Shaun Ferris has appeared in the Court of Appeal and upheld a finding in favour of a motorist who collided with a pedestrian who had run out in front of her
Shaun Ferris succeeded in upholding a judgment in favour of a defendant motorist who collided with a pedestrian. The Court of Appeal held that the trial judge was entitled to rely on the lay witness evidence in preference to the expert evidence where there was little forensic material for the experts to work with and where their opinions had, of necessity, to rely on a large number of assumptions.
C had attempted to run across two lanes of the A4 and was struck by the offside front of D’s vehicle in the outside lane. The lay witness evidence from D and a motorist travelling behind her was that D had braked as soon as C had run out into the road. C’s expert contended that the road had a coefficient of friction appropriate to a damp road surface and, with that coefficient of friction, D ought to have been able to stop or slow sufficiently to avoid colliding with C. C therefore concluded that D had either failed to brake or brake sufficiently in time. D’s expert, noting the evidence in the police report of ice on the road, suggested that the reason D was unable to avoid C, despite braking in good time, was that the coefficient of friction on the road was lower than that contended for by C.
The trial judge found the lay evidence persuasive and accepted that in preference to the expert evidence. There had been little for the experts to work with; there were no skid marks, D had moved her vehicle post impact and C had struck a lamp post before coming to rest so that his final position was unhelpful to any forensic analysis. In reality, all the experts could provide was a “crude estimate” of D’s speed at impact. Any further analysis by them depended on a wide number of variable and assumptions.
On that basis the trial judge found that D was not to blame for the accident, having done all that she could reasonably be expected to do to avoid the impact. If liability had been established against D, the judge would have found C 75% to blame for the accident.
The Court of Appeal upheld the decision, finding that the trial judge was entitled to take the approach that he had taken given the lack of material for the experts to work with and given that he had plainly found the lay witnesses impressive. The Court also indicated that they would not have interfered with the finding of contributory negligence against C had they interfered with the decision on primary liability.