PI Brief Update

Gestwin Principles Applied in the Context of a Road Traffic Accident and the Potential for Eyewitness Accounts to Take Precedence Over Expert Evidence Affirmed - Grace Corby, Temple Garden Chambers

20/10/22. Barrow (By His Litigation Friend and Grandfather Mr Hugh Barrow) & Ors v Merret and Anr [2022] EWCA Civ 1241. The Claimant unsuccessfully appealed the dismissal at first instance of his negligence claim. The first-instance judge had dismissed the claim after concluding that the expert evidence was of limited assistance and the case had turned principally on eyewitness evidence. The Court reiterated that they should not interfere with findings of fact or evaluations of facts unless compelled to do so because those findings were wrong. Here, they were no such reasons.

The Facts

The Claimant (and Appellant) was seriously injured on 7 October 2015 when a car driven by the Defendant (and Respondent) collided with him as he crossed a road. He had made a claim for damages for negligence.

The key issue in the trial had been whether the Claimant had darted across the road, such that the Defendant could not have responded in time, or alternatively, whether he had fallen and was in the process of standing up at the time of the collision, such that the Defendant should have had time to avoid the collision had she be paying proper attention.

This was boiled down into two crucial questions agreed by the parties:

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

(ii) What was the Claimant’s likely body position at the time of impact?”

There was significant expert accident reconstruction evidence considering this question, alongside evidence from eyewitnesses. At first instance, the claim was dismissed by Richard Hermer KC, sitting as a Deputy Judge of the High Court (‘the Judge’). The Judge considered the expert evidence but stated he had based his finding “primarily on my assessment of the lay witness evidence…in the context of the road layout”. The Judge said (at paragraph 114) that he had reached his conclusions without the help of the accident reconstruction evidence. His conclusions nevertheless fell ‘within the bounds of what both experts considered possible’.

The Appeal

The Claimant appealed, arguing that the Judge had i) failed to have proper regard to objective evidence in his findings of fact, ii) assessed the expert evidence in an unfair way and iii) was irrational to reject one of the eyewitness accounts which supported the Claimant.

The Decision

Lady Justice Laing, delivering the judgment of the Court, dismissed the appeal. She found that most...

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