Neutral Citation Number: [2004] EWCA Civ 1478

Case No: B3/2004/0271 & B3/2004/0382

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Honourable Mr Justice Morland
[2004] EWHC 77 [QB]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/11/2004
Before :

LORD JUSTICE BROOKE

Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE KEENE
---------------------
Between :

Paul Thomas Slater (a person suing by his litigation friend Appellant

THE OFFICIAL SOLICITOR)
- and -
Buckingham County Council (1) Respondents
Mel Stigwood trading as Stigwoods (2)

---------------------
---------------------

E A Gumbel QC and H Witcomb (instructed by Teacher Stern Selby) for the Appellant
E Faulks QC (instructed by Barlow Lyde & Gilbert, London EC4A 7NJ) for the 1st
Respondent
R Lynagh QC and P Dean (instructed by Bruce Lance & Co, Buckinghamshire HP11 1NF)
for the 2nd Respondent

Hearing dates : 26/27 October 2004

---------------------
JudgmentLord Justice Keene:

1. At about 8.00 a.m. on 28 August 1996 the appellant, Paul Slater, a 25 year old
man suffering from Down’s Syndrome, was knocked down by a car when crossing
the road outside the house where he lived with his parents. He suffered
catastrophic injuries, which have rendered him tetraplegic and in need of 24 hour
care. It is not suggested that any blame attached to the driver of the car which
struck him.

2. Since August 1991 Paul had spent every weekday at Hillcrest Day Centre,
which was operated by the Buckinghamshire County Council (“the County
Council”), the first respondent. That day centre was situated about 4 miles from
his home in High Wycombe. He was taken there each weekday by minibus and
brought home in the same way. He was picked up at about 8.00 a.m. and set down
on return at about 4.20 p.m. The minibus was owned and operated by Mr
Stigwood, the second respondent, who provided both the driver and a person as
“escort” for the disabled passengers. They numbered about twelve and were
collected and returned at or close to their homes. Mr Stigwood provided this
service under contract with the County Council. Between August 1991 and late
1994 the service had been provided by a different operator, Bucks Mini Buses, but
they terminated their contract for this route in 1994 and Mr Stigwood successfully
tendered for the new contract.

3. On the day of the accident a Royal Mail van was parked near Paul’s house,
209 Boundary Road. It had been driven there that morning by Mr Anson, who
regularly delivered mail to the Slaters. He parked his van as was his usual
practice half on and half off the pavement outside numbers 207 and 209, thereby
reducing visibility to the right for a pedestrian crossing the road from the
pavement outside number 209. Mr Anson had to deliver mail to number 209. His
evidence was that when he arrived at the front door it was already open and Paul
was there in the hall with his mother.

4. Boundary Road is a single carriageway, with a 40 m.p.h. speed limit. At that

time of day, 8.00 a.m., it was a busy road with traffic travelling in both directions.
The mini-bus, which came to collect Paul, arrived as usual from his left, stopping
on its nearside on the opposite side of the road from Paul’s house. Passengers
being carried in it obtained access by way of a door on its nearside. It stopped
partly on the carriageway and partly on the far pavement. Paul therefore had to
cross the road to reach the mini-bus.

5. The escort on the mini-bus that morning was Mrs Brooks, who seems to have
been the escort regularly used on this route, at least since about 1992. She knew
Paul well. The judge, Morland J., regarded Mrs Brooks as an impressive witness.
Her evidence was that she got off the mini-bus and walked to the rear of it on the
pavement. She saw Paul standing on the pavement opposite waiting to cross. In a
statement to the police she said:

“I walked into the middle of the road behind the coach and
put my hand up and said, “Stay there Paul” as there was a
car coming along behind us from the Loudwater direction.
I then saw that there was another car coming in the other
 direction, I again told Paul to stay where he was, but he had
already started to run out. The car was travelling fast but
was not able to stop in time and hit Paul knocking him up in
the air like a rag doll.”

Paul’s mother, Mrs Slater, confirmed that Mrs Brooks had put up her hands and
told him not to cross. The judge found that:

“… the immediate cause of the accident was Paul’s running

or rushing from behind the front of the Royal Mail van into
the path of E619 HOC whose driver had no opportunity of
avoiding hitting him, disregarding the warning of Mrs
Brooks who in my judgment is absolved of any
negligence.”

6. Paul, suing by the Official Solicitor, claimed damages for negligence against
both the County Council and Mr Stigwood. It was alleged that one or other or
both of them had failed in their duty to take reasonable care not to expose him to
the risk of foreseeable injury during his collection and transportation to the day
centre. In particular, it was alleged that an unsafe system for collecting him had
been put in place, exposing him to a foreseeable risk of harm. Neither respondent
denied owing to Paul the duty to take reasonable care not to expose him to such a
risk but each denied any breach of that duty.

7. During the trial there was evidence about the contractual arrangements
between the County Council and Mr Stigwood, it being contended on behalf of the
appellant that the contract required Mr Stigwood, by using Mrs Brooks, physically
to collect Paul from the door of his house and escort him across the road and onto
the mini-bus. The judge did not accept that, emphasising that, as the clients were
people with varying abilities and varying degrees of learning difficulties, a degree
of flexibility was required to give business efficacy to the contract. The contract
envisaged that some clients would be able to make their own way to and from the
transport, even if the transport was on the opposite side of the road.

8. The judge also rejected a contention advanced by Mr Stigwood that it had

been specifically agreed by the County Council that the authorised pick-up point
for Paul was on the opposite side of the road to his house. But Morland J. said at
paragraph 74 of his judgment:

“Although I am not satisfied that there was any specific

agreement that Paul’s designated pick-up point was on the
pavement on the opposite side of the road to his house, I am
satisfied that the settled arrangement was that that was
Paul’s pickup point and if he was not there the escort would
cross the road and collect him either from the pavement
outside his house, his driveway or his house depending
upon where he was and then escort him across the road to
the minibus. I am satisfied that this arrangement had
become the established practice within a few weeks of Paul
being picked-up by Bucks Mini-Buses in August 1991 and
 that this established practice was taken over by Stigwoods
in 1994 along with the escort Mrs Brooks.”

9. Both Mrs Brooks and the regular driver of the mini-bus, Mr Illingworth,
another witness who impressed the judge, testified that on most days Paul would
already be standing on the opposite side of the road to his house. Mr Illingworth’s
evidence was that he had seen Paul crossing the road on his own. The judge
found that Mr Stigwood, Mrs Slater, Paul and the management at the County
Council’s day care centre accepted that the recognised pick-up point was on the
far side of the road from Paul’s house. He also found that:

“… very very much more often than not Paul was at the
pick-up point having crossed the road on his own, but that
not infrequently because he was a late riser he would be
collected by or met by the escort who was regularly Mrs
Brooks either at his front door, on the driveway or on the
pavement on his side of the road.”

10. In considering whether such a system involved negligence on the part of

either or both respondents, Morland J. noted the characteristics of Boundary Road
to which I have already referred. He also took account of Paul’s substantial
learning difficulties and of the fact that he was impetuous and unpredictable. But
the judge also found that Paul would obey instructions, especially from Mrs
Brooks.

11. Unsurprisingly the judge paid particular attention to Paul’s capabilities in

respect of road safety. He set out passages from the evidence of Paul’s mother,
Mrs Slater, and from two social workers who were familiar with Paul and his
ability to cross roads. As a result of his consideration of the evidence, Morland J.
arrived at the following conclusion, doing so (he said) with regret because of the
devotion and care shown towards Paul by his parents:

“The clear and unhesitating conclusion, which I have

reached, is that negligence is not established against the
Buckinghamshire County Council or Stigwoods. Certainly
long before the time of the accident Paul had reached a
level of independence and road safety competence so that
he was able to cross Boundary Road on his own and reach
the pick-up point with the minibus without his being
exposed unreasonably to the risk of foreseeable injury even
in the rush hour. Indeed he must have crossed that road at
that time on his own in safety many hundreds of times
during the five years before his accident.” (paragraph 99)

12. It is that conclusion which is now attacked by Ms Gumbel, Q.C., on behalf of

the appellant. She advances two submissions. First, she emphasises that on the
pleadings it had not been contended by either respondent that Paul was competent
to cross Boundary Road on his own at this time of the day when it was particularly
busy. The County Council had relied on having made appropriate arrangements
with an independent contractor, under which a competent adult was to be
employed as an escort and the contractor was to take all reasonable steps to ensure
the safety of those being escorted. Their pleaded case had been that the detailed
arrangements for the picking up of Paul were not matters for which they were
responsible. The contractor, the second respondent, had initially blamed Paul’s
mother for allowing him to cross on his own and had subsequently pleaded that
Paul’s behaviour had been impulsive and not preventable by the exercise of
reasonable care on anyone’s part. In the alternative the contractor had pleaded
that the responsibility for devising a safe system was that of the County Council.

13. For my part, I cannot accept that there is any force in this point on the
pleadings. The judge had to take account of the evidence as it came out at the
trial, which led him to the conclusion already quoted about Paul’s road safety
competence. This had obviously been a hotly contested issue at trial, with cross-
examination by all parties directed to the issue. No one seems to have contended
at trial that such evidence and cross-examination was irrelevant, given the state of
the pleadings. No doubt it would have been tidier if the pleadings had been
formally amended, but since the parties at trial clearly regarded Paul’s road safety
competence as a live and indeed vital issue it would have been wholly artificial for
the judge to have assumed that it was not in issue. It patently was.

14. The main criticism made on behalf of the appellant of the judge’s conclusion
in paragraph 99 is that it was contrary to the evidence. Ms Gumbel has taken us
through a number of passages in the witness statements and the transcripts of the
oral proceedings at trial, seeking to establish that proposition. It is unnecessary to
refer to all the passages relied on, and I will confine myself to those which give
most assistance to her case. Thus reliance is placed on some evidence from the
postman, Mr Anson, that he had sometimes seen traffic having to slow down for
Paul when he was crossing Boundary Road on his own, the implication being that
Paul was crossing when it was unsafe to do so. Indeed, at one point Mr Anson
described what happened as “a near miss”. Yet such evidence has to be seen in the
context of other evidence from Mr Anson that over the course of some four years
he had only seen Paul cross on his own two or three times and that he did not
appear to be in any difficulty when crossing on his own.

15. Then there is a passage when Mrs Brooks, the escort, was being cross-
examined. She said that if she saw Paul in his driveway she would go and get
him, rather than letting him cross on his own, to make sure he was safe. She also
said, in response to a question asserting that it would not be safe for him to cross
on his own at that time of the morning, “Not really, no”. On the other hand, her
evidence was that normally Paul would be waiting at the appointed place on the
opposite side of the road from his house, that she had seen him crossing on his
own and had never seen his mother crossing with him. She also said that he knew
when to cross and that she had never seen him having any difficulty in crossing.

16. Ms Gumbel also referred us to part of the evidence of Mr Illingworth, the

regular driver of the mini-bus, where he said in effect that, if Paul was still on his
own side of the road when the mini-bus arrived, the procedure was for the escort
to go across the road and get him. That was what Paul’s safety required, rather
than letting him cross on his own.

17. Again, Mr Illingworth’s evidence was not all one way. He testified that on
most days Paul would be waiting at the pick-up point on the opposite side of the
road to his house and that his mother was always looking out of the door to see
that he was all right. Mr Illingworth described the road as being busy at that time
of day but straight and not dangerous.

18. It is argued on behalf of the appellant that not merely was there evidence that
it was not safe for Paul to cross this road at this particular time but that no witness
gave evidence that he was competent to cross it at this very busy time of the day.
The fact that he had crossed it without injury many times before does not show
that he was not at risk when so doing. The system set up by the respondents
should not have allowed Paul to cross this road at such time without a responsible
adult assisting him. Moreover, the arrangements were haphazard, allowing him
sometimes to be picked up on one side of the road, sometimes on the other and
sometimes from the house. What was required was a system where he was
collected each morning from the house itself.

19. Ms Gumbel also submits that this is what the Specification of Service, one of
the contract documents forming part of the agreement between the County
Council and Mr Stigwood, required. She cites a passage from that Specification
of Service, which stated that the escort

“is required to assist clients who have learning disabilities

from their homes to and onto the vehicle.”

A similar passage appears in another of the contractual documents, the Code of

Conduct. It is argued that these provisions meant that the escort had to collect the
clients physically from the door of their homes, and that that points towards a
recognition that such a procedure was required if the duty of care was to be
carried out.

20. Let me begin with this last submission. As I have indicated earlier, the judge
rejected it and, in my view, he was right to do so. The phrase “from their homes”
is, taken in isolation, ambiguous. It could have the meaning suggested or it could
be being used in a more general sense. But it cannot be read in isolation. Another
paragraph of the Code of Conduct, paragraph 9, states:

“Some passengers are able to make their own way to and

from the transport.”

That is inconsistent with the meaning suggested. When these contractual

documents are read as a whole, it is clear that the judge was right to construe them
as allowing a degree of flexibility to Mr Stigwood and the escort, so as to
accommodate both the varying abilities of the clients and the aim of teaching them
to become more independent. I can see no force in this part of the appellant’s
case.

21. I turn to the crucial issue about the evidence before the judge. It needs to be
borne in mind that his conclusion as to the absence of negligence was based upon
a finding which was a finding of fact, namely that Paul had reached a level of road
safety competence enabling him to cross Boundary Road in reasonable safety
even in the morning rush hour. That finding of fact as to Paul’s competence was
reached after a five day trial, during which there was inevitably a certain degree of
conflicting testimony and indeed some inconsistency on the part of individual
witnesses. This court should be slow to overturn such a finding of fact on the
basis of transcripts of evidence which it has not heard being given orally and
should not overturn it unless it is clear that the judge’s finding was not open to
him on the evidence.

22. In setting out some of the principal passages relied on by the appellant, I have
already sought to indicate how there are other passages of evidence from the same
witnesses which paint a somewhat different picture. Mrs Brooks quite naturally
took the view that, if Paul had not already crossed the road, it was better for her to
go and help him across. It does not follow that it was unsafe for him to cross on
his own. But in addition there are important pieces of evidence relied on by the
judge when coming to his finding, and these too need to be taken into account.
There was written evidence from Mr Christopher Taylor, a project outreach
worker with the County Council, who had worked with Paul to enable him to use
a public bus service from his home to another day centre. This evidence was that,
after some training, Paul was able to cross Boundary Road to his house in the
afternoon at about 3.15 p.m. to 4.00 p.m. According to Mr Taylor, Paul

“was capable of doing this alone and in safety.”

He described Paul as very cautious and not a person who took risks with traffic.
Ms Gumbel rightly points out that this evidence was not dealing with Paul’s
ability to cross Boundary Road in the rush hour, but it is nonetheless of relevance
to the issue the judge had to determine.

23. There was another written statement put in evidence, this being one made by
Jacqueline Angold, a key worker at the day centre attended by Paul. For nearly
the whole of the period during which he had attended the day centre, he had been
in her group, and her evidence indicated that she knew him well. She referred to
him having a “conscious sense of self-preservation” and as being “very sensitive
to danger”. She described the ways in which Paul and others at the centre were
encouraged to lead more independent lives. Her evidence was that he would not
make a snap decision about crossing Boundary Road:

“He would be hesitant and then look left and right and then
perhaps do it all over again. Equally he would walk along
the road until he found somewhere to cross where he felt
safe and comfortable. When he did cross the road he would
do so briskly until he was back on safe territory again.

If he found that the road was busy, then I believe then he

would just not bother to cross and stay on the side of the
road walking until he found somewhere he could cross.”

Ms Angold also referred to his mother telling her how Paul used to walk from his
house to the British Legion in Flackwell Heath in order to go for a pint of beer,
this being on a Sunday. Later, according to his mother, he had chosen a pub where
he used to go instead, on his own, to buy himself a beer.
24. Ms Gumbel draws attention to another passage in Mr Angold’s evidence
where she said that Paul was not capable of using public bus services to go to the
day centre because

“it would have been a lot more complicated, two buses, bus
station, and dangerous road to cross.”

However, it seems to have been the accumulation of problems, rather than just the
road-crossing problem, which led Ms Angold to that conclusion.

25. The evidence of Paul’s mother, Mrs Slater, was undoubtedly of importance.
In her witness statement she said:

“I should make it clear that Paul regularly left the house,

every Sunday, for example, to go to the local shops or the
British Legion Club in Queensmead Road, Loudwater to
play snooker. Both of these trips involved him crossing
roads by himself. I have seen him cross roads by himself
on many occasions and can say that he was always
extremely careful not to cross if a car was coming. If a road
was particularly busy then Paul may have taken a long time
to cross but he would have been very careful – he was very
much aware of the dangers posed by motor vehicles.”

26. In her oral evidence she confirmed that Paul had been attending the Hillcrest
day centre for about five years when the accident happened. She had seen him
cross the road on his own and he never crossed if there was a car coming. She had
never seen Paul dash into the road and before the accident she had never seen any
“near misses”. He went to the British Legion on his own which necessitated
negotiating a round-about and crossing Boundary Road but that was at weekends.
He was normally very cautious and she had never seen him run, rush or hurry
across the road.

27. It seems clear from Mrs Slater’s evidence that she was happy to allow Paul to
cross Boundary Road in the rush hour, as happened on numerous occasions. That
can only have been because she regarded it as something he was capable of doing
in reasonable safety. Her assessment is indeed borne out by the fact that he had
crossed Boundary Road at that time of day on his own to reach the mini-bus on, as
the judge found, many hundreds of occasions during the five years before the
accident and had done so in safety. That history is relevant to any assessment of
his competence to carry out such an activity safely.

28. It is contended on his behalf that there was evidence that he had difficulty
crossing when there were parked cars and that, on the occasion of the accident, the
Royal Mail van was parked near his driveway. It is right that his mother had said
in her witness statement that they had tried to teach him to walk into the road a
little way to the edge of a parked vehicle so that he could look around it, but this
never “clicked” with him. When she dealt with this in her oral evidence she added
that he would always stand on the pavement and always had his feet on the
pavement.
29. However, what is clear is that the presence of the Royal Mail van parked in
this way was a regular feature at this time of the morning near Paul’s driveway.
Mr Anson’s evidence was that on the day of the accident he

“parked in my usual position half on and half off the

pavement outside 207 and 209 Boundary Road.” (emphasis
added)

He confirmed orally that he had been doing that for about four years prior to the
accident. It must follow that on innumerable occasions when Paul had crossed
Boundary Road safely at that time of day, and when his mother had regarded him
as competent to cross, there would have been a parked vehicle there. There seems
to have been nothing unusual about this aspect of the situation on the day of the
accident.

30. Of course it is correct that not all the evidence pointed towards Paul being
competent to cross that road at the time and in all the circumstances existing on 28
August 1996. Inevitably there was some evidence suggesting a different
conclusion. But there was ample evidence on which the judge could properly
reach the finding about Paul’s competence which appears at paragraph 99 of the
judgment. I am bound to conclude that that finding of fact was one which was
open to him on the evidence. If that is so, then the fact that sometimes Paul got up
late and was in fact collected from his own house or driveway is nothing to the
point. There was no evidence that Paul was in some way confused by such
flexibility in the arrangements. It did not amount to a defect in the system.

31. In her reply Ms Gumbel raised a point which does not seem to have figured
significantly before in these proceedings at trial or during this appeal hearing. She
commented that the evidence about Paul waiting and taking his time to cross if the
road was busy was not directed towards the situation where the mini-bus had
already arrived. In such circumstances he would know that he had only a limited
time to cross the road, and so that was a different situation. I see the force of that
argument, which really represents a departure from the main submission advanced
for the appellant, namely that he should not have been allowed to cross the road
“on his own”. Indeed, at one point during earlier argument Ms Gumbel
acknowledged that her case would be the same if the situation had occurred
without the mini-bus being there. So this further submission represents a
somewhat different approach.

32. That does not necessarily mean that it is a bad argument, but in my judgment
it is in fact without merit. It is right that the mini-bus was there at the time of the
accident and so was the escort, Mrs Brooks, at the rear of the mini-bus, giving
instructions to Paul. In that sense he was not truly crossing the road on his own.
The evidence was that Mrs Brooks told him to wait and that initially he did, but
then ran across. But there was also a great deal of evidence that Paul would
normally wait when instructed to do so. That was Mrs Brooks’ own evidence at
trial, and it was confirmed by Mrs Slater. Mr Anson’s evidence about what tended
to happen was that when the person from the mini-bus told Paul to stop, he did
stop (paragraph A 115). The judge made a finding in his judgment, paragraph 88,
that Paul
 “would obey instructions, especially from Mrs Brooks.”

That finding has not been challenged before us and it was one which was
undoubtedly open to the judge on the evidence. So, while it is right that on this
particular occasion the mini-bus was already there, it is also the case that the
accident happened when Paul was under the supervision of the escort and had
been instructed by her not to cross. On the evidence, it was not reasonably
foreseeable that he would disobey such an instruction, nor was it foreseeably
unsafe to allow him to cross Boundary Road under the supervision of the escort.

33. I conclude that the judge’s finding that the system in operation was a
reasonably safe one, given Paul’s competence, was soundly based. Like Morland
J., one can only reach such a conclusion with considerable sadness because of the
tragic consequences which this accident has had for Paul and for his devoted
parents. But I can see no fallacy in the judge’s reasoning, nor in his conclusion
that the system being operated did not indicate negligence on somebody’s part. In
my judgment negligence was not established in this case.

34. It follows that it is unnecessary to determine which of the respondents bore

the responsibility in law for the setting up of the arrangements for the collection of
Paul Slater. I would dismiss this appeal.

Lord Justice Jonathan Parker:

35. I agree that this appeal should be dismissed for the reasons which Keene LJ
has given. I also agree with the observations made by Brooke LJ, whose
judgment I have had the benefit of reading in draft.

Lord Justice Brooke:

36. I also agree.

37. So far as Miss Gumbel’s first point is concerned, it is of course correct that
the parties’ statements of case ought to set out the issues which the judge will be
invited to determine at the trial. It often happens, however, that when a trial starts
the evidence of witnesses develops in a way that is unexpected, and that lines of
inquiry are initiated into matters which were not embraced by the relevant
statement of case. Strictly, as Keene LJ says (at para 13), the statements of case
ought to have been amended to accommodate the extended battleground.

38. But Miss Gumbel and Mr Witcomb were present throughout the trial and we
were not shown any evidence to the effect that they objected to these lines of
inquiry being opened up or that they sought any ruling from the judge on these
matters. Sometimes it may be that a party seeks an adjournment in order to be
able to call witnesses on a new point or points, if the judge allows them to be
taken after an objection has been made.

39. I set out the relevant principles in my recent judgement in Re-Source

American International Ltd v Platt Site Services [2004] EWCA Civ 665 at [62]:

“…[T]he unexpected often happens in the course of a

complicated trial. If it does, it is the judge’s duty to
 reappraise the situation, if any of the parties request it, and
to permit a party to amend its statement of case if satisfied
that this can be done without injustice to a party affected by
the amendment. If necessary and appropriate, an
adjournment may have to be granted to permit further
evidence to be adduced to meet the new case.”

40. Since no attention was apparently paid to these matters during the trial, and
since there is no appeal against any procedural ruling the judge made when new
lines of inquiry were opened up, I agree with Keene LJ that it is now not open to
Miss Gumbel to take for the first time in this court points about the limits of the
original coverage of the parties’ statements of case which could and should have
been taken at the trial if they were good ones.

41. As to her second point, it would of course have been better if the different
responsibilities (if any) of Paul, Paul’s parents, the county council and the
council’s contractors had been clearly defined at the outset and if the parties had
then stuck by what was agreed (and preferably minuted in writing). The evidence,
however, did not show at all clearly what had been agreed at the outset. Mrs
Brooks, whose evidence clearly impressed the judge, had acted as the escort ever
since the “new run” to Hillcrest started. She then joined Stigwoods when they
took over the run after the previous contractor gave it up on his wife’s death, and
all through the time up to Paul’s accident the “pick-up” point was on the other side
of the road from Paul’s home. She could not remember Mrs Slater ever
complaining to her or to her driver (who was usually Mr Illingworth) that the
coach should stop on the side of the road where Paul lived. Mr Illingworth, who
took over the driving on this run when Stigwoods won the contract, and who was
another witness who impressed the judge, gave evidence to similar effect.

42. We are only concerned in this case with the contention that in 1996 the
defendants were in breach of the duty of care they owed Paul, when the pick-up
point had been in the same place for five years. On the totality of the evidence I
find it impossible to hold that the judge’s clear and unhesitating conclusion was
wrong. There was ample evidence that long before the time of the accident Paul
had reached a level of independence and road safety competence so that he was
able to cross Boundary Road, even in the rush hour, without his being exposed
unreasonably to the risk of foreseeable injury. This was a tragic accident, but
neither defendant is legally liable for it, because on the judge’s findings of fact
they took such reasonable care for Paul’s safety as the law required of them.

43. I, too, would therefore dismiss this appeal.