Master Caine Steven John Ellis (by his Grandmother and Litigation Friend, Janet Titley) v Mr Paul Kelly
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWHC 2031 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: C90BM237 |
| Date | 31 July 2018 |
[2018] EWHC 2031 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre,
33 Bull Street, Birmingham, B4 6DS
Handed down at the Royal Courts of Justice
Mrs Justice Yip DBE
Case No: C90BM237
and
Mr Chris Bright QC (instructed by Jonas Roy Bloom) for the Claimant
Mr Julian Matthews (instructed by Kennedys) for the Defendant
Mr Karl Hirst (instructed by Anthony Collins Solicitors) for the Part 20 Defendant
Hearing dates: 18 & 19 July 2018
at Birmingham Civil Justice Centre, The Priory Courts, 33 Bull Street, Birmingham, B4 6DS
Judgment Approved
On 20 September 2008, Caine Ellis, then aged 8 years 8 months, was knocked down by a car driven by the defendant, Mr Kelly. He suffered a severe brain injury, as a result of which he is unlikely to be able to take up employment or to live independently. Mr Kelly's insurers admit primary liability but contend that a finding of contributory negligence should be made. Further, they claim a contribution from Caine's mother, Mrs Ellis, alleging that she bears some responsibility for allowing Caine to go out without proper supervision. I am required to determine whether Caine and/or Mrs Ellis should bear any liability.
Factual background
Caine comes from a close family. His grandmother, Mrs Titley, and other family members live in Acocks Green, Birmingham. Caine frequently visited and enjoyed playing with his cousins. His aunt's house was on Tibland Road. This is on a quiet estate, the residents of which make up a tight-knit community and look out for each other. Children regularly play out on the quiet residential roads.
Tibland Road leads onto Pollard Road which comes off Gospel Lane, which is where the accident occurred. Gospel Lane is a through road but not a busy one. On one side of Gospel Lane is Fox Hollies Park, which has a children's playground and a fishing pond. On the other side is a skateboard park, an open playing field and a corner shop which sells (amongst other things) sweets and ice-creams. Unsurprisingly then, this part of Gospel Lane attracts many children.
I heard evidence from Mrs Ellis, Mrs Titley and Caine's cousin, Jessica Randall. The clear impression I had was that Caine was a normal 8-year-old boy. He was close to Jessica who is a year younger than him. Jessica is now 17. She is a polite and sensible young woman. It seemed to me that the children of the family were generally well-behaved. There was some suggestion that Caine had some difficulties at school. Mrs Ellis told me that he found reading and writing difficult but there were no great problems. Jessica confirmed that Caine had not been boisterous or easily distracted, to her knowledge.
From that summer or perhaps a little before, Caine and Jessica had been allowed to go out without adult supervision. They were allowed to go to the Gospel Lane area if they were with Jessica's older brother Cyrus (then aged 11 years 2 months) and/or another cousin Chloe (then aged 10 years 3 months). The children were always told to stay together and encouraged to take a mobile phone to maintain contact with their parents. If the older cousins were not with them, Caine and Jessica were allowed only to be in a closely defined area outside the house between two lampposts.
On the day of the accident, Caine was at his aunt's house with his mother and two younger brothers. His other cousins, including Chloe, had gone to Fox Hollies Park. Cyrus, Caine and Jessica asked to go to the park and they were allowed to. As usual, Mrs Ellis told Caine to be careful, watch the road and stay with his cousins. The children walked to the park and joined Chloe and the others. They were playing in the children's playground.
After they had been there a little while, Cyrus announced that he was going to see a friend at the skateboard park. Caine stayed with the girls but then said he wanted to go to the skateboard park to be with Cyrus. Chloe told Caine not to go and said she would tell his mother. He went anyway.
In her statement, Jessica said “Chloe and I thought that he would be alright so we carried on playing on the swings”. Their plan was to meet up with Caine and Cyrus once they were ready to go. Jessica said “Cyrus would have to come back with us because Dad would have gone mad with him for allowing us to split up.” Jessica was clear in her recollection that Cyrus had never gone off on his own before. This was supported by Mrs Ellis and Mrs Titley. I was told that if Cyrus did want to be with his own friends without his younger cousins in tow he would say so. Jessica and Caine would then have to stay “lamppost to lamppost”.
Bearing in mind Jessica was then only 7 years old and is now 17, I am not sure it was entirely realistic to cross-examine her about her decision-making in response to the unfolding events. However, she did remember expecting Caine to be alright and staying on the swings with Chloe. As she swung up in the air, she could see Caine walking out of the park. He crossed at the zebra crossing immediately outside the park and then turned left towards the entrance to the skateboard park rather than right towards the shop. A little time later, they heard screaming. When they went to investigate they found that Caine had been run over on Gospel Lane. Cyrus was not around.
The accident
There is no direct evidence as to what Caine did between Jessica seeing him turning left off the crossing and the moments before the collision. The accident happened when he ran into the road from the direction of the corner shop. There is no evidence that Caine had been intending to go to the shop or that he had any money for sweets.
I infer that the most likely explanation is that Caine went to the skateboard park but could not find Cyrus. He probably went to look for him at the shop but again did not find him. It seems likely that he would then have recognised that he had become separated from all his cousins, contrary to the rule to stick together, and that he decided that he should get back to Chloe and Jessica in the park.
This case had the advantage of excellent eye-witness accounts so that the circumstances of the accident are fairly clear.
Mr Vaughan Felton was driving down Gospel Lane. The corner shop and skateboard park were ahead of him on his offside. When he was about 100m away from the zebra crossing, he saw Caine running from the direction of the shop towards the road. He told me that he thought at the time “He's running towards the road, which isn't great but at least he's running towards the crossing.” Caine ran into the road diagonally, entering the road before the crossing, but Mr Felton was clear that he was heading for the crossing.
The defendant was travelling in the opposite direction to Mr Felton. He swerved just before impact but hit Caine who was then about a third of the way into the road. In a statement given to the police on the day of the accident, Mr Felton said that Caine was probably just on the very edge of the crossing on the side closest to him. To assist at trial, he very helpfully marked a sketch plan to show Caine's route and the point of impact.
Mr Felton was an entirely independent witness. He is a civil engineer and now works for the environment agency. He was precise and measured in his evidence. All parties recognised that he was an excellent witness. His evidence therefore provides a good starting point for analysing the accident.
I also heard from Mrs Jayne O'Driscoll. She too was an independent eye-witness and gave clear and compelling evidence. She was driving along Gospel Lane in the same direction as Mr Felton but some way ahead of him. The defendant passed her close to a mini-roundabout heading towards the crossing. As he did so, she had cause to say something like “He's going fast” to her daughter. She explained that she had her car windows open. As the defendant went by, she felt “wind” and her car was rocked. She described this as like being overtaken on a motorway. She had a clear sense that the defendant was travelling very quickly. She then heard a screech and assumed that the car had lost control. On looking in her rear-view mirror, she saw Caine upside down in the air.
Two statements, given to the police at the time, were put in evidence without the witnesses being called. One was from a lady called Eileen McCrudden, who is now deceased. She was outside the corner shop when she heard a loud noise like a car engine revving. She said that she saw the defendant driving “very fast”. As it got closer she said, “a young boy just appeared from nowhere on the pavement beside me and run toward the road.” She saw the car hit him. She confirmed that Caine was not on the crossing at the time of the accident. Mr Felton confirmed that he considered Mrs McCrudden's account to be consistent with his recollection.
There was also a statement from Andrew Henry. He could not be traced to attend the trial but he gave a statement to the police on the day of the accident. He had been travelling in the defendant's car. He said:
...“Paul was going over the speed limit but I don't know how fast he was going. If I had to guess, not over 60 mph. As we got towards the roundabout at the junction with Pollard Road I said to him “slow down bud you're going to hit someone.” He said “I'm trying kid”. I didn't notice him trying to slow down. As we got by the shops by the parks I saw a kid on the pavement running towards the road. …The kid looked straight at the car but kept on running. Paul saw him but it was too late. He swerved to our right away from the kid but the car hit him.
…
I don't remember Paul braking but he must have.
…
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