Ievers v Prebble

An appellate court should be slow to interfere with trial findings of fact, but may do so where a material finding has no evidential basis. A trial judge may accept parts of each competing account where neither account is wholly reliable. The judge must not construct a third version of events without giving the parties notice and an opportunity to challenge it. Where an unsupported factual finding is essential to an apportionment of negligence, the apportionment cannot stand. The appeal was allowed.

The claimant’s Peugeot and the defendant’s Mazda collided while approaching a complicated roundabout. The claimant alleged that both vehicles were in the appropriate lane and that the Mazda cut across her path. The defendant maintained that she had remained in the correct lane and that the Peugeot moved across in front of her.

The County Court found that the claimant was straddling lanes while attempting to move into the correct lane, that she was ahead of the Mazda, and that both drivers were partly responsible. Responsibility was apportioned 70 per cent to the claimant and 30 per cent to the defendant. The defendant appealed, arguing that there was no evidence for the findings that the claimant had not completed her manoeuvre when the lights changed and was ahead of the Mazda.

1. Appeal allowed. The apportionment of responsibility was set aside because the material findings supporting negligence by the defendant had no evidential basis.
2. Per Moses LJ, an appellate court must remain extremely sceptical of appeals on factual matters. Reading pleadings and transcripts cannot reproduce the impact of the evidence at trial. Nevertheless, it remains open to the appellate court to ask whether there was any evidence capable of supporting the trial judge’s factual conclusion.
3. The parties’ accounts were mutually inconsistent. Neither driver had asserted that the claimant was ahead of the Mazda at an angle, still completing her manoeuvre after the lights changed. The judge had therefore created a compromise version of events which was not supported by the evidence. The location of the damage to the Mazda reinforced that conclusion.
4. On the findings properly available, the claimant had been moving from the wrong lane towards the correct lane, while the defendant had remained in the correct lane. Without the unsupported finding that the claimant was ahead and visibly completing that manoeuvre, there was no basis for finding the defendant negligent or for apportioning blame to her.
5. Per Sedley LJ, a trial judge may accept some facts from one account and some from the other when neither account is wholly satisfactory. The judge may not find the true facts to lie between or beyond the competing accounts without notice to the parties and an opportunity to test and challenge that case. Order: appeal allowed.

• Court of Appeal (Civil Division): Appeal from the decision of HHJ Hampton in Leicester County Court dated 12 November 2009. The appeal was allowed.