J U D G M E N T

1. LORD JUSTICE MANTELL: This is an appeal against Mr Justice Davis' apportionment of responsibility in a running down action heard in the Queen's Bench Division of the High Court, sitting in London on 7 and 8 April 2003. The action was unusual in that the only evidence with regard to liability, which is the only issue with which this court is concerned, was provided by film taken by CCTV camera. There was no evidence at all from what may be termed live witnesses. So far as the claimant was concerned, that is not surprising. As a consequence of this accident he suffered a fractured skull and brain damage which has left him unable to remember any of the circumstances which immediately preceded the accident itself. So far as the defendant - the driver of the vehicle, about which more later - and the several passengers as there were in that vehicle were concerned, it seems that neither the defendant himself nor the passengers were prepared to attend for the hearing. There was no application for an adjournment, and although their witness statements had been exchanged at an earlier date they were not admitted in evidence with the consequence that all the judge had to rely upon was the film itself.

2. In those circumstances it is acknowledged that this court, having seen the video several times, is as well placed as the judge to form a view on the facts and, indeed, if the members of the court thought it right, to differ from the judge in the conclusions that he reached. For my part, I would hold that the judge, fairly and accurately, recorded the evidence which we have seen on the film. I paraphrase, quite unashamedly, his findings which are found in the admirably succinct judgment beginning at paragraph 6, though not without first referring to the over-view in paragraph 1 which is:

"[In the early hours of 5 December 1998] the claimant, John Dickens, [then about 18 and a half years of age] was standing next to a Mitsubishi Shogun [a large vehicle] ..... parked near to a nightclub in Atlanta Boulevard, Romford Essex."

The driver of the Mitsubishi was Mr John Bearman and there were, as I have already remarked, others in the car. The Mitsubishi Shogun was reversed from its parking position, its front wheels being hard up against a kerb, on a slight right-hand lock. The consequence was that either the wheel or the wheel arch came into contact with the claimant, Mr Dickens, resulting in him falling heavily to the ground and suffering the injuries again to which I have already made reference.

3. The judge thereafter, from paragraph 6 and onwards, related the circumstances as they appeared to him from watching the film, as we have been told, on several occasions and studying it, as we have also been told, with very considerable care. He records what happened prior to the incident which led to these tragic consequences about which it is not necessary to say anything. Suffice it to say, there came a time when the driver of the Mitsubishi was in place, as were his several passengers, and the vehicle was approached by the claimant Mr Dickens. He approached the nearside door, as one can see from the film. The door was opened - possibly by the claimant, though it is not entirely clear that that was the case - and he went behind the door with the upper part of his body seemingly obscured and presumably for the purpose of having some kind of exchange with someone inside the vehicle. Thereafter the door was closed. The judge was not able to say whether or not the window of the nearside door was open at any stage and, if it was open, whether it remained open. However, he goes on to describe how the claimant moved at a slight angle away from the Shogun towards the rear of the Shogun at a brisk pace before returning quite deliberately towards the nearside door. He seemed from the film, as the judge records, to be standing at the door for no more than a moment or so before the Mitsubishi began the process of reversing, catching the unfortunate claimant in so doing and causing him to fall to the ground and suffer the dreadful injuries of which we have been told. The judge specifically said at paragraph 11 that it was not clear from the video whether or not the window had been left open and also that it was not clear whether the claimant was, at the stage he returned, attempting to talk to anyone in the car or had otherwise sought to attract the attention of passengers or the driver.

4. On those findings - with which (for my part) I would not disagree - the judge came to the conclusion that responsibility ought to be shared equally between the driver/ defendant and the claimant.

5. Permission having been given to appeal that apportionment to the claimant, we are concerned to know, first, whether the judge was right to attribute any responsibility to the claimant for this accident. He found that the driver Mr Bearman had been at fault in failing to keep a proper look out in that he ought to have seen the claimant standing immediately adjacent to the nearside front door at some stage before commencing to reverse at an angle. That being his finding, of course primary liability had been established. It was also conceded in the course of the hearing that the driver was at fault in reversing too briskly in all the circumstances.

6. The question remains whether or not on the limited evidence available to the judge he was entitled to reach the conclusion that the claimant himself was also to blame, it being remembered that the burden of showing that he was rested upon the defendant who had called no evidence other than the video or the CCTV film for such submissions as counsel was able to make. As the judge found - and it is something with which I would not take issue - there was simply no evidence as to why the claimant, having departed from the nearside door of the Mitsubishi the first time, had chosen to return. It is at least a possibility that he had been summoned by somebody in the car. It is at least a possibility that he had heralded his return by saying or shouting something to people in the car. We simply do not know, on the evidence available to the judge and to this court, his reason for acting as he did.

7. Whereas a viewing of the film of itself entitled the judge to reach the conclusion that the driver was at fault, amongst other things, for failing to see the claimant returning to the position by the nearside door or to see him after he had arrived at that position or, if he had seen him, in continuing to execute the manoeuvre in which he was engaged, the same cannot be said of the claimant. The fact that somebody approaches the nearside of a vehicle, whether or not the engine is running, whether or not he might anticipate that sooner or later it will be the intention of the driver to reverse, is not of itself, so I would hold, evidence of negligence. It may be that if the full facts of this case had emerged in the course of the hearing it might have been possible to construct a case in which the claimant could be found to be negligent, but such was not the state of the evidence available to the judge.

8. For my part, I would allow this appeal. I would reverse the judge's decision in so far as he found that the claimant was to blame in any way for this accident and I would substitute an order by which the defendant would be held wholly to blame, that is to say 100 per cent to blame, and accordingly liable for all the consequences.

9. It is necessary to deal with an application which counsel on behalf of the defendant made at an earlier stage in the hearing, a renewed application for permission to appeal on the part of the defendant against the judge's apportionment of liability. It would follow from what I have said already that for the same reasons that application has been and will be refused.

10. LORD JUSTICE CLARKE: I agree for the reasons given by my Lord that the judge was wrong to hold that the claimant was partly to blame for the accident he sustained. It follows that this is not a case in which the court is interfering with the apportionment made by the judge. It is not therefore a case to which the principles in cases like "The MacGregor" [1943] AC 197 apply. Those principles are correctly stated in the headnote as follows:

"When an appellate tribunal accepts the findings of fact of the court below and its conclusion that two vessels in collision were both to blame, it should, in the absence of error of law, only revise the distribution of blame in very exceptional cases, as where, for instance, a number of different reasons have been given why one ship is to blame, but the appellate court, on examination, find some of those reasons not to be valid, or where the judge in distributing blame is shown to have misapprehended a vital fact bearing on the matter."

11. In my opinion, for the reasons given by my Lord, this is not a case in which this court should accept the judge's conclusion that both the claimant and the defendant were responsible for the accident. It follows that the defendant is wholly to blame for the accident and no question of apportionment of blame arises.

12. I agree that the appeal should be allowed.

13. MR JUSTICE RIMER: I agree with both judgments and I, too, would allow the appeal.

Appeal allowed, with a minute of order to be lodged with court.