The judge was entitled to find on the totality of the evidence available at the time that a coach driver was not liable for injuries sustained by a child after she walked out into the road from behind a double-decker bus into the path of the coach.Appeal by the claimant ('C') from the decision of Judge Richard Seymour QC dated 9 July 2002. The grounds of appeal criticised the judge's conclusions in relation to the speed of the coach that struck C. C relied on the expert evidence of a consultant neurosurgeon that was available at the trial but had not been investigated due to what C argued was the judge's premature conclusion as to speed. The expert evidence relied on by C was in relation to the distance that she was projected after being struck by the coach. It was C's argument that the judge's finding that the coach was travelling between 12 and 14 mph, was not only inconsistent with the defendant's case that the coach was travelling at 20 mph, but was inconsistent with the experts' evidence that if C had been projected between 10 and 12 metres, as stated by witnesses, the judge should have found that the coach was travelling at a greater speed. The critical question was whether the judge's analysis of the accident and the driver's role in it was vitiated by the judge's finding as to the coach's speed and most importantly the inconsistency between the judge's finding as to the speed of the coach and the distance C was projected, having been struck by the coach.HELD: (1) The judge was faced with the difficult task of reconstructing an accident that occurred in 1988 in which the witnesses were seeking to remember old events. One of the consequences of the delay was that the expert evidence could only provide parameters to deal with the facts as found by the judge. (2) At best the expert evidence could only offer guidelines. Where the events occurred in such a short time period and no measurements were taken at the time of the accident, a metre here or there or a second here or there could effect the variables upon which the judge was to attach his findings. (3) The judge recognised there were discrepancies and dealt with them in a proper and sufficient way. His overall assessment of the evidence in the case could not be criticised. (4) The instant case was one that the judge properly described as an accident, and he was correct to dismiss the claim on the grounds that the defendant was not shown to have acted negligently.Appeal dismissed, fresh evidence to be admitted with permission to appeal granted in relation to that evidence.

[2003] EWCA Civ 442

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