Greaves v Lorde, Squires and Cummins
| Jurisdiction | Barbados |
| Judge | Simmons CJ |
| Judgment Date | 15 May 2008 |
| Neutral Citation | BB 2008 CA 11 |
| Docket Number | Civil Appeal No. 34 of 2005 |
| Court | Court of Appeal (Barbados) |
| Date | 15 May 2008 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Moore, J.A.
Civil Appeal No. 34 of 2005
Mr. Larry Smith and Mrs. Miriam White for the appellant
Mr. St. Clair Howell for the respondents
Negligence - Liability — Personal injuries — Damages — Appeal — Whether there was sufficient evidentiary basis for findings of liability by trial judge — Whether damages awarded were excessive — Appeal dismissed.
This is an appeal against a decision of Goodridge J (acting) given on 2 December 2004 in which she found the appellant liable in negligence for a motor vehicle collision which occurred on 2 November 1996 on Bruce Vale Road, St. Andrew. She awarded each respondent damages and interest for personal injuries and consequential loss and damage. The appellant has appealed the trial judge's findings on liability and the quantum of damages. In this judgment, we refer to the respondents interchangeably by their surnames. Mr. Lorde and Mr. Cummins were employees of the Ministry of Agriculture and Rural Development. On the date of the collision they were using the Ministry's van MP249 in the area of Bruce Vale on the lookout for straying animals. Ms. Squires, a post woman, was off duty and was with them at the invitation of Mr. Lorde. Mr. Greaves was the owner and driver of a motor lorry, M7920.
On the appeal, this Court is required to review the findings of the trial judge on the issues of fact which arose on the evidence as well as her findings on the issue of damages.
It is a commonplace that an appellate court is generally slow tointerfere with findings of a trial judge on questions of fact and is particularly reluctant to interfere with findings on damages. The legal principles indicating the proper approach to appeals in such circumstances have been settled in many well-known cases in the Commonwealth — see, for example, Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; Saunders v. Adderley (1998) 53 WIR 15; Watt v. Thomas [1947] 1 All ER 582; Sumair Singh v. Chase Manhattan Bank (1991) 45 WIR 220; ( Eudese Ramsay v. St. James Beach Hotels Services Ltd. Magisterial Appeal No.4 of 1999 unreported decision of this Court 26 June 2002); Flint v. Lovell [1935] 1 K.B. 354; Davies v. Powell Duffryn Associated Collieries Ltd. [1942] 1 All ER 657.
In Watt v. Thomas, while dealing specifically with issues of evidentiary fact, Lord Thankerton stated three propositions at p.587 as follows:
“(i) Where a question of fact has been tried by a judge….and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witness could not be sufficient to explain or justify the trial judge's conclusion.
(ii) The appellate court may take the view that without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
(iii) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he had not taken proper advantage of having seen and heard the witnesses, and the matter will then become at large for the appellate court.”
In Benmax a distinction was drawn between findings of specific facts and inferences from specific facts but recent decisions of the English Court of Appeal on the interpretation of C.P.R. 52.11(3)(a) demonstrate that such a distinction may be too simplistic. That Rule provides that the English Court of Appeal will allow an appeal where the decision of the court below was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the court below.
Those recent decisions of the English Court of Appeal have elucidated the current approach of an appellate court to appeals against a trial judge's findings of fact. In Assicurazioni Generali Spa v. Arab Insurance Group [2003] 1 All ER (Comm) 140, Clarke LJ (as he then was) said at para.12 of his judgment:
“….[I]n cases in which the court was asked to reverse a judge's findings of fact which depended upon his view of the credibility of the witnesses, it would only do so if satisfied that the judge was plainly wrong.”
That statement endorsed a similar proposition advanced by Stuart-Smith LJ in The Ikarian Reefer [1995] 1 Lloyd's Rep 455 at 458–459.
In The Ikarian Reefer, Stuart-Smith LJ emphasised the restricted nature of an appellate court's power to interfere with a trial judge's decision. He cited SS Hontestroom v. SS Sagaporak [1927] AC 37 where Lord Sumner cautioned:
“None the less not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at Merely on the results of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.” (Our emphasis).
Of particular relevance to this appeal are the observations of Lord Hoffmann in Biogen Inc. v. Medeva Plc [1997] RPC I at p.45:
“It is true that this House decided that, while the judge's findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge's evaluation of those facts by reference to some legal standard such as negligence or obviousness…..The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la verite es dans une nuance) of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”
And explaining Benmax, his lordship said:
“It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved.”
We have also found Floyd v. John Fairhurst & Co. [2004] P.N.L.R.41 very useful in our determination of the proper approach to this appeal. At para.56, Arden LJ said:
“Therefore, in determining whether a factual finding is of a type which an appellate court should only set aside with reluctance, it is relevant to ascertain whether the finding was based on the judge's findings as to the credibility or reliability of a witness's oral evidence and also whether the finding is in truth a complex evaluation of a number of factors which the judge would have made based on his perception of the case over the course of the trial and necessarily not fully expressed in his reasons for the finding in the judgment.”
In the Arab Insurance Group case, Clarke LJ outlined the contemporary approach of the Court of Appeal:
“14. The approach of the court to any particular case will depend upon the nature of the issues [and] kind of case determined by the judge. This has been recognised recently in, for example, Todd v. Adams & Chope (Trading as Trelawney Fishing Co) [2002] 2 Lloyd's Rep.293, and Bessant v. South Cone Inc. [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the RSC and should be its approach on a “review” under the CPR 1998.
16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”
In English v. Emery Reimbold & Strick Ltd. [2002] 3 All ER 385, Lord Phillips M.R. also offered important guidance on the approach of appellate courts in appeals against findings of fact. He said at para.[26]:
“[26] the appellate court should first review the judgment, in the context of the material evidence and submissions at the...
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