England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Hegarty QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th May 2004

Lord Justice Clarke :

Introduction

1. The claimant (now the respondent) Clare Girbash was born on 5 May 1963. On 30 April 1998 she was driving a Ford Transit van along the A303 at Berwick Down in Wiltshire when she lost control of it with the result that it collided with a Volvo car coming in the opposite direction. As a result of the accident she suffered serious head injuries and her boyfriend Justin McGregor, who was a passenger in the van, was killed. The claimant was so seriously injured that she was unable to give evidence or to take any part in the trial.
2. The claimant's case at the trial was that the collision was caused by the defective condition of the rear offside brakes of the van. She claimed against the defendant (now the appellant), which trades as Manchester Auto Bodies but which (like the judge) I shall call 'Main Line'.
3. This is a somewhat unusual case. The trial was limited to the determination of the issue of liability in which the main issues were::

i) whether the claimant brought the van to Main Line's garage for inspection and repair not long before the accident and if so:

ii) whether the condition of the offside brakes caused or materially contributed to the accident.

4. Those issues were tried by His Honour Judge Hegarty QC sitting as a Deputy High Court Judge between 30 June and 3 July 2003. On 14 July he answered both questions in favour of the claimant. He refused permission to appeal but permission was subsequently granted by Kay LJ.
5. The issues in this appeal are the same as before the judge. It is, as I understand it, common ground that if both the above questions are answered yes, Main Line is liable to the claimant since it is not now in dispute that if the claimant brought the van into Main Line, Main Line was in breach of contract because it failed to identify and repair the defective condition of the rear offside brake. I shall consider the two aspects of the appeal separately.

(1) Did the claimant bring the van in for servicing on 28 April 1998?

6. There is a considerable amount of common ground between the parties. Main Line accepts that the judge conducted the trial fairly and demonstrated a thorough and careful grasp of all the factual and legal issues. Its case, however, is that he should not have held on the balance of probabilities that the claimant brought the van in for servicing on 28 April or at all.
7. There was I think at one time a suggestion that the judge did not direct himself properly as regards the burden of proof. However Mr Norris did not so submit in the course of his oral submissions. In any event it is to my mind clear that the judge had well in mind that in order for the claimant to succeed on this issue she had to show on the balance of probabilities that she took the van to Main Line for a full service on 28 April 1998.
8. Since there was no direct evidence that she had done so, that exercise involved the judge considering many differing aspects of the evidence and, having considered each piece of evidence individually and the evidence as a whole, deciding whether the burden of proof on the claimant had been discharged. This involved a detailed analysis of both the oral and documentary evidence and was an analysis which the trial judge was in a much better position than we are in this court to carry out. This is I think particularly so in this case, where the claimant's case depended to a significant extent upon the evidence of the claimant's mother Mrs Leicester. We should in my opinion think long and hard before concluding that the judge's assessment of all the evidence was wrong.
9. Mr Norris submits that the judge must have decided that the claimant should succeed and then set about fitting the evidence to that conclusion. For my part I would not accept that submission. It seems to me that the judge did his best to fit the various strands of the evidence together in this unusual case in order to decide whether or not the claimant had discharged the burden of proof. I turn to the facts.
10. The following findings of fact made by the judge are not disputed by Main Line.

i) The claimant bought the van a few days before the accident, probably on Wednesday 22 April 1998. It was a Ford Transit 100L van, registration no C760WFA with a recorded mileage of about 99,000. The van had been advertised for sale for £475. The claimant bought it for cash, having drawn £500 out of her building society account for that purpose on 22 April. On the same day she signed the notification of change of ownership and sent it to the Driver and Vehicle Licensing Centre ("DVLC"). The van had an MOT certificate issued on 1 August 1997 when the mileage was about 92,000. On 23 April 1998 the claimant paid £240 to insure the van, paying a further £205 as the balance of the premium on 24 April. She withdrew £200 and £350 from her building society account in cash on 23 and 24 April respectively.

ii) The claimant booked the van in for a service with Main Line during a telephone conversation on the morning of 24 April. The booking was for 8.30 am on Tuesday 28 April. The booking was for a full service, that is a 12,000 mile or annual service which, so far as the brakes were concerned, would or should involve taking the wheels off and getting down to the brake cylinders.

iii) When the claimant bought the van on 22 April the brakes were defective. In particular the rear offside brake was leaking brake fluid and the inside of the brake drum was coated with thick black grease which was a combination of brake fluid and brake shoe dust. As a result the rear offside brake was inoperative. That defect would have been discovered if a full service had been properly carried out.

iv) Some time on 28 April the claimant told her mother that the service had been carried out and that everything was OK (see further below). The key issue in this part of the case is whether that was a lie or not.

v) The claimant and Mr McGregor left Manchester some time on 29 April and the accident occurred on the afternoon of 30 April.

Discussion

11. As already stated, the question is whether the judge was entitled to hold on the balance of probabilities that the claimant took the van to Main Line for a service. The judge's reasoning contains a number of different strands. He accepted that there was no direct evidence which would enable him to answer the question and that all depended upon what inferences it was appropriate to draw from the evidence before him. Main Line challenges many of the inferences drawn by the judge and submits first that its case was inherently more probable than that accepted by him, but in any event that there was no sound basis for accepting the claimant's case on the balance of probabilities.
12. I turn to the judgment and to the criticisms of it. The judge began by considering the claimant's history and condition in some detail over more than two pages of his judgment. It is not necessary to repeat that analysis here save perhaps to say this. The judge concluded that the period from late 1996 seems to have been an unsettled phase of the claimant's life, although he did not accept that she had dropped out as was suggested to her mother on behalf of Main Line. However, whether she had dropped out or not, he accepted that her relationship with her boyfriend had increased her emotional problems which, the judge said, contributed to the anxiety and depression from which she had been suffering for some time and for which she was receiving treatment.
13. The evidence shows that she graduated in 1989 with a first class degree in sociology from Manchester Polytechnic but that thereafter she drifted somewhat, returning to Manchester in the autumn of 1995. As the judge found, she appears to have had difficulty in finding regular employment. She then spent some time in Devon, where she met Mr McGregor, and they returned to Manchester together in 1996. Again the claimant had difficulty in finding work and there is evidence that Mr McGregor had a malign influence on her, as the judge recognised. The evidence shows that she was suffering from anxiety and stress from time to time. For example (like the judge) we have seen medical records in late 1997 and early 1998 which describe her as going through an emotional crisis, as having sleeping difficulties and as suffering from chronic depression. Her mother was very concerned about her at that time and we have seen a letter from her to the claimant's doctor enclosing a letter from the claimant. There is also evidence that she regularly telephoned the Samaritans (and perhaps other helplines) in the middle of the night, some of those calls being very lengthy.
14. Mr Norris relies upon that evidence in support of his submission that it is not at all surprising that she may not have taken the van to be serviced notwithstanding the fact that she had booked it in. It is undoubtedly important evidence to have in mind, but the judge plainly had it well in mind in reaching the conclusions which he did. Early in his judgment, having set out something of the history, he said this in paragraph 9:

"Her relationship with Mr McGregor seems to have been a difficult one. Neither her mother nor an old friend, Miss Annette Kleingeist, regarded him as a good influence upon her. Quite the contrary. It appears that he would walk in and out of her life as it suited him, despite her desire for a stable relationship. But although the relationship appears to have been volatile and at times violent, she seems to have become emotionally dependent on him. She felt insecure and vulnerable whenever he left. It is likely that these emotional problems contributed to the anxiety and depression from which she had been suffering and for which she was receiving treatment. Indeed, she seems to have been a rather troubled individual over the months preceding the accident, at times displaying abusive and aggressive behaviour towards others. She complained of difficulties in sleeping and made numerous calls to the Samaritans. These problems appear to have affected her relationship with her mother, who at least for a time, was reluctant to take telephone calls from her. But overall I have no reason to doubt that her relationship with her mother was a close, loving and supportive one. Furthermore, her troubles do not seem unduly to have affected her ability to make plans and implement practical arrangements to carry them into effect."

15. In my opinion that was a fair and balanced analysis of the situation. The claimant undoubtedly had serious problems but she was also very organised in some respects. In particular she was well organised in relation to the purchase of the van and the arrangements for the trip on which she was engaged when the accident occurred. Thus she was a sufficiently organised person to buy the van, to notify the DVLC of the purchase, to insure it and to arrange for it to have a full service. Moreover, she made some entries in her diary which was available to the court. The judge correctly concluded that her diary shows that she addressed a number of further matters in an orderly fashion including, for example, making poste restante arrangements for her mail and closing her electricity and telephone accounts.
16. It was essentially a matter for the trial judge to balance the problems which the claimant had against the methodical way in which she prepared for her trip and, for my part, I can see no basis for criticising either his approach or his conclusions in that regard.
17. Mr Norris relies upon what he says is a difference between what the claimant told her friend Miss Kleingeist and what she told her mother as to whose idea the trip was. There is no doubt that the claimant decided to take a break from her life in Manchester and to spend some time travelling. According to Miss Kleingeist she originally planned to travel round the south coast for a time on her own. Part of the plan was to visit Miss Kleingeist in Brighton. Some time after the claimant told her of her plan, she told her that Mr McGregor had returned. This worried Miss Kleingeist because she thought that the claimant had been doing well in his absence and she thought that his return might affect the situation. She said that shortly before the claimant left she told her that Mr McGregor would be coming too.
18. Mr Norris points to what he says is a difference between that evidence and the evidence of Mrs Leicester. Mrs Leicester said in her statement that the claimant had been planning to go and stay with Miss Kleingeist for a few days when Mr McGregor reappeared and suggested that they travel round the West Country for a few weeks. Mr Norris submits that the difference suggests that the claimant told her friend and her mother different things and thus must have told one or the other a lie.
19. There seems to me to be very little in this point. In both accounts the claimant's plan was initially to travel on her own. Miss Kleingeist thought the plan was for her to travel round the south coast on her own, whereas Mrs Leicester thought it was simply to visit Miss Kleingeist. There is very little between those accounts. Moreover in both accounts it was only after the initial plan that Mr McGregor returned and it was subsequently agreed that he would go too. It is far from clear to me that it was not Mr McGregor who suggested a tour round the West country. I do not think that the differences between these two accounts throws any light on whether the claimant later told her mother a lie when she said that she had taken the van to Main Line and that the service had been carried out. I do not think that the judge can fairly be criticised for not dealing expressly with this point.
20. I turn to the key part of the case, namely the arrangements with Main Line. On Thursday 28 April the claimant's diary contains an entry which states: "8.30 service, Sheffield St £60." The judge was able to conclude that the service was to be carried out by Main Line from the fact that Main Line itself kept a work diary which contained an entry for 28 April which read: "Full service of Transit. Clare Girbash 2561842." It was on the basis of this evidence that the judge was able to conclude that the claimant had indeed booked the van in for a full service for 8.30 on 28 April.
21. The judge said that the making of the booking might itself justify the inference on the balance of probabilities that the vehicle was in fact taken in for the service. So indeed it might but whether such an inference should be drawn depends, as the judge recognised, upon all the circumstances of the case. In my judgment the judge considered those circumstances dispassionately and with care.
22. An important witness at the trial was the claimant's mother Mrs Leicester. Some of her evidence provided significant support for the claimant's case. The judge summarised her evidence as follows. The claimant told her on the telephone that she was buying a van which she had seen in the paper at a price of £500. Mrs Leicester advised caution as she knew nothing about the vehicle. The claimant said she would look into it. She subsequently telephoned back to say that she had done so and had ascertained that the van had an MOT certificate valid until August 1998 and so she had bought it and paid cash. Mrs Leicester told the claimant that an MOT certificate did not necessarily mean anything and that she must get the van checked before setting off on her travels – especially as to its steering, brakes and tyres.
23. The judge said that in cross-examination she elaborated somewhat as follows:

"What she said she had emphasised to her daughter was the need to check the van was roadworthy, particularly as to its steering, brakes and tyres. There was also some discussion as to whether this meant that the vehicle should be serviced. But if I correctly understood her evidence on the point, Mrs Leicester simply repeated that she should get the vehicle checked."

I will return to this evidence below.

24. A day or two later the claimant telephoned Mrs Leicester again and told her that she had arranged for the van to be checked at a garage. Mrs Leicester again emphasised to her the need to check the brakes and steering and offered to pay for any work which was required to make it safe. The next telephone conversation was on 28 April when the claimant again rang her and told her that she had the van back from the garage and that everything was all right. Mrs Leicester specifically asked whether the brakes and steering had been checked and the claimant reported that she had been told that everything was OK. Finally, according to Mrs Leicester, the claimant rang her on the evening of 29 April, apparently from a call box, to tell her that they were on their way.
25. The judge considered that evidence in the context of the record of telephone calls made by the claimant over the period in question. He said this in paragraphs 24 to 26:

"24. This account ties in fairly well, but by no means perfectly, with the record of the telephone calls made by the claimant over the period in question. It is not easy to identify the first of the calls which Mrs Leicester said she received, when her daughter was apparently intending to buy the van, but had not yet done so. The only call to her mother in the days prior to the purchase was on 18 April 1998. It is possible of course that the call Mrs Leicester referred to was made from a public telephone, as apparently sometimes happened. But there was certainly a telephone call on Thursday 23 April 1998, the day after the van was purchased, and another at 10.10am on Friday 24 April 1998. The telephone call to Main Line followed immediately after the second of these two calls to her mother. The fact that there were two telephone calls between the purchase of the van and the call to Main Line does not accord with Mrs Leicester's evidence that there was only one. It might possibly be inferred, therefore, that the telephone call on the morning of Friday 24 April 1998 was the one in which Miss Girbash told her mother that she had already booked the van into the garage, though she had not in fact done so. This, it might be said, tended to show that she was willing to bend the truth in order to tell her mother what she wished to hear. But Mrs Leicester would not accept the suggestion that her daughter might have deceived her in these conversations.

For my part, I think that the sequence of two telephone calls on the morning of Friday 24 April 1998 – one to her mother, followed immediately by one to the defendant – is a particularly striking occurrence which strongly suggests that the first telephone call led to the second. That is entirely consistent with the proposition that Mrs Leicester gave her daughter firm advice about the van which was immediately followed by her daughter. If she was willing to lead her mother on about such matters, I cannot see any obvious reason why she should have gone to the trouble of booking the vehicle in after she had already spoken to her. So, whatever was discussed in the course of the telephone call on Thursday 23 April 1998, the fact that there seems to have been an additional conversation which does not readily fit into Mrs Leicester's account does not in itself lead me to doubt the overall veracity and reliability of that account or to infer that her daughter was prone to telling her simply what she wished to hear.

25. The next recorded telephone call fits in very well with Mrs Leicester's evidence. She said that her daughter telephoned her a day or so later to tell her that she had booked the van in. In fact, the records show that the next telephone call to her mother was a lengthy one on the evening of Monday 27 April 1998. According to Mrs Leicester, she spoke to her again on Tuesday 28 April 1998 to tell her that she had got the vehicle back from the garage. Once again, that ties in well with the records, which show two telephone calls on that day, one in the late afternoon and the other just after 8pm. According to Mrs Leicester, she specifically asked whether they had checked the brakes and was told that they had and that everything was "OK". While she accepted that she was "fussing", she did not accept that her daughter might have been trying to placate her or reassure her, when in truth she had not taken the van to a garage at all. Nor did she accept that her daughter might not have told her if the garage had reported any problem with the van. At paragraph 37 of her witness statement she said this

'I believe that had the garage told Clare that anything was wrong with the van I would have known about it. In the first instance I had agreed to pay for anything that needed doing and Clare would have known that I was happy to do this. There would have been no reason therefore for her not to tell me. Secondly, as I said before, Clare was someone who liked everything to be very organised and well-planned. She had booked in the van to be checked over before they left and I know that had they said that anything needed doing she would have been worried and anxious about getting everything organised before they had to leave. I believe she would have told me had this been the case, and even if she had not told me I would most certainly have known as this is exactly the sort of thing that Clare would have got worried and upset about trying to fit something in. Clare would not simply have said to me that the van was all right if she knew that things needed doing to it. If she had been alerted to them, being someone who is safety conscious, I am certain she would not have driven the van with any defects.'

According to Mrs Leicester, she told her once again to be careful and was assured that her daughter had allowed plenty of time to get to Brighton and was intending to avoid motorways. The last Mrs Leicester heard from her daughter prior to the accident was on the evening of Wednesday 29 April 1998, when she rang and told her that they were on their way.

26. I accept the substance of Mrs Leicester's evidence on these matters. I am satisfied that she raised her concerns about the van with her daughter and advised her to have it checked or serviced with particular emphasis on the brakes and steering. I am satisfied that her daughter then booked it in for a service with Main Line for 8.30am on Tuesday 28 April 1998 and I am satisfied that later on the same day she told her mother that she had got it back from the garage and that the brakes and steering had been checked and were satisfactory."

I have set that part of the judgment out in detail because I regard it as of considerable importance.

26. Mrs Leicester was initially cross-examined by Mr Norris on behalf of Main Line on the basis that her evidence that the claimant had told her that the service had been carried out was untrue but, after those advising the claimant had produced a letter written by Mrs Leicester after the inquest which was substantially to the same effect, it was accepted on behalf of Main Line that the claimant told her mother both that she had booked the van into a garage to be checked and in effect that the work had been done. That to my mind is an important concession. On its face it is strong evidence that the van was left with Main Line as arranged and that someone from Main Line told the claimant that the van was OK.
27. Main Line says however that it was a lie which the claimant told to reassure her mother. As I understand it, Mr Norris' submissions on its behalf are these. First he submits that if the claimant told her mother on 24 April that she had booked the van in it was a lie because her telephone records show that she telephoned the garage immediately after she had finished the telephone call with her mother. Second, he submits that, given that that was a lie it was perhaps natural for her to tell a further lie later when she told her mother that the van had been checked by the garage. Third, he submits that it was in any event a lie, given the other contemporary evidence. I will consider those submissions in turn.
28. Both before the judge and before us there has been considerable debate as to the inferences which can be drawn from the claimant's telephone records. It seems clear that most, if not all, of her calls were made from her flat because she did not have a mobile phone, although she did sometimes use a public phone box.
29. The first call to her mother shown on the claimant's records was on 18 April, although it may be doubted whether that was the first call referred to above because it only lasted 22 seconds. The next call was at 1134 on 23 April and lasted 13 minutes 47 seconds. Mr Norris says I think that that was probably the call in which Mrs Leicester says that the claimant told her that she had bought the van and that it had an MOT certificate. The DVLA documents show that the van was bought on the day before, 22 April. It is, however, the next call which has given rise to particular debate.
30. As stated above Mrs Leicester put the next call "a day or so later", which Mr Norris says fits in with the next call shown in the records, which took place at 1010 on 24 April and lasted 8 minutes 55 seconds and is thus a day or so after the call on 23 April. Mr Norris submits that it must be during that call that the claimant told her mother that she had booked the van in to a garage to be checked. He further submits that that was a lie because the records show that the first call to Main Line was immediately afterwards at 1021. The call lasted 2 minutes 7 seconds.
31. The judge did not accept that submission and Mr Norris submits that he should have done so. As appears from the second part of paragraph 24 of the judgment quoted above, the judge thought it more likely than not that the claimant called Main Line immediately after her mother had told her in strong terms that she should book it into a garage to be checked. He took the view that it was striking that the claimant telephoned Main Line immediately after ringing her mother on the morning of 24 April. There can be no doubt that the claimant booked the van in at 8.30 am on 28 April during the call to Main Line on 24 April. As I read his judgment, the judge thought that it did not make sense to hold that the claimant untruthfully told her mother that she had done something which she had not yet done. Why not tell her the truth, namely that she would immediately book it in?
32. The judge recognised that his conclusion meant that there was an additional call on 23 April which it was not easy to fit into Mrs Leicester's account. By that he meant, as I understand it, that there were two conversations, not one, in which Mrs Leicester pressed her daughter to book the car in for a service. Those conversations were on 23 April at 1134 and on 24 April at 1010. The second was immediately followed by the claimant telephoning Main Line at 1021 to book the van in.
33. The judge thought that the next call shown on the record fitted in well with Mrs Leicester's evidence. It was at 2040 on Monday 27 April and lasted 51 minutes 40 seconds and fitted with the evidence that the claimant told her mother that she had booked the van in. To my mind it does fit in well with her evidence subject to the point made by Mr Norris that that call was not "a day or so later", as Mrs Leicester said, but over three days later, a submission which has considerable force.
34. Mr Norris also correctly observes that in her evidence in chief Mrs Leicester said that during the conversation in which she told her that it was booked in she said that it was going in on Tuesday morning, which he submits she would not have said if the conversation took place on Monday evening. That submission also has some force, although in cross-examination she said that she did not remember the claimant saying when it was to be done.
35. In short, Mr Norris submits that the judge's conclusions do not fit in well with Mrs Leicester's evidence. There is undoubted force in Mr Norris' submissions on this point and, if attention is focused only on the telephone records, they would be difficult to gainsay. On the other hand Mrs Leicester was giving evidence a long time after the events and may well have mistaken the precisely what was said on each call or the time between them. To be set against the inferences to be drawn from the time of the calls is the improbability (as the judge saw it) of the claimant telling a lie to her mother. Why not tell her that she had Main Line's number (as on any view she must have done) and that she would ring them immediately? There seems to me to be a good deal of force in this point.
36. Further the judge was impressed with Mrs Leicester as a witness. He said that she gave her evidence in a clear, articulate, if somewhat brittle fashion, which no doubt reflected the emotional strain she must have suffered as a result of these events. The judge recognised that to some degree she displayed a tendency to try to explain everything in terms favourable to her daughter but also observed that ultimately there was no real challenge to her essential honesty and credibility as a witness. He said that that accorded with his own assessment and that her account of what was said was broadly reliable and should be accepted. He also took account of the fact that she refused to accept the suggestion that her daughter might have deceived her. Mr Norris submits that the judge was wrong to take that into account but I do not agree. I can see no reason why the judge should not consider a mother's view of the veracity of her daughter in the context of particular conversations in the light of her knowledge of her. It was a matter for the judge whether or not to accept her view as correct.
37. I have found this a difficult part of the case and I am not at all sure that I would have reached the same conclusion but I did not see or hear Mrs Leicester give evidence and have not had the same opportunity of considering her reliability as the judge has. In these circumstances I have reached the conclusion that we would not be justified in reversing the finding of the judge on this point. However, even if I took a different view from the judge and held that the claimant did tell her mother a lie on the morning of 24 April, it was to my mind a very white lie and is of little, if any, assistance in reaching a conclusion on the key question, namely whether the claimant told her a lie when she told her mother on 28 April that the van had been serviced. It seems to me that for a daughter to tell her mother that she has arranged for a vehicle to be serviced when she has not in fact done so but proposes to do so when she puts the phone down is very different from telling her that the vehicle has in fact been serviced when she knows that it has not.
38. For that reason I would not accept Mr Norris' second submission identified above, namely that having told one lie it was perhaps natural for the claimant to tell the further lie that she had taken the van for servicing and been told that all was well. In their reply written submissions on behalf of Main Line Mr Norris and Mr Todd say that the question whether the claimant lied when she said that she had arranged for the van to be service is such an important point because if she lied about that she is very likely to have lied again. For my part I do not agree.
39. I turn to the key question, namely whether the claimant told her mother a lie when she said that the van had been serviced. The starting point seems to me to be that the claimant in fact booked the van in for a full service. The ordinary inference from that fact would I think be that it is more probable than not that she took the van along to the garage, especially in circumstances where her mother had offered to pay for any work done on it. The judge considered the relevant circumstances and we have heard detailed submissions in this regard.
40. The judge considered the events of 28 April in some detail. It is common ground that at some stage on that day the claimant visited her doctor. As the judge correctly observed, apart from the rather ambiguous entry in the claimant's diary which is said to relate to the change in time of her doctor's appointment the only relevant evidence is to be found in the telephone records.
41. They show that the claimant was awake during the night of 27/28 April. She made two very short local calls just before 3.30 am followed by a call to the Samaritans lasting a little over 12 minutes. It is I think important to put the call to the Samaritans in context. The records show that the claimant frequently made lengthy calls to the Samaritans during the night, as for example on 25, 26 and 27 April. It is plain that she had problems sleeping. There was thus nothing unusual about her call at 3.30 am on 28 April. Despite the problems evidenced by those calls, as the judge held, she was able to make methodical arrangements for her proposed trip. Moreover, although it was suggested that the claimant might have been upset by the reappearance of Mr McGregor, it is difficult to see that that can explain any of the claimant's actions on 28 April, given that many of the arrangements she made were made after his reappearance on the scene.
42. There were then no further calls on 28 April after the one at 3.30 am until 11.27 am when she made a short international call. Then at 11.37 am she telephoned Main Line. The call lasted 2 minutes 37 seconds. There was then a substantial interval until about 4.30 pm when she made four calls to various numbers in Liverpool, followed at 4.45 pm by a long telephone call to her mother lasting a little over 11 minutes. At 6.12 pm she made a brief local call and at 8.07 pm she made a final call to her mother lasting 3 minutes 42 seconds.
43. Mr Norris submitted to the judge and submits to us that that picture is more consistent with the conclusion that the claimant did not take the van in to be serviced than that she did or in any event that it is at least equally likely that she did not. It shows (he says) that the claimant had a troubled night and may well have overslept and that the call to Main Line may well have been to apologise for missing the 8.30 am booking and/or perhaps to try to obtain another appointment. The judge accepted that that was possible but concluded that the telephone records were more obviously consistent with the claimant's and he gave these reasons:

"28. It was submitted on behalf of Main Line that this pattern is entirely consistent with its case that she never brought the van in for its service. It is suggested that she had a disturbed and troubled night and may well have overslept. The telephone call to Main Line, therefore, may well have been to apologise or to try to obtain another appointment. Those are obviously possible interpretations. But in my judgment the telephone records are much more obviously consistent with the case advanced on Miss Girbash's behalf. Firstly, there were no telephone calls at times when she would have been absent from her flat if she had taken the vehicle in for its service at 8.30am and collected it some time in the afternoon. Secondly, the call to Main Line itself was made at almost precisely the time that it would have been made if she had been ringing to find out if the vehicle was ready and whether any more work was required. Mr Ridley said in evidence that a full service of the vehicle would take about three hours, and that a customer such as Miss Girbash would have been told of this. Furthermore, it seems to me to be intrinsically a little unlikely that she would have telephoned merely to apologise for missing the appointment. Even if she did, it seems unlikely that such a call would have taken over two-and-a-half minutes, even taking into account the possibility that she might have been placed on hold for a short time. It is possible that she might have enquired about the possibility of arranging another appointment, but this was something that was not investigated in evidence. I cannot form any view as to what the outcome of such an enquiry might have been. On the other hand, there is evidence that she had been awake in the night and had been sufficiently troubled to ring the Samaritans. In fact, however, this does not seem to have been a particularly uncommon feature of her life at this time. She suffered from insomnia and had made a number of telephone calls to the Samaritans over the preceding week or two.

29. It was also suggested that she may have been late for her re-arranged doctor's appointment. This is based on the proposition that her diary indicates that this had been re-arranged for 11.30am. If so, her call to Main Line at 11.37am would have been after she was due at her doctor's. Accordingly, it was suggested that she may well have overslept, missing not only her appointment at the garage but also that with her doctor. The absence of any recorded telephone calls prior to 11.27am would, it is said, also fit into this scenario. In fact, as I have already pointed out, the diary entry is not entirely clear, though on balance I would interpret it in the way contended for on behalf of Main Line. Therefore it looks as though she may have been slightly late for her doctor's appointment. But it involves a substantial inferential leap to conclude that this must have been because she had overslept. Indeed, if in fact she was late with her appointment with the doctor, it would have been even more surprising if she had nonetheless taken the time to ring the garage to apologise for her failure to take the van in for a service.

30. In truth, it seems to me that the picture painted on behalf of Main Line represents no more than what may possibly have occurred. Another possibility is that she may have been a little late in getting back to her flat after having taken the van into Central Manchester. But overall it seems to me that the limited evidence of Miss Girbash's activities on 28 April 1998 fits somewhat better with the case advanced on her behalf rather than with that advanced on behalf of Main Line."

Mr Ridley was in effect the owner of Main Line and was the only witness from Main Line called on its behalf.

44. Mr Norris submits that those reasons are not sound or, at least, do not justify the conclusion that it is more probable than not that the claimant in fact took the van to be serviced. He repeats in this court the submissions he made to the judge. In short he submits that it is at least as likely as not that the claimant overslept, failed to take the van in at 8.30, rang Main Line at 11.37 to apologise, did not rearrange the appointment and later untruthfully told her mother that she had had the car serviced and that all was OK. He submits that it was natural for the claimant to tell her mother a fib in order to reassure her and to stop her fussing.
45. The judge correctly accepted that that was a possibility but concluded that it was more probable than not that the claimant did what she told her mother she had done. To my mind the reasons given by the judge are convincing and are in any event conclusions with which this court should not interfere. As already stated more than once, in spite of her problems the claimant made a number of methodical arrangements for her trip, especially in relation to the van. She arranged for the van to be taken to Main Line at 8.30 on 28 April. Subject to a consideration of the evidence given on behalf of Main Line it seems to me to be much more likely than not that she kept the appointment than that she did not, especially in circumstances in which Mrs Leicester had said that she would pay. Why otherwise make the appointment? Moreover that seems to me to be so whether she arranged the appointment before she told her mother that she had done so or immediately afterwards.
46. She had arranged to see the doctor on 27 April. She telephoned the doctor or his surgery three times on 27 April and changed that appointment to 11.30 am on 28 April. It is common ground that she went to see the doctor some time on 28 April, although we do not know when. She thus went through with her appointment with the doctor, from whom she wanted and obtained a certificate. I can see no reason why she should not have done the same in relation to the van.
47. It is suggested that she may have overslept, which (like the judge) I would accept is possible, but for my part I agree with him that the absence of telephone calls in the morning of 28 April is consistent with the claimant being away from her flat and taking the van to the garage as arranged. Moreover the call at 11.37 is consistent with the claimant ringing the garage to see if the van was ready in circumstances in which, according to the evidence of Mr Ridley, the service would be likely to take about three hours.
48. There is a further point. One of the reasons given by the judge was based on Mrs Leicester's reaction to the suggestion that her daughter was lying to her. The judge said in paragraph 39:

"Mrs Leicester was likely to know best whether her daughter was simply telling her what she wanted her to hear and she would have none of it."

It is clear that the judge accepted the evidence of Mrs Leicester in this regard. Mr Norris submits that he was not entitled to do so. However, as already indicated in a slightly different context, I do not agree. She was indeed in the best position to know and, provided that the judge had regard to the fact the she would be likely to support her daughter's case, as he did, I can see no reason why the judge should not give weight to this aspect of Mrs Leicester's evidence.

49. The judge of course recognised that he must take account of the evidence given by both sides. He accordingly considered the oral evidence given by Mr Ridley with care. His evidence was important because it is clear that, if the van was taken in for servicing very little, if any, work was done on it and no work can have been done on the brakes. Also WPC Holland found considerable corrosion. It is submitted that Main Line must have acted dishonestly if they returned the van to the claimant pretending that work had been done when it had not. There is undoubtedly some force in this point, although it appears to me that it is to overstate the case to say that Main Line itself must have acted dishonestly. If any work was done it was done very poorly indeed and what seems to me to be likely to have happened if the claimant's case is accepted is that the claimant was simply told that all was OK when she collected the van and that that was what she told her mother. It was at one time suggested that she had told her mother that the brakes and steering were OK but it seems to me to be consistent with Mrs Leicester's evidence to hold that in response to a question about the steering and the brakes she simply said that everything was OK.
50. In any event, as in the case of Mrs Leicester, the judge had the advantage of seeing Mr Ridley and hearing him give evidence. Mr Norris submits that the judge appears not to have liked Mr Ridley. For my part, I do not think that that is fair. As I see it, the judge fairly considered Mr Ridley's evidence and concluded that it was not entirely satisfactory.
51. Mr Norris naturally relies upon the fact that the records kept by Main Line do not show any work having been carried out on the van. Thus there is no relevant invoice and nothing in the work book to suggest that the van was serviced. That is undoubtedly significant evidence but the problem with it is that Mr Ridley said that from time to time Main Line did work for cash in respect of which there would be no invoice and, as I understand it, no entry in the work book, which contained only work done in respect of which an invoice was issued. Mr Crowley submitted to the judge that it was more probable than not that this service was done for cash and was not included in Main Line's records for that reason.
52. The judge considered that submission. He also considered some points which Mr Crowley had made in relation to particular documents, but as I read the judgment, the judge did not draw any inference adverse to Main Line in that regard. However, he did hold that Mr Ridley minimised the number of jobs which Main Line did for cash. He said this in paragraph 35:

"Mr Ridley accepted that on occasions his company did "cash jobs". Those are jobs that are paid for in cash and do not go through the books. In purely evidential terms it is to his credit that he accepted that he sometimes did work on this basis. But the admission clearly undermines the strength of Main Line's case. Mr Ridley sought to minimise the extent to which this occurred. He stated that he would take cash in this way only from someone whom he knew well and would do so only occasionally. In this particular case, therefore, he asserted that he would not have done a "cash job" as he did not know her. But in all other respects if Miss Girbash had brought her van in for a service, it would have been just the sort of job which could have been dealt with in this way. It was a fairly small job. She was not registered for Value Added Tax and she almost certainly would have wanted to pay in cash."

53. A little later, in paragraph 38 the judge said that he thought that Mr Ridley was rather inclined to play down the extent to which he was willing to take on "cash jobs" and that it seemed to him that Mr Ridley was (as he put it) somewhat over-zealous in his attempts to show that the claimant did not bring the van in for a service. The judge gave one or two examples. Mr Norris submits that the judge was not entitled to conclude that Mr Ridley minimised the number of cash jobs that Main Line did. For my part, I would not accept that submission. It seems to me that, having heard the witness, he was entitled to reach that conclusion. After all, it is hardly likely that a firm which takes cash jobs and does not put them through the books would want to exaggerate them.
54. In my opinion the judge did his utmost to compare and balance the evidence given on both sides. I should refer to one last point. In paragraph 40 the judge adverted to the submission that it was most unlikely that if the van was serviced Main Line would have been guilty of such a gross failure to carry out the work, which the judge correctly held was evidenced by the condition of the van found by WPC Hollands. He added in paragraph 40:

"That is a conclusion that one would reach only with reluctance. But the fact of the matter is that I simply do not know what occurred or may have occurred on that day. I have not heard from Mr Stimpson who would have carried out the work. He has not been cross-examined and I have not been able to form a judgment as to his competence and reliability. I do not know, for example, what the pressure of work was on that day. Nor do I know whether there might have been any misunderstanding as to the nature of the job or whether he might have considered it sufficient to check the brakes through the inspection holes without removing the wheels or drums. A cursory inspection in this way might well have shown that the brake linings, for example, were unduly worn, but might not have revealed the leakage of fluid.. Be that as it may I have come to the conclusion on the balance of probabilities that Miss Girbash did take her van in to Main Line for a full service on 28 May 1998."

55. Mr Norris submits that the judge was not justified in drawing any inference adverse to Main Line from the fact that Mr Stimpson did not give evidence, especially given the passage of time since the accident and the fact that Mr Ridley said that he had asked those at Main Line including Mr Stimpson and that no-one had any recollection of the van. Mr Norris submits that in these circumstances it is inconceivable that Mr Stimpson would have had any relevant recollection. I entirely see the force of that submission but the judge did not hold that he would. His point was that without seeing Mr Stimpson he was not in a position to evaluate the submission that Main Line would not have done such an appalling job.
56. For my part I see no reason to criticise the judge's approach to this point. Poor or very poor servicing and workmanship is regrettably far from uncommon and the evidence of Mr Stimpson, who would have done the work (if any was done), would be likely to have assisted the judge to assess the probabilities in this case. He could have been called by Main Line (for whom he still worked) but was not. It was suggested that he could have been called on behalf of the claimant, but as I understand it no-one on the claimant's side knew about him before the trial because he was not mentioned by name in Mr Ridley's statement.
57. In conclusion, I do not think that the judge's approach can be faulted. He did his best to assess all the evidence in the light of the oral evidence of Mrs Leicester and Mr Ridley, both of whom were important witnesses. We have seen neither of them. In my opinion the judge was entitled to reach the conclusion which he did on the balance of probabilities. It is a conclusion with which I do not think this court should interfere.

Postscript

58. Since writing the above I have seen a copy of the draft judgment of Mance LJ which sets out his reasons for reaching a different conclusion on the first question, namely that the judge should have held that the claimant had not discharged the burden of proving on the balance of probabilities that she took the van in to be serviced by Main Line. I have reconsidered my conclusions and reasoning in the light of his analysis. I see the force of that analysis but I nevertheless adhere to my view that this court would not be justified in reversing the conclusion of the trial judge, given that he was in a better position than we are to assess the evidence, including in particular the oral evidence of Mrs Leicester and Mr Ridley.
59. I will not repeat my own reasoning set out above but add one or two short observations in the light of Mance LJ's analysis. As to the correct approach of a trial judge, I recognise that there have been cases in which appellate courts have reversed decisions of trial judges in favour of claimants on the ground that the judge should have held that they have not proved their case. However, they will be few and far between and here I see no reason to think that the judge was not fully aware that it was for the claimant to establish her case on the balance of probabilities and that, if she could not do so, her claim must fail.
60. Equally I see no reason to think that the judge was unaware of the salient facts referred to by Mance LJ. Thus he was undoubtedly aware, for example, of the gaps in the evidence and of the need to balance on the one hand the claimant's problems evidenced by her frequent lengthy telephone calls to the Samaritans during the night and on the other hand her methodical approach to the planning of her trip. He was to my mind entitled to be impressed by that methodical approach notwithstanding the claimant's problems. In particular, the claimant was able to make detailed arrangements for her trip each day despite long calls to the Samaritans and others during the night.
61. As I read Mance LJ's analysis, an important feature of it is his conclusion that the claimant must have told her mother a lie in the telephone conversation at about 1010 on the morning of 24 April because it was then that she told her that she had arranged for the van to be serviced, whereas the telephone records show that the van was not booked in until the call to Main Line immediately afterwards at 1021. As already indicated, the judge did not accept that conclusion, although it meant both that there were two conversations before the claimant rang Main Line to book the van in and that the conversation on 27 April was more than a day or so after the conversation on the morning of 24 April.
62. Mance LJ makes a number of powerful points in support of his conclusion that the claimant untruthfully told her mother that she had booked the van in before she had in fact done so. The same points had been put to the judge. The question is whether he was entitled to prefer the conclusion that it is more likely than not that, after the lapse of time, Mrs Leicester did not remember the sequence of events quite accurately. In my opinion he was, for the reasons given above. It seems to me to be entirely permissible for the judge to conclude that it was more likely than not that the claimant told her mother the truth throughout. That conclusion was consistent with the thrust of Mrs Leicester's evidence. It seems to me that it is to put the case for Main Line much too high to hold that the only conclusion that can be reached is, as a matter of high probability, that the claimant must have been lying to her mother on the morning of 24 April.
63. In any event, for the reasons given in paragraphs 35 to 37 above, it is my view that, even if she did tell her mother that she had booked in the van in circumstances in which (having probably already obtained Main Line's number) she intended to do so, and in fact did so immediately after putting the phone down, that lie provides little, if any, support for the conclusion that she told a more significant lie later.
64. The key reasons which have led me to the conclusion that we should uphold the decision of the judge are these. In the light of the methodical approach adopted by the claimant to the practicalities of the trip, it seems to me to be inherently probable that, having arranged for the van to be serviced, the claimant would have taken it in for servicing. It is possible that she overslept for the reasons given by Mance LJ, but the judge had these points well in mind. The claimant had booked the van in for 8.30 am, although she must have been aware of the problems she regularly had sleeping. It seems a reasonable inference that when she did so, she intended to take it in and have any work done, especially since her mother had agreed to pay for any work needed.
65. In these circumstances it seems to me to have been open to the judge to conclude that it is more probable than not that she did so, especially when that conclusion is consistent with the intervals between the telephone calls on 28 April, with her call to Main Line at 11.37 and, importantly, with the accepted fact that she told her mother in the evening of 28 April that that she had got the van back. It seems to me that the judge was entitled to say that, if the claimant had overslept, it would have been surprising if the claimant had rung up simply to apologise. It is of course possible that she did oversleep and that she rang to ask whether Main Line could do the work later in the day, in which case there was time enough to do it, but the call at 11.37 does seem to me to be consistent with the conclusion that the claimant took the van in at 8.30 as arranged, that she rang at about 11.30 to find out if it was ready, that she collected it later and that she afterwards told her mother that she had done so.
66. It thus seems to me that, although it is possible that the claimant did not take the van in and subsequently told her mother a deliberate lie to reassure her, it is more probable than not that she did not. For my part, I am not persuaded that the judge did not have in mind the fact that the claimant may have been short of sleep. Nor am I persuaded that the judge treated the defence evidence unfairly. As I see it, in reaching his final conclusion the judge correctly took account of the defence evidence. He took account of the submission that it was unlikely that, if the van had been taken in, there would have been such a gross failure as there appears to have been. However, against that, he heard the evidence of Mr Ridley who did not impress him and there was there was little if any evidence emanating from Main Line to point the other way. Main Line regularly took cash jobs. Mr Stimpson was not called. The inferences to be drawn from the poor nature of the work thus seem to me to be very limited, especially in the absence of Mr Stimpson.
67. This was a difficult case for the judge to decide. I see the force of many of the points made by Mance LJ but I am not persuaded that they lead to the conclusion that the judge was not entitled to hold on the balance of probabilities that the claimant took the van to Main Line and subsequently collected it, as she told her mother she had.

(2) Did the defective brakes cause or contribute to the accident?

68. The judge answered this question yes. Mr Norris submits that he was wrong to do so. In particular he submits that the judge was wrong to hold on the balance of probabilities that the claimant applied the brakes at any time before the accident.
69. The basic facts are not in dispute. The claimant and Mr McGregor left Manchester in the van some time on 29 April and the accident occurred about 2.20 pm on the afternoon on 30 April. Shortly before the accident there had been a curious incident when a piece of the van's exhaust became detached while the van was proceeding south along the A36. However, the judge said that he could obtain no assistance from it in reaching a conclusion as to the cause of the accident. I agree. As I understand it, the offending piece of exhaust was removed.
70. Thereafter the van turned left on to the A303 at Deptford. From that turning the A303 is dual carriageway for about three miles or so. It is also uphill for some two miles as it approaches Yarnbury Castle Camp. Thereafter it goes downhill before levelling out and perhaps going a little uphill just before the end of the central reservation, which is grass. For some distance both before and after the end of the central reservation, the part of the road which would otherwise be the right hand lane is hatched. After the end of the central reservation the hatching gradually narrows but is still wide enough for a car in the place where the accident happened, which was some 24 metres from the end of the grass.
71. Although, as the judge observed, there were a number of witnesses to what occurred, the person with the best view was Mr Terence Millard, who was driving his Scania lorry in the same direction as the claimant. The lorry was initially following the van up the hill. The van appeared to be labouring and the lorry overtook it but after the brow of the hill the van speeded up and overtook the lorry. Mr Millard estimated his speed as about 55 to 60 mph. No-one suggests that the van was proceeding at an excessive speed at any time.
72. The judge described what then happened in this way. As the van came past him, Mr Millard's lorry was about where the diagonal hatching starts. As the van passed, he thought that it might cut in sharply in front of him, but it did not. On the contrary, it continued for some distance, which he variously estimated as between two and three or three van lengths in front of him. In his opinion the driver of the van had plenty of time to steer back into the nearside lane without the need for any sharp change of direction. However, that is not what happened.
73. Suddenly, and for no apparent reason, the van swerved violently to the left, then back to the right, then back to the left and finally back to the right into the path of an oncoming car causing an appalling accident, in which it was a miracle that no-one in the Volvo was injured. It seemed to Mr Millard that after the initial manoeuvre the driver was over-correcting in an unsuccessful attempt to regain control. Mr Michael Rastall, who was driving in the opposite direction (and whose hobby is motor racing), did not see the first movement to the left but saw the next three and described them as 'snaking'. He too thought that the driver was over-compensating.
74. It is common ground that there were four swerves in all, as described by Mr Millard. There were no marks on the road evidencing the first two swerves. There were, however, marks on the road evidencing swerves three and four. The significance of the marks was considered by the parties' experts, Mr S Parkin for the claimant and Mr G Shellshear for Main Line, and by PC Gibson, who was also an expert in the field and who identified the marks on the road and drew a plan showing them. It is common ground that the marks did not evidence braking and that the final catastrophic loss of control resulted from the heavy input of left hand steering which caused swerve three. There was thus oversteer which caused sideways movement of the wheels while they were still rotating.
75. Paragraphs 7 and 8 of the experts' joint statement were in these terms:

"7. We agree that it is not possible to say for sure whether any braking was being undertaken during the section of visible tyre marks. We agree that when a vehicle is executing a curve at the critical point with the tyres starting to slide, there is insufficient available friction to sustain any significant braking and one or more wheels could be expected to lock if heavy braking were attempted.

8. We believe that the description of the skid marks provided by PC Gibson shows there to be no evidence of wheel lock. We therefore conclude it unlikely that the claimant was braking to any significant degree along the section of individual tyre marks."

76. In the light of those conclusions it was not part of the case advanced on behalf of the claimant that she braked during swerves three or four. Her case was that she braked at the time of the first swerve and that the extent of that swerve was caused or contributed to by the defective state of the rear offside brake. At the trial there were four factors which it was suggested might have caused the loss of control, namely wind, under-inflated tyres, defective brakes and driver error. The judge rejected wind and under-inflated tyres as candidates and it is it not said by Main Line that he was wrong to do so. That leaves one or both of defective brakes and driver error.
77. Mr Norris submits that the judge was wrong to hold that defective brakes played any part in the loss of control and that he should have held either that it was caused by driver error in that the claimant panicked and swerved sharply to the left or that it had not been shown on the balance of probabilities on behalf of the claimant that she had probably braked and swerved to the left as a result. In considering these submissions it should be noted that Main Line does not advance a case of contributory negligence. It is accepted on behalf of Main Line (subject of course to the answer to question (1)) that if defective brakes contributed to the accident it is liable in full.
78. So the critical question before the judge and before us is what was the cause of the initial swerve to the left, or more accurately has the claimant shown on the balance of probabilities that it was contributed to by the defective condition of the brakes. It is common ground that the initial swerve was a violent one. As the judge observed, it was Mr Shellshear's view that it would have had to have been violent to initiate the loss of control described by the witnesses. Mr Parkin said in evidence:

"Oh, it's a hard swerve, as though it's an accident avoidance technique, you know a pedestrian is in the road and you are swerving to avoid him sort of thing. It's not just a fairly aggressive lane change sort of thing."

In cross-examination Mr Shellshear expressly agreed with that view

79. What then caused it? Mr Norris submits that the claimant must have panicked and simply steered too sharply to the left. He relies on a number of aspects of the evidence including the evidence of Mr Millard as to brake lights, his impression as to the condition of the driver as she passed him and the presence of an adjustable load apportioning valve. He also focuses (as does Mr Crowley) on the expert evidence and the probabilities. I will consider each of those aspects of the evidence in turn, although of course all the evidence must be considered in the round in arriving at an overall conclusion and I am conscious that the weighing of different pieces of evidence, some oral and some documentary, is essentially a matter for the trial judge whose decision must be given considerable weight.

Brake lights

80. As part of his compelling submissions on behalf of Main Line Mr Norris submits that it follows from Mr Millard's evidence that the van did not brake because otherwise he would have seen its brake lights, which he did not. He made a statement to the police on 3 May 1998, which was soon after the accident. In it he said:

"At no point do I remember seeing any brake lights from the Transit prior to the impact."

In a witness statement made to Main Line much later he said:

"16. I can't now remember whether I saw any brake lights. However, because of the way the van was being driven, and as we were on a straight road, I was watching it at all times.

17. I gave a statement to the police a few days later and I obviously remembered the circumstances better then"

81. In cross-examination Mr Crowley quoted the part of his statement to the police set out above and the following exchange occurred:

"Q. … Is it right to say that is the best you could do? You really could not say one way or the other whether at some stage or at any stage the brakes were on but having witnessed it all and tried your best three days later you could not remember the brake lights were on?

A. No, it was a question from the police officer, did I notice the brake lights come on, and I honestly couldn't say yes or no. I couldn't remember seeing them come on."

A few questions later he said that he thought he probably looked in his mirror to see whether there was anything behind the van and the following exchange occurred:

"Q. So would this be fair, that some braking might have started when you were just checking your mirror and when you look up the van is starting to veer across?

A. Quite possible."

82. The judge concluded that in the light of those answers Mr Millard's evidence on the question whether the van exhibited brake lights was essentially neutral. He saw and heard Mr Millard give that evidence and was in my opinion entitled to reach that conclusion. There is in any event no evidence as to whether the van's brake lights were working.

Impression of the driver

83. Mr Millard saw the driver looking straight ahead and subsequently saw the passenger slumped against his door as the van went past him. He described the driver as looking "almost dazed" and, as the judge put it, he hypothesised that the claimant may have panicked when she saw the end of the dual carriageway approaching. Mr Norris submits that that supports the case that the cause of the first swerve was the claimant panicking and turning the wheel sharply to the left. The judge did not accept that submission. As to this part of Mr Millard's evidence he said:

"But of course, at that time, he would not have been aware of the defective condition of the brake and would have been trying to find an explanation for something which was not easily explicable."

84. The judge, to my mind properly, put that evidence in its context. He was in my opinion entitled to conclude that someone in the position of Mr Millard, who saw an apparently inexplicable swerve in circumstances where there was no need for violent action but only for an ordinary turn of the wheel to take the van back into the nearside lane, might well conclude that the driver was guilty, as it were, of yanking the wheel sharply to the left if he was unaware of the fact that the van had defective brakes.
85. The judge concluded that what happened was difficult to explain by driver error. He said in paragraph 60, just before referring to the part of Mr Millard's evidence set out above:

"The initial movement was clearly quite a violent one. Indeed, in Mr Shellshear's view it would have had to have been violent in order to initiate the loss of control described by the witnesses. There appears to have been nothing which would provide any explanation for such a manoeuvre. The van was not travelling at an excessive speed; the end of the dual carriageway was not imminent; the visibility was excellent; and there was nothing in front of the vehicle which would have required evasive action. Nor was there any evidence of anything within the van which might have led to such loss of control."

86. The judge added in paragraph 61:

"Whilst I am conscious of the fact that drivers on occasion make serious errors for no apparent reason, the circumstances of the accident were so unusual as to make it necessary to consider whether there was any other contributory factor. Indeed, Mr Shellshear himself accepted that a manoeuvre sufficient to induce a loss of control in these circumstances seems strange and that it was difficult to see why it should happen if she was simply returning to the inside lane."

I agree.

87. The judge then considered the effect of the defects found in the offside rear brakes upon the steering if the brakes were applied. I will return to this below but I agree with the judge that no inference can be drawn from Mr Millward's impression of the driver in circumstances in which he did not know about the defective brakes and thus naturally assumed that the swerve must have been caused by oversteering.

An adjustable load apportioning valve?

88. It was common ground at the trial (and as appears further below) that in some circumstances the effect of the defects in the offside rear brakes would be a pull to the left. As the judge said in (the second) paragraph 61, the real difference between the experts was what degree of braking would be required to produce a significant effect such as would have led to the events observed by the witnesses. Mr Shellshear expressed the view that substantial pedal pressure would have to have been applied to produce such an effect and that even then it would have been unlikely to be so pronounced as to lead to a loss of control. He gave two reasons. The first was that the most effective braking power on this type of van would be attributable to the front brakes. That was accepted by the judge and is not in dispute.
89. Mr Shellshear's second reason was that the van would have been fitted with an adjustable load apportioning valve, which is a brake sensing valve which reduces the pressure applied at the wheel when the van is unladen, as this was. There was evidence from Ford in the form of a fax to Mr Shellshear dated 15 May 2003 which was produced in the course of the trial which read:

"Due to the age of the vehicle, built in January 1986, we are unable to search the build specification of that specific vehicle. However we are able to confirm that all Ford Transit 100Ls built in the same period should have been fitted with an adjustable "Load Apportioning Valve".

90. In the light of that evidence Mr Norris submits that the judge should have held that such a valve was fitted and accepted Mr Shellshear's evidence. The judge declined so to hold because of the evidence of WPC Hollands. She had inspected the vehicle in detail after the accident. Mr Norris asks us to note that this was the first vehicle inspection that WPC Hollands carried out but, against that, it is plain that her inspection was thorough and the judge regarded her, as he put it, as an excellent witness. He expressed his conclusion in this respect thus:

"She specifically looked for such a device and was unable to find it. It is not something which could easily have been missed. I accept her evidence, though I cannot explain it. I find that the van was not at the time of the accident fitted with such a device."

91. It is true that when she was asked in evidence whether she knew that the vehicle had a load sensing device in relation to the brakes she said that she did not know either way. She added that she could not find one but that did not necessarily mean that there was not one fitted. Notwithstanding the way in which that evidence was given as appears on the transcript, the judge was in my opinion entitled to form the view that he did. He saw WPC Hollands give evidence and was entitled to conclude on the balance of probabilities that her inspection of the van was so thorough that if the van was fitted with a valve at the time of the accident she would have found it. That seems to me to be so even though she herself modestly said that her failure to find the valve did not necessarily mean that one was not fitted. The question was of course not whether such a valve was fitted when the van was new in 1986 but at the time of the accident some 12 years later.
92. The effect of that conclusion is, as I see it, that the judge was entitled to prefer the evidence of Mr Parkin to that of Mr Shellshear as to the amount of braking which was likely to cause a swerve to port.

Expert evidence and the probabilities

93. It is I think submitted that the absence of road marks points to the fact that there was no braking. However, the experts did not agree that that was the case. On the contrary, when it was put to Mr Parkin that the fact that the van had braked (ie braked reasonably hard) was not shown by any mark on the road, he said no but that it did not necessarily have to be.
94. Mr Shellshear said in paragraphs 7.12 and 9.7 of his report:

"7.12 Although I cannot rule out entirely that the defective rear brake might have provided an unsettling effect on the vehicle in the event of hard braking, I do not believe in all probability that it would have been sufficient in isolation to have resulted in catastrophic loss of control.

9.7 I am of the opinion that any instability caused by this braking defect in isolation was insufficient to have resulted in catastrophic loss of control." (My emphasis)

I have emphasised 'in isolation' because Mr Crowley correctly submits that Mr Shellshear was not ruling out the defective rear brake as a contributory cause of the swerve.

95. When cross-examined about paragraph 9.7 Mr Shellshear was asked whether, given the existence of the braking defect, if the claimant did brake before the vehicle moved to the left, he would accept that the defect made a contribution to the loss of control and he said that the short answer was yes. This seems to me to be a significant answer, which should be considered in the light of the fact that Mr Shellshear was proceeding on the basis that the valve discussed above was fitted. It was common ground that the effect of the brake defect would be significantly greater in the absence of such a valve.
96. As the judge said in paragraph 64, Mr Parkin clearly identified the defective brake as a potential cause of the accident. The judge quoted paragraph 14.3 of Mr Parkin's report as follows:

"The defect in the rear offside brake was obvious and should have alerted a trained mechanic that the vehicle was unroadworthy. The effect on the vehicle depends on the severity of the leak. If the leak caused a severe pressure drop then the rear brakes could have been inoperable. If sufficient pressure could be brought to bear on the brakes then the rear nearside brake would have operated, but the rear offside would not. This would make the vehicle directionally unstable and heavy application of the brakes would make the vehicle suddenly veer to its nearside . If WPC Holland's [opinion] is accepted that the leak had been present for a considerable time, then this would suggest that the pressure drop was not great and therefore that braking would affect the directional stability of the vehicle."

97. The judge, to my mind correctly, rejected a submission that that view was different from that expressed in paragraph 21 of the joint statement, which was in these terms:

"Mr Parkin believes that if the driver performed relatively heavy braking then the brake defect would have caused the back end of the vehicle to step out of line to some degree. This could very well be enough to unsettle the driver to such a degree that she immediately started to over-correct the steering, leading to the eventual loss of total control. Mr Parkin therefore believes that the brake defect alone could be regarded as the cause of the accident."

98. In the light of the evidence of the experts, which was consistent with that of both PC Gibson and WPC Hollands, the judge was in my opinion entitled to hold that it was more probable than not that the claimant braked, that the braking caused or contributed to the swerve to the left which the claimant failed to correct with the result that the van swerved three more times and the accident occurred as described above.
99. Against that, Mr Norris submits that there was no need for the claimant to brake, either at all or as much as she must have done for the braking to contribute to the first swerve. I recognise that there is force in that submission but, as Mr Crowley points out, Mr Millard himself was braking as his lorry came down the hill and the claimant may well have thought that it was appropriate to do so in order to ensure that she was going somewhat more slowly after the end of the dual carriageway. I agree with the judge that it is more likely that she applied significant braking than that she carried out the kind of steering manoeuvre which both experts said would have been required to explain the violent nature of the first swerve.
100. The judge concluded this part of his judgment as follows:

"In the end the best point for Main Line was that there was no positive evidence of braking, let alone braking so hard as to leave rubber on the road. But the defect was potentially likely to cause just such a movement of the van as was described by Mr Millard. There is no other obvious explanation for what occurred. I take the view that Mr Parkin's assessment of the degree of movement which would have resulted from the application of the brakes is more persuasive than that of Mr Shellshear. Miss Girbash had reached the point where she would probably have wanted to brake and reduce her speed so as to move back into the inner lane. On the balance of probabilities I think she did so sufficiently firmly to produce a significant pull to the left which led her to try to correct it, but which led her to try to correct it, but which resulted only in over-correction and the disastrous snaking manoeuvre which led to the collision. Whether or not she was also to some extent steering to her left at the same time is immaterial. I am satisfied that the principal cause of loss of control was the braking effect. Causation, therefore, is established."

101. Despite Mr Norris' compelling submissions, for my part, I am not persuaded that the judge was not entitled to reach that conclusion. At the very least he was entitled to hold that the effect of the braking made a material contribution to the loss of the control and thus to the accident and that the reason for that effect was the defective condition of the rear offside brake. It follows that the judge was justified in holding that the defective brake was an effective cause of the collision.

CONCLUSION

102. Although I have found this a difficult as well as an unusual case, I have ultimately reached the conclusion that we would not be justified in allowing the appeal. The judge correctly directed himself as to the burden of proof. He considered all the relevant circumstances in the light of the oral and documentary evidence. It was essentially a matter for him whether having weighed all the evidence in its context the claimant had discharged the burden of proof. In my opinion he was entitled to hold that she had, essentially for the reasons he gave. I would therefore dismiss the appeal.

Lord Justice Mance:

103. In my opinion, the only satisfactory conclusion that can be reached on the available evidence in this case is that the true position was and is in doubt on a key issue of fact, and that the claim fails accordingly. The importance of recognising this situation, and identifying the rare cases which fall within it, was identified in Rhesa Shipping Co. SA v. Edmunds (The Popi M) [1985] 1 WLR 948. The House of Lords there set aside concurrent conclusions on fact of the courts below on a question whether a vessel had been lost by perils of the sea. Other cases in the same line include Morris v. London Iron & Steel Co. Ltd. [1988] 1 QB 493 and Ashraf v. Akram (22^nd January 1999; CCRTF 98/0686/2), where Sedley LJ spoke (even in a context where the ultimate issue was who was speaking the truth) of resolution of the issue being "blocked by an intractable evidential tangle".
104. The key issue in the present case is whether the van was ever taken in by the claimant/respondent, Miss Girbash, to be serviced by the appellants, Main Line, on 28^th April 1998. I agree with the other members of the court that we should not disturb the judge's conclusion that the or at least a cause of the accident was the van's defective rear off-side brake. So, if the van was taken in by the claimant to be serviced by Main Line, their blatant negligence caused the death of Mr McGregor and the tragic injuries to Miss Girbash in which the accident resulted. But I do not consider that the evidence justified any conclusion on the balance of probabilities that Main Line did ever receive the van for servicing.
105. I identify the following salient aspects. First, there were fundamental gaps in the available information and evidence - cf The Popi M at p.956A-B. The claimant was unable to give any evidence, direct or indirect, because of her injuries in the accident. So her movements and activities remain inevitably a source of major uncertainty. As to Main Line, it was not until 19^th August 2000, two years four months after the accident, that anyone approached them at all. There followed a conversation on 21^st August 2000, during which Mr Ridley of Main Line learned of the general suggestion that there had, or may have, been a defective service on 28^th April 1998. This lapse of time was no fault of the claimant, who has been so severely injured. But it is a matter which Main Line are, in justice to them, also entitled to ask the court to bear in mind, when considering whether it is safe to reach any conclusion, one way or other, on the issue whether they ever had the car for servicing. It is entirely understandable that neither Mr Ridley, Main Line's effective owner, nor anyone working for him should have any direct recollection on the issue whether they ever saw or worked on the claimant's van. Both the parties and the court are through these matters placed in a very unusual situation.
106. Second, while it is clear that the claimant was someone of considerable intelligence who was well capable, if she set her mind to it, of making necessary arrangements regarding the van which she purchased, the critical issue is whether she fulfilled them in practice in the one respect already identified, by actually taking the van in to be serviced. The judge referred to her as "a rather troubled individual over the months preceding the accident, at times displaying abusive and aggressive behaviour towards others". Reading her letter to her mother and her mother's dated 23^rd March 1998 to her doctor, it is clear that her problems were then acute and that there were occasions when the claimant lost all control over herself and her actions. Further, by the second half of April Mr McGregor had come back into the claimant's life. The claimant's mother, Mrs Leicester, accepted that he was an utterly corrosive influence with whose presence irrational behaviour on the part of the claimant very much coincided. It is necessary to consider closely what is actually known about the claimant's state of mind and movements over the period of days leading up to 28^th April to assess whether or not it can be said to be likely that she did actually take the van in for servicing during the early morning of 28^th April.
107. Third, it was not the claimant's idea in the first place to have the van serviced. She thought that she could rely on its current MOT certificate, and had bought it on that basis. It was her mother's idea. The judge in my opinion clearly erred in one potentially significant respect which bears on both the immediacy with which the claimant followed up this idea when it was first raised and the daughter's relationship with her mother. Mrs Leicester's evidence was throughout precise. In her witness statement dated 31^st December 2002 (paragraphs 24-25) and orally, she confirmed that her daughter told her prior to the purchase that she was going to buy a van for £500, to which Mrs Leicester at that stage simply responded that the claimant "should be careful as she didn't know anything about it". The purchase of the van can be dated to Wednesday, 22^nd April 1998. According to Mrs Leicester (and as one would expect), the claimant informed her of the purchase "soon afterwards", saying that "as it had a MOT test she had bought the vehicle and paid cash for it". Mrs Leicester then said that an MOT test "did not necessarily mean anything" and that the claimant "must get the van checked over before she went travelling". As Mrs Leicester accepted, this conversation must be identified with that shown in the claimant's telephone records as occurring between them at 11.34 on Thursday, 23^rd April 1998 and lasting 13 minutes 47 seconds. The claimant would have been bound to tell her mother of the purchase as soon as it was made.
108. Mrs Leicester's evidence was that the next conversation between them took place "a day or so" later, and was a conversation in which the claimant told Mrs Leicester that she had managed to get the van booked into a garage to be checked over, whereupon Mrs Leicester volunteered to pay for anything that needed doing, for which the claimant was grateful. Mrs Leicester also told the claimant to ask the garage to check the brakes and steering. The claimant's telephone records show that the next conversation between the two of them after that at 11.34 on 23^rd April took place a day later at 10.10 on Friday, 24^th April, and lasted 8 minutes 51 seconds. Immediately after that conversation, the records show that the claimant made a 2 minute 7 second call to Main Line. The claimant's and Main Line's diary entries show that during this conversation she booked a full service, at a basic cost of £60 (probably plus materials). The judge was clearly right to conclude that

"the sequence of two telephone calls on the morning of Friday 24 April 1998 – one to her mother, followed immediately by one to the defendant – is a particularly striking occurrence which strongly suggests that the first telephone call led to the second".

109. However the judge was equally clearly wrong to suggest that this was

"entirely consistent with the proposition that Mrs Leicester gave her daughter firm advice about the van which was immediately followed by her daughter".

Mrs Leicester's evidence was clear. She had already given firm advice to her daughter the day before in the conversation at 11.34 on 23^rd April. So, contrary to the judge's statement, her advice was not on any view "immediately followed". The judge treated Mrs Leicester's coherent evidence about a single conversation in which her advice was accepted (and following which it was immediately acted upon) as if this could be consistent with a situation in which, for unexplained reasons, it took two conversations before the advice was accepted and then acted upon. He was also wrong to treat Mrs Lancaster's reference to her daughter ringing back "a day or so" after their (single) conversation as if this could be consistent with the gap of 3½ days which took place between the conversation at 10.10 on 24^th April and the next recorded telephone conversation between mother and daughter at 20.40 on 27^th April. Finally, he was, in my opinion, clearly wrong to suggest that there could not be "any obvious reason why [the claimant] would have gone to the trouble of booking the vehicle in after she had already spoken to [Mrs Leicester]". On the contrary, it is not difficult to understand why the claimant, having failed to follow her mother's advice the day before, should cover up the failure when the two spoke again on the next day. She would be confident that this would not be discovered and that she could repair the position by arranging a service immediately after the conversation, and she would have the added impetus to make a booking after their conversation of 24^th April of her mother's offer to pay any costs needed to make the van safe.

110. On the evidence, the only conclusion that can be reached is, in my opinion, that this was, as a matter of high probability, the course of events. It seems to me no answer to say that Mrs Leicester may have been mistaken about the number of calls made or the time between them. First, her evidence was unequivocal, and she impressed the judge as a witness. Second, cases must be tried on the evidence, and it does not seem to me legitimate to take those parts of her evidence which favour recovery and discard as potentially mistaken those parts that do not. Nor is it any answer to point to Mrs Leicester's evidence in chief that her daughter told her that the van was "going in on Tuesday morning". In cross-examination Mrs Leicester could not recall her daughter saying this, or even that she herself had said in chief that her daughter had said it.
111. I do not find it particularly improbable that the claimant should, if she had failed or forgotten to arrange a service after the conversation on 23^rd April, then tell her mother a lie on the next day on the question whether she had arranged the service which her mother had suggested and about which her mother was expressing concern. It would have seemed an easy means both to avoid upsetting her mother and to avoid a reproach, in circumstances where the matter could then be regularised by making a booking, as she did. However, if she did tell a white lie of this sort, it does lend some support, although not of course by itself decisive, to the possibility that she may in the afternoon of 28^th April have told a larger and more expedient lie about whether the service booked had actually taken place.
112. Fourth, the claimant's telephone records underline the claimant's disturbed state and the fatigue to which she must have been subject on 28^th April, in a way which the judge did not fully identify:

i) During the night of Friday 24^th to Saturday 25^th April, she spoke twice to the Samaritans, for 41 minutes at 00.35 and for nearly 38 minutes at 1.34. The next recorded call is again to the Samaritans at 15.48 on 25^th April, lasting over 31 minutes.

ii) The next night (25^th to 26^th), at 23.26, she spoke again to the Samaritans for 55 minutes, and made six further short calls to them during the next hour, followed by a 27 minute call at 01.17 on 26^th April, three further very short calls or attempts at calls at 02.01, 04.25 and 04.313 and another long 16 minute call at 04.33. In between she also made two long calls (13 and 21 minutes) to a Chester number at 02.01 and 02.22, and a series of short calls or attempts at calls to a Manchester number.

iii) During the third night (26^th to 27^th), she made calls of 6, 3, 39 and nearly 15 minutes to a Manchester number at 05.02, 05.12, 05.52 and 06.40 and a further such call of 43 seconds at 09.39.

113. At 1017 on 27^th April she telephoned Annette Kleingeist, with whom she and Mr McGregor arranged to stay later in the week, although she probably did not get through until they spoke for 51 minutes at 20.40 that evening. At 11.10 on 27^th April the claimant spoke briefly for 1 minute 10 seconds with her doctor's surgery. Her diary records that she had made an appointment to see him at 12.00. She did not keep that appointment, and it had to be re-arranged at short notice. The purpose of the conversation at 11.10 was in probability to say that she could or would not be keeping the appointment, for reasons which cannot now be not known. She telephoned the surgery again for 1 minute 28 seconds and 26 seconds at 12.51 and 13.32. The purpose may very well have been to re-arrange the appointment, since her diary records a further appointment at 11.30 on 28^th April, during which day it is known that she in fact saw Dr Pathak.
114. During the night of 27^th to 28^th April, at 02.06 she made or attempted to make a call to 123. At 03.30 she spoke to the Samaritans for 12 minutes. The next recorded call is at 11.27, followed by a call at 11.37 to Main Line for 2 minutes 37 seconds. At some point, though it must have been later than 11.30, she saw Dr Pathak. The question is whether she was ringing Main Line to apologise for not having brought the van in, and perhaps with a view to seeing if she could re-arrange a booking (as she had been able to do with her doctor) or whether she was ringing to check that, or whether, the van was ready for collection. Looking at this point in isolation, I see no basis for regarding the latter as more probable than the former. The claimant was already late for her (re-arranged) doctor's appointment. The doctors' surgery was in the same road as the claimant's flat. Why ring to check whether the van was ready, if she was already late for a medical appointment? After spending the previous night (26^th to 27^th) without any or practically any sleep, and after being up and telephoning into the small hours of the night of 27^th to 28^th itself, she must have been exhausted and liable to oversleep on the morning of 28th. As to the fact that no further re-booking was made with Main Line, if the booking on 28^th April was not kept, the failure or inability to make a fresh booking would not be surprising bearing in mind (a) the shortness of time before the claimant intended to set off (on the afternoon of 29^th April), (b) Main Line's Day Book which shows that Main Line was working on several other cars on 29^th April. (Main Line had, according to Mr Ridley, only one mechanic servicing vehicles); and (c) the fact that the claimant had, on the hypothesis presently being considered, let Main Line down on 28^th April.
115. Fifth, the judge thought that the telephone calls were "much more obviously consistent with the case advanced on Miss Girbash's behalf" for a number of reasons which do not in my opinion stand scrutiny. They were:

i) there were no telephone calls at times when she would have been absent from the flat taking the vehicle in for service (i.e. prior to 11.27) and collecting it that afternoon (i.e. between 11.37 and 16.29). But the times prove too much. The garage was only 2 to 3 miles from the claimant's flat. The claimant would not have required three hours prior to 11.27 to deliver the van to the garage or the time between 11.37 and 16.29 to go to the doctor and collect the van. In any event, the former period is just as consistent with over-sleeping, and the latter gap in telephone calls is matched by a number of other occasions when no calls were recorded as made (e.g. the whole daytime of 26^th April and the time between 13.32 and 19.40 on 27^th April);

ii) the telephone call at 11.37 was "made at almost precisely the time that it would have been made if she had been ringing to find out if the vehicle was ready". But it can equally well be said that it was made at precisely the time it would have been made if she had overslept, and I have already given reasons for thinking that this is (looking at times alone) just as likely and if anything the more likely explanation;

iii) "it is intrinsically unlikely that she would have telephoned merely to apologise for missing the appointment", especially if she was late for her doctor's appointment. I have already indicated why I disagree with this assessment of intrinsic probabilities: see paragraph 114 above.

iv) "Even if she did, it seems unlikely that such a call would have taken over two-and-a-half minutes, even taking into account the possibility that she was placed on hold for a short time". As to this, there seems no good reason, both as a matter of common experience and in the light of Mr Ridley's evidence to doubt that a two minute conversation could easily be accounted for by delay while the caller was placed on hold in order for Mr Ridley to clear another call that he was making on the separate fax line that he used for outgoing calls. Time could also easily have elapsed while the claimant enquired about a re-appointment. The judge acknowledged that

"It is possible that she might have enquired about the possibility of arranging another appointment, but this was something that was not investigated in evidence. I cannot form any view as to what the outcome of such an enquiry might have been".

However, it is difficult to see how the possibility could have been investigated further in evidence. Mr Ridley's evidence in chief (which was not challenged on this point) was that no-one in Main Line had any record or recollection of the claimant or her van at all, prior to the discovery of, and other than as revealed by, Main Line's diary entry. Whether the claimant would have enquired about the possibility of arranging another appointment and what the likely outcome might have been can only be matters of inference. If the claimant missed an appointment on 28^th April, then she is very likely to have enquired about re-arranging an appointment. Assuming that she did enquire, it seems on the very limited information available at least as likely as not that it would not have been possible to arrange one within the 24 hours before her departure.

v) The judge said at paragraph 29 of his judgment that "it involves a substantial inferential leap to conclude that [her lateness for her doctor's appointment] must have been because she had overslept". However, this is in my view to reverse the onus of proof and to look for proof positive from Main Line. It is for the claimant to prove her case, and, if no satisfactory conclusion at all can be drawn on the balance of probability from the limited material available, the result is that the claimant fails.

116. Sixth, at 16.45 and 20.07 the claimant made two telephone calls to her mother lasting 11 and nearly 4 minutes. During them, the claimant said that the van had been serviced. In her witness statement and initial oral evidence, Mrs Leicester said that the claimant telephoned to say that she had got the van back. But, later in her oral evidence, Mrs Leicester said that

"I asked her specifically. I said, "Have you got the van back?" She said "Yes"".

So, the telephone calls cannot have been made to volunteer the information that the van was back, or at least there is no sound basis for concluding that they were, since that information was elicited by a question from Mrs Leicester. In answers to Mrs Leicester's further questions first as to what the garage said about it and then specifically about the brakes and steering, the claimant on each occasion replied that "everything is okay". Despite Mrs Leicester's offer to pay for any work necessary to make the van safe, the claimant did not give, and Mrs Leicester did not ask about, the cost of any work.

117. The information given to Mrs Leicester in on the telephone on 28^th April is, necessarily, the centre-piece of the claimant's case. The question is whether it is sufficient to justify a positive finding that as a matter of probability the van was indeed taken in for service. I have already concluded that the claimant must have misled her mother on 24^th April as to whether she had already booked in the van as urged on 23^rd April. The claimant only approached the garage and made any booking after the further conversation on 24^th April. Mrs Leicester did not, when the question was put to her in cross-examination, accept that the claimant was on 28^th April 1998 telling her something just to keep her quiet (having in fact missed her garage appointment). This was not something that Mrs Leicester could know for certain, but the judge thought that Mrs Leicester was likely to know whether her daughter was telling the truth. The force of this factor, which clearly weighed with the judge, is however considerably affected once it is clear, or if it is probable, the claimant had already successfully misled Mrs Leicester on 24^th April. If the claimant did miss her garage appointment, it seems to me not unlikely that she would not have wanted her mother either to know about the absence of any service or to worry or to press the claimant further about the condition of the van or the need for a service, in circumstances where it was the claimant's and Mr McGregor's plan was to set off on their travels the very next day.
118. Seventh, there is nothing in Main Line's case which weighs positively in favour of a conclusion that the van was taken in on 28^th April. Main Line had no records to show any work being done on the claimant's van. Main Line's Day Book records a number of vehicles from 27^th to 29^th April, but not the claimant's. The judge heard submissions on a note in the Day Book against invoice 14995 "Faulty invoice now down to" followed by an arrow to the next invoice 14996 addressed to Aline which had a tax date of 27^th April 1998. He did not conclude that invoice 14995 was originally made out for work on the claimant's car, or think that he could "exclude the possibility that 14995 may indeed have been faulty in some way". He pointed out that invoice 14997 appeared to have been compiled by altering an invoice originally numbered 14998 to 14997, with the inference that something had gone wrong with the original of that invoice also. A further factor not mentioned by the judge is that invoice 14995 could hardly relate to a van not brought in on the claimant's case until 28^th April, since invoice 14996 had already been completed on 27^th April.
119. Eighth, to show that it was possible that the van was taken in for servicing despite Main Line's lack of any record showing this, the claimant can rely on the judge's conclusion that Mr Ridley "was rather inclined to play down the extent to which he was willing to take on "cash jobs". Mr Ridley accepted that he did such jobs from time to time, though he said that it would always be for old friends or contacts. Again, however, there is nothing here positively to suggest or make it likely that the claimant asked or would have asked Mr Ridley to do a cash job - especially when her mother was going to pay for any safety work and was concerned about the van's safety.
120. Ninth, the condition of the van at the time of the accident is, on the other hand, an important factor bearing on the likelihood or otherwise of the van having been taken in for any service on 28^th April 1998. The judge recognised this, saying that the point troubled him and that:

"If the van had been taken in for service on that day for a full service, the condition of the van at the time of the accident would indicate a gross failure by Main Line to carry out the work for which it had contracted".

121. Nothing positive which is known about the van's condition at the time of the accident gives any positive support for a suggestion that it can have been subject to any service on 28^th April. Here too, potentially significant evidence is missing, since there was was, following the accident, no examination of the sump oil to confirm one way or the other whether that had been changed. But there is positive information about other matters, all of which are difficult to reconcile with any idea that the van had just been serviced. The exhaust broke off just before the accident. The one front tyre that remained inflated after the accident and (it seems) both rear tyres were to some degree under-inflated (even though not in any way contributing to the accident). The van's bodywork was very severely corroded, so much so that there were three holes in the chassis, one in the footwell under the driver's pedal and a split seam at the lower edge of the driver's door pillar, quite apart from splits or seams which opened up during the accident due to the van's generalised corrosion. Finally, the critical offside back wheel cannot have been opened up (as required on a full service) to check the brake pads and check for oil leaks. These are all powerful pointers towards the unlikelihood of any service having been undertaken by anyone.
122. The judge discounted these pointers, because

"…. the fact of the matter is that I simply do not know what occurred or may have occurred on that day. I have not heard from Mr Stimpson who would have carried out the work. He has not been cross-examined and I have not been able to form a judgment as to his competence and reliability. I do not know for example what the pressure of work was on that day. Nor do I know whether there might have been any misunderstanding of the nature of the job or whether he might have considered it sufficient to check the brakes through the inspection holes without removing the wheels or the drums".

123. Mr Stimpson was identified in Mr Ridley's evidence in chief as Main Line's only mechanic responsible for servicing. Mr Ridley said that Mr Stimpson had worked for him for some 9 years and was still with him. Counsel for the claimant confirmed in his opening question in cross-examination that Mr Stimpson was the only mechanic in April 1998, but took the matter no further. He did not challenge Mr Ridley to call Mr Stimpson or ask whether he was to be called. There was also no challenge to Mr Ridley's evidence that no-one in Main Line had any relevant recollection at all regarding a suggested service by the time when Main Line was first approached well over two years later. Any suggestion that Mr Stimpson could in 2003 have given positive evidence about what occurred on 28^th April 1998 or about the nature of, or his understanding or misunderstanding of, any job which he may have had on that day can be discounted.
124. It was however common ground that a full service would have involved opening up the van's wheel, removing the drums to inspect the brake pads. Even on a cursory examination through the inspection holes it would been immediately obvious that the whole rear offside break drum was soaking in brake fluid and dust, according to the evidence (unchallenged on this point) of Mr Parkin, Main Line's expert. The judge said that he "had not had been able to form a judgment as to [Mr Stimpson's] competence and reliability". But the known facts are that Mr Stimpson had been working for Mr Ridley as a mechanic since around 1994, Mr Ridley was aged 50 (at trial), and (whatever the position regarding cash jobs) had by then been carrying on business through Main Line for 25 years, with clients who included local dealers as well as private individuals. No questions were put to Mr Ridley to challenge either Main Line's general competence as a garage or Mr Stimpson's general competence as a mechanic. The clear objective likelihood is that, if the car was brought in for a full service, this would have been done and the van would not have been in the condition in which it actually was at the time of the accident. As Mr Ridley observed, garages are there to do work, not to shirk it. They earn profit by detecting and reporting a need to replace an exhaust or brake pads, etc; and, even if a client does not instruct them to do anything, they at least cover themselves by pointing out obvious defects. It is in my view quite unreal to suppose that seeing or hearing at trial in July 2003 from an apparently experienced mechanic like Mr Stimpson could have assisted the judge to form any better view, as to the (un)likelihood of his having done a grossly negligent mechanical job on the occasion of a possible service over five years previously in April 1998; or therefore to form any better view through hearing from him on the key issue whether the van was ever brought in for service at all.
125. Having looked at these nine salient aspects, it is relevant to examine the way in which the judge summarised the thinking that led to his conclusion. At the end of his analysis of the claimant's case, the judge expressed the view that "overall" it seemed to him "that the limited evidence about Miss Girbash's activities on 28 April fits somewhat better with the case advanced on her behalf than with that advanced on behalf of Main Line". After considering Main Line's case, he concluded that the claimant's case had been established on the balance of probabilities, saying that, although the evidence adduced on the claimant's behalf was indirect, he found it "cumulatively compelling". He referred in this connection to (i) the rational and methodical preparations the claimant had made, (ii) the matching diary entries in her and Main Line's records, (iii) his view that the telephone records were "entirely consistent" with her case, and "most importantly" (iv) the fact that the claimant took her mother's advice to book a service and subsequently told her mother that she had done so. He did not consider this latter evidence was cast into doubt by the fact that (v) the claimant was awake in the small hours of 28^th April, and he did not consider that (vi) Main Line's records "can be regarded as establishing the contrary case". For reasons discussed in paragraph 22 above, he was not influenced to the fact that (vii), on the claimant's case, Main Line must have been guilty of a gross failure to carry out the service in rudimentary respects.
126. As I have already said, I consider that the judge erred in his conclusion that the limited evidence of claimant's movements fitted somewhat better with her case than that advanced on Main Line's behalf. Further, this passage in the judge's summary of his thinking suggests the error identified in The Popi M, of believing it necessary to decide between one side's case and the other, rather than asking whether the claimant had made out her case on the balance of probabilities. A similar observation can be made in respect of the judge's comment that Main Line's records did not establish their case (cf point (v) above). The features which the judge later thought were "cumulatively convincing" include (ii) matching entries, which do not go to the central issue whether the van was actually taken in and (iii) telephone records which the judge wrongly thought were "entirely consistent" with the case advanced. For reasons given in paragraphs 8-9 above, these records were in fact inconsistent with that case, in a manner raising relevant doubt about the extent of the claimant's frankness towards her mother. This alone is, in my judgment, a sufficiently important factor to require us to re-examine for ourselves the judge's assessment of the evidence as a whole, in a manner analogous to that applicable where a judge errs in a factor which he takes into account in the exercise of a discretion. Secondly, however, I think that the judge failed to reflect in his judgment and in his summary (at points (i) and (v)) the extent of the distress and fatigue under which the claimant must have been suffering on 28^th April, both as evidenced by her repeated calls to the Samaritans and consequent on her having had not just one night short of sleep, but a whole series of broken or non-existent night's sleep. Thirdly, and importantly, the judge was in my opinion wrong to discount in the way he did (at point (vii)) the weight to be attached to the very gross nature of the failure to service, which must inescapably have occurred had the van been taken in for any service on 28th April. It follows that the judge erred in particular factors which he took into account in considering whether it was possible to form any view on the balance of probabilities; and that we have to undertake our own re-assessment.
127. One can only have the greatest sympathy for the claimant and for Mrs Leicester, who has the responsibility for caring for her now. Mrs Leicester has not unnaturally sought to understand and get to the bottom of events leading to the situation which must now dominate her own as well as her daughter's life, both personally and very probably financially. But the imposition of civil liability, so as to afford the only remedy that the law could here offer in the form of damages for negligence, is a serious matter both at the individual level and for society generally. It is important in this context to attach real meaning to the balance of probabilities, and not to struggle to reach a conclusion on insufficient material when the circumstances deprive the courts of the evidence on very fundamental aspects which would normally be available to assist to establish the position one way or another. In the present case, those circumstances very sadly derive from the effects of the accident itself, but it would be circular to treat that as affecting the standard of proof required as against the defendants. It is sufficient to resolve this appeal in my judgment to say that the evidence was and is quite insufficient to found any conclusion that it was more probable than not that the van was ever taken in by the claimant for a service by Main Line. I repeat that this is not to make any positive finding in an opposite sense or even, more specifically, to the effect that the claimant misled her mother on 28^th April after the van is alleged to have been serviced. To suggest that, before the claim could fail, it would be necessary to reach positive conclusions in an opposite direction on a balance of probability is to repeat the fallacy exposed by The Popi M. The only relevant conclusion at the end of the day is that, looking at the picture overall, the claimant's case that the van did go in for service is not proved as a matter of probability. I would for my part therefore allow this appeal and order judgment to be entered in favour of the appellants.

Lord Justice Jacob:

128. I agree with the judgment of Lord Justice Clarke. However, in view of the powerful submissions of Mr Norris and the fact that Lord Justice Mance takes a different view, I would add a few words of my own.
129. There are certain facts which one can fairly regard as "hard." These are essentially:

i) The entry "Girbash" in the appointment book;

ii) The times and persons to whom telephone calls were made;

iii) The fact that Miss Girbash told her mother the van had been booked in;

iv) That she told her mother that it was back from service;

v) That her mother agreed to pay for the service.

130. Trying to work out more precisely when these things were said by trying to fit them to the pattern of telephone calls lies in the field of inference and involves a measure of speculation too.
131. The most important hard facts, taken alone, clearly give rise to the inference that the van was indeed serviced. It was booked in. Miss Girbash told her mother it was booked in and later that it was back from service. One would infer from these firmly established matters that the van was indeed serviced. The contrary conclusion involves Miss Girbash telling her mother a lie. Moreover, it is a very serious lie. For it would involve more than merely placating an anxious mother. There would be the inevitable follow up of how much it had cost and a payment. In other words to carry through the story, Miss Girbash would have had to defraud her mother. That is a very serious conclusion.
132. Although one can draw inferences to support such a conclusion – and Mance LJ has powerfully set out why – I think it was open to the judge on all the materials before him to hold that Miss Girbash did not tell such a serious lie to her mother. For these reasons too I would dismiss this appeal.

Order:

133. The defendant's appeal against the judgment of His Honour Judge Hegarty QC in this claim dated 14^th July 2003 be dismissed.
134. The defendant to pay the claimant's costs of the appeal to be assessed forthwith as follows;

(a) The claimant's cost down to and including 3^rd March 2004 on the standard basis

(b) The claimant's costs after 3^rd March 2004 on the indemnity basis but the hourly rate for profit costs be the same as would be allowed on an assessment on the standard basis

135. Permission to the claimant to request an assessment as aforesaid to be dispensed with in the event of the claimant's solicitors waiving any claim to further costs.
136. The claimant's costs be assessed forthwith in accordance with Regulation 107A of the Civil Legal Aid (General) Regulation 1989.
(Order not part of approved judgment)