Margaret Blackburn Appellant v James A.L. Bristol Respondent
| Jurisdiction | Grenada |
| Judge | Justice of Appeal,Davidson Kelvin Baptiste,Gertel Thom,Sydney Bennett, QC,Justice of Appeal [Ag.] |
| Judgment Date | 12 October 2015 |
| Judgment citation (vLex) | [2015] ECSC J1012-1 |
| Docket Number | GDAHCVAP2012/0019 |
| Court | Court of Appeal (Grenada) |
| Date | 12 October 2015 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mr. Sydney Bennett, QC Justice of Appeal [Ag.]
GDAHCVAP2012/0019
Mr. Gregory Delzin and Ms. Michelle Emmanuel-Steele for the Appellant
Mr. Leslie Haynes, QC and Mr. Alban M. John for the Respondent
Civil appeal – Motor vehicle accident – Whether the learned trial judge erred in making factual findings – Approach of appellate court on review of trial judge's factual findings – Negligence – Whether the learned judge erred in finding that the appellant was negligent
The appellant, Mrs. Margaret Blackburn and the respondent, Mr. James Bristol, were involved in a vehicular accident at night along the Grande Anse main road. Mr. Bristol was driving his vehicle in a southbound direction and Mrs. Blackburn was driving in a northbound direction. After getting to the top of a slight incline and coming around a bend in the road, Mr. Bristol met Mrs. Blackburn's vehicle in his lane. The two vehicles collided almost head-on in the vicinity of the Excel Plaza. At the time of the collision, Mrs. Blackburn had been attempting to maneuver her car into the entrance to the Excel Plaza. The collision resulted in both vehicles being a total loss and Mr. Bristol subsequently filed a claim against Mrs. Blackburn alleging negligence on her part.
Following the trial of the matter, the learned trial judge held that the collision was solely due to the negligent driving of Mrs. Blackburn. In reaching her decision, the judge made important findings of fact. She found as a fact that the accident occurred in the southbound lane and that the corner approaching Excel Plaza from either direction is a blind corner so that vehicles coming south do not see the vehicles approaching in the opposite direction until they come around the corner and up the slight incline that leads to the entrance of the plaza. The judge also found that vehicles in the northbound lane do not see the vehicles coming in the opposite direction. Because of this blind corner, drivers in both directions have to exercise more caution than usual. However, drivers who seek to enter Excel Plaza from the northbound lane have to be extra cautious because they are crossing into the southbound lane to enter the plaza. Accordingly, on the facts of the case the manoeuvre being attempted by Mrs. Blackburn was legal, albeit dangerous and required that she exercise extra caution in carrying out the manoeuvre.
At trial, a witness for Mrs. Blackburn, who was a passenger in the front seat of her vehicle at the time of the accident, testified that she heard the sound of an engine prior to Mrs. Blackburn starting to turn into the entrance of the plaza. Another witness for Mrs. Blackburn also testified that he heard a car horn coming from the direction of Mr. Bristol's car before the collision. The trial judge concluded that Mrs. Blackburn was put on notice that a vehicle was approaching from the opposite direction and did not take heed of this when attempting to enter the Excel Plaza. The learned trial judge also rejected expert evidence given on behalf of Mrs. Blackburn that at the time of the accident Mr. Bristol was speeding.
The judge also reviewed pictures of the scene and damage to the vehicles and taking into account the evidence as a whole, she concluded that the collision was almost head-on with Mrs. Blackburn vehicle at an angle turning into the plaza and occurring in the southbound lane.
After considering the facts before her, the trial judge found that Mr. Bristol was not at fault in the collision and found that Mrs. Blackburn failed to exercise due care and attention in attempting the dangerous turn, given the prevailing circumstances. Mrs. Blackburn, being dissatisfied with the trial judge's decision, has appealed on several grounds, essentially against the trial judge's findings of fact.
Held: dismissing the appeal and ordering costs to the respondent on the appeal in the sum of $24,500.00 representing 2/3 of the prescribed costs of $36,750.00 awarded by the judge in the court below, that:
1. There is a well-recognized reluctance by appellate courts to interfere with a judge's findings of primary fact, especially when they depend to a significant extent upon the judge's assessment of witnesses that he or she has seen and heard give evidence. Accordingly, the correct approach of an appellate court with respect to interfering with a judge's factual findings is that an appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that the judge was plainly wrong. Further, the restraint against an appellate court interfering with findings of fact applies not only to findings of primary fact, but also the trial judge's evaluation of those facts and the inferences drawn from them.
Landau and The Big Bus Company Limited and another [2014] EWCA Civ 1102 applied; Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642 applied; Piglowska v Piglowski [1999] 1 WLR 1360 applied; McGraddie v McGraddie and another [2013] 1 WLR 2477 applied; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 applied.
2. The phrase 'plainly wrong' does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts. Rather, it directs the court to consider whether it was permissible for the judge at first instance to make the findings of fact which he or she did in the face of the evidence as a whole. The appellate court is required to make this judgment bearing in mind that it has only a printed record of the evidence. Thus, to interfere with a judge's decision, the appeal court is required to identify a mistake in the judge's evaluation of the evidence that is sufficiently material to undermine the judge's conclusions.
Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21 applied; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 applied; Central Bank of Ecuador and others v Conticorp SA and others [2015] UKPC 11 applied; Thomas v Thomas [1947] AC 484 applied; Langsam v Beachcroft LLP [2012] EWCA Civ 1230 applied.
3. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from a judge's evaluation. A determination of whether or not the standard of care was met by a defendant involves the application of a legal standard to a set of facts, that is, a question of mixed fact and law. Accordingly, unlike questions of pure law, an appellate court must be cautious in finding that a trial judge erred in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. In this appeal, the trial judge made a number of factual findings which lead to the conclusion that Mrs. Blackburn was at fault in the accident. In all the circumstances, the trial judge found no evidence of liability on the part of Mr. Bristol. The trial judge's conclusion as to the cause of the accident was a finding of fact and it was open to her on the evidence to so find. The judge's conclusion was reasonably justifiable on the evidence and it could not be said that the judge was plainly wrong.
Biogen Inc v Medeva Plc [1997] RPC 1 applied; Housen v Nikolasien 2002 SCC 33 applied; Thomas v Thomas [1947] AC 484 applied.
4. Expert evidence does not stand alone and cannot be considered by a court in a vacuum. It is to be considered in the context of all the evidence before the court which the judge accepts. The weight to be attached to various pieces of evidence is essentially the preserve of the trial judge. In this appeal, there was conflicting expert evidence on the issue of Mr. Bristol's speed and although the learned trial judge did not explain why she preferred the evidence of Mr. Bristol's expert over that of Mrs. Blackburn, the judge's assessment of Mr. Bristol's speed was a reasonable inference based on the evidence and was not plainly wrong.
5. The trial process ought not to ordinarily reach a conclusion which has never been canvassed during the trial and on the implications of which neither the lay witness nor the expert witness have had the opportunity to comment nor the parties the opportunity to marshal their arguments. In this appeal, although the trial judge did not make a finding as to the point of impact, the evidence was that Mrs. Blackburn turned across the path of Mr. Bristol. In the circumstances, the absence of a finding as to the point of impact was not very material. Accordingly, 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 allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendant. It is the duty of the trial judge to examine all the evidence at the end of the case and decide whether on the facts he or she finds to have been proved and on the inferences that he or she is prepared to draw, that he or she is satisfied that negligence has been established. In this appeal, there was nothing in the judgment of the learned judge that was so erroneous so as to warrant appellate inference, as the conclusions reached by the trial judge could fairly be reached on the evidence.
Henderson v Henry E Jenkins and Sons and Evans [1970] AC 282 applied.
BAPTISTE JA: This appeal arises out of a nocturnal collision between two cars; one...
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