KB-2024-001402 - [2025] EWHC 2492 (KB)

The speed limit at the accident location was 20mph and there were pedestrian design features present. The CCTV of the accident shows that the collision Passat was driving too fast for the circumstances. It shows the moment of collision and the position of the claimants after the collision. It shows the claimants’ friends trying to help them after the collision. Mr Fouto, the taxi driver, found a VW badge in the road after the collision. He picked it up and gave it to a police officer.

The Claimant obtained an expert report from Mr Cass whose opinion in his September 2023 report was, in summary, that the Collision Passat slowed immediately post collision but did not come to a halt. It mounted the pavement to drive around Mr Cox. The Collison Passat was a VW Passat Variant (Estate) (B6) manufactured between 2006 and 2010. The Collison Passat was travelling at an average speed of 34 to 37mph in the 1.76 seconds prior to the collision. It is likely that just before impact the speed was slightly higher. The speed limit was 20mph. QXK was thrown between 9 and 10 meters and Mr Cox about 16 meters. There was a clear line of sight for at least 130 metres on the approach to the point of impact. The car is likely to have been about 100 metres from the collision point when Mr Cox stepped into the road. He notes that there was no light tone central feature on the Collision Passat after the collision, which he would normally expect to see (the “light tone central feature” being a VW badge on the grille of the bonnet).

In a further supplemental report dated January 2025 he comments again on the VW badge found by Mr Fouto and is of the view on the balance of probabilities that it came from the Collion Passat at the time of the accident.

In his supplemental report dated February 2024 he clarified that the term “variant” refers to the fact the VW Passat is an estate car. He was of the opinion that the Burned Passat is consistent with the vehicle seen on CCTV. The damage to the vehicle was extensive and he was unable to determine what damage may or may not have been present prior to the fire. No front badge is visible but it is not possible to know if it was present or not prior to the fire.

The Defendant obtained evidence from Mr Cole. His first report is dated 3 July 2024. It, and his other reports, appear to have been written with reference to the criminal procedure rules and I was provided with copies at trial with the CPR Part 35 experts declaration. No point is taken by the Claimants save that it appears that Mr Cole has given his opinion to the criminal standard of proof. His view for the examination of the CCTV evidence was that the Collision Passat was a VW Passat Estate with approximate year of manufacture 2005-2010. He also notes the VW badge on the front grille is missing.

His second report is dated 13 February 2025. He is of the opinion that it is not possible to conclusively link the recovered items (i.e. the VW badge) with items recorded on the CCTV. He was therefore of the opinion that it was not possible to confirm that the accident Passat had a VW badge prior to the collision or to confirm the recovered badge

The experts signed a joint statement on 28 April 2025 in which they agreed the make and type of the Collision Passat and that post collision there is no evidence of VW badge on the front grille. They agreed the make and type of the Burned Passat. They agreed it was extensively fire damaged. They agreed there was no front badge and that it was not possible to determine if the badge was present at the time of the fire or not. They maintain their difference in respect of the badge found at the scene. Mr Cass was of the view that, from other CCTV footage, a dark tone estate was seen prior to the collision which had a light tone central feature consistent with a VW Passat which travelled toward the collision site followed by 2 other vehicles which is consistent with the “convoy” that can be seen at the time of the collision. He is of the view on balance of probability that the estate seen earlier is the Collision Passat. Mr Cole was of the opinion the CCTV footage was not sufficient to make a conclusive vehicle identification.

Subsequent to the joint statement, by letter dated 16 May 2025, Mr Cass provided a letter regarding the statement from Mr Cole in his report that there were 243,927 Passat variants registered in the UK in 2020. He notes that this figure is for all VW Passats registered in the UK, whatever type (estate or saloon) or colour, or year of manufacture. He comments that as the B6 VW Passat estate 2006 to 2010 would be at least 10 years old it is likely they would form a relatively small part of the total. Mr Cole in a letter dated 19 May 2025 in response clarifies that when he used the tone “variants” he meant all variants of Passats. He comments on the number of colours that the VW Passat B6 was available in and says even mid -tone colours appear dark in black and white (the CCTV footage is in black and white).

In a further joint statement the experts agree that only some of the 243,927 VW Passats would be estates and only some would the B6 chassis. They agree that a light tone such as white, silver or light grey would not appear dark on the CCTV footage.