England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE OWEN

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 3rd May 2001

LORD JUSTICE PILL:

1. Lisa Michelle Cooper ("the defendant") appeals against a decision of Owen J dated 14 May 1999 whereby he gave judgment in favour or Aubrey Clifford Hatton ("the claimant") in the sum of £362,884. The judge dismissed the defendant's counterclaim. The claim arose out of a road accident which occurred on 19 September 1995 when a Rover motor car driven by the defendant was in collision with a Ford Sierra motor car driven by the claimant on the A 517 road between Ashbourne and Belper in Derbyshire. The judge found the defendant wholly responsible for the collision.
2. The collision occurred in the hours of daylight on a dry day with good visibility. The vehicles were travelling in opposite directions on what to the claimant was a gentle right-hand bend on a gentle up-gradient. The road was 7.65m wide, leaving ample room for a vehicle in each carriageway, and there was a broken white line along the centre of the road at the point of impact. The front off-sides of the vehicles came into contact with each other. Both vehicles were very badly damaged and, as the judge acknowledged, both drivers were fortunate not to have suffered fatal injuries.
3. It is not suggested that either of the drivers was travelling at an excessive speed. They would have seen each other a considerable distance before the point of impact as demonstrated by photographs showing the line of approach of both vehicles. On impact, each vehicle rotated through over 90° and came to rest on its own side of the road. The two vehicles were only about 2 metres apart.
4. Because of the injuries suffered, neither party had any recollection of the impact and there were no eye witnesses. The emergency services were called and each driver had to be cut out of the relevant vehicle. The fire service used a hose to clear the road of oil which had come from the sump of the Rover. There were no gouge marks or skid marks and the judge found that there was no obvious explanation for the collision. There were no eye witnesses and the parties each called a consulting engineer, Mr A Makinson for the respondent and Dr J A C Horsfall for the appellant.
5. Before considering in more detail the limited evidence available, it is necessary to refer to the context in which the trial and this appeal have been conducted. It is accepted on behalf of the defendant that she is liable to the extent of 50%. It is submitted on her behalf that the principle in Baker v Market Harborough Industrial Cooperative Society Ltd; Wallace v Richards (Leicester) Ltd [1953] 1 WLR 1470 should be applied and that responsibility should be shared equally. The concession of causative negligence is not withdrawn in that, in the Notice of Appeal, the relief sought is limited to a reduction of the damages awarded by 50%.
6. The parties' contentions reflect the views of the respective experts, Mr Makinson contending that on the evidence the Sierra was on its side of the white line and "within 18 inches or so" of it when impact occurred and Dr Horsfall contending that there was "no physical evidence which determines which of the two cars was on the wrong side of the road or whether both of them were". The experts explored in evidence that range of possibilities and their pre-trial agreement that the collision took place "on or close to" the centre line must be read in the light of that.
7. It is not contended by either side that the other was negligent if it remained on its correct side of the road. For the defendant, Mr DuCann submits that the two vehicles approached each other on a collision course near the centre of the road and neither deviated from it. Responsibility should be shared equally.
8. Several factors were considered as possible indicators of where on the road the point of impact occurred. The judge considered the "angle" argument (the angle of approach of the vehicles), the "rotational" argument, the "debris" argument and the argument based on the ultimate position of the vehicles. The judge considered the evidence of the expert witnesses on each of the issues and gave no unqualified approval to either case. The judge also considered the motoring experience of the drivers.
9. What the judge firmly rejected was the suggestion that both drivers were at fault. Having set the scene by reference to the two vehicles approaching each other, he stated:

"As neither car was close to its nearside curb at the point of collision, it is likely that neither driver saw any need to take an such avoiding action till the last moment, until too late. If there was no urgent need to take avoiding action, it is likely that there was a sudden, unplanned change of direction by one car or the other. That change of direction was likely to have been caused by some negligent inadvertence by the driver of the offending car. On the balance of probabilities, I can exclude there being such a manoeuvre by both cars".

Later in his judgment, the judge stated: "It seems likely that somebody was inattentive" and that "it would follow as a result of the fact that there was not any sudden swerve or braking marks, that this must have been a last-minute-too-late-to-do-anything-about-it move". In context, the first sentence in the passage cited above must be read as "too late" to react to the offending driver and not as supporting the defendant's case.

10. The judge held that the move was that of the defendant but I mention it at this stage to indicate the judge's finding upon the submission that responsibility should be shared equally. He rejected the possibility that the two drivers, each of whom had a good and long view of the other, approached each other on a collision course and continued on that course. He also rejected the possibility of a sudden negligent manoeuvre by both drivers.
11. In my judgment, on the evidence and on the balance of probabilities, the judge's finding was entirely appropriate. The idea that two responsible drivers, to whose attributes I will refer, should approach each other in the centre of the road and both refuse to give way when each of them had ample opportunity and room to move to the nearside, is a most unlikely explanation. One or other of them, or probably both of them, would have been likely to take the sensible course of moving to his or her nearside. This was no mere glancing impact based on a minor error of appreciation. The impact brought both vehicles to a dead stop with devastating damage to each of them. The judge was in my view correct to reject, on a balance of probabilities, the suggestion that both of them behaved in a near suicidal way. On the evidence, it was far more likely that a sudden change of direction by one of the vehicles occurred and occurred too late for the other to take evasive action.
12. The decision as to which of the vehicles deviated depended on a finding as to the side of the road on which the impact occurred. If the claimant establishes that it occurred on his side of the road, he should succeed. If, on the evidence, he does not establish that the defendant was on her wrong side of the road, he would fail, save for the admission on behalf of the defendant that she was negligent and that the negligence was causative of the accident. There is in my view a short answer to this appeal, as presented. The defendant admits causative negligence and alleges no more that than responsibility should be shared. The judge found, as he was entitled to find on the evidence, that only one driver was at fault. Even if he fails to establish fault on the part of the defendant, he succeeds on the admission.
13. I should not however wish to dispose of the appeal in that way first because of the skill with which it has been argued but also because of the point which arises upon the effect of the decision in Baker. The concession was made on behalf of the defendant in reliance upon what that case was thought to decide and in circumstances in which the defendant's expert was prepared to go no further than to say that the evidence did not justify any finding as to the location of the point of impact. The reliance on Baker appears to me to have been based on the view, which I do not accept, that the case establishes a rule of law in motor claims.
14. In Baker, two claims arising out of the same road traffic accident had come before different judges, Sellers J (Baker's claim) and Ormerod J (Wallace's claim). The judges reached different conclusions and there were appeals to this Court which were heard together. Both claims were claims by passengers. The headnote states:

"Where the evidence established that a collision between two motor-vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of darkness, when both drivers were killed, the inference, in the absence of any other evidence enabling the court to draw a distinction between them, was that each driver was committing almost the same acts of negligence — failing to keep a proper look-out and to drive his vehicle on the correct side of the road — and accordingly both were equally to blame."

Sellers J had held that the two drivers were equally responsible for the accident and Ormerod J that the plaintiff's claim should be dismissed. The view of Sellers J prevailed in this Court. Somervell LJ stated, at p 1475:

"It is of course, possible that a plaintiff injured by negligence may fail because he is unable to establish whether the negligence was 'A's' or 'B's.' If his difficulties are due to any failure of 'A' or 'B' or both to call available evidence, adverse inferences may be drawn. Here all available evidence was called, and the question, as it seems to me, is one of probable inference from the facts as established. It seems plain that there must have been negligence. If the natural inference was that the accident was due to negligence on the part of one or other of the drivers but not to both I would have thought that the plaintiff would fail.

Sellers J, as I have said, came to the conclusion that both were to blame. He said: 'In these circumstances the question arises as to what is the position on liability. It seems to me that, on those meagre facts, on a straight road, two vehicles descending hills in opposite directions and meeting at the bottom, the inference is that they were both to blame because, in the absence of any other evidence that anything ill befell either vehicle or driver, it would appear that they were both committing almost the same negligent acts, failing to keep a proper look out, failing to drive their respective vehicles on the correct side of the road so that they could each pass the other in safety. It seems to me that they were both hugging the centre of the road and failing to give way to the other. In those circumstances I would hold, and I do hold, that the responsibility for this accident lies with the drivers of both vehicles equally, they both having, by proper inference, committed the same negligent acts of driving."

Somervell LJ stated that he agreed with that analysis.

15. Denning LJ stated, at p 1476:

"It is pertinent to ask, what would have been the position if there had been a passenger in the back of one of the vehicles who was injured in the collision? He could have brought an action against both vehicles. On proof of the collision in the centre of the road, the natural inference would be that one or other or both were to blame. If there was no other evidence given in the case, because both drivers were killed, would the court, simply because it could not say whether it was only one vehicle that was to blame or both of them, refuse to give the passenger any compensation? The practice of the courts is to the contrary. Every day, proof of the collision is held to be sufficient to call on the two defendants for an answer. Never do they both escape liability. One or other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape simply because the could had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame.

Now take this case where there is no passenger, but both drivers are killed. The natural inference, again, is that one or other was, or both were, to blame. The court will not wash its hands of the case simply because it cannot say whether it was only one vehicle which was to blame or both. In the absence of any evidence enabling the court to draw a distinction between them, it should hold them both to blame, and equally to blame.

It is very different from a case where one or other only is to blame, but clearly not both. Then the judge ought to make up his mind between them, as this court said recently in Bray v Palmer [1953] 1 WLR 1455. But when both may be to blame, the judge is under no such compulsion and can cast the blame equally on each.

So much seems so clear on principle that it is unnecessary to go further; but I would like to say that the evidence to my mind makes it much more likely that both were to blame than that one only was to blame."

16. Romer LJ stated, at p 1478:

"I feel some sympathy with the view of Ormerod J. Mrs Baker's action could not succeed unless she established negligence on the part of the van driver. If the facts which were proved rendered it uncertain how the accident happened, so that it might have been brought about either by the negligence of the lorry driver alone or without negligence on the part of either driver then Mrs Baker could not be said to have discharged the onus which lay upon her. In these circumstances I can, as I say, appreciate Ormerod J's view that the cause of the accident is so speculative, on the meagre facts available, that either of the alternative elements to which I have referred may have, in fact, existed, and that the plaintiff had therefore failed to prove her case.

I have, however, for two reasons, come to the conclusion that the decision of Sellers J is to be preferred. … I agree with Sellers J that the reasonable and probable inference to draw from the facts as found by both the judges is that both of the drivers were at fault."

Having held that the inference could properly be drawn that both drivers were to blame, the Court had no difficulty in apportioning responsibility equally.

17. That case was concerned with inferences to be drawn from evidence. It was not creating a rule of law as to how responsibility for road traffic accidents is to be decided and apportioned. In that case, as in the present case, the evidence available to the court was limited in scope though there are significant factual differences, including the state of the light. Somervell LJ agreed with the conclusion of Sellers J which was reached "by proper inference" from such evidence as there was. Somervell LJ stated in terms that the question was one of "probable inference from facts as established". Denning LJ stated that "the natural inference, again, is that one or other was, or both were, to blame". Romer LJ agreed with Sellers J as to what was "the reasonable and probable inference to draw from the facts as found". That the court was not establishing a rule of law that both drivers are liable for a centre of the road collision is made clear by Somervell LJ's statement that "if the natural inference was that the accident was due to negligence on the part of one or other of the drivers but not to both I would have thought that the plaintiff would fail". (That was in the context of a passenger's claim). Denning LJ stated that "It is very different from the case where one or other only is to blame, but clearly not both. Then the judge ought to make up his mind between them". The need for a claimant to prove his case was also underlined by Romer LJ.
18. What inferences can properly be drawn will depend on what evidence is available. There will be cases, such as the present one, in which it is very limited in extent. It does, however, depend on the evidence in the particular case whether the evidence is so meagre that the claimant has failed to prove his case or whether the evidence, or lack of it, is such that the proper inference is that both drivers were to blame, or whether the evidence is such that the proper inference is that one driver only was to blame. What a party cannot do, whether he is one of the drivers or a third party, is to assert as a matter of law that the inference must be drawn that both drivers were to blame. There will be cases, as Denning LJ recognised, where the judge ought to make up his mind between them. It depends on the evidence and the inferences which can properly be drawn from it. Responsibility depends on the evidence in the particular case, and inferences which can properly be drawn from it, and not upon rules of law or rules of thumb.
19. Moreover, this Court should not in my judgment readily reject inferences drawn by a trial judge who has heard the evidence. In Baker, this Court was in the unusual position, which is most unlikely to occur today, of hearing appeals from two judges each of whom had considered the same collision. Denning LJ stated, at p 1477, that "it would have been a discredit to the law for it to have given inconsistent findings on the same accident." That being so, the members of the Court preferred the inference drawn by Sellers J. The Court's solution to the predicament it faced in that case should not be treated as an encouragement to this Court to go out of its way to reject the findings of trial judges based on evidence they heard. Not only does Baker not establish a rule of law in motor claims, it does not permit this Court to go beyond what are well-established limits upon its power to reject a trial judge's findings of fact and inferences drawn from them.
20. Mr Leighton Williams QC, for the claimant, has referred us in some detail to the evidence in this case. In my judgment not only was the judge justified in holding that only one of the drivers in the present case was at fault but there was sufficient evidence from which the inference could properly be drawn that the accident occurred on the claimant's side of the road and that it was the defendant who was negligent. I see force in the criticisms made by Mr duCann both of the form and substance of the judgment but, upon a consideration of the evidence, the judge was entitled to reach the conclusion his did.
21. The judgment was, in my respectful view, deficient in the reliance placed on evidence from the claimant's employer that the claimant was "an excellent driver, calm, assured. He never took risks, he was composed". That reliance arose in a context in which the defendant had admitted negligence and it appeared that only the claimant's driving was in question. It is not surprising that attention was concentrated on the claimant's driving. It was suggested that the claimant had cut the corner, though what is described as a corner was in fact a very gentle bend. It was in the context of that allegation that the judge stated "I certainly do not accept that a driver with the reputation which he had with his employer would have been cutting the corner". Speaking of driving records, the judge, at the same time, made it clear that there "was nothing against the defendant". He was right to say so because the defendant too was a driver with an unblemished driving record who knew the road well.
22. On the judge's finding that the accident was caused by a single negligent lapse, and notwithstanding the circumstances in which the judge found himself, he was not entitled in my view to attach importance to the claimant's good record. It is customary to place before the court, where it is appropriate, evidence of a driver's experience, familiarity with the vehicle he was driving and familiarity with the road. Even the best drivers occasionally have lapses such as the lapse which one or other of the drivers had in this case. However, it could not be said, on the basis of past record, that one driver was more likely than the other to have suffered the lapse. Mr duCann underlines the prominence given by the judge and wrongly given, he submits, to this aspect of the case in the decision in the claimant's favour.
23. The judge also considered, and considered in some detail, the available evidence as to the point of impact and the expert witnesses' opinion upon it. The judge considered whether the point of impact was in fact on the claimant's side of the road, as Mr Makinson contended, stating, as the witness was entitled to, that if it was in that position "there was no negligence of any kind by the claimant". The defendant took what Mr duCann described as a neutral position on the point of impact. The judge found two arguments significant. The first was the amount of debris shown on the post-accident photographs as being under the Sierra. The judge considered the counter-arguments, first that debris will fly off in almost any direction and second that the use of the hose to remove the oil escaping from the Rover might have removed debris from under the Rover before the photographs were taken. The judge referred to Mr Makinson's evidence that the position of debris is an indication of where a collision had taken place, which in this case was significant. Under cross examination, Mr Makinson stated:

"Q That standing alone, the presence of debris is not a sufficient positive indicator as to where an accident happened.

A Not as good as. It is significant but it is not as good as having other evidence to support it.

Q That is where you and Dr Horsfall depart, because he is saying it is simply not sufficient. You are saying it is sufficient in your case.

A. Having debris is certainly a help. I don't agree with Dr Horsfall that it's not sufficient. Debris is a factor and one has to consider it.

Q If it is used as corroboration in the main, how can it be promoted to be primary evidence when you have not got that other more important and critical forensic evidence?

A Let's be fair, this is a very unusual accident, in so far as no marks on the road and no witnesses, neither the drivers know. Therefore one can only go from the debris and the debris then becomes more important than it normally would do. Because normally we get the debris and then we get the corroboration as well.

Q But then you are elevating the importance of the debris, are you not, to a position where it has never had that importance?

A I think to some extent that is right, but in this instance it's important, whereas normally it wouldn't be as important."

(I comment only that I do not find the distinction between primary evidence and corroboration helpful in this context. In some cases the position of debris may reveal more than other types of evidence; in other cases less.)

The judge concluded:

"There is no direct evidence of interference with the Sierra debris and I see no reason for conscious disturbance, or for that matter for accidental disturbance, to produce the result shown in the photographs, whether by force of water of by dragging of the pipes or in any other way. That being the situation, I accept that the Rover debris may well have been swept away, but the debris below the Sierra is some evidence of the point of impact. I do not say that that is conclusive evidence but some evidence of where the collision took place. If that is the case, as I find it to be, then that is some evidence that the collision took place on Mr Hatton's side of the white line."

Notwithstanding his acceptance that the Rover debris may have been swept away, that was a finding the judge was entitled to make. The presence of substantial debris under the Sierra was certain; whether there had been debris under the Rover was speculative. The photographs give no sign of debris washed into the gutter, the direction in which it was accepted the hose would have been trained. Moreover. That was "some evidence", in a case where the evidence was sparse, on which the judge was entitled to rely. That he did rely on it I have no doubt notwithstanding the subsequent, with respect, somewhat obscure reference at the very end of the judgment to its being "consistent with the explanation which I believe is the correct explanation as to what happened".

24. The judge also relied upon the position in which the vehicles came to rest after the impact. At the nearest point there was a space of two metres between them. Of that, 1.4 metres was on the claimant's side of the road, a possible indication that before the vehicles each rotated, the impact had been on that side of the road. The judge set out the defendant's arguments on this issue in some detail. They were based on the fact that the Rover had come into contact with a wall and had surmounted a curb. The judge concluded that the evidence on this issue was "a pointer towards Mr Hatton's case" and "suggestive of the position at the time of impact".
25. In my judgment, the findings in relation to the debris and the ultimate positions of the vehicles were sufficient to justify the finding of the judge that the impact occurred on the claimant's side of the road and that only the defendant was negligent. The judge rightly assumed the responsibility of considering the evidence and whether an inference could properly be drawn as to where the impact occurred. Certainty could not be achieved but the judge was entitled to draw the inference that, upon a balance of probabilities, the impact occurred on the claimant's side of the road. I do not consider that the judge's conclusion is invalidated by his additional finding that, by reason of the employer's evidence, he did not accept that the claimant would have been cutting the corner.
26. The Court has rightly been warned of the dangers of relying on parts only of a judgment which is alleged to contain flaws. I acknowledge that danger but, at the same time, I remind myself of the risk of wrongly reversing a judgment, the basic conclusion of which is sound, by reason of flaws in the way it is expressed. This was an extemporary judgment. I do not doubt that the judge understood the issues and the arguments presented to him, which he set out in some detail. His conclusion was justified on the evidence and should in my view be upheld.
27. I would dismiss this appeal.

LORD JUSTICE JONATHAN PARKER:

28. In the action, the claimant (the respondent in this appeal) claims damages on the basis that the accident was caused wholly by the negligence of the defendant (the appellant in this appeal). By her Defence and Counterclaim the appellant denies negligence and counterclaims on the basis that the accident was caused wholly by the negligence of the respondent. However, at the trial it was contended on behalf of the appellant that the correct inference for the Court to draw from such evidence as was available was that each party was equally to blame. This contention necessarily involved a concession by the appellant that she was 50 per cent to blame for the accident. In the event, the judge found the appellant to be wholly to blame, and on that basis he awarded the respondent damages in the sum of £362,884.
29. The appeal is limited to the issue of liability. Mr Du Cann, who appears for the appellant, repeats the contention that the proper inference from the available evidence is that each party was equally to blame for the accident. On that footing, he seeks an order that the damages awarded to the claimant be reduced by half and that the appellant be awarded damages in a sum equal to half the damages for which she counterclaims. Mr Du Cann submits that there was no evidential basis for the judge's finding that the appellant was solely to blame, and he also challenges the judge's reliance on evidence from the respondent's employer to the effect that the respondent was not the kind of driver who would cut a corner. Mr Leighton Williams QC, who appears for the respondent, submits that the judge's finding as to liability was fully justified on the evidence, and that in making that finding the judge was entitled to rely on the evidence of the respondent's employer.
30. I gratefully adopt Pill LJ's recital of the material facts, although I have the misfortune to differ from his conclusions.
31. As the judge said (at p.1D of the transcript of his judgment):

"Neither driver has any recollection of the collision or the events leading up to it. There were no other witnesses of the collision, visibility was good, the road was dry and there was no obvious explanation for the collision. There were no skid marks, there were no gouge marks."

32. Later in his judgment (at p.4A of the transcript) the judge referred to the instant case as being unusual because of the lack of evidence.
33. The judge then referred to the positions of the two cars on the road following the collision, as they appeared from photographs taken after the emergency services had left the scene and from a plan drawn by a police constable who had also attended the scene that day. The judge commented that the measurements on the police constable's plan must be open to doubt since it was not known from what reference point the measurements were taken.
34. After referring to the evidence of the respondent's employer to the effect that the respondent was a careful driver (a matter to which I shall have to return), the judge turned to the evidence of the respective experts (Mr Makinson for the respondent and Dr Horsfall for the appellant), commenting that each expert had experience, knowledge and impartiality, and had done his best to help the court. The judge then continued:

"Before considering the arguments which I have heard, I shall set the scene a little more. If either driver was over the white line or even on it, the other driver should have seen this and taken such avoiding action as was possible. It follows that if each was over the white line then each should have taken steps to avoid what would by that time have become the inevitable collision. That avoiding action was likely to have been by steering towards the nearside kerb. As neither car was close to its nearside kerb at the point of collision, it is likely that neither driver saw any need to take such avoiding action until the last moment, until too late.

If there was no earlier need to take avoiding action, it is likely that there was a sudden, unexplained change of direction by one car or the other. That change of direction was likely to have been caused by some negligent inadvertence by the driver of the offending car. On the balance of probabilities, I can exclude there being such a manoeuvre by both cars." (My emphasis.)

35. Having found that the collision was caused by one or other of the two drivers (but not both) negligently making a "sudden, unplanned change of direction" - that is to say, as I understand it, swerving towards his or her offside – the judge addressed the question which of the two drivers was more likely to have made that negligent manoeuvre.
36. In resolving that question, the judge referred first to the fact that mere inadvertence by the respondent would have led him towards his nearside kerb (since he was negotiating what for him was a gentle right-hand bend), whereas in the case of the appellant the opposite would have been the case. At this point, therefore, the judge appears to have had in mind mere inadvertence by one driver or the other, as opposed to a "sudden, unplanned change of direction".
37. The judge then addressed the "angle argument", which was advanced by the respondent's expert (Mr Makinson), to the effect that the relative displacement of the two cars indicated an angle of impact which in turn indicated that at the point of impact the respondent's car was moving towards its nearside and the appellant's car towards its offside. The response of the appellant's expert (Dr Horsfall) to this argument was that it was impossible to reach such a conclusion on the evidence of the photographs (being the only evidence on which the argument could be based). As to the angle argument, the judge said:

"I am not prepared to reject Dr Horsfall for the experience of Mr Makinson. I am sure that each has given evidence in the manner which I have indicated, but it does come to this: that in so far as it is necessary for [the claimant] to prove that he was on the correct side of the road, the angle argument of itself is not, in my judgment, sufficient".

38. The judge then turned to what he described as the "rotational argument" advanced by Mr Makinson, based on the fact that the appellant's car had rotated on impact to a greater extent than the respondent's car. However, the judge took the view that "no conclusions may be drawn merely from the question of rotation" (transcript of judgment p.9B-C).
39. The judge turned next to the "debris argument", noting that the photographs showed a certain amount of debris directly under the respondent's car and noting also Mr Makinson's evidence to the effect that "although debris is not a certain indication of where a collision has taken place, it is nevertheless an indication", and that in the instant case Mr Makinson considered the presence of such debris to be "significant" (transcript of judgment, p.9G-H). The judge then referred to the evidence of Dr Horsfall that evidence of debris is "just not enough", firstly because much of the debris will "fly off almost in any direction", and secondly because the emergency services had hosed down the road to wash away oil which had escaped from the defendant's car (transcript of judgment p.10B-C). The judge continued (at p.10D of the transcript):

"The argument goes on that, either by the force of the water used or by the effect of the hoses being dragged along the road, there was movement of the debris: that is, removal from near the Rover [i.e. the appellant's car], which I am prepared to accept, by reason of the water and pushing underneath the Sierra [i.e. the respondent's car], so that it was all as shown in the photograph. Indeed, Dr Horsfall says that he would not have expected to see any collection of debris under the Sierra as shown in the photographs and this, he says, indicates the disturbance for which he argues.

There is no direct evidence of interference with the Sierra debris and I see no reason for conscious disturbance, or that matter for accidental disturbance, to produce the result shown in the photographs, whether by force of water or by dragging of the pipes or in any other way. That being the situation, I accept that the Rover debris may well have been swept away, but the debris below the Sierra is some evidence of the point of impact. I do not say that it is conclusive evidence, but it is some evidence of where the collision took place. If that is the case, as I find it to be, then that is some evidence that the collision took place on [the respondent's] side of the white line." (My emphasis.)

40. It is material to note that the judge accepted that, at the very least, debris in the area of the Rover might well have been swept away (in the earlier passage quoted in italics the judge appears to make a positive finding that the debris in the position shown in the photographs had been moved to that position by the force of water coming from the hoses or from the movement of the hoses themselves).
41. The judge turned next to the argument based on the ultimate position of the two cars. He concluded that although the rearwards movement of the Rover as it rotated after impact was arrested when it collided with a wall, the Rover would not have moved very much further. He said (at p.12H of the transcript):

"It does, in my judgment, seem likely that the Rover struck the wall and that whilst there was at least a collision it was not a collision which stopped the Rover from going very much further. That therefore again, as it seems to me, is a pointer towards [the claimant's] case."

42. The judge then referred to the fact that there was no mark on the kerb where the Rover had crossed it. He accepted Dr Horsfall's explanation for the lack of any such mark, namely that the rear of the Rover would have been lifted on impact before landing on the kerb, and continued (at p.13D of the transcript):

"The same does not apply in like manner with the Sierra because there is not a full kerb at that place. But that the Sierra would have been lifted I have no doubt. That again, as it seems to me, is suggestive of the positions at the point of impact."

43. I confess that I cannot follow the judge's reasoning in that passage. The mere fact that the rear ends of both cars would have been lifted on impact, thus explaining the absence of any mark where the Rover crossed the kerb (there being no kerb on the respondent's side of the road at that point), does not seem to me to throw any light at all on the positions of the cars at the point of impact.
44. The judge then turned to what he referred to as the "personal argument" - an argument which had not been considered by either expert. In relation to this argument, the judge said this (at p.13F of the transcript):

"I accept that there is nothing against the defendant. I accept that there is nothing against the [claimant]. I am not doing this on the basis that he had been driving longer than the defendant. That would not be right. But nevertheless I have had the assessment of this driver from his employer. I have no reason not to accept [the employer's] evidence and it seems to me that it is of importance. I must not, of course, speculate and I believe I am not doing so. I ask, on the balance of probabilities, what may I properly find? I can find that it is likely that [the claimant] was on his correct side of the road. Of course, he could have been distracted and this happens to drivers every day of the week. But there is nothing to show that he drove to the offside. It does seem to me that if he were to be distracted it is more likely that he would go to his nearside rather than to his offside. I certainly do not accept that a driver with the reputation which he had with his employer would have been cutting the corner." (My emphasis.)

45. The judge went on to make his findings on liability, saying this (at p.14B of the transcript):

"As to the defendant, it just does seem to me that it would have been by inattention - and it seems likely that someone was inattentive - she could have gone onto the wrong side of the road. So it seems to me that if I find, as to [the claimant], that he was on his correct side of the road, then it must follow that the defendant was not on the correct side of the road. It would follow, as a result of the fact that there was not any sudden swerve or braking marks, that this must have been a last-minute-too-late-to-do-anything-about-it move on the part of the defendant. This would explain the angle. Of itself, I certainly, as I have indicated, would not regard that as probative. However, it is something which Mr Makinson said he was able to see and this does fit in with it. I am not prepared to go further than that. It does not drive me to accept his argument but I do note that nevertheless his argument is consistent with what I believe in fact happened.

Then I look at the debris. Again, as I have indicated, it is not of itself a conclusive argument but it is consistent with the explanation which I believe is the correct explanation as to what happened.

It is in those circumstances that I must find for the claimant and against the defendant."

46. Thus the judge, having concluded that the respondent was not the kind of driver who would cut a corner, found that the "sudden, unplanned change of direction" to which he had referred earlier in his judgment must have been made by the appellant; and he went on to comment that that finding was "consistent" with Mr Makinson's contention based on the angle of impact (the "angle argument") and with the position of the debris shown in the photographs. As I read the judgment, therefore, the judge's finding that it was the appellant, rather than the respondent, who was wholly responsible for the collision was based substantially, if not entirely, on his acceptance of the evidence of the respondent's employer to the effect that the respondent was a careful driver who would not cut a corner.
47. I turn first to the judge's reliance on the evidence of the respondent's employer (what may be called "character evidence"). In my judgment the judge was in error in attaching any significant weight to that evidence in the circumstances of the instant case. If there are cases involving road traffic accidents where character evidence is of some assistance, in my judgment the instant case is not one of them. Every driver is a careful driver until he makes a careless mistake. As the judge himself observed, the respondent could have been distracted, "and this happens to drivers every day of the week". In the context of a collision such as that which occurred in the instant case, the opinion of a third party as to the driving ability of either party is, in my judgment, completely worthless.
48. In my judgment, therefore, the judge's finding on liability is fundamentally flawed by his reliance on the evidence of the respondent's employer, and by his conclusion, based on that evidence, that "a driver with the reputation which he had with his employer" would not have been cutting the corner. Absent that evidence and that conclusion, there was in my judgment no sufficient evidential basis for finding the appellant was solely responsible for the collision. Nor, indeed, did the judge suggest otherwise; as already noted, he referred to the "angle argument" and to the position of debris as shown on the photographs merely as being "consistent" with the collision having occurred on the claimant's side of the road.
49. In any event, the position of the debris as shown on the photographs was of minimal evidential weight, in my judgment, given the judge's earlier acceptance that the debris had probably been moved by the force of water from the hoses used by the emergency services or by the movement of the hoses themselves.
50. Nor does the matter end there, in my judgment. As noted earlier, in addressing the issue of liability the judge began by finding that the circumstances of the collision were such that, on the balance of probabilities, one driver or the other was wholly responsible for the collision, thereby rejecting the possibility that both drivers might have been in some degree responsible. On the basis of that finding, he proceeded to address the question whether it was the respondent or the appellant who, on the balance of probabilities, was wholly responsible. In my judgment, however, there was no evidential basis for the judge's conclusion that one driver or the other was wholly responsible for the collision, and that conclusion led the judge to pose himself a false question, viz. which of the two drivers was wholly responsible for the collision.
51. The reasoning on which the judge based his conclusion that one driver was wholly responsible for the collision was that if either car was at or near the middle of the road the other driver would be likely to have seen it and to have taken avoiding action by driving towards the nearside kerb, but that since "neither car was close to its nearside kerb at the point of collision, it [was] likely that neither driver saw any need to take such avoiding action until the last moment, until too late" (transcript p.6E). It followed, so the judge reasoned, that there must have been a "sudden, unplanned change of direction by one car or the other" (transcript p.6F). It seems to me, however, that this is no more than speculation. Moreover, it is speculation which overlooks the possibility that one or other driver, or both, may have been negligent in failing to keep a proper lookout.
52. In Baker v. Market Harborough Industrial Co-operative Society Ltd ("Baker"), Wallace v. Richards (Leicester) Ltd ("Wallace") [1953] 1 WLR 1470 CA, the Court of Appeal considered how the court should approach the issue of liability for a collision between two vehicles in circumstances where the evidence was equivocal as to whether one or other driver, or both, might have been to blame. The facts in both Baker and Wallace were similar to those in the instant case, at least to the extent that in neither case did the evidence provide any clear indication as to who was to blame. In Baker, the judge at first instance (Sellers J) held that each party was partly responsible for the accident, and apportioned the blame equally between them. In Wallace, on the other hand, the judge at first instance (Ormerod J) held that the claimant had failed to discharge the onus of proving negligence on the part of the defendant, and dismissed the claim. The Court of Appeal upheld the approach of Sellers J, holding that both in Baker and in Wallace the reasonable and probable inference to draw from such evidence as was available was that both parties were equally to blame. As Denning LJ put it (at p.1476):

"In the absence of any evidence enabling the court to draw any distinction between them, it should hold them both to blame, and equally to blame."

53. In a passage from his judgment in Baker quoted with approval by Somervell LJ at pp.1475-6, Sellers J said this:

"It seems to me that, on those meagre facts, on a straight road, two vehicles descending hills in opposite directions and meeting at the bottom, the inference is that they were both to blame because, in the absence of any other evidence that anything ill befell either vehicle or driver, it would appear that they were both committing almost the same negligent acts, failing to keep a proper lookout, failing to drive their vehicles on the correct side of the road so that they would each pass the other in safety. It seems that they were both hugging the centre of the road and failing to give way to the other."

54. In my judgment, the same considerations apply in the instant case.
55. Accordingly, there was in my judgment no sufficient evidential basis for the judge's conclusion that one party or the other was wholly responsible for the accident. On the contrary, the only reasonable and proper inference from the available evidence, in my judgment, is that each party was partly responsible. And since the evidence does not enable the court to apportion the blame between them, it follows on the authority of Baker and Wallace that they must be held equally responsible.
56. For those reasons, I would allow this appeal.

PRESIDENT ELIZABETH BUTLER-SLOSS,:

57. I gratefully adopt the outline of the facts set out in the judgment of Pill LJ which I have read in draft. The main issue on this appeal, in my view, is whether there was sufficient evidence adduced by the respondent to the appeal for the judge to find that the appellant was wholly to blame for the accident. In the light of the concession by the respondent that she was liable to the extent of 50%, the interesting issue as to the ambit of Baker v Market Harborough Industrial Cooperative Society Ltd ; Wallace v Richards (Leicester) Ltd [1953] 1 WLR 1470 may be of less significance in the present appeal.
58. The judge found that there was no obvious explanation for the collision. The accident occurred on a dry day with good visibility. It was a single carriageway divided at the accident spot by a broken white line. The cars were travelling in opposite directions. The claimant`s side of the road was slightly uphill with a gradual right hand sweep. There appears to have been ample space to pass each other. The judge said:

"If either driver was over the white line or even on it, the other driver should have seen this and taken such avoiding action as was possible. It follows that, if each was over the white line, then each should have taken steps to avoid what would by that time have become the inevitable collision. That avoiding action was likely to have been by steering towards the nearside kerb. As neither car was close to its nearside kerb at the point of collision, it is likely that neither driver saw any need to take such avoiding action until the last moment, until too late."

59. If there was no earlier need to take avoiding action, it is likely that there was a sudden, unplanned change of direction by one car or the other. That change of direction was likely to have been caused by some negligent inadvertence by the driver of the offending car. On the balance of probabilities, I can exclude there being such a manoeuvre by both cars."
60. There were no skid marks. There were no eye-witnesses and neither driver had any recollection of the moment of impact. It is common ground that the collision took place offside to offside, with the rectangle formed by the front of each vehicle as found after the collision indicating the site of the point of collision. Both parties were heavily reliant upon the evidence of experts who in turn had a paucity of information from which to reconstruct how the accident occurred. As the judge said there was an unusual lack of evidence.
61. It is trite law that a claimant has to prove his case. It is as true in the present appeal as in all other civil litigation. The facts to support the claimant`s case were sparse. The judge found that the facts submitted by the claimant were not individually nor collectively probative of the alleged negligence of the defendant, although certain of them were consistent with the conclusion to which the judge came. The question of debris and its position under the Ford Sierra, (the claimant`s car) was potentially the most significant. The judge accepted that there was a subsequent movement of debris from near the Rover caused by the need to hose the road as a result of oil leaking on the road probably from the Rover. He said:

"I accept that the Rover debris may well have been swept away, but the debris below the Sierra is some evidence of the point of impact. I do not say that is conclusive evidence but some evidence of where the collision took place. If that is the case, as I find it to be, then that is some evidence that the collision took place on Mr Hatton`s side of the white line."

62. On the issue of debris the judge concluded at the end of his judgment:

"Then I look at the debris. Again, as I have indicated, it is not of itself a conclusive argument but it is consistent with the explanation which I believe is the correct explanation as to what happened."

63. From those extracts it seems clear that the judge himself did not find that the evidence of the debris was, by itself, sufficient by to prove that the defendant was solely to blame for the accident. The other arguments raised in support of the claimant, the final position of the vehicles, the angle, the rotation, the lack of a mark on the kerb where the Rover came to a halt, were not relied upon by the judge as probative in forming his conclusion. I accept of course that this was an extempore judgment given by a highly experienced judge. But he, himself, did not elevate any of the factors submitted to him beyond pointers or suggestive of support for the claimant`s case. Following the judge`s reasoning, and having well in mind the dangers of too close textual analysis of the judgment, the judge did not indicate any conclusive fact nor a group of facts from which he found that the defendant was solely responsible for the accident. I do not, myself, see the evidential basis upon which the judge concluded that that only one driver was to blame for the accident and therefore the other was to be wholly exonerated. There does not appear to be any evidence as opposed to theory to support the judge`s conclusion.
64. The judge appears to have relied heavily upon the driving reputation of the claimant as the major element in his conclusion and to have made it the decisive factor. He said at page 13:

"Then I come to the question, the personal argument…….. I accept that there is nothing against the defendant. I accept that there is nothing against the plaintiff. I am not doing this on the basis that he has been driving longer than the defendant. That would not be right. But nevertheless I have had the assessment of this driver from his employer. I have no reason not to accept Mr Powell`s evidence and it seems to me that it is of importance. I must not, of course, speculate and I believe I am not doing so. I ask, on the balance of probabilities, what may I properly find? I can find that it is likely that Mr Hatton was on his correct side of the road. Of course, he could have been distracted and this happens to drivers every day of the week. But there is nothing to show that he drove to the offside. It does seem to me that if he were to be distracted it is more likely that he would go to his nearside rather than to his offside. I certainly do not accept that a driver with the reputation which he had with his employer would have been cutting the corner."

65. In my judgment the judge fell into error in placing great reliance, or, indeed, any reliance, upon the claimant`s driving reputation in order to find that he was on his correct side of the road. It followed, according to the judge, that the defendant must have by inattention gone on to the wrong side of the road and caused the collision. It cannot be said of any driver, however experienced, that he could never make a mistake. Even for a driver with an impeccable driving reputation there is always the possibility of inattention for whatever reason which may lead to a collision. The defendant, although younger, had no driving blemishes. I cannot therefore see, myself, why Mr Hatton`s driving was to be preferred to that of Mrs Cooper in the absence of any evidence to distinguish between them.
66. If the character evidence is to be excluded, as, in my judgment, it clearly has to be, there is no other evidence upon which the judge was entitled to find the defendant wholly liable for the accident. In my judgment the claimant failed to prove his case and in the absence of the concession by the defendant, the claim would not have succeeded. It is for that reason that, in my view, a conclusion based upon the decision in Baker and Wallace is not necessary on this appeal, but since it has been argued and My Lords are not in agreement on its relevance to this appeal, I agree with the conclusions in the judgment of Jonathan Parker LJ which I have read in draft. Baker and Wallace should not be taken as rigid authority.
67. I would allow the appeal.
ORDER: Appeal allowed with the costs of the appeal and the counterclaim. Minute of order to be lodged with the court. (Order does not form part of approved Judgment)