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
(LEEDS DISTRICT REGISTRY)
(HIS HONOUR JUDGE HAWKESWORTH)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 29 August 2002

1. LORD JUSTICE TUCKEY: This is an application by Caron Jackson for permission to appeal from a judgment given by His Honour Judge Hawkesworth QC in the Leeds County Court in which he apportioned liability 50/50 for a road traffic accident in which the applicant was struck and seriously injured by a taxi whilst she was crossing the road. The applicant also needs an extension of time in which to appeal, which I would grant if I thought that this was a case in which permission to appeal should be the granted.
2. The accident happened on the evening of 22 October 1998 in Cardigan Road, Headingly, when the applicant was returning to her flat after checking her car in a nearby street. Before setting out across the road, which was 7.65 meters wide, she had seen what turned out to be the approaching taxi from her left. It was dark and wet and the street lighting was not particularly good. The applicant was wearing dark clothing, although her hair is blonde.
3. The judge found that, after crossing briskly to the centre of the road, the applicant realised that the taxi was almost on top of her and was unable to avoid hitting her. He found that she was at fault for not checking again to her left as she crossed the first half of the road. She walked straight into the path of the taxi. He found the defendant driver of the taxi to blame because he was going too fast. He was also not keeping a proper look out because he did not see the applicant until she had reached the middle of the road. His passenger, Mr Clare, had seen the applicant shortly before this, but other witnesses formed the view that there was nothing the driver could have done to have avoided the accident.
4. Based on those findings, the judge said:

"Both were, therefore, negligent in their respective ways. I am unable to say in the event that one was more to blame than the other, and weighing all the factors I have mentioned, I have come to the view that the proper apportionment of liability in this case is 50-50."

5. The applicant was represented at trial by counsel but has acted for herself on her proposed appeal. Exceptionally, I have allowed Dr Dhanesha to address me on her behalf because of her medical condition. I am grateful for what he has said, as I am sure is Miss Jackson. As well as helping her with this litigation, he has provided her with much help in coping with her serious injuries, which included a serious head injury.
6. It is Miss Jackson's medical condition which forms the basis of the proposed appeal. She says that at the trial, which was concluded in one day, counsel for the defence put to her in cross-examination a statement which she had made to the police on 31 March 1999, which she had not seen for three years. She says that this traumatised her so that she was unable to do justice to herself in the witness box.
7. She relies on a letter from her GP, written on the day after the trial which says:

"Caron came to see me today following a very traumatic episode in court yesterday. This patient suffers from psychological symptoms and, at times, memory difficulties, resulting from her serious head injury in October 1998. From her description of events it seems entirely consistent that these well documented problems impaired, at that time, her ability to give evidence. Caron remains extremely upset and obviously traumatised by yesterday's events.

Dr Dhanesha has submitted that the production of this statement produced an episode of post-traumatic stress disorder in the applicant which impaired her evidence.

There is a transcript of the applicant's evidence which I have read with care, bearing in mind what is said by the applicant and her GP. Whilst I entirely accept that the applicant must have been put out by the production of this statement, I can see nothing in her evidence to indicate that it was impaired; still less that she said anything which would have affected the outcome of the trial on liability. The statement said nothing which contradicted anything else which the applicant had said, and so it cast no doubt on her credibility. Nor, it seems to me, did she give away anything that she should not have done in a cross-examination which did not last very long.

Looking at the transcript in a little more detail, one sees that, before the statement was produced, at the end of her examination in chief by her counsel, she had already indicated the distress she felt about having to relive these terrible moments in her life by giving her account of the accident. She was asked by her counsel:

Q. How would you describe your recollection of events?

....

A. Very traumatic. It's something that, it's difficult to put into words because it's an experience, it's, you know, everything, your life, you know, you surviving, it's you know, terrible really. I don't like really to think about it."

8. Counsel for the defence then produced the statement, which for some reason (and I understand why the applicant feels aggrieved about it) was not in the trial bundle. Defence counsel then started to question her on it. The judge asked for some explanation as to why it had not been produced before. It was apparent that there were not sufficient copies available in court, so the judge said:

"I am going to rise for a few minutes, then we can have copies. Mr McNeil [counsel for the defendant] can then have an opportunity to consider it further. If you [Miss Jackson] would like to go back and sit down, we'll rise for five minutes."

9. There was such an adjournment when it is apparent that the applicant did look at the statement. She could have asked her counsel for further time or she could have asked the judge for further time to consider it. She did not, but one can understand her reluctance to do so. Counsel then proceeded with his questions with which (on any objective reading) I cannot see that she was unable to deal. The only indication one gets as to her state of mind is from a passage in which she said:

"Do you think I could have some more water?"

and counsel for the defendant says:

"Of course you can, yes. Okay, are you all right?"

10. To which she did not reply. The questioning continued and counsel then said:

"Are you okay, I mean if you want a break, are you all right?

A. It is okay."

11. This suggests that counsel saw that she was upset about having to relive these events, but it goes no further than that. I accept that this did upset her. Nevertheless, it seems to me that she continued to give a good account of herself and she did not take up the opportunity to stop when offered.
12. The crucial question is whether this cross-examination might have affected the outcome of the trial. The judge did not base his conclusion on what Miss Jackson did or did not say in cross-examination. His conclusion that she had only looked left again when the taxi was virtually on top of her, was inevitable on all the evidence that he heard. This explained what she had been trying to explain to herself, which was why she did not have time to get out of the way of the taxi after she saw it immediately before it struck her.
13. It is contended that having read the agreed medical report, the judge should have not have allowed the applicant to continue to give her evidence once this statement was produced. He should have realised that she might be traumatised and adjourned the case. In not doing so he acted unfairly. But there was nothing to indicate to the judge that the applicant was traumatised. She herself did not ask to stop, and after she had completed her evidence her counsel did not raise the matter with the judge. So, I do not think that the judge can be criticised in this way.
14. Many witnesses are obviously nervous in the witness box. Many feel they have not done themselves justice in cross-examination. But this is not a valid ground of appeal. All I can say to reassure the applicant is that in this case, whatever she may have felt or said in cross-examination, it did not affect the outcome of the trial.
15. That covers the points raised in the notice of appeal, which were elaborated by Mr Dhanesha before me and are elaborated clearly in a further statement prepared by Miss Jackson, which was produced today.
16. A number of further points are taken in this statement which were not raised before. The first is that the judge should not have relied on Mr Clare's recollection for a number of reasons which are spelt out. This court does not see and hear the witnesses. It is for the trial judge to form his impression of the credibility of the witnesses whom he has the advantage of seeing and hearing. That point does not advance the prospect of appeal.
17. A further criticism is made of the judge's finding that the applicant was walking briskly. Again, that is a finding of fact which the judge made on all the evidence in the case with which this court will not interfere. There was a strong body of evidence to support the judge's conclusion.
18. The statement ends by saying that the applicant needs her chance to obtain justice and that she has been denied access to justice. That overlooks the fact that the judge did not dismiss the applicant's claim. He awarded her 50 per cent of the damages to which she is entitled, which are still to be assessed and which may be substantial, in a case where the defendant was not conceding any liability at the trial.
19. Apportionment of liability is very much a matter of impression for the trial judge on all the evidence that he has heard. This court seldom interferes with the judge's decision. This was a very experienced judge and I can see no basis upon which this court can interfere with his apportionment in this case.
20. It follows that I do not think the applicant has any real prospect of success on her proposed appeal. Accordingly, I must refuse her permission to appeal.
Order: Permission to appeal refused.