Collier v Crapper

On an application for permission to appeal, a trial judge’s factual conclusion is not open to appellate interference merely because another view of the evidence is tenable. The applicant must show a realistic prospect that the decision would be found untenable or necessarily against the weight of the evidence. A finding of contributory negligence must rest on evidence and reasonable inference. It should not be based on speculation about what an injured claimant could see or do, particularly where the claimant cannot give evidence and the timing and positions of the vehicles remain uncertain.

The claimant, a motor-cyclist, collided with the defendant’s van when the defendant turned right from a slow-moving line of traffic to make a U-turn. At a liability-only trial before His Honour Judge Hall on 10 October 2000, the defendant was found wholly responsible.

The defendant renewed an application for permission to appeal after an initial refusal on the documents. He argued that the findings were against the weight of the evidence and that the claimant should bear substantial contributory negligence. The claimant had no recollection of the accident and was not represented on the application. The central issues were whether the trial findings were untenable and whether contributory negligence could reasonably be inferred from the evidence.

The application was dismissed and permission to appeal was refused.

1. Negligence. Lord Justice Sedley held that the defendant’s arguments were tenable but did not show that the trial judge’s contrary finding was necessarily against the weight of the evidence to the degree required for appellate interference. The evidence supported the conclusion that the motor-cycle was there to be seen and that, given the manoeuvre and the slow-moving single line of traffic, the defendant had to make sure that the turn was safe.
2. Contributory negligence. The trial judge’s findings amounted to a conclusion that all the blame rested with the defendant, despite the absence of an express discussion of contributory negligence. A finding against the claimant would have required an inference that he could see that it was unsafe to proceed and proceeded nevertheless. That inference would have been speculative because the claimant could not give evidence and there was uncertainty about visibility, the defendant’s position, and the timing of the signal and turn.
3. Appellate restraint. Lord Justice Potter agreed. The decision was an overall assessment based on the witnesses, particularly the independent witness, and the trial judge’s impression of their accuracy and effect. The possibility that another judge might have inferred contributory negligence did not establish a realistic prospect that the full court would find the decision one which the trial judge could not reasonably reach.

The order was: permission to appeal refused.

• Court of Appeal (Civil Division): Lord Justice Sedley and Lord Justice Potter refused permission to appeal on 9 February 2001. Lord Justice Sedley had initially refused permission on sight of the documents, and the application was renewed.
• Lower court: at a liability-only trial before His Honour Judge Hall on 10 October 2000, the judge found the defendant wholly responsible for the accident.