Smith v Hollocombe

Permission to appeal should be refused where the proposed grounds disclose no realistic prospect of success. In a fact-sensitive negligence case, an appeal cannot succeed merely because the appellant questions whether the trial judge’s conclusion was sufficiently supported. The appellant must show that the objective evidence is inconsistent with the judge’s assessment of the witnesses and findings. An appellate court will not substitute its own view for the trial judge’s evaluation of live evidence. The trial judge is also entitled to reject expert evidence where the issue is one of fact, particularly where the expert’s opinions are subjective or go beyond the proper scope of the instructions.

The claimant brought a running-down action after a fatal collision between her car and the deceased’s motorcycle. The Central London County Court, at the trial of liability, found the deceased wholly responsible because he had been travelling at excessive speed. The defendant’s personal representative sought permission to appeal, alleging failures to consider expert and photographic evidence, inconsistencies in the claimant’s account, and deficiencies arising from the judge’s extempore judgment. The renewed application was heard by the Court of Appeal.

1. Application refused. The renewed application disclosed no reasonable prospect of success.
2. The trial judge had heard extensive evidence and had seen the claimant give evidence. He found her honest and reliable and accepted her account that she had edged into the carriageway to obtain a view, had seen the motorcycle as soon as possible, and had stopped before the collision. The finding that the deceased’s excessive speed caused the accident was open to him on the evidence.
3. An appeal could not succeed merely because it was difficult to ascertain from the judgment whether the conclusion was soundly based. The appellant needed to demonstrate that the objective evidence was inconsistent with the conclusion reached after the judge’s assessment of the live witnesses. The proposed challenge depended on inference and surmise and did not meet that threshold.
4. Mr Justice Wall agreed. The trial judge was entitled to reject the expert evidence of Mr Jenner. His assessment of the facts was a matter for the judge, not the expert. The report was subjective and included material outside the proper scope of the instructions, including an unwarranted suggestion that the claimant may have contributed to the deceased’s death by attempting to remove his helmet.

• Court of Appeal (Civil Division): renewed application for permission to appeal from the Central London County Court was refused.
• Central London County Court: His Honour Judge Knight QC found the deceased wholly liable for the collision at the trial of liability on 23 January 2002.