Sutherland v Ballard

On an application for permission to appeal, the Court of Appeal should not interfere with a trial judge’s assessment of conflicting evidence merely because the conclusion appears generous to one party. The relevant question is whether the decision falls outside the range of reasonable decisions available on the evidence, so that there is a real prospect that the appellate court would interfere. In a road-traffic claim, whether a driver had sufficient time to see a pedestrian and take avoiding action is fact-sensitive. Where the trial judge has evaluated the evidence and reached a conclusion within that reasonable range, permission should be refused.

The claimant sought damages from the defendant taxi driver for serious injuries suffered when he was struck by the defendant’s car on 9 January 1998. The Colchester County Court dismissed the claim. The claimant applied to the Court of Appeal for permission to appeal, contending that the evidence showed he had been in the road long enough for the defendant to see him and avoid the collision. The central issue was whether the trial judge’s assessment of the available reaction time was one with which the Court of Appeal could properly interfere.

1. Application refused. Mr Justice Hart agreed with the judgment of Lord Justice Latham.
2. The trial judge had to decide whether the defendant could and should have seen the claimant enter the road in time to move to his offside. There was no oncoming traffic preventing that manoeuvre. The evidence about the period between the claimant entering the road and the impact was necessarily imprecise and conflicting.
3. The judge accepted that the defendant had been travelling at or about the 50 miles per hour speed limit. He assessed the period during which the claimant was in a position requiring action as approximately one and a half to two and a half seconds. He concluded that the claimant had not established that this was sufficient time for evasive action.
4. The Court of Appeal recognised that the decision might be regarded as favourable to the defendant. That did not justify appellate intervention. The decision did not fall outside the ambit of reasonable decisions open to the judge on the evidence, and there was no real prospect that the Court would interfere with it.

The formal order was that the application was refused.

• Court of Appeal (Civil Division): The claimant applied for permission to appeal and the application was refused.
• Colchester County Court: His Honour Judge Darroch dismissed the claimant’s claim for damages on 7 February 2002.