The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 31 of 1997

 

Dwight Saunders Appellant

v.

Henry Adderley Respondent

 

FROM

 

THE COURT OF APPEAL OF THE

COMMONWEALTH OF THE BAHAMAS

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the  24th June 1998

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Present at the hearing:-

Lord Nolan

Lord Hutton

Sir John Balcombe

Sir Andrew Leggatt

[Majority Judgment Delivered by Sir John Balcombe]

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1. On 17th May 1988 the appellant Dwight Saunders was knocked down in Windsor Lane, New Providence, by a motor car driven by the respondent Henry Adderley.   The appellant suffered very serious injuries. The respondent was prosecuted for driving without due care and attention, and he and the appellant gave evidence at the Magistrates’ Court on 24th February 1989.   A submission of no case to answer was upheld and the respondent was discharged.

 

2. The appellant commenced proceedings in the Supreme Court of the Commonwealth of The Bahamas for damages for personal injuries.   The statement of claim dated 3rd December 1990 alleged negligence on the part of the respondent.   The respondent’s defence, served on 17th December 1990, denied negligence, and then pleaded in the alternative contributory negligence on the part of the appellant.   The action came on for trial, on the issue of liability only, before Strachan J. and the judge heard evidence and submissions on 9th and 10th March 1993.   The nature of that evidence will be considered later.   Judgment was given on 13th August 1993 finding negligence on the part of the respondent, but with 40% contributory  negligence on the part of the appellant.   The order (dated 28th October 1993) was for damages to be assessed and paid by the respondent as to 60% thereof with costs.  From this order the respondent appealed to the Court of Appeal of the Commonwealth of The Bahamas.   The grounds of the appeal were that the judge’s findings of fact, upon which he arrived at his conclusion that the respondent had been negligent, were not supported by the evidence.

 

3. The appeal was heard on 14th July 1995 by a court consisting of the then President of the Court of  Appeal and two non-resident judges.   The Court allowed the appeal, set aside the order of the trial judge, and directed that judgment be entered for the respondent with costs to be taxed or agreed.   The case for the appellant before their Lordships is that the Court of Appeal gave no reasons for their decision.   Certainly the record before their Lordships contains no copy of any judgment given by the Court of Appeal and  the respondent’s lawyers have been told by the present President of the Court of  Appeal that the members of the Court who heard the appeal had left nothing behind them by way of reasons for their judgment.   His predecessor had died and the two non-resident judges had retired and had departed The Bahamas.  However, there was before their Lordships an affidavit sworn by junior counsel for the respondent at the hearing before the Court of Appeal (Mrs. Cheryl Bazard), exhibiting a contemporary note she had taken of the proceedings before the Court of Appeal and of the judgment then given.

 

On 17th January 1996  the appellant was granted special leave to appeal as a poor person against the judgment of the Court of  Appeal.

 

4. The first issue before their Lordships was whether they were entitled to look at Mrs. Bazard’s affidavit or whether they should, as the appellant submitted, proceed on the basis that the Court of Appeal gave no reasons for their decision.  It is to be noted that no affidavit was filed on the part of the appellant to contradict the evidence of Mrs. Bazard, nor was there any request that she should attend to be cross-examined on her affidavit.  Their Lordships had therefore no reason to doubt the reliability of Mrs. Bazard’s evidence - indeed she had been fulfilling her duty as junior counsel by taking a note of the proceedings and judgment.  Rule 16 of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 provides that “there shall be included in the Record the reasons given by the judge, or any of the judges, for or against any judgment pronounced in the course of the proceedings out of which the appeal arises”, and “Record” is defined in rule 1(1) as “the aggregate of papers relating to an appeal (including, inter alia, the judgments) proper to be laid before Her Majesty in Council on the hearing of the appeal”.  There can be no doubt that rule 16 was not complied with in the present case.   However, there is nothing in the rules which precludes their Lordships from looking at matter outside the record if the justice of the case so requires, and rule 83(1) expressly empowers the Registrar to give such directions in matters of practice and procedure as may be just and expedient and he may for sufficient cause shown excuse the parties from compliance with any of the requirements of the rules.   Rule 83(2) enables the Registrar to direct that any application for a direction or excusal under sub-rule 1 be dealt with by the Judicial Committee in open court.  On 3rd April 1998 the Registrar directed that Mrs. Bazard’s affidavit should be made available in court at the opening of the hearing and that their Lordships would then decide whether they wished to see it.

 

5. Of the cases to which their Lordships were referred on this issue two - Brown v. Gugy (1863) II Moore N.S. 341, 364 and Richer v. Voyer (1874) L.R. 5 P.C. 461, 481 - are undoubtedly authority for the proposition that reasons for a decision ought to be given publicly in open court, but did not go to the issue before their Lordships - whether their Lordships might look at outside evidence to see what those reasons were when they were not included in the record.  The third case - Logan v. The Queen [1996] AC 871 - is authority for the proposition that the Governor of a territory from which there is a right of appeal to the Privy Council has no right to curtail the rights of appeal given by the Judicial Committee Acts 1833 and 1844 and the Rules made thereunder, but this had no bearing on the issue before their Lordships - whether their Lordships, in the exercise of their judicial functions, might go outside the record to ascertain the reasons given by the court below for the decision under appeal.

 

6. Their Lordships were unable to find anything in the rules, or in the authorities, to preclude them from doing what the justice of the case so evidently required - to look at the affidavit of Mrs. Bazard to see what were the reasons given by the Court of Appeal.   Accordingly they did so.

 

7. The reasons as thus recorded are undoubtedly brief.   Nevertheless it is clear that in substance the Court of Appeal upheld the respondent’s grounds of appeal.  Thus:-

 

“The learned trial judge went outside the ambit on evidence.  He was relying on his knowledge to decide the issues of fact … The learned trial judge found negligence for which there was no evidence, e.g. speeding … Appeal allowed.  In the circumstances, the judgment is set aside and we enter judgment for the appellant [the Respondent] with costs to be taxed if not agreed.”

 

8. So the second issue before their Lordships is whether the Court of Appeal acted correctly in reversing the decision of the trial judge.  On this issue it is first necessary to consider the proceedings at first instance. The only witnesses who gave evidence relating to the circumstances of the accident were the appellant and the respondent.  The appellant, who was 22 years old at the time of the accident, said that he was not on the road at all at the time he was struck, but that the car came off the road and struck him.   He also said that it was dark in the area and that there were a few drops of rain.   The respondent said that the accident happened in the middle of the road, when he first saw the appellant right in front of his car and it was too late for him to avoid hitting the appellant although he braked and swerved; that it was raining heavily and that the street lights were on and that it was bright.  It was common ground that the accident happened late in the evening, although the parties were not agreed as to the precise time.  The judge rejected the appellant’s version and held, accepting the respondent’s evidence, that the accident occurred when the appellant was crossing Windsor Lane when it was unsafe to do so, and that he thereby “started, so to speak, a chain reaction”.  This was the basis of his finding of 40% contributory negligence on the part of the appellant.  The respondent had also given evidence that he had worked from 7.00 a.m. with breaks until roughly 9.00 p.m., when he started his journey home.   At the time of the accident he was travelling at 25 m.p.h. and when there was a bang he was looking at his speedometer.

 

9. The judge, after reviewing the evidence, referred to its paucity and in particular the absence of any “scene report” by the police and of other evidence of the kind usually given in running-down cases.   He continued:-

 

“Nonetheless there are some hard facts and inferences to point the way to a solution: Windsor Lane being a two-way street the defendant should reasonably have been driving on the left side of the median line.   The road, that is the tarmac part, as narrow as 12 feet in some parts and the defendant’s car being a 1979 Caprice Classic, much of that space would have been taken up by it; a speed of 25 miles per hour, the statutory maximum would not have been reasonable given the wet road with the possibility of poddles or water of unknown depth and random locations, the rain which he himself described as ‘hard’ and the area being heavily residential, with buildings abutting on or within few exceptions a few feet from the road. Additionally, there were some roads on either side. In so finding, I have allowed for the fact that the time was, as I find more likely between 9:30 and 10:15 and though I do [not?] think it a point of any great importance, the later it was the more likely it is that the defendant would have been hurrying home.   He had had a hard day; he would probably have had to be at work for 7.00 a.m. the following day; there would thus be  little rest, relaxation and sleep.   Be that as it may, on the whole of the evidence my finding is that he was driving at a speed in excess of 25 m.p.h. which in the circumstances cannot be excusable … That brings me to three points:  two tangential, so I do not dwell on them, and the other not.   The defendant volunteered, though more perhaps out of a sense of propriety, since he was living with his ‘in-laws’ that he was then ‘getting ready to get married’.  It may well be therefore that as he hurried homewards, his mind was not, colloquially put, ‘all there’.   Secondly, it is an unmistakable fact of which I may take judicial notice that there are speed bumps cross Windsor Lane now and that such while generally placed after a problem, such as persistent driving at excessive speed develops, there is evidence from the plaintiff of them being put there after this accident.”

 

10. The Record contains a full transcript of the evidence given at the trial.   There was no evidence before the judge that entitled him to find as a fact that the respondent was driving at a speed in excess of 25 m.p.h. and Mr. Berthan Macaulay, Q.C., counsel for the appellant before their Lordships, conceded that the judge was wrong to make this finding.   There was no evidence before the judge that the condition of the road at the time of the accident required particular care on the part of a car driver: indeed there was no evidence about the state of the tarmac, about “poddles or water of unknown depth” or that the area was “heavily residential”.   The judge’s finding that the respondent drove, because of the width of the car and road, across the median line, was dependent upon the judge identifying exactly the width of Windsor Lane at the location of the accident.   This was not done.   It was not suggested to the respondent, either in cross-examination, or by the court, that his mind was not “all there” at the time of the accident because he was getting ready to get married.   There was no evidence that the erection of speed bumps in Windsor Lane was related to the accident.

 

11. It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice.   Whether a state of local affairs is of sufficient notoriety to be a matter of judicial notice is something which is best decided by a local court;  here the Court of Appeal expressly stated that the judge “was relying on his knowledge to decide the issues of fact”.

 

12. It is well established that an appellate court should not disturb the findings of fact of the trial judge when his findings depend upon his assessment of the credibility of the witnesses, which he has had the advantage of seeing and hearing - an advantage denied to the appellate court.   However, when the question is what inferences are to be drawn from specific facts an appellate court is in as good a position to evaluate the evidence as the trial judge - see Dominion Trust Company v. New York Life Insurance Co. [1919] AC 254; Benmax v. Austin Motor Co. Ltd. [1955] 1 All E.R. 326; Whitehouse v. Jordan [1981] 1 WLR 246, at pp. 249, 252, 263 and 269.   The cases to which their Lordships were referred by counsel for the appellant were all cases where an appellate court had sought to disturb a finding of primary fact depending upon the trial judge’s assessment of the credibility of the witnesses.   This was not what happened in the present case: indeed on the most important question - the circumstances of the accident - the judge rejected the evidence of the appellant and accepted the respondent as a credible witness.

 

13. Counsel for the appellant also submitted that, by pleading contributory negligence in his defence, the respondent had accepted that he had been negligent. The plea of contributory negligence was in the alternative; there is nothing in this point.

 

14. In these circumstances it was fully open to the Court of Appeal to reject the judge’s finding of negligence on the part of the respondent, based as it was in part on findings of fact for which there was no evidence, in part on the judge’s inadmissible use of his own knowledge and in part on inferences which the Court of Appeal did not have to accept.   For these reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed.   However, in the light of the particular circumstances of the appellant, their Lordships do not think it appropriate to make any order as to the costs of the appeal.

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              Dissenting judgment delivered by Lord Hutton

 

15. I regret that I am unable to agree with the majority judgment.

 

16. The learned trial judge said in his judgment:-

 

“… on the whole of the evidence my finding is that [the defendant] was driving at a speed in excess of 25 m.p.h. which in the circumstances cannot be excusable.”

 

17. Counsel's note of the judgment of the Court of Appeal is as follows:-

"The issues have been sufficiently aired.  The learned trial judge went outside the ambit on evidence.  He was relying on his knowledge to decide the issues of fact.

 

The case as pleaded by the plaintiff/respondent is that he was walking along Windsor Lane.  When the evidence came up, he was standing off the road surface altogether and the car hit him and threw him 16-18 feet.

 

If the Court accepted this, res ipsa loquitur.  The defendant/appellant gave a completely different case.  He was driving, it was raining heavily and he was not exceeding the speed limit.  He had his bright lights on when the respondent suddenly appears and he saw him 6 feet away, saw him, swerved, knocked him down some 6 feet away.

 

The learned trial judge found negligence for which there was no evidence .e.g. speeding.  If the evidence was that he saw a man 6 feet away and stopped within 6 feet, there is no element of speed.

 

As regards the law, we refer to the 1993 White Book, page 290 Order 18/7/5 and Bigham’s Motor Claims Cases 7th Edition."

 

18. I consider that the main ground on which the Court of Appeal allowed the appeal was that:-

 

"The learned trial judge found negligence for which there was no evidence e.g. speeding.  If the evidence was that he saw a man 6 feet away and stopped within 6 feet, there is no element of speed."

 

19. If it were correct that the only ground on which the trial judge had found negligence was that the defendant had been speeding in that he had exceeded the speed limit of 25 m.p.h., I would agree that there was no evidence of driving in excess of 25 m.p.h. and that the Court of Appeal would have been correct to allow the appeal.  But I consider that there were other grounds set out expressly or impliedly in his judgment which led the trial judge to conclude that the defendant had been guilty of negligence, notwithstanding the contributory negligence on the part of the plaintiff.  These grounds were as follows:-

 

1.The defendant had failed to keep a proper lookout on a dark wet night in a residential area.  In his judgment the judge summarised the defendant's evidence as follows:-

 

"He drove at 25 miles per hour, taking extra care because of the rain.  When the plaintiff `run straight out in front of his car' he swang `right a little bit from hitting him, but eventually, it was wet and [he] hit him'.  The hitting happened in the middle of the road, he had not seen the [plaintiff] before then and could not say from where he had come."

 

20. The transcript of the last line of this passage of the judgment reads:-

"The hitting happened in the middle of the road, he had not seen the defendant before then and could not say from where he had come."

 

but I think it is clear that the judge said or meant to say:-

"The hitting happened in the middle of the road, he had not seen the plaintiff before then and could not say from where he had come."

 

21. I consider this to be clear because the following evidence was given by the defendant in examination-in-chief:-

"Q.Now, before the accident, did you see him at all?

 

A.No, I didn't see him at all.

 

Q.Are you able to say with any degree of certainly where he came from?

 

 A.Well, no, not really, not really.  No, I didn't see him."

 

22. And in his cross-examination the defendant said:-

 

"Q.Thank you.  Now, when you first saw Dwight Saunders, how far away was he from you?

 

A.When I first saw Dwight Saunders - when I first saw Dwight Saunders, he was out in front of car."

 

23. The judge said:-

 

“In the result, the plaintiff by proceeding to cross Windsor Lane when it was unsafe to do so, started, so to speak, a chain reaction.  To the dangerous but reasonably foreseeable situation thus created, the defendant’s reactions, had he been driving with the degree of care demanded of him, could have and should have provided an escape.  They did not; he is therefore liable.”

 

24. A motorist will not be guilty of negligence if, whilst keeping a proper lookout and driving at a proper speed, a pedestrian runs out in front of his car and he has no opportunity to avoid striking him.  As the Court of Appeal held in Brophy v. Shaw (The Times, 25th June 1965) a driver is not under a duty to be a perfectionist. But if a motorist admits, as did the defendant in this case, that he did not see a pedestrian at all until he was in front of his car and did not see where he came from, I consider that there is material on which the trial judge can find negligence in failing to keep a proper lookout. 

 

2.In addition to finding that the defendant was driving in excess of 25 m.p.h. (which the judge was not entitled to find), the judge also held that in the conditions prevailing at the time of the accident it would not have been reasonable to drive at a speed of 25 m.p.h., the speed at which the defendant said he was driving.  The judge said:-

 

"The road, that is the tarmac part, as narrow as 12 feet in some parts and the defendant's car being a 1979 Caprice Classic, much of that space would have been taken up by it; a speed of 25 miles per hour, the statutory maximum would not have been reasonable given the wet road with the possibility of poddles or water of unknown depth and random locations, the rain which he himself described as `hard' and the area being heavily residential, with buildings abutting on or within with few acceptions a few feet from the road.  Additionally, there were some side roads on either side."

 

3.The judge also found that the defendant had been negligent in that he had said that at the time of the accident he was looking at his speedometer.  The judge said:-

 

"For a final instance of his negligence, a final answer about what he was doing at the time of the accident, given by him in cross-examination is more believable than not and therefore tellingly against him.  I refer, of course to: `I was looking at my speedometer'. There is no reason to suppose that he did not understand the question, no reason from his tone, intonetion and demeanor to suppose he answered rehetorically.  I say so despite his saying immediately after that he had no need to, and though it seems plain that one reason for his earlier statement that he had looked at his speedometer just before the accident was to lend credibility to his evidence of travelling at 25 miles per hour."

 

    Therefore I consider that the Court of Appeal erred in ignoring these three findings as to negligence made by the trial judge which I think it was open to him to make.

 

    It appears that the Court of Appeal was also influenced by the consideration that the case made by the plaintiff was that he was walking along the side of Windsor Lane, off the road surface altogether, when the defendant struck him.  The statement of claim pleaded that "the Plaintiff was walking along Windsor Lane in the Southern District of the Island of New Providence when he was struck and knocked down by a motor car driven by the Defendant".  It is clear that this was the case made in his evidence by the plaintiff and that the judge disbelieved him and found that he was running across the road when the defendant struck him.  But one of the particulars of negligence was "Failing to keep any or any proper look out or to observe or heed the Plaintiff".

 

    In my opinion, if the trial judge was entitled to find that the defendant was failing to keep a proper look out, the plaintiff's claim should not be dismissed because the judge found that he was struck when he was running across the road rather than walking along the side of it as he alleged.  As Lord Guest stated in John G. Stein & Co. Ltd. v. O'Hanlon [1965] A.C. 890, 909E:-

 

"Although this finding was to some extent a variation or modification of the respondent's case on record, it was based upon the same ground of fault and it related to the facts as found by the Lord Ordinary upon evidence properly before him.  There was not, in my view, such a radical departure from the case averred on record as would justify the House in absolving the appellants from liability. The test was well expressed by Lord Justice-Clerk Thomson in words which I should like to adopt when he said in Burns v. Dixon's Iron Works Ltd. [1961] S.C. 102, 107-108: `The court is often charitable to records and is slow to overturn verdicts on technical grounds. But when a pursuer fails completely to substantiate the only grounds of fault averred, and seeks to justify his verdict on a ground which is not just a variation, modification or development of what is averred but is something which is new, separate, and distinct, we are not in the realm of technicality'."

 

    The Court of Appeal also held that the trial judge went outside the ambit of the evidence and relied on his local knowledge to decide the issues of fact.  The Court of Appeal was presumably referring to the points that the judge made with reference to the conditions of the road and the possibility of puddles of water of unknown depth and the area being heavily residential.  But I do not consider that this, in isolation, would have been a sufficient ground on which to set aside the judge's finding of negligence.

 

    There are two lines of authority as to the circumstances in which an appellate court is entitled to set aside the finding of a trial judge.  If the decision depends upon the judge believing one party as opposed to the other, an appellate court should be very slow to set aside the decision because the judge has had the great advantage of seeing and hearing the witnesses: see per Lord Shaw in Clarke v. Edinburgh Tramways Co. [1919] SC (HL) 35, 36.  The other line of authority states that where there is no question of the credibility of witnesses but the sole question is a proper inference to be drawn from specific facts which cannot be in dispute, the appellate court is in as good a position as the trial judge to form its own independent judgment: see Benmax v. Austin Motor Co. Ltd. [1955] 1 All E.R. 326, Whitehouse v. Jordon [1981] 1 WLR 246.

 

    I consider that the present case does not fall squarely within the latter principle because, although the judge disbelieved the plaintiff's account, I think it is also clear that he formed an unfavourable view of the credibility of the defendant and that this view influenced his decision. There are places in the transcript of the defendant's evidence where the judge intervened and where it is clear that he was unimpressed by the defendant's answers. 

 

    Therefore I consider that this was a case where the Court of Appeal should have given more weight than it did to the advantages which the judge had in seeing and hearing the defendant giving evidence. 

 

    Therefore for the reasons I have given I consider that the Court of Appeal was in error in setting aside the finding of the trial judge that the defendant had been guilty of negligence.  However, in relation to the plaintiff’s contributory negligence in running across the road in front of the defendant’s car, I consider that his share in the responsibility for the accident was more than 40 per cent as found by the trial judge and I would assess his share of the blame as 60 per cent.

 

    Accordingly for the reasons I have given I would have humbly advised Her Majesty to allow the appeal and restore the order of the trial judge, save that the damages be reduced by 60 per cent in place of 40 per cent in respect of contributory negligence.

 

© CROWN COPYRIGHT as at the date of judgment.