England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London, WC2 Friday, 4 October 2002

1. LORD JUSTICE KENNEDY: This is a renewed application for permission to appeal brought by Mr Lyon in person against a decision of Judge Bowsher QC, sitting in this building, delivered on 25 June 2002. The action, heard on 16 and 17 June, related to a very unfortunate ski-ing accident in Andorra on 19 January 1999.
2. Four people went to Andorra on 18 January 1999: Mr Lyon, his friend Nicholas Maidment the defendant, a man named Richard Peutrill who was a ski-ing acquaintance and Steve Tinsley. The accident took place on the following day. It seems that on that day there were at the top of the ski slope all four persons. The first to descend the ski slope was Richard Peutrill. He completed his run without incident. He was then followed - and I put it neutrally for the moment - close together by the claimant and the defendant. As the claimant was descending undoubtedly he fell. His case was, and is, that he fell because of a collision which was the responsibility of the defendant. The defendant bumped into him or cut across him. I put it deliberately in a loose way because there has been more than one version of precisely what happened at the moment of the alleged collision. At the time when he fell Steve Tinsley had not yet started and because of the shape of the ground was not able to see the precise point at which the claimant fell.
3. The evidence at the hearing therefore of necessity came from all four of the people to whom I have just referred. There was also expert evidence called on each side from people who were familiar with ski-ing, Peter Cliff and Christopher Exall. In addition, there was a certain amount of medical evidence because the claimant was very seriously injured and there was an issue as to whether or not a tracheostomy had to be performed on the slope before he was removed to hospital.
4. The judge examined the evidence with great care. He said, by way of introduction, he was satisfied that all the witnesses were honest and doing their best to assist him. That does not mean, in the final analysis, all the witnesses were accurate. As he pointed out, it is not uncommon in the experience of courts for witnesses to be entirely honest about events which took place some time ago in a very short space of time and which they are trying some time later to recollect.
5. In the event, the judge came to the conclusion that the accident had not occurred in the way contended for by the claimant. He came to that conclusion for a number of reasons. He looked at the evidence of Richard Peutrill. In relation to that evidence he observed that that witness had said that having finished his run he was able to hear the defendant Maidment call out in a non-aggressive way during his descent words to the effect of "you bastard". It was very much part of the claimant's case at trial and here that those words were shouted out to the claimant at the time when they were ski-ing together very fast down this run. That was not the interpretation the judge put on them. In the circumstances, and having regard to the rest of the evidence, the judge was entitled to reach the conclusion which he did. The evidence of Steve Tinsley did not of itself contribute a great deal because he was unable to see the point of collision. The judge said in his judgment that he believed that Steve Tinsley had received some tuition from the claimant the previous year. The claimant denies that; he says that amounts to a misunderstanding of what that witness said.
6. For present purposes I am prepared to accept that the judge did misunderstand what the witness said, although I do not have a transcript of what he did say. Plainly, that was not central to the overall conclusion of the judge in this case.
7. What was much more central was the evidence of the claimant himself. Without going into any detail, it is clear from the judge's analysis of that evidence that wholly understandably over the years the claimant had not been consistent or reliable about what occurred. That does not mean he was not honest, but he was not consistently reliable.
8. The judge also looked at the evidence of the defendant Richard Maidment and, as that evidence was presented at the trial, it is clear that there was no basis for a finding that this incident, this fall of the claimant, was as a result of some negligence on the part of the defendant. Before me today Mr Lyon says that since the hearing Mr Maidment has done some very strange things. He has telephoned; he has indicated that he would give a different version, he would say that he remembered he had collided with Mr Lyon and he claims that his change of position is all due to the fact he was promised £1,000 in expenses for attending the hearing, which he has never received. It may be, if what is now alleged is correct that since the trial the defendant has behaved in a very disreputable way.
9. However, on the evidence presented to the judge I, for my part, can see no reason why the judge should not have come to the conclusion he did on the lay evidence.
10. Today Mr Lyon has also addressed me about what was said towards the end of the judgment in relation to the evidence of Mr Ameen, the neuro-surgeon. The judge said:

"The evidence of Dr North and Mr Ameen discussed the possibility that the claimant due to his brain being starved of oxygen ..... may have made up inaccurate information without having any awareness that the information is incorrect. That process was described as `confabulation' ..... "

11. The process, said the judge, is well known to judges, without the regrettable label, and it may occur without hypoxia (a matter to which I have already referred). The judge went on:

"In this case there clearly was hypoxia."

12. Mr Lyon submits that the judge was in error in reaching that conclusion, that he overstated the medical evidence. Again, I do not have before me a transcript of the medical evidence. Even assuming for present purposes that the judge did overstate it, the fact is, as was said by the single judge when considering the papers, the hypoxia explanation that appears in paragraph 31 of the judgment was in fact only of marginal significance and was only offered by the judge as a way of explaining the apparent and quite clear inconsistencies in the accounts put forward by the claimant which the judge had himself carefully analysed.
13. It is extremely difficult for any claimant who has been unsuccessful, and who genuinely believes he should have been successful, to accept the result. Mr Lyon is in that unhappy situation. The fact is that an appeal, if an appeal were to be brought, would in my judgment have no realistic prospects of success and that would only add to Mr Lyon's regrettable sense that justice has not been done and also provide him with yet one more period of trauma.
14. In my judgment, there is here no basis for granting permission to appeal, unfortunate though Mr Lyon will regard that to be.
Order: Application refused