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Honnor -v- Lewis Case Report

6 January 2006

Honnor (a minor by his mother and Litigation Friend, Elizabeth Honnor) v Anthony Lewis

Liability: Child run over by motorist whilst walking to school – Primary and Contributory Negligence

Before Mr Justice Silber sitting at Newcastle District Registry on 11 and 12 April 2005

Gerwyn Samuel (instructed by Harris Cartier LLP (previously Harris Cartwright) of Slough, for the Claimant

Alexander Dawson instructed by Clarke Wilmott of South Hampton for the Defendant

Case report submitted by Dean Nicholls, Harris Cartier LLP

On the morning of 9 September 1994 Gavin Honnor, who was then almost 12 years of age, left his home in order to walk to Hetton Comprehensive School. His journey involved crossing North Road along which there are in fact three schools with approximately 1300 pupils attending them in total.

Tragically, whilst crossing North Road Gavin was run over by a Ford Fiesta being driven by the Defendant Anthony David Lewis. As a consequence of the accident Gavin sustained multiple injuries to include in particular severe head injuries. Immediately after the accident Gavin's injuries included spastic quadriplegia, a basal skull fracture, a fracture of the right orbital rim with a right retro orbital haematoma and diffuse brain contusions. Liability remained fully in dispute throughout. As a consequence the case was dealt with by way of a split trial.

The Evidence

As a consequence of the injuries sustained, Gavin who has no recollection of the accident, was unable to give evidence at the trial. However, there were three independent eye witnesses to the accident. In the Witness Statements to the police each witness of fact concluded that when the Claimant had stepped into the road he had failed to see the Defendant's vehicle and that the Defendant could not reasonably have avoided the collision.

In evidence the Defendant accepted that he had failed to see Gavin at all before he started to cross the road. In describing the circumstances in which he first saw Gavin he stated "All of a sudden, it was as if someone had put a person in front of me."

One of the witnesses of fact, Tonia Roberts had been driving her vehicle behind the Defendant. Contrary to the Defendant, she had noticed Gavin standing alone at the kerb and recalled that he was distinctive by virtue of his red hair. She recalled that there were many school children walking to school. She formed the opinion that the Claimant was likely to start to cross the road and recalled that he had turned to his right looking in the direction both of her car and that of the Defendant. She had taken her foot off the accelerator and braked when she saw Gavin standing on the kerb.

At trial the Defendant conceded that at the time of the accident he only held a provisional driving licence and that he was neither displaying 'L' plates nor being accompanied. He was unfamiliar with the Highway Code.

The Court was also assisted by expert forensic evidence provided by Dr John Searle, instructed on behalf of the Claimant. By reference to the police accident report, which included a sketch plan of the scene of the accident, Dr Searle was able to provide evidence as to the distance that Gavin was likely to have travelled across the road before impact and the likely speed of the Defendant's vehicle prior to impact. In so doing, contrary to the opinions expressed by the witnesses of fact, Dr Searle concluded that it was likely that the Claimant had travelled approximately ¾ of the way across the lane of traffic before impact. He concluded that it was likely that the Defendant had been travelling at approximately 30 miles per hour before the impact. North Road was subject to a 30 miles per hour speed restriction. Dr Searle concluded that if the Defendant had observed and been aware of Gavin as he started to cross the road then there would have been sufficient distance for him to react, apply his brake and bring his vehicle to a standstill and avoid the collision.

In addition, the Claimant also relied upon written evidence of Mr Bassi, Consultant Neuro Surgeon, that concluded that if the speed of impact was reduced then the extent to the injuries would have either been significantly less or the Claimant would have been unscathed.

Primary Liability

The Judge found that the Defendant had failed to keep a proper lookout. He found that the Defendant did not slow down or alter his speed in any way before impact and that he failed to sound his horn to warn Gavin not to cross North Road. The Judge concluded "Thus, I unhesitatingly find that the Defendant was negligent by not seeing Gavin on the kerb and/or crossing the road and/or by not slowing down, and/or by not sounding his horn."

Contributory Negligence

The Defendant argued that the Claimant's damages should be reduced on the basis that Gavin failed to see the Defendant's car before crossing the road. Whilst recognising that every case depends on its own particular facts, the Judge was directed to a large number of cases in which the Courts had found contributory negligence against children. In particular, the Court considered that the Court of Appeal decisions in Armstrong v Cottrell (1993) PIQR 109 and Melleney v Wainwright (1997) EWCA 2884.

In each case, a 12 year old girl and an 11 year old boy respectively, were found to be one-third to blame when they "darted" and/or "ran" out into a road at which point they were struck by a car.

The Judge was persuaded that there were substantial differences between those two cases and the present case and that on the facts a great degree of culpability applied to the Defendants in the present case. Relevant factors included in the following:

The Claimant did not run across the road, providing the Defendant a greater opportunity and longer period to see him and to take avoiding action.
In the reported cases the drivers had seen the children and had slowed down before the accident, albeit not sufficiently. In the present case the Defendant had neither seen Gavin nor slowed down before impact.
In the reported cases there did not appear to be similar evidence to that given by Dr Searle to indicate that if the Defendants had seen the Claimant on the kerb about to cross he would have been able to stop in time.
If the Defendant had slowed down, the likelihood of the Claimant’s suffering serious injuries would have been reduced or eliminated.

The Judge concluded that "These factors showed that the Defendant in the present case was more blameworthy than the Defendants in those two cases with the result that he is more culpable … the level of contributory negligence is less in this case than that in Armstrong and Melleney because of the greater liability for the driver Defendant … I have come to the conclusion that Judgment should be entered for the Claimant and damages to be assessed but the Claimant was 20% to blame for the accident."