The plaintiff was driving his motorcycle. The defendant drove a motor car on the same road in the opposite direction. Each said that they were driving at acceptable speed when the two vehicles collided in the centre of the road. The trial judge dismissed the plaintiff’s claim and the defendant’s counterclaim for he could not determine who was negligent.
Held: Lord Evershed MR said: ‘I can borrow from the observations of my two brethren to put the point quite briefly. My Brother Morris observed, quoting from one of the last passages I have read: ‘The judge is saying ‘Both stories are wildly improbable and yet one of them happened.’ If they are so wildly improbable, I am not satisfied that the judge was justified in excluding the possibility of the truth lying somewhere between the two, so that perhaps each would be less wildly improbable, or at least in excluding the possibility (which it seems to me was open) of both being wrong.’ I now come to the observation by my Brother Jenkins: ‘Unless that was so, the judge seems to me to have stated the case and his conclusions in such a way that one party or the other or both must have suffered an injustice.’ Whether that is so or not is perhaps another matter, but, if the result appears to be so, then, as it seems to me, it is not satisfactory to leave it thus, but this court ought to order a new trial.
I need not say that it is most regrettable that such a course should be followed because, after all, this accident happened more than two years ago and the recollections of the witnesses will have been either blurred or perhaps, by over-thinking, crystallised somewhat sharply in the interval. But still I have come to the conclusion, with the utmost respect for the judge and acknowledging his difficulty and his experience, that to have stated the matter as he did does involve either a real flaw, or something that looks so like it that it would not be right to leave the matter thus. I think, therefore, that this appeal must be allowed and a new trial ordered.’
Judges:
Lord Evershed MR
Citations:
[1953] 1 WLR 1455
Jurisdiction:
England and Wales
Cited by:
Cited – Morris v London Iron and Steel Co Ltd CA 1987
In exceptional cases, a judge conscientiously seeking to decide the issues between the parties might have to conclude ‘I just do not know’. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Road Traffic
Updated: 08 April 2022; Ref: scu.187186