A £10m personal injury claim, Barrow (by his litigation friend and grandfather) and others v Merrett and another [2022] EWCA Civ 1241, stemmed from a road accident in 2015 in which an 11-year-old suffered orthopaedic and brain injuries. The defendant produced eyewitness accounts that the boy ran into the road and the collision was unavoidable. The judge found for the defendant.
Giving the main judgment in the appeal, Lady Justice Elisabeth Laing said there were three grounds of appeal: first, that the judge erred in law by failing to have ‘proper or any regard to objective or undisputed evidence and failed to test the evidence of the witnesses against that evidence, but, instead, made findings of fact which conflicted with the objective evidence, without acknowledging that conflict’. Second, the judge ‘did not assess the evidence in a fair way’, relying on a theory which was not pleaded nor put to medical experts nor agreed by accident reconstruction experts’. Third, the judge was ‘irrational’ to reject the evidence of a schoolfriend of the 11-year-old who was with him at the time, and accept, instead, the evidence of a neighbour who was driving past.
Laing LJ said: ‘The first point is that the judge recognised that the “hard” evidence [expert evidence] might unlock the case. He analysed the evidence with that point in mind, and decided that the “hard” evidence was not the key.’ This was not a wrong approach, Laing LJ said.
She said the judge ‘weighed the evidence conscientiously… [the appellant’s] submissions were designed to show that the judge could have made different findings on the evidence, rather than to show that the findings which he did make were wrong’.
