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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MacLeod v The Commissioner of Police for the Metropolis [2015] EWCA Civ 688 (08 July 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/688.html Cite as: [2015] EWCA Civ 688 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge McKenna
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TOMLINSON
and
LORD JUSTICE FLOYD
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DONALD MACLEOD ( a protected party suing by his litigation friend BARBARA MACLEOD) |
Claimant/ Respondent |
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- and - |
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THE COMMISSIONER OF POLICE FOR THE METROPOLIS |
Defendant/ Appellant |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Angus Withington (instructed by Nicholson & Morgan) for the Respondent
Hearing date: 24 June 2015
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Crown Copyright ©
Lord Justice Floyd :
The facts
The factual issue
The judgment of HHJ McKenna
"60. Mr Seston had previously stated unequivocally in both his report and the joint statement that the engagement was at a shallow angle or that the accident might possibly have happened if Mr MacLeod had managed a slight left sweeping turn, and had achieved that change in direction prior to the collision and notwithstanding the gear in which the bicycle was found.
61. The explanation that the Claimant could have in some way affected an emergency turn so as to present the front wheel directly parallel to the police car is not only contrary to Mr Seston's previously expressed opinion and what was agreed with Mr Keenan, but is also contrary to the factual evidence."
"68. To my mind there is nothing in the theory that it would have been impossible for the bicycle to have been hit from behind without the rear of it being damaged as the police car was steering to the right. Such a theory is based on an assumption that the Claimant was cycling precisely north at the time when the police car was approaching, whereas the reality is that in all probability the Claimant wasn't able to cycle in a perfectly straight northerly direction in circumstances where he is likely to have reacted instinctively to the rapid approach of the police car."
The appeal
i) The judge's findings of fact were against the weight of the evidence;
ii) The judge erred by rejecting expert evidence that the accident could have occurred by the claimant entering the junction from Northchurch Road at right angles to the police car and just before impact, turned his front wheel to the left to avoid the collision;
iii) The judge erred in making a finding that the claimant turned to his right before the collision when there was no evidence to support such a finding, and such a theory was not put to the witnesses and was not part of the claimant's case at trial.
Legal principles
"52. The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judge's findings of primary fact.
53. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first)."
The appeal
Ground 1
"Q. If he was travelling in a straight line, it is not possible for a car swerving to the right, or steering to the right, to miss the rear wheel and nevertheless impact with the handlebars.
Mr Keenan: Well I think you are mistaken on that. It is possible to do that. The handlebars stick out further that the back wheel."
Mr Keenan: We've got a movement to the right. It is moving to the right, it's not a hard steering on the steering wheel. There's a movement to the right. And at that point, there's the possibility that the handlebars could have come in contact with the front of the vehicle without Mr MacLeod himself impacting with the vehicle.
Q. That's my question, can you explain to His Lordship how that could possibly happen.
Mr Keenan: Well without actually demonstrating it and getting a cyclist and sitting on a cycle exactly the same manner as Mr MacLeod was sitting on and putting them together, then it's . I can't explain it.
Q. So you can't explain how that could happen.
Mr Keenan: No
Q. No, thank you. I suggest Mr Keenan to you that the fact that the car was turning to the right, these are your words, and the first evidence of impact is with the handlebars to the nearside front side of the car, proves beyond doubt that the cyclist had to be turning to the right at the point of impact, that's right isn't it?
Mr Keenan: I disagree with you on that. Without actually trying it, I would disagree with you.
"Q. So your only explanation is it for where the body ends up, is that he must have been travelling in a straight line?
Mr Keenan: That would suggest he wasn't steering towards the centre of the road.
Q. So he was not steering he was travelling in a straight line.
Mr Keenan: Yes.
Q. So your only explanation for this accident occurring if Mr MacLeod was cycling northwards up Southgate Road, is that he was travelling straight?
Mr Keenan: Yes at the
Q. But, you cannot I'm sorry.
Mr Keenan: at the point of impact.
Q. At point of
Mr Keenan: I don't know what he was doing beforehand.
Q. But you cannot explain to this court how he can have been travelling straight and the handlebars struck but not him, if the police car, as we know was turning to the right. That's your evidence isn't it?
Mr Keenan: Yes"
Ground 2
Ground 3
Conclusion
Lord Justice Tomlinson
Lord Justice Jackson