Davies & Ors v Pay

An appellate court may set aside a trial judge’s factual decision where the conclusion materially depends on a fallacious assumption, questionable evidence, or a failure to consider relevant evidence, including undisputed physical evidence. The appellate court should not substitute its own findings where deciding the issue requires a fresh assessment of primary facts and the careful weighing of all relevant evidence. In a negligence claim, the claimant must prove on the balance of probabilities that the defendant’s conduct caused the accident, at least in part. Where the existing fact-finding process is inadequate and the appellate court cannot safely resolve the facts, the proper course is remission for a new trial before a different judge.

The widow and two minor children of Dylan Davies brought proceedings against Wesley Pay under the Fatal Accidents Act and on behalf of the deceased’s estate. They alleged that the respondent’s negligent motorcycle riding caused the accident in which Mr Davies died. After a liability-only trial, Mr District Judge King found that Mr Davies’s own negligent riding caused the accident and dismissed the claim. The appellants contended that the judge had failed to consider relevant evidence, including the road position of the respondent’s car and the deceased’s reaction to the earlier near-collision. The central issues were whether the factual findings could stand and whether the Court of Appeal could substitute its own findings.

1. Appeal allowed. The County Court judgment was set aside and the case was remitted for a new trial before a different judge, preferably a Circuit Judge.
2. The claimants had to prove, on the balance of probabilities, that Mr Davies’s accident was caused at least in part by his reaction to a hazardous situation created by the respondent’s negligent riding. The relevant alleged hazard was the Renault’s temporary movement towards the southbound carriageway when its driver swerved to avoid the respondent.
3. The trial judge’s conclusion could not stand because he had not conducted a sufficient review of the evidence. His finding that Mr Davies had overshot the bend in the same manner as the respondent apparently relied on evidence that was inconsistent with the undisputed road markings, which suggested that Mr Davies put his motorcycle down while still on the southbound carriageway.
4. The judge also proceeded on the fallacious assumption that Mr Davies first saw the Renault only after it had completed its corrective manoeuvre and was no longer hazardous. The evidence permitted the possibility that Mr Davies saw the car while it was still presenting a hazard and took emergency avoidance action. The judge gave no apparent consideration to that possibility.
5. The finding that Mr Davies was travelling at the same inappropriate speed as the respondent also depended on questionable evidence. Even if Mr Davies had reacted defensively to the hazard, it would not necessarily follow that he had not also been riding dangerously fast. Resolving those issues required the considered weighing of all relevant evidence and reasoned findings of primary fact.
6. The Court of Appeal was not in a position safely to undertake that fact-finding exercise itself. The case therefore required a complete retrial without any constraint arising from the observations in the appellate judgment.

• Court of Appeal (Civil Division) allowed the appeal, set aside the County Court judgment, and remitted the case for a new trial before a different judge.
• Aldershot and Farnham County Court, before Mr District Judge King, conducted a liability-only trial and dismissed the claim on the basis that the deceased’s own negligent riding caused the accident.