Boyle v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice Black |
| Judgment Date | 05 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1477 |
| Docket Number | Case No: B3/2013/0736 |
| Date | 05 November 2013 |
| Court | Court of Appeal (Civil Division) |
[2013] EWCA Civ 1477
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE TURNER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lady Justice Black
Case No: B3/2013/0736
Elizabeth Gumbel QC (instructed by Bindmans) appeared on behalf of the Applicant
Mr Edward Bishop QC and Ms Laura Johnson (instructed by the Directorate of Legal Services) appeared on behalf of the Respondent
(As Approved)
At 2.00am in the morning of Saturday 26 th January 2008 Jonathan Boyle met with a catastrophic accident. He was at or near a bus stop on Grove Road, London E3, when for no apparent reason he left (or fell from) the pavement and he was struck by a car coming along the road behind him. That car was being driven on his own by Mr Alf Currey, at that time an acting sergeant in the Metropolitan police force. He was responding to a call but was in no particular hurry. He was driving in a restricted area at somewhat over the speed limit, namely between 32 and 35 mph. Turner J, hearing the issue of liability, held that this was negligent and that a safe speed would have been about 28 mph.
Mr Boyle sadly has no memory of the event and is now a paraplegic. His case at trial was that Mr Currey should have been driving nearer the middle of the road than he was or should have swerved into the middle of road when he saw Mr Boyle. In either of these events, the accident would not have happened at all. Alternatively, if Mr Currey had been driving at 28 mph, his impact speed at the time of the accident would have been in the range of 20 to 23 mph rather than his actual speed at the time of impact, which was agreed to be in the range of 32 to 34 mph. In that event, it was said, that Mr Boyle would have suffered "less extensive injury", as it was put in paragraph 8.10 of his Particulars of Claim.
The judge held that Mr Currey, whom he decided was a conscientious and credible witness, was not negligent in failing to drive nearer the middle of the road, nor was there evidence to suggest that if he had braked and swerved at the time he saw Mr Boyle the accident would not have occurred. For that to happen, the judge said, his driving speed would have had to be in the region of 20 mph. He also held that there was no evidence that if the impact speed had been 28 mph rather than 33 mph Mr Boyle's injuries would have been less extensive. The position as to that was that Miss Gumbel QC for Mr Boyle had applied on the morning of the trial to serve out of time a three-page report with over 70 pages of statistical attachments from a medical expert on spinal injuries, Mr Gardner MA FRCS FRCP. This report had only been served on Friday 22 February, one working day before the trial was due to begin. The judge rejected her application, partly on the grounds that it was far too late for this expert evidence to be served, but also, and in his view importantly, on the ground that it did not in its current form assist the court to determine the extent to which Mr Boyle's injuries would have been less extensive if the impact speed had been less.
There was no no correlation of any opinion to the attached 70 pages of statistics. All that Mr Gardner was able to say was "If the speed of impact was less, then the claimant's injuries would probably be less" and "If a lesser degree of damage to Mr Boyle's spinal cord had occurred, then his spinal cord would function better." These comments are, as the judge himself said of the first comment, no more than a statement of the obvious.
Mr Boyle now appeals to this court with the permission of Arden LJ on essentially three grounds. (1) The judge misunderstood the expert evidence in relation to Mr Currey's failure to swerve, or to brake and swerve, into the middle of the road. (2) The judge was wrong to conflate the issue of permission to serve the report and the issue of its utility. (3) Even if there was doubt as to utility of the report in the form it was presented to the judge, the right course was that the whole question of causation should have been deferred to the subsequent determination of the quantum of claim. I should explain there had already been an order for a split trial on liability and quantum. There could, said Miss Gumbel, be no prejudice to the defendant in such a course, save as to costs, which she accepts would have to be paid by the claimant.
I deal first with the factual matter or, as Mrs...
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