Dickens v Bearman

A person approaching the nearside of a vehicle is not, without more, negligent, whether the engine is running or a reversal may later be anticipated. A defendant alleging contributory negligence bears the burden of proving it. Possibilities that might have supported negligence cannot replace evidence explaining the claimant’s conduct. An appellate court may reassess a conclusion drawn from objective CCTV evidence where it is as well placed as the trial judge. The exceptional restraint applicable to revising an apportionment does not govern where the appellate court rejects the finding that both parties were at fault.

The claimant was injured after being struck by a vehicle reversing near a nightclub. The only liability evidence was CCTV footage; no live witness evidence was admitted. The Queen’s Bench Division found the driver negligent but apportioned responsibility equally, finding the claimant partly to blame. The claimant appealed. The defendant renewed an application for permission to appeal against the apportionment. The central issues were whether the evidence justified any finding of claimant negligence and whether the ordinary appellate restraint on altering an apportionment applied.

The claimant’s appeal was allowed. Lord Justice Mantell delivered the principal judgment, with Lord Justice Clarke and Mr Justice Rimer agreeing.

1. The appellate court was as well placed as the trial judge to assess the objective CCTV evidence, having viewed it several times. It could therefore differ from the judge’s conclusions where appropriate. The trial judge’s factual account was accepted, but the legal conclusion drawn from it was not.
2. The driver was negligent in failing to keep a proper lookout and in reversing too briskly in the circumstances. Primary liability was therefore established.
3. The burden of proving that the claimant was also to blame rested on the defendant. The evidence did not establish why the claimant returned to the vehicle. He might have been summoned or might have attracted the attention of someone inside, but those possibilities could not establish contributory negligence.
4. The claimant’s approach to the nearside of the vehicle was not, by itself, evidence of negligence. This remained so whether or not the engine was running and whether or not he might have anticipated a later reversal. Further evidence might have supported a finding of negligence, but it was absent.
5. The restrictive approach to appellate revision of apportionment stated in The MacGregor [1943] AC 197 did not apply. The appellate court was not accepting a conclusion that both parties were responsible; it rejected the finding that the claimant was at fault.

The defendant was held wholly liable for the accident and all its consequences. The defendant’s renewed application for permission to appeal was refused. A minute of order was to be lodged with the court.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and substituted an order holding the defendant wholly liable.
• Queen’s Bench Division: Mr Justice Davis found the driver negligent but apportioned responsibility equally between the claimant and defendant.