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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Hollocombe [2002] EWCA Civ 906 (18 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/906.html Cite as: [2002] EWCA Civ 906

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight QC)

		The Royal Courts of Justice The Strand London Tuesday 18 June 2002

Tuesday 18 June 2002

1. LORD JUSTICE SIMON BROWN: This is a renewed application for permission to appeal from the order of Judge Knight QC made in the Central London County Court on 23 January 2002 on the trial of the issue of liability in a running-down action brought by the claimant respondent following a tragic fatal accident on 2 May 1999 on the A39 Minehead to Bridgwater road in Somerset. The two vehicles concerned were the claimant's Cirtoën motorcar, which was emerging from a private road leading to a nursery garden with a view to turning right westwards towards Minehead, and the deceased's Triumph 600cc motorcycle, which was travelling eastwards towards Bridgwater. In a word, the claimant needed to cross the deceased's path. The judge found the deceased to have been wholly to blame for this collision, essentially through having ridden too fast. By this application the deceased's widow, his personal representative, seeks permission to appeal against that conclusion.
2. The hearing before the judge below lasted from 10.30 in the morning until about 6.25 in the evening, ending with an immediate judgment which had begun at about 5.50 pm. The notice of appeal extends to no fewer than nine pages, the applicant's skeleton argument to 15. Essentially the judgment is attacked upon a variety of grounds, but not least for the judge having allegedly failed to consider the expert evidence and the photographic evidence, for having failed to deal with various inconsistencies in the claimant's accounts of the accident and for giving an extempore judgment so very late in the day.
3. In refusing permission to appeal, when initially I considered the application on the documents, I said this:

"I find none of the proposed grounds of appeal persuasive. The judgment seems to me properly and sufficiently reasoned. No appeal here could succeed on the Flannery basis - still less in the light of this court's recent decision in English v Emery Reimbold & Stick Limited (unreported 30th April 2002). At the end of the day, having heard extensive evidence - including, most importantly, the claimant's - the judge found it 'compelling', honest and reliable (see judgment p15). No evidence demonstrated to the contrary. On this approach the judge was clearly entitled to acquit her of any negligence and to place the blame solely on the deceased.

I see no reasonable prospect of succeeding on appeal."

4. I nevertheless indicated that if the application were to be renewed it should come before a two-judge court. That is because the case is obviously one of very considerable importance to the applicant and it seemed to me right that through counsel she should be given the opportunity to persuade at least one member of a two-member court that an appeal here would have a realistic prospect of success.
5. Despite Mr Randolph's best efforts, however -- and I refer not merely to his initial skeleton but to a supplemental skeleton and to his oral submissions advanced to the court this morning -- neither of us in the event has been persuaded that an appeal here could prosper. It is plainly not appropriate on an application of this character to seek to deal with all the various criticisms that have been made of the judgment below. The plain fact is that this experienced judge, having heard and seen the claimant giving her evidence, found her to be an honest and reliable witness, whose account he accepted.
6. Essentially, that account was to the effect that she needed to edge out into this carriageway some distance before she could sufficiently see in both directions whether she could safely make her right-hand turn (so much, indeed, is indisputable on the expert and photographic evidence) and that she did so, looking twice in each direction; that she saw the approaching motorcycle as soon as she could, by which time she was already some seven or eight feet across the east-bound carriageway, although still a couple of feet short of the road centre; and that she instantly stopped but, alas, the motorcyclist lost control of his bike and crashed into the front offside of her stationery vehicle.
7. The judge attributed blame, as I have indicated, entirely to the motorcyclist's excessive speed, some 60mph (if not more), that being the legal limit in force for that part of the road but clearly too fast, given the nature of the stretch of road in question.
8. In Mr Randolph's further skeleton argument he submits:

"... that it is difficult to ascertain from the judgment whether this conclusion [ie that the collision was solely the fault of the deceased's excessive speed] was soundly based on the evidence or not."

9. That, in my judgment, is not merely an unpromising, but clearly an insufficient, basis for granting permission to appeal. In a case such as this, no appeal could hope to succeed unless in reality the objective evidence could be demonstrated to be inconsistent with the judge's conclusion, based on his assessment of the live witnesses' evidence. Mr Randolph cannot hope to establish that. On the contrary, his argument is necessarily based on an inference, itself based on surmise. I maintain the view that initially I expressed on the documents, namely that this appeal has no reasonable prospect of success, and I would accordingly refuse this renewed application.
10. MR JUSTICE WALL: I agree. I add one comment simply on the judge's approach to the expert evidence. In my judgment the judge was entirely entitled to reject the evidence of Mr Jenner. Leaving on one side whether or not Mr Jenner had the relevant qualifications to express the opinions that he did, it is quite clear from an assessment of Mr Jenner's report that his responses are entirely subjective, and his assessment of the facts which was, in my judgment, within the province of the learned judge. The extent to which Mr Jenner stepped outside the scope of his instructions is, to my mind, demonstrated by the fact that he makes what must inevitably be the extremely hurtful suggestion that Mrs Smith may well have in some way contributed to Mr Hollocombe's demise by her attempt to remove his helmet. In a situation which is as tragic as this, and in which one has every sympathy for the widow and her family, such a comment in no sense helps and in my judgment goes a long way to discredit the evidence which Mr Jenner gave. In any event, since the issue was one entirely of fact, it was for the judge to decide it, not Mr Jenner, and in these circumstances the judge was entitled to reject Mr Jenner's evidence. I therefore entirely agree with everything my Lord has said.
ORDER: Application refused