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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 >> Eyres v Atkinsons Kitchens & Bedrooms Ltd [2007] EWCA Civ 365 (24 April 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/365.html Cite as: [2007] EWCA Civ 365

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
THE HON. MR JUSTICE CRANE
5LS90166

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 April 2007

Lord Justice Ward:

Introduction

1. This is not a typical claim for damages for personal injuries suffered in a road traffic accident. The defendant is not the driver of another vehicle involved in the collision. No other vehicle was involved. Here the claimant was driving on the M1 at night when he braked suddenly and so violently that smoke appeared from the tyres. He lost control of his van which overturned and he was flung out because he was not wearing a seat-belt. He suffered a severe spinal injury which has rendered him an incomplete tetraplegic. The defendant in this case is the claimant's employer, the allegation being that the company are liable in negligence and/or for breach of statutory duty because, in short, they caused or permitted him to drive when he was too tired after having worked excessively long hours without a proper break. It is accepted that if the accident was caused by his tiredness the company are liable to him. Crane J. found, however, that the claimant's inattention through using his mobile telephone caused the accident and on 24th May 2006 he entered judgment for the defendant. The claimant now appeals.

The background facts

2. At the time of the accident on 11th August 2004 the claimant was a 20 year old kitchen fitter employed by the defendant, a small Bradford based company, the managing director of which was 28 year old Mr Craig Atkinson. It was a young company and a successful one. Its success was no doubt based upon hard work and the clear impression given to the judge was that long hours, resulting in good money, were accepted by all to be normal. If the work took them far from their factory base, the fitters, including the appellant, tended to prefer a long drive back to Bradford and getting home late rather than staying away overnight. Mr Atkinson's saying "Eating's cheating" and "You can sleep when you're dead" summed up the company's philosophy.
3. On the day in question the appellant arrived at the factory at about 3.30 am. He had had about four and half hours' sleep though he said he did not sleep well when he knew he had an early start the next morning. The early start was necessary because he and Mr Atkinson were scheduled to fit a kitchen in Swindon about 111 miles from the factory in Bradford. Having loaded the company's Volkswagen van, they set off at about 4 am. Driving was shared. The appellant did not sleep during the journey. They arrived at their destination about 7.30 am and started work approaching 8 am. The job was finished at about 2.30 pm. It was not particularly arduous physical labour.
4. While they were loading the van Mr Atkinson told the appellant that they had another job in Sidmouth, Devon, 122 miles away. The appellant may well not have known of this further task. Mr Atkinson drove, stopping at a service station near Bristol where he bought a Kentucky Fried Chicken meal for each of them, eaten in the van on the move. They arrived at the Sidmouth job at about 6 pm and left at about 7 pm. It was the appellant who drove home.
5. Shortly after they left the customer's house, the appellant asked Mr Atkinson if they were going to find somewhere to stay overnight, both having packed overnight bags. He told Mr Atkinson that he was "knackered". Nevertheless he raised no serious objection to their travelling home which was in accordance with common practice and he was quite content to do the driving even though he had not had any sleep at all that day.
6. They stopped for fuel at the Bristol service station at 7.57 pm. This was 75 miles from Sidmouth and it was another 188 miles to the scene of the accident which was 32 miles short of the factory in Bradford. Mr Atkinson slept for much of the way from Bristol onwards though he would have woken at 21.12 when he received a telephone call from his girlfriend to enquire when he would be home. The call only lasted ninety seconds.
7. There were two occasions when Mr Atkinson gave the appellant the opportunity to say that he would prefer not to drive. One was at the service station in Bristol and the other during the course of the journey. They were in effect no more than casual enquiries as to whether the appellant was all right. There was no serious questioning by Mr Atkinson of whether the appellant was safe to drive. If the claimant had said he was too tired, Mr Atkinson would have driven. They passed seven service station areas on the way home where the appellant could have stopped for a change of driver or for a rest. If he had stopped, the probability is that Mr Atkinson would have driven rather than a rest be taken.
8. It was not in dispute that during the journey the appellant used his mobile telephone which had a Bluetooth hands-free kit clipped to the back of his ear. In his witness statement he said that he would send "the odd text message whilst driving" but that "everyone at Atkinsons used their phones like that". The extent of that use was under thorough investigation at the hearing. His mobile phone records were produced and there were enquiries made of him as to the persons with whom he was communicating. The judge rejected the suggestion that he had gone out of his way to make tracing of these calls difficult.
9. An analysis has been placed before us of the use of the mobile and it shows this. At 19.55 his mother telephoned him and they spoke for 7 ½ seconds. At 20.18 he telephoned her and they spoke for 10 ½ minutes. At 20.34 he began to receive and to send a series of text messages the last of which was timed at 21.53. They started at 20.34 with Nicola Mirfield, who shared a house with him, sending him a text which she said in evidence was "general chit chat". She sent another message at 21.00. At 21.05 he replied. Her response came at 21.06, his at 21.10, hers at 21.11 and again at 21.12. At the same time Mr Atkinson was receiving his short telephone call from his girlfriend. At 21.13 Nicola sent yet another text to the claimant. He replied at 21.16 and she responded immediately then and again at 21.17. The claimant replied at 21.18, she responded at 21.19. His next message was sent at 21.20 and hers at 21.21 and then three from him at 21.23 and again at 21.24 and 21.27. By then, she explained, she was probably in bed with her machine set on silent. So she sent him nine messages and he sent her eight messages over the course of nearly one hour.
10. At 21.31 he sent a text to a girl called Rachel and at 21.37 a text to a number he could not identify. At 21.38 he sent a message to Alex Wooten which she said in evidence was "probably something like, 'Hi, how are you doing, what have you been up to?' just general". She said her reply would probably have been something along the lines of "I'm at work, it's boring", or something like that. She was at the time at work as a waitress.
11. At 21.38 he also sent a message to a girl called Elaine and at 21.39 a message to Kirsty Anne. The "conversation" with Elaine seems to have continued because he sent further texts to her at 21.42, 21.47, 21.48, 21.49 and 21.53, but we do not have her records to see her contribution to their exchange of pleasantries. 21.53 was the time of the last message of which there is a record.
12. That, therefore, is as far as the analysis of the telephone records can take us. In summary we know he sent a total of eighteen text messages to six recipients and received nine from Nicola and one from Alex. As the judge observed, "It is possible that there were in addition replies from some to whom messages were sent." For my part, I would regard it as probable that he was receiving messages from Elaine.
13. The accident happened at or about 10.15. It was reported to the police at 10.17 by Mr John Lang who made the call a couple of minutes after the accident. So about 22 minutes had elapsed since the last message of which there is a record.
14. Mr Lang gave a statement to the police on 22nd September 2004. He said:

"I was driving north on the M1 and had just passed junction 37. In the distance vehicles were braking, brake lights were visible. The white van approximately 60 yards in front in the middle began to brake violently. Smoke was visible from its tyres and the back end began to swing from side to side. The driver then lost control and the van rolled twice before finishing back on its wheels on the central reservation facing south. No other vehicle was involved."

15. In his witness statement he said:

"4. I recall being in the middle lane and was overtaking an articulated vehicle positioned in the inside lane. Approximately 50-60 yards ahead of me, in the middle lane, was a white van. I do not recall the white van having overtaken me, but I cannot say for how long I was behind the van.

5. The van was being driven in a straight line within the lane and was not veering or drifting. The traffic conditions at the time were not heavy, and I would describe them as medium.

6. In the distance I could see brake lights coming on for the traffic in all three lanes and the white van in front of me braked heavily. Smoke came from the tyres and the rear of the vehicle began to move from side to side with the van then rolling over into the central reservation, such that it ended up facing in the opposite direction.

…

10. At the time of the accident I was travelling at around 60-70 mph and the van in front was doing a similar speed. The driver of the van lost control when braking heavily. There was no other traffic in the three lanes between my vehicle and the white van. When the white van flipped to the right and across the fast lane, no other vehicle was involved."

16. Under cross-examination by Mr McDermott Q.C., for the claimant, this exchange took place:

"Q. Mr Lang you do not have any recollection of this van overtaking you, you have a recollection of it being in front of you?

A. Correct.

Q. Doing about the same speed?

A. Correct.

Q. And perhaps 50 or 60 yards ahead of you?

A. I would say so, yes.

Q. And traffic medium?

A. Medium for that time of day, yes.

Q. And there was not anything that caused you to brake violently other than this accident, was there?

A. Correct. That's right.

Q. And I take it from that there was not any obvious reason for him to brake as violently as he did to produce smoke from the tyres and for it to flip over?

A. Well, according to my statement, I remember at the time I could see beyond the white van, and there were brake lights coming on in the distance.

Q. But they were in the distance?

A. Yes.

Q. What you saw was very, very severe braking that made smoke come from the tyres and made the van go out of control?

A. Correct.

Q. Not a response to distant brake lights, not as far as you could tell?

A. Not as far as I could tell."

It was common ground before us at the hearing of the appeal that when Mr Lang spoke of the brake lights coming on in the distance, those lights were far ahead of the appellant and that he was not so close to them as to justify the heaviness of his braking.

17. P.C. Grant who attended at the scene of the accident summarised the evidence he understood Mr Lang could give in the following way:

"Travelling fifty metres behind vehicle and see it is going too fast to stop for stationary traffic. Sees it brake and roll over."

That account might suggest that the reason for the sudden braking was the fact that the van got too close to the traffic in front before braking, rather than it being a matter of the driver of the van thinking that he had got too close. As the judge observed:

"On the evidence of Mr Lang and his statement, it was a matter of sudden belief rather than actually being too close to the stopping traffic. I accept that version. The inference is that the claimant suddenly became aware of traffic stopping in the distance ahead, misjudged how close it was, and took a panicky braking action."

18. Both Mr Atkinson and the appellant were taken to hospital. The appellant was seriously injured: he had broken his back. The hospital records show that he was given morphine at 23.59 and again at 1.50 and 2.45. The registrar in the accident and emergency department, Dr Kay Stenton, saw the appellant at 11.21. She recorded that he told her:

"… that he was a van driver travelling up the M1 and was not wearing a seat belt. The next thing he could remember is that he was upside down in the van. That was as much as he told me about the circumstances of the accident."

She recorded that he had suffered no loss of consciousness by which she meant he had no head injury.

19. Also on duty at the hospital was the senior house officer Dr Marsland. The history of the accident from the appellant had already been taken by the orthopaedic registrar by the time Dr Marsland arrived in the department and that was relayed to him. He recorded it as "travelling down M1. Traffic in front stopped." That corresponds with P.C. Grant's mistaken account. The officer had accompanied the injured to the hospital. Dr Marsland was with the appellant and his family at various points in the night until about 5 am. He said that at no time was there mention of anyone falling asleep at the wheel. If there was, he would have recorded that in the notes.
20. It is not in dispute that the claimant failed for some considerable time after the accident to explain it by reference to his tiredness and sleeping at the wheel. On the other hand the defendant did not ever plead the claimant's use of his mobile telephone as the cause of the accident (but Mr McDermott sensibly took no pleading point about it at the trial or before us). So the issue joined before the judge was whether the accident was caused by tiredness and falling asleep or by use of the mobile telephone.
21. The parties had commissioned a joint report from Dr Shneerson with regard to the relationship of any sleepiness to the accident. He is the President of the Royal Society of Medicine's Sleep Medicine section and a recognised expert witness in his field. He explained that whether a subject is awake or asleep depends on several factors - (a) the length of time since previous sleep, (b) the circadian rhythms which promote sleep from late in the evening until around 6.00 am, (c) behavioural and psychological factors such as motivation, attention and physical activity and (d) reflex factors such as exposure to light and noisy environment. Hunger is associated with wakefulness and conversely after eating there is a tendency to fall asleep. In answer to the question whether the appellant would have been likely to have been tired at 10.15 pm, Dr Shneerson explained that he would have been significantly tired having been driving for over three hours on a monotonous major road which provides less stimulation for the driver than driving in a town or on smaller roads. Since Mr Atkinson was asleep, he would not have provided the stimulus of conversation. The appellant's circadian rhythms would by then have been promoting sleep rather than wakefulness, particularly since his usual bedtime appeared to have been around 10.30 pm. The long interval since his previous sleep would also have promoted sleep and it would by then have been dark so that he would not have had the stimulus of light to keep him awake "In my opinion", he said, "[the appellant] would have been sufficiently sleepy at 10.15 pm to have been likely to fall asleep while driving," (the emphasis is added by me).
22. He was asked:

"Does Mr Lang's witness statement help assess whether [the appellant] was asleep in the moments before the accident?"

He answered:

"Mr Lang gives a clear description of the van being driven by [the appellant] proceeding without veering or drifting from the middle lane of the M1 at around 60-70 mph until the van braked heavily and then went out of control. Up until the moment of braking there do not appear to have been any recognised features of driving while asleep. These include intermittent changes in speed due to loss of muscle activity in the leg controlling the accelerator, veering from lane to lane, or being drawn towards the lights of other vehicles. The sudden and apparently excessive braking is however consistent with [the appellant] suddenly being aware of the vehicles ahead of him after a period of reduced awareness due to drowsiness or a micro-sleep lasting a few seconds. The driving conditions appear to have been good and there was no reason to believe that [the appellant's] vehicle was in a position where such a sudden braking was required. This action appears to have been inappropriate for the circumstances and is consistent with suddenly regaining alertness for a brief period of drowsiness or a micro-sleep."

His conclusion was, therefore, that the evidence from Mr Lang was compatible with the appellant suddenly and inappropriately braking as would be expected if he had been drowsy or in a micro-sleep and suddenly regained awareness. He had been awake continuously for around 19 hours before the accident and driving on a monotonous motorway in the dark, all of which would have increased his propensity to fall asleep.

23. In answer to a question from the defendant's solicitor, he subsequently reported that if the appellant had obtained 4 ¾ hours sleep then unless he had a previous nap for 15-30 minutes together with a caffeinated drink he would still have been sufficiently sleepy to have been at risk of falling asleep while driving at 10.15 pm, the italics again being mine. He enclosed extracts from his book on sleep medicine which describe what is meant by micro-sleep:

"These are brief episodes of sleep, lasting only a few seconds. The subject may not have any recollection of falling asleep, but is usually aware of having been sleepy and of waking suddenly at the end of the micro-sleep.

…

Micro-sleeps are brief episodes of sleep lasting 1-10 s. They are common and identifiable by a fixed gaze, absence of blinking and a blank facial expression. The subject may not have any recollection of falling asleep, but is usually aware of having been asleep and of waking suddenly at the end of the micro-sleep."

He also discusses causes of accidents and observes:

"Alertness falls after around 60 mins driving and the mean duration of driving before a sleep-related accident is around 4 h."

24. His response to the defendant's solicitors also contains this material passage:

"The absence of intermittent changes in speed, veering from lane to lane and being drawn towards the light of other vehicles, taken together with Mr Lang's description that the vehicle was travelling at a steady speed within the middle lane makes it unlikely that [the appellant] was asleep at that time. Sleepy drivers do however have lapses in concentration and brief episodes of sleep (micro-sleeps) in which awareness of the surroundings is reduced and following these episodes the subject may then become more aware again of the driving conditions. During the lapse in concentration or micro-sleep the driver tends to decelerate because of lack of muscle activity in the leg applied to the accelerator pedal and it would be unusual to brake in this state. Sudden braking occurs at the moment of attaining awareness again and in this situation there is commonly an over-reaction with excessive braking which may lead the driver to lose control of the vehicle or in the case of an articulated lorry for the vehicle to jack-knife. Sudden regaining of attention is not specific to having felt sleepy, but may also occur following a distraction, such as adjusting the radio or using a mobile telephone. It is not possible to be certain for how long [the appellant] may have been asleep prior to braking suddenly, but Mr Lang's witness statement does not provide any evidence to suggest other than that [the appellant] had only been briefly asleep or had a brief lapse in concentration."

25. It was not in dispute that between the Bristol service station and the scene of the accident, the appellant's average speed must have been 83 ½ mph. Since at the time of the accident his speed was not more than 70 mph, and since inevitably there must have been other times when the speed was significantly less than the average, it follows that there must have been times when his speed was at least 90 mph.

The judge's reasoning

26. These seem to me to be the essential strands of his judgment.

"71. The claimant's driving was grossly irresponsible and dangerous. Apart from the speed itself, to send and receive these text messages was contrary to Regulation 110 of the Road Vehicles Construction and Use Regulations 1986, as amended. It was contrary to the Highway Code, and it was contrary to elementary common sense. Although he said he would have rested the telephone on the steering wheel ahead of him, and not looked down, he would have been likely to take his eyes off the road for several seconds, particularly when composing messages. He also accepted in cross-examination that his eyes would become focused on the telephone. While he did that travelling at 70 mph, a vehicle travels approximately 100 yards every three seconds.

…

76. … The inference is that the claimant suddenly became aware of traffic stopping in the distance ahead, misjudged how close it was, and took a panicky braking action.

…

79. The claimant states that he remembers nothing of the accident until he found himself spinning round in the van. He concluded that he must have fallen asleep. He accepts that he said nothing about that to anyone in the first few weeks, but in fact did not discuss the accident at all. He says he had been feeling sleepy all day. Although he referred to being "knackered", or tired, I think it is most unlikely that he felt sleepy all day. He said that Mr Atkinson had taught him to wind the window down and wiggle his toes if he felt tired. It is not completely clear, but he appears to be saying in his statement that he did that. However, he has no memory, he says, of nodding off prior to the happening of the accident.

80. In cross-examination, the claimant accepted the possibility that he might have been reading a text message received or composing a message, or even that he had got as far as selecting a further number but not sent the message. He says he does not think that he had done that. However, the truth is that he cannot say whether he had nodded off or whether he was dealing with a text message.

81. The evidence does not wholly rule out a brief loss of consciousness, not appreciated by the hospital or others. However there is certainly no evidence of any head injury which would cause any organic pre-accident amnesia. The claimant states that he has no memory of the main exchanges of text messages, or of realising that he had nodded off or of driving at the speeds he did. I find that difficult to believe. It may have been that he would not be able to remember every message, but he has not been frank with the court about the way in which he drove. There is no good reason why he could not and cannot remember at least most of the journey, and it thus becomes more significant that he did not speak of ever nodding off prior to the crucial time.

…

87. Dr Shneerson of course did not have the benefit of the detailed evidence about the use of the mobile phone or the speed. It seems to me that the hard driving and the use of the mobile phone, although not carried out with the intention of keeping awake, would probably have had the tendency, like anything else that concentrates the mind, to help keep the claimant awake.

88. I turn to my conclusion. It is clear that the claimant's attention to the road ahead was interrupted, albeit not for very many seconds. There was no veering, as Dr Shneerson points out. His attention to the road then resumed and he took sudden action, apparently on seeing the brake lights in the distance ahead. It would appear that his eyes were not at that time properly focussed on the distance. That situation is, as Dr Shneerson points out, consistent with micro-sleep, that is "nodding off" as counsel have described it. However, it is also consistent with the resumed use by the claimant of his mobile phone. The evidence is inconsistent with any more extensive period of sleeping.

89. I have said that I do not fully accept the claimant's assertion of a lack of memory of the final leg of the journey. Although I accept that he would be tired, it is significant that there is no evidence from him of feeling sleepy or drowsy, or of previously nodding off, except for the implausible assertion that he had been sleepy all day. There is on the other hand clear evidence, although he does not speak of it, of fast driving combined with exchanging text messages at least until 20 minutes before the accident.

90. In all the circumstances, particularly my view of the claimant's lack of frankness about his driving, and my conclusion that he must remember more than he says, I have come to the conclusion that the mobile phone use is the more probable of the explanations. Certainly the claimant has not satisfied me on the balance of probabilities that he did nod off. Had I taken the view that it was micro-sleep which caused the accident, I should have found the defendant negligent."

27. The judge went on to deal with contributory negligence "in case the matter is considered elsewhere". It was accepted that the injuries would not have occurred if a seatbelt had been worn and so the usual measure of contributory negligence of 25% was adopted. The judge did not accept that that level of contributory negligence should be reduced because the employers did not encourage the wearing of seat belts. The defendant company also contended that the claimant would have been contributorily negligent if he had been driving when knowingly tired. The judge said:

"I cannot arrive at a definitive finding of contributory negligence when I have found the facts in the way that I have. However, at least if the claimant had fallen asleep after feeling sleepy, there would have been some additional contributory negligence in not stopping or requesting Mr Atkinson to take over. However, the measure of that contributory negligence would have been reduced because Mr Atkinson was present and was negligent personally in the way I have indicated."

Application to adduce fresh evidence

28. Although the judge did not expressly refer to it, he had medical evidence from Mr Brian Gardner, a consultant surgeon in spinal injuries, which had been served with the particulars of claim. In it he said this:

"The records indicate that his Glasgow Coma Scale score was 15 initially and that he did not lose consciousness. He indicates that he does not have full memory of events before the accident and that he does not have full memory of events after the accident for 4-5 days. However he was on morphine medication post-injury. He has no impairment of memory, concentration, personality or other features."

29. The judge dealt with his injuries in this way:

"78. The claimant was in fact taken to hospital in Barnsley. He was in great pain until he was given morphine at about midnight, and he was transferred to Sheffield during the night. The hospital records note: "No loss of consciousness", although the claimant had been thrown out of the vehicle and suffered multiple injuries. He was in bed for 12 weeks and was desperately worried about whether he would be able to walk again. Dr Marsland states there was no evidence of head injury.

…

81. The evidence does not wholly rule out a very brief loss of consciousness, not appreciated by the hospital or others." [Paragraph 81 is set out in full above].

30. The appellant now wishes to introduce fresh evidence from Mr Gardner in which he acknowledges that most would interpret the paragraph from his report set out above as meaning that he (the appellant) did not sustain a head injury. Minor head injuries are apparently often overlooked following spinal cord injury. He wishes to clarify his report by adding that he could find no alternative explanation for his reported impaired memory for pre- and post-accident events, other than head injury. The prolonged duration of the amnesia might be accounted for by the medication he was taking. His conclusion is that:

"… notwithstanding the A&E and other early features, [the appellant] did sustain a brain injury. … I believed then, and still do now, that [the appellant] cannot remember all events for several days after his injury and has impaired memory for matters prior to his injury."

31. Mr Frank Burton Q.C., who now appears for the respondent, opposes the introduction of that fresh evidence. He submits that it was obvious that the claimant's integrity would be under attack at the trial and as his case was that he could not remember, evidence of this kind was clearly material to bolster that account. Secondly, in view of the fact that the judge was prepared to accept that the evidence did not wholly rule out a very brief loss of consciousness, this fresh evidence would not have had an important influence on the result of the case. Mr McDermott, on the other hand, points to the judge's disbelief at his lack of memory for pre-accident events and the relevance they played in the judge's conclusion. Finally Mr Burton submits that although no-one would question the expertise of Mr Gardner in his specialist field, evidence of the kind he is tendering should come from a neurologist not a consultant surgeon and so he questions whether the evidence is reliable.
32. Although I see the force of Mr Burton's second and third submissions, I am not wholly persuaded by either of them. I am, however, satisfied that this was evidence of a kind which could have been obtained with reasonable diligence for use at the trial and for that reason I would refuse to admit it.

An analysis of the judgment

33. The crucial paragraphs are 88, 89 and 90 where the judge sets out his conclusions. These are the facts he finds in paragraph 88:

(1) the claimant's attention was interrupted but not for very many seconds;

(2) when he attended to the road ahead again he took sudden action;

(3) this was caused by seeing brake lights in the distance ahead;

(4) at that time his eyes were not properly focused on that distance;

(5) that is consistent with a micro-sleep;

(6) it is also consistent with resumed use of the mobile telephone; and

(7) the evidence is inconsistent with any more extensive period of sleeping.

34. This must be read with paragraph 76 where the judge infers that:

(1) the claimant suddenly became aware of traffic stopping in the distance;

(2) he misjudged how close it was and

(3) he took panicky braking action.

35. The judge clearly has in mind the obvious alternative explanations for this accident: either the claimant nodded off, or he was busy on his mobile telephone. In the next paragraph, 89, he considers each of those issues.
36. He deals first with sleeping as follows.

(1) He repeats his finding that he does not fully accept the claimant's assertion of a lack of memory of the final leg of the journey. It is not quite clear to me what he means by "fully". His reference back is to paragraph 81 where the judge draws attention to the appellant's lack of memory of:

(a) the main exchanges of text messages;

(b) his realising he had nodded off;

(c) his driving at the speeds he did.

(2) He accepts he would be tired.

(3) Nonetheless the judge found it "significant" that there was no evidence from the appellant of his feeling sleepy or drowsy or of previously nodding off except for his assertion that he had been sleepy all day. This links back to paragraph 79 where the judge records his saying that he had no memory of nodding off prior to the happening of the accident. I am not sure why the judge finds it significant that there is that lack of evidence. Does he mean that the appellant had previously fallen asleep and knew it but was not being frank about it? That is not consistent with his earlier finding, point 7 set out in paragraph 33 above, namely, that there was no extensive period of sleeping. If there was no evidence of earlier episodes of sleeping or micro-sleeps, this could have been the first time he fell asleep. It seems to me that the judge was right to find there was no earlier sleeping because nothing untoward had occurred within the vision of Mr Lang such as veering across the road, braking suddenly or any deceleration, the hallmarks of falling asleep, nor was Mr Atkinson conscious of any sufficiently violent movement of the van to have woken him up.

(4) The judge then describes the appellant's assertion that he had been sleepy all day as "implausible". I confess this surprises me. The judge referred to the appellant's saying he had been feeling sleepy all day in paragraph 79. Then he added that although he had referred to being "knackered", or tired, the judge thought it "most unlikely that he felt sleepy all day". The judge, correctly in my view, equated "knackered" with being tired, picking up the appellant's own words in cross-examination, and I see no support for Mr Burton's argument that "knackered" was a description of his physical exhaustion after a hard day's labouring. The judge had in fact found the day was not arduous. I must accept the judge's conclusion that it was "most unlikely" that he felt sleepy all day and on that basis the appellant may have been guilty of some exaggeration. But it is hardly an implausible assertion. He had been up since 3 am, had done his day's work, had driven for some three hours and at the time of the accident it was 10.15 pm. The judge accepted in paragraph 89 that he would be tired so why he needs to castigate this evidence as implausible is not at all clear to me. It is, however, a tiny point.

37. Paragraph 89 also deals with the use of the telephone. The judge records "the clear evidence, although he does not speak of it, of fast driving combined with exchanging text messages", but, as he has to accept there is no evidence of those activities in the last 22 minutes of the journey. I am not sure why the judge added the italicised words. As I shall set out, the appellant did give evidence, albeit under cross-examination, of fast driving, he spoke of using his mobile telephone in his witness statement and he acknowledged in cross-examination the calls he had made and received.
38. The conclusion comes in paragraph 90. The judge takes account of:

(1) all the circumstances;

(2) in particular the lack of frankness about the driving; and

(3) his conclusion that the appellant must have remembered more than he said.

Those are the matters which seem to compel the judge's conclusion that the use of a mobile telephone was the more probable of the explanations and that falling asleep was not shown to the judge's satisfaction on a balance of probabilities.

39. Let me analyse those three factors. I will deal with all the circumstances shortly and I look first at the lack of frankness. Mr McDermott submits the judge was not justified in coming to that view. Mr Burton submits it is a finding we have to respect. Reading the judgment as a whole, this does not read like a judgment which depends on a finding of credibility. It is not a case of, "I did not believe the claimant". The judge had to resolve some issues of fact and found some against him, for example, at what time the claimant got up and how long it took to load the van. Much more dramatically, he did believe the claimant when he said that Mr Atkinson had tried to persuade him to take the rap for Mr Atkinson on an occasion when Mr Atkinson had committed a speeding offence for which penalty points would be imposed such as would disqualify him. The judge had in paragraph 47 observed of both the claimant and Mr Atkinson that their precise memories on detail were not always good and had been shown to be partially inaccurate and he said:

"Where their evidence conflicts, I am on the whole driven to prefer one version to the other from the surrounding circumstances and probabilities, rather than generally preferring one to the other."

There was no conflict between them about the actual accident because both said they could not remember it.

40. So was the judge justified in concluding that the appellant had shown a lack of frankness? The first question that arises is to determine where he was lacking frankness. The judge's view is that he lacked frankness "about his driving" (paragraph 90) which is consistent with his finding in paragraph 81 that he had not been frank with the court "about the way in which he drove". If the finding is so limited, then the relevant evidence seems to be confined to his exchange:

"Q. We know that the journey from [the Bristol service station] to Barnsley was 188 ½ miles.

A. Right.

Q. And we know that it took almost exactly two and one quarter hours to achieve that distance.

A. Right.

Q. That means that your average speed between [the service station] and where the accident happened in a van was 83 ½ mph. Your average speed, Mr Lang thinks that the accident happened when you were going about 70 mph.

A. Yes.

Q. So there must have been times when you were going faster than that.

A. I wouldn't have thought much faster but …

Q. It is a grossly excessive speed, is it not?

A. I suppose so.

Q. Particularly when you are sending and receiving texts? Do you agree or disagree with this proposition, that your driving was grossly irresponsible?

A. I wouldn't have said … I don't really know the answer to that.

Q. Well, try.

A. It was stupid."

Many would think that was a frank answer. Thus I am puzzled to understand the thrust of the judge's criticism.

41. The third plank of the conclusion is that the appellant must have remembered more than he said. This harks back again to paragraph 81 recording the claimant's stating that he had no memory of the exchange of text messages, of realising he had nodded off, or of driving at the speeds he did. That is what the judge found difficult to believe. The judge could not accept that he had no memory of what the documents demonstrated had actually been happening. It must be remembered that the claimant had disclosed his use of the telephone in his witness statement, he had given discovery of all documents and answered all enquiries that he could and was acquitted by the judge of a suggestion that he had been obstructive in that regard. In his lengthy cross-examination he did not prevaricate about his use of his telephone. Perhaps the judge formed an adverse impression of him from this little exchange:

"Q. Now, these are all numbers that were stored on your machine, are they?

A. Yes.

Q. They are not numbers that you remember or that you were looking at an address book for, or anything, they were all on your machine already?

A. Oh, yes.

Q. Stored away. Do you know who that is, 938?

A. Not off the top of my head, no.

Mr Justice Crane: You're not giving evidence off the top of your head, this is something you have been given a chance to speak about, to think about, so this is not something that you have just been asked about off the top of your head.

Mr Featherby: May I just have a second to find this letter, because I misunderstood my instructions about this. I will carry on and it will be found.

A. I think, I'm not 100% sure, but I think it was somebody called Elaine.

Q. Elaine.

A. Who I met on holiday."

42. When it came to his lack of memory these passages are material. First he was asked about the telephone call Mr Atkinson had from his girlfriend at 12 minutes past 9. He was asked:

"Q. Do you remember that?

A. No, I don't recall that he said anything.

Q. But do you remember him receiving a call?

A. Vaguely."

43. A further challenge to his memory came in these passages:

"Q. … let me just read out what you said about the accident, and this is all you have said, "I had been feeling sleepy all day. I cannot remember a great deal about the accident. I remember driving up the M1, and the next thing I remember was spinning around in the van. The van rolled into the central reservation, I must have fallen asleep." What you are telling us there is that the first thing you were aware that something was going horribly wrong was the van spinning around.

A. Yes.

Q. By that time you had lost control.

A. Yes.

Q. Or were losing control.

A. Yes.

Q. What is the next thing before that that you remember?

A. Just actually driving up the M1.

Q. Well one bit of the M1 is much like another bit. Do you remember how long before it was?

A. No, I don't, no.

Q. Because you were flung out of the van in the accident, were you not?

A. Yes.

Q. And you hit the tarmac presumably, or the verge?

A. Yes.

Q. Some hard surface?

A. Possibly, yes.

Q. So really you are unable to tell us how long your memory is before the accident?

A. I'd say, you know, minutes. Well, sorry, a matter of 20 seconds or so before the accident.

Q. You remember though texting Elaine.

A. I don't actually remember doing it until I was told about the phone records.

Q. Do you remember sending texts?

A. No, I don't.

Q. Then you do not have a memory of anything before the accident do you?

A. Well, obviously I remember being on the motorway driving.

Mr Justice Crane: Sorry, when you were asked about what you remember about sending texts, are you saying that even now you are reminded by the records ---

A. Yes.

Q. --- you do not remember any texting on that journey?

A. Not while I was driving back, no."

44. The cross-examination concluded:

"Q. The fact of the matter is you were sending texts and reading texts?

A. No, it wasn't.

Q. And you were driving far too fast?

A. No.

Q. And if you fell asleep at all, or whatever inattention there was, it can only have been momentary because, according to Mr Lang who witnessed the accident, your van carried on in a straight line, and just at the last minute braked and it was lost control of.

A. Yes.

Q. Did you have other little nodding off moments along the way from [the service station] to Barnsley?

A. No, not that I remember."

45. The judge will have borne in mind his earlier acknowledgement that the evidence did not wholly rule out a very brief loss of consciousness. He will have borne in mind the fact that there was the evidence from Mr Gardner of the appellant indicating he did not have a full memory for the events before the accident. He also had the evidence of Dr Stenton who admitted him to hospital that whereas he did remember not wearing a seatbelt, "the next thing he could remember was that he was upside down in the van." His memory is, therefore, as Mr Burton points out, selective.
46. There was, therefore, some conflict of evidence. In the face of all of that material, I cannot bring myself to conclude that the judge was not entitled to find that the appellant lacked frankness and must remember more than he said. They may not have been findings I would have made but that is not to the point. This is an experienced judge who had the opportunity to observe the appellant give his evidence and to form his views about him. He does not expressly advert to his demeanour but the impression he made upon the judge must have had its effect and rightly so. I must, therefore, reject Mr McDermott's challenge that the judge was wrong to make the findings of fact he did.
47. It is, nonetheless, essential also to see what the judge did not find. He did not find that the claimant was lying when he denied using his telephone in the moments before the accident. He merely found a lack of frankness about his driving and a better memory than he proclaimed. Where does that take us?
48. Mr McDermott's next challenge is that the judge fell into error in that he failed to give himself a Lucas direction – the well-known case of R v Lucas [1981] Q.B. 720. All recorders are taught that a lie told by a defendant can only strengthen or support evidence against the defendant if the jury are satisfied that (a) the lie was deliberate, (b) it relates to a material issue and (c) there is no innocent explanation for it. The jury are to be reminded that sometimes people lie out of shame or out of a wish to conceal disgraceful behaviour. Since Crane J. served for years on the Criminal Committee of the Judicial Studies Board teaching recorders all about Lucas, I for my part simply cannot accept that he would not have had regard to that jurisprudence.
49. Mr McDermott's next challenge is that the judge fell into an even more fundamental error explained in R v Middleton [2001] Crim. L.R. 251 that he failed to guard against the forbidden line of reasoning that the telling of lies equals guilt. This does concern me more. Reading paragraph 90 of the judgment does give the impression that what particularly swayed the judge was, first, this lack of frankness about his driving with the implication that he was telling some lies somewhere about some thing or things and, secondly, his conclusion that he must remember more than he was prepared to admit which again gives rise to the implication that he was not truthful in what he did say. The reasoning does seem to be that those lies compel the conclusion that mobile phone use was the more probable of the two explanations for this accident.
50. A more accurate direction for the judge would have been to remind himself that in view of the lies, or the lack of truth, he had to be cautious before accepting the claimant's case. But the claimant's case was not the positive one – "I fell asleep at the wheel." It was rather – "I must have fallen asleep at the wheel." That leads to the conclusion as the judge had found in paragraph 80:

"The truth is he cannot say whether he had nodded off or whether he was dealing with a text message."

51. If that is the case, and it does appear to me to be so, then it is essential that all the circumstances of the case have to be analysed carefully to see where the balance of probabilities lay, and indeed whether he could be satisfied on the balance of probability at all. The judge takes account of all the circumstances of the case but in his conclusion he does not analyse them and balance one possibility against the other. It is an essential analysis. I turn to it.

What are the material circumstances?

52. What is necessary in this case when looking at all the circumstances is to endeavour to isolate those facts for and against the two possible explanations for the accident - use of the mobile as against falling asleep. Since it was not a task explicitly undertaken by the judge, we are left uncertain as to how he balanced the probabilities for and against those alternatives.

The case for and against use of the mobile telephone

53. The only evidence in support is the proven propensity to use his mobile telephone whilst driving as demonstrated by his use earlier in this journey. So there is a possibility that he was making another call or composing another text. His "conversations" with Nicola Mirfield and Alex Wooten had been concluded. His "conversation" with Elaine lasted from 21.38 to 21.53 and that too would seem to have come to its end. He had also called three others between 21.31 and 21.39. Is it likely he would have waited another 22 minutes before starting another conversation? Since he was using his telephone constantly from 20.34 to 21.53 I would have thought it was more likely he would have carried on making calls immediately after 21.53 and not waited those 22 minutes before trying again. It is, however, also possible that he received a call just before the accident. We do not know what response he had from the three calls recorded only as outgoing calls made by him. It is, therefore, possible that one of those callers may have replied to him. However, Mr Atkinson gave no evidence of being woken by the telephone ringing or the text message bleeping. But then he gave no evidence of having been disturbed by the earlier calls. Use of a mobile telephone must, therefore, be a possibility.
54. The case against the use of the mobile telephone as the cause of this accident depends upon the fact that he seems to have been adept enough in its use to have suffered no apparent loss of attention earlier during the course of the journey (and probably in the course of many other journeys). There is nothing to suggest any earlier inability to focus as he lifted his eyes from the mobile held on the steering wheel to watch the road ahead. Thus the rhetorical question is why should he have lost concentration on this occasion?
55. What is the evidence for the case that he fell asleep? These factors seem to me to come into play.

(1) The judge accepted he would be tired. That must be right. He had been awake since 3 am, awake for 19 hours. At the start of the journey home some time after 7 pm he complained of being "knackered" by which he meant, as the judge accepted, that he was tired.

(2) He had driven over 200 miles and, with a short break at the service station, he had been on the road for over 3 hours. Alertness would have fallen after an hour, said Dr Schneerson.

(3) Absent use of his mobile, there was no stimulation to keep him awake. Mr Atkinson was asleep next to him.

(4) It was dark.

(5) The road was monotonous.

(6) His circadian rhythms would have been promoting sleep.

(7) According to Dr Shneerson, a micro-sleep lasts a few seconds (1-10 seconds) and the subject may not have any recollection of falling asleep.

(8) Dr Shneerson's opinion was that he would have been sufficiently sleepy at 10.15 pm to have been likely to fall asleep, or at least, to make Mr Burton's point, to have been at risk of falling asleep.

56. The case against his falling asleep depends upon:

(1) He did not in the immediate aftermath of the accident or for some weeks afterwards attribute it to his falling asleep.

(2) He did not remember falling asleep.

(3) He did not feel so tired as to need to take a rest or to require Mr Atkinson to take over the driving.

(4) He had a second wind (though this related to the time at the service station 188 miles and over 2 hours before the accident).

Conclusion

57. What conclusion can and should be drawn from this material? One more crucial set of facts must be brought into play. This comes from the evidence of Mr Lang who witnessed the accident.

(1) There was nothing wrong with the appellant's driving. He maintained a straight course at a steady speed. There is no evidence of deceleration indicating that he had taken his foot off the accelerator through falling asleep.

(2) He was in no danger from the brake lights showing in the distance. As the judge found this was a sudden, panicky reaction. His eyes were not properly focused on the distance as the judge found.

(3) The reaction was extreme. He braked so hard that smoke was visible from the tyres.

58. What should that tell us? The judge had found in paragraph 87 that the hard driving and use of the mobile telephone would probably have had the tendency, like anything else that concentrates the mind, to help keep the claimant awake. So the judge was finding that the appellant would have been wide awake when he used his mobile telephone. The crucial question is this: having been driven perfectly ordinarily according to Mr Lang, presumably being aware because he was awake of the distance between him and the traffic ahead but then taking his eyes off the road for some seconds, and looking up to see the brake lights ahead, would he have so panicked as to have braked heavily enough for smoke to come from the tyres and for him to lose control? Or is that panic more likely to be induced by a micro-sleep out of which one awakens with no immediate sense of where one is or what one is doing?
59. Taking all the factors into account, and balancing the one argument against the other, my conclusion is that the appellant has shown on a balance of probabilities that he fell asleep and that his sleeping was the cause of this accident. My conclusion is that the learned judge was wrong to find otherwise.

Contributory negligence

60. The appellant was held to be 25% to blame for his injuries because he had not been wearing a seat belt and there is no challenge to that. Issue is joined as to the degree of additional contributory negligence by virtue of driving whilst tired and liable to fall asleep. Mr McDermott concedes that something should be added and suggests a further 5-10%. Mr Burton puts the contributory negligence as high as 75% in total.
61. The judge found, rightly in my view, that the evidence is inconsistent with any more extensive period of sleeping than a micro-sleep. In other words he was finding that the first time the appellant fell asleep was the time of the accident. He accepted he would be tired but he found it significant that there was no evidence from him of his feeling sleepy or drowsy. In my judgment there must have been some time, albeit a short time before the accident, when he must have realised he was at risk of falling asleep. He must bear some further personal responsibility for his accident. On the other hand, he was in that predicament because his employers had put him there. His employer was next to him fast asleep. His employer was doing nothing to guard against the very risk of injury from which he ought to have been saving his employee. Bearing in mind the relative blameworthiness and causative potency of the parties' respective faults and their degrees of responsibility, I would assess the appellant's overall contributory negligence to be 33%.

The result

62. In the result I would allow the appeal, enter judgment for the claimant for damages to be assessed but with those damages to be reduced by 33% having regard to the claimant's own contributory negligence.

Lord Justice Moore-Bick:

63. I agree.

The Rt Hon. Sir Martin Nourse:

64. I also agree.