Where the judge did have two diametrically different accounts of a road traffic accident it was incumbent upon him to analyse the evidence and conclude which account was more likely rather than dismiss the claim and counterclaim on the basis that the parties had failed to discharge the burden of proof.Appeal by the defendants from the decision of HH Judge Cook sitting in the Guildford County Court on 10 April 2003, dismissing the claim and counterclaim in the action concerning a collision between two motorists. The proceedings arose out of a road traffic accident between the claimant ('C') and the second defendant ('D'), who was driving a vehicle in the course of his business, the first defendant. The accident occurred whilst both drivers left the M25 motorway intending to join the A3 road north bound. It was C's case that she had driven clockwise on the M25 and, having taken the slip road approaching a roundabout, was stationary at a traffic light in the middle lane of three. Her intention was to take the next exit of the roundabout for the A3. She had noticed a vehicle to her left and a further vehicle behind that in the nearside lane. It was C's case that the second vehicle was D's. As C pulled away from the traffic lights she claimed that D undertook her, and then swerved causing the trailer that he was drawing to collide with the nearside of her car. It was D's case that he had been travelling anti-clockwise on the M25 before taking the junction for the A3. He claimed that as he approached the exit for the A3 he saw C's vehicle on the chevron marked area facing the oncoming traffic, and that he was forced to swerve and take evasive action when he noticed that the car had begun to move. D claimed that he could not avoid colliding with C's car. The judge was unable to accept the evidence of either party and concluded that neither had established negligence on the part of the other and so dismissed the claim and counterclaim. This was D's appeal from that decision on the grounds that the judge was wrong to have approached the case on the basis that there was one right story and one wrong story. D argued that the judge should have looked at the issues and decided what findings of fact he was able to make.HELD: (1) The judge did not raise with the parties at the end of their submissions to him that he was provisionally of the view that both claims failed on the basis of a failure to discharge the burden of proof. It was prudent on the judge to have raised that before giving his judgment and dismissing the claims as that would have given the parties the opportunity to go through a detailed analysis of the facts. It was on any view an exceptional situation for a judge to conclude, particularly in a case concerning a road traffic accident, that the claim and counterclaim had failed to discharge the burden of proof. It would be rare that a motor accident claim would fall within the exceptional circumstances outlined in Morris v London Iron and Steel Company Ltd (1987) 2 ALL ER 496. Ordinarily there would have been pointers than one party's account was more likely to have been correct than the other. (2) In this case the judge did have two diametrically different accounts of the accident, but it was incumbent upon him to analyse the evidence and conclude which account was more likely. Had the judge conducted that exercise he would have concluded that D's account of the accident was more likely to have been correct since there were features which supported his account. In particular, D had taken the route each day and was very familiar with it. Had C's account been correct, it would have meant that D had made a mistake requiring him to continue around the roundabout rather than take the first exit to the A3 from his direction. Further, the photographic evidence of the damage to the vehicles did not support C's case, nor did the evidence of a conversation that occurred between the drivers after the collision. (3) What was inescapable was that the accident could not have occurred without at least one of the parties being negligent. Taking all the matters together, there was a broad possibility that D's account was more likely to have been correct than C's. In the absence of an appeal by C from the judge's decision, the case of negligence advanced by D was made out. Accordingly, C was liable for the accident. The appeal was therefore allowed and judgment entered in D's favour.Appeal allowed.
 EWCA Civ 1649