Britt v Starr

On an appeal against findings of fact in a rapidly unfolding road accident, the appellate court must respect the trial judge’s advantage in seeing and hearing witnesses. A trial judge may determine the probable course of events from the whole evidential picture, even where individual accounts are incomplete or inaccurate in detail. Approximate calculations of speed, distance and reaction time do not justify declaring findings impossible where they have an evidential foundation. A judge need not accept one witness’s account in every particular, or spell out every consideration affecting credibility, provided the reasons sufficiently explain the result. It is also possible for a driver to look and still fail to see an objectively obvious vehicle. Appellate intervention requires more than disagreement with the evaluation of the evidence; the findings must be unsupported or perverse.

In Britt v Starr, the defendant appealed against the Plymouth County Court’s finding that his negligent driving caused a road traffic accident. Mr Britt had turned right on to the A38. His vehicle was not directly involved in the subsequent head-on collision between Mr Starr’s and another vehicle, but Mr Starr claimed that Mr Britt had driven across his path, causing him to take emergency evasive action.

The Recorder accepted Mr Starr’s account. The appeal challenged the factual findings as impossible or unsupported, alleged inadequate reasoning, and argued that insufficient weight had been given to other evidence and to matters affecting Mr Starr’s credibility. The central issue was whether the Recorder’s findings were open on the evidence and sufficiently explained.

1. Appeal dismissed. The Court of Appeal unanimously upheld the Recorder’s finding that Mr Britt had failed to keep a proper lookout and had entered Mr Starr’s carriageway when it was unsafe to do so.
2. On an appeal against factual findings, the appellate court must recognise the trial judge’s significant advantage in seeing and hearing the witnesses and testing their evidence in cross-examination. Findings of fact are necessarily an incomplete expression of the impression made by the evidence. The trial judge is not required to articulate every consideration affecting the assessment of rapidly unfolding events or witness credibility.
3. A judge determining the probable course of events is entitled to evaluate the evidence as a whole. Witness accounts may be incomplete, accurate in some respects and inaccurate in others. The judge need not accept any witness’s precise account in every detail. The Recorder was entitled to construct a probable sequence of events which differed in detail from each witness’s account.
4. The calculations relied upon by the appellant used approximate estimates of speed, distance and reaction time. They did not demonstrate that the Recorder’s findings were impossible. There was evidential material supporting the conclusion that Mr Starr had sufficient time to see the danger and take evasive action, but insufficient time to avoid an accident safely.
5. The Recorder was also entitled to take account of the difficulty in Mr Britt’s evidence: he had a substantial sight line towards the approaching traffic but did not see Mr Starr’s vehicle. A driver may look and nevertheless fail to see something which is objectively obvious. The appellant’s suggestion that a person either looks and sees everything or does not look was too simplistic.
6. The Recorder’s treatment of the evidence of Mrs Britt and Mr Heather, and his acceptance of Mr Starr’s credibility without express findings on every surrounding matter, did not disclose an error of law. His reasoning sufficiently explained why Mr Starr succeeded and Mr Britt failed, and the findings were not perverse.

Order: Appeal dismissed.

• Court of Appeal (Civil Division): The appeal was dismissed. [2010] EWCA Civ 936
• Plymouth County Court: Mr Recorder Patterson found that Mr Britt’s negligence caused the accident and entered judgment on liability against him on 21 September 2009.