Boy aged 11 hit by defendant's car when crossing road-Evidence of defendant and oncoming motorist that boy ran out into road-Evidence of boy and friend that he slipped and fell as he was crossing the road-Correct approach to assessing contradictory accounts-Whether negligence established. The claimant, aged 11 years, was crossing the road outside his home and had reached a point just over the centre of the road when he was struck by a car driven by the defendant and sustained severe physiological and neurological injuries. In his action in negligence against the defendant, he claimed that as he was walking across the road he had slipped and was hit by the defendant's car as he was getting to his feet, and that his position in the road should have been obvious such that a reasonable driver would have seen him in time to avoid a collision. The defendant asserted that a reasonable driver could not have avoided the collision, because the claimant had run into the road when the defendant's vision was largely obscured by oncoming traffic, giving insufficient time to brake. Two eye witnesses also gave evidence. One, the claimant's school friend who was waiting for him on the opposite side of the road, gave five different accounts of the accident, first, telling the police officer shortly after the accident that the claimant had run across road, slipped and hit the car, and in all accounts he said that the claimant had "slipped". The other witness, an oncoming motorist, said: "the boy ran straight out into the path of the red car", but also said that the claimant had bounced off the bonnet of the defendant's car, which other evidence demonstrated did not happen. The judge observed that, in a case such as the present, it was not possible to conclude with absolute precision what occurred, and that the court did not have to be certain, but had to come to a reasoned view as to the most probable explanation. He found that there was nothing in the evidence of either expert that demonstrated that the contentions of one side, or the core evidence of a given witness, was incontrovertibly wrong, and decided that, most probably, the claimant ran across the road towards his friend into the path of the oncoming traffic, probably slipped and fell into the path of the car of the defendant, who had no realistic opportunity of avoiding the collision. He, therefore, dismissed the claim. The claimant appealed, contending that the judge had misdirected himself by not stating specifically that there was a high burden on a driver to reflect the fact that a car was potentially a dangerous weapon and that that failure to recognise the appropriate standard of care was consistent with the judge's overly benevolent approach to the defendant's evidence.
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