Smith & Anor v. Harris (Cayman Islands ) [2006] UKPC 48 (30 October 2006)

Privy Council Appeal No 24 of 2005

(1) Egbert Smith
(2) Quarry Products							Appellants
v.

Julie Nicole Harris	Respondent

FROM

THE COURT OF APPEAL OF 
CAYMAN ISLANDS

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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 30th October 2006

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Rodger of Earlsferry
	Baroness Hale of Richmond
	Lord Carswell
	Lord Mance
	
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[Delivered by Lord Carswell]

1.	In this appeal, brought as of right from the Court of Appeal of the Cayman Islands, the appellants seek to challenge the decision of the Court of Appeal affirming the decision of the trial judge Edwards J, whereby he found that the appellant Egbert Smith was solely to blame for the road traffic accident on 30 December 1997, in which the plaintiffs in the action Karel Liebaers and Marleen Limbourg were injured.  The judge held that the respondent Julie Nicole Harris was not negligent and dismissed the plaintiffs’ claim against her.  He ordered that the plaintiffs’ damages be assessed.  The present appeal is concerned only with the incidence of liability as between the appellants and the respondent.

2.	At the time of the accident the plaintiffs, Belgian citizens who are husband and wife, were visiting Grand Cayman along with Ms Limbourg’s son Parcifal.  On the morning of 30 December 1997 all three were walking together along Red Bay Road in a westerly direction towards George Town when the car driven by the respondent came into collision with the plaintiffs and caused them serious injuries.  The plaintiffs’ evidence was that they were walking in single file near the intersection of Selkirk Drive with Red Bay Road.  There was no footpath on the left hand side of the road on which they were walking, but there was at that point a clear patch referred to by Mr Liebaers as a kind of lay-by.  When the accident occurred they were walking on this lay-by a few feet off the paved surface of the roadway.  The plaintiffs were struck by the respondent’s car and knocked some feet into the air.

3.	It was not in dispute that the respondent had lost control of her vehicle at the material time, but the issue was why this occurred, as to which the versions given by the respondent and the appellant Egbert Smith and their respective witnesses were conflicting.  It should be mentioned at this point that the appellants submitted in their printed case that the doctrine known as res ipsa loquitur applied to impose a burden of proof on the respondent which she had failed to discharge. In presenting the appellants’ argument  before the Board, however, Mr Guthrie QC did not seek to advance this contention, in their Lordships’ opinion correctly.  The facts explaining the occurrence of the accident were fully placed before the trial judge, whose task was deciding between the rival versions, and there was no room for the application of the principle: cf Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392, 394-5, per Lord Porter; Ng Chun Pui v Lee Chuen Tat  [1988] RTR 298.

4.	The respondent’s evidence was that she was driving on Red Bay Road in the direction of George Town in the right hand or outer lane of traffic, referred to in evidence as the George Town lane.  There was a line of cars in this lane, some of which intended to turn right into Selkirk Drive.  In order to avoid the delay caused by the vehicles turning right, the respondent, who was driving a blue-green Pontiac Sunfire with left-hand drive, moved into the left hand lane, called in evidence the South Sound lane.  She stated that as she proceeded along this lane at about 30 to 35 mph, the white Ford Escort driven by the appellant Egbert Smith suddenly pulled out of the George Town lane into her path.  In paragraph 4 of her witness statement, which formed part of the evidence before the judge, the respondent described the accident in the following terms:

“The next thing I recall is the car which I now know to have been driven by Egbert Smith and which was just in front and to the offside (passenger side) of my vehicle, driving into my lane and making contact with my vehicle.  I recall seeing his vehicle moving into my lane and into collision with my vehicle, and I reacted by attempting to avoid his vehicle and steered to my left away from Egbert Smith’s vehicle.”

She applied her brakes but could not avoid colliding with the pedestrians.

5.	The respondent’s version of the accident was supported by the evidence of Miss Judith Nadine Ebanks-Oyog, who was driving in the George Town lane.  She came to a stop in that lane with about two vehicles in front of her.  She said that she was looking in her rear view and left wing mirrors and continued, according to the judge’s note:

“I saw white vehicle behind me in my lane.  Pulled out suddenly without signalling into South side lane.  I saw a blue car swerve to avoid hitting the white vehicle.”

She heard but did not see the collision between the respondent’s car and Mr Smith’s car.  She did see the blue car going off the road and a person in the air over the hood of that vehicle.

6.	Mr Smith’s version was that he had not at any stage moved out of the George Town lane, in which he was at the material time stopped behind other vehicles.  The respondent’s car came up alongside him in the South Sound lane and grazed the left side of his vehicle.  It was apparently out of control and veered towards the left hand side of the road, where it hit two pedestrians.  The respondent came up to him after the accident and said “See what you caused”, but he Smith replied that he had caused nothing.  He then left the scene without waiting for the police to arrive, because his passenger Ms Linda Dixon was a hurry to get home and he felt that the accident had nothing to do with him.  Ms Dixon corroborated Mr Smith’s evidence, to the extent that she said that he had not pulled out of his lane, but she did not see the accident occurring.

7.	The appellants called in support of their case Mr Baron Philipson, described as an accident investigator, who made a report setting out in detail the layout of the scene, the statements of the witnesses and the damage to the vehicles which he observed.  The report was accompanied by a series of photographs, which were put before the courts below and the Board.  The damage to the respective cars may be summarised as scraping right along the side of each.  From this Mr Philipson drew the conclusion that the cars were parallel to each other when the collision occurred, which he considered supported the version given by Mr Smith.  Mr Philipson did not feel able to offer any reason why the respondent should have veered into Mr Smith’s car.  The South Sound lane narrowed to some extent about the point where the collision occurred, and there was some suggestion that this might have caused the respondent to veer towards the centre of the road and so sideswipe Mr Smith’s vehicle.  Mr Philipson placed some emphasis on his finding of semi-circular striations on the bodywork of the Escort, which he considered were made by the wheel of the Sunfire.  He relied on this as tending to support his theory that the Escort was stationary at the time of the accident, this mark being caused by the impact of the Sunfire moving past it.

8.	Evidence was also given by Police Sergeant Collin Redden, who visited the scene of the accident and conducted an investigation into it.  In his witness statement and his evidence in court he did not confine himself to relating the physical findings, but proffered his opinion as to the cause of the accident.  The judge recorded that the appellants’ counsel accepted Sergeant Redden’s evidence, but in the Court of Appeal it was conceded that he had in fact objected to his giving opinion evidence of this type, as he was not qualified as an expert witness.  The Court of Appeal considered, however, that it did not have to make any finding on the appellants’ argument that Sergeant Redden’s opinion evidence was inadmissible, since in their view the judge did not in any way rely on his evidence.

9.	The judge in his written reasons given on 14 February 2003 stated at the outset that the trial “was confined to the issue of whether the negligence of Ms Harris or Mr Smith or both of them caused the accident”, which disposes of the objection that he failed to consider contributory negligence.  After setting out the facts, he expressed conclusions about the likely cause of the accident in the following passage (Record, pp 276-8):

“I am satisfied the evidence demonstrates it was more likely than not that the Escort crossed the line between the lanes into the path of the Sunfire.  Both Ms. Harris and Ms. Ebanks-Oyog testified they saw this happen.  I accept their evidence on this point as the only plausible evidence which explains the cause of the collision.

The theory of Mr. Smith’s case, that the Sunfire drifted two or three feet to the right across the line dividing the lanes and sideswiped the Escort stopped in the middle of the 16 foot wide George Town lane I find improbable for the following reasons.

First, having just turned left into the South Sound lane, there was no reason for Ms. Harris to cause the Sunfire to move right towards the line of stopped cars she had just moved to avoid.  Second, because the collision damage was scrapping [sic] along the length of both cars they were essentially parallel when they met.  On a parallel course two or three feet inside the George Town lane it is unlikely the Sunfire could have avoided contact with other cars bumper to bumper with and ahead of and behind the Escort.

Mr Phillipson’s testimony was helpful in explaining how the two vehicles collided to create the observed damage, but did not satisfy me there was a basis for extrapolating from how they collided precisely where they collided or why.

Viewed most favourably from the point of view of Mr. Smith, Mr. Phillipson’s evidence establishes that the damage to the vehicles shows they collided instantaneously on essentially parallel courses while the Escort stopped.

While this is consistent with Mr. Smith’s and Ms. Dixon’s testimony that the Escort did not move, it does not disprove the possibility that the Escort pulled left into the South Sound lane and was struck a glancing blow by the Sunfire as Ms. Harris veered left trying to avoid a collision, while both vehicles were parallel to each other but heading left in relation to the alignment of the road way.  I did not find Mr. Phillipson’s testimony in which he tried to refute this possibility persuasive.”

He went on to hold that the physical evidence of damage to the vehicles provided no sound basis for extrapolating where the collision occurred so as to rule out the possibility that it occurred in the South Sound lane.

10.	The judge rejected the evidence of Mr Smith that he remained stopped in the George Town lane at the time of the collision.  He found his evidence confusing and inconsistent and generally unreliable.  He also rejected Ms Dixon’s evidence on the critical point of whether Mr Smith pulled into the South Sound lane, finding that it deserved no weight and did not effectively corroborate Mr Smith’s version of the accident.  He accordingly concluded that the respondent was not negligent and that the accident was caused solely by the negligence of Mr Smith.

11.	The Court of Appeal (Zacca P and Collett and Taylor JJA) in brief written reasons given on 30 July 2004 dismissed the appeal.  Three of the grounds of appeal related to issues not pursued before the Board.  The main ground was that the physical evidence of the damage to the vehicles did not support the findings of the trial judge.  On this issue the Court of Appeal held (Record, p 370):

“The trial judge heard and saw the witnesses for the appellant and the respondent.  He rejected the evidence of the appellant and his witnesses.  He accepted the evidence of the respondent and her witnesses and held that the physical evidence was not inconsistent with the version of these eyewitnesses.

In our view it cannot be said that the judge was in error in coming to this conclusion.”

12.	The conclusions reached by the judge and the Court of Appeal meant that the appellants were faced with the rule relating to concurrent judgments on issues of fact, a long-established rule of conduct whereby the Board will generally decline to review decisions on factual matters where a trial judge and an appellate court have reached the same conclusions.  Their Lordships had occasion recently to review and re-emphasise the operation of this rule in  Bekoe v Broomes [2005] UKPC 39, paras 10-12, and they do not find it necessary to restate it in this judgment.

13.	Mr Guthrie sought to escape from the application of the rule by arguing that the judge had misunderstood the physical evidence and the basis for Mr Philipson’s opinion founded upon it and failed to analyse the evidence satisfactorily.  In consequence, he submitted, he was wrong in holding the damage inconclusive in establishing which version of the accident was likely to be correct and the judge’s conclusion was flawed.

14.	In their Lordships’ opinion this argument cannot succeed.  It was not in dispute that the physical damage showed that the two cars were parallel at the time of the impact between them, but the judge quite sustainably held that the impact could have taken place when the respondent was veering to her left while trying to avoid a collision with Mr Smith’s car as it cut out into her lane in front of her.  The tyre marks are wholly consistent with this version.  Their Lordships do not consider that the fact that the two cars may have been parallel at the moment of impact disproves the respondent’s version of the accident, still less that it discredits the judge’s consideration of the facts and the issues.

15.	Nor do they consider that the evidence of the striations is as adverse to the respondent’s case as Mr Guthrie argued.  All that it tends to show is that the speed of the Sunfire was greater than that of the Escort at the moment of impact, which is again consistent with the respondent’s case.  It does not in their opinion establish that the Escort was stationary, as Mr Philipson contended in his opinion evidence, merely tending to show that it was, as he said in his witness statement, passing alongside the Escort.

16.	The judge was accordingly quite justified in their Lordships’ opinion to hold that the physical evidence was not inconsistent with the version of events given by the respondent and Miss Ebanks-Oyog.  He was quite entitled to accept that version and to reject the version given by Mr Smith and Ms Dixon, and the Court of Appeal was quite entitled to accept his findings.  That suffices to conclude the matter, as their Lordships do not propose to enter into any further consideration of the evidence.  They would merely observe that the version of events given by Mr Smith is so improbable and his conduct in leaving the scene so inexplicable that they would have no difficulty in agreeing with the conclusions reached by the lower courts.

17.	Their Lordships will humbly advise Her Majesty that the appeal be dismissed with costs.