Scott v Symons

On an appeal challenging a trial judge’s factual conclusion, the question is whether the conclusion was open on the evidence. A defect in subsidiary reasoning does not require reversal where the conclusion is independently supported by reliable and material features. A judge may resolve competing explanations on the balance of probabilities by considering objective evidence and admissions, even where an honest witness has incomplete recollection. The Court of Appeal upheld the finding that the motorcyclist, rather than the car driver, crossed onto the wrong side of the road.

The claimant, Mr Scott, was seriously injured when his Yamaha motorbike collided with a Fiat motor car driven by Mr Symons. The accident occurred on Ashley Lane near the junction with Lavender Road. The issue was whether the Fiat or the motorbike had crossed onto the wrong side of the road.

After a trial limited to liability, Mr Recorder Fordham QC found that Mr Scott had ridden onto the wrong side of the road. Mr Scott appealed with permission. The central issue was whether that factual conclusion was supported by the evidence and could properly stand on appeal.

1. Disposition. Moses LJ gave the principal judgment. Lord Neuberger and Rimer LJ agreed. The appeal was dismissed unanimously.
2. The recorder had to decide the competing explanations on the balance of probabilities. The defendant’s evidence had been read because he was unable to attend, and its weight was reduced because there had been no opportunity for cross-examination. Evidence from another witness established only the consequences of the collision and could not establish which vehicle had crossed the centre line.
3. The recorder was entitled to rely on two key features. First, the Fiat had successfully passed a stationary or nearly stationary BMW on its correct side of the road before the collision. It would therefore have had to cross onto the wrong side during the following 20 to 40 metres without any apparent reason. Secondly, Mr Scott accepted that he had been riding near the centre line and that his right hand might have crossed it while negotiating the bend. Those features supported the conclusion that the motorbike had crossed onto the wrong side.
4. The claimant was an honest and frank witness, but parts of his account represented reconstruction rather than clear recollection of events occurring in moments. The recorder was entitled to reject his account of being on the correct side when the competing inference was more likely on the evidence.
5. The recorder had relied, albeit faintly, on the motorbike’s speed and acceleration and on the cable reel carried by Mr Scott. Those were defective supporting reasons. The speed finding was inconsistent with reliance on excessive speed, and the cable reel was not linked by a sufficient finding to instability or inattention. Those defects did not undermine the two essential evidential features independently supporting the conclusion. The finding was therefore not open to successful challenge on appeal.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1354 dismissed Mr Scott’s appeal with permission.
• Winchester County Court: On 20 September 2011, Mr Recorder Fordham QC found that Mr Scott had ridden his motorbike onto the wrong side of the road and determined liability accordingly.