Mr Naveed Hamid (First Respondent/Claimant) v Mr Sheikh Khalid (Second Respondent/First Defendant) Co-Operative Insurance Society General Insurance Ltd (Appellant/Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson,Lord Justice Lewison |
| Judgment Date | 31 March 2017 |
| Neutral Citation | [2017] EWCA Civ 201 |
| Docket Number | Case No: B3/2015/1140 and 1140(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 31 March 2017 |
[2017] EWCA Civ 201
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
Mrs Recorder Howells
Claim No: 3YM00197
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
and
Lord Justice Henderson
Case No: B3/2015/1140 and 1140(A)
and
Mr Paul F. McGrath (instructed by Weightmans LLP) for the Appellant
Mr Lee Nowland (instructed by Parkers Solicitors) for the Claimant
Mr David Boyle (instructed by Harvey Roberts Solicitors) for the First Defendant
Hearing date: 2 March 2017
Approved Judgment
Introduction
The issue on this appeal is whether the trial judge, Mrs Recorder Howells, was wrong to find that a road traffic accident had occurred on the evening of 13 January 2013 in substantially the circumstances alleged by the claimant, Mr Hamid, thereby entitling him to recover damages from the driver of the other vehicle involved (Mr Khalid, the first defendant) in a sum which the judge quantified as £28,070.39 including interest. In so finding, the judge rejected the primary pleaded case of fraud advanced by Mr Khalid's motor insurers, Co-operative Insurance Society General Insurance Limited ("the Insurers", the second defendant and appellant), who had refused to accept liability to indemnify Mr Khalid after investigating the alleged accident. The judge also rejected the Insurers' alternative contention that, even in the absence of fraud, the claimant's case had not been made out on the evidence to the civil standard of proof on the balance of probabilities.
The judge reached these conclusions in an unreserved judgment which she delivered at the end of a three day trial in the County Court at Manchester on 25 February 2015. At the trial, all three parties were represented by the same counsel who have appeared for them on this appeal. The judge heard oral evidence from the drivers of the two vehicles, Mr Hamid and Mr Khalid, each of whom was subjected to a searching cross-examination by counsel for the Insurers, Mr McGrath. The judge also had the benefit of expert engineering and medical evidence.
The Insurers' engineering expert was Dr Richard Ellwood, who holds a doctorate in automotive engineering and specialises in forensic collision investigation. The claimant's engineering expert was Mr Mark Griffiths, who is a consultant automobile engineer with 24 years' experience as an expert witness. Apart from their separate reports, Dr Ellwood and Mr Griffiths also prepared a helpful joint statement. At the suggestion of counsel, and with the judge's agreement, they gave their oral evidence at trial concurrently, in accordance with the procedure laid down in CPR PD 35 paragraph 11.
The circumstances of the alleged accident
According to the particulars of claim, the accident occurred when the claimant was driving his vehicle (a Skoda Octavia, which he operated as a plated taxi) along Keble Avenue in Oldham. Mr Khalid, driving a Nissan Primera, then emerged from a junction on the claimant's left-hand side, failing to give way as he should, and collided with the side of the claimant's car. The particulars of negligence alleged, as one might expect, that Mr Khalid was negligent in that he drove his vehicle directly into the claimant's, that he failed to stop or slow down, that he failed to keep any or any proper look out, and that he failed to stop at the give way markings on the side road (Eton Avenue). Although the particulars of claim alleged that the claimant "was correctly proceeding" along Keble Avenue, his car was said to be "stationary" at the moment of impact.
In his witness statement signed on 25 November 2013, Mr Hamid set out his version of the circumstances of the accident in more detail. He explained that he was a private hire taxi driver who owned his own vehicle, having worked in that occupation for a little over a year. He worked a combination of days and nights. At the time of the accident, he had only recently purchased the Skoda for £3,500 from a friend who was also a taxi driver. He insured the vehicle on a third party, fire and theft basis, paying the premiums monthly. His reason for buying a replacement taxi was that the vehicle he had previously used had developed a serious gearbox problem and was not worth repairing. He had no history of involvement in road traffic accidents as a driver, and had been involved in only one accident as a passenger some three years previously when he had suffered a whiplash-type injury to his shoulder and neck.
On the evening of Sunday 13 January 2013, Mr Hamid said he was not working. Over that weekend, he and his family had been making the final preparations to move house into larger Council accommodation for himself, his wife, their four children aged between 1 and 10, and his younger brother. He was being helped by a friend, Mr Ali Ahmer. The larger items had been moved in the week before Christmas 2012, and on 12 and 13 January Mr Hamid and Mr Ahmer made a number of journeys moving the smaller items from the family's old address to its new one. The weather was not very good, and by the time they had finished for the day it was snowing lightly. Mr Hamid was taking Mr Ahmer to his home address, and their route took him onto Keble Avenue. He then changed up into second gear, travelling slowly not only because of the weather, but also because there were parked cars on each side of the road. As he approached the junction with Eton Avenue, a marked crossroads where he had the right of way, he saw the headlights of a car approaching from his left, although because of the parked cars he did not actually see the vehicle itself.
Mr Hamid's account continued:
"17. I was still in 2 nd gear and I travelled through the junction at between 10 and 15 mph. As I did so, I became aware of the car whose headlights I had seen as it continued through the junction and drove straight into collision with the nearside of my car. I am unable to say whether or not the other car stopped at the Give Way line before pulling out. I braked, but only on impact. I tried to do an Emergency Stop. The impact was between the front of the other car and the passenger side door and centre pillar of my car with the damage extending towards the rear door as well.
18. On impact, my vehicle was pushed to the right hand side. I felt my seat belt tighten and I felt thrown around in my seat. The airbags did not deploy. The cars seemed to be about 1 metre apart from each other after the impact.
19. My vehicle came to rest on the crown of the road. The other vehicle had come to rest with its nose near the crown of the road."
Mr Hamid then explained how Mr Khalid, who had two female passengers, first tried to say that the accident was Mr Hamid's fault, but when Mr Hamid pointed out to him the give way lines over which he had crossed, "he appeared to accept that it was his fault". Mr Hamid then dialled 999, using his mobile telephone, and spoke to an operator at the local police station. He stated what had happened, and said he and the other driver were in the process of exchanging details. Nobody appeared to have been seriously injured, and on hearing this the operator made it clear that the police would not be attending.
A witness statement was also provided by Mr Hamid's passenger, Mr Ahmer, in which he substantially corroborated Mr Hamid's version of events. Mr Ahmer did not, however, give evidence at the trial. The judge considered that "no sensible explanation" for his non-attendance had been provided, and since his evidence was untested in cross-examination she said that she could give it "very little weight".
The judge was provided with a transcript of Mr Hamid's telephone call to the police, and she also listened to a tape recording of it. In paragraph 14 of her judgment, she said:
"I have heard that 999 call and it appears to me that within that, the claimant expressed some confusion in his voice as to the precise location of the accident. In my judgment that is indicative of someone who was in some shock or confusion post accident. If, as the second defendant suggests, that was a deliberately created 999 call, one would expect the claimant to have got the details as to the precise location of the accident correct. He did not and, in my judgment, having heard that 999 call and the tone of the description of the accident and the location given by the claimant, it appears, in my judgment, to be genuine and has the hallmarks of truth around it."
The driver of the Nissan, Mr Khalid, is a security officer who lives in Warrington. In his witness statement signed on 22 March 2013, his explanation of the circumstances of the accident was briefly as follows. On the afternoon of 13 January 2013, he and his wife had travelled to Oldham on a social visit to his cousin, Shazia Akhtar. They decided to go out for an evening meal, and when they set out in Mr Khalid's car they were intending to visit a local restaurant. Mr Khalid's wife sat in the front, and his cousin in the back. The accident took place between 7.30 and 7.45 pm. It was dark and snowing, and visibility was poor. Mr Khalid was using his lights and windscreen wipers. Since he did not know Oldham very well, he was relying upon his cousin for directions. After some five to ten minutes, his wife realised that she had left her bag at home, and they had no choice but to return for it, because it contained their money and bank card. It was in the course of this detour that Mr Khalid made his way onto Eton Avenue, a road which he had never used before. At the time, his was the only moving vehicle on Eton Avenue, and he was driving at no more than 20 mph. As...
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