal to find children in Stead Lane. She was travelling at less than 30 mph and thought she had changed down from fourth to second gear as the car ahead of her turned left into Rothesay Terrace. She then moved into third gear as she accelerated. The defendant confirmed that the claimant was directly in front of her front offside headlight when she first saw him. As she braked she felt the impact and struck the left side of the claimant.[17]In her oral evidence, the defendant acknowledged that she was aware that there were sweetshops in the area and, in general terms, that there might be pedestrians around. She described following the car in front of her at about a car’s length, although she had first indicated a distance by reference to fixed points in the court which, if accurate, would suggest that she was tailgating it. It was unclear whether by ‘a car’s length’ she meant a distance of 15 feet or thereabouts or far enough behind the car in front to allow another car to fit between them. My conclusion is that the defendant was driving normally behind the car ahead of her. Asked for the first time nine years after the accident whether she could remember seeing Jason Martin as she approached the junction of Rothesay Terrace, the defendant, unsurprisingly, could not remember. She also had no recollection of seeing Dean Straughan at the side of the road, or running off. That too was not surprising. Indeed, given that she did not see the claimant until he was in front of her it is inevitable. The defendant gave a vivid demonstration of what she had meant by the claimant being crouched with his arms out as if he had slipped. He was at an angle with his left side orientated towards her, looking towards her with both hands raised. The impression was that his knees were bent and that he was leaning back to some extent. He was stationary at all times that she had him in view before impact.

The Expert Evidence

[18]Both Mr Sorton for the claimant and Mr Parkin for the defendant produced evidence from research studies of the speed at which children run. There were some differences between them but in the end those differences boiled down to a few hundredths of seconds. Since the research data explored averages and children vary, such fine distinctions are immaterial for the purposes of this claim. The best that the experts could say (and on this they agreed) is that an average child of the claimant’s age running at full tilt would cover the distance from the rear edge of the pavement to the point of impact in 1.8 seconds. There was no evidence of the claimant’s running ability, nor even his height and weight. Both might have had a bearing on his speed relative to the average. The time indicated assumes that he was running at full tilt when he first emerged onto the pavement and was still running at full tilt when he was hit by the car. There is no reason to doubt the evidence of Dean Straughan that the claimant was running fast when he emerged onto the pavement. For a split second he may have been visible in the mouth of the alleyway before beginning to cross the pavement. That was Mr Sorton’s evidence, although Mr Parkin thought it unreal. However, there is also no reason to doubt that the claimant was stationary when the defendant first saw him. Thus he was not running at full tilt when he was hit. He had slowed down and stopped. The experts were unable to provide research data of the claimant’s likely rate of deceleration, but agreed that the time between his beginning to cross the pavement and stopping had to be more than 1.8 seconds. On the evidence, my conclusion is that the claimant was probably in view for at least two seconds before he stopped. There is no way of knowing for how long he had been stopped before the defendant noticed him. Dean Straughan did not see the impact because, appreciating that his friend was going to be hit, he turned away. But the strong impression from his evidence is that he turned away only shortly before the impact, having had time to call out to the claimant first.[19]The experts produced various pieces of research to suggest a driver’s likely reaction time in the circumstances of this accident, namely being confronted by a child in the road. Both regarded the reaction time factored into stopping distances found in the Highway Code as unrealistic. The Highway Code allows 0.68 of a second for reaction. But that was based upon tests where subjects held a button in their hands and were asked to react to a visual event. The joint view was that such a test does not replicate the type of reaction necessary when driving a car. The experts explained that reaction times vary and produced a range of between 1 and 1.5 seconds in the circumstances of this case. Mr Sorton’s view, based on the experimental research of Wallrich and Schindler Wallrich M and Schindler A, 1987, “The Benefit of Anti-Lock Braking System (SACS) for Average drivers in Critical Driving Situations”, report for Lucus Girdling by TUBRhineland. was that the reaction time before braking in this case would have been about 1 second from the moment of seeing the claimant. He explained that braking would be an instinctive reaction and so would be undertaken slightly more quickly then steering, which calls for a judgment as to which way to steer. I remind myself that the defendant’s evidence, which I accept, was that she did not have time to steer. Mr Parkin’s view was that the average reaction time is between 1 and 1.5 seconds. He did not disagree with the research, although it was not concerned directly with the issue, but thought it unwise to present a single figure as the likely reaction time. Experience showed there was a range amongst those paying attention who were not affected, for example, by alcohol or tiredness. Mr Sorton accepted in his evidence that the reaction time could be as much as 1.5 seconds. As I understood his evidence, he was not suggesting that a reaction time of that order would be outside the reasonable range expected of competent and careful drivers.[20]The expert evidence of braking distance was agreed. It can be taken conveniently with the experts’ views of the speed of the car at the point of impact, judged by the distance that the claimant was thrown. The evidence of Mr Cavens, supported by the defendant herself, was that she and his car behind were travelling at less than 30mph along the road. I accept that evidence. Mr Carr put the speed at about 30. I also accept that the defendant slowed to allow the car ahead of her to turn left, but then accelerated before seeing the claimant and braking. Given the speeds involved, I accept that the claimant changed down as she slowed and changed up as she accelerated. I conclude from the eyewitness evidence that the probable speed of the defendant’s car when she saw the claimant was about 25 mph. Her evidence was that the impact with the claimant coincided with her getting her foot to the brake. Mr Carr’s evidence supports that. My conclusion from the eyewitness evidence, therefore, is that the speed of the Audi at the point of impact was about 25 mph. The experts were asked to calculate the car’s speed at the point of impact using the distance by which the claimant was projected through the air. The precise figures that emerged (applying a recognised formula) depended upon detail of the claimant’s path and movement at the time of impact about which there are uncertainties. They nonetheless provided strong support for the suggestion that the speed of the Audi at the point of impact was about 25mph. They did nothing to contradict or even question that impression given by the witnesses. The experts then went on to agree that at 25 mph, in the light of the nature of the road that once the brakes were engaged, the Audi would come to a halt after 8.5m.[21]A vehicle travelling at 25mph covers 11.2m per second. Therefore, the overall stopping distance of the Audi would be between 19.7m and 25.3m to reflect a range of 1 to 1.5 seconds for reaction and adding in the pure braking distance. There are two conclusions that can confidently be drawn from these figures. The first is that if the impact with the claimant occurred at the same time as the defendant got her foot to the brake, and I accept her evidence on that point, then it follows that she was probably somewhere between 11.2m and 16.8m from him when she first saw him. Secondly, had she seen him at a distance of 25.3m she would have been able to stop before the impact. That figure allows 1.5 seconds for reaction, in which time the Audi would have covered 16.8m together with the 8.5m necessary to bring the car to a halt.[22]The experts did not provide a precise time that it would take for the Audi to come to a halt from 25mph once the brakes were applied. Mr Sorton gave the figure for 26mph as 0.79 of a second. A figure of about 0.75 of a second at the speed at which the defendant’s car was travelling would not be an unreasonable estimate. It follows that even allowing a reaction time of 1.5 seconds, the Audi would have come to a halt in 2.25 seconds.[23]On the question of lighting, two points emerged from the expert evidence. First, despite the absence of one of the street lights at the scene, the luminosity was good such that there would have been no difficulty in seeing a pedestrian on the pavement, in the road or running towards it. It was not suggested that the fact that one street light was broken provided any explanation of why the defendant did not see the claimant sooner. The experts were also agreed that the dipped headlights of the car would provide illumination at up to about 30m. However because they agreed that the defendant had an uninterrupted view of 50m which included the point at which the claimant emerged onto the pavement and that the lighting was otherwise good enough for the claimant to be visible, they did not think that the headlights provided the defendant with the first opportunity to see the claimant.[24]As part of their consideration of the circumstances of the accident, the experts put their minds to the question of the direction of the claimant’s travel at the time he was struck by the Audi. Was he still running towards the north kerb, or was he trying to retrace his steps towards the south kerb in an attempt to get out of the path of the car? The position of the claimant after the accident did not deliver a clear answer to those questions. The defendant’s account of the accident has consistently been that the claimant was in effect stopped in front of her car. There is nothing in the expert evidence which calls that into question. Furthermore, the position in which the claimant came to rest after the impact is entirely consistent with his being struck by the front offside headlight of the Audi and making contact with the leading edge of the bonnet just above the headlight. That is the damage visible to the Audi in the available photographs and accords with the defendant’s description of what happened. The absence of other damage to the Audi is consistent with the claimant being in a crouched position at the time of impact. Had he been standing up different and further damage to the Audi would have been expected. The experts further agreed that the claimant would have been thrown into the air and passed down the driver’s side of the Audi. He could not have gone over the top of the car.

Discussion

[25]The most important features of the evidence which I accept are these.• First, the defendant only saw the claimant when he was stopped in the position she described directly in front of her;• Second, the defendant only had time to react to the extent of getting her foot to the brake coincidentally with impact. There was no time to steer;• Third, prior to her seeing him, the claimant had run across the pavement from the defendant’s offside, crossed the westbound carriageway and slowed down to a stop before she saw him directly in her path. That process had taken at least 2 seconds. Since her reaction time was likely to have been between 1 and 1.5 seconds, it is probable that the claimant had emerged from the alleyway at least 3 seconds before the impact and possibly more;• Fourth, there was no oncoming vehicle which obscured the view of the defendant or dazzled her with its headlights;• Fifth, the defendant had an uninterrupted view from 50m which included the mouth of the alleyway;• Sixth, immediately before the defendant saw the claimant she accelerated and changed up a gear because the car ahead of her had ceased to impede her path as it turned into Rothesay Terrace.[26]The critical question is why the defendant did not see the claimant during the period of at least two seconds that he was there to be seen before she noticed him. Mr de Jehan submits that it was both natural and reasonable for the defendant’s attention to have been focussed on the car ahead of her turning left until it completely cleared her path. In short, he submits that the defendant can not reasonably be criticised for concentrating on the car ahead, which could present a hazard if it stopped in her path, with the result that she did not notice the claimant until he was stationary in her path. He submits that there was no time for the defendant reasonably to react sooner than she did.[27]The defendant’s own evidence is not consistent with this suggestion. The defendant did not say that she was looking at the turning car and that on returning her attention to the road ahead the claimant was suddenly there. More importantly, the defendant’s evidence was that prior to seeing the claimant she had accelerated and changed up a gear. It would be very unwise for a driver to undertake those actions whilst looking at a vehicle disappearing down a side turning, rather than looking ahead. It is, in my judgment, proper to conclude that the turning vehicle was no longer of concern to the defendant precisely because she accelerated in the way she describes. In doing so, her attention should have been on the road ahead, but it was not. Had it been, the claimant would have been there to be seen for at least 2 seconds before the defendant in fact saw him. It would not be fair to conclude that a reasonably careful driver would necessarily pick up a moving object coming towards the road in the first instant, particularly when it was not broad daylight. However, as the evidence of the experts demonstrated, had the defendant been able to get her foot to the brakes 0.75 of a second earlier she would have been able to stop before hitting the claimant. There is no reasonable explanation why the defendant failed to see him for at least that time before she did.[28]The defendant’s failure to see the claimant at all before he had stopped in her path constituted a failure to take reasonable care by failing to keep a proper lookout.[29]It was not suggested by Mr de Jehan that if a breach of duty was established there was a separate argument that the claimant failed to establish causation. My conclusion is that had the defendant been keeping a proper lookout and braked sooner, the accident would probably have been avoided.[30]Liability is established. Judgment will be entered for the claimant with damages to be assessed. There are two final observations that are called for. The first is that the defendant was a patently honest witness. At no stage did she seek to resile from those parts of her original account which, on analysis, were unhelpful to her case. She did not try to explain away any of the difficulties or adapt her evidence to provide an account more consistent with there being no liability. That was impressive. Secondly, as noted already, no allegation of contributory negligence was made against the claimant because of his age. In the circumstances he will recover 100% of his damages from the defendant’s insurers. Had the same accident happened involving an adult pedestrian, contributory negligence would have been in the order of 75%.