Mansur Haider v DSM Demolition Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] EWHC 2712 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: APPEAL REF BM80195A |
| Date | 16 October 2019 |
[2019] EWHC 2712 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street
Birmingham
B4 6DS
Mr Justice Julian Knowles
Case No: APPEAL REF BM80195A
Ian Huffer (instructed by AML Solicitors) for the Appellant/Claimant
William Poole (instructed by DWF) for the Respondent/Defendant
Hearing dates: 17 July 2019
Approved Judgment
The Honourable
This is an appeal with permission granted by myself on 12 March 2019 against the decision of His Honour Judge Tindal sitting at Birmingham County Court on 4 October 2018 in which he dismissed the Appellant/Claimant's claim for damages arising out of a road traffic accident on 10 July 2014. There is also an application for relief from sanctions and an application for permission to cross-appeal by the Respondent/Defendant in relation to the judge's finding that the claim was not fundamentally dishonest, in light of which he did not disapply Qualified One-Way Costs Shifting (QOCS) under CPR r 44.16(1). The Defendant/Respondent's Notice was served out of time and so it requires relief from sanctions in accordance with the Denton/ Mitchell principles (see Mitchell v News Group Newspapers Ltd (Practice Note) [2014] 1 WLR 795 and Denton v TH White Ltd (Practice Note) [2014] 1 WLR 3926) as well as permission to appeal.
For clarity I will simply refer to the Appellant/Claimant as the Claimant, and the Respondent/Defendant as the Defendant.
The facts
The judge gave an ex tempore judgment, however I have a transcript which the judge has approved. He said the claim involved a ‘straightforward’ road traffic accident which took place on 10 July 2014 on the Worcester Road (A450) at about 5.45pm. The judge described the accident as follows at [2–3] of his judgment:
“2. The Claimant, who was a taxi driver, was driving his BMW. There were a couple of cars in front of him. One car suddenly turned off to the left, the claimant said he slowed down to about 5 or 10 miles an hour, and suddenly without warning the defendant's vehicle collided into the rear of the car. So the claimant's case is that that this is very straightforwardly a rear-end shunt where the defendant was too close.
3. The defendant's case is that there were not two cars in front of the claimant's BMW but only the one, a hatchback, which went off to the left, and the claimant's BMW, rather than slowing for anything like that, effectively stopped dead in the middle of the road, and that was a dangerous thing to do and, as a result the defendant's vehicle, driven by Mr O'Sullivan, whose evidence I have heard today, did not have sufficient time to avoid the rear-end collision. The core of that case is broadly supported by a witness statement, which I have taken into account but I only attach the usual weight, from Mr Beech, who was in a car behind Mr O'Sullivan but who was not able to come and given evidence today.”
The Defendant's case was that this was a deliberately staged accident and that the Claimant, in conjunction with the car in front of him, intentionally brought about the accident by braking unnecessarily and suddenly so as to cause Mr O'Sullivan to crash into him from behind. The judge referred at [4–5] of his judgment points made by the Defendant which it said undermined the Claimant's consistency and showed he had not been honest in his disclosure or in his evidence. However, at [7] the judge rejected the claim of dishonesty and said that the Claimant was ‘basically an honest man’ whose recollection of the accident four years before was hazy.
At [8] the judge dealt with Mr O'Sullivan's evidence. He said in some respects it was inconsistent with Mr Beech's evidence; for example, Mr O'Sullivan said that there had been no need for the Claimant to brake, let alone stop, whereas Mr Beech said that the Claimant had been justified in braking, but not stopping. The judge went on to qualify his view of Mr Beech's evidence and saying he could be treated as an independent witness because he had been hit from behind himself, and was (or might have been) bringing his own case. Nonetheless, the judge said that Mr Beech had identified the real issue in the case, namely, whether the Claimant stopped. The judge said that this was the central question ([8]):
“Because if the claimant stopped, the fact that Mr O'Sullivan may slightly earlier have been driving a little bit too fast and a little bit too close to the claimant would not be causative of the collision. Therefore, any negligence that there may have been at an earlier point in the journey between them would not establish a cause of action which the claimant needs to establish, which is that Mr O'Sullivan was negligent and that was causative of the collision and the damage and injury.”
The key paragraphs of the judgment for the purposes of this appeal are [9–10]:
“9. When one comes to the actual collision itself, one is left with the distinct impression from all the evidence that Mr O'Sullivan too, when one strips away some of his conspiracy theories, is ultimately trying his best to give a clear and essentially honest case, and his essentially honest case is that the claimant stopped. Given that Mr O'Sullivan was very, very clear on that, and that struck me as entirely credible and was supported to a certain extent by Mr Beech, albeit with the usual weight I can attach to a witness in their absence, and given that the claimant was very unclear about the circumstances of the accident, I find as a fact that the claimant in fact stopped. I find as a fact, based upon Mr Beech's evidence, that what in fact happened was that the claimant, entirely genuinely, was driving along the road, that there was a car either immediately or one in front of him, that that car performed a dangerous manoeuvre by turning left at the last moment, that the claimant braked, which was reasonable, but he over-braked and overreacted and came to a stop, which deprived Mr O'Sullivan of the opportunity — who by that stage, I am satisfied, may have been driving close to the claimant but perhaps was not driving at the 15 to 20 miles an hour he had been driving earlier — and that he did not have time to stop before the collision and, as a consequence of that, Mr 0' Sullivan hit the claimant.
10. Therefore, if there is any negligence in this accident, it is not by Mr O'Sullivan. There is an aspect whereby the Claimant perhaps in over-braking was negligent, but really it seems to me that the main party at fault was the vehicle which had gone to the left, and frankly it may well have been a better defendant for the claimant's target in the action. Be that as it may, I dismiss the claim accordingly, but I also do not make any findings in relation to fundamental dishonesty.”
In light of his finding on fundamental dishonesty, the judge did not disapply QOCS and ordered that the Claimant pay the Defendant's costs, not to be enforced without the leave of the court (see CPR r 44.13 et seq).
The issues arising
The Claimant's appeal
On behalf of the Claimant, Mr Huffer submitted that the judge failed to give adequate reasons for his decision that the driving of Mr O'Sullivan was not negligent and at partially causative of the collision. He relied on what Lord Phillips MR said in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, [19], on the standard of reasoning required by judge's at first instance. I will return to this decision later.
Second, he submitted that the judge's findings that Mr O'Sullivan's driving was not negligent and so not at least partially causative of the collision was not supported by the weight of the evidence. Mr Huffer pointed to Mr O'Sullivan's oral evidence which, he said, was to a large extent in accordance with [25] of his witness statement and to the effect that at the time the Claimant braked and stopped he was approximately one car length behind the Claimant's car and travelling at between 15 and 20 mph. He points to the Highway Code, and to the fact it specifies a duty on drivers to maintain a safe distance from the car front to allow for sudden stops; that it specifies the safe rule as being never to get closer than the overall stopping distance as shown in the table in the Code; and that the stopping distance for normal road conditions for a vehicle driving at 20 mph is 40 feet or ‘three car lengths’. Stopping distances for speeds under 20 mph are not given.
Mr Huffer does not challenge the judge's finding that the Claimant was negligent. He submits that, both parties being at fault, a just and proper apportionment ‘by assessing the respective responsibilities of the parties in a broad and common sense way’ is 60% to the Defendant and 40% to the Claimant. In support of this contention, the Claimant relies upon the Court of Appeal decision in Ali v D'Brass [2011] EWCA Civ 1594.
In response, Mr Poole submitted as follows. First, he said that the appeal is essentially against findings of fact made by the judge which I should be slow to disturb and should only do if I am sure the judge was plainly wrong. He relies in particular on Watson Farley and Williams v Ostrovizky [2015] EWCA Civ 457, [8], and the cases there cited.
Mr Poole pointed out the finding by the judge that the Claimant stopped his car when he did not need to and was therefore negligent. He also pointed out that the judgment at [8–10] is to the effect that having considered the speed of the Defendant's vehicle and its proximity to the rear of the Claimant's vehicle, the judge was satisfied that the Defendant was not in breach of duty: ‘if there is any negligence in this accident, it is not by Mr O'Sullivan.’ In other words, said Mr Poole, it is implicit that the judge found that Mr O'Sullivan was not driving too quickly or too...
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