Eyres v Atkinsons Kitchens & Bedrooms Ltd

Where evidence supports two competing explanations for an accident, the court must identify and balance the facts supporting each. A finding of lack of frankness requires caution. It must not be converted into the forbidden inference that lies prove the alternative case. A claimant may prove an inferred cause even without a positive memory of the event. Contributory negligence requires assessment of relative blameworthiness, causative potency and responsibility. An employee who drives while tired and liable to fall asleep bears additional responsibility, but the reduction should reflect the employer’s responsibility for creating the danger. The appeal was allowed because the judge had not properly balanced the evidence concerning fatigue and mobile-phone use.

The appellant, a kitchen fitter, suffered severe spinal injuries when his employer’s van overturned on the M1. He had worked and driven for many hours and had exchanged text messages while driving. The central issue was whether the accident was caused by a fatigue-related micro-sleep or by mobile-phone use.

Crane J accepted that the appellant was tired but found mobile-phone use the more probable cause and entered judgment for the defendant. He stated that, had he found that a micro-sleep caused the accident, the defendant would have been negligent. He assessed seat-belt contributory negligence at 25% in the alternative. The Court of Appeal considered the challenged fact-finding, an application to adduce fresh medical evidence, causation and contributory negligence.

Appeal allowed. Ward LJ delivered the leading judgment, with Moore-Bick LJ and Sir Martin Nourse agreeing.

1. The application to adduce fresh medical evidence was refused. The evidence could have been obtained with reasonable diligence for use at trial.
2. The Court accepted that the judge was entitled to make his findings about the appellant’s lack of frankness and memory. However, the reasoning in the crucial paragraphs did not undertake the essential comparative analysis of the two possible causes. A conclusion that the appellant had not proved that he fell asleep was insufficient without balancing the evidence for and against fatigue and mobile-phone use.
3. The court must be cautious when relying on lies or lack of frankness. The principles discussed in R v Lucas [1981] Q.B. 720 did not justify the inference that dishonesty established the alternative cause. The forbidden reasoning identified in R v Middleton [2001] Crim. L.R. 251 had to be avoided.
4. On the proper balance of probabilities, the evidence favoured a micro-sleep. The appellant had been awake for about 19 hours, had driven for more than three hours on a dark and monotonous motorway, and lacked stimulation from his sleeping employer. Expert evidence explained that a micro-sleep may last only seconds and may leave no memory. The witness evidence of steady driving followed by extreme, panicky braking was consistent with suddenly regaining awareness after a micro-sleep.
5. The appellant bore additional responsibility because he should have realised that he was at risk of falling asleep. Applying relative blameworthiness, causative potency and degrees of responsibility, his overall contributory negligence was assessed at 33%. This included the unchallenged 25% reduction for failure to wear a seat belt.

Judgment was entered for the claimant for damages to be assessed, subject to the 33% reduction for contributory negligence.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 365, the appeal was allowed. Judgment was entered for the claimant for damages to be assessed, subject to a 33% reduction for contributory negligence.
• Queen’s Bench Division, Leeds District Registry: Crane J entered judgment for the defendant on 24 May 2006, finding mobile-phone use the more probable cause of the accident. No citation for that decision is stated in the judgment.