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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 >> Britt v Starr [2010] EWCA Civ 936 (17 June 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/936.html Cite as: [2010] EWCA Civ 936

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
(MR RECORDER STEWART PATTERSON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 June 2010

Lady Justice Black:

1. The appellant, Mr Matthew Britt, appeals against the judgment of Mr Recorder Patterson in the Plymouth County Court given on 21 September 2009 at the conclusion of a trial in relation to liability for a road traffic accident that took place on 31 December 2005. The appellant was the defendant in the court below and the claimant was Mr Dean Starr, the respondent. The Recorder found that the accident had been caused by the negligence of Mr Britt.
2. The undisputed facts are that at about 5.15 pm on 31 December 2005 Mr Starr was driving his car along the A38 in Cornwall in the direction of Liskeard when it was in a head-on collision with a vehicle driven by a Mr James Heather and another vehicle, not Mr Britt's. Mr Britt's car was not directly involved in the accident, but it was Mr Starr's case that it had caused it. The vehicles that collided were damaged, and Mr Starr and Mr Heather sustained serious injuries. Mr Heather has commenced proceedings against both Mr Starr and Mr Britt, which are awaiting trial.
3. It was common ground that Mr Britt was turning right on to the A38 from a side road, intending to travel in the same direction as Mr Starr. The A38 is a big road at that point with a central cross-hatched area. Indeed, only a little further on towards Liskeard from the junction where Mr Britt was emerging it develops into a dual carriageway.
4. Mr Starr was a relatively new and young driver, having passed his test that summer. He was driving a car which he had bought in November, a Corsa. He came from the area and he was very familiar with that road. He was proceeding down Dobwalls Hill, which leads to the stretch of road where the accident took place. He said that he was in a line of vehicles. There were three or four in front of him and at least one, probably more, behind him. The speed limit was 60 miles an hour. He said he was travelling at 50 to 60 miles an hour, keeping pace with the other vehicles, the gap to the next vehicle being two to four seconds. In due course he saw Mr Britt's car pull out of a junction on the right and stop (or slow, as he said in his oral evidence) in the central cross-hatched area. He thought it was waiting for him to pass, as cars tended to do when emerging from that junction. Then, when he was only a short distance from the car, it pulled across in front of him to complete its manoeuvre in joining the A38. He instinctively swerved to his off side to avoid the car and found himself on the other side of the road, where he collided with Mr Heather who was coming in the opposite direction on the A38.
5. Mr Britt is a more experienced and older driver. He was on holiday in the area and in the car with his wife in the front and their three small children in the back. His case was that he looked both ways at least once before emerging from the junction and did not see Mr Starr's car. He made his right turn out of the junction without pausing in the middle of the road in the way that Mr Starr had described, and he completed his turn safely. In his statement he said that he was travelling at about 35 to 40 miles an hour and had gone about 20 metres along the road uneventfully. He was suddenly aware then of Mr Starr's headlights as Mr Starr's Corsa came right up behind him and then veered diagonally and shot past him, continuing along the oncoming lane until it crashed. His case was that Mr Starr must have been travelling too fast or misjudged things. He pulled out to overtake and then lost control of his car.
6. Mr Heather's evidence was available to the Recorder in writing. He was the only other source of evidence, apart from Mrs Britt who broadly agreed with her husband's account of things, except that it looks as if her estimate of the distance they had travelled on the main carriageway after the turn was between 50 and 100 yards, so significantly further than Mr Britt had thought. Mr Heather had been travelling at about 45 to 50 miles an hour along the A38 in the opposite direction to Mr Starr. He let a car into the traffic in front of him, a people carrier he thought, and travelled about 20 feet behind that for about 200 yards. He was about 150 yards before the turn from which Mr Britt emerged. He saw the car in front of him, the people carrier, veer sharply to the near side. He was suddenly aware of Mr Starr's car coming straight across the road at him. He had a brief moment to brake and then was struck. He did not see anything that may have caused Mr Starr to swerve and he said it seemed as if Mr Starr had lost control.
7. The Recorder found that Mr Britt had failed to keep a proper lookout and had driven on to Mr Starr's carriageway of the A38 when it was not safe to do so, placing Mr Starr in an impossible position, and that Mr Starr swerved in the short time available to him. Mr Starr has suggested that he had only a third of a second, but the Recorder took the view that he had longer than that. Although he did not spell out how long, it was implicit in his findings that it was long enough for Mr Starr to have seen the problem and swerved to avoid Mr Britt's car rather than hitting it. The manoeuvre left Mr Starr on the wrong side of the road, the Recorder found, with no time to control his car before it collided with Mr Heather's.
8. Ten grounds of appeal are advanced on Mr Britt's behalf, several of them encompassing a number of sub-paragraphs. The grounds can be said to fall into a number of broad categories. Firstly, and this is very much the focus of the appeal, there are a number of grounds designed to establish that the Recorder was wrong to accept Mr Starr's account of the accident because what Mr Starr said happened was not even possible, let alone probable. Attention is invited in the grounds to a number of reasons why it is said that this is so. Secondly, the applicant complains that the Recorder fails to give any or any proper reasons for the view that he took of events, which he particularly needed to do because his view did not accord entirely with the account given by either Mr Starr or Mr Britt. Thirdly, the appellant complains that the Recorder failed to give any or any adequate weight to the unchallenged evidence of Mr Heather. Fourthly, the appellant complains that the Recorder failed to make a number of findings on matters which would have been relevant to the credibility of Mr Starr, such as with regard to whether the road was wet or damp and as to the reliability of Mr Starr's recollection, given that he was knocked unconscious and had little memory surrounding the accident.
9. The appellant's grounds did not find favour on paper with Sir Richard Buxton, who refused leave on the basis that there was sufficient material for the judge to have come to the conclusion he reached. The appellant renewed his application for permission orally to Hallett LJ. She granted permission, albeit with, as she put it, a considerable degree of hesitation.
10. The appellant recognises that he has an uphill task in attempting to appeal against findings of fact made by a Recorder who had the enormous advantage (not available to us) of seeing the witnesses give evidence and hearing their accounts tested in cross-examination with reference to the various plans and photographs available and the calculations presented by counsel as to speeds, distances and thinking times.
11. Findings of fact, even by the most meticulous judge, are inevitably an incomplete statement of the impression made upon him by the primary evidence. Even if he has all the time in the world --and this judge certainly did not as he gave his judgment virtually immediately at the end of the trial -- language does not permit him to articulate exactly the sorts of considerations that play an important part in determining which is the more probable account of events which may have unfolded rapidly over a very short period and with an inherent degree of confusion.
12. The appellant's main concentration is on demonstrating, by reference to calculations based around Mr Starr's account of where he was when Mr Britt pulled in front of him and how big the gap was between him and the car in front of him, that it was impossible for the accident to have happened as the Recorder found. He complains that in order to find for Mr Starr, the Recorder devised his own version of events which did not coincide with the account given by anyone who was there. That version of events is contained, fundamentally, in paragraph 9 of the Recorder's judgment. It does not seem to me that it can be said that the conclusions he sets out there were not open to him or were without evidential foundation.
13. Firstly, it should be said that it is not at all uncommon for witnesses to give accounts which are relatively incomplete, sometimes patently accurate in some particulars and less so in others. A judge trying to ascertain the probable course of events has to evaluate all that is said and is not obliged to conclude ultimately that any of the witnesses has described the precise circumstances as he finds them to have been with the benefit of a dispassionate overview of all of the relevant material.
14. The fundamental question for the Recorder was whether it was established that Mr Britt drove into Mr Starr's path and he made a very clear finding that he did. Counsel for Mr Britt submits that his finding involved far too many improbabilities and even impossibilities. That submission revolves to a great extent around the position where Mr Starr was when Mr Britt moved across his path. As I have said, this was variously described by Mr Starr by reference to photographs and to a plan. He also accepted at one point that the distance he was from Mr Britt at the time was a mere five metres. That was plainly wrong, because in that event a collision between Mr Britt and Mr Starr would have been inevitable. The Recorder recognised that. It is implicit in his finding that, although Mr Starr only thought he had a third of a second to react and swerve, it must, as the Recorder put it," have been a little longer than that".
15. Although the Recorder did not make a specific finding by reference to measurements or landmarks as to where Mr Starr was when he saw Mr Britt --and the appellant criticises him for that -- he did make a finding that Mr Starr was sufficiently far back to have had time to take the avoiding action that he did, although he did not have enough time to manoeuvre safely enough to avoid an accident. All of that is inherent in what the Recorder says about timing and braking and swerving in paragraph 4 of the judgment. There was undoubtedly material on which the Recorder could base this view. Firstly, there was material from Mr Starr which supported it. There were not very many useful measurements available to the court but, taking the photographs, Google satellite pictures and plans together with the evidence, one can see that, on the account that Mr Starr gave of his position at the start of the difficulties by reference to the 50 mile an hour speed limit sign, he probably had about 50 metres in which to react or about two seconds at 60 miles an hour. As the appellant conceded, that was not at all an impossible scenario. That being so, the Recorder cannot be criticised on that basis for accepting Mr Starr's account about his emergency manoeuvring around Mr Britt.
16. In any event, as Buxton LJ observed, the estimation of distances and times is likely to be approximate, and this is not a case where it was possible to reconstruct them from material available at the scene of the accident. To declare the Recorder's findings impossible on the basis of calculations based on what can only be approximation would be wrong in my view. The Recorder was obliged to look at all the material available, as he did, and to consider the probabilities with that in mind.
17. In arriving at his findings, the Recorder was also conscious of the particular difficulty with Mr Britt's account which was that he had a sight line of not less than 150 yards in the direction from which Mr Starr was coming and he did not see the Corsa at all. The Recorder found that Mr Starr would have been in sight for at least six seconds travelling at 55 to 60 miles an hour before reaching the junction. If he had looked to the left, as he said he had, Mr Britt should have seen Mr Starr during this time, unless Mr Starr was travelling conspicuously faster than 50 to 60 miles an hour and that really was not the way in which the case was put. Mr Britt's case was puzzlement as to how it was that he had not seen Mr Starr and the Recorder found that there was no satisfactory explanation for it, other than that Mr Britt did see Mr Starr and wrongly thought he had enough time to come out or failed to see him.
18. On any view, Mr Britt's version of events depends on Mr Starr having covered the distance along the road with considerable rapidity and then, at a point where the road was approaching a dual carriageway in any event as he must have known as he knew the road well, deciding for some reason to overtake Mr Britt's car, losing control for unknown causes. As Mr Heather's statement made clear, this was not only puzzling because it would have been an odd manoeuvre for Mr Starr to have embarked on, but it was also puzzling that it led to a collision with the oncoming traffic because there was a middle lane which was sufficient to enable Mr Starr to have overtaken safely without crossing into the other carriageway at all. The Recorder found in paragraph 7 of his judgment that Mr Heather's evidence did not suggest that Mr Starr's car was carrying out a normal overtaking manoeuvre. That is an important matter on which the Recorder was entitled to rely as support for Mr Starr's account that what he was doing was taking emergency evasive action.
19. The appellant complains that the finding by the Recorder that Mr Britt could have looked up the road and seen two cars coming for which he waited but not the third driven by Mr Starr was perverse. He submits that either Mr Britt looked or he did not. That is, in my view, too simplistic. Road traffic accidents are often caused by a driver failing to see something that is, objectively speaking, obvious. It is not correct to say either you look and you see everything or you do not: you can look and still miss something. With that recognition, the appellant's questions as to why Mr Britt should have performed an inherently dangerous manoeuvre in entering the traffic in front of Mr Starr disappear. He did not voluntarily do so. He did not recognise the danger.
20. The appellant complains about the way in which the Recorder dismissed Mrs Britt's evidence that there was no traffic coming from Mr Starr's direction. The Recorder said that her evidence did not assist him greatly. She was not a driver at the time of the accident. She had made a statement saying there was no traffic coming either way, but later said that there was traffic coming from the right but not the left, the Recorder observed. The passage to which we were taken, during the course of oral argument, from her evidence at the trial merely came across as rather unsure and confused. The Recorder speculated that she may have been concerned about the children, though he stated accurately that they were all asleep or quiet. The appellant complains that he was wrong to think Mrs Britt could have been distracted in that way - if you have children asleep in the car, you leave them undisturbed rather than concerning yourself with them. Whatever the practicalities relating to the children, however, that was not the fundamental point with regard to Mrs Britt's evidence and it has not been established that the Recorder was not entitled to consider her of little assistance.
21. The appellant further argues that Mr Heather's evidence should have assisted the Recorder to recognise that Mr Britt was accurate in his recollection rather than Mr Starr. Mr Heather did not see Mr Britt do anything wrong. The submission about this depends, however, on Mr Heather being in a position to see what was going on. His written evidence appeared to be that he did not see (or at least he does not record seeing) anything in front of the people carrier that was preceding him until the very last minute. He did not give oral evidence, so the matter could not be explored with him, and it cannot be assumed that he would have been in any position to see Mr Britt's manoeuvre, sensible or not.
22. As to the challenge made by the appellant to the Recorder having treated Mr Starr as credible, the Recorder indicated his careful attention to the way in which Mr Starr gave his evidence. In paragraph 4 of the judgment he indicated, in accepting Mr Starr's evidence that there were cars in front of him (in contrast to Mr Britt's account that there were not), that he had listened to Mr Starr's evidence and his reactions in cross-examination. It is implicit in his other findings that he also accepted Mr Starr's account on other fundamental matters. He is criticised for failing to make express findings as to the implication of Mr Starr having been rendered unconscious and not having much memory except of the accident itself. He will have been able, however, to evaluate this when seeing Mr Starr in the witness box and he did not need to spell that out in making his findings about the accident.
23. To deal finally with the argument that the Recorder failed to explain adequately why he arrived at his decision, that is not a challenge which in my view has validity. The parties had just heard the evidence, and what was incumbent on the Recorder was to demonstrate why it was that one party had won and one party had lost. His reasoning is clear to me and entirely understandable when one considers the various forms of evidence, descriptions, photographs and documentation that formed part of the trial bundle. His findings have not been demonstrated to be perverse in any way and, in my judgment, the appeal must be dismissed.

Lord Justice Toulson:

24. I agree.

Lord Justice Ward:

25. So do I, so I am afraid your appeal is dismissed, Mr Mott.

Order: Appeal dismissed