Barrow & Ors v Merret & Anor

In a road-traffic negligence claim, liability is determined by applying the standard of the reasonable driver to the facts found on the balance of probabilities. The court need not reconstruct a fast-moving accident with certainty; it must identify the most probable explanation from the evidence as a whole.

Contemporaneous evidence may be more reliable than recollections formed during later litigation, but no rigid evidential hierarchy applies. Expert evidence may test factual accounts, but it must not be elevated into a fixed framework that displaces primary factual evidence, particularly where the experts’ conclusions depend on unverifiable assumptions.

Felix Barrow, aged 11, was seriously injured when struck by a car driven by Rosemary Merrett while crossing a road. The claim was tried on liability alone. The principal factual dispute was whether Felix had been walking and was struck while getting up, or had been running, slipped forward and entered the path of the car too shortly before impact for the driver to avoid the collision.

Felix’s parents also claimed damages for psychiatric injury, but their claims depended on Felix establishing the driver’s liability. The court had to determine the most probable sequence of events and whether Mrs Merrett had acted negligently or Felix had contributed to the accident.

1. The claim and the dependent psychiatric-injury claims were dismissed. The court found that Felix had probably run across the road after a vehicle had passed, slipped, and fallen into the path of Mrs Merrett’s car. She had no realistic opportunity to avoid the collision.

2. The applicable standard was that of the reasonable driver, not the ideal driver. The assessment required consideration of the established facts in their particular context, without imposing a guarantee of the claimant’s safety or judging the driving with hindsight.

3. The court’s task in reconstructing a brief and traumatic accident was to reach a reasoned view of the most probable explanation. It was not required to establish the precise mechanism with certainty. The evidence had to be assessed in its totality, including the scene, objective features, lay evidence, expert evidence and common sense.

4. Gestmin did not establish a fixed rule that eyewitness evidence must be subordinated to objective or expert evidence. Its observations concerning the malleability of memory nevertheless provided important guidance. The contemporaneous police record and evidence given shortly after the accident were more reliable than the later litigation accounts.

5. Primary factual evidence was of greatest importance. Expert evidence provided a means of testing factual evidence and inferences, but could not be treated as a mathematically precise or rigid framework where it depended on unverifiable assumptions and competing witness narratives.

6. The evidence of Mr Gent, Mrs Merrett and the contemporaneous police record outweighed Nicholas Stannard’s later recollection. The medical and accident-reconstruction evidence did not compel a contrary conclusion and remained broadly compatible with a forward slip immediately before impact.