Faunch v O'Donoghue & Anor

A trial judge may conclude that an accident occurred in a way not advanced by either party. However, where the trial has been conducted on defined factual scenarios supported by expert evidence, and the judge proposes to decide on a materially different scenario, procedural fairness requires the judge to alert the parties and invite submissions. The judge will ordinarily need to permit further evidence, including expert evidence. An appellate court may decline to order a retrial only where the party resisting it shows that no further submission or evidence could affect the result.

Mrs Janet Faunch was seriously injured as a passenger in a motorway collision involving vehicles driven by the two defendants. The insurers agreed that the court should determine which driver was legally responsible. After a liability-only hearing before Mr Recorder Murphy in Southampton County Court, the Recorder accepted evidence placing the Ford Focus in the middle lane and held the driver of the Vauxhall Corsa solely liable.

The Recorder adopted a third account of the collision which had not been advanced at trial or put to the experts. The appeal concerned whether he was entitled to decide the case on that basis without inviting further submissions or evidence, including whether the expert evidence could properly support the new scenario.

Christopher Clarke LJ gave the judgment of the court. Ryder LJ and Sir Stanley Burnton agreed. The appeal was allowed, the Recorder’s order was set aside, and a new trial before a different judge was ordered.

1. Uncanvassed factual scenario. A judge may, in general, conclude that a road traffic accident occurred in a way different from the accounts advanced by the witnesses. But where the trial has been conducted by reference to two defined scenarios, each supported by expert evidence, and the judge adopts a materially different third scenario, the judge must at least indicate that this conclusion is being considered and invite submissions. In all probability, further evidence will then be required.
2. Materiality and appellate restraint. There is no ground for interference if it is apparent that no further submission or evidence could lead to a different conclusion. The burden of demonstrating that lies on the party resisting a new trial. That burden was not satisfied.
3. Need for further expert consideration. The Recorder relied heavily on Mr Lister, although his account was mistaken in an important respect. Further expert analysis might have affected the assessment of that evidence. Mr Natt would not have given an unqualified answer supporting the Recorder’s assumed scenario, while Dr Lambourn considered that the necessary data could not be established with sufficient precision. The expert work was therefore incomplete in relation to the scenario actually adopted.
4. The court considered that the same procedural course had been required in Devoran Joinery Co Ltd v Perkins (No. 2) [2003] EWCA Civ 1241, where the trial judge developed an own theory instead of recalling the relevant expert.

• Court of Appeal (Civil Division): allowed the appeal, set aside the Recorder’s order, and ordered a new trial before a different judge.
• Southampton County Court: after a liability-only hearing on 1 and 2 November 2012, Mr Recorder Murphy held the first defendant, the Vauxhall driver, solely liable.