Case No: B3/2011/2594

Neutral Citation Number: [2012] EWCA Civ 1354
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WINCHESTER COUNTY COURT
(MR RECORDER FORDHAM QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 19th June 2012

Before:

THE MASTER OF THE ROLLS

LORD JUSTICE MOSES

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LORD JUSTICE RIMER
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	Scott
	
Appellant	
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Symons

Respondent	
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(DAR Transcript of 
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Mr Stephen Glynn (instructed by Simpkis & Co) appeared on behalf of the Appellant.

Mr Marcus Dignum (instructed by Morris Orman Hearle) appeared on behalf of the Respondent.

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Judgment
Lord Justice Moses:  

1.	This is an appeal with leave of the single judge against a decision of Mr Recorder Fordham QC of Winchester County Court on 20 September 2011.  The issue before the recorder was as to liability only in relation to a tragic and very serious road accident between a motor cycle and a motor car on 17 August 2007.
2.	The only issue in the trial and on this appeal is as to whether the collision between a Yamaha motorbike ridden by the claimant and a Fiat motor car driven by the defendant was caused by reason of the fact that the car was driven onto the wrong side of the road, or alternatively, that the motor cycle was ridden onto the wrong side of the road.
3.	The judge had to decide who was responsible.  He found that the accident was caused because the claimant rode his Yamaha motorbike onto the wrong side of the road.  That was a finding that Mr Glynn challenges, in clear and excellent submissions on behalf of the claimant, the appellant in this appeal.  He says that it was not open to the judge so to conclude on the evidence that was before him.  He supports that submission by reference to factors on which the judge purported to rely in support of his conclusion which, so Mr Glynn submits, were not open to him. 
4.	The collision between the motor car and the motor cycle occurred at about 2.00 pm on a Friday afternoon.  There were no relevant weather conditions.  The road on which the accident occurred was Ashley Lane, near Milton in Hampshire.  Mr Scott, the claimant and appellant, was travelling in an easterly direction, approaching the junction between Ashley Lane and Lavender Road.  A red Fiat, driven by the defendant respondent, Mr Symons, was travelling in the opposite direction.
5.	The striking feature of the course of the trial was that the claimant, Mr Scott, was the only one to give live oral evidence.  The judge found that he was an honest witness.  We have read the transcript of his evidence and we would add that not only was he an honest witness giving his evidence in good faith, but he was clearly a frank witness.  He was prepared to give evidence as to matters which were against his own interests, the hallmark of a frank and truthful witness.  Unfortunately, he was faced with a difficulty that anyone involved in an accident on the road, and all the more in a serious accident on the road, is faced.  That is the difficulty of trying to give evidence about what happens in a moment and what is unforeseen.  The difficulties that that imposes on reliable recollection were added to when, most sadly, the claimant suffered very severe injuries as a result.
6.	He was 53 at that time, an experience motor cyclist and was riding a 1300 Yamaha motorbike.  Some two or three miles back from the scene of the accident he had visited a shop and purchased a reel of electricity cable.  This he wedged at the front of the motor car between his body, his knees and the raised petrol tank, as is shown in a number of photographs.  As he approached Lavender Road, he was travelling, as the judge found, at about 40 miles per hour, but not an excessive speed.  The road flows regularly and without any sharp corner round a left-hand bend as it approached and passes Lavender Road, and has the consequence that the Fiat driven by the respondent in the opposite direction, westerly, would have been driving around a right-hand bend.
7.	Mr Scott gave evidence consistent, as the judge found, with what he had said all along, namely that he was on the correct side of the road, and it therefore followed that whilst he did not actually see the Fiat cross over onto his side of the road, the collision must have caused because Mr Symons allowed his motor vehicle to wander across.  The claimant also added that familiar as he was with this geography, because it was a route that he was accustomed to travelling, motorists coming in the opposite direction were in the habit of, as he put it, “cutting the corner”.  He had the clear recollection, as he said both before the trial and at the trial, that the driver of the Fiat was cutting the corner and he remarked in his own mind, “how much more room does the driver want?”.
8.	The judge found that the claimant’s evidence was a matter of reconstruction, rather than an actual recollection of what happened.  This finding is criticised by Mr Glynn on behalf of Mr Scott, because he said it did not amount to a fair reading of the evidence.  We have, however, read the transcript both as to the evidence-in-chief and in cross-examination.  In a sense, both appellant and respondent are right: Mr Glynn is right that there was direct evidence from the claimant that he did remember being on the correct side of the road, but it is undoubtedly true that in describing his approach to the turning with Lavender Road, he was speaking very much of what he would have expected his riding to be, accustomed as he was to travelling along the route, and from time to time when asked whether the driver of the Fiat had crossed over and encroached on Mr Scott’s side of the road, he would honestly say that he could not really remember.
9.	That, in my view, is entirely to be expected.  It would have been extremely difficult to expect the rider of that motor cycle to have a clear memory of what must have happened in a shocking way in a matter of moments.  But I emphasise, as Mr Glynn emphasised, that Mr Scott’s was the only live evidence and did amount to evidence that he was on the correct side of the road.  
10.	The judge however rejected that.  He can only have rejected that evidence on the basis that he found it more likely that the rider of the motor cycle crossed over onto the wrong side, rather than the driver of the Fiat.  That he can only have reached that conclusion on the basis of what was more likely than not is demonstrated by the fact, as I have said, there was no other live evidence.  The evidence of the defendant, Mr Symons was read, read because he was a man by then of some 93 years old, and therefore not fit enough, as I understand it, to come to court.  That clearly devalued the weight to be given to the evidence, since there was, it is trite to observe, no opportunity to cross-examine.
11.	There was other evidence given, particularly live evidence from a Mr Gatehouse, as to the consequence of the collision, which was that the motor cycle, having struck the Fiat motor car then, out of control, collided head on with a Mercedes people carrier.  But Mr Gatehouse’s observation, coming as it did from a car driven behind the Mercedes, would have been only of the consequences of the collision between the motor cycle and the Fiat motor car, and therefore could not be relied upon as establishing who was on the correct side of the road.
12.	It was suggested on behalf of Mr Symons that the explanation for the motor cycle travelling on the wrong side of the road was the cable carried and pressed between Mr Scott’s body and the fuel tank.  The judge rejected that, although there was some evidence that the cable had fallen and that Mr Scott had managed to retrieve it and put it back.  The judge in my view rightly rejected that as an explanation.  He rejected it because there was objective evidence from the police that the cable was in position at the time of the collision that followed the collision between the motor cycle and the Fiat, between Mr Scott and the Mercedes people carrier coming in the opposite direction.  The cable was still in position and the damage both to the fuel tank and the cable demonstrated that.  Thus it was that the only basis for deciding what was more likely was the position of the relative vehicles in the road.
13.	Mr Glynn submits that the judge ought to have found that the defendant drove his Fiat onto the wrong side of the road because he was confronted with a right-hand bend, whereas the motor cyclist was negotiating a left-hand bend and therefore would more naturally have leaned into the bend, gone round the easier-to-negotiate bend without any necessity for crossing over the road.  That undoubtedly is a powerful argument as to what should be expected.
14.	There were however two facts upon which the judge relied when he reached his conclusion that the motor cyclist had crossed over to the wrong side of the road, which are vital to the resolution both of the case and of this appeal.  Firstly, there was another vehicle in the road.  This was a BMW driven by a Mr Barham, travelling easterly, in other words in the same direction as the Yamaha motor cycle but ahead of it.  Mr Barham did not give evidence; he was expected to.  Mr Glynn accepted that the judge, despite the absence of a Civil Evidence Act notice, had a discretion to allow the evidence to be read, and indeed the evidence was read.  It contained evidence suggesting that the car was on the right side of the road and the motor cyclist had gone onto the wrong side of the road.  But inevitably, Mr Barham’s view would have been concentrated ahead and not behind, although he claimed to have seen the collision in his rear mirror and did not observe the motor car driven by the defendant cross over onto the wrong side.
15.	The judge, in our view, did not attach weight to what Mr Barham said in his statement.  He was right not to do so.  Although Mr Barham had been summonsed, he did not attend, and there was apparently no explanation for why in a serious matter he chose not to fulfil his civic duty by turning up to give evidence.  
16.	But there was a fact that was not disputed and could not be disputed, namely that the BMW driven by Mr Barham was almost stationery or indeed stationery, ready to turn into Lavender Road, right, but unable to do so because of oncoming traffic, which would have included the Fiat and the Mercedes people carrier travelling behind, and indeed the vehicle driven by Mr Gatehouse behind that.  There can be, and there can have been no dispute, but that the defendant driving his Fiat motor car successfully negotiated the road past the stationery BMW.  It can only have done that by driving on the correct side of its road.  Thus the only way in which the claimant could successfully explain how it was that the collision occurred on his side of the road would have been if, for no apparent reason, the driver of the Fiat had successfully driven past the stationery BMW on the correct side of the road and then wandered onto the wrong side of the road.  Of course, that could have happened; there was indeed room for it to happen, the judge said some 20 or 30 metres, and probably nearer 40 metres, however it would have happened in a very short space of time without any apparent reason.  This was a key feature, which the judge accepted.  It was, in my judgment, a feature on which the judge was entitled to rely.  
17.	The second feature arose out of the frankness with which the claimant, the appellant, gave his evidence.  He accepted that he was riding near the centre line.  He had good reason to do so because, as any motor cyclist will tell you, it is important to take up a position on the road which gives you the greatest visibility.  He therefore wanted to have the best possible visibility round the left-hand bend as he was negotiating it in its gentle sweep.  But, of course, it was incumbent upon him to remain on the correct side of the road.  
18.	During the course of his evidence he admitted that his right hand may have crossed over and been over the centre line.  His motor cycle, if it was not upright, would have been leaning into the curve to the left.  That would clearly have put, therefore, his vehicle either on or over the central white line, and it must have been over if his right hand, as he negotiated the bend, was over the line.  That was, in my judgment, an important admission, unfortunately against his own interests but relevantly for this appeal, a feature on which the judge was entitled to rely.
19.	It is usual in these appeals, and frequently observed, that it is a matter for the judge to assess the witness and make findings on his impression of those who have given oral evidence.  In this case, that is not a relevant feature other than the finding that Mr Scott was a truthful witness.
20.	The judge had, as it was accepted on both sides, to decide this case on the balance of probabilities and on the basis of that which was most likely.  He was entitled, in my view, and was right to rely upon the feature, firstly of the position of Mr Barham’s vehicle which the Fiat successfully went past on its correct side of the road, and also Mr Scott’s own evidence that he was riding near the centre line with his right hand over the line.  It was those two features that the judge described as key, and which led him to the conclusion that it was indeed the claimant appellant, who had crossed over onto the wrong side of the road and not the Fiat.
21.	In my view, basing his conclusion on those two key features is not a basis which can be successfully impugned by way of appeal.
22.	The judge went on in the crucial paragraph in which he reached his conclusion and gave his reasons, in paragraph 90, to rely apparently, but faintly, on other features.  It is that reliance which is particularly challenged by Mr Glynn.  In my view, the challenge is well made.  The judge relied upon speed and acceleration and the nature of the motorbike by which I take it he meant the powerful 1300 Yamaha, which can of course accelerate in a very short space of time and distance. But if he was going to rely upon those, that would be inconsistent with his earlier finding that Mr Scott was not riding at an excessive speed (no more than 40 miles an hour, which the judge did not find was riding too fast).  In those circumstances, he could not rely upon that to support his central conclusion.
23.	Secondly, the judge referred in terms, which showed that he may have been using the fact to support his conclusion, to the fact that the claimant was carrying the cable reel to which I have already referred.  The judge said:
“Nor can I ignore the cable reel that he was carried wedged against the seat and the fuel tank.”

24.	As a finding, I would suggest that that is insufficient.  If he was going to find that that led to instability or inattention because Mr Scott was concentrating on carrying that cable, then the judge should have said so, but merely to float it as a possible supporting reason was, in my view, insufficient.  He had earlier rejected the evidence that the accident occurred because Mr Scott was attempting to save the cable from falling to the ground and was replacing it.
25.	As with so many judgments, it is easy to go through them with a fine toothed comb and find fault.  There was a defect in the judgment, as the judge giving leave remarked, in relying upon those other features, but they can in no way, in my view, override the essential and reliable features on which the judge relied upon in reaching his conclusion, that sadly, it was Mr Scott and not Mr Symons who crossed over onto the wrong side of the road.  For those reasons, I would dismiss this appeal.
Lord Neuberger:
26.	I agree.
Lord Justice Rimer:
27.	I also agree.  Accordingly, the appeal will be dismissed.
Order:	Appeal dismissed.