England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
deputy district judge Goldberg (the DDJ)
sitting in the Leeds County Court on 22 January 2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/07/2009

Lord Justice Wall :

1. This is a renewed application by Mr Haroon Riaz (the applicant) for permission to appeal against a decision made by deputy district judge Goldberg (the DDJ) sitting in the Leeds County Court on 22 January 2009. The application comes to this court because this was a personal injury / running down action which had been assigned to the multi-track and released to the DDJ by the Designated Civil Judge for Leeds.
2. The applicant was the driver of a vehicle which, on 9 August 2007 was involved in a minor collision with a vehicle being driven by the 1^st Defendant, Miss Donna Fowler. Miss Fowler turned out to be uninsured, with the result that Norwich Union Insurance Limited (Norwich Union), acting as the Road Traffic Act insurer, was joined as 2nd Defendant to the applicant's claim. Although it did not insure Miss Fowler, Norwich Union accepted that it had a contingent liability to satisfy any unsatisfied judgment obtained against her by the applicant.
3. Liability for the accident, which the DDJ found to be the sole responsibility of Miss Fowler, is not the subject matter of this application. Miss Fowler did not file a Defence, although she did give evidence. Norwich Union did file a Defence in which, inter alia, it put the applicant to proof of the extent of the damage to the vehicle he was driving, and challenged both the extent and nature of any injury he alleged he had suffered as a result of the accident. It also challenged the schedule of special damages the applicant was claiming relating to the repairs to that vehicle (including the costs of recovery, storage and the claimed hire charges for another vehicle).
4. The DDJ, in a short, 13 paragraph judgment; (1) found for the claimant on liability; (2) dismissed his claim for personal injuries; and (3) awarded him the sum of £100 only by way of the cost of repairs to the vehicle he was driving. He also ordered the applicant to pay Norwich Union's costs. I note in passing that the order drawn by the court refers to the sum of £100 as "the claim for hire of vehicle".
5. On 15 May 2009, Keene LJ refused the applicant permission to appeal on paper, stating:-

1. The judge was essentially finding that he did not believe the claimant. Although his reasons were expressed very briefly, they were in my view sufficient for the claimant to know why he had lost, particularly when considered by someone who had been at the trial and who would have been well aware what was being referred to.

2. The extent of the damage of the claimant's car was put in issue by the Defendant. Once the judge had found that the claimant was not to be regarded as a credible witness, he was entitled to conclude that the burden on the claimant to prove that the alleged damage resulted from the collision had not been discharged. In particular, it was a weakness of the claimant's case that his car was not inspected by Mr. Lee until 23 October 2007, over two months after the collision.

6. Having concluded (the first 8 paragraphs of his judgment) that Miss Fowler was negligent, and solely responsible for the accident (her vehicle was emerging from a side road and collided with that being driven by the claimant, who was on the main road) the remainder of the DDJ's judgment reads as follows:-

9. The next question which is necessary for me to determine is whether or not the collision which occurred caused any significant damage to the claimant's vehicle, caused him to be injured or caused him to incur the very substantial losses which have been claimed. It is in that specific regard that I feel it is necessary for me to comment on the quality of the evidence which I have heard and which has been given to the court by the claimant. I do not propose to set out a list of the contradictions and inaccuracies in the claimant's evidence, save to say that they were substantial in number. It is also right to say that the medical evidence which supports the claimant's claim for personal injuries is also substantially flawed. On the claimant's own evidence, in cross-examination, he concedes that the report is inaccurate. It does not, for example, deal with other accidents that the claimant was involved in; it does not deal, he says, correctly with periods of time which he had off work. The claimant in response to the cross-examination claims to have requested of his solicitor and of the expert that the report be amended. There is no evidence to support that. Such evidence from him, in my judgment, lacks credibility. It seems much more likely that it is tailor-made to be a response to pleading points which were made by the third dependant's solicitors.

10. The impression that I have formed, having seen and heard the claimant give evidence, is that his evidence is untruthful, it lacks credibility and his answers were often contradictory and were intended, in my judgment, only to further his claim and not to honestly, for the benefit of the court and the parties, recount the truth.

11. I am not satisfied, on the balance of probabilities, that the claimant suffered personal injuries as a result of this accident or that the car was damaged to the extent claimed. In this regard, I much prefer the first defendant's evidence.

12. It follows from those findings that there is no justification for the claimant to enter into any storage or hire agreements. I therefore dismiss the claimant's claims in relation to his claim for personal injuries, storage and car hire.

13. In relation to the repairs for the vehicle, there is no doubt that there was a small collision, that is certainly confirmed by the first dependant and her witness, but it seems to me that the repairs necessary to the vehicle would only have been a small proportion of the actual repairs which were undertaken. I do not propose to speculate why there were additional repair works necessary, save to say that I only attribute £100 of the repair costs of the claimant's vehicle to this particular collision and, in those circumstances, I give judgment for the claimant for £100.

7. The DDJ refused permission to appeal. In his grounds of appeal to this court, Mr. Michael Krebs, for the claimant, attacks the DDJ's findings on credibility, but directs his main fire against the DDJ's quantification of the claim for repairs in the sum of £100. He submits that the DDJ; (1) failed to consider the expert evidence filed by the claimant; and (2) gave no explanation for his preference of Miss Fowler's evidence that the damage was trivial. He was also wrong, it was argued, to find that the damage must have happened on a subsequent occasion.
8. No appeal is mounted against the DDJ's findings in relation to the claimant's personal injuries. In my judgment, that was wise. I have been provided with an entire transcript of the short hearing. The DDJ was plainly entitled to find that the claimant was an unsatisfactory witness, and the medical report on him was patently unsatisfactory.
9. The two substantive documents upon which Mr. Krebs relies for the purposes of this application are: (1) a report from a Mr. David Morton dated either 20 or 28 August 2007, which identified the damage to the vehicle being driven by the claimant, and estimates the cost of repairs (inclusive of VAT) at a sum in excess of £2,700; and (2) a report to the court from a consultant engineer, Mr. I.D. Lee, which is dated 8 November 2007, and which identifies effectively identical damage. Mr Krebs is thus able to submit; (1) that Mr. Lee's report was not seriously in issue at trial (Mr Lee was not required to attend the trial for cross-examination); (2) that there is no reference in the DDJ's judgment to either witness; and (3) that on any view, accordingly, the figure of £100 – be it for repairs or storage - is plucked out of the air and without reference to the evidence.
10. The critical question, it seems to me, is the extent to which the DDJ's findings of witness credibility affect his assessment of the cost of repairs / storage. It may be arguable that the figure of £100 is unsustainable. In my judgment, it follows that the appropriate course is for the application to be adjourned for hearing before a two judge court with a time estimate of two hours (to include judgment) to be listed on notice to Miss Fowler and Norwich Union and with the appeal to follow if permission is granted. That will, accordingly, be my order.