England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5 December 2013

1. LORD JUSTICE CHRISTOPHER CLARKE: On 20 December 2009, there was a road traffic accident on the eastbound carriageway of the M27 in which a Vauxhall Corsa driven by Mr Robert O'Donoghue, the first Defendant, collided with a Ford Focus in front of it driven by Mr John Brice, the second Defendant. Proceedings were brought by Mrs Janet Faunch who was a front passenger in the Vauxhall and who suffered serious injuries. Since she was, on any view, blameless, the insurers of the first and second Defendants arranged that the Court would determine which of the two Defendants was legally responsible.
2. The hearing on liability only took place on 1 and 2 November 2012 before Mr Recorder Murphy in the Southampton County Court. He heard evidence from a number of witnesses including Mrs Faunch; Miss O'Donoghue, who was a 15 year old rear seat passenger in the Vauxhall; Mr Brice, the driver of the Ford; and Mrs Brice, his wife, who was a front seat passenger in that car. Mr O'Donoghue, the driver of the Vauxhall, had no direct recollection of the accident. Travelling behind the Ford Focus was a car driven by Mr Mark Lister who was an entirely independent witness by whose evidence the Recorder was favourably impressed. Two experts gave evidence; Mr Michael Natt for the first Defendant, the driver of the Vauxhall, and Dr RF Lambourn for the second Defendant, the driver of the Ford.
3. The most critical question that the Recorder had to decide was which car was occupying the middle lane immediately prior to the accident. At the hearing, two scenarios were in play. Scenario one was that the Ford Focus was in the middle lane. The Vauxhall Corsa in the outside lane approached from the rear and pulled towards the middle lane when partially alongside the Ford. The driver of the Vauxhall then, having perceived the Ford Focus, pulled to the right and lost control. The Vauxhall then yawed to the left and in the course of doing so struck the Ford in the rear. When the Vauxhall made contact with the Ford, it was moving from right to left. This was the scenario posed by Dr Lambourn. It tallied with the evidence of Mr Brice, the driver of the Ford, and that of Mrs Brice.
4. After the accident, the police were called and shut off the scene. They took note of the yaw marks in the road which showed the passage of the Vauxhall from right to left. It ended up on the far nearside on the hard shoulder of the slip road. In Dr Lambourn's view, the collision had occurred after the Vauxhall had started to leave yaw marks on the road. These evidenced its lack of control which immediately preceded the collision.
5. Scenario two was that the Vauxhall Corsa was in the middle lane. It was travelling slightly faster than the Ford Focus. The Ford then pulled from the inner into the middle lane in front of the Vauxhall. The Vauxhall swerved to the right to try to get into the outside lane. In the event, the front nearside of the Vauxhall Corsa struck the rear offside of the Ford Focus. When it did so, it was moving from left to right. Because of the collision, the driver of the Vauxhall lost control and the Vauxhall then yawed across the motorway to the left, finishing up on the hard shoulder on the slip road. Under this scenario, the collision occurred before the yaw marks were made on the road.
6. It was accepted that the point of the collision was in the middle lane, but neither the expert evidence nor the tyre marks could of themselves determine which car was in which lane prior to the accident and in particular, whether one was on the nearside and one in the middle or one in the middle and one on the offside before the collision occurred.
7. Two issues were of importance in determining what happened. The first was the point of collision; that is to say where on the ground the collision occurred. The second was the point of impact between the Vauxhall and the Ford and the direction of travel of the Vauxhall at that moment. In relation to each of these points, the Recorder preferred the evidence of Mr Natt. He accepted his evidence that (I) the collision occurred before the start of the tyre marks, which was inconsistent with Dr Lambourn's scenario one; (II) that the marking on the Ford Focus showed that the Vauxhall was moving from left to right; and (III) that the damage on the Ford Focus was at the rear offside into which the front nearside of the Vauxhall had driven, as shown in what was described as diagram two. This was consistent with scenario two.
8. The judge did not, however, accept scenario two. He regarded Mr Lister as a thoughtful and persuasive witness. His evidence had been that the Ford was established in the middle lane and that the Vauxhall crossed from the offside lane into the middle lane with its indicator flashing as it did so. Its nearside wheels crossed the road markings separating the two lanes. The Vauxhall driver had failed to appreciate that the Ford Focus was in the middle lane. Then he did become aware of the Ford and moved sharply back. Then the Vauxhall went out of control.
9. The judge accepted this account. He held that the Ford was travelling marginally slower than the Vauxhall. When the Vauxhall driver became aware of the Ford in front, it swerved from left to right. In so doing, it struck the rear offside of the Ford Focus and caused both vehicles to go out of control.
10. That conclusion, although in part based on Mr Natt's evidence, was not a scenario which had been suggested at the trial or canvassed in evidence. Like scenario one, it had the Ford Focus in the middle lane and the Vauxhall in the offside lane, but under scenario one, the Vauxhall, having drifted somewhat into the middle lane, pulls to the right before any collision occurs, then loses control and then moves from right to left with contact with the Ford being from right to left. In the scenario adopted by the Recorder, which I will call scenario three, the Vauxhall moves into the middle lane so as to be either wholly or substantially within it and when it becomes aware of the Ford moves from left to right and, in so doing, strikes the Ford.
11. In reaching this conclusion, the Recorder relied heavily on the evidence of Mr Lister. It is plain, however, and the Recorder so found, that his evidence was not reliable in all respects. In his contemporaneous police statement, he had said that the Vauxhall Corsa had been directly alongside the Ford Focus, that it had spun across the front of the Focus and must have hit the front of the Focus, although he did not see that actually happen. This was not and could not be right. In both his police statement and his witness statement, he evidenced what amounted to an overlap between the Ford Focus and the Vauxhall Corsa.
12. The Recorder agreed with Mr Natt's opinion that it was doubtful whether the Vauxhall Corsa had ever been alongside the Ford Focus. He held that Mr Lister was understandably mistaken because he was observing the two vehicles from behind without even a partial sideways view. He said Mr Natt had not gone on to ask what the position would be if Mr Lister, although wrong about some aspects, was right about others; namely, seeing the Corsa's indicator flashing and its nearside wheel crossing the middle lane. As to that, he said this:

"As far as this case is concerned, in my view, if Mr Natt had been asked the question, "If Mr Lister is right about the Corsa indicator and the white line crossing, is this inconsistent with my view as to the collision with rear of the Focus going left to right"; the answer would have been "no" and he would not have been able to unequivocally conclude that the Focus moved from the inside lane to middle lane and the Corsa was never in the outside lane. Accordingly, whilst my view is that Mr Natt's opinion should be accepted as to damage, point of collision and diagram two as to the manner of collision, Mr Natt's opinion does not discount Mr Lister's evidence completely and my decision must depend upon how compelling a witness I think Mr Lister is, notwithstanding, but taking into account, what must have been some misapprehensions at least on the part of Mr Lister in his belief as to what happened."

13. The Recorder then said that he preferred the evidence of Mr Lister to that of Mrs Faunch and held that the Ford was in the middle lane. As a result, having made the findings to which I have already referred, he held the first Defendant, the driver of the Vauxhall, solely liable.
14. Mr Mark Laprell for the first Defendant, now the Appellant, submits that the judge has fallen into error. It was neither right nor fair for him to decide the case based on scenario three when that was not consistent with either scenario one or two; when scenario three was never canvassed with any witness; and when the Recorder has based himself, at least in part, on the answer he thinks Mr Natt would have given to a question which he was not asked.
15. I agree. It is, of course, generally speaking, open to a judge to conclude that a road traffic accident happened in a different way to that put forward by the witnesses, but in a case such as this where the trial has been conducted by reference to two scenarios as to each of which expert evidence has been adduced and without the third scenario, which has a marked difference from scenario one, having been raised or suggested, it seems to me that the judge was bound before reaching a conclusion based upon it at the very least to indicate that he was minded to reach a conclusion on this new basis and invite submissions. In all probability, he would then have been asked to entertain further evidence which, it seems to me, he would have been bound to do. In those circumstances, the proceedings have miscarried.
16. There would, however, be no grounds for this Court to interfere if it was apparent that no further submission or evidence could lead to a different conclusion. As to that, it is, in my judgment, be for the party seeking to assert that that was the position, here the Respondent, to show that was so. That burden has not been satisfied. In the light of that, in one sense, there is no more to be said.
17. What has happened in this case is that both Mr Natt and Dr Lambourn have filed further reports which we have looked at de bene esse. That was done by the Appellant out of an abundance of caution lest it be said that it was irrelevant that Mr Natt had not been asked the judge's question because it was not shown that he would have answered anything other than "no" to it. As I say, it was for the Respondent to show that further evidence or submissions would have made no difference.
18. Even, however, considering these reports de bene esse, what they show is that so far as Mr Natt is concerned, he would not have given an unqualified "no" to the Recorder's question. He would have said that the Recorder's view was a possible one, but for the reasons which he explains in his report under scenario three, the Corsa would have had to have been about 15 metres behind the Focus when it moved to the right.
19. Dr Lambourn's report is to the effect that the calculations which Mr Natt has prepared depend on steering rates, lateral distance move and relative speed. These are data which he says cannot be found from physical evidence or estimated with sufficient precision. In his view, an expert's advice cannot contradict the Recorder's conclusion.
20. Mr Douglas Herbert for the Respondent submits that these expressions of view and this inquiry are, in the end, beside the point. The critical question was which car was in the middle lane? That could only be determined from the evidence of non-expert witnesses present at the scene. The Recorder has accepted the evidence of Mr Lister for reasons which he explained in his judgment and it was open to him to do so. The evidence of Mr Brice, about which Mr Brice was absolutely certain, was to the same effect.
21. These findings, he submits, are determinative. It was not necessary to ask Mr Natt the question that the Recorder posed and it would not make any difference if you did so in the light of the Recorder's clear findings. The answer which Mr Natt says he would have given to the question does not mean that the Recorder could no longer rely on Mr Lister's evidence. If the Court were to take a different view, it would open the prospect of run of the mill road traffic cases being reopened when the judge decides something different to that which either side has advanced.
22. I do not accept this. The Recorder was faced with a situation in which there were two independent, or arguably independent, witnesses. Mr Lister was one of them. Mrs Faunch was the other. She had been in a relationship with Mr O'Donoghue, but she was not at the time and she had received compensation. So she could be regarded as independent or nearly so. These witnesses said diametrically opposite things. In those circumstances, the Recorder needed all the help he could get from the expert evidence. Part of that assistance could be found in an expert examination of the two scenarios suggested, the likelihood or otherwise of which could inform his judgment. If a third and different scenario was to be postulated, that also should have been considered by the experts. Without that, their work was incomplete.
23. Moreover, the witness on whom the Recorder placed great reliance was plainly mistaken on the important question of whether the Vauxhall Corsa had passed to the front of the Ford and struck it in the front. The Recorder thought that that was understandable. But he might have taken a different view if he had the evidence appearing in Mr Natt's latest report that in order for scenario three to be correct, the Corsa would have to be about 15 metres behind the Focus when it began to move to the right. On that footing, the distance between the Focus and Mr Lister could have been, on Mr Lister's evidence, as little as 45 metres. That might have caused the judge to question further how Mr Lister came to give the account he gave of the Vauxhall being alongside the Focus and passing in front and whether or not he was right to place such reliance on Mr Lister's evidence.
24. It is, in any event, plain that the Recorder himself regarded Mr Natt as having relevant input to contribute to the validity or otherwise of the Recorder's decision. It must have been for that reason that he postulated the question to which he, and not Mr Natt, supplied the answer, which appears not to have been the answer that Mr Natt would have given.
25. In those circumstances, as it seems to me, there must be a new trial. This was the course which, as my Lord Justice Ryder pointed out in argument, this Court felt compelled to take in Devoran Joinery Co Ltd v Perkins (No. 2) [2003] EWCA Civ 1241, referred to in part 35.06 of the White Book, where the trial judge had developed his own theory on a defective building claim instead of recalling the relevant expert.
26. I would, therefore, allow the appeal, set aside the order of the Recorder and order that there be a new trial before a different judge, that judge to be as determined by the designated civil judge in Winchester.
27. LORD JUSTICE RYDER: I agree.
28. SIR STANLEY BURNTON: I also agree.