Plumb v Ayres & Anor

An appellate court should not interfere with a trial judge’s apportionment of responsibility unless the judge erred in principle, misapprehended the facts, or was clearly wrong. The mere fact that another judge might have selected a different percentage is insufficient. Particular weight is given to the trial judge’s advantage in seeing and hearing the witnesses. Appeals concerned only with apportionment therefore require a properly arguable error of principle or comparable error before they have a realistic prospect of success.

The appeal arose from a road traffic accident involving a Rover car and a Bedford horsebox on a narrow country road. The recorder found the horsebox driver liable but held the claimant contributorily negligent by 30%, giving judgment for the claimant for 70% of the assessed claim.

The defendants abandoned challenges to the recorder’s factual findings and argued that, on those findings, the apportionment was wrong in principle or sufficiently erroneous to justify appellate intervention. The central issue was whether the recorder had made an error warranting interference with the apportionment.

1. Appeal dismissed. The recorder’s apportionment of 70% liability to the defendants and 30% contributory negligence to the claimant could not be faulted.
2. Per Potter LJ, the challenge proceeded on a mistaken reading of the recorder’s judgment. The recorder had preferred the claimant’s account that he saw the horsebox from a substantial distance, whereas the defendant, despite having better forward visibility, failed to keep a proper lookout and saw the claimant only when collision was imminent. The defendant was driving the vehicle creating the major obstruction on the narrow road and owed a clear duty to keep a proper lookout and exercise care.
3. The recorder was entitled to conclude that the claimant had been travelling too fast, while also finding that the defendant’s conduct materially contributed to the collision. The fact that another judge might have apportioned responsibility equally did not justify appellate intervention.
4. The appellate restraint governing factual apportionment was reaffirmed. This court should not interfere unless the trial judge erred in principle, misapprehended the facts, or was clearly wrong. The trial judge is particularly well placed to assess the evidence after seeing and hearing the witnesses.
5. Per Brooke LJ, the same stringent approach applied to the leave requirement for county court personal injury appeals. An appeal confined to apportionment would not normally have a realistic prospect of success merely because a different percentage might have been chosen.

The appeal was dismissed with costs, subject to legal aid taxation of the respondent’s costs.

• Court of Appeal (Civil Division): dismissed the defendants’ appeal from the liability judgment of Mr Recorder Greenwood sitting at Swindon County Court. The recorder had awarded judgment for the claimant for 70% of the assessed claim.