Barrow v Merrett

JurisdictionEngland & Wales
JudgeLady Justice Elisabeth Laing,Lord Justice Bean,Lady Justice Macur
Judgment Date16 September 2022
Neutral Citation[2022] EWCA Civ 1241
Docket NumberCase Nos: CA-2021-000618 AND CA-2021-000618-B
CourtCourt of Appeal (Civil Division)
Barrow (By His Litigation Friend and Grandfather Mr Hugh Barrow) & Ors
Merrett and Anr

[2022] EWCA Civ 1241


Lady Justice Macur

Lord Justice Bean


Lady Justice Elisabeth Laing

Case Nos: CA-2021-000618 AND CA-2021-000618-B



Richard Hermer QC, sitting as a Deputy Judge of the High Court

[2021] EWHC 792 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Robert Weir QC and James Burton (instructed by Moore Barlow LLP) for the Appellants

Derek O'Sullivan QC (instructed by BLM Law) for the Respondents

Hearing date: 29 June 2022

Approved Judgment

This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10.40am on 16 September 2022.

Lady Justice Elisabeth Laing



Felix Barrow (‘A’) was seriously injured on 7 October 2015 when he was crossing the road outside his house. A car driven by Mrs Rosemary Merrett (‘R’) collided with him. He made a claim for damages for negligence. After a hearing lasting five days (1–5 March 2021), Richard Hermer QC, sitting as a Deputy Judge of the High Court (‘the Judge’), dismissed that claim, in a reserved judgment which he handed down on 31 March 2021. As the Judge said, at the start of his judgment, there was ‘no dispute that what occurred was a tragedy with lasting impact on many involved, but above all on Felix who sustained life-changing injuries’. This is an appeal from the Judge's decision. Stuart-Smith LJ gave permission to appeal. He observed that the grounds of appeal were ‘just arguable’.


The trial was recorded on Livenote. The parties and the Judge were provided with a transcript of each day's hearing.


A was represented on the appeal by Mr Weir QC and Mr Burton. R was represented by Mr O'Sullivan QC. All counsel, apart from Mr Weir, appeared below. Ms Susan Rodway QC led Mr Burton for A at the trial. I thank counsel for their written and oral submissions.


There are three grounds of appeal.

i. The Judge erred in law by departing from ‘the guidance and principles’ in paragraph 16 of Gestmin SGPS (SA) v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) (‘ Gestmin’) and other recent cases. He failed to have ‘proper or any regard’ to objective or undisputed evidence and failed to test the evidence of the witnesses against that evidence, but, instead, made findings of fact which conflicted with the objective evidence, without acknowledging that conflict.

ii. The Judge did not assess the evidence in a fair way. He relied on a theory of R's accident reconstruction expert, Mr Johnston (‘the wraparound theory’) which was not pleaded, not put to the experts on Accident and Emergency Medicine (‘A&E’), not agreed by the accident reconstruction experts, and contradicted by R's evidence. The judgment is unjust.

iii. The Judge was irrational to reject, and gave inadequate reasons for rejecting, the evidence of Nicholas Stannard and was irrational to accept, and gave inadequate reasons for accepting, instead, the evidence of Alexander Gent.


Paragraph references are to paragraphs in the Judge's judgment, or, to the paragraphs in the parties' skeleton arguments, or in the authorities, as the case may be, unless I say otherwise.

The judgment


The grounds of appeal give a flavour of the detailed and unsparing attack on the Judge's reasoning, and on his approach to the trial, which Mr Weir developed in his skeleton argument and in his oral submissions. I make no apology for the fact that I have summarised his judgment in considerably more detail than should be necessary on an appeal.


As the Judge explained (paragraph 11) he divided the substance of the judgment into seven parts: the factual background, the procedural history, the law, an analysis of the approach he should take to the evidence, a summary of the lay and of the expert evidence, and his findings of fact and conclusions.


The Judge noted in his introduction (paragraph 3) that although the parties relied on a good deal of expert evidence, it was soon clear that the ‘core dispute’ turned on ‘two closely related core questions of fact’.

i. Was A running or walking across the road immediately before the accident?

ii. What was his likely body position at time of impact?


He added that ‘the parties agree[d]’ that the answers to those two questions could unlock the dispute about who was responsible for the accident (paragraph 4). In paragraphs 5 and 6, he described the parties' answers to those questions.

i. A's answer was that A was walking across the road when he slipped backwards in the middle of the road. It took him several seconds to start to get to his feet. While he was doing that, he was hit by R's car. R accepted that if that account was accurate, A was bound to succeed because R would have had reasonable time to see that A was in the road, and to avoid him. Indeed, R acknowledged that if A had run and then slipped backwards, R would still be liable because A should have been obvious to R and a reasonable driver could have avoided the collision (paragraph 5).

ii. R's answer was that A was running across the road when the accident happened. It was likely that he slipped forwards, and, moments later, was hit by the car. A accepted that, if those facts were established, the claim would fail, because R would not have seen A until it was too late to avoid him (paragraph 6).


In paragraphs 7–11 the Judge explained how difficult it is for litigants and the courts to find out what has happened from evidence about fast-moving and traumatic events. In many cases, ‘it is simply not possible to conclude with absolute precision what occurred’. The court did not have to be certain, but had to come to a ‘reasoned view as to the most probable explanation’. In many accidents, there was a range of ‘confounding factors’ which make a ‘precise reconstruction of events impossible’. This was such a case. The event had only lasted a few seconds. It was not recorded in any way. The few eye witnesses saw it from different positions. There was little ‘hard evidence’, such as ‘extensive damage to the car that would enable ready reconstruction’. A's injuries did not give clear answers to the core questions, nor, for reasons which the Judge was to explain, did the evidence of the accident reconstruction experts (paragraph 8).


In order to find the ‘most probable’ answers to the core questions, the court had to look at the available evidence as a whole. The court had to understand the layout of the scene, and to ‘identify any objective facts which might act as lodestars by which more subjective opinion and recollection can be tested’. The court had to scrutinise the evidence of the witnesses of fact and of the experts, in court and in their written statement. The court also had to apply ‘a fair dose of common sense’ (paragraph 9).


The background facts were that just before 8am on 7 October 2015, A who was 11 years old, had set off to walk to school with his best friend, Nicholas Stannard. He had just started at secondary school. His parents, who had ‘instilled into him a need always to take care when crossing roads’ now allowed him to walk to school with his friends. A lived on a long road with a single carriageway. Near his house the road is called Hill Pound Road, and there is only a pavement on the side of the road opposite his house. The speed limit is 30mph and is clearly marked. A little further south, the speed limit is 40 mph. Nicholas Stannard had been dropped at A's house that morning. They set off from A's house by crossing the road to the pavement on the opposite side. When they got to the pavement, A told Nicholas Stannard that he had forgotten his rugby boots, and that he needed to go home to get them. He re-crossed the road while Nicholas Stannard waited for him on the pavement.


As A came back, R was driving north along the road towards A's house. The pavement was on the left of her car. She noticed Nicholas Stannard on the pavement as she got closer to A's house. She also saw traffic coming towards her on the opposite side of the road. What happened next was in dispute, but it was agreed that at about the point when R drew level with Nicholas Stannard, her car hit A on the left side of his body, just over the centre line of the road, that is, just on the side of the road on which R was driving (paragraph 15). The impact threw A's body about 8 metres to the north (that is, in the same direction as R's car was travelling), and about 3 metres away from the offside of the car (paragraph 16).


Nicholas Stannard told A's parents what had happened. A was unconscious in the road. They called the emergency services. The police closed the road and started an investigation, led by PC Giles. A was evacuated to hospital by air ambulance. A has been left with ‘the lifelong consequences of the severe physiological and neurological injuries he sustained’ (paragraph 19).


R's car was not very much damaged. There was some dispute about the cause of some of that damage. There were only three areas of minor damage on the front offside of the car, which the Judge described. Two photographs in the judgment showed that damage (figures 1 and 2). Figure 3 was a diagram by Mr Johnston showing where the front and offside of the car were damaged (paragraph 20).


In paragraph 23, the Judge summarised A's pleaded claim. It was that as A was walking across the road towards Nicholas Stannard, he slipped. As he was getting to his feet, he was hit by R's car. The allegations of negligence really amounted to ‘an assertion that [A's] position in the road should have been obvious such that a reasonable driver would have seen him in time to avoid a collision’. The defence was that a reasonable driver could...

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