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 MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE BRIGGS)

		Royal Courts of Justice Strand London, WC2
		2 May 2003

1. LORD JUSTICE KAY: On 10 September 2002 His Honour Judge Briggs sitting in the Middlesbrough County Court dismissed a claim brought by the appellant, John Paul Young, against the Ministry of Defence for damages for personal injuries which he suffered as soldier serving in Bosnia. The appellant appeals again that decision with permission granted by the full court.
2. On 4 November 1996 the appellant was the driver of an armoured fighting vehicle ("AFV") which crashed through a crash barrier at a left-hand curve on a mountain road in Bosnia and dropped some 10 m or so on to the road below. He was accompanied by a lance corporal who was in command of the vehicle and who tragically was killed in the most unfortunate circumstances in the accident. The appellant, who was badly injured, contended that the accident was due to the condition of the AFV at the time but the judge concluded that he had not established his case and that the more likely explanation for the accident was driver error.
3. The appellant himself had no recollection of the events that led up to the accident but the majority of those facts were not in dispute. For some time before the day of the accident the vehicle had been in a stationery position in use as a communication centre. The appellant was deployed to the site on 29 October 1996 and the vehicle did not then move until 4 November. On the previous day, 3 November, the appellant learned that the AFV was no longer required at the site and he and Lance Corporal Thirlwell were instructed to pack up so that the following morning they could take the vehicle back to Sipovo.
4. On the following morning, the AFV set off on its journey, driven by the appellant with Lance Corporal Thirlwell on board as the vehicle commander. They were preceded by a Landrover containing a sergeant and another lance corporal. They were to drive in convoy following a designated route known as Route Pelican. That route took them downhill following a winding mountainous road.
5. After travelling for about five minutes, and covering a distance which was something of the order of 3 km (perhaps a little more), they came to a place where a fairly sharp left-hand bend led into a right-hand bend so that the road effectively came back upon itself at a lower level. The Landrover negotiated the left bend and this took it out of sight temporarily of the AFV. The occupants of the Landrover suddenly became aware that the AFV had had an accident, although they did not actually see it happen.
6. It transpired that the AFV had failed to negotiate the left-hand bend, had struck a crash barrier on the outside of the curve and had eventually gone over the edge. It had travelled for some significant distance along the crash barrier and then had simply gone over the top of the barrier, crushing it to the ground before going headlong down to the road below. The appellant, as I have indicated, suffered serious injury and Lance Corporal Thirlwell was killed.
7. Lance Corporal Carter, who had been the driver of the Landrover, estimated that the maximum speed of his vehicle was 20 km per hour (12.5 mph). He gave evidence that on the road down the mountain he had had to slow down to permit the AFV to catch up.
8. There were really only two possible explanations for the accident. Either some defect in the AFV had prevented it from being driven safely, so that it could not take the bend without crashing into the crash barrier, or there had been some error made by the driver.
9. The appellant contended that although he could not recall the accident himself, the evidence demonstrated that there were faults on the AFV and that these faults must have explained the sudden happening of the accident. He alleged that the vehicle was defective in two material respects. In order to understand these two allegations, it is necessary to describe the vehicle and the way in which it is controlled. The vehicle is a twin-tracked vehicle. It has an automatic transmission with a lever that enables a range of gears to be selected and the forward motion of the vehicle is achieved by use of a foot-operated accelerator pedal. Each of the tracks has a separate braking mechanism operated by a separate tiller. The direction of travel of the vehicle is achieved by pulling back on the tiller on one side, causing that track to slow and the vehicle therefore to pull in that direction. The tillers are designed to have a degree of free play before the brake starts to become effective, and when properly adjusted that free play is between 6 and 8 inches. The appellant in evidence agreed that a driver moves each of the tillers back as he drives along so as to take up the greater part of the free play, so that there will only be a short further movement required before the brake will start to engage. That fact, unfortunately, does not seem to have been known to the expert who was giving evidence on his behalf, who seems to have worked on the basis that as the vehicle proceeded along the free play would not have been taken up and therefore the whole of any free play would need to be gone through before the brakes started to take effect.
10. The two defects alleged by the appellant as having resulted in his accident were, firstly, that there was excessive play in the left-hand tiller and, secondly, that the braking efficiency of the vehicle was impaired by heavily scored and pitted brake drums.
11. It is necessary therefore to look at the evidence which was put before the judge as to these two alleged defects and also the evidence of the consequences of them and the judge's conclusions on those findings.
12. The appellant gave evidence that prior to the journey on which the accident occurred, he had learned on the day when he took over the vehicle that there was excessive play on the tiller and he had reported that fact to a Corporal Haywood, who was his fleet manager. Corporal Haywood had no recollection of any such report. The appellant for his part was unable to remember the extent of the free play but significantly he said it was not of such a degree as to cause him concern.
13. The appellant also called evidence from Corporal Mabbutt, who had been responsible for the AFV before the appellant took over. He said that he had had to move the vehicle a short distance -- something of the order of 100 yards -- and that he had found difficulty with the left-hand lever that was out of adjustment and caused problems for him with the seat upon which he was sitting in the position that it was. Mr Mabbutt is 5 foot 4 inches in height, whereas the appellant is considerably taller. Accordingly the seat position for the two would be significantly different, since Mr Mabbutt would require the seat closer to the accelerator pedal than the appellant and thus the tiller would be more likely to cause problems as it was pulled back with Mr Mabbutt sitting on the seat in that position. Mr Mabbutt too said he had reported the matter on to Corporal Haywood.
14. There was evidence from a Sergeant Dowdle and a Major Savage, who had examined the vehicle after the accident. Neither was able to find evidence that there had been any excessive play. Sergeant Dowdle's evidence was to the effect that the damage suffered in the accident prevented him from reaching any meaningful conclusion. He denied that he himself had taken apart and reconstructed the mechanism. Major Savage had examined it at a later stage and his findings were consistent with there being no fault. The judge, however, concluded in respect of these post-accident examinations that Sergeant Dowdle had probably done some dismantling and reassembling, and that the evidence of these witnesses did not advance the matter.
15. Having considered this evidence, the judge accepted the evidence of Corporal Mabbutt, including that of his mentioning the matter to the appellant on the handover. Accordingly he found that the left-hand lever was out of adjustment.
16. In cross-examination the appellant, who was an experienced driver of such vehicles, accepted two propositions. First, that the excessive free play did not make the vehicle more difficult to drive provided that it did not foul the seat. This was because the driver drove with the free play taken up almost to the point where the brakes would start to be applied and thus there would be no greater degree of movement required to commence braking whether the tiller adjustment was within the accepted tolerance limit or not. The second proposition he accepted was that he would undoubtedly have stopped the vehicle if he had experienced any difficulty on his journey. The movement of the vehicle was a routine one, not one under pressure for operational reasons (such as might occur in the heat of conflict) and there would therefore have been no pressure upon him to continue. The extent of the journey which he had made prior to the accident was more than sufficient to reveal any significant problems, and in this regard the judge had evidence in the form of a video showing the route taken with its downhill nature and with the repeated bends which were a feature of that road.
17. The evidence as to the braking system was, as the judge found, largely dependent upon the inspection reports of Sergeant Dowdle and Major Savage. The vehicle had been fitted with a reconditioned braking unit only 126 miles before the accident. Such a unit would have been provided by way of a sealed unit which contained, amongst other parts, both the drums and the bands, which had been factory reconditioned. The evidence accepted by the judge, from various witnesses, was that the brake bands would have "bedded down" by the time of the accident; that is, that the normal flat surface of the bands would have had sufficient time for their rubber-type constitution to mould into any contours on the drums themselves in the way that the two would work efficiently together. That would have reduced any effect which any pitting or ridging might otherwise have had.
18. As to the pitting and ridging, the only person who gave evidence of having seen such a condition was Sergeant Dowdle. In a statement that he had made as part of the investigation into this accident he had said:

"I conducted a check of the brake drums, there were no visible cracks, however, both drums were scarred and discoloured. This is usual, however, on this occasion it appeared to be more than normal. This could not be attributable to the accident, otherwise the brake bands would be burnt out.

I did note that the left drum was excessive when checked for end float, again this would not be a contributory factor to the accident."

Sergeant Dowdle's evidence was that that which he had seen would not in his judgment (he being an experienced examiner and tester of such vehicles) have led to any particular difficulty from the point of view of the driver. He was cross-examined about that matter and conceded in the course of cross-examination that there might be some reduction in efficiency, but not a lot of reduction. In re-examination he went on to explain that once in fact the band had bedded down, it would in effect lock on to the drum and, as he put it, would then "give you excellent braking and steering".

19. Major Savage had also examined the drum. He did not note any degree of pitting at all. He was cross-examined about that and the apparent conflict between his evidence and that of Sergeant Dowdle was put to him. He said that these were questions which were a matter of degree and impression, and that he certainly, having looked at it, had not noted anything of the kind noted by Sergeant Dowdle, but in any event that was because he had seen nothing which he thought in any way could have contributed to the accident.
20. The other evidence that was available to the judge came from the two experts, one called on each side, but neither of them had had the advantage of seeing the particular brake drum, nor had any photograph been taken which enabled anyone else to form a view for themselves of the extent of that which was described by Sergeant Dowdle. Notwithstanding the evidence of Major Savage, the judge accepted that Sergeant Dowdle was accurate in what he had recorded at the time and that there was the condition that he described.
21. The next issue was clearly what the likely effect was going to be of that condition on the way in which the braking system operated. There the judge had evidence from the two experts, Mr Bristow for the appellant and Mr Nichols called for the Ministry. In a joint statement which they had made prior to the hearing, dated 3 May 2002, they considered not only the braking system but also the steering mechanism and the excess play on the tillers.
22. At paragraph 3 of their joint report they said as to vehicle condition:

"3.1 The reported maladjustment of the steering tillers was an undesirable condition which would have attracted a VOR (Vehicle Off the Road) sentence when examined. Therefore, given that the vehicle was overdue for a service, the vehicle should not have been in use in that VOR condition at the material time.

3.2 The brake drums were both reported to be heavily scored and pitted, which would have reduced the braking efficiency to some extent. It is not clear whether this would have attracted a VOR sentence if examined."

23. Then went on to set out those matters upon which they disagreed:

"1.1 Mr Bristow is of the opinion that the defective brake drums and maladjustment of the steering tillers certainly would not have enhanced the handling of the vehicle. The excessive free play in the steering in particular may have had a bearing upon the Claimant's ability to maintain full and proper directional control of the vehicle at all times, albeit that there was no complete failure of the steering. By way of an associated comment, Mr Bristow considers it appropriate to draw attention to prolonged contact with the crash barrier ....

1.2 Mr Nichols is of the opinion that, as the vehicle had negotiated numerous left and right bends down a steep mountain road over a distance of some 3 kms before the scene of the accident, the identified shortcomings in the brake levers and drums, although undesirable, did not cause or contribute towards this accident. The apparently prolonged contact of the vehicle with the barrier may simply indicate that the Claimant did not or could not steer the vehicle sufficiently. One reason could be that a loose item became jammed behind the left lever, preventing it from operating properly."

That effectively was the evidence that confronted the judge.

24. The judge's conclusions were that on the evidence he had heard the defect in the steering lever had played no significant part in the events that had caused the accident. He accepted particularly the applicant's own evidence in that regard, which was to the effect that these vehicles are different, that one very quickly becomes aware of the different handling characteristics of different vehicles, both as to steering and as to braking, and one quickly makes an adjustment appropriate to the vehicle. Once the question of the significance of the length of free play was understood, it meant, in the judge's findings, that the length over which the lever had to be pulled before it could bite was in fact no greater than it would have been if it had been properly adjusted, and there was no suggestion that, with the seat in the position in which the appellant had it, that was going to cause him any undue difficulty. He further thought that it was significant that the appellant himself had said that if he had experienced difficulties, he would have stopped. Accordingly the judge concluded that although there was that defect, described properly by the experts as being "undesirable", it had not played any part in the accident.
25. So far as the braking system was concerned, there the judge had to consider the evidence. It was significant, no doubt to the judge as to it is to us, that when the defence expert had indicated in the points of disagreement his particular concerns about these matters, he had focused upon the problem with the adjustment of the lever. That, he had suggested, was particularly important and in effect he had played down any likely contribution from the defective brake drum. The judge concluded that on the totality of the evidence that he had heard, and bearing in mind the distance that this vehicle had travelled and the route it had taken, there was nothing that persuaded him on a balance of probabilities that that condition was manifesting itself in any problems for the appellant as he drove down that road.
26. Accordingly, having reached those conclusions, the judge took a step back and looked at the totality of what had occurred and came to the conclusion that since there was no defect that had been established as having played any significant role in the happening of the accident, it must therefore have been the result of an error made by the appellant. It is quite clear that he was at pains to minimise any criticism of the appellant for the happening of this serious accident, and he expressed himself as carefully as he could in a way that would cause the minimum of distress to the appellant. He referred to the case as being a very difficult case. It is always very difficult for a judge to reach a conclusion that through a relatively minor error a person may have caused an accident which has led to the death of a colleague. I can well understand why the judge said what he did. But nevertheless his conclusions were clear.
27. He did look to see whether the circumstances were such that there might be an explanation as to why the appellant might have made an error. He came to the conclusion that this was not the most straightforward part of the road, involving the bend, which would take the Landrover out of his sight, leading into the further bend, and he felt that there was sufficient in those factors that somebody who was not paying as much attention as otherwise he might have done, might make a relatively small mistake which would put this vehicle into difficulties.
28. On behalf of the appellant it is contended that the conclusions that the judge reached were conclusions that he could not properly have reached on the evidence. It is always a difficult task for an appellant to make out such a suggestion in this court. This court does not hear the totality of the evidence and therefore is not dealing with the matter afresh but dealing with the matter purely as a review of whether or not the judge could reach his conclusion. Having gone through the evidence that was put before the judge with Mr Bowerman, on behalf of the appellant, today one has to say that it is very difficult to see any basis upon which this court could conclude that the judge could not reach his conclusion. Mr Bowerman puts it boldly. He says that here one has a situation in which an experienced driver was driving a vehicle to which he was accustomed, and that really the suggestion that he made some error is a suggestion of some totally inexplicable mistake by an experienced driver. He says that in such circumstances, where it is established that there were defects with the braking system the judge really ought to have found that those defects had caused or substantially contributed to the accident unless the evidence was very persuasive to suggest that that was not the case.
29. As a general proposition that may indeed be right, but here there was evidence as to the likely effect of the defects that had been found on this vehicle. The judge further had the cogent evidence from the appellant himself that if he had been experiencing difficulty with this vehicle, he would have stopped. He was entitled to pay regard to that evidence and to conclude that up to the moment of the accident, the appellant himself did not think that there was any condition of that vehicle which represented a danger to him or to anyone else. Neither of the experts, at the end of the day, had reached a conclusion that there was any defect which necessarily played any significant part in the happening of the accident. So far as the tiller adjustment was concerned, by the end of the evidence there really was no evidence other than that the effect of it would not have made any significant difference to the way in which the steering of the vehicle operated. So far as I am concerned in relation to that, not only was the judge entitled to reach the conclusion that that did not offer any explanation for the accident, but the evidence drove him to that as a necessary conclusion.
30. In a sense, Mr Bowerman has accepted that that is the situation and has focused the main thrust of his attack upon the condition in relation to the brake drum. There the judge accepted the evidence of Sergeant Dowdle as a to the condition of the drum. Sergeant Dowdle himself, who had seen it, did not think that what he had seen would have offered any explanation for the accident; Major Savage, who was the only other person who had seen the condition of the drum, whilst not recording the defect which was found by Sergeant Dowdle and accepted by the judge, again had not thought that that played any significant part. The experts had given their evidence. Neither of them had suggested that it was likely to represent any significant problem for the driver, and each had to acknowledge -- and indeed the respondent's expert placed a lot of weight upon the fact -- that the condition was such that, if it was causing problems, there had been a significant period, with a number of bends to be negotiated, during which it would have manifested itself. It seems to me in those circumstances that there was no part of the evidence that would have driven the judge and should have driven the judge to a conclusion that the brake drum must have had a bearing upon the happening of this accident.
31. In those circumstances it seems to me impossible for this court to criticise the conclusions of the judge that the condition of the vehicle was not the explanation for the happening of this accident. If that were so, then necessarily the judge had to go on and consider the only other possibility, which was driver error. Driver error can always take place, even with the most experienced driver driving in circumstances not under pressure. The judge rightly considered whether in his view it was at least a possibility that that might have occurred. He looked at what it was that had confronted the driver and he formed a view on the evidence he had heard that that was a distinct and real possibility as the explanation of the accident.
32. Having reached those two related conclusions, he then had to consider, on a balance of probabilities, whether the appellant had made out his case. He concluded that the balance came down in favour of his not having done so. In my judgment he was entirely justified in doing so on the evidence that he had heard. These were matters for him to decide, and I can see no proper basis upon which this court could now say that he was wrong.
33. For those reasons I would dismiss this appeal.
34. MR JUSTICE LINDSAY: I agree. It cannot be said that the evidence as to the mechanical condition of the AFV is wholly such as to leave no puzzles. There is evidence that the brake drums on both sides were recently reconditioned and recently fitted. There were, outside those brake drums, external contracting bands which were in good condition. They also were new and yet, for all that, there was evidence, as my Lord has indicated, that the drums themselves were scored and pitted. How that could come about in the circumstances I have mentioned was unexplained. But, for all that, the learned judge had before him ample evidence to justify a view that mechanical defects were not responsible for the accident. Accordingly, I agree, as I have indicated.
35. LORD JUSTICE WALLER: I agree with both judgments.

ORDER: Appeal dismissed. No order for costs.