Breakspeare v Pawlowski

On renewal of an application for permission to appeal, permission may be granted where the proposed appeal raises a genuine challenge to the first-instance reasoning and its success is not a foregone conclusion, even though the challenged findings may fall within the trial judge’s fact-finding province. In a road-accident case, it may be arguable that a driver who could and should have seen an approaching road user was not entitled to emerge without giving way. The grant of permission does not determine liability. The primary findings may still support contributory negligence by the injured road user.

This was a renewed application for permission to appeal from a judgment given by His Honour Judge Bursell QC, sitting in the High Court at Bristol on 9 November 2005, in favour of the defendant in a road-traffic collision claim. The claimant cyclist entered Long Street from Church Street. The defendant emerged from Hampton Street across give-way lines and collided with him. The judge found that the defendant had failed to look sufficiently carefully, but held that, even if he had looked and seen the cyclist, he would not have been required to give way. The central issue was whether that reasoning disclosed an arguable appeal despite the trial judge’s fact-finding role.

Application granted. The renewed application for permission to appeal was allowed, with the usual direction that the case proceed to mediation.

1. The first-instance judge had found that the defendant failed to look with sufficient care and would have seen the claimant had he done so. Those primary findings provided a cogent basis for arguing that the defendant was at least partly responsible for the collision.
2. The judge’s further conclusion that the defendant would not have been required to give way, even if he had looked and seen the claimant, disclosed an arguable issue. If the claimant was sufficiently far back not to present a danger, the conclusion appeared inconsistent with the fact that the danger materialised and the collision occurred. If the defendant would instead have been entitled to decide that it was safe to emerge, that conclusion was also debatable.
3. The Court of Appeal was not required at the permission stage to determine whether the matter ultimately fell within the trial judge’s fact-finding province. The appeal was not a foregone conclusion, and permission was therefore appropriate.
4. On the trial judge’s findings, there was likely to be some contributory negligence because of the claimant’s manner and speed of entry into Long Street, and possibly because he was not wearing a crash helmet. That possibility did not remove the arguable case against the defendant.

• High Court, Bristol District Registry: On 9 November 2005, His Honour Judge Bursell QC gave judgment for the defendant in the road-traffic collision claim.
• Court of Appeal (Civil Division): On renewal of an earlier unsuccessful permission application, permission to appeal was granted and the case was directed towards mediation.