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Cooper v Floor Cleaning Machines Ltd and an other, Court of Appeal, 20 October 2003

27 October 2003
The issues

Road traffic accident – burden of proof – neither party to blame.

The facts

This case concerned a collision between two vehicles both leaving the M25 at Junction 10 and intending to travel northwards along the A3. There was no independent witness evidence. The Claimant’s case is that she was a stationary at a traffic light in the middle lane of 3, having taken a slip road approaching a roundabout. She was intending to take the next exit for the A3. She saw a vehicle to her left and a further vehicle behind that. She alleged that the second vehicle was the Defendants and as she pulled away from the traffic lights, the Defendant undertook her, swerved, and caused the trailer that he was pulling to drawing to collide with the nearside of her car. The Defendant’s case was that as he approached the exit for the A3, he saw the Claimant’s vehicle on the chevron marked area facing the oncoming traffic and that when he noticed that the car had begun to move he was forced to swerve and take evasive action, but in the end was unable to avoid the collision.

The Judge found that neither case made out and stated that unless he was going “to toss a coin” the only fair decision was to conclude that on the balance of probabilities, neither had discharged the onus of proving negligence against the other and therefore dismissed both claim and counterclaim. The Defendant appealed.

The decision

1. The Judge had not raised prior to giving Judgment, the possibility that he would find that neither side had proved their case. He should have done so, since it would have given an opportunity for Counsel to dissuade him from coming to the conclusion he had come to.

2. Lord Justice May in Morris -v- London Iron and Steel Company Limited had accepted that whilst a Judge might in some circumstances be forced to say “I just do not know” it would be only in exceptional circumstances and that it would be very rare indeed for a road traffic accident case to fall within those exceptional circumstances.

3. Here, faced by two diametrically different accounts of how the accident had occurred, the Judge should have analysed all the matters before him. Had he done so, he would have noticed certain features in the evidence which favoured the Defendant’s case, namely the familiarity of the Defendant with the route which he took everyday; and the fact that the photographic evidence of the damage to the vehicles did not support the Claimant’s case; and the evidence of a conversation occurring between the drivers after the collision.

4. The accident could not have occurred with at least one of the parties being negligent. The broad probability was such that the Defendant’s account was more likely than that of the Claimant. Appeal allowed. Claimant’s Application for a re-Trial dismissed.


Morris was a decision of the Court of Appeal in 1987 in an appeal by the employer from the Employment Appeal Tribunal. Lord Justice May concluded that Judges should make findings of fact in relation to matters before if they could; having made those findings, the Judge was entitled to draw inferences from the findings of primary fact where appropriate; that a Judge might in exceptional cases be forced to say “I just do not know”; that if having considered the findings of fact and having drawn whatever inferences might be appropriate the Judge had to come to this position of uncertainty, then the principle of the burden of proof would come into play and the party who had to overcome that burden would fail. For other examples see Ashraf -v- Akram a decision of the Court of Appeal in 1999 – a set of facts which the Court of Appeal found to be one of those exceptional cases; and Bray -v- Palmer, a decision of the Court of Appeal in 1953, and which was a road traffic claim in which the Court of Appeal held that the Judge had been wrong not to consider the possibility that the truth lay somewhere between the account of the Claimant and the Defendant and that it might have been an accident caused partly by the negligence of one party and partly by the negligence of the other, and where a re-Trial was ordered.

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