It was a hot Friday afternoon following a road traffic accident trial and as I walked back to the train station why was it that Bucks Fizz “Making your Mind Up” was playing in my head? Two reasons:
1. It’s usually poptastic, but very uncool songs that stick in my mind the longest; the Vengaboys is another example. Oh dear.
2. There had come a time for the judge to make his mind up and, albeit for understandable reasons, he had ducked the issue.
The facts of the case are fairly simple – two cars proceeded to move into a parking space at the same time. The Claimant alleged that there was a collision, which caused damage to the nearside of his vehicle. The Defendant denied that any collision occurred. The judge found that a collision had taken place, perhaps because to determine otherwise would have meant finding that the damage claimed did not arise as a result of the accident – a decision which he was extremely reluctant to make.
The judge then went on to characterise the collision as a “pure accident” and dismissed the claim on the basis that the Claimant had failed to discharge his burden of proving that the Defendant had caused the accident. In my view the judge’s reasoning is incorrect. As was made clear in Cooper v Floor Cleaning Machines Limited ( EWCA Civ 1649) it is only in an exceptional case that a road traffic accident should be dismissed on the basis of a failure to discharge the burden of proof. If there is a finding that a collision has occurred then it is very likely that that was the result of sub-standard driving by at least one of the drivers.
If only the judge had directed himself according to the good words of Lord Denning in Davies v Swan ( 2 KB 291 at 326) to consider the following:
What faults were there which caused the damage? What are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault?
Following these principles, in my case, once a collision had been found to have taken place, the inference from the damage and both parties’ accounts was that both were to blame. In these circumstances the correct approach would have been to find in the Claimant’s favour but to have made a 50% deduction on the basis of contributory negligence. These principles may appear obvious in the abstract but it is useful reminding a judge of them when he is tying himself in knots in his last hearing on a warm Friday afternoon in August.