England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COUNTY COURT
(MR RECORDER GREENWOOD)

		Royal Courts of Justice Strand, London W2A 2LL
		17th March 1999

LORD JUSTICE POTTER: This is a straightforward appeal on a question of fact arising out of a road traffic accident. On 11 September 1994 the plaintiff, who was driving his Rover car along Snowshill Road, a narrow country road leading to Tadington between the A424 and B4077, collided with the first defendant who was driving a Bedford horsebox in the opposite direction along the road. The second defendant was also joined on the basis that the first defendant was driving on its behalf, but I shall simply refer to the first defendant as the defendant throughout.

In the proceedings which arose out of the accident Mr Recorder Greenwood, sitting at Swindon County Court on 7 July 1998, gave judgment on the issue of liability in favour of the plaintiff, whom he held to have been contributorily negligent to the extent of 30%. Accordingly, he ordered that there be judgment for the plaintiff for 70% of the claim to be assessed. The defendant's appeal as stated in the grounds was put principally on the basis that the recorder's findings were contrary to the weight of the evidence, and in particular that his findings were inconsistent with photographs at the scene of the accident provided by the parties. It was also said that the evidence before the recorder in respect of the width of the vehicles and the road, skid marks and broken glass present in the road and the position of the damage to the defendant's lorry were inconsistent with the recorder's findings of fact as to how the accident happened. However, that ground is no longer pursued. The matter has been put before us on the basis that, upon the findings of fact made by the recorder, his apportionment of blame as between the parties was wrong in principle, or at least so manifestly in error that this court should interfere.

As described by the recorder in his judgment the facts of the accident and the rival accounts of the two drivers were as follows. At the approximate point of the accident the road itself, which has a metalled surface, was about 11 feet wide. The width of the horsebox being given by the defendant was about 7'2" wide and the Rover car of the plaintiff was about 5'7" wide, making a combined width of the two vehicles of 12'9". It was therefore obvious that, unless one or both of the vehicles had given way by lateral movement over the verge, at some point as they approached and overlapped, collision was bound to occur.

The plaintiff's case was that, prior to the accident and back down the road, he had been stopped at the side of the road so that his then girlfriend's daughter could look at some pigs in a field on the near-side. His girlfriend was sitting in the front passenger seat. After setting off from a standing position they travelled along the lane and the plaintiff said that he reached the third gear but never moved into top. About 100 yards from the scene of the accident he became aware of the horsebox approaching. It was in fact being driven by the first defendant with a front seat passenger, a Miss Butler. The horsebox was considerably higher in terms of the position of the driver than was the plaintiff in his car, and the recorder observed that that would have given a better view of the road ahead to the viewer of the horsebox and possibly a better anticipation of traffic coming in the opposite direction.

The plaintiff estimated his speed at between 35 and 40 miles per hour as he approached. The defendant was travelling slightly uphill and estimated her speed at about 20 miles per hour. The plaintiff's case was that he saw the horsebox approaching; at the time it came into his view it did not appear to be other than filling the centre of the road. Thus there would have been little more than 18 inches either side of the vehicle at the time it came into view on a left hand bend about 50 yards from the eventual accident. The plaintiff said that, faced with the vehicle and seeing that there was on his own nearside virtually a vertical bank of grass going up to a hedge and with little or no verge available to him, and seeing also that the defendant's horsebox on its nearside had a reasonably substantial flattish verge on which to divert, he fully expected that, as he put it, common sense would prevail and the defendant would move to her left, having a wider vehicle than he, so as to assume a portion of her verge to enable the plaintiff to pass in safety on his side.

From the point when he saw the horsebox the plaintiff said that he started to brake and it was clear from the photographs provided that substantial marks were left, apparently by the tyres of the plaintiff's car. The plaintiff stated that, though he was braking increasingly and expecting that the horsebox would steer to its nearside to prevent a collision, this did not occur, and at the last moment he was forced to steer away suddenly to his left as far as he could to the nearside up the sloping bank on his side and virtually into the hedge at the top of it. In doing so there was a collision between his offside front wing and head lamp and the offside front wheel and wheel arch of the horsebox. The plaintiff said he never lost control of the vehicle, only deliberately steering away at the last moment because he had to, being unable to avoid a collision otherwise, so that the Rover car's offside in fact became wedged with the horsebox's offside, the horsebox having remained largely in the road. Immediately following the accident the plaintiff said he tried to move forward out of way but could not and then had to reverse his vehicle out of contact with the horsebox.

The defendant's version was very different. She was experienced in driving the horsebox. She said she had come along the lane and was rounding the gradual left hand bend. After she had done so she saw the Rover car only about four to five car lengths away coming towards her quite quickly. She said she was in second gear, doing no more than 20 miles per hour. She saw the car coming and realised that action was required. She pulled over on to the grass verge on her near-side and said that she was able to stop entirely before any collision occurred, by which time she was largely on the grass verge to her near-side, stopped and was able to apply her hand brake. During the period of pulling over she said she had seen the car coming towards her horsebox with its brakes slammed on and, as she said, with the wheels locked. The collision had occurred offside to offside and she said it was the force of that which caused the Rover to veer up the bank to its nearside. She said it had then travelled on past the front of the horsebox, never in fact being jammed against the lorry at all as described by the plaintiff.

The recorder said that, in the face of these two very contradictory versions, he was assisted in reaching his conclusion by several things. He referred to the sketch plan, which is of little importance but showed that the potential verge onto which the defendant would have been able to move was some 3'6". The recorder observed (at page 7F-8A of the transcript):

"It is, therefore, clear by deduction and obvious that had the horsebox in fact moved completely onto the verge by 3 feet 6, it would have left approximately half of its width still on the lane, and the Rover, having a width of five feet seven, should have been able to pass by it without actually even entering its nearside verge, and it would have been close but nothing more than that."

That is the first finding of fact emphasised by Mr Farmer for the appellant.

The recorder, having referred to the photographs, said that they showed tyre marks which appeared to relate to the accident. Then he observed that the marks along the road were in a straight line and very close to the plaintiff's nearside verge and that they appeared "over quite a distance" to move from light to heavy braking without loss of control. He therefore concluded that the plaintiff's story was broadly correct; that is to say that he started to brake soon after seeing the horsebox, continued in a straight line believing it would move over to its nearside, and that, at the point where there was a rapid move of the tyres from the carriageway on to the nearside verge, the plaintiff had attempted at the last moment to escape the front of the oncoming horsebox and collided with it at that point, his vehicle locking into the side of the horsebox and travelling well up the bank.

Those findings are also relied on by Mr Farmer. He specifically also relies on the finding of the recorder that:

"I think in fact from a driver's view, those marks started when the horsebox came first into view, and the immediate assumption by the plaintiff that the horsebox would move over, proved not to be the case."

In relation to that finding, as accepted by the court and accepted by Mr Farmer, it would be necessary to add that the plaintiff's first view of the horsebox must have occurred prior to the start of the marks on the road if one is to allow for thinking time.

The recorder also concluded that the defendant, having stated that when she first saw the plaintiff's car it was travelling quite quickly and some four to five car lengths away - that would be no more than about 15 metres - and the combined approaching speed being anything between 50 and 60, it was unlikely that she had been able to do more than start to move the horsebox over to its nearside verge and that when, as the plaintiff stated, he was trying to clear his vehicle, and in fact backed eventually onto the road, it was only then, as the plaintiff had asserted, that the defendant moved forward and over to park on the verge so as to leave room for other vehicles if they wished to come by.

Having so found, the recorder also concluded that the length and nature of the brake marks indicated that the plaintiff was travelling at about 40 miles per hour when he first saw the plaintiff and that that was too fast a speed for the narrow country road. He concluded that, if the plaintiff had been going rather more slowly, he might have been able to pull up, making use of what verge was available, in time to enable the defendant to complete her own move onto the verge.

The appellant challenges the recorder's conclusions and contends the apportionment should at least have been reversed in her favour on the following basis. The submission in broad terms is that the recorder was quite wrong to apportion liability on the basis that the defendant, who was travelling slowly, should have pulled off the road in order to avoid the plaintiff, who was travelling too fast. That submission was made by Mr Farmer on the basis that the recorder accepted without doubt or criticism that the defendant only saw the plaintiff's vehicle after she had come round the gradual bend in the road and at a point when it was no more than four to five car lengths away, effectively leaving her no real chance to get over onto the verge.

However, it seems that that is a wrong reading of the judgment. The submission is based on a passage in the judgment where the recorder stated (at page 11D to F):

"I find it extremely difficult to believe that, as she says, only seeing this vehicle coming, and indicating that it was travelling quite quickly, four or five car lengths away, she could conceivably have formed the intention, and actually carried out a manoeuvre to withdraw some two feet six inches on to the nearside verge, to pull up and to stop and put the handbrake on in that very short space of time available, with two vehicles travelling towards one another at a possibly combined speed then of some 50 to 60 miles an hour. Everything would have happened very quickly indeed. It seems to me, on balance of probabilities, that that is unlikely, and that at the time that the collision took place, the horse box had still barely started to move, although it may have started to move a little to its nearside..."

However, at that point in his judgment, the recorder was simply making clear that, as between the rival versions advanced as to where on the road or the verge the van had been at the time of collision, he preferred the plaintiff's story. Indeed, the thrust of the whole judgment is that he preferred the version of the plaintiff, backed broadly, although he did not say so, by the evidence of the plaintiff's girlfriend as far as visibility and distances were concerned. That being so, it is implicit in the recorders's findings that he was apportioning as between a plaintiff who said he had seen the van from almost 100 yards away and proceeded on the basis that, if it pulled on to the verge, as it could, there would be room for him to pass, and a defendant who, although seated in a van with better visibility ahead than the car, had not been aware of it until a distance of four or five car lengths so that she was unable to pull over onto the verge to avoid the collision in time, whereas, if she had seen the plaintiff earlier, she could and would have done so. It was the defendant who was driving the vehicle which caused the major obstruction in a narrow road and she had a clear duty to keep a proper look out and exercise care.

It may well be that other judges might have apportioned blame equally, bearing in mind that the recorder regarded the plaintiff as having driven rather too fast. However, it does not seem that the apportionment as made can or should be faulted. The recorder had the feel of the case and heard the witnesses. It is the trial judge who is par excellence the judge of fact; and in a case of this kind a heavy burden lies on the appellant to show that the judge was wrong. As stated by Viscount Simon in Watt v Thomas [1947] A.C. 484 at 486:

"An appeal court should not interfere unless satisfied that 'any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions'."

I am not so satisfied and I would dismiss this appeal.

LORD JUSTICE BROOKE: I agree and I am only adding a few words of my own as the relevant supervisory Lord Justice because new arrangements for processing county court personal injury appeals worth more than £5,000 came into effect on 1 January 1999; see Rules of the Supreme Court, Amendment 2 (1998), rule 3(1). All such appeals now require leave. For this purpose both the Court of Appeal and first instance courts will as a general rule apply the test that leave will be given unless the appeal would have no realistic prospect of success; see Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments) [1999] 1 W.L.R. 2, paragraph 10.

The Review of the Legal Year 1997-98, which was published by the Civil Division of the Court of Appeal, disclosed on page 3 that a statistical study was being made of the actual outcome of appeals in this category. The study has continued and it reveals that during the calendar year 1998, out of 155 appeals against final decisions in county court personal injury cases, 60 were dismissed by the court and a further 42 dismissed by consent. In contrast, 41 were allowed by the court and 5 allowed by consent; for 7 the precise outcome was not noted. In other words, in the appeals whose outcome is known, over two-thirds appear to have failed, although the rubric "dismissed by consent" may conceal some consensual adjustment by the parties to the effect of the judge's order. Against this unpromising background, cases in which the only really live issues relate to the judge's apportionment of blame are a particularly unfertile breeding ground for success.

It is very firmly established that this court will not interfere with a trial judge's apportionment of responsibility unless it can be shown that he erred in principle, or misapprehended the facts, or he is clearly shown to have been wrong; see The Macgregor [1943] A.C. 197; Quintas v. National Smelting Co Ltd [1961] 1 W.L.R. 401; Brown v. Thomas [1968] 1 W.L.R. 1003; Jennings v. Northern Collison Contractors Ltd [1970] 1 All ER 1121; and Hannam v. Mann [1984] RTR 252.

While it is certainly a fact that this court does from time to time make adjustments to apportionment, appeals in this category do not in my judgment have a realistic prospect of success unless it is properly arguable that the would-be appellant can satisfy on one or other of these fairly tough requirements. The mere fact that another judge might have assessed comparative responsibility, for example at 50 per cent rather than one-third, is not sufficient in itself.

I mention these matters in an endeavour to clarify the effect of the new leave requirement in this context, and to assist judges at first instance in their task of deciding whether to grant leave to appeal against their own decisions in the circumstances described in paragraph 8 of the Practice Direction.

In my judgment, admirably though Mr Farmer has argued it, it is unlikely that the present appeal would have survived the new leave filter if it had been in place at the relevant time.

For the reasons given by my Lord, with which I agree, this appeal should be dismissed.

Order: Appeal dismissed with costs; legal aid taxation of respondent's costs.