FLR (A child by her mother and litigation friend MLR) v Dr Shanthi Chandran
| Jurisdiction | England & Wales |
| Judge | Dexter Dias |
| Judgment Date | 05 July 2023 |
| Neutral Citation | [2023] EWHC 1671 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-001453 |
[2023] EWHC 1671 (KB)
Dexter Dias KC
sitting as a Deputy High Court Judge
Case No: QB-2021-001453
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mooney KC (instructed by Boyes Turner, Solicitors) for the Claimant
Mr Compton (instructed by Clyde & Co.) for the Defendant
Hearing dates: 18, 19, 20, 21 April 2023
Approved Judgment
This judgment was handed down remotely on 5 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dexter Dias KC:
(sitting as a Deputy High Court Judge)
This is the judgment of the court.
The text is divided in 11 sections and an appendix to assist parties and the public follow the court's line of reasoning. The claimant is represented by Mr Mooney KC and the defendant by Mr Compton of counsel. The court is grateful to both counsel for their contribution to this case.
The name of the claimant has been anonymised pursuant to CPR Rule 39.2(4) to protect her right to respect for her private and family life under Article 8 of the European Convention on Human Rights (“ECHR”). While acknowledging the vital importance of the open justice principle and the “public watchdog” function of the press ( Thoma v Luxembourg [2001] ECHR 240 at [5]), I judge that the privacy and private life imperatives here significantly outweigh the Article 10 ECHR freedom of expression rights of the press and public. The claimant will be known as “FLR” and her mother and litigation friend as “MLR”.
(B1234, §XX) refers to the trial bundle page and (internal) paragraph.
(CS/DS, §XX) refers to claimant/defendant skeleton argument and paragraph.
§I. INTRODUCTION
| Section | Contents | Paragraphs |
| I. | Introduction | 4–11 |
| II. | Law (A): negligence and Highway Code | 12–15 |
| III. | Law (B): fact-finding | 16 |
| IV. | Issues | 17 |
| V. | Expert evidence | 18–34 |
| VI. | Evidence of Dr Chandran | 35–69 |
| VII. | Reasonable speed | 70–76 |
| VIII. | Findings of fact: Dr Chandran | 77–80 |
| IX. | Causation analysis | 81–108 |
| X. | Contribution and apportionment | 109–116 |
| XI. | Disposal | 117–123 |
| Appendix | Extracts of Highway Code (in detail) |
In this claim for personal injury, the claimant was 12 years old at the time of the road traffic collision that changed her life.
On 15 January 2018, the claimant left her home in Oxfordshire to go to school on a dark and rainy Monday morning. Her route required her to cross the Buckingham Road at a controlled pedestrian crossing. At about 7.20am, she stepped into the northbound carriageway when she was struck by a vehicle.
This was a BMW i3 Range Extender driven by the defendant in this case Dr Shanthi Chandran. The child's skull struck the nearside windscreen of the car, causing the glass to shatter and the claimant to sustain serious head injury. This caused a subarachnoid bleed to the brain. She also sustained a left collarbone fracture. As noted by the attending police officer PC Vale, with the force of the collision, the child's body was “thrown” or carried 11 metres beyond the pedestrian crossing and almost to the entrance of a nearby petrol station (B147). The claimant has been left with cognitive and psychiatric problems since the incident and suffers from headaches. She is at increased risk of epilepsy.
The defendant is a consultant physician who was on her way to work at Milton Keynes hospital. Dr Chandran told PC Vale that she was driving looking ahead when she became aware of a “thud” and her window “smashed”. She immediately stopped her car and saw that a young girl had been struck. It was the head and body of the child that smashed Dr Chandran's window. The police found what they call a “bullseye” fracture on the front left of the windscreen, a radiating fracture of the protective glass, something like a spider's web, caused by the child's body.
The claimant's case is that the incident was caused by the negligence of the Dr Chandran. The defendant was driving too fast given the prevailing conditions and if she were driving at a safe and reasonable speed, the collision would not have happened. The defendant states that the incident was caused by the claimant stepping out into the road when the traffic light was green for vehicles to proceed. Dr Chandran was driving at 28 mph (the pleaded and agreed speed), which was below the applicable speed limit of 30 mph and appropriate for the conditions. The defendant was not reported by the police for any criminal offences. She denies breach of duty (negligence) and causation. Dr Chandran maintains that the liability for this incident lies fully with the claimant. While primary liability is firmly denied, the defendant in any event submits that the claimant was negligent.
Therefore, this is a liability-only trial. The court's task is to make findings of fact about what happened and thereby determine where the liability for the serious injuries to the claimant lies, whether fully with the claimant, fully with the defendant, or with a contribution from them both.
The court received an electronic trial bundle (in two parts) extending to 757 pages, plus video footage from the defendant's dashboard camera and from the CCTV system of the nearby Domino's Pizza restaurant. The court heard live evidence from two instructed accident reconstruction experts, Mr Hill and Ms Eyres, and then from Dr Chandran herself.
Let me be clear about my approach to evidence for the purposes of this judgment. It is informed heavily by that of the Court of Appeal in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407. The court stated at [58] that a judgment “is not a summing-up in which every possibly relevant piece of evidence must be mentioned” (Proposition 4). Therefore, I focus on what has been essential to my determinations in this case.
§II. LAW (A): Negligence and Highway Code
The Highway Code (“the Code”) was introduced in the United Kingdom in 1931 and originally cost one old penny. Even though there was just a fraction of motor vehicles compared to today (2 million compared to 27 million), there were 7000 fatalities a year ( History of road safety, The Highway Code and the driving test (UK Government, 2019)). 1 The Code, initially issued by the Ministry of Transport, was the national response to regulate how drivers and other road users should use public roads to make highways safer. The Code is regularly updated as our collective understanding of road safety improves. For the purposes of this case, the applicable version is dated 21 October 2017. While I set out the relevant details of the Highway Code in full in the Appendix to this judgment, put very shortly, the following precepts can be gleaned from the Code:
• Rule 125: the maximum speed stated by signage indicates the “absolute maximum speed” for the particular stretch of road. But adjustments must be made for prevailing conditions and hazards, including other road users and “particularly” children;
• Rule 146: drivers should particularly anticipate what children might do (by suddenly stepping out into the road et cetera) and drivers should be prepared to stop at pedestrian crossings or traffic lights as necessary;
• Rules 204 and 207: drivers should be particularly cautious about children, who are among the most vulnerable road users;
• Rule 205: cautions drivers to drive at a speed suitable to the conditions and with “the safety of children in mind”;
• Rule 206: cautions drivers to drive carefully in residential areas or when driving past bus stops.
The general law of negligence (duty, breach, causation, loss and damage) as it applies to road traffic collisions has been set out helpfully by the courts in several decisions (for a recent exposition see this court in AB v Main [2015] EWHC 3183 (QB)
at [8]–[15]). I reduce the applicable the law to the following propositions:(1) The claimant must prove breach of duty on a balance of probabilities;
(2) The standard is the “competent and experienced driver” ( Nettleship v Weston [1971] 2 QB 691); this is the reasonable prudent driver, not a counsel of perfection or an ideal, infallible driver; that is unrealistic, unfair and not in the public interest, setting the standard unattainably and exactingly high;
(3) The duty is to take reasonable care;
(4) A motor vehicle is a potentially lethal device or “weapon” ( Lunt v Khelifa [2002] EWCA Civ 801, per Latham LJ at [20]);
(5) Children can be unpredictable, imprudent and are highly vulnerable; therefore, caution must be exercised when they are in the vicinity of the road, and drivers should drive with children in mind and anticipate how they might behave ( Moore v Pointer [1975] RTR 127, per Buckley LJ).
(6) A reasonable prudent driver knows the provisions of the Highway Code;
(7) The trial judge should not make findings of fact of unwarranted precision – real life is not like that ( Lambert v Clayton [2009] EWCA Civ 237 per Smith LJ at [35]–[39];
(8) Such precaution extends to not overly relying on the evidence of accident reconstruction experts ( Stewart v Glaze [2009] EWHC 704 at [5] and [8]–[10] per Coulson J (as then was)), but instead such expert evidence must be assessed in the context of the evidence as a whole.
I add finally that I derive next to no assistance from previous decisions on the facts in previous trials of road traffic collisions. These are intensely fact-specific decisions. They do not help. In HA (Iraq) v SSHD [2022] 1 WLR 3784, Lord Hamblen stated at [96]:
“There is no such thing as a “factual precedent” … findings made by a tribunal in one case have no authoritative status in a different case… the tribunal has to make its own evaluation...
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FLR (a child at settlement, appearing by MLR, her mother and Litigation Friend) v Dr Shanthi Chandran
...I handed down on 5 July 2023 following the contested trial before me. That other judgment is published with the neutral citation of [2023] EWHC 1671 (KB). 2 This is an application for the court to give its approval, pursuant to the court's inherent jurisdiction, of a settlement of damages ......