Beggs v Jenkins

A trial judge’s clear factual finding should not be disturbed on appeal merely because another assessment of the evidence is possible. Where the judge has given rational reasons for preferring contemporaneous evidence from an independent witness, appellate intervention is particularly difficult. Common-sense observations about ordinary behaviour may inform factual reasoning when read in context, but must not be treated as a freestanding objective legal test. On accepted findings that a collision would have been avoided at a safe speed but occurred because the driver was travelling materially faster, the excessive speed was causative.

The respondent, then aged four, and his mother were struck by the appellant’s car while crossing a residential road in 1992. The trial took place about 18 years later. The Recorder found that the appellant had overtaken a stationary bus at about 27 miles per hour, while the respondent and his mother had walked into the road at a normal to brisk pace. He concluded that the appellant had been negligent and that the negligence caused the collision.

The appellant appealed on causation grounds. He challenged the finding that the pedestrians had walked rather than run, the weight given to the evidence of an absent eyewitness, and the conclusion that the collision would have been avoided at a safe speed.

The appeal was dismissed. Lady Justice Hallett gave the reasoned judgment, with which Lady Justice Black and Lord Justice Longmore agreed.

1. The challenge to the Recorder’s finding that the respondent and his mother walked into the road faced a considerable hurdle. The Recorder had considered the evidence as a whole and gave rational reasons for preferring the first statement of Mr Preston, an independent bystander who had observed the sequence of events, to the appellant’s evidence and the less reliable recollections of other witnesses. The passage of time did not prevent reliance on the contemporaneous account.
2. The Recorder was entitled to take account of ordinary pedestrian behaviour. Read in context, his observation about what an ordinary mother would do was not an objective legal test. It supported the factual inference that the mother had crossed normally while concentrating on traffic expected from the left, rather than launching herself and her child rapidly into the road.
3. The Recorder was entitled to proceed on a travel time of 1.2 seconds after finding that the pedestrians had walked into the road. His careful approach, including inviting further expert calculations during the trial, showed that he understood the distinction between walking and running and required no further assistance.
4. On the accepted assumptions that the travel time was 1.2 seconds and that a safe speed was 15 to 20 miles per hour, the collision would not have occurred but for the appellant’s excessive speed of 27 miles per hour. The negligence was therefore causative. The mother’s police statement was not relied on or served under the Civil Evidence Act, and could in any event have been unreliable.

Order: Appeal dismissed.

• Court of Appeal (Civil Division): Appeal from the decision of Mr Recorder Richard Jones QC at Birmingham Civil Justice Centre. The appeal was dismissed in [2011] EWCA Civ 953.