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Cite as: [2009] EWCA Civ 931

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Neutral Citation Number: [2009] EWCA Civ 931
Case No: B3/2008/2562


Royal Courts of Justice
Strand, London, WC2A 2LL
4th June 2009

B e f o r e :




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Mr M Willems (instructed by Halliwells LLP) appeared on behalf of the Appellant.
Mr R Pershad (instructed by Messrs Biscoes) appeared on behalf of the Respondents.



Crown Copyright ©

    Lord Justice Ward:

  1. On the night of 2 July 2003, which is now quite a long time ago, the first defendant, Mr Myles O'Kane, met with -- and met for the first time -- the claimant, Miss Hamilton, at a party in a public house in Portsmouth. A good deal of drink was consumed and the night ended with the couple returning to Mr O'Kane's home and spending a night of sweet dalliance together.
  2. The claimant is, or was, a Leading Air Engineering Mechanic serving in the Royal Navy based in Portsmouth. It was too late for her to get home after the party. They made arrangements for her to be collected by taxi from Fareham where Mr O'Kane lived, but the taxi did not arrive. She was potentially in trouble as being late and absent without leave and, probably a bit stupidly, but no doubt gallantly, Mr O'Kane drove her to the naval base in Portsmouth. He should not have done so because he was at the time still suffering the excesses of the previous night's jollity. He was in a state where he was not fit to drive because his alcohol level was 110 milligrammes per 100 millilitres of blood, which is 30 milligrammes over the limit.
  3. He offered to drive her home as the pillion passenger on his motorbike. He is an experienced motor cyclist, has travelled for years on his motorbike, and he says that he had not had a previous accident before the events that were later that morning to befall him and befall poor Miss Hamilton.
  4. They drove along a route with which he was familiar, having used it for the previous nine months. It involved his driving through a residential area of Portchester, travelling east along Leith Avenue to get her back to the base. Near the junction with Collington Avenue Mrs Perry was travelling in a northerly direction. So the approaching motor cyclist would have been coming from her left, the motor cyclist would have seen her, or should have seen her, on his right. Travelling in the opposite direction to the motor cyclist was a vehicle driven by a Mrs Boxall. There was a collision at or near that junction, as a result of which Miss Hamilton was very badly injured and so brought a claim for damages for those personal injuries joining Mr O'Kane as the first defendant and Mrs Perry as the second defendant. That action was tried five years after the event on Monday and Tuesday 6 and 7 October 2008 in the Southampton County Court before Mr Recorder Gardner QC. He found the claimant's claim to be proved against both defendants and he apportioned the liability between them as to 80% responsibility for Mr O'Kane and 20% against Mrs Perry. Mr O'Kane, the first defendant, now appeals that assessment of his responsibility.
  5. In a nutshell, the evidence led before the judge, over the course of a day, was to this effect: The claimant, whom he described as being extremely nervous when giving evidence, had a brief pre accident recollection, and she explained that they were driving along the middle of the road. She said she had seen the Mitsubishi 4 x 4 truck being driven by the second defendant on her right. She sensed something awful was going to happen and there was a collision between the car and her right leg, which was pretty hideously fractured. She was of the view that the Mitsubishi had not stopped before emerging from what was a minor road, Collington Avenue, onto the major road, Leith Avenue.
  6. As for the first defendant, he could really only speak of his normal practice for he had suffered bad injuries which led to amnesia and he had no recollection of the accident at all. Mrs Perry, the second defendant, was found to be entirely honest. She lived in the vicinity, she used the roads regularly and she said that she had stopped at the junction, looked right and left, thought it was safe, but did not see the motorcycle at all until it was about some ten feet away from her. She could not explain why she had not seen it earlier.
  7. Mrs Boxall, described as an entirely independent and careful witness, explained that she had seen the defendant's motorcycle suddenly veering into the middle of the road, as if it had pulled out too early to avoid a parked white car on its nearside, and she attributed the cause of the action entirely to that exaggerated manoeuvre.
  8. The judge came to these conclusions, expressed in a judgment which is barely four and a bit pages long, which is admirable in so many respects but sometimes causes difficulty as the microscope of forensic analysis is taken to it and, sometimes unnecessarily, taken to these extempory judgments. He said this:
  9. "15. What conclusions then should I draw from this evidence? The most obvious conclusion is that the first defendant should not have been riding his motorcycle at all that morning and indeed would not have been doing so but for the claimant's anxiety to get back to work. He was still well over the legal limit for riding and, although the claimant said that his riding before the collision had been unremarkable, there was obviously a potential for his judgment to be impaired. Secondly, he should not have been riding at the speed limit along that road where the width was restricted by parked cars and there was a potential that vehicles would emerge onto it from the sideroads. Further, I do not accept that he was entitled to ride along the centre of the road when it was possible for him to ride safely past vehicles on his nearside, including the parked white car, without doing so, as the experts agreed.
    16. In these circumstances I consider that I should accept as accurate the observation of Mrs Boxall of a rider who was going too fast, making an error of judgment in the form of an exaggerated and unnecessary swerve to pass a parked car.
    17. As for the second defendant's failure to observe the motorcycle before she did so, I conclude that this was because she simply did not look or looked insufficiently to her left prior to emerging. Having seen her give evidence, I accept that she stopped prior to moving out and prefer her evidence to the impression of that of the claimant, which I believe would only have been fleeting. She in effect was aware of the need to brake or swerve, but that need arose in any event from being the first defendant swerve to his right towards an emerging vehicle.
    18. I believe that the second defendant, had she seen the motorcycle, as she should have done, whether or not it was displaying a headlight, would have waited for it to pass, even if it was on its correct side of the road or near the crown of the road. However, I am quite satisfied that the lion's share of the blame for this accident lies with the actions of the first defendant in riding onto the wrong side (unnecessarily and too fast) of the roadway into collision with the Mitsubishi.
    19. In all the circumstances I apportion blame as against the first defendant as 80 per cent and as against the second defendant as 20 per cent."
  10. The appeal against those findings was extremely well advanced by Mr Marc Willems on the appellant's behalf, and I pause to pay my tribute to both counsel for their very compelling and (for me it is always important) their charming and good natured advocacy.
  11. Taking his points in reverse order: He challenged the two findings of fact made by the judge that the first defendant had swerved into the path of the emerging motorcar; and secondly, that the second defendant had stopped. Dealing then with the swerve, the essence of his submission was that the swerve described by Mrs Boxall was unexplained and therefore unlikely; there was no apparent reason for that exaggerated manoeuvre. It is admitted it was contrary to the claimant's evidence with which the judge did not expressly agree. He submitted that the drawing made by Mrs Boxall and indeed her evidence were exaggerated, and that her evidence was punctuated by a number of errors which the judge ought to have taken into account in coming to his conclusion about her credibility. Those errors were that she failed to acknowledge that the motorcar was at fault in any way at all. She at one point described the parked Saab motorcar as being totally in the road, whereas it can be seen from the contemporaneous police photographs and, as she acknowledged, it was parked on the kerb, so half on the road and half on the kerb. A third error was that she described it in one of her early statements as being just past the junction when in fact it would have been on her side of the junction. She fourthly wrongly described the point of damage to the motorcar as being on its nearside, and -- I hope she will forgive me if I simply repeat her own evidence -- she does not very clearly know her left hand from her right hand, as she acknowledged. The damage was to the offside of the Mitsubishi, striking the motorbike in the middle, striking indeed probably the claimant's leg.
  12. He criticised also the fact that she gave evidence of either thinking or of saying to her passenger as she observed this manoeuvre -- "what's he doing?" -- and the challenge to that was that all of this happened in the blink of an eye and it would not have been likely for her to have made that observation. Mr Rohan Pershad, for the respondent, in his equally compelling submissions, points to the fact that, in her statement made on the very day of the accident, Mrs Boxall described the events as follows. Reading slightly more than is necessary for the point I am making, she said that she saw:
  13. "…a two ton 4 x 4 truck appear at the junction of Collington Road, pulling out to turn left onto the main road ahead of me (the junction was on my left as I travelled west). I then saw a motorcycle travelling towards me from the opposite direction. I couldn't tell what speed he was travelling in, but I don't think he had his headlight on. I have no idea how far the motorcycle was from the junction, but it suddenly veered out into the middle of the road, slightly over the centre of the road, although I can't remember seeing road markings. As if an exaggerated swerve to avoid the parked car. It seemed an unnecessary manoeuvre as the motorcycle was some distance away from the parked [car]."
  14. Mr Pershad draws our attention to the fact that, despite the good cross-examination, she stuck to her guns, and consequently his submission was reduced to the simple but frequently conclusive submission that, where a judge has seen and heard the witnesses give evidence, the judge has the unique opportunity to assess credibility and that the Court of Appeal denied that advantage should be very slow indeed to interfere. The judge accepted the evidence of Mrs Boxall, as is plain from his judgment, and, despite the attack upon her credibility made by Mr Willems to us but made during the course of what I have no doubt would have been his equally persuasive submissions to the judge, I am afraid they found no muster with the judge and they are not, in my judgment, sufficient for us to interfere with that finding of fact.
  15. The second challenge to findings of fact led to the finding that the second defendant stopped at the junction. Here the attack was to this effect: that the judge had really misunderstood the evidence of the claimant and had wrongly summarised it, making the point during the course of submissions that the claimant had described the events as follows:
  16. "I know I saw something on my -- no, that is nearside because that is why we pulled out. Whether it was a car or something else I do not know. I believe it was positioned close to the junction. There is something about the approach of the Mitsubishi I did not like. I think it was moving quickly. I do not recall speaking to the police and saying that she just pulled out and we hit it. It seemed to come from the right quite quickly. I clenched my legs. I felt threatened. I thought I would head-butt the rider."
  17. Mr Willems points out that in her evidence she was at times much more emphatic in saying that she saw the Mitsubishi as it approached the junction and that she therefore had a clear view of it and a clear view of it not stopping. His criticism is that the judge did not properly record that part of her evidence or give reason for not accepting it. Mr Pershad's submissions to the contrary are that, in her first four statements made at varying times from within days of the accident to her last written statement, she referred only to seeing the vehicle driving out of the sideroad, emerging from the sideroad; and only in her last witness statement did she state that she had seen it "approaching the junction quite quickly". Mr Pershad points out, moreover, that in that final witness statement she describes her opportunity to make her observations as being those lasting a split second.
  18. Given that that was the evidence in that statement, it seems to me that there is ample justification for the judge to dismiss that evidence, for the judge clearly preferred the evidence of Mrs Perry. Having seen her give evidence he said, "I accept that she stopped", and preferred her evidence to the impression of the claimant, which I believe would only have been fleeting. What the judge was there saying was that time was so short that she would not have had more than a fleeting impression; and, given the split second to which she referred, that was a finding that he was entitled to make. Once again he had the benefit of seeing these two ladies give their evidence, and this court cannot interfere because it might take a different view of various criticisms that could be made of one or the other. It is peculiarly for the judge, and I would uphold his finding in that respect.
  19. So that leaves what, in fairness to Mr Willems, was his main submission in his oral argument to us today, namely that the judge erred in his apportionment of liability.
  20. I find this part of the judgment troublesome in several respects. I am well aware that it was an extempory judgment; that one must not rake over it with a toothcomb; one must give proper respect to the conclusions of a trial judge. As Mr Pershad submits, it is a judgment of the kind being given in county courts up and down the country every week. What troubles me is to be clear about the findings of contributory negligence which the judge made against the first defendant. In paragraph 15 he asked what conclusions he should draw from the evidence; and he seemed, as I read at paragraph 15, to make for three conclusions.
  21. The first and the most obvious conclusion was that the defendant should not have been riding his motorcycle that morning at all, and he acknowledged that he would not have done so but to assist the claimant get back to work. That was, of course, because he was still over the drink driving limit. And so he concluded "there was obviously a potential for his judgment to be impaired".
  22. Taken at face value, that of course is a statement of the obvious. But the judge did not go on to explain whether the potential was realised in any way in the events which had unfolded that day. He did not expressly relate it to the swerve and the judgment leaves that matter somewhat in the air. I will return to it again in a moment.
  23. The second conclusion was that he should not have been riding at the speed limit along the road which was restricted by parked cars and where there was a potential that vehicles would emerge onto it from the sideroads. Now the evidence on that was sparse. The first defendant could only speak of his normal speed, which he would put at 25 to 28 miles an hour along that particular road, but accepted it would have been higher because he was probably anxious to get the claimant back to base. The evidence, as I understand, comes from the agreed report of the experts, who both conclude that he was travelling at about 30 miles an hour at the time of the accident. My concern is as to the causative potency of speed, and again I will look at that in detail.
  24. Then there was what can only be a third conclusion. I do not accept that he was entitled to ride along the centre of the road when it was possible for him to ride safely past the vehicles on the nearside. I think we have all been confused by exactly what the judge was intending to convey by that observation. It is possible to conclude that he was in fact finding that he had been driving along the centre of the road as he said. It only makes sense to condemn him for not being entitled along the centre of the road if he was in fact doing so, but then if he was driving along the centre of the road that casts, in considerable doubt, the evidence of Mrs Boxall in her description of this exaggerated swerve, because the agreed facts are, among others, that the point of impact was no more than 20 to 40 centimetres over the imaginary white line; and, as I pointed out in the course of argument, a sheet of A4 is something over 20 centimetres in width, so we are not talking about vast distances if that was properly to describe a swerve.
  25. Since he goes on to accept the evidence of Mrs Boxall, he must by implication be accepting the whole of her evidence that he was driving along in the middle of his carriageway, hence the exaggerated appearance of the swerve as she saw it; so I remain confused as to the judge's finding in that respect. Those seem to be the judge's conclusions on the first defendant's negligence.
  26. As for the second defendant, he concluded that she simply did not look or look sufficiently before emerging. And so his conclusion is expressed in paragraph 18, which I have already recited, that if the second defendant had seen the motorcycle (as she should have done) she would have waited for it to pass; but he went on to say that the lion's share lies with the actions of the first defendant in riding onto the wrong side (unnecessarily and too fast) of the roadway into collision with the Mitsubishi. In that paragraph and in that sentence, the contributory negligence he finds were his driving onto the wrong side of the road -- which he described as unnecessary -- and his driving too fast. In the light of his finding, the fact that this swerve did take place and the fact that the point of impact was on the wrong side of the road so far as the first defendant was concerned, he clearly was at fault. I, for my part, remain unpersuaded that, in the circumstances of this case, speed is of causative importance for this reason. There is no evidence that speed contributed to the exaggerated manoeuvre and, when the judge makes his final assessment of it, he described it in paragraph 16 as an error of judgment, and that does not seem to me to tie in convincingly with a finding that speed in some way contributed to the collision.
  27. Still less in paragraph 18 does the judge link driving over the limit as having any causative impact for contributory negligence purposes. He limits the negligence to driving on the wrong side and too fast, and for my part I agree with that limited assessment; there is a respondent's notice calling upon us to make additional findings in favour of the second defendant if they were not made by the judge. I do not feel in a position to make those findings, not having heard the whole of the evidence, but, having read the statement of the claimant, it seems to me that it cannot be dismissed out of hand and had to have been dealt with by the judge. She said this in the statement she made to the police on 25 July:
  28. "I had had some experience of riding motorcycles and had passed the part 1 CBT part of the motorcycle test. I would consider myself relatively experienced as a pillion passenger and I am more than happy as a pillion as long as I have confidence in the rider. On the morning of the incident we left Miles's house and road along roads which were unfamiliar to me, and had been riding for about 15 to 20 minutes before the incident occurred. During that time Miles had to negotiate at least a couple of roundabouts and he was driving safely and within the speed limit. I felt comfortable on the back of the bike."
  29. She repeated that evidence under cross-examination. Asked:
  30. "Q. Did the driving of Mr O'Kane appear to be affected by the fact that he was actually over the alcohol limit?
    A. No. I have no problem whatsoever being on the back of the bike. I didn't feel any unease or -- I was quite comfortable."

    And she repeated that she had 15 to 20 minutes of experience of his driving.

  31. There was therefore nothing in the history of that journey to suggest an impairment of driving ability through drink, although it is a fact that drink does affect or can affect one's ability to drive. The swerve could have been linked to the effect of alcohol, but it is described merely as an error of judgment and it is equally possible that the swerve and extraordinary manoeuvre was as much due to "momentary inattention", which is the characterisation Mr Pershad gives to the driving of the second defendant as an explanation for her failure to see the oncoming motorcycle at all until 10 feet before the collision.
  32. In my judgment, the stark facts are that the second defendant did not keep a proper lookout. She acknowledges that if she had seen the motorcyclist she would not have emerged; she would have waited for him those necessary few seconds to go by; thus the accident would not have happened had she kept a proper lookout. Equally so, the accident would not have happened if Mr O'Kane had kept his motorcycle on the right side of the road. Both were to blame, as is obvious from the finding of contributory negligence; but in my judgment the judge erred to an extent that compels interference by this court, which would not ordinarily tamper with findings of contributory negligence. He erred because he failed to give sufficient weight to his own finding that the accident would not have happened if the second defendant, whose duty it was not to emerge from a minor road onto a major road unless it was clear and safe for her to do so. She failed in that. She was, one might think, primarily to blame, because she emerges from the minor road onto the major road; but, because the first defendant swerved across to an extent of 20 or 40 centimetres or whatever, he played his part in the causation of this accident. In terms of blameworthiness, I cannot separate them. In terms of their causative effect of their driving, I cannot separate them. In my judgment, the proper finding of contributory negligence would be to apportion it equally between them, and I find that the judge erred in not doing so. I would allow the appeal accordingly.
  33. Lord Justice Wilson:

  34. I agree. We must, so I am persuaded by Mr Pershad on behalf of Mrs Perry, proceed on the basis that the recorder was entitled to find that Mr O'Kane had perpetrated an exaggerated and unnecessary swerve to his right at the time when (or just before) Mrs Perry pulled out of the side road into the junction. Mr Pershad also persuades me that the recorder was entitled to find that Mrs Perry had stopped at the junction before emerging from it and that the causative negligence of which she was guilty was therefore only a failure to keep a proper lookout for traffic coming from her left as she emerged. But, in assessing relative responsibilities for the injuries suffered by the claimant, Ms Hamilton, what did the recorder properly have to weigh beyond Mr O'Kane's exaggerated and unnecessary swerve, on the one hand, and Mrs Perry's failure to keep a proper lookout, on the other?
  35. It is clear that the recorder did regard himself as having more material than that. He purported to marshal it in paragraph 15 of his judgment, which my Lord has read. The recorder there made three points: first, that Mr O'Kane was over the drink drive limit; second, that Mr O'Kane was riding at a speed of 30 miles per hour; and third, that Mr O'Kane was "not entitled" to ride along the centre of the road.
  36. In relation to the recorder's first two points, the question arises, as my Lord has explained: what was the causative potency of them? In attempting to respond to that question, Mr Pershad first suggested that the excess drink and the speed represented what he called "a course of conduct" which the recorder was entitled to take into account. I do not understand how a course of conduct can logically be said to answer a question as to how a collision occurred. Mr Pershad then suggested that Mr O'Kane's exaggerated and unnecessary swerve represented a "loss of control" on his part, indeed attributable to the combination of drink and/or of speed. The phrase "loss of control" is that of Mr Pershad; it is not to be found in the evidence before the recorder or in the judgment which he delivered; and, with respect, I regard the phrase as inapt. I could not accept in any way that it is an inevitable inference from a violent and unexpected swerve that the driver has lost control. More important, because it rises above semantics, is the fact that, even if drink and/or speed did contribute to or precipitate the swerve, all that you have in the end, in terms of causation, is that swerve.
  37. So, in my view, without the recorder's having given a far fuller explanation of the relevance of drink and/or of speed (and, in view of Mr Pershad's respondent's notice, I should add that I do not consider that, by reference to the evidence, we are ourselves able to supply such an explanation), I feel driven to conclude that, in the weighing of respective responsibilities, the recorder added into the exercise two further factors of causative irrelevance.
  38. The recorder's third factor was, of course, that Mr O'Kane was "not entitled to" ride along the centre of the road. To my mind, this was clearly a finding, in accordance with Mr O'Kane's own evidence as to his driving habits, that he was driving along the centre of the road. Mr Pershad's reliance on the word used by the recorder, namely "entitled", as suggesting that the recorder was not finding that Mr O'Kane was actually riding along the centre of the road, seems to me entirely artificial. In this paragraph the recorder was not addressing entitlements in principle but purporting to address the circumstances of the case. Thus, as I have said, the recorder's third conclusion is patently that Mr O'Kane was driving in the centre of the road.
  39. As my Lord has explained, the problem in this regard is that that finding or conclusion was totally inconsistent with the evidence of Mrs Boxall that Mr O'Kane made his swerve not from the centre of the road but into the centre of the road. An allied problem is that, if Mr O'Kane was driving in the centre of the road and then swerved out to the right, the collision would not have taken place where it did, virtually in the centre of the road.
  40. So, for reasons different from those which I have articulated in respect of his first two conclusions, I find myself again unable to endorse the third and last of the recorder's apparently central conclusions.
  41. For those reasons, which are, as I well appreciate, those which have just in effect been articulated, and better articulated, by my Lord, I am satisfied that the recorder's apportionment of responsibility was flawed. The balancing of the relevant factors, in my view, clearly militates towards the disposal which my Lord has proposed.
  42. Lord Justice Rimer:

  43. I agree with both judgments.
  44. Order: Appeal allowed

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