PROVING THINGS 243: ITS WITNESSES THAT COUNT IN FINDING PRIMARY FACTS, NOT EXPERTS

The Court of Appeal judgment today in Taylor & Anor v Raspin [2022] EWCA Civ 1613 emphasises the difficulty in appealing findings of fact.   The Court also took a little time to point out the limited role of experts in some cases, this being one of them.

“In this case the expert evidence was of significance in providing evidence of the speed of the motorcycle though it seems to me that the judge did fall into the trap of engaging in an exercise of mathematical precision. The expert evidence was not central to the case. The lay evidence which established that the defendant pulled out of a minor road and continued to pull out even when the motorcycle was in view and when she could have stopped was paramount.”

THE CASE

The claimant was riding a motorcycle on the major road when a collision occurred when the defendant driver pulled out.  The trial judge heard evidence from lay witnesses who saw the accident and two experts. He found that the claimant had established liability and there was 45% contributory negligence.

THE DEFENDANT’S APPEAL

The defendant appealed the issue of liability. That appeal was not successful

1. 1. As a discrete point in relation to causation, it is submitted that the judge’s fundamental misunderstanding of the issue was demonstrated by his initial conclusion in relation to the counterclaim. In his main judgment, the judge dismissed the counterclaim because the primary cause of the collision was the defendant’s breach of duty. When the judgment was circulated in draft, both parties submitted that this was an error and that there should be judgment for the defendant for 45% of the sum counterclaimed. So it was that the judge gave a supplemental judgment. The argument is that the judge’s basic error in relation to the counterclaim undermines his conclusion on the issue of causation generally.

Discussion

1. 1. I have no difficulty in rejecting the first ground of appeal. It is axiomatic that a driver emerging from a minor road onto a major road owes a continuing duty to vehicles on the major road. How that duty is to be fulfilled will depend upon the particular circumstances. In this instance the defendant was moving out onto a road on which a regular flow of traffic was to be expected where the view to her left was affected by the bend in the major road. She travelled at a slow speed out of the junction. That is not a matter of criticism. Rather, it increased the need to check for a second time that it was safe to continue into the far carriageway of the major road. To that extent I consider that the submission that the junction in question was not unusual to be misconceived. The situation confronting the defendant is to be contrasted with a driver emerging onto a major road where there is a lengthy and uninterrupted view to the driver’s left. The judge’s finding of fact in relation to the speed of the motorcycle was relevant to the issue of the claimant’s contribution to the collision. However, the notion that it was unforeseeable that a vehicle would be exceeding the speed limit to a significant degree on the major road is not sustainable. The judge at one point referred to drivers being under a duty to anticipate some degree of failure to comply with the Highway Code on the part of other road users albeit not the degree of failure represented by the claimant’s speed. This reference was not developed. It did not amount to a finding by the judge that the claimant’s approach was unforeseeable. There would have been no proper basis for such a finding.

1. 1. I do not accept the proposition that the judge imposed a duty on the defendant to keep the major road clear. At no point in the judgment did the judge suggest that this was the nature of the duty. Indeed, when he referred to the fact that a motorcycle would not require the whole of the carriageway to be able to pass along the road safely, he implied that the defendant would not have been in breach of duty had her car stopped part way into the far carriageway. The duty of the defendant was not to drive onto the carriageway along which the motorcycle was travelling and into the path of the motorcycle. That is what she did. By the time of the collision she was wholly in the far carriageway. She was wholly unaware of the presence of the motorcycle until the collision occurred.

1. 1. The gap acceptance theory expounded by Dr Walsh could not be determinative of whether the defendant was in breach of duty. I doubt whether this evidence was relevant. Dr Walsh’s expertise in relation to estimating speed by reference to the marks left on the road by the motorcycle was unquestioned. The speed of the motorcycle was relevant and important. What Dr Walsh had to say about the behaviour of motorists in general could not assist on the issue of how a reasonable motorist should have coped with the junction from which the defendant emerged. If his evidence was intended to say what did or did not amount to a breach of duty, it was inadmissible. In any event, what kind of gap a group of motorists thinks is reasonable to allow entry from a minor road onto a major road tells us nothing about whether the emerging motorist should check to their left for a second time as they move out onto the major road.

1. 1. The judge did not purport to impose a general duty on a driver in the defendant’s position to look left for a second time when turning right from a minor road onto a major road. Rather, he found that, in the particular circumstances facing the defendant, she should have looked left before she moved into the far carriageway. The judge was wholly justified in reaching that conclusion.

1. 1. In relation to the first ground of appeal, Stuart-Smith LJ in giving permission expressed hesitation as to its arguability. Had it stood alone, he may not have given permission to appeal. However, he considered that it was arguable that the judge’s consideration of causation was defective. The submissions of the defendant unsurprisingly concentrated on this issue. Notwithstanding all of that, I am satisfied that the judge did not fall into error.

1. 1. The first question in relation to causation is whether the judge made a sufficient finding as to the position of the defendant when the claimant first came into view. I agree that the judge did not explain in terms where on the road the defendant was at that moment. He did make a clear finding as to the time it took for the defendant to move from the mouth of the junction to the point of collision, namely approximately 5 seconds, and the speed at which she was travelling, namely 5 mph. He further found that the claimant would have travelled from the point at which he was first visible to the defendant to the point of collision in 3 seconds or a fraction longer. From those findings it is apparent that the defendant had yet to move onto the far carriageway of the major road when the claimant came into view. The precise point reached by the defendant at that moment was unnecessary to determine. The judge also referred to the evidence of Mrs Ward that she was surprised when the defendant “just kept coming” even though she could see the approach of the motorcycle. The only sensible interpretation of that evidence was that the defendant’s car was yet to move into the path of the motorcycle when it was already in view. This conclusion is fortified by consideration of the evidence of Mr Ward who asked himself why the defendant was not stopping. He would not have asked himself that question if the defendant by then was in the far carriageway of the major road.

1. 1. The next criticism of the judge is that he made no finding about how long a reasonable driver would have needed to react to the motorcycle approaching at speed. It is said that he should have found that the defendant was faced with a split-second decision. In relation to this issue, the judge found that the defendant’s perception and response time was unknown. That was clearly correct. Since the defendant at no time saw the motorcycle – or any other vehicle on the major road – she did not in fact respond to anything. But the judge found as a fact that she should have looked left 2 seconds into her manoeuvre which equated to her car not yet being onto the far carriageway. She was travelling very slowly. Mr and Mrs Ward observed her progress. They concluded that the defendant should have stopped her car. Whilst the judge did not have the material to allow him to reach a specific conclusion as to the defendant’s response and reaction time, the evidence was sufficient to allow his final conclusion i.e. the defendant had time to avoid materially encroaching onto the far carriageway of the major road. This was not a case of a split-second decision or of a driver dealing with the agony of the moment.

1. 1. Finally, it is said that the judge did not explain what would have happened to the defendant’s car had she taken steps once she had seen the motorcycle. In my view the judge made the position perfectly clear in his final conclusion to which I have just referred. She would not have done what she did which was to drive so as to place herself fully in the carriageway along which the motorcycle was approaching. Rather, her car would have stopped so that it did not encroach to any material extent into the far carriageway.

1. 1. I am unimpressed with the discrete argument raised in relation to causation. The fact that the judge made an error in relation to the effect of his apportionment of liability on the counterclaim is of no relevance to his conclusions on causation. The error was a slip in relation to a counterclaim valued at significantly less than £10,000 in the context of a very substantial claim for catastrophic injury. It says nothing about the judge’s reasoning on primary liability.

Conclusion

1. 1. It follows that I would dismiss the appeal. The judge was correct to find that the defendant was under a duty to look left for a second time as she moved out into the major road given the particular circumstances of the junction. On the entirety of the evidence the judge did not fall into error in concluding that the breach of duty was the primary cause of the collision.

EXPERT EVIDENCE IN ROAD TRAFFIC CASES

Earlier in the Court of Appeal judgment Lord Justice William Davis commented on the role of the experts in the trial.

1. 1. Both the claimant and the defendant relied on expert evidence. The expert witness called by the claimant was a Mr Taylor who, prior to going into private practice, had worked for 12 years as an accident investigator for West Mercia Police. The defendant’s expert was a Dr Walsh, a mechanical engineer with nearly 20 years’ experience of accident investigation. The experts were able to provide evidence of the road geography and of relevant distances. When travelling along Ackworth Road as the claimant did on the day of the collision, traffic on the main road had to negotiate a right-hand bend before reaching the junction with Hardwick Court. The consensus was that someone in the defendant’s position could see about 80 metres (or possibly slightly less) to their left along Ackworth Road with the view to the right being a little further.

1. 1. However, the primary purpose of the expert evidence was to provide an assessment of the speed of the claimant’s motorcycle before and at the time of the collision. Both experts took as their preliminary reference point the fact that the claimant had passed a CCTV camera on Ackworth Road approximately 320 metres from the collision site at which time the motorcycle could be measured as travelling at 52 mph. However, the estimate each expert made of the claimant’s speed as he approached the point of the collision was primarily based on calculations drawn from marks left on the road by the motorcycle and from where the motorcycle came to rest. Mr Taylor calculated a maximum speed of 40 mph at the point at which the motorcycle began to skid reducing thereafter to 33 to 37 mph. Dr Walsh considered that the speed of the motorcycle remained at around 52 mph. This was the midpoint of range calculable from the available data, the 25^th percentile being around 40 mph and the 75^th percentile being around 64 mph. Dr Walsh’s evidence was that there was no reason to place the speed anywhere other than in the midpoint of the range.

1. Dr Walsh also gave evidence about something he referred to as the principle of gap acceptance applying to drivers intending to turn right into a major road. A driver making such a manoeuvre will assess the gap in any traffic approaching from the left on the major road. The driver will accept the gap as sufficient or reject it as inadequate. Dr Walsh determined that, given the road geography at the junction of Hardwick Court, a driver emerging from the junction would be required to accept a gap in the vicinity of 70 metres. His evidence was that this was a gap that would have been acceptable to about 50% of drivers on the road. Finally, Dr Walsh referred to a phenomenon known as looming threshold distance. This is the primary means of assessing speed when looking at a vehicle approaching head on.

EXPERT EVIDENCE IN THE FIRST INSTANCE JUDGMENT

1. The judge began his consideration of the evidence with a review of the expert evidence. He found that there were significant criticisms to be made of the evidence of Mr Taylor whereas he found Dr Walsh to have been a convincing witness. He noted that Dr Walsh’s approach meant that there was a range of speeds at which the motorcycle could have been travelling i.e. 40 to 64 mph. The judge considered the evidence of the lay witnesses as to the speed of the motorcycle. He observed that this evidence was incompatible with the evidence of both experts. Because of their limited opportunity to observe the motorcycle’s speed, the judge concluded that the lay witnesses had underestimated that speed significantly. In making his finding of fact as to speed, the judge acknowledged that accident reconstruction cannot be an exact science. Nonetheless, he found that the motorcycle was travelling “in the low 50s” as it approached the junction with Hardwick Court.

THE COURT OF APPEAL’S VIEW OF THE USE OF EXPERT EVIDENCE

1. 1. Although unnecessary for my decision on this appeal, I consider that, if there were anything arguably open to criticism in the judge’s approach, it would be in the emphasis he placed on the expert evidence. This was a collision which was witnessed by three lay witnesses who had a clear view of what happened. Their evidence was consistent. The defendant’s car continued to pull out onto the major road when the motorcycle was there to be seen. The car could have stopped in time for the collision to be avoided. That evidence should have been the central focus of the judge’s consideration of the case. To that he needed to add the fact that the defendant did not see any traffic on the main road. In her evidence she was categoric in her assertion that there was no vehicle on the main road in either direction. The judge said that this factor “might go” to the issue of the effectiveness of the defendant’s observation. It quite plainly did go to that issue. More to the point it demonstrated that the defendant was not keeping a proper lookout when the claimant was there to be seen, whatever his speed.

1. 1. In Stewart v Glaze [2009] EWHC 704 QB Coulson J (as he then was), having considered observations made in Liddell v Middleton [1996] P.I.Q.R. P36 CA, said this:

“….it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inferences to be drawn from it, can be tested. It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula, against which the defendant’s actions are then to be rigidly judged with a mathematical precision.”

I agree with that proposition. In this case the expert evidence was of significance in providing evidence of the speed of the motorcycle though it seems to me that the judge did fall into the trap of engaging in an exercise of mathematical precision. The expert evidence was not central to the case. The lay evidence which established that the defendant pulled out of a minor road and continued to pull out even when the motorcycle was in view and when she could have stopped was paramount. This only reinforces my conclusion that this court should not interfere with the judge’s conclusion.