McGowan v Davis

A first-instance assessment of reasonable care in a road-traffic accident is one with which an appellate court will be slow to interfere. The court must consider the trial judge’s findings of fact, witness assessments and the practical consequences of any alleged breach. A proposed appeal lacks a real prospect of success where, on the findings, the defendant exercised reasonable care and it is unclear that any different observation or precaution could have avoided the collision.

The claimant, a motorcyclist, suffered serious injuries after colliding with the rear offside of the defendant’s car while she crossed a major road from a side junction. The defendant had waited for traffic, looked to her right and began a slow turning manoeuvre. His Honour Judge Brunning dismissed the claim on 9 November 2000, finding that the defendant was not to blame and that the claimant had approached at speed without keeping a proper lookout.

The claimant sought permission to appeal, arguing that the defendant should have maintained a continuing lookout in several directions, including behind her. The central issue was whether the trial judge had erred in finding that the defendant had exercised reasonable care and whether any further lookout could have prevented the accident.

1. Permission refused. The application was dismissed because the proposed appeal had no real prospect of success.
2. The trial judge had heard the evidence and assessed the defendant and the supporting witness. He had also considered the expert evidence, the Highway Code and Moss v Dixon. His conclusion that the defendant had exercised reasonable care in carrying out the manoeuvre was a fact-sensitive conclusion with which the Court of Appeal would be slow to interfere.
3. The suggested duty of continual observation behind the vehicle did not establish a realistic ground of appeal. The defendant had to look ahead and concentrate on the road into which she was turning. On the findings, the claimant was travelling at speed and with such lack of care that he might have been attempting to overtake on the offside.
4. The claimant also failed to show that any additional observation would have avoided the collision. The defendant was already well into the turn and into the opposite carriageway when the impact occurred. The location and damage to the vehicle made it difficult to identify any effective step she could then have taken.
5. The order was: application for permission to appeal dismissed, with detailed public funded costs assessment.

• Court of Appeal (Civil Division): Permission to appeal from the order of His Honour Judge Brunning dated 9 November 2000 was refused. The claim had been dismissed at first instance.