MW (a child by his litigation friend DW) & Anor v Graham Wilkinson & Anor

A driver is negligent only if the driving falls below that of the reasonably careful driver and causes the accident. The standard is assessed against the actual circumstances, without ideal-driver reasoning, hindsight or unwarranted factual precision. A child’s presence near a school does not automatically require a driver travelling within an advisory speed limit to slow substantially further. The relevant question is whether the child’s position and conduct created a reasonably apparent risk requiring precautions. Where a child emerges suddenly from behind a parked vehicle, leaving no time for perception, reaction or braking, the collision may be unavoidable and the driver will not be in breach. Accident-reconstruction and medical evidence must not be converted into rigid mathematical or speculative conclusions.

The claim arose from a road collision in which the first claimant, then aged five, suffered life-changing injuries after being struck by the first defendant’s Ford Ranger. His twin sister, the second claimant, witnessed the accident and alleged psychiatric injury. Liability alone was tried.

The claimants alleged excessive speed and inadequate observation. They contended that careful driving would have avoided the collision or reduced its speed and the resulting injuries. The defendant maintained that he was travelling at about 20 mph, that parked vehicles obstructed his view, and that the child emerged suddenly into his path. The issues were whether the defendant drove negligently and, if so, whether non-negligent driving would have avoided or materially reduced the collision.

1. Claim dismissed. The defendant was not negligent. The collision was a tragic accident for which no party was legally responsible.
2. The claimants bore the burden of proving, on the balance of probabilities, both a breach of the standard of the reasonably careful driver and causation. The standard had to be applied to the circumstances of this collision, without judging the defendant as an ideal driver or with hindsight. The guidance summarised in Gadsby v Hayes was adopted as a useful starting point: [2024] EWHC 2142.
3. The court found that the defendant was travelling at no more than 20 mph. The presence of a primary school and an advisory 20 mph limit did not, without more, require a careful driver to travel at 10–15 mph. A child on the pavement was not necessarily a hazard requiring evasive action. The child’s position, orientation and conduct had to be assessed in context.
4. On the balance of the evidence, parked vehicles were present near the collision and the child emerged from behind one of them. The defendant had only a split second to see him and no sufficient opportunity to react, brake or avoid the impact. The experts agreed that, in those circumstances, the collision could not have been avoided. There was therefore no breach of duty.
5. The court also preferred the defendant’s accident-reconstruction expert. Expert evidence was useful for testing primary factual evidence but could not impose a rigid mathematical framework. The suggested consequences of a one- or two-mph reduction in impact speed were too speculative. That causation issue was academic because the defendant was not negligent.

The court therefore found that the defendant’s driving was reasonably careful, that he could not reasonably have been expected to identify the child as a particular hazard, and that the claim should be dismissed.