Elson v Stilgoe (Rev 1)

An appellate court should not interfere with a trial judge’s primary factual findings, particularly credibility assessments, unless the judge was plainly wrong. A driver travelling properly on the correct side of the road at an appropriate speed is not in breach merely because he did not anticipate a cyclist’s sudden, momentary veer into his path where the cyclist had no good reason to enter the lane and was not there for sufficient time to require evasive action. Findings supported expressly or by necessary implication may establish that the cyclist was the sole cause. Contributory negligence need not be determined where primary liability is not established.

The claimant was injured when his bicycle collided with a vehicle driven by the defendant. He had been overtaking stationary traffic near a flooded area and entered the defendant’s lane on a single-carriageway road in dull early-morning conditions. Following a liability-only trial, the Walsall County Court dismissed the claim, finding that the defendant was driving properly and that the claimant had veered into his path.

The claimant appealed, challenging both the factual finding about the cyclists’ position and the conclusion that the defendant had not failed to keep a proper lookout or take evasive action. The central issue was whether the defendant should reasonably have anticipated and avoided the claimant’s movement into his lane.

The appeal was dismissed on primary liability.

1. The challenge to the finding that the cyclists were riding alongside one another concerned a primary finding of fact based substantially on witness evidence and credibility. The appellate court applied the settled principle that it should not interfere unless the trial judge was plainly wrong, referring to McGraddie v McGraddie [2013] UKSC 58 and the observations of Lewison LJ in FAGE UK Ltd and Anr v Chobani UK Ltd and Anr [2014] EWCA Civ 5. Although the judge had not expressly explained why he preferred the defendant’s evidence to Mr Cowan’s on the single-file issue, the finding was not material once the reasoning on primary liability was upheld.
2. The judge’s findings were sufficient to determine the duty-of-care issue. The defendant was travelling properly on his own side of the road at a speed appropriate to the conditions. The claimant moved onto the defendant’s side before reaching the puddle, should have seen the approaching vehicle and should have stopped. His movement was a momentary veer into the defendant’s path, without good reason. On those findings, the claimant had not been on the defendant’s side for sufficient time to require the defendant to take evasive action, and there was no reasonable basis for the defendant to anticipate such a sudden movement. The defendant was therefore not required to stop or steer left.
3. The findings established, expressly and by necessary implication, that the claimant was the sole cause of the collision and that the defendant was not at fault. The suggested apportionment for contributory negligence was not determined because that issue arose only if some liability had first been established.

• Court of Appeal (Civil Division): dismissed the appeal against the dismissal of the personal-injury claim on primary liability: [2017] EWCA Civ 193.
• Walsall County Court: following a liability-only trial on 12 May 2015, His Honour Judge Mithani QC dismissed the claim and found that the defendant was not responsible for the accident.