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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> King v Chang [2001] EWCA Civ 88 (19 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/88.html Cite as: [2001] EWCA Civ 88

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEYMOUTH COUNTY COURT
(His Honour Judge Lauriston QC)

		Royal Courts of Justice Strand London WC2 Friday 19th January, 2001

1. LORD JUSTICE ALDOUS: I will ask Sir Anthony Evans to give the first judgment.
2. SIR ANTHONY EVANS: This is an application for permission to appeal and for an extension of time within which to do so, from a judgment given by His Honour Judge Lauriston QC in the Weymouth County Court on 9th December 1998.
3. The applications are dated 10th February 2000. The explanation for the delay which occurred is given at page 9 of our bundle. I need not quote it. These grounds do not appear to justify such a long extension of time. But in view of the importance of this matter to the claimant, Timothy Charles King, I propose to consider his application for permission to appeal on its merits before returning, if necessary, to consider whether an extension of time should be allowed or not.
4. Turning therefore to the application for permission to appeal. This was adjourned by Lady Justice Hale on 15th November 2000 and now comes before us on an oral hearing. The application has not been made by the claimant, Timothy Charles King, but by his father, Mr Albert King, who has in fact played a large part in these proceedings acting on his son's behalf. Today Mr King senior told us that his son, the claimant, is unwell. He says that he is in a deep sleep from which he cannot be roused. In the circumstances my Lord gave him, Mr King senior, leave to make this application on behalf of his son.
5. The background to the matter is a road accident which occurred on 9th March 1992. The claimant, who was then aged 14, was riding his bicycle along Dorchester Road, Weymouth, and he came into collision with a Mercedes estate car driven by the defendant. The consequences were serious for the claimant, but fortunately his physical injuries were not fatal and he has since recovered from them. He was thrown onto the bonnet and windscreen of the car and then onto the road. His bicycle was run over by the car and came to rest in front of or under the rear offside wheel. The road is straight. The time was 4.30 on a March afternoon. The weather conditions were dry and the visibility was normal. Both the bicycle and the car were proceeding northwards up the road.
6. There is a possibility raised by Mr King senior that the shadow cast by some oak trees, if there was a bright sun that afternoon, may have affected the visibility of the driver or the claimant at the time. But he accepts, as I understand it, that neither the driver nor the claimant ever did assert that their visibility had been affected in that way.
7. Just where the collision occurred - and I put it that way because Mr King senior raises a question as to the precise spot where the collision occurred - there is a right-hand turning to the east from Dorchester Road into Weymouth Bay Avenue. The claimant said that he intended to turn right at that junction, that he moved to the centre of the road signalling his intention to do so and that before that he had stopped and looked back and seen traffic including the defendant's car some good way, perhaps 250 yards, behind him which presented no hazard to him. Therefore, he set out towards the centre of the road to turn right and at that point the defendant's car struck him from behind. The cause (he says) was the defendant's failure to keep a proper look-out.
8. There is a suggestion in that allegation that the defendant was driving at an excessive speed, as he would have had to do in order to cover a distance of, say, 250 yards in the short time between the claimant's seeing him at that distance and then colliding with him.
9. The defendant said that he saw the claimant peddling hard on his bicycle when he came up behind him. To be sure that it was safe to overtake, he made allowance for a good clearance and began to overtake him when suddenly, without any warning of any kind, the cyclist swerved towards the centre of the road immediately in front of the car, making the collision inevitable.
10. On the evidence, as Mr King senior accepts, there is no question of excessive speed. There was independent evidence that the speed of the car was, at most, 30 miles an hour and indeed the Mercedes car stopped within a very short distance when the impact occurred. The claimant's physical injuries were serious, but he recovered from them. What is alleged is that there were serious mental or psychiatric damage as a result of this unfortunate accident.
11. These proceedings were started on 14th October 1995 when the claimant was still a minor, so that he acted by his father and next friend, Albert King.
12. The Particulars of Claim refer to two medical reports. There is a claim for damages and in a letter written much later, in September 1998, immediately before the trial, it was suggested that the total claim for damages amounted to £1,517,318. The allegation is that the claimant suffered severe psychiatric injury, resulting in loss of career prospects, whether as a barrister, as a solicitor, as a computer engineer or as a graduate. There was in addition a claim for special damages of £277.
13. The claimant was 18 on 23rd April 1995. Since then he has been able and entitled to conduct the litigation on his own behalf. But as I have already stated, his father, Mr King senior, has continued to take an active part in preparing and presenting his case for him.
14. Initially legal aid was given and solicitors were instructed. But later, on 22nd August 1995, the legal aid certificate was discharged. Since then the claimant, Mr King, and his father, Mr King senior, have acted without legal representation. There was a suggestion at the trial, which has been repeated before us today, that even now it ought to be possible for the court to authorise legal representation for the claimant or at least allow an adjournment for that purpose. The judge refused that application at the trial, and my Lord has indicated today that that is not a course which is open to us.
15. There were some eyewitnesses of the accident, or of the events immediately before and immediately afterward. Two of the eyewitnesses were ladies who were resident at an old people's home overlooking the scene of the accident. They were Mrs Good and Mrs Willis. By the date of the trial Mrs Good had died and Mrs Willis was very ill. Their statements were admitted under the Civil Evidence Act and they were taken into account by the judge.
16. Two other eyewitnesses were a Mr and Mrs Jones. They were in their car, with Mr Jones driving, following the defendant up the Dorchester Road. There was an application for their statements to be admitted under the Civil Evidence Act, but that application was refused at the trial on the grounds that no proper notice had been given.
17. We have seen, and had the opportunity of reading, the statements which Mr and Mrs Jones had made. Mr King senior tells us that at the date of the trial Mr Jones was away on army service and was unable to attend court, hence his application for these statements to be admitted. Having looked at them, and bearing in mind that they were not and are not formally in evidence, I notice that Mr Jones says this:

"I did not see the boy on the bicycle at all until I saw him being thrown up into the air."

18. Mrs Jones' statement includes this:

"I do not recall seeing anything of the accident, but I did run over immediately to the boy afterwards."

19. There was also a Mr Heasman. He, with his girlfriend, was driving down the side road, Weymouth Bay Avenue, towards the junction with the Dorchester Road which was, roughly at least, where the accident occurred. He said that he saw the accident but:

"I did not see the boy immediately before the impact, because when I looked it was the moment he was hit."

20. At the trial the learned judge heard oral evidence from the claimant and from the defendant and also from Mr King senior, whom the judge permitted to give what might be called factual evidence with regard to photographs that he had taken of the scene, measurements he had made of distances and calculations of speed and so on which he had based upon those measurements.
21. The learned judge read the statements of Mrs Good and Mrs Willis. He found that he preferred the defendant's evidence to that of the claimant and he dismissed the claim.
22. I should read the two following short passages from his judgment. First at page 11H:

"In my judgment, there is only one possible explanation why the plaintiff did not see the defendant's car and that is because he did not look, as he should have done according to the Highway Code. Had he done so, he would not have failed to notice that if he had moved off at that moment he was in grave danger."

23. Then at page 12G:

"In those circumstances, in my judgment this accident was wholly caused by the negligence of the plaintiff in failing to keep a proper lookout. Had he done what he told the court he was doing, he could not have failed to see the defendant's car. Therefore there will be judgment for the defendant."

24. The learned judge was concerned with liability only. Difficulties had arisen about the availability of medical evidence and therefore the judge decided, sensibly, to proceed to deal with liability only.
25. As regards the proceedings, we have a full transcript of what was said and it has been obtained at considerable cost by the claimant and his father. It is perhaps unfortunate that the claimant or Mr King senior have added to the transcript their comments to the effect that the transcript has been tampered with and other such suggestions. There is no basis for such an allegation and in the circumstances we only have the official transcript as evidence of what took place.
26. The course of the proceedings was roughly as follows. First, the judge pointed out that the father was no longer entitled to appear as the "next friend" of the claimant because the claimant was now of full age and therefore the father could appear only as a McKenzie Friend. However, in the result, the father took an active, in fact the leading role in presenting his son's case, including cross-examining the defendant on his behalf.
27. There was then a reference to the letter written in 1998 saying what the amount of the claim was, and that gave rise (page 4 of the transcript) to some question as to whether the matter was or was not within the jurisdiction of the County Court. All of that was entirely understandable and the judge, again sensibly, decided to proceed with the case.
28. The transcript shows that the defendant's solicitor had compiled the bundle which was before the court. There is included in today's application a suggestion that the claimant should have permission to rely upon fresh evidence. It is not clear what fresh evidence is referred to. We have what appears to have been a full set of all the documents which the claimant has gathered in connection with the case. I can at least reassure him for my part that I have read the whole of this bundle, including, as I have already indicated, the statements of Mr and Mrs Jones. Therefore, no formal application to admit fresh evidence is necessary.
29. There was then an extensive discussion before the judge about the medical evidence, whether it was agreed or not, and in the course of that discussion the claimant applied for an adjournment. The judge indicated that if there was to be an adjournment it would have to be at the cost of the claimant. But then, following further discussion, the judge suggested and later ruled that he should proceed to deal with liability only. This made any question of an adjournment with regard to obtaining medical evidence or further medical evidence unnecessary. Again, a sensible decision.
30. In the course of the proceedings (page 35 of the transcript) application was made to adduce the statements of Mr and Mrs Jones and permission was refused at page 36. The transcript includes a full note of the speeches made by counsel on behalf of the defendant and by Mr King senior (maybe partly him, partly the claimant) in conclusion.
31. The grounds of appeal are set out at page 13 of our bundle. I do not propose to read them in full. The only issue which is raised of any substance is the judge's refusal to admit in evidence the statements of Mr and Mrs Jones. The reason the judge gave was that no proper notice had been given in accordance with the Civil Evidence Act. That was a ruling which the judge was entitled to make. But even if these statements had been admitted, it is entirely clear that they would not have made any conceivable difference to the result. I have already read the extracts from those statements which show that, in terms, neither Mr nor Mrs Jones was able to give any assistance to the judge as to what the cyclist was doing before the accident. They both said that they had not seen that part of the story. In those circumstances, where the crucial issue was the movements of the cycle in relation to the car before the accident, it is quite clear that their statements would have made no difference in any event.
32. In the skeleton argument which was produced to us with the papers, again a number of grounds were set out. There is, first of all, a reference to the judge refusing an application for an adjournment so that legal representation could be obtained. There is no reference to that in the transcript we have. But in any event, for the reason I have already indicated, that was certainly an application which the judge was entitled to refuse having regard to the fact that the legal aid certificate had been withdrawn and there had been no relevant change in the circumstances of the claimant since 1995.
33. There is a suggestion that the learned judge misunderstood the evidence (which largely came from Mr King senior) about measurements and distances and so on, and the calculations which followed from them. But it is quite clear from the judgment that the learned judge did take account of those matters, and that he reached a factual conclusion based upon the evidence in the way that he did.
34. Other matters put forward in the skeleton argument are ones which I shall not grace with the dignity of calling grounds of appeal. There are various unsubstantiated allegations against the judge and against the defendant. It is sufficient to say, in my judgment, that none of those matters even begins to provide a ground of appeal.
35. I would hold that the trial was conducted in an exemplary manner, and the conclusion was one which the judge was not only entitled to reach, but was correct.
36. Finally, in his oral submissions today, which have been marked by their courtesy and by their brevity, Mr King senior has suggested that there ought to be what he calls a retrial of the driver, the defendant, so that three specific (apparently criminal) charges could be brought against him. Those matters fall in the same category as the one to which I have just referred. They are not conceivably to be regarded as potential grounds of appeal against this judgment. Moreover, they have to be regarded as entirely unsubstantiated and unsupportable allegations on the basis of the material that is before us.
37. For those reasons, whilst acknowledging the concern which Mr King senior has to pursue this matter on behalf of his son, I would refuse this application.
38. LORD JUSTICE ALDOUS: I agree.
ORDER: Applications for permission to appeal and to rely upon further evidence refused. (Order not part of approved judgment)