Bray v Palmer
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 09 October 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1009-5 |
| Court | Court of Appeal |
| Date | 09 October 1953 |
[1953] EWCA Civ J1009-5
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Morris
MR. M.R. FOX-ANDREWS, Q. C. and MR. CYRIL WILLIANS (instructed by Messrs Rider, Meaton, Reredith & Mills, agents for Messrs Bobbett Bros., Bristol) appeared on behalf of the Appellant (Plaintiff).
MR. M.L. SERRYMAN, Q. C. and MR. G. C. MACDONALD (instructed by Mr. F. Mollis, agent for Messrs F. N. Metcalfe & Co. Cristol) appeared on behalf of the Respondent (Defendant).
We need not trouble you, Mr. Herryman.
This is a curious and difficult case: "curious" in that the learned and experienced Judge who tried it himself said it was unique in his experience, and "difficult" because it is with reluctance upon a matter of this kind that I approach any criticism of this Judge's Judgment; but I have come to the regrettable conclusion in the circumstancesthat there should be here a new trial. Having reached that conclusion (which I hope I will justify in a moment or two) it obviously is not proper that I should give more than the barest necessary outline of the facts. Fortunately, they can be simply and shortly stated.
The two Plaintiffs — they were each a Plaintiff in a separate action, but that is irrelevant — were proceeding upon a motor-cycle travelling southwards towards ristol upon the main road from Gloucester about the middle of a summer's day, namely, on the 6th August, 1951. The road was a main road and it was a wide road, 26 ft. wide approximately. Coming in the opposite direction was the Defendants driving a small motor-car with passengers in the motor-car. There was no other traffic at the material part of the road and the only obstacle in the way of either was a pool of water (the exact dimensions of which is a matter in dispute) which had been caused by the circumstance that, following heavy rains earlier in the day or in the previous night, a gutter has become blocked on the side of the road, which was the left side from the point of view of the Defendant. It appears not to be in dispute that the Defendant moved outwards (that is, towards the centre or right hand of his road) in order to avoid driving through this pool. What is the kernel of the matter so far as the conflict of evidence is concerned is the extent of his right-handed movement and whether it was one movement or more than one. However that may be, the Plaintiffs on their motor-cycle as they approached near to the car moved themselves right-handed to their off side. They said it was because the Defendant, in the course of his manoeuvre or the second part of his manoeuvre, left them no room to pass on their own side. The Defendants said it was an inexplicable move on the Plaintiffs' part for which there was no justification such as the Plaintiffs had suggested. Whatever be thetruth, the fact is that the two, the motor-car and the motor-cycle, met more or less in what is called a head-on collision exactly, or more or less exactly, in the middle of the road. Neither the motor-car nor the motor-cycle was proceeding at an unduly fast speed, but, of course, the effect of a head-on collision is to add the two speeds together for the purpose of judging the result of the impact so that the Plaintiffs, one or both of them, suffered severe injuries. They alleged in their actions that the cause of it was the negligence of the Defendant and the Defendant by his Counterclaim said that the collision was due to the negligence of the Plaintiffs or that one of them who was driving. The allegations in the Pleadings follow the usual form in these cases.
The stories as I have very briefly indicated them are obviously in direct conflict. The Defendant added a further embellishment in that, according to him and his witnesses, there was also a pool of water on the motor-cyclists' side of the road and that the Plaintiffs were moving away or driving towards the centre in order to avoid that puddle. But that embroidery on the story the Judge found to be untrue. The learned Judge heard evidence of other witnesses independent of the accident and not participants in it, namely, a man called Galloway, who lived in a nearby house, and a policeman; but, beyond rejecting that part of the Defendant's story which I have mentioned, he did not give any indication of a preference for one set of witnesses over the other in the matter of credibility.
Having heard the case and the evidence, the Judge reserved his Judgment over night to consider it carefully, and it is plain from his Judgment that he did most carefully consider it. The Judgment includes a full summary of the evidence which I have very briefly stated. His conclusion was to this effect: he said that after considering theevidence and its mutually repugnant character he was of opinion as a matter of fact that the accident must have been due to the exclusive negligence of one side or the other and he put aside altogether the possibility of both having been to blame. But having stated his first conclusion, he then said that, on the evidence, he was quite unable to make up his mind which was the right story and...
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