Barrow (by his litigation friend and grandfather Hugh Barrow) & Ors. v Merrett & Anor.

On an appeal from a fact-finding judgment in a road-traffic negligence claim, the Court of Appeal will not rehear the evidence or substitute findings merely because another conclusion was possible. Intervention is justified only where the challenged finding was not reasonably open on the evidence and was therefore wrong.

[2013] EWHC 3560 (Comm) does not impose a general rule requiring eyewitness evidence to be subordinated to expert or other objective evidence. Objective evidence should test recollection, but its weight depends on what it can establish. Where expert reconstruction depends on unverifiable assumptions and witness narratives, primary factual evidence remains central.

Felix Barrow, aged 11, was seriously injured when he was struck by a car driven by Rosemary Merrett while crossing the road. He claimed damages in negligence. The central factual issues were whether he was running or walking and what body position he occupied at impact.

Richard Hermer QC, sitting as a Deputy Judge of the High Court, dismissed the claim, finding that Felix had probably run into the road, slipped forwards and been struck before the driver had a realistic opportunity to avoid the collision: [2021] EWHC 792 (QB). The appeal challenged the treatment of eyewitness and expert evidence, reliance on an accident-reconstruction theory, and the adequacy and fairness of the factual reasoning.

Appeal dismissed. Lady Justice Elisabeth Laing gave the principal judgment. Lord Justice Bean agreed, and Lady Justice Macur agreed with both judgments.

1. The appeal was not a vehicle for rehearing the evidence. Applying the approach in Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5, the Court would not interfere with findings of fact, inferences or evaluative conclusions merely because another view was possible. Permission granted on grounds described as just arguable did not alter that approach. Intervention required a finding which was not reasonably open to the trial judge and was therefore wrong.
2. The trial judge had not misunderstood the issues. The parties’ positions made the likely duration of Felix’s presence in the road central to whether the driver had a reasonable opportunity to see and avoid him.
3. The judge had not misapplied Gestmin SGPS (SA) v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). Gestmin’s observations about the fragility of memory and the possible reliability of contemporaneous accounts did not create a universal rule requiring eyewitness evidence to be treated as secondary. The judge was entitled to assess all the evidence together and to recognise that the accident-reconstruction evidence depended on witness recollections and unverifiable assumptions.
4. Expert evidence was a means of testing primary factual evidence, not a fixed framework for judging the accident with mathematical precision. The judge was entitled to use the scene, objective facts, inherent probability and common sense. He could accept the contemporaneous account recorded by PC Giles, prefer it to later accounts, and accept that witnesses were honest while finding parts of their recollections inaccurate. His acceptance of some evidence from Alexander Gent and Rosemary Merrett did not constitute an impermissible numbers-based approach. Nor was he required to address every item of evidence where his judgment identified the crucial issues and gave adequate reasons.

The judge’s description of the applicable negligence law disclosed no material legal error. The findings were open to him on the evidence, and the appeal was dismissed.

• Court of Appeal (Civil Division): Dismissed the appeal on 16 September 2022.
• High Court: Richard Hermer QC, sitting as a Deputy Judge, dismissed the negligence claim: [2021] EWHC 792 (QB).