Master Felix Barrow (by his Litigation Friend and Grandfather Mr Hugh Barrow) v Rosemary Merrett

JurisdictionEngland & Wales
JudgeRichard Hermer
Judgment Date31 March 2021
Neutral Citation[2021] EWHC 792 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ18P00393
Date31 March 2021

[2021] EWHC 792 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Richard Hermer QC

(Sitting as a Deputy High Court Judge)

Case No: HQ18P00393

Between:
Master Felix Barrow (By his Litigation Friend and Grandfather Mr Hugh Barrow)
Claimant
Stuart Barrow
Second Claimant

and

Vanessa Barrow
Third Claimant
and
Rosemary Merrett
First Defendant

and

Liverpool Victoria Insurance Company Limited
Second Defendant

Susan Rodway QC and James Burton (instructed by Moore Barlow LLP) for the Claimants

Derek O'Sullivan QC (instructed BLM, Southampton) for the First and Second Defendant

Hearing dates: 1–5 March 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Richard Hermer QC

Richard Hermer QC:

1

Introduction

1

This is a claim is a claim for damages brought on behalf of a child, Felix Barrow (‘Felix’), who on 7 October 2015 sustained severe injuries when he was involved in a collision with a car driven by the First Defendant, Mrs Rosemary Merrett 1. The accident occurred when Felix was crossing the road outside his home on the way to school. Although the parties cannot agree who bears legal responsibility for the accident, there is no dispute that what occurred was a tragedy with lasting impact on many involved but above all for Felix who sustained life changing injuries.

2

The trial was of liability alone. The task for the Court is to determine whether the Defendant was at fault for the collision and, if so, whether Felix can also be said to have contributed to the accident in a legally relevant way.

3

Although the Court was presented with a considerable amount of expert evidence it soon became apparent that the core dispute really turned upon two closely related core questions of fact namely:

(i) Was Felix running or walking across the road immediately prior to the collision?

(ii) What was Felix's likely body position at the time of impact?

4

The parties agree that the answers to these two factual questions are capable of unlocking the dispute about who was responsible.

5

The Claimant's answer to these questions is that Felix was walking across the road when he slipped backwards in the middle of the carriageway. The case is that it took at least several seconds for him to start getting to his feet and it was whilst he was in the process of doing so that he was struck by the Defendant's car. The Defendant accepted at trial that if this version of events is correct then the Claimant is bound to succeed because Mrs Merrett would have had reasonable time to observe Felix's presence in the road and take evasive action. Indeed, the Defendant acknowledges that even if Felix ran rather than walked out into the road and slipped backwards but still took several seconds to attempt to get back to his feet, his presence in the road should still have been obvious and a reasonable driver would have avoided the collision.

6

The Defendant's answers to the core questions are that Felix was running across the road at the time of his accident. They contend that whilst running he likely slipped forward and moments later was struck by the car. Mirroring the Defendant's concession, the Claimant accepts that if these facts are established the claim must fail because Mrs Merrett would not have seen Felix until it was too late to take evasive action.

7

Before turning to the substance of the judgment I set a general observation about the evidential difficulties faced by Courts and litigants in civil proceedings which revolve around the reconstruction of fast moving and traumatic events such as this road traffic accident.

8

There are many claims arising out of accidents, be they on the road, in the home or in the workplace, in which it is simply not possible to conclude with absolute precision what occurred. The law does not require the Court to do so. The task for the Court is not to reach a conclusion based on ‘certainty’ as to what occurred but rather to come to a reasoned view as to the most probable explanation. In many accidents there will be a range of confounding factors which render the task of precise reconstruction of events impossible. This case exemplifies many of these factors. The trial concerns an event that from beginning to end lasted no more than a few seconds. It was not recorded on CCTV or a ‘dashcam’ and the few eye-witnesses to the collision all viewed events from different positions in the road and pavement. There was little ‘hard evidence’ such as extensive damage to the car that would enable ready reconstruction. Felix's physical injuries in themselves do not provide clear answers to the core questions, nor (as explained later) does the evidence from the accident reconstruction experts.

9

A Court attempts to reconstruct the most probable answers to the core questions by applying established forensic tools to such evidence as is available. It looks at the evidence in its totality, it seeks to understand the relevant layout of the scene, identify any objective facts that might act as lodestars by which more subjective opinion and recollection can be tested, scrutinises carefully the accounts of witnesses of fact and experts, both in the witness box and in earlier written statements – and it applies to all of this a fair dose of common sense.

10

All of this will strike those well used to litigation as a statement of the obvious. It is nevertheless important to spell out the evidential task, and the legal standard applied, so that others, not least the parties themselves, can well understand the basis on which I have proceeded to analyse this case.

11

The remainder of this judgment is divided into the following parts. In Part 2 I set out the factual background. In Part 3, I describe the relevant procedural history before turning, in Part 4, to the limited law bearing on the assessment of liability in road traffic accidents. In Part 5 I address the analytical approach to evidence. In Parts 6 and 7 I set out the relevant lay and expert evidence received by the Court. Part 8 contains my findings and conclusion.

2

Factual Background

12

Shortly before 8 o'clock on the morning of 7 October 2015 Felix, then aged 11, set off from home to walk to school with his friend Nicholas Stannard. Felix had recently started secondary school and was now allowed to walk to school with his friends, his parents having instilled in him a need to always take great care when crossing roads.

13

Felix lived on a long single carriageway road. Although the name of the road changed in places, the stretch next to his home is called Hill Pound Road and is located in Swanmore, Hampshire. The stretch of Hill Pound Road adjoining Felix's house only has a pavement on the far side of the road, meaning that in order to get to it pedestrians leaving the house need to cross the road immediately by the driveway. The speed limit on this stretch of the road is 30mph and is clearly marked on signs not too far from Felix's house warning drivers approaching from the south that the limit is reducing from 40mph.

14

On the morning of the accident Nicholas had been dropped off at Felix's house and they set off together for school by crossing the road outside the drive. Having reached the pavement Felix told Nicholas that he had forgotten his rugby boots and needed to return home to retrieve them. He crossed the road back to his home whilst Nicholas remained on the pavement waiting for his return.

15

As Felix was returning so Mrs Merrett was driving north along the road in the direction of his home. The pavement was on the nearside (left) of her car. As she drove closer, she noted the presence of a child (Nicholas) to her left. She also noticed traffic approaching her in the opposite direction. The precise circumstances of what happened next form the heart of this dispute but it is agreed that at about the point she drew up to where Nicholas was standing her vehicle hit Felix to the left side of his body at a point over the centre line of the road i.e. just on Mrs Merrett's side of the road.

16

The impact of the collision caused Felix to be thrown a distance of about 8 metres in a northerly direction (the direction of travel of Mrs Merrett's car) and about 3 metres away from the offside of the car.

17

Felix's mother and father then endured what must be the nightmare of every parent. Nicholas knocked on their door and told them that Felix had been run over. Mr Barrow rushed out to find Felix unconscious on the road. He initially thought he was dead. He cradled his son's head whilst Mrs Burrows called the emergency services.

18

The emergency services arrived. The police closed the road and began an initial roadside investigation led by PC Giles. The ambulance service arranged for Felix to be evacuated by air ambulance to Southampton General Hospital. His parents were informed that Felix might die and the next 72 hours were likely to be critical.

19

As this was a trial of liability alone, it is not necessary to set out the various medical procedures that Felix endured, nor the detail of his present condition and prognosis. Neither party suggested that any of Felix's long-term injuries are capable of throwing any light on the circumstances of the accident itself. I deal with the injuries in so far as they are relevant to liability in Part 7 below. Suffice it to say, Felix thankfully, survived the accident but has been left with the lifelong consequences of the severe physiological and neurological injuries he sustained.

20

Mrs Merrett's car sustained relatively...

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2 cases
  • Barrow v Merrett
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 September 2022
    ...CA-2021-000618-B IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM 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 Derek O'Sulli......
  • Lauren Parker (acting by her Litigation Friend, Nigel Parker) v Clive McClaren
    • United Kingdom
    • Queen's Bench Division
    • 22 October 2021
    ...Counsel, for the clarity and care with which their respective cases were presented at trial. 6 In Barrow & Others v Merrett & Another [2021] EWHC 792 (QB) (“ Barrow v Merrett”), Mr Richard Hermer QC, sitting as a Deputy High Court Judge, said this at the beginning of his judgment: “7. Befo......

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