England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		St. Dunstan’s House, 133-137, Fetter Lane, London, EC4A 1HD
		9 July 2002

H.H. Judge Richard Seymour Q. C. :

Introduction

1. Miss Marisa Miller was born on 27 October 1972. At about 3.40 p.m. on the afternoon of 25 March 1988 Miss Miller was knocked down by a coach (“the Coach”) belonging to the Defendant, C & G Coach Services Ltd., and driven by their employee, Mr. David Mills. At the time of the accident Miss Miller was a pupil at Melbourn Village College (“the School”) in Cambridgeshire. She lived then with her parents and her brother, Paul, in a road called Frog End (“the Road”) near the village of Shepreth, Cambridgeshire. The accident in which Miss Miller was injured occurred as she was attempting to cross the Road to reach the house in which she then lived, 71, Frog End, having just got off the bus (“the Bus”) on which she travelled home from the School. The Bus had been travelling in a northerly direction when it stopped to let Miss Miller alight. She was seeking to pass behind the Bus across the Road when she was struck by the Coach, which was travelling in a southerly direction. As a result of the accident Miss Miller sustained severe diffuse brain injury. In this action she claims damages against the Defendant in respect of that injury.
2. This action was commenced by a Claim Form issued as recently as 10 September 2001. By an order made on 28 November 2001 it was directed that the question of liability be tried in advance of any trial of issues of quantum. In those circumstances I have been concerned in this trial only with matters relevant to the alleged liability of the Defendant for the injuries sustained by Miss Miller in her accident.

The Claimant’s pleaded case

3. In the Particulars of Claim in this action it is pleaded on behalf of Miss Miller that her accident was caused by the negligence of Mr. Mills, the driver of the Coach. The “Details of Negligence” alleged are these:-

“1. Failing to keep a proper lookout. The Claimant will rely particularly upon the facts that she had crossed more than half the road by the time she was struck by the bus [that is, the Coach] and that she had herself shortly before the accident got off a school bus traveling [sic] in the opposite direction to the bus that struck her. The bus from which the Claimant had got off had pulled away shortly before the accident. It must have been visible to the driver [that is, Mr. Mills]. The driver must have realized [sic] that the bus from which the Claimant had just got off was a school bus and that it had just stopped and must therefore have realized [sic] that there was a real possibility of children crossing the road at that place and at that moment.

2. Driving too fast. The Claimant will in particular rely on the matters set out above as given [sic] sufficient notification to the driver that he ought to slow the bus considerably. The Claimant will also rely on the fact that this was a relatively narrow road for two buses to pass. For the avoidance of any doubt, the Claimant’s primary case is that the driver ought to have been in a position to avoid the collision. Alternatively, however, the Claimant will say that the driver should have slowed the bus significantly before the moment of impact, and that if he had done so any collision which occurred would have had less severe consequences.

3. Failing by means of his horn or otherwise to warn the Claimant of the presence and approach of his bus.

4. Failing to stop, slow, swerve, steer or so otherwise manoeuvre the bus as to avoid the collision or minimise the force of any impact. ”

4. Notwithstanding the way in which the case is put in the Particulars of Claim, Mr. Christopher Purchas Q.C., who appeared on behalf of Miss Miller at the trial before me, together with Mr. Bernard Doherty, in his written skeleton argument at paragraph 31 indicated that:-

“The claimant accepts that in crossing the road as she did, she failed to take reasonable care for her own safety, in failing to keep a proper lookout.”

The Defendant’s pleaded case

5. In the Defence served on its behalf in this action the case for C & G Coach Services Ltd. is put in this way:-

“4. The Defendant responds to the alleged details of negligence as follows:-

(i) As to 1, the Defendant’s driver was keeping a proper lookout. He had no reason to expect any passengers from the double decker bus to run across the road in front of him. The bus itself was visible to him and he was proceeding with all reasonable care.

(ii) As to 2, the Defendant’s driver did slow his bus down from about 30 mph to about 20 mph in order to pass the double decker bus.

(iii) As to 3, it is not good practice for a driver to sound the horn of the bus when passing a stationary bus.

(iv) As to 4, the Defendant’s driver was given no opportunity by the Claimant to take any avoiding action to avoid the collision.

5. The accident was wholly, alternatively partly, caused by the negligence of the Claimant.

Particulars of Negligence

(i) Failing to keep any or any proper lookout. The Claimant did not look to see that if [sic] it was safe to cross the road before emerging from behind the double decker bus.

(ii) Running across the road.

(iii) Emerging from directly behind the double decker bus into the Defendant’s driver’s path, thus affording the Defendant’s driver no opportunity to see her prior to a collision.”

The Expert Evidence

6. Accident reconstruction experts were instructed on behalf of both Miss Miller and the Defendant. Dr. John Horsfall was instructed on behalf of Miss Miller, while Mr. Graham Shellshear was instructed on behalf of the Defendant. Dr. Horsfall prepared two reports of his evidence, dated respectively 15 March 2002 and 8 April 2002. In those reports the matters which Dr. Horsfall particularly addressed were, first, the question of the likely speed at which the Coach was travelling at the time it hit Miss Miller, second, the likely visibility of Mr. Mills, the driver of the Coach, as he approached the point at which Miss Miller was seeking to cross the Road, and, third, the issue whether the consequences for a pedestrian of being hit by a moving vehicle were likely to be more severe the greater the speed of the vehicle at the moment of impact. Dr. Horsfall made clear his view that the assessment of the likely speed of the Coach at the moment it hit Miss Miller depended upon the questions of how long it took the Coach to stop after the impact and how far Miss Miller was thrown by the impact. He indicated that he considered that those were issues of fact for the Court to determine having heard the evidence of the witnesses of fact. He did, however, set out a table of the likely speed of the Coach depending upon whether it stopped within about three-quarters of its length, within about its own length, or within about one and a half times its length. Those distances were suggested to Dr. Horsfall as possibly relevant in the light of his reading of the statements of the witnesses of fact in this action. The length of the Coach was 12 metres. His report dated 15 March 2002 included a table (“the Stopping Distance Table”) in which were set out, in increments of one mile per hour, the distance in which a vehicle travelling at speeds of between one mile per hour and thirty-five miles per hour would stop depending upon whether the time taken by the driver to react and to apply air brakes effectively was one second, one and a half seconds or two seconds. The exercises which Dr. Horsfall undertook in relation to the visibility of Miss Miller to Mr. Mills were also based upon indications in the statements of witnesses of fact as to where Miss Miller had been standing relative to the rear of the Bus in the moments immediately before the accident. Dr. Horsfall reviewed quite extensively research, almost all of it undertaken in the United States, into the effect upon the human body of being struck by moving vehicles at various speeds. His conclusion was that the research indicated that the greater the speed of the vehicle the more severe the injuries to the person hit were likely to be. The latter conclusion was supported from a medical point of view by a report dated 18 March 2002 from a neurosurgeon, Mr. Peter Kirkpatrick, obtained on behalf of Miss Miller.
7. Mr. Shellshear prepared one report, dated 29 April 2002. He was only asked to consider the question of the likely speed of the Coach at the time it hit Miss Miller. His approach to the issue was identical to that of Dr. Horsfall, and his conclusions were very similar.
8. Pursuant to the usual practice Dr. Horsfall and Mr. Shellshear prepared a joint statement as to the matters upon which they were agreed. That statement was dated 5 June 2002 and was signed by Dr. Horsfall on 6 June 2002. It included the following:-

“2. We agree that the road runs straight as it passes through the scene and has a nominal width of around 6 metres (19ft 8ins). To Mr. Mills’ offside the road was edged with a grass verge. There was a pavement to his nearside.

3. The total width of the bus and the coach was 5 metres (16ft 5ins). We agree that there was room for the coach to pass the bus which was on the opposite side of the road travelling in the opposite direction. The maximum available clearance between the two vehicles is 1 metre (3ft 3ins) provided both are very close to their left side of the road. We consider that a minimum likely clearance would have been about 0.5 metre….

8. If the impact coincided with the onset of deceleration at 0.5g and the coach came to a halt within the following distances beyond the point of impact (related to its length of 12 metres) then its initial speed at the point of impact would be:

¾ of a length (9 metres) 21mph

1 length (12 metres) 24mph

1 ½ lengths (18 metres) 30mph…

11. We agree that if Miss Miller crossed the road from behind the bus, the presence of the bus would obscure the mutual view between Mr. Mills and Miss Miller. Mr. Mills would be unable to view Miss Miller until she cleared the obstruction caused by the bus. The closer Miss Miller was to the rear of the bus, and the further away the coach was from the rear of the bus, the greater the restriction to mutual visibility.

12. We cannot calculate the precise point where a mutual view became available in this accident since this will depend on the relative positions of the two vehicles and distance that Miss Miller was away from the rear of the bus. However, we can calculate when a mutual view would have become available for any given combination of positions of Miss Miller, and her distance from the rear of the bus. These are set out in Table 2 of Dr. Horsfall’s principal report and representative sightlines are illustrated in Figures 4 to 6 inclusive of that report. For example, if Miss Miller was 5 metres behind the bus and 1 metre from the centre of the road, a mutual sightline would first have existed when the front of the coach was just under 12 metres from her…

15. We agree that the time period for Mr. Mills to perceive a danger and respond to it by applying his brakes and for the brakes to become fully applied is expected in the region of 1.0 – 2.0 seconds. This time includes both the driver’s perception-response time and the inherent (mechanical/pneumatic) actuation delay in air brake systems. We have used the term “delay time” to describe the total time delay between perception and full brake application.

16. We agree that if Miss Miller was within Mr. Mills’ view for a period equal to or less … than that required by Mr. Mills to react to the danger, then a collision would have become inevitable. It will be for the Court to decide how far the bus had moved beyond Miss Miller by the time of the collision.

17. We agree that if the coach commenced braking at the point of impact (see paragraph 8 above), Mr. Mills must have perceived the danger (i.e. have seen Miss Miller) between 1.0 and 2.0 seconds before impact, so that the brakes of the coach were applied fully at the point of impact.

18. We agree that had the initial speed of the coach been different, but Mr. Mills first saw Miss Miller when the coach was at the same position in the road, the speed of the coach at the point of impact would have been different. For example, if the actual speed of the coach had been 20 mph and braking commenced at impact, an initial speed of 15 mph would have resulted in a speed at impact of less than 11 mph for a delay time of 1 second and less than 3 mph if the delay time was 2 seconds.

19. We have considered what the speed of the coach would have to have been if a collision was to be avoided altogether. These calculations are set out in Table 4 of Dr. Horsfall’s report (and have been checked for correctness by Mr. Shellshear). For example if the actual initial speed of the coach had been 20 mph and braking had commenced at impact, the speed of the coach would have had to be 14 mph or less for it to have stopped if the total “delay time” was 2 seconds, and 12 mph or less if the total “delay time” was 1 second.

20. We agree that the approaching coach would have been obviously within Miss Miller’s view had she looked to her left once clear of any obstruction caused by the bus.

21. We note that Dr. Horsfall’s instructions included an analysis of matters related to research into the relationship between vehicle speed and severity of injury, whilst Mr. Shellshear’s instructions do not include this topic. Mr. Shellshear observes that an increase in the probability of serious or fatal injury with increased speed is well known. ”

9. Both Dr. Horsfall and Mr. Shellshear considered in their respective reports the issue of what conclusions could be deduced from the distance for which Miss Miller was thrown by the impact with the Coach. That was not a matter which was covered in terms by the joint statement to which I have referred. However, they did not seem to disagree about it. Each said, Dr. Horsfall at paragraph 3.2.1 of his report dated 15 March 2002 and Mr. Shellshear at paragraph 11.4 of his report, that if Miss Miller was thrown about 9 metres that indicated a speed at impact of 22 or 23 mph. Dr. Horsfall also indicated that if Miss Miller was thrown about 20 metres, that indicated a speed at impact of about 35 mph. Dr. Horsfall gave oral evidence before me. He explained that one calculated likely speed of impact from the distance a body was projected by reference to formulae which were based on experimental data. In other words, the formulae were based upon what results had been observed from experiments and provided a useful tool which gave a reasonable approximation.
10. Mr. Shellshear in his report at paragraph 2.2 recorded that the Road is subject to a speed limit of 30 miles per hour. That was also the evidence of Mr. Michael Chamberlain, who used to live in the Road, and it was not, as I understood it, in dispute that at the time of Miss Miller’s accident the speed limit applicable to the Road was 30 miles per hour.
11. At section 2.2 of his report dated 15 March 2002 Dr. Horsfall described the scene of the accident. The description included that the Road is straight for a distance of some 120 metres to the north of the scene of the accident and then bends.
12. There was put in evidence a letter dated 24 July 2001 written by Mr. Kirkpatrick in which he said this:-

“The speed of impact is critical in determining the seriousness of the outcome in Miss Miller’s case. She suffered a diffuse head injury due to acceleration and deceleration of the brain within the skull. There were no significant skull fractures and so this really is a case of the brain rattling within the cranium. The energy imparted is proportional to the velocity squared and so a doubling of speed theoretically quadruples the severity of the impact.”

Mr. Kirkpatrick was called to give oral evidence before me. He took advantage of an opportunity provided by a question asked in re-examination to express the view that the nature and extent of her injuries suggested to him that Miss Miller had been hit by a vehicle travelling at between 30 and 40 miles per hour. Mr. Jonathan Marks Q.C., who appeared on behalf of the Defendant, objected to the admissibility of that evidence on the ground that the question which elicited it did not arise out of any cross-examination on his part. I indicated that I would deal with that objection in this judgment. In the event I do not consider that it is necessary to rule upon whether, strictly, the evidence was admissible because, for the reasons set out later in this judgment, I am not persuaded that the speed of the Coach at the moment at which it hit Miss Miller was anything like 30 to 40 miles per hour.

The evidence of fact

13. Miss Miller’s accident occurred now more than 14 years ago. She had no recollection of it herself and she was not called to give evidence before me. None of those called to give factual evidence before me as to the circumstances of the accident, other than Mr. Mills, was asked to give any account of it shortly after it happened. Indeed, it seems that none of the witnesses, other than Mr. Mills, was asked to make a statement in relation to the accident until, at the earliest, October 1997, over nine and a half years after it occurred. With the exception of Mr. Michael Chamberlain, who made a statement dated 15 October 1997, none of the witnesses of fact called on behalf of Miss Miller was asked to give an account of what had happened until early in 2001, some 13 years after the accident. With the exception of Mr. Mills, those called to give evidence of fact on behalf of the Defendant did not make any statement concerning the events of the afternoon of 25 March 1988 until 10 years or so later. Most of the witnesses of fact very fairly and properly emphasised during the course of their evidence that as a result of the passage of time their recollections were fragmentary and rather indefinite on questions of the detail of time and distance.
14. Mr. Mills gave his first account of the circumstances of the accident in completing a report to the Defendant’s insurers. In that report the make and model of the Coach was stated as a MAN SR280. Mr. Mills explained to me in his oral evidence that that was a vehicle of German manufacture. That fact may have some relevance to evidence of Mr. Chamberlain to which I shall refer later in this judgment as to the noise made by the engine. The Coach was, according to the report to the insurers, manufactured in 1980. In the report it was stated that at the time of the accident the Coach was approximately 3 inches from the near side kerb and travelling at a speed of approximately 20 miles per hour. The account of how the accident happened which Mr. Mills gave in the report was this:-

“I was travelling along Frog End, Shepreth when I saw a Cambus double decker stopped on the other side of the road. I slowed down. As I got level with the front of this double decker it started to pull away. I saw nobody get off the bus.

As I got level with the back of this double decker a young girl suddenly ran from behind the bus straight into the front of the coach, hitting her head on the windscreen and knocking her onto the road. I stopped at once and called the emergency services.”

In the report the damage recorded to the Coach was “N. S. windscreen, N. S. headlight and cover”. It is plain that the reference to “N. S.”, presumably meaning nearside, should actually be to offside.

15. In a witness statement dated 11 November 1997 Mr. Mills gave this account of the accident:-

“14. I can recall driving along a straight stretch of road which is a few hundred yards before the A10.

15. I recall that the road ahead of me was completely clear for some considerable distance apart from a double decker bus, operated by Cambus which was stationary on the offside of the road facing towards me.

16. Although this bus was probably between 200 and 300 yards away from me I could see that it was stationary and I remember seeing the nearside indicator operating.

17. I continued driving towards the double decker bus and my speed at this time was no more than 30 mph.

18. I saw no-one get on or off the bus.

19. As I continued to get nearer to the still stationary bus I began to slow down as the road was quite narrow and the bus was still stopped. When I was perhaps 50 yards from the bus my speed had slowed to around 20 mph and I had still seen no-one get on or off the bus.

20.When I was a few yards from the front of the double decker bus I saw its offside indicator come on. My coach was passing the double decker bus and I believe that I was probably level with the emergency door which is situated approximately 4 feet from the offside rear of the double decker when it began to move off.

21. The front of my coach was level with the rear of the double decker bus when I heard a loud thud and I saw that the front windscreen of my coach, close to the offside front corner, was damaged.

22. I braked hard and stopped very quickly. I applied my handbrake and I got out of the coach.

23. I then saw a young girl on the ground by the offside front corner of the coach. She was just a few feet away from the offside front corner lying partly in front of the coach and partly out to the offside of the coach.”

16. In cross-examination Mr. Mills was adamant that he had not seen Miss Miller before the Coach hit her. He was asked in supplementary examination in chief about the difference between what he had said in the accident report to the Defendant’s insurers and what he said in his witness statement dated 11 November 1997 as to the position of the Coach at the time the Bus began to move off. He said that he considered that what he had said in his witness statement dated 11 November 1997 was more likely to be accurate. He said that there was nothing mechanically wrong with the Coach at the time of the accident. He said that he had no passengers on the Coach and he was not in a hurry. He was in fact driving to the School to pick up children to take to another village. He was pressed in cross-examination as to whether it occurred to him that there were likely to be children on the Bus and whether he considered the possibility that a child might be behind the Bus. I have to say that I felt that his answers to these points were pretty defensive and did not really create a favourable impression. However, he did ultimately accept that he might have considered that a child could have got off the Bus and might have wanted to cross the Road behind the Bus. He said that he would have slowed the Coach to less than 15 miles per hour had he realised that there was someone behind the Bus waiting to cross the Road. He told me that in fact he would probably have stopped the Coach if he had realised that, However, he also told me that he was slowing the Coach as he approached the Bus because the space available in which to pass the Bus was narrow and he was concerned about the risk of clipping wing mirrors. When pressed Mr. Mills said that actually he did not know at what speed the Coach was travelling as he approached the Bus.
17. Three passengers on the Bus who were friends of Miss Miller and had been sitting with her on the back seat of the upper deck of the Bus until she got up to get off were called to give evidence. One, Miss Sarah Oldfield, was called on behalf of Miss Miller, while the others, Mrs. Lucy Saul and Miss Sophie Goswell, were called on behalf of the Defendant. Miss Oldfield briefly, as she acknowledged in cross-examination, succumbed to the temptation to embellish her evidence in supplementary examination in chief as to where she had seen Miss Miller standing at the rear of the Bus prior to the accident. Leaving aside that momentary lapse, essentially all three ladies had a generally consistent recollection of events, so far as they had any recollection at all.
18. In her witness statement dated 19 February 2001 Miss Oldfield said this about the accident:-

“4. On the day of Marisa’s accident, I remember that we sat on the back seat of the bus and I recall Marisa getting off the bus. As far as I can recall the weather was cold and damp. I am sure that it was the last day of term. I recall that I was sitting quite centrally on the back seat and not at either corner.

5. I recall that at least one other person got off the bus with Marisa. Marisa walked around the back of the bus to cross the road. We were looking out of the back window waving to her. There was excitement because it was the end of term. Marisa was happy and she was waving back to us. I estimate that while she was standing and waving to us, Marisa was approximately 4-5 feet from the back of the bus.

6. Our bus then started to pull away slowly. Marisa was stood close to the centre of the road. I saw her standing there as our bus was pulling away. I estimate that she was stood in the road for approximately one minute. She was wearing her blue school uniform.

7. The next thing I heard was a crash and a bang which was when I first realised there had been an accident. I looked out again and saw Marisa’s body flying through the air. It seemed to go some distance.

8. I did not hear any brakes screeching before I heard the bang. I also did not hear any horn sound. Our bus continued to proceed onwards.”

19. Miss Oldfield was a little indefinite in her supplementary evidence in chief as to whether the Bus was a dedicated school bus or an ordinary service bus with a lot of school children on it. It apparently had a number 146 displayed, but it may also have had a sign indicating that it was a school bus. In cross-examination Miss Oldfield repeatedly emphasised how long ago the accident was and the difficulty she had in remembering precisely what had happened. She accepted that the estimates of time given in her witness statement were very imprecise.
20. In her witness statement dated 25 November 1998 at paragraph 12 Mrs. Saul said:-

“After such a long period of time, I cannot remember all of the events of the day when Marisa had her accident.”

Doing her best, what she did feel able to say was this:-

“17. Although again I can’t remember it, Marisa must have gone to the front of the bus and got off on the left hand side and she must have walked down the left hand side of the bus as she usually did and then started to cross the road behind the bus.

18. I say this because I have a clear recollection of Marisa being between two and three feet behind the bus standing in the road, somewhere near the middle of the bus.

19. I have a clear recollection of her waving to us and it is quite possible that she was making “V” signs to the boys. This frequently happened.

20. Almost certainly, the waving and the gestures were returned as Marisa walked across the road just two or perhaps three feet behind the bus.

21. I think I was in the offside corner seat of the bus and I can remember that I had a clear view both behind the bus and alongside it. In other words, I am saying that I could see the road that was to the offside of the bus as well as the road behind it.

22. I cannot remember seeing Marisa walk beyond the position where she had been waving to us. I cannot recall if she was walking all of the time or if she stopped to wave to us.

23. My next recollection is of looking down at Marisa and I could see that her mouth was wide open and there was a look on her face as if she was screaming. Her face, with this awful expression, was turned towards the offside of the bus as if she was looking at something that was alongside the bus. At this moment, Marisa had just passed beyond the offside rear corner of the bus on which I was sitting and was just out into the road beyond the offside of the bus, perhaps by just a foot or so.

24. I do not remember seeing any impact. The very next thing I can remember is seeing Marisa laying on the ground and I got the impression that she was moving away. In fact what I think was happening was that our bus had moved off and we were moving away from where Marisa lay.

25. I have a very vague recollection of being aware of a coach or something alongside the bus. The memory is not at all clear but I think that my recollection of something being alongside our bus was after the accident...

27. For a few moments there was a silence amongst the group of us who remained on the bus.”

In supplementary evidence in chief Mrs. Saul was asked whether she could say if the Bus had moved off at the point at which she saw Miss Miller with the awful expression on her face. She said that she could not recall. In cross-examination she told me that she did remember Miss Miller being about two or three feet behind the Bus roughly in the middle of its rear. She said that Miss Miller was close to the back of the Bus, but at a point at which Mrs. Saul could see her, and she could see Mrs. Saul. Mrs. Saul said that she had a picture of Miss Miller being still, that is to say, not moving, at the back of the Bus waving. At the point at which Mrs. Saul saw the awful expression Mrs. Saul thought that Miss Miller was about a foot or so past the Bus in the centre of the Road.

21. In her witness statement dated 4 January 1999 Miss Goswell said about the accident:-

“21. I can recall that Marisa then got up and pressed the bell. I remember that she was in a hurry, probably because the bus was pretty close to her stop.

22. I can remember Marisa heading towards the front of the bus to go down the stairs. The bus was fairly rowdy and there was lots going on.

23. I could not see Marisa as she got off the bus but she must have walked down the left hand side of the bus in order to cross over the road behind it.

24. I think our bus had just moved off and as it did so I turned to my right and I looked over my right shoulder out of the back window. I was going to wave to Marisa.

25. As soon as I turned and looked out of the rear window of the bus, I saw Marisa about one metre out from the kerb, on the road behind the bus, and about two metres behind the bus. The bus was moving away at this time.

26. I can clearly remember that Marisa had her black shoulder bag on her left shoulder. She was running across the road quite quickly and crossing the road at 90 degrees. She was waving with her right hand and she was looking up towards the group of us on the back seat. I remember that she was smiling.

27. Still moving out into the road, she then looked ahead straight across the road in the direction that she was running. All of this took place behind the bus.

28. Marisa didn’t stop or slow down before moving out from behind the bus. I would say that she reached the centre of the road or was just crossing over the centre of the road when I saw, out of the corner of my eye, the offside front corner of a silvery or grey coach. The part of the coach that I saw was just passing the rear of the bus on which I was sitting when I saw it. I did not get an impression of the speed of the silvery grey coach at that moment as I was turning away from the rear window of the bus to look forward again.

29. It must have been my sighting of the corner of the coach that made me look back again out of the rear window of the bus and my recollection now is that I simply saw that the coach was stopped and Marisa was lying in the road.

30. I can’t recall where she was laying on the road but I do remember that her body was in a strange position. By this, I mean that her limbs were in a strange position and I thought that she was badly hurt.

31. I can say that the coach must have stopped in a short distance but I cannot be more specific on this as our bus was moving away from the scene as I looked.”

In supplementary evidence in chief Miss Goswell told me that she had a fragmented picture of what had happened. She said that when she last saw Miss Miller before seeing her lying in the Road Miss Miller was directly behind the Bus, between a walk and a run, waving and smiling. In cross-examination Miss Goswell told me that Miss Miller waved and turned to cross the Road, and Miss Goswell turned back to face her front. In re-examination she told me that she found it difficult to remember how long it was between her seeing Miss Miller wave and her turning round.

22. One other passenger from the Bus was called to give evidence on behalf of Miss Miller. He was Mr. Edward Nichols. His evidence was, so far as it went, consistent with that of other passengers, but he was not able to contribute much. This was because he was sitting some three seats from the back of the Bus on the upper deck on the nearside. He saw Miss Miller walk past the side of the Bus towards the rear after she got off the Bus, but he then lost sight of her. He saw girls on the Bus waving towards the back. He said in supplementary examination in chief that he thought that the Bus was pulling away as Miss Miller walked past where he was sitting, but in cross-examination he said that his recollection was very hazy and he really was not sure at what point the Bus began to move off. After the Bus had moved off his attention was caught by someone shouting that Miss Miller had been knocked over. He then stood up and looked out of the back of the Bus. At that point Miss Miller was lying in the Road some distance behind where the Bus then was.
23. The driver of the Bus on the day of Miss Miller’s accident was Mr. John Huffer. Mr. Huffer made a witness statement dated 7 June 1998. That statement was tendered in evidence without Mr. Huffer being required to attend for cross-examination. He was unaware at the time that Miss Miller had suffered her accident. All he remembered about the day in question which is relevant to the matters which I have to decide was:-

“16. I can remember stopping opposite to the bungalow with the bricks [that is to say the house in which Miss Miller lived] and I can remember Marisa getting off the bus. I can remember seeing her walking along the nearside of the bus on the verge and she was clearly heading for the back of the bus which is what she normally did.

17. I do not recall seeing her disappear round the back.

18. I have no recollection of any other traffic travelling along Frog End at the time that I was stopped and Marisa getting off the bus. In particular, I do not recall a coach approaching from the Shepreth direction.

19. I do not recall pulling away from Frog End and continuing that part of the journey but I had no reason not to do so.”

24. Mr. Paul Miller is the brother of Miss Miller. He was at home at 71, Frog End when the Bus arrived on 25 March 1988, which was the day before his seventeenth birthday. He gave evidence before me that he was in the living room of the house watching television when the Bus arrived. From where he was sitting he could see out of the window. He said that he saw Miss Miller coming around the back of the Bus and walked towards the house. Her attention was grabbed by someone on the Bus and she looked up and waved. When she was about two-thirds of the way across the back of the Bus from the nearside she waved to him and he returned her wave. She was walking at a normal pace. He looked back towards the television for perhaps 3 to 5 seconds and then heard a thumping sound. He then ran out. In his witness statement made in 1998 Mr. Miller said that he could not recall whether the Bus had any markings on it to indicate that it was a school bus but he thought it was usual for there to be some marking. He also said in his witness statement:-

“12. I saw the bus [that is to say, the Coach] which was facing towards the A10 was pulled up outside the drive of our next-door neighbours.”

When asked about that evidence in cross-examination Mr. Miller said that he was not able now to confirm that that evidence was accurate, but at the time he made his statement his recollection of little details was better than it is now.

25. Mrs. Sheila Elliott was called to give evidence on behalf of the Defendant. She made a witness statement dated 4 May 1998. In that statement she said that on the afternoon of 25 March 1988 she had visited a lady at 73 Frog End and had left that address at about 3.30 p.m. She had then met Mrs. Ros Macdonald standing outside 69 or 71, Frog End. She went on:-

“5. I stood talking to Ros for some minutes. I stood facing Melbourn and I believe that Ros would have had a view towards Shepreth in order that she could see when the school bus approached.

6. I have a recollection of traffic passing us whilst we stood there but I do not recall any specific vehicle that approached from either direction. I certainly don’t remember seeing a double decker bus approach from the Melbourn direction and I don’t recall being aware of any bus or coach approaching from the Shepreth direction.

7. I cannot recall what it was but I suddenly sensed that something was about to happen. It may have been a noise or it may have been a reaction to something Ros did or said but something made me turn round.

8. I suffer from a bad neck and therefore must turn my whole body and probably turned to my right.

9. I recall seeing a red object going through the air. I can only describe this object as looking like a rag doll.

10. I can also recall seeing the driver of a coach which had come from Shepreth and this coach driver appeared to be standing up. I believe he was quite literally standing on his brakes.

11. The coach continued past where I was standing and I lost sight of the red object. I clearly remember that the bus stopped in a straight line and when it was stopped, which was well within its own length, it was stopped just as if the driver had parked it.”

In supplementary evidence in chief Mrs. Elliott told me that the Coach came to rest outside 73, Frog End with the front outside the drive of that property. In cross-examination she said that the rear of the Coach was not much further back than she and Mrs. Macdonald were. In re-examination she indicated that she thought that the rear of the Coach had gone past her. In cross-examination Mrs. Elliott said that Miss Miller was behind her as she, Mrs. Elliott, turned round to face the direction from which the Coach was coming.

26. Mrs. Rosamund Macdonald was also called as a witness on behalf of the Defendant. She said that on the afternoon of 25 March 1988 she was waiting for her daughter to return from school in Shepreth by bus. She was standing on the boundary between 71, Frog End and 73, Frog End. Mrs. Macdonald made a witness statement dated 25 February 1998. In that statement she referred to Mrs. Elliott coming out of 73, Frog End and joining her on the pavement where they stood talking. She continued:-

“7. Eventually a double decker bus came from Melbourn which was in the opposite direction.

8. This bus stopped more or less opposite to where Sheila and I were stood.

9. I am unsure as to whether Marisa was the only person to get off the bus. However, she was the only person I was aware of standing on the grass verge as the double decker bus pulled away.

10. We didn’t talk to Marisa. This was not a conscious decision. Although I was aware of her presence my attention was drawn to a coach that had turned the corner from the direction of Shepreth which I expected to be carrying my daughter.

11. I watched the approach of this coach, which was being driven in an entirely reasonable manner and at an entirely reasonable speed for Frog End. Its speed was obviously not constant as it was accelerating after rounding the sharp corner but I am entirely satisfied that the speed was in no way excessive.

12. I then realised that the bus approaching me was not going to stop and thus could not be bringing my daughter on it.

13. The bus maintained its speed.

14. I continued to watch the approach of the coach and only averted my gaze when I heard a squeal of brakes with the driver obviously performing an emergency stop.

15. I turned to look into the road and saw Marisa running across in a curve away from Sheila and I indicating to me that she was desperately trying to change direction and get out of the way. The coach struck Marisa directly in front of my view.

16. I didn’t see Marisa set off from the grass verge so cannot say whether she started to walk or run.

17. The bus had now passed us and stopped in a straight line some ¾ of its length beyond where we were stood and where the impact with Marisa had taken place.

18. I am unable to say at what point the double decker bus and the C & G Coach passed one another.”

In supplementary evidence in chief Mrs. Macdonald told me that the impact between the Coach and Miss Miller was directly in front of where she and Mrs. Elliott were standing. She said that the Coach came to a halt with the side of the Coach alongside her. She told me that when she first saw the Coach she assumed that it was the bus carrying her daughter. She said that there came a point at which she thought that the Coach was beginning to slow down to stop. She said that she was aware of Miss Miller getting off the Bus and waiting. Her last recollection of seeing Miss Miller before the accident was of her trying to run out of the path of the Coach. In cross-examination Mrs. Macdonald was challenged as to exactly where she had been standing. In her witness statement Mrs. Macdonald had said that she was standing outside 73, Frog End. However, she was firm in her oral evidence that she had been standing on the boundary between 71, Frog End and 73, Frog End, short of the drive to 73, Frog End. She said that Miss Miller was standing behind the Bus and remained on the grass verge until the Bus drew away. She said she was looking at the Coach as it came round the corner at the north end of Frog End, saw it accelerate out of the corner, but then thought that it was going to stop. She told me that she was still watching the Coach when she heard a squeal of brakes and that made her look out into the Road. She said that she could not say where the Bus was at this stage and had no recollection of where the Bus and the Coach may have passed. Mrs. Macdonald told me that it was about one Coach length before the impact that she heard the brakes of the Coach squeal. She said that she saw Miss Miller start to make a curve, turning away from the Coach running for one or two paces before she was hit. She reaffirmed that about three-quarters of the Coach passed the point at which she was standing. In re-examination Mrs. Macdonald told me that when she went round to the front of the Coach after the impact Miss Miller was lying in front of it, but more into the centre of the Road than the Coach itself. She said that she was not aware of any shouting or of any other adult being present in the Road at the time other than herself and Mrs. Elliott. At this point in her evidence Mrs. Macdonald said that the Bus drew away as the Coach rounded the corner at the north end of Frog End.

27. Mr. Michael Chamberlain was called as a witness on behalf of Miss Miller. He made a statement dated 15 October 1997 which was reproduced word for word in a later statement dated 4 May 2001. In his witness statement Mr. Chamberlain said:-

“6. On 25^th March 1988 I was waiting to collect my son from his school bus and I was standing at the side of the road almost opposite number 74 Frog End [which would mean somewhere round about the boundary between 75, Frog End and 77, Frog End]. Mr. Roy Williams lives in this house and he was in his garden at the time. It was a dry day and it would have been about the usual time, 3.40pm that I was there.

7. There may have been other people around but I do not remember, as Mr. Williams was leaning on his fence shouting across at me, asking me if I would mend his son’s bicycle.

8. The bus carrying Marisa drew up, it was a double decker bus. It was usually a double decker bus but I do not recall whether it displayed notices saying that it was carrying school children. Certainly the Primary School bus always displayed these notices, but this was operated by a different company, Millers coaches of Foxton.

9. When the double decker drew up Marisa got off with another boy. He walked round the front of the bus and crossed in front of it. I did not see Marisa until she appeared at the rear end of the vehicle. She must have walked down the nearside of the bus intending to cross behind it. I saw her as she was at the rear nearside.

10. My attention was drawn to her as there were both boys and girls on the upstairs of the bus banging on the rear window (Emergency Exit) attempting to attract her attention. I noticed that several of them were giving her the “V” sign.

11. She would have been in the road at this point, behind the bus but level with the middle of the bus. She was looking up and walking backwards. She shouted something back but I do not know what she said.

12. I heard the coach that hit Marisa come round the bend at the far end of the road, it was making a strange noise, it sounded like the engine was misfiring. I saw it but did not pay much attention to it.

13. Marisa at this time was stationary near the rear offside of her school bus. She would have been clearly visible to oncoming traffic as she was not obscured by the bus. She was still facing the bus as a youth who was sat downstairs on the driver’s side (offside) of the bus had opened a window and he too shouted something to her.

14. I had not realised that the oncoming coach had got so close, I was not watching it as I was distracted by the language from the children on the school bus. I cannot understand how he got so close so quickly.

15. I have been driving for thirty years, and in my opinion he was travelling at an unsafe speed given the width of the road and the presence of the stationary bus. I would estimate his speed at 35 – 40 mph. He was certainly travelling in excess of the speed limit which was 30 mph, prior to hitting Marisa.

16. The accident seemed to happen in a split second. I had no time to warn Marisa of the oncoming coach, she had just turned to face forward into the road to cross and had taken a step when I heard a loud bang and saw Marisa thrown into the air.

17. The front offside of the coach hit her. Her head and face collided with the windscreen, her chest hit the corner of the bonnet and her legs hit the head lamp. She bounced off into the road and rolled over. She landed with her head facing the kerb where she had just crossed from, with her feet in the middle of the road.

18. I was speechless initially and could not do anything. Her books and school equipment came flying past me, two of her books hit me. I just stood there and saw the double decker school bus that Marisa had got off drive away. I feel sure the driver must have been aware of the accident and cannot understand why he left the scene.

19. The coach came to a halt near where I was standing. This was about one and a half bus lengths from the point of impact. I do not remember the sounds of braking or skidding, I just heard a hissing noise coming from the vehicle, as if the driver let the air out from the air tank.”

In supplementary evidence in chief Mr. Chamberlain put his position as he waited for his son as alongside a telegraph pole outside 73, Frog End, rather than where he had indicated in his witness statement. He said that the front of the Bus as it was stationary was across the driveway of 70, Frog End. If that were correct, the rear would not have been visible from 71, Frog End. Indeed it is possible that no part of the Bus would have been visible from 71, Frog End. Mr. Chamberlain told me in supplementary evidence in chief that Miss Miller was standing further out into the Road than behind the Bus when she was involved in the conversation with the boy who had opened the window on the lower deck of the Bus on the offside. He said his attention was attracted by what the boy was saying as he wanted to make a complaint to the School about the use of bad language. He put the position of the Coach after it had come to rest following the accident as two to three feet short of the driveway of 75, Frog End, which would have been roughly in the position in which he said in his witness statement he had been standing waiting for his son. That the Coach came to rest near where he was standing was what he had said in his witness statement. In cross-examination Mr. Chamberlain said that he did not pay much attention to the Coach. He said that he could not say how many seconds it took the Coach to travel the distance from the point at which he first became aware of it and the point of impact. He also said that he could not say how far Miss Miller had moved from the position in which she had been standing whilst talking to the boy on the lower deck of the Bus to the point at which she was hit by the Coach.

28. In addition to the evidence of fact to which I have referred there were put before me as uncontested evidence a witness statement from Donna Thomas on behalf of Miss Miller, and witness statements from Mr. Robert Day and Mrs. Carole Day on behalf of the Defendant. These statements deal with peripheral matters to which I need not refer, but I mention the statements so that it should not be thought that I have not read and considered them.

Consideration of the evidence

29. It will be apparent from the summaries which I have set out earlier in this judgment that there are inconsistencies and contradictions within the evidence of the various witnesses of fact. That is hardly surprising given the length of time since the accident in which Miss Miller was so tragically injured, and in particular in view of the lapse of time before any of the witnesses other than Mr. Mills was asked to give any account of what had happened. To a degree it also reflects judicial experience as to the variability in any event of the accounts of eyewitnesses of any given occurrence. There are in this case differences in inconsequential details. For example, Miss Oldfield said that at the time of the accident Miss Miller had been wearing her blue school uniform, while Mrs. Elliott’s memory was of “a red object going through the air” after Miss Miller had been hit. Another example is the weather conditions on the day in question. Miss Oldfield thought that the day was cold and damp, while Mr. Chamberlain remembered the day as dry, which is how it was recorded in the report to the Defendant’s insurers. There are also differences as to matters which are of more significance, such as whether the Coach was braking before the accident. Mr. Mills says that he did not see Miss Miller before the Coach hit her. Only Mrs. Macdonald gave evidence of any belief that the Coach was braking prior to the impact. There is a difference between Mr. Chamberlain, on the one hand, and Mr. Miller, on the other as to where precisely the Bus stopped to let Miss Miller off. There is a difference between Mr. Chamberlain, on the one hand, and Mrs. Macdonald, Mrs. Elliott, and Mr. Miller, at least at the time he made his witness statement, as to where the Coach came to a halt after the collision. There are differences between Mr. Chamberlain, Mrs. Macdonald, and Mrs. Saul, Miss Goswell, and, probably Miss Oldfield, as to where Miss Miller was standing in the period immediately before the accident. Mr. Chamberlain puts her in the middle of the Road, further over towards the side on which her house was situated than the back of the Bus, Mrs. Macdonald puts her on the grass verge on the far side of the Road from her house, while Mrs. Saul, Miss Goswell and Miss Oldfield put her in the Road behind the Bus. I am satisfied, having heard each of the witnesses who attended the trial and gave evidence from the witness box, that each was doing his or her best to assist the Court and telling me what happened according to how each now remembers it. However, I am also satisfied that each is in error in certain respects. The question then is, how to approach the evaluation of the evidence?
30. Mr. Purchas urged me strongly that it was not necessary to get bogged down in considering the evidence in great detail because the key to what happened was to be found in the expert evidence. He submitted that on the agreed expert evidence, and taking the view of the factual evidence most favourable to the Defendant, namely that the Coach was brought to a halt some nine metres after hitting Miss Miller, at the point of impact, assuming that the brakes had been applied, the Coach was proceeding at a speed of some 22 miles per hour. That that was the actual speed was confirmed by the distance for which Miss Miller was thrown. If that distance was nine metres, the assumption most favourable to the Defendant, the experts agreed that that indicated that the speed at impact was again about 22 miles per hour. If the brakes of the Coach had been fully applied at the point of impact, then, in the light of the agreement between experts that the time which a driver of the Coach would take to react to an emergency and apply the brakes, coupled with the time which it would take for air brakes such as those fitted to the Coach to become applied effectively, would be between one and two seconds, it must follow that Mr. Mills actually saw Miss Miller one to two seconds before the Coach hit her. It is agreed that a vehicle travelling at a speed of 22 miles per hour covers some 10 metres per second, so, submitted Mr. Purchas, Mr. Mills, whatever he now recollects, must have seen Miss Miller when he was at least 10 metres, and possibly 20 metres away from her. On the evidence of Mrs. Macdonald that the brakes of the Coach were applied when it was about one coach length, or 12 metres, away from the point of impact, he would have seen Miss Miller when he was 30 metres or more away from her. Had Mr. Mills not been driving too fast, submitted Mr. Purchas, inviting me to find that the speed of the Coach at the point at which Mr. Mills appreciated the need to brake was at least 30 miles per hour, and probably more, he would have been able to stop the Coach without hitting Miss Miller. Mr. Purchas submitted that I should find that it was negligent of Mr. Mills in the circumstances to have been driving the Coach along the Road at any speed in excess of 15 miles per hour. The magic in that number seemed to be that it was at that speed, or one lower, that, on the findings which I was invited by Mr. Purchas to make as to when Mr. Mills had first seen Miss Miller, he would have been able to stop without hitting her. There was no evidence of an expert character which supported the proposition that it was negligent in the circumstances of the conditions in Frog End at about 3.40 on the afternoon of 25 March 1988 for Mr. Mills to have driven at a speed in excess of 15 miles per hour.
31. With great respect to Mr. Purchas it seems to me that I cannot shirk my responsibility to consider in some detail the evidence as to what happened in the period immediately before Miss Miller’s accident, how the accident itself happened, and the immediate aftermath. In particular, it seems to me that I need to make findings as to:-

i) the position in which the Bus stopped to let Miss Miller disembark;

ii) the speed of the Coach as it approached the Bus;

iii) when and in what circumstances the Bus moved off;

iv) the position of Miss Miller immediately before the Bus pulled away;

v) the point of impact between the Coach and Miss Miller;

vi) the speed at which the Coach collided with Miss Miller;

vii) the point at which Mr. Mills became aware of Miss Miller;

viii) the point at which the Coach came to rest after the impact.

In the light of findings on these matters I need to consider whether Mr. Mills was negligent. If I find that Mr. Mills was negligent, but that an accident could not have been avoided, I then need to consider the alternative case for Miss Miller that even if an accident could not have been avoided, by driving at an excessive speed Mr. Mills caused the injuries which Miss Miller suffered as a result of the accident to be more severe than they otherwise would have been. If I find that Mr. Mills was negligent, I need also to consider the question of contributory negligence.

32. In my judgment the real key to what happened in Frog End at about 3.40 on the afternoon of 25 March 1988 is the Bus and the actions of the driver, Mr. Huffer. I accept the evidence of Mr. Paul Miller in preference to that of Mr. Chamberlain as to where the Bus stopped on 25 March 1988. Mr. Miller has, unhappily, every reason to remember when he last saw his sister well, and I am completely satisfied that he did see her waving to him as she walked across the back of the Bus immediately before her accident. With the Bus in that position the obvious thing for Miss Miller to be seeking to do would be to cross the Road behind it to walk up the drive to her house. If the Bus were in the position in which Mr. Chamberlain remembers it, not only would Mr. Miller not have been able to see the back of the Bus, but Miss Miller’s obvious route home from where she had got off the Bus was to pass in front of the Bus.
33. Whether the Bus was strictly speaking a school bus or an ordinary service bus carrying many school children, the evidence was that only Miss Miller and at most one other got off it whilst it was stopped opposite Miss Miller’s home. It appears that the Bus did not move off immediately after one person, or at most two people, got off it. There was no evidence that anyone boarded the Bus whilst it was stopped in the position in which I have found it was when Miss Miller disembarked. Yet the evidence of Mrs. Saul, Miss Goswell, Miss Oldfield and Mr. Nichols was that the Bus did not move off before Miss Miller had had time to walk along the side of the Bus and to get behind it. One asks why the Bus should have remained stationary so long. The obvious answer is because, although he did not remember it when asked to make his statement, Mr. Huffer saw the Coach approaching from the direction in which the Bus was intending to travel. Given the width of the Road and the narrow clearance between the Coach and the Bus as they passed, Mr. Huffer, having seen the Coach, had two choices. He could remain stationary until the Coach had passed, which would give the Coach the maximum space on the Road in which to pass without risk of collision between wing mirrors or other projections from the Bus and the Coach respectively, or he could move off, reduce the available space, and create problems for himself and for Mr. Mills. I have no doubt that he chose to remain stationary until the Coach was at any rate substantially past the Bus. I accept the evidence of Mr. Mills at paragraph 20 of his witness statement dated 11 November 1997 that the front of the Coach was almost level with the rear of the Bus when the Bus moved off.
34. I accept the evidence of Mr. Mills that as he approached the Bus he reduced the speed of the Coach to about 20 miles per hour. Given the width of the Road and the respective widths of the Bus and the Coach and the fact that wing mirrors at least would project some further distance into the space between them I think that it is inconceivable that Mr. Mills would not have reduced his speed as he approached the Bus. He was rather criticised by Mr. Purchas in cross-examination for his concern for his wing mirrors, but that concern would certainly have prompted him, if nothing else did, to reduce his speed. In fact, for reasons which I shall explain, it seems to me likely that he continued to reduce his speed as he passed the Bus. The estimate of speed made by Mr. Chamberlain appeared to be based on nothing more than an attempt after the accident to rationalise how the Coach came to be where it hit Miss Miller without Mr. Chamberlain noticing. The answer, it seems to me, is that which Mr. Chamberlain gave, namely that he was not paying attention to the Coach. I am satisfied that Mr. Chamberlain has no good grounds for his estimate of the speed of the Coach at 35 to 40 miles per hour. There is an obvious contradiction within the evidence of Mrs. Macdonald as to the speed of the Coach. On the one hand she said that it accelerated out of the bend and then maintained its speed as it approached, while on the other she said that at one stage she thought that the Coach was going to stop. I consider that it is the latter evidence which is accurate, and I accept it. That evidence confirms what one would expect of one large vehicle seeking to pass another in a confined space. Moreover, had the Coach been braking hard as it approached the Bus, as on the hypothesis urged upon me by Mr. Purchas it would have been, one would have expected Mr. Huffer to have noticed that and to have given some attention to what it was that was causing the Coach to brake. After all, whatever it was that was causing the Coach to brake was behind the Bus and thus potentially a source of danger to the Bus itself – perhaps a vehicle about to try to overtake. A more gradual slowing down, on the other hand, would have been exactly what Mr. Huffer would have expected given the narrowness of the Road. If the Coach had been travelling at apparently excessive speed, again that is something which one would have expected Mr. Huffer to have noticed, because of the possible risk to the Bus, and to have recalled once made aware of the accident to Miss Miller.
35. In the light of the evidence of Mrs. Saul, Miss Goswell and Miss Oldfield I find that, while the Bus was stationary with Mr. Huffer waiting for the Coach to pass, Miss Miller walked round to the back of the Bus and stood some three to four feet from the back of the Bus waving to her friends. There would have been no reason for Miss Miller to have been further behind the Bus than was necessary for her to be able to see her friends on the upper deck. She was, after all, simply seeking ultimately to cross the Road into her own driveway. Putting herself into a position in which she would have been able to wave to her friends would have been a natural thing to do. There was no reason for Miss Miller in those circumstances to wait on the grass verge, as Mrs. Macdonald recollects. Had Miss Miller been in the position which Mr. Chamberlain remembers the Coach would have been visible to her for some distance at least out of the corner of her eye, and the circumstances of the accident plainly indicate that she was not aware of the presence of the Coach until an instant before it hit her. Moreover, it seems to me that had Miss Miller been in the position in which Mr. Chamberlain places her, it is likely that she would have been noticed in that position both by her friends and by Mrs. Macdonald. I do not accept the suggestion that Miss Miller ran, or walked quickly, across the Road. She had no reason to do so, and some reason not to whilst her friends could still see her and wave. The evidence was that 25 March 1988 was the last day of term at the School, and it might be supposed that in a rural area it might be some time before the friends would see each other again.
36. On the totality of the evidence I am satisfied that as the Coach passed down the side of the Bus, the Bus moved off, and that as it did so, Mrs. Saul, Miss Goswell and Miss Oldfield turned from waving to Miss Miller. When they stopped waving to her, Miss Miller herself turned and stepped out from behind the departing Bus straight into the path of the Coach. Both Mrs. Saul and Mr. Chamberlain spoke of Miss Miller stepping out. I find that Miss Miller saw the Coach an instant before it hit her, and Mrs. Saul saw her expression at that moment. This analysis of the facts would explain the otherwise puzzling circumstance that at the time it occurred Mr. Huffer, the driver of the Bus, was wholly unaware of what had happened. He would have been unable to see to his rear if his view was blocked by the Coach passing beside the Bus, and the fact that the Coach was passing beside the Bus would have provided reassurance to Mr. Huffer that the Bus was not in danger of someone attempting to overtake it until such time as the Coach had travelled some distance past it. The point of impact was therefore, in my judgment, approximately in the middle of the Road opposite the driveway to Miss Miller’s own house. I am entirely satisfied that Mr. Mills did not actually see Miss Miller before the moment of impact and that he had no opportunity to do so.
37. I accept the evidence of Mrs. Macdonald, Mrs. Elliott and Mr. Miller as to where the Coach came to rest after the impact, that is to say across the driveway of 73, Frog End. That was some 10 to 12 metres from the point of impact. On the basis that Mr. Mills did not appreciate the need to stop until the Coach hit Miss Miller, as I find, the speed of the Coach at the moment of impact in the light of the Stopping Distance Table, assuming the fastest reaction time, was in fact between about 14 and 16 miles per hour. That conclusion is not consistent with the evidence as to the results of applying the formulae as to the distance bodies are thrown at particular impact speeds as to which both Dr. Horsfall and Mr. Shellshear gave evidence in their reports. However, as Dr. Horsfall explained in his oral evidence, the formulae in question are simply the mathematical expression of experimental data. That data of necessity represents an average experience. The fact that that experience was not borne out in this case on my findings of fact should not, in my judgment, lead me to doubt the conclusions as to which I am otherwise satisfied.

Conclusion

38. In the result, for the reasons which I have given, I am satisfied that Miss Miller’s accident was just that, an accident for which no one can be blamed. I am not satisfied that there is any criticism which can properly be made of the manner of Mr. Mills’s driving in the moments leading up to the accident. Notwithstanding his rather defensive attitude in cross-examination, it seems to me that his speed was appropriate to the conditions as they appeared, he was keeping a proper lookout and had no particular reason to give warning of his approach by sounding his horn. The consequences of a most unfortunate combination of chances for Miss Miller have been catastrophic. She has, of course, the sympathy of the Court, as do those who gave evidence of fact at the trial, some of whom were evidently distressed at reliving the traumatic events of 25 March 1988. However, in the light of my findings this action fails and is dismissed.