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 THE QUEEN'S BENCH DIVISION (HEREFORD DISTRICT REGISTRY)
(HIS HONOUR JUDGE HALL sitting as a High Court Judge)

		Royal Courts of Justice Strand London WC2A 2LL Friday 9 February 2001

1. LORD JUSTICE POTTER: I will ask Lord Justice Sedley to give the first judgment.
2. LORD JUSTICE SEDLEY: On 26 September 1996 in Hereford, a road accident occurred of a familiar kind. A slow moving line of traffic in Belmont Road was joined by the present applicant (the defendant at trial), Mr Crapper, who pulled out in his window cleaner's van and joined the line. Some yards down the road he turned right intending to do a U-turn in the mouth of a side road and go back the way he had come. He looked in his mirror and signalled but, as he pulled out, was hit by the claimant, Mr Collier, who was coming past the line of traffic on his motor-cycle. The estimated speed of the line of traffic was between 10 and 15 mph, and the estimated speed of Mr Collier was 25 mph.
3. Because of his injuries, Mr Collier had no recollection of what had occurred. Mr Crapper was able to call as a witness a driver, Mr Stanton, who was immediately behind him in the line of traffic. At a trial of liability only, His Honour Judge Hall at Leicester County Court on 10 October 2000, concluded on the evidence that all the blame for the accident lay with the defendant.
4. In essence, the judge found that the claimant on his motor-cycle had been there to be seen and, for whatever reason and despite the precautions that he had taken, the defendant had failed to see him when, because of the nature of the manoeuvre he was undertaking, it was incumbent upon him to do so.
5. Mr Bright, in an attractive and vigorous submission renewing his application for permission to appeal, permission having been initially refused by me on sight of the documents, has put his case on two main grounds. He submits that the learned judge simply got it wrong, or (in lawyers' language) came to a decision wholly against the weight of the evidence. This, says Mr Bright, is inexorably so once the judge accepted, as he did, two things: (i) the defendant's evidence that he had prepared to turn in an exemplary fashion (ie checking in his mirror and signalling before he did so); and (ii) the evidence of the following driver, Mr Stanton, that he had seen the defendant indicate. Amplifying what he had said in his witness statement,as Mr Bright tells us and as I readily accept, Mr Stanton said he had thereupon dropped back and that it was then that the claimant passed him on his motor-cycle and went into the turning car of the defendant.
6. The judge accepted the evidence that he recited in this regard. Mr Bright says that, upon that footing, it is not conceivable that the claimant was in the defendant's blind spot at the material moment; that the judge's alternative finding that, if the motor-cycle was not in the defendant's blind spot, the defendant had been looking at the vehicle behind him rather than considering the possibility of traffic coming over his shoulder; and that the judge had no evidential basis for his finding that the motor-cycle was there to be seen at all relevant moments.
7. These are perfectly tenable points. They were advanced at trial and Mr Bright might well have persuaded the judge of their cogency. But that is not enough to establish that a contrary finding, such as the judge arrived at, is necessarily against the weight of the evidence to a point at which an appellate court can be expected to interfere. The judge concluded that, there being no reason to think that, for example, the motor-cycle was back within the line of traffic or otherwise unable to be seen by the van driver, it was incumbent on the van driver, as the defendant's actions themselves acknowledged, on the van driver to make quite sure that if he was going to turn in this particular situation it was safe to do so.
8. The particular situation, it must be recalled, was one in which a single line of traffic, in a road which carried one line of traffic each way, was moving at a sluggish speed and was therefore very likely to be passed on its off-side by two-wheeled vehicles of the kind the claimant was driving. All of that, it seems to me, indicates that the judge's finding lay along within the parameters of the evidence which he heard and accepted.
9. The alternative way of looking at this case, which Mr Bright also urges upon us, is that on any view there must have been a substantial element, probably one half, of contributory negligence in the claimant's driving. The judge does not deal in terms with contributory negligence, but his findings plainly amount to a conclusion that the entire blame for what happened rested upon the defendant.
10. No doubt another judge might have been persuaded that there was fault on the part of the claimant as well. But it has to be borne in mind that to have assumed that the claimant was in a position from which he could not see that it was safe to proceed, but proceeded nevertheless, would have been to make a jump which might itself have been open to attack as speculative in the light of such evidence as there was before the court.
11. In the result it seems to me, with all respect to Mr Bright's able submissions, that there is not a realistic prospect of success in seeking to persuade a full court that the decision that Judge Hall arrived at was an untenable one in either of the major respects canvassed.
12. For these reasons, I would refuse permission to appeal.
13. LORD JUSTICE POTTER: I agree. The facts of this accident involve the execution by the defendant of a U-turn out of a slow moving line of traffic at a time when, on any view, a motor-cycle was overtaking at a speed not alleged to be excessive.
14. It is quite plain to me that there can be no prospect whatever of the defendant persuading the Court of Appeal that the defendant was not negligent. The only pause for thought which I have had upon this application is whether or not it can be said that there are reasonable prospects of persuading the full court that, on the weight of the evidence before him, the judge should have held the claimant guilty of contributory negligence to a substantial degree.
15. There was no evidence from the motor-cyclist, the claimant in this case. In that sense it may be thought that he was fortunate in the outcome. However, the judge could only decide the case on the evidence before him. No doubt he would have placed considerable reliance on the evidence of Mr Stanton, the van driver in the slow moving line of traffic ahead of whom the defendant had apparently moved with the line before executing his U-turn.
16. Mr Stanton observed that his first recollections of the red van in front of him were at the actual accident location. The van turned right and it was only at that moment that Mr Stanton was aware of the motor-cycle overtaking him and driving straight into the driver's side of the van. He summarised the matter by saying:

"My impression is that the whole accident happened in a moment and I doubt if the motor-cyclist had time to brake."

17. The burden of the submissions before us has been that, in cross-examination and further exploration, Mr Stanton expanded his evidence in a way which rendered it open to the judge, indeed obliged him, to hold that the motor-cycle would have had an opportunity further back down the road to observe the defendant indicating before he made his turn. That involves two particular imponderables. First, speculation as to what may have been visible to the motor-cyclist in the absence of any evidence from him and, secondly, speculation as to the precise position in the road of the defendant (whether proceeding for a time in the line of traffic, or moving quickly into it and out of it), and the precise timing of his signal to turn right.
18. While it may be that other judges would have been prepared to infer a degree of contributory negligence on the part of the motor cyclist, it does not seem to me that there is any reasonable chance of persuading the full court that the judge's decision was one which he could not reasonably have reached. His was an overall judgment based on the evidence of the witnesses and, in particular, the independent witness, not only as contained in his statement or his answers in cross-examination which elaborated it, but also on the judge's overall impression of their accuracy and effect when considered with the rest of the evidence before him.
19. I agree that this application should be dismissed.
Order: Permission to appeal refused. (Order does not form part of approved Judgment)