Faunch v O'Donoghue and Anr
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Lord Justice Ryder,Sir Stanley Burnton |
| Judgment Date | 05 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1698 |
| Docket Number | B3/2012/3330 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 2013 |
[2013] EWCA Civ 1698
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Ryder
Lord Justice Christopher Clarke
Sir Stanley Burnton
B3/2012/3330
Mr M Laprell (instructed by DWF) appeared on behalf of the Appellant
Mr D Herbert (instructed by Moore Blatch Greenwood) appeared on behalf of the Respondent
On 20 December 2009, there was a road traffic accident on the eastbound carriageway of the M27 in which a Vauxhall Corsa driven by Mr Robert O'Donoghue, the first Defendant, collided with a Ford Focus in front of it driven by Mr John Brice, the second Defendant. Proceedings were brought by Mrs Janet Faunch who was a front passenger in the Vauxhall and who suffered serious injuries. Since she was, on any view, blameless, the insurers of the first and second Defendants arranged that the Court would determine which of the two Defendants was legally responsible.
The hearing on liability only took place on 1 and 2 November 2012 before Mr Recorder Murphy in the Southampton County Court. He heard evidence from a number of witnesses including Mrs Faunch; Miss O'Donoghue, who was a 15 year old rear seat passenger in the Vauxhall; Mr Brice, the driver of the Ford; and Mrs Brice, his wife, who was a front seat passenger in that car. Mr O'Donoghue, the driver of the Vauxhall, had no direct recollection of the accident. Travelling behind the Ford Focus was a car driven by Mr Mark Lister who was an entirely independent witness by whose evidence the Recorder was favourably impressed. Two experts gave evidence; Mr Michael Natt for the first Defendant, the driver of the Vauxhall, and Dr RF Lambourn for the second Defendant, the driver of the Ford.
The most critical question that the Recorder had to decide was which car was occupying the middle lane immediately prior to the accident. At the hearing, two scenarios were in play. Scenario one was that the Ford Focus was in the middle lane. The Vauxhall Corsa in the outside lane approached from the rear and pulled towards the middle lane when partially alongside the Ford. The driver of the Vauxhall then, having perceived the Ford Focus, pulled to the right and lost control. The Vauxhall then yawed to the left and in the course of doing so struck the Ford in the rear. When the Vauxhall made contact with the Ford, it was moving from right to left. This was the scenario posed by Dr Lambourn. It tallied with the evidence of Mr Brice, the driver of the Ford, and that of Mrs Brice.
After the accident, the police were called and shut off the scene. They took note of the yaw marks in the road which showed the passage of the Vauxhall from right to left. It ended up on the far nearside on the hard shoulder of the slip road. In Dr Lambourn's view, the collision had occurred after the Vauxhall had started to leave yaw marks on the road. These evidenced its lack of control which immediately preceded the collision.
Scenario two was that the Vauxhall Corsa was in the middle lane. It was travelling slightly faster than the Ford Focus. The Ford then pulled from the inner into the middle lane in front of the Vauxhall. The Vauxhall swerved to the right to try to get into the outside lane. In the event, the front nearside of the Vauxhall Corsa struck the rear offside of the Ford Focus. When it did so, it was moving from left to right. Because of the collision, the driver of the Vauxhall lost control and the Vauxhall then yawed across the motorway to the left, finishing up on the hard shoulder on the slip road. Under this scenario, the collision occurred before the yaw marks were made on the road.
It was accepted that the point of the collision was in the middle lane, but neither the expert evidence nor the tyre marks could of themselves determine which car was in which lane prior to the accident and in particular, whether one was on the nearside and one in the middle or one in the middle and one on the offside before the collision occurred.
Two issues were of importance in determining what happened. The first was the point of collision; that is to say where on the ground the collision occurred. The second was the point of impact between the Vauxhall and the Ford and the direction of travel of the Vauxhall at that moment. In relation to each of these points, the Recorder preferred the evidence of Mr Natt. He accepted his evidence that (I) the collision occurred before the start of the tyre marks, which was inconsistent with Dr Lambourn's scenario one; (II) that the marking on the Ford Focus showed that the Vauxhall was moving from left to right; and (III) that the damage on the Ford Focus was at the rear offside into which the front nearside of the Vauxhall had driven, as shown in what was described as diagram two. This was consistent with scenario two.
The judge did not, however, accept scenario two. He regarded Mr Lister as a thoughtful and persuasive witness. His evidence had been that the Ford was established in the middle lane and that the Vauxhall crossed from the offside lane into the middle lane with its indicator flashing as it did so. Its nearside wheels crossed the road markings separating the two lanes. The Vauxhall driver had failed to appreciate that the Ford Focus was in the middle lane. Then he did become aware of the Ford and moved sharply back. Then the Vauxhall went out of control.
The judge accepted this account. He held that the Ford was travelling marginally slower than the Vauxhall. When the Vauxhall driver became aware of the Ford in front, it swerved from left to right. In so doing, it struck the rear offside of the Ford Focus and caused both vehicles to go out of control.
That conclusion, although in part based on Mr Natt's evidence, was not a scenario which had been suggested at the trial or canvassed in evidence. Like scenario one, it had the Ford Focus in the middle lane and the Vauxhall in the offside lane, but under scenario one, the Vauxhall, having drifted somewhat into the middle lane, pulls to the right before any collision occurs, then loses control and then moves from right to left with contact with the...
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...it cannot be said that the trial judge's conclusion was based on an alternate scenario or was not supported by evidence. Faunch v O'Donoghue and another [2013] EWCA Civ 896 applied; Sohal v Suri and another [2012] EWCA Civ 1064 applied. 6. In an action for negligence, the claimant must a......
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