Martin Moor v Aviva Insurance Limited & Anor

In a road-traffic negligence claim, the claimant bears the burden of proving on the balance of probabilities that the defendant driver fell below the standard of a reasonable road user and caused the collision.

The court should make positive findings of fact where the evidence permits, rather than decide the case solely by resort to the burden of proof. In reconstructing an accident, the court should avoid excessive analytical or scientific refinement where the available evidence is limited. Hearsay evidence may remain admissible despite non-compliance with the notice requirements of the Civil Evidence Act 1995, although the failure may affect its weight and costs consequences.

The claimant sought damages from Aviva Insurance Limited and Midhurst Engineering & Motor Co Ltd following a collision between his motorcycle and the second defendant’s recovery lorry on the A272 in Hampshire. The claim against the first defendant was brought in its capacity as insurer, and the claim against the second defendant arose from its employment of the driver.

The three-day trial was confined to liability. The parties advanced materially opposed accounts. The claimant said that the lorry had crossed the centre lines into his carriageway. The defendants said that the claimant had taken a bend at excessive speed, crossed into the opposing carriageway and collided with the lorry.

The central issue was which vehicle was positioned in the wrong carriageway when the collision occurred and whether the defendants’ driver had acted negligently.

1. Liability and burden of proof. The claimant had to establish, on the balance of probabilities, that the second defendant’s driver drove below the standard expected of a reasonable road user. If the driver had entered the claimant’s carriageway as alleged, he would have been negligent; if the claimant had crossed into the opposing carriageway and caused the collision, the claim would fail.
2. Findings of fact. The court rejected the claimant’s account and accepted the driver’s evidence. The claimant was found to have travelled at excessive speed, taken the preceding bend too widely and remained in the opposing carriageway. The driver saw the danger, braked and moved towards the verge. The collision was therefore caused solely by the claimant’s driving. The claim was dismissed.
3. Assessment of evidence. The court considered the claimant’s inconsistencies and omissions, the driver’s consistency, the independent evidence of Mr Emery, the contemporaneous account of Mr Woodford-Sines and the physical evidence. The accident reconstruction evidence did not establish the precise point of impact or vehicle speeds, but the sightline evidence and surrounding circumstances supported the defendants’ account.
4. Accident reconstruction. The court applied the caution in Clayton v Lambert [2009] EWCA Civ 237 against being overly analytical or scientific when reconstructing an accident. Common-sense evaluation of the evidence remained appropriate.
5. Hearsay. The recorded account of Mr Woodford-Sines was hearsay. Under sections 1 and 2(4) of the Civil Evidence Act 1995, the absence of a notice did not affect admissibility, but could be considered in relation to the conduct of proceedings, costs and the weight of the evidence.