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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY

		Liverpool Civil and Family Court, 35 Vernon Street, Liverpool, L2 2BX
		15/04/2014

Mrs Justice Patterson :

Introduction

1. On the 13^th March 2007, at about 8 am, Charlotte Rainford was walking, with her sister Vicky, from her home to a bus stop on the A588 otherwise known as Carr Lane in Hambleton, Lancashire to catch a bus to school. Charlotte was aged 14 years and 8 months and Vicky was 16 years and 4 months. As Charlotte crossed from the west side to the east side of Carr Lane to reach the bus stop the claimant was knocked over by the defendant, Kay Lawrenson (now Collinson), who was driving her Ford Fiesta motorcar. Charlotte sustained severe injuries including a serious head injury.
2. On the 2^nd April 2013 District Judge Hovington ordered that the preliminary issue of liability be tried. The trial came before me on the 7^th April 2014.
3. I have to determine two related issues:-

i) Primary liability;

ii) If appropriate, contributory negligence.

Legal framework

4. Given the fact sensitive nature of the case it is not necessary to embark upon an extensive review of legal authorities. In Foskett v Mistry [1984] 1 RTR 1 May LJ said,

"The root of this liability is negligence, and what is negligence depends on the facts with which you are to deal. If the possibility of the danger emerging is reasonably apparent then to take no precaution is negligent: but if the possibility of the danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."

5. I have to apply to Ms Lawrenson's actions the standard of care which ought, in the circumstances as they are found to be, to be expected of a reasonably competent and alert motorist. In so doing it is important to ensure that I do not replace that test with the standard of the ideal driver. It is also important to ensure that I am not influenced by what is sometimes referred to as 20/20 hindsight: see Stewart v Glaze [2009] EWHC 704 at [5].
6. In carrying out the exercise it is important that I bear in mind that, as was recognised in Lunt v Khelifa [2002] EWCA 801,

"A motorcar is potentially a dangerous weapon." [20]

7. In determining whether a child is at fault "the standard by which a child's conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience": see Toropdar v D (a Minor by the Official Solicitor as litigation friend) [2009] EWHC 2997 at [12] where Clarke J (as he then was) quoted from a series of earlier judgments which distilled the relevant principles.

Undisputed facts

8. The claimant was unable to give evidence herself at the trial.
9. Carr Lane in Hambleton is a two lane single carriageway road. The carriageway width is some 6.8 metres wide with each lane of about 3.4 metres. The surface is well maintained asphalt.
10. At the accident scene the road runs through mainly a rural area with occasional residential properties along its length. It has a general north to south orientation running between Hambleton in the south and Stalmine in the north.
11. There is a central hazard warning line which divides the road into two lanes. At the time of the accident the national speed limit of 60 miles an hour for passenger cars applied.
12. Travelling north from Hambleton vehicles on Carr Lane pass through a series of bends with the last to the left. At about that left bend is a property known as Nanny Pam's, a children's nursery. That is about 180 metres south of the collision area.
13. Emerging from the left bend there is clear visibility in a northerly direction of a straight stretch of road. From the point of emergence it is about 100 metres to the bus stop on the eastern side of Carr Lane. At all material times that had a bus shelter. The stop and shelter are immediately to the north of Sower Carr Lane.
14. On the western side of Carr Lane is a bus stop for northbound buses. That is about 20 metres further north than the bus stop on the eastern side. At the time of the accident there was no bus shelter on the western side. The western bus stop itself was to the south of a tarmaced area which led to a dropped kerb onto Carr Lane. That dropped kerb was the northern most of two dropped kerbs on the western side. The southerly dropped kerb is evident on the photographs as possibly leading to a field access and is some distance to the south of the bus stop. Except where interrupted by the dropped kerbs there was a tarmac footway behind a grass verge which was continuous on the western side of Carr Lane.
15. Directly opposite the northern dropped and on the eastern side of Carr Lane was a reciprocal dropped kerb. From there was tarmaced path which led to the bus stop on the eastern side. With the exception of that tarmac the eastern side of Carr Lane in this location beyond the kerb was grass verge.
16. Changes to the configuration of the bus stops have occurred since the accident in that the location of the bus stop on the western side has been moved and a shelter provided. The speed limit on Carr Lane had been reduced to 40 mph.

Factual evidence at trial

17. I heard evidence at trial from Vicky Rainford, Beth and Thomas Chadwick, the defendant and Shelley Crompton. Also in evidence, and relied upon, was the police accident investigation report.
18. Vicky Rainford said that it was the first sunny day of the year and that she and her sister decided to walk to the bus stop from their home to catch the bus to Hodgson School in Poulton-Le-Fylde where they were pupils. They were each wearing school uniform which included a blue blazer, a navy blue skirt and blue and yellow tie. She was about 5 ft 2ins. Charlotte was then slightly shorter. They met up with their friends Thomas and Beth Chadwick who lived on the same road. They were wearing school uniform which consisted of a burgundy jumper with either grey pants or skirt. They were very familiar with the route as it was one they took most days.
19. Sometimes, if it was raining, they would be taken to school. Vicky knew that the road was busy and that vehicles drove fast along it and so that they needed to proceed with care. She was familiar with the Green Cross Code and, in particular, that part where, in dealing with crossing the road, it says to "stop before you get to the kerb where you can see if anything is coming. Do not get too close to the traffic. If there is no pavement, keep back from the edge of the road but make sure you can still see approaching traffic".
20. Vicky agreed that it did not say that one could step into the road and that the reason for that was because it was a dangerous thing to do. She confirmed that Charlotte was also aware of the contents of the Green Cross Code.
21. Her oral evidence was that the group walked along Carr Lane to the bus stop on the western side. It was common practice for all four to cross the road to the bus shelter on the eastern side of Carr Lane particularly if the weather was poor. She and Charlotte would catch their school bus from there and Beth and Thomas would cross back again as their bus to their school, St Aidan's, always arrived after the bus to Hodgson School.
22. On the day in question Thomas Chadwick decided to stay on the same side of the road as the bus stop from where he would catch his bus. The three girls walked on the tarmac area up to the dropped kerb. They looked to the right and saw nothing coming. They then stepped into the road. Charlotte was on Vicky's left, one step ahead of Beth and herself. Beth was on her right.
23. The girls stopped in that position to allow two cars travelling in the opposite carriageway to pass. When that had happened Vicky looked to her right and saw a vehicle approaching. She pulled Beth back to the pavement. When she saw the car she believed that the car was approaching the southerly dropped kerb on the western side of Carr Lane. She was not able to say how fast the vehicle was moving.
24. As she and Beth stepped back she saw Charlotte from the corner of her eye move forward. Charlotte ran forward and the car swerved towards the centre of the road. She thought the impact was towards the central white line of the road.
25. Vicky accepted that, with the passage of time, memory generally fades. She had given a statement to the police on the 3^rd April 2007 in the presence of her father when she did not feel pressured. In that statement she said that the four had walked along the pavement towards the bus stop.

"Charlotte and myself stopped and were checking the road to make sure it was safe to cross, Tom and Beth were stood there they did not need to cross. Charlotte was stood on my left and we were both facing the road. We were stood there for what seemed like a few minutes, being unable to cross due to the traffic being busy. I recall a pinkish/purple car coming from the Hambleton direction. The car was travelling slower than the majority of the other traffic. It was definitely going slower than the 60 mph limit. In the other lane there were two other cars both travelling towards Hambleton village and were going too fast for us to cross before them so we delayed crossing. Without warning Charlotte walked into the road but I didn't see her until I saw and heard the purple car slam its brakes on and swerve into the wrong side of the road."

26. She accepted that her second witness statement in 2009 was slightly different to what she had told the police.
27. Vicky explained that the change had come about as a result of a discussion in the kitchen when both her parents were present as were Tom and Beth Chadwick. That was about a year after the accident. She had not had a full discussion with her parents before that time because they had all been taken up with Charlotte's injuries. She did not know why she had not told the police that Beth was also crossing the road.
28. She knew that it was dangerous to step into the road but did so because she thought that there was enough space. She did not think that the group were chatting when they were to cross the road. They were certainly not standing on the verge. She was not confused by what had happened.
29. She accepted that the police log recorded at 08.27 on the 13^th March 2007 as follows,

"Sisters name- witness- Vicky Rainford. Sister didn't look but ran across the road to get a bus."

30. She was asked whether what she had said then is probably what happened and she did not know. As to whether Charlotte did run she said she only saw her out of the corner of her eye.
31. Beth Chadwick confirmed her witness statement made in July 2009 to the same effect as the evidence given by Vicky Rainford about stepping into the road to allow the two cars travelling from left to right to pass. She only became aware of the Fiesta car when Vicky pulled her back from the road. She did not see the collision itself.
32. The Lancashire Constabulary accident report recorded the nature of the accident as,

"Four school friends waiting on pavement for school buses, one steps onto the road into the path of vehicle one. The two collide with the casualty (Charlotte Rainford) hitting the windscreen."

33. It was put to Beth that that description could not be correct to which she said she did not know because she did not recall what she said to the police on the day in question. She agreed that she had spoken to Mr Lord, the assistant headmaster at St Aidan's School where she was a pupil on the day in question. He had been driving on Carr Lane towards Stalmine. His witness statement records,

"the three students at the roadside told me that the girl was Charlotte Rainford and that she had ran across the road and been hit by an oncoming car."

34. She had no recollection of telling that to Mr Lord. She was in shock but his account was wrong. She did not know whether Charlotte had walked or run.
35. When Vicky Rainford's first witness statement was put to her with its contents that she was not crossing the road she refuted those contents and asserted that she was.
36. She was aware of the Green Cross Code but had not waited on the kerb because she thought they could cross in time. She agreed that if she had stepped into the road her position was directly in line with any vehicle that was coming from the right which was a dangerous place to stand. She was very upset in giving her evidence.
37. Thomas Chadwick confirmed his witness statement, made in August 2009.
38. On the day in question he said that he could not be bothered to cross the road but Charlotte, Vicky and Beth decided that they would do so. He was standing leaning against the bus stop facing in a northerly direction. He saw the girls step out into the road. He could not recall the order in which they were standing save that Charlotte was further out into the road. He did not see her run. He saw the vehicle strike Charlotte at which time she was almost in the centre of the first carriageway, about one quarter of the way across the road.
39. He confirmed that about a year after the accident there had been the discussion in the kitchen about which Vicky Rainford and his sister had spoken. Someone had mentioned that he had sworn after the accident and he replied, "Well, the car almost ran you all over". That was a trigger for a more thorough discussion involving, in particular, Mr Rainford asking questions about where the group had been standing, what had happened and what they were all doing. Thomas had described how Charlotte was further out into the road than the other two so that she must have taken at least two steps into the carriageway. He could see them because they were in front of his position. He denied that he had misremembered and repeated that all the girls had been standing in the road.
40. The defendant, Kay Lawrenson, now Mrs Collinson, confirmed the interview that she had given to the police at 09.24 on the 13^th March 2007. She said that she had been driving to work as normal. She had been driving for 13 years, since the age of 18. There were cars coming the other way. She was coming up to the bus stop where there were a group of school kids on her left hand side on the grass verge. One of the group stepped out into the road. She swerved into the offside carriageway to avoid her. She heard a bang and realised that she had hit her. She was doing about 30-40 mph. The weather was fine and dry and there was nothing obstructing her view of the road ahead. There was nothing that she could do to avoid the girl.
41. In her witness statement, in 2013, she estimated her speed at 30 mph because she had had to stop to allow the car in front of her to turn right into Nanny Pam's. She wanted to be able to stop again should there be traffic waiting to turn right into Sower Carr Lane.
42. She described that as she came round the left hand bend she saw that nobody was waiting to turn right into Sower Carr Lane and also noted a group of school pupils standing at the bus stop on the western side of Carr Lane. There was nothing to indicate that one of them may step out. They were just stood talking. Without warning one of them moved as she was passing the bus stop.
43. She knew that around 8 am it was a time when children were catching school buses. She had passed children on both sides of the road. She was aware that they could run out. She had not adjusted her speed from coming around the bend in the road and accepted that she was doing 34 or 35 mph.
44. She accepted that there was a clear view of about 100 metres from coming around the bend to the bus stop. What she said at the time of the accident was true. She was driving in the centre of her lane.
45. She accepted that at the moment of collision Charlotte was about 1/3^rd of the way across her vehicle. As soon as she saw her she had swerved and braked. Had she seen the children in the road she would have adjusted her speed and covered her brakes and altered her position towards the centre of the road. Whilst she had seen the children she did not expect them to cross the road. She had done everything that she could. She recalled the children standing on the grass verge and not on the kerb.
46. Shelley Crompton was driving on the opposite side of the road to Mrs Collinson. She gave her particulars to the police at the time of the accident but was not asked to provide a witness statement. Her witness statement was, therefore, dated 25^th January 2014. She was travelling alone. As she drove towards the junction of Sower Carr Lane she saw two girls at the bus stop on her right. She recalled them standing half on the grass verge and half on the pavement as she went past. She was travelling at about 20/30 mph.
47. She saw the Ford Fiesta approaching her car in the opposite direction. About 15-20 yards further along the road she heard a bang. She looked in her rear view mirror and could see one of the school girls up in the air above the level of the bonnet with her school satchel dangling on her arm. She then landed on the road in front of the Fiesta so that Mrs. Crompton was unable to see her.
48. She had presumed that the two girls were going to cross the road as she was aware of the bus stop on the other side. She pulled up just beyond Sower Carr Lane.

Police Accident Investigation Report

49. The report was prepared taking into account the witness statements of Vicky Rainford, Anthony Lord, PC 1727 Lund and a copy of the interview with Kay Lawrenson. It produced a plan and selected photographs relating to the collision. When PC Roberts, who compiled the report, arrived at the scene the road had been closed to traffic but the accident vehicle remained in situ. The photographs show the scene of the accident with the bus stop without the shelter on the western side of Carr Lane together with the dropped kerb with asphalt pathway towards the carriageway immediately to its north.
50. Charlotte's position was indicated by a marker on the carriageway about some 12-13 metres from the bus stop. The position of the Ford Fiesta was photographed as stationary in the offside lane angled very slightly towards the kerb. It was around 25 metres beyond the bus stop. The vehicle was examined and the location of the damage noted. The vehicle was found to be in an excellent mechanical condition. The speed of the vehicle was estimated at 39 mph on the assumption that emergency braking was for the entirety of the tyre mark. If the tyre mark was not continuous it was accepted that may not be the actual speed of the vehicle.
51. The report recorded that there was insufficient evidence to identify the area of impact or to ascertain how far the casualty had crossed from the kerb. It was not, therefore, possible to indicate how long she had been in the road. The damage to the Ford was to the front nearside corner and to the nearside pillar. The nature of that damage and the lack of an identified area of impact made pedestrian throw calculations unreliable.
52. The report continues,

"8.6 Of the witness statements provided to me only Vicky Rainford, the casualty's sister witnessed the collision itself. She described reaching the bus stop and stopping, waiting for a safe opportunity to cross the road. She was aware of vehicles passing in each direction. She did not see her sister walk into the road and cannot explain why she would have started to cross at that time.

8.7 In her statement she does not indicate how far into the road her sister had crossed prior to being struck by the Ford. In relation to the speed of the Ford, she states that, "the car was travelling slower than the majority of the other traffic" and that "it was definitely going slower than 60 mph limit".

8.8 The driver of the Ford estimates her speed in the 30-40 mph bracket and that one of the group stepped out into the road. She goes on to say that she braked and swerved to the offside but was unable to avoid a collision."

Accident Reconstruction Experts

53. Dr Coley produced a report on the part of the claimant and Dr Horsfall produced a report on behalf of the defendant. They agreed a joint statement dated 4^th December 2013 and jointly answered questions in a document dated 20^th March 2014. As a result of their significant agreement neither expert was called to give evidence.
54. Their joint statement included the following,

"2.6. Based upon the distance that Miss Rainford was projected by the impact we have both calculated that the speed of the car at impact was in the range of 23-34 mph.

"2.7. The physical evidence is inconclusive as to the car's exact position at impact. We have calculated similar ranges of time from Miss Rainford leaving the kerb to reaching the point of impact if she did that in a continuous movement. Dr Coley's figures are 0.7-1.4 seconds and Dr Horsfall's figures are 0.6-1.3 seconds.

2.8. Our observations and measurements at the scene show that the road is straight for over 100 metres when looking towards the south from the collision location and whilst the time for which the car would have been in view depends upon its speed, there appears no doubt that the car would have been close enough for Miss Rainford to have seen it well before she started to cross, from whichever initial position she adopted (on the footway or just into the road), had she looked in that direction.

2.9. If Ms Rainford moved from the edge of the road to her position at impact within the range of times we have calculated that range is almost exactly the same as the likely range of drivers perception response time when faced by an unexpected, although straightforward, emergency.

2.10 Therefore, if the court finds that Ms Rainford did move into the road without warning we would expect Ms Lawrenson to have commenced physical reaction (i.e. probably just commencing braking) at a time close to the time of impact probably between half a second before and half a second after the collision.

2.11. We estimate that the distance between the nearside of the car and the kerb as it was passing the bus stop would have been about 0.9 and 1.7 metres (these distances are for central and offside lane positions). If the three girls were standing one step into the road i.e. about 0.5 metres from the kerb, the separation between the nearside of Miss Lawrenson's car and the pedestrians would have been between 0.4 and 1.2 metres, depending on the lateral position of the car within the northbound lane. The range of time for Miss Rainford to reach the point of impact would be less than the figures in paragraph 2.7 above which are based on her starting at the kerb.

2.12. There is no physical evidence which assists in determining whether the actions of the three girls before Miss Rainford starting to cross into the path of the car might have alerted a driver to a possibility of one or more of them might move into the car's path. That must be a matter of witness evidence for the court."

55. The joint answers were provided on the basis of a series of assumptions to enable calculations to be carried out to determine speeds for Miss Lawrenson, which would have allowed her to stop before the collision or to have reduced her speed to a specified target level.
56. The experts agreed that if the car was being driven in a central position in the northbound lane then the minimum likely crossing distance for Miss Rainford, from the kerb, would be about 1 metre. This assumes her position relative to the car at impact was close to the nearside front corner. If the car had its offside wheels at the centre line of the road and the impact was further from the nearside front corner then Miss Rainford would have reached a position about 2.2 metres across the road. Those distances would reduce by 0.5 metres when considering Miss Rainford starting from a position already 0.5 metres into the road i.e. to 0.5 and 1.7 metres respectively.
57. The experts then produced three tables. The first looking at the time it would take Miss Rainford to reach the impact depending upon where the car was located within the lane in which she was travelling, where Miss Rainford was starting from and whether she was walking or jogging. Tables 2 and 3 show alternative approach speeds required to stop or reduce the impact speed to 15 or 10 mph with Ms Rainford commencing movement from the kerb edge (table 2) or from 0.5 metres into the road (table 3).

Factual findings

58. The most contemporaneous account of the accident was logged by the police at 08.27 on the 13^th March when Vicky Rainford is recorded as saying "sister didn't look but ran across the road to get her bus."
59. The next account in time is in the interview that the defendant gave to the police at 09.24 on the 13^th March 2007. She said then,

"I was driving to work as normal. I drove along the road. There were cars coming the other way. I was coming up to the bus stop. There was a group of school kids on my left hand side on the grass verge. One of the group stepped out into the road. I swerved into the offside carriageway to avoid her."

60. She said later in the same interview that,

"I wasn't travelling at excessive speed. There was nothing else I could do to avoid the girl."

61. The next statement in time is that of Vicky Rainford to the police on the 3^rd April 2007 which I have set out above. Whilst there is an inconsistency with the police log as to whether Charlotte ran or walked across the road the fact of her not looking and moving without warning is common in all three statements.
62. In her statement to the police Vicky Rainford says that she ran over to Charlotte as the car behind the Fiesta stopped. That was driven by a previous teacher of hers, Mr Lord, who then worked at St Aidan's school.
63. Mr Lord was interviewed on the 7^th May 2007. He recalled being told by three students at the roadside that Charlotte had run across the road and been hit by an oncoming car. Later that day he was present with Thomas Chadwick and Beth Chadwick when they gave statements. He says,

"I recall that their statement was consistent with what they had told me at the scene. That Charlotte had run across the road without looking in an attempt to get to the bus stop before the bus arrived."

64. The police have lost or mislaid the diagrams which the Chadwicks gave to them showing the position in which they were standing.
65. All of those statements have the advantage of being given contemporaneously or shortly after the accident itself. Inevitably, recall will be fresher shortly after the accident itself and should be more precise.
66. Mr Hunter QC, on behalf of the claimant, in seeking to answer the question about how does one resolve the evidential conflict, refers to a letter of the 11^th February 2009 from Dr Verma after a review of Charlotte with her parents in the Poulton clinic on the 29^th of January of that year. In that letter the following is recorded,

"Charlotte's parents also told me that Charlotte and the whole family had been affected following the road traffic accident. Charlotte's elder sister, Vicky, witnessed the road traffic accident and apparently saved other girls from the accident. Vicky feels quite guilty for assuming that her sister, Charlotte, was safe and then discovering that she sustained severe injuries following the road traffic accident."

67. Mr Hunter submits that the letter is significant because it was written outside any litigation. Whilst the latter observation is clearly correct, the fact is that it is a letter written almost 2 years after the accident and reliant upon what Mr and Mrs Rainford were informing the consultant at the meeting in January 2009. Neither Mr nor Mrs Rainford were witnesses to the accident. It was at a time after the discussion in the kitchen when the circumstances of the accident had been discussed about a year after the accident. Whilst Mr and Mrs Rainford's concern and Vicky's expressions of guilt are entirely understandable, in the circumstances of this tragic accident, I do not find the letter of significance for the reasons that I have set out in determining the conflict of fact as to what occurred on the 13^th March 2007.
68. Next, Mr Hunter submits that the trauma of what happened in March 2007 affected the ability of the family to deal with matters until later. There may well be truth in that observation. However, Vicky was quite able to give a full statement to the police on the 3^rd April 2007 in circumstances where she did not feel pressurised in so doing: a position that she confirmed to the court in giving her evidence. Clearly, the contents of her police statement can only have come from her as neither the policeman recording it nor her father, who was present when the statement was taken, were present at the scene. I regard that initial witness statement as of considerable weight. There is no reference within it to Charlotte, Vicky or Beth standing in the road. Indeed the opposite. Vicky is recorded as saying, "Charlotte was stood on my left and we were both facing the road… without warning Charlotte walked into the road..." On no occasion close to the accident is there any reference to being stood in the road, whether by one step or more, and the wording used, in my judgment, makes it clear that the girls were on the edge of the footway leading up to the dropped kerb and not within the carriageway of the road itself.
69. Mr Hunter then submits that Tom Chadwick was clear and measured in giving his evidence and entirely credible in what he said. He had a clear view. Mr Chadwick confirmed that he did not see Charlotte run. That, of course, is consistent with the evidence in Vicky Rainford's witness statement to the police and with what the defendant said. His evidence is also consistent with the expert analysis, as reflected in the joint statement, which is that, on the balance of probabilities, the claimant was walking and was about ¼ of the way across the road, which is about 1.75 metres from the kerb. On that aspect Tom Chadwick's evidence was entirely credible. I deal with the remainder of his evidence below.
70. The experts were agreed also that Charlotte's position of rest was consistent with her being stationary or slow moving at the time of the collision.
71. With evidence about Charlotte's movement coming from a variety of sources my finding is that Charlotte walked into the road and did not run.
72. As to the starting position from which she commenced her walk I do not accept that the three girls stepped out into the carriageway and waited there to enable traffic travelling in the opposite direction to clear so that they could cross over the remainder of the road. Both Vicky Rainford and Beth Chadwick presented as eminently sensible people who accepted that they were well aware of the contents of the Green Cross Code. Whilst I accept that this incident is now more than 7 years ago so that they were considerably younger at the time of the accident to take up a position in the carriageway that was inherently dangerous and which placed them all at risk is something which, having seen them, I do not find plausible.
73. That finding in underlined by the fact that there is no reference to adopting that position in any of the statements made contemporaneously or shortly after the accident.
74. The explanation that the full recollection on the part of Vicky Rainford, Beth and Thomas Chadwick was triggered as a result of a discussion in the kitchen about a year after the accident when they were all present I do not find convincing. I can quite accept that there was a discussion in the kitchen, and that there may well have been, many discussions in the kitchen as to what actually happened but, with the passage of time, the problems of memory and the entirely understandable desire not to face up to what actually did occur, I consider that, on this aspect, the evidence of the Claimants' witnesses as to where the girls were standing and from where Charlotte began to move was honestly mistaken.
75. The other aspect of the account is that of the defendant. If the later account of the claimant's witnesses is as set out in their witness statements in 2009, and is correct, that would mean that the defendant had a clear and unobstructed view of three girls in the road for a distance of about 100 metres. She was travelling well within the speed limit. She was aged 31. She, too, presented as a sensible and competent witness, understandably distressed by the events of the day. She was in no hurry. She was on her regular journey. I do not accept that someone travelling in that cautious manner would have ploughed on regardless towards three girls positioned in the carriageway which would be the effect of accepting the later account given by the Chadwicks and Vicky Rainford. At the moment the defendant came around the bend in the road and began to head north on the straight section of Carr Lane I find that she was driving in a way which was cautious and prudent. I do not find it likely that she would have proceeded without any alteration to the position of her car or how it was driven had the girls been stood in the carriageway.
76. The remaining witness who gave factual evidence was Shelley Crompton. She was recalling matters 7 years after the accident. Her contribution can only, therefore, be limited. She was though entirely independent and presented as a plausible witness. Her account that she saw two girls who she presumes were going to cross the road is not entirely inconsistent with the first statement that Vicky Rainford gave to the police. She says that she saw two girls and that they were not in the road. It may be that the two girls that she saw were Charlotte and Vicky waiting to cross the road but what she was absolutely clear on was that there was no one in the road. Her evidence is supportive of the initial accounts given by the witnesses to the police shortly after the accident in that regard and gives those statements added weight. The fact that she thought the girls were on the pavement behind the verge and that there were only two and not four school children I put down to the passage of time.
77. The next question is where was the defendant when the claimant stepped out into the carriageway? The defendant herself says that she was coming to the bus stop when one of the group stepped out. The problem with "coming to the bus stop" is that it is a vague description. In cross examination she said that she was by the bus stop in the centre of her lane.
78. On the balance of probabilities I find that the defendant was to the south of, but on the immediate approach to, the bus stop sign on the western side of Carr Lane when Charlotte stepped out into the carriageway. That is consistent with the expert view of Dr Coley that the damage to the Ford Fiesta was consistent with it striking an upright pedestrian when the pedestrian was either stationary or moving slowly across its path. The damage to the vehicle shows that the claimant was about 1/3^rd of the way across the width of her vehicle. That would be consistent with the position in the joint expert statement of the 4^th December 2013 where they estimated the distance between the nearside of the car and the kerb as it was passing the bus stop to have been about 0.9 meters for a centrally positioned car. The time to reach that position would have been in the range of 0.7-1.4 seconds and 0.6-1.3 seconds.

Findings of liability

79. The next question is whether a reasonably prudent motorist in the particular circumstances as found would have considered that there was a risk that one of the group of school children might step into the road so as to make it necessary to take precautionary measures.
80. A motorist is taken to know the principles of the Highway Code, including paragraph 146, which advises anticipating what pedestrians, particularly children, might do, namely, that they may step out into the road without seeing an oncoming vehicle if they are looking the other way.
81. It is clear that the defendant was aware of the group of children from rounding the bend and on her approach to the bus stop. She was not travelling at an excessive speed and agreed that she was travelling at about 34-35 mph. In her interview with the police she estimated the speed to be 30-40 mph. The experts agree that for the throw distance the speed at impact would be in the region of 23-34 mph. I find that it is more likely than not that the defendant was travelling at a reasonable speed for this particular road, namely, in the region of 34 mph. Her acceptance that her speed was of 34mph in cross examination I regard as an indicator as opposed to a precise evaluation of her speed.
82. What could the defendant see and what could she reasonably anticipate? The defendant was aware of a group of children at a bus stop. However, she agreed in cross examination that she had been past school children on both sides of the road. It was a road that she knew well and travelled on a daily basis. It was a straight road and visibility was clear. As such, she ought to have been aware of the presence of bus stops on each side of this stretch of Carr Lane. The presence of children on both sides of the road ought to have alerted her to the prospect that some children might cross the road. In those circumstances, in addition to the normal obligations under the Highway Code, there were locational factors present which meant that the defendant should have been alert and anticipated that there was a real risk of one of the group of children stepping out into the carriageway. I do not accept the submission of Mr Worthington QC, for the defendant, that there was no reason for the defendant to anticipate such an action.
83. The next question is what ought a driver in the circumstances that the defendant found herself to have done in relation to that risk? She could have slowed down, she could have sounded her horn, she could have covered her brakes and/or she could have moved to her offside. Would the expectation of those steps or any of them have been a counsel of perfection on the part of such a driver or were they a reasonable expectation?
84. I find that a reasonably prudent motorist having observed all that the defendant did ought to have assessed the risk that one or more of the children might step into the road or attempt to cross to the opposite dropped kerb to gain access to the other bus stop as one that was real. The congregation of children in such a location presents a risk of imprudent action on their part against which it is not unreasonable for a reasonably competent driver to take precautionary steps. In the circumstances, a reasonably prudent driver, on the immediate approach to the bus stop, would have reacted to that risk assessment accordingly, and repositioned herself closer to the centre line and/or reduced her speed and/or covered her brakes. I deal with the issue of sounding her horn below. By taking those steps she could have shortened her perception response time to the minimum of about 0.5 seconds.
85. The tables produced by the joint experts in response to the questions asked of them are based upon a number of alternative assumptions where the values vary depending upon where it is assumed the impact occurred and Charlotte's speed of movement. As such they are a tool, but no more than that, in any assessment of likelihood of avoiding the accident. As part of the toolkit though, Table 2 demonstrates that had the defendant correctly assessed the situation and moved to her offside, albeit it still within her lane, and covered her brakes, she would not have needed to reduce her speed from an assumed 34mph to be able to stop and so have avoided the accident.
86. Had the defendant used her horn would that have alerted the claimant who clearly had not spotted the oncoming vehicle? In the circumstances of this case the audible disruption of a teenage reverie could have forewarned Charlotte of the approaching vehicle being driven by the defendant.
87. It follows that the primary liability in this case I find lies with the defendant who failed to keep a proper look out and take appropriate steps to the real risk that presented itself to her..

Contributory negligence

88. I have been referred by the defendant to the cases of Paramasivan v Wicks [2013] EWCA Civ 262, Foskett v Mistry (supra) and Toropdar (supra). All of those cases involved child claimants where contributory negligence varied from 75% to 33% depending upon the circumstances. The defendant submits that if the claimant was on the pavement and stepped into the road the amount of contributory negligence should be 75%.
89. The claimant submits that there is some guidance in the case of Eagle v Chambers which was cited in the Toropdar case where the court substituted 60% as a finding of contributory negligence on the part of a 17 year old claimant struck by a car going at between 30-35 mph.
90. The judgement in all of these cases is fact sensitive. In the present case, the claimant was at an intended crossing point, albeit not one that was marked by road signs, by virtue of the dropped kerbs on both sides of the highway opposite each other. I have found that the defendant ought to have kept a proper lookout and could and should have taken precautionary action. She had travelled the route daily for a period of 12-24 months and given her observation of children on both sides of the road I reject her contention that she was unaware of children crossing the road to the other bus stop.
91. In those circumstances, although Charlotte, at the age of 14 years and 8 months, was clearly aware of the Green Cross Code and was of a certain maturity, I do not think it appropriate to assess her contribution as greater than that of the driver. I have come to the conclusion that the proper percentage reduction in this case to take account of the contributory negligence on the part of the claimant is that submitted by the claimant's counsel, namely, 50%.
92. I am grateful to both leading counsel for their helpful submissions. I will deal with all subsequent matters such as costs either in writing or at the handing down of this judgment.