Michael Landau (Claimant/Appellant) v The Big Bus Company Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sullivan,Lady Justice Black |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1102 |
| Docket Number | Case No: B3/2013/3331 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2014 |
[2014] EWCA Civ 1102
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Foskett
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Sullivan
and
Lady Justice Black
Case No: B3/2013/3331
Kiril Waite (instructed by Evans Dodd) for the Appellant
Glen Tyrell (instructed by DAC Beachcroft Claims Ltd) for the First Respondent
Derek O'Sullivan (instructed by Clyde & Co) for the Second Respondent
Hearing date: 23 July 2014
This appeal concerns a road traffic accident on Sunday 3 May 2009 near the junction of Pall Mall East and Cockspur Street in the area of Trafalgar Square, London. The roads form part of a one way system. At the junction is a set of traffic lights. The accident involved three vehicles which had come down Pall Mall East and, as was common ground at the trial, had stopped at the traffic lights. One was a tourist bus operated by the Big Bus Company Limited (the first defendant) and driven by Mrs Dean. It was in the outside (right hand) lane. The second was a VW Passat motor car driven by Mr Zeital (the second defendant). It was in the inside (left hand) lane. The third was a 125 cc motor scooter ridden by Mr Landau (the claimant). The position of the scooter at the lights was a central issue at the trial. When the lights changed to green the vehicles moved forward and started to negotiate the sharp left-hand turn into Cockspur Street. The claimant's scooter became trapped between the rear nearside of the bus and the rear offside of the car before any of the vehicles had completed the turn. Although the bus and the car stopped very quickly, the claimant sustained a serious injury to his right leg which subsequently necessitated a below-knee amputation.
The claimant's claim in negligence against the two defendants was the subject of a trial of liability in the Queen's Bench Division before Foskett J. For reasons given in a judgment handed down on 7 October 2013 (see [2013] EWHC 3281 (QB)), the judge dismissed the claim. The claimant brings this appeal against the judge's order giving effect to that decision.
The judgment below
Reference should be made to Foskett J's judgment for a fuller description of the general background, the evidence and the judge's detailed factual findings.
In summary, the claimant's case at trial was that when the vehicles were stationary at the traffic lights, the bus driven by Mrs Dean was the first vehicle in the outside lane, the VW Passat driven by Mr Zeital was the second vehicle in the inside lane (i.e. with one other car between it and the lights), and the claimant's motor scooter, whilst also in the inside lane, was in the gap between the offside of the VW Passat and the nearside of the bus. What he said about the respective positions of the three vehicles was crystallised in a sketch plan prepared by him prior to trial in response to a request for further information. He contended that his own position at the lights was a normal place for a scooter or motorbike to be, and one in which he would have been clearly visible to the drivers of the bus and the VW Passat. Given that by their own admission neither driver had seen him at the lights or until moments before the collision, it followed that they had failed to keep an adequate look out. Further, the junction was wide enough for all three vehicles to get round without colliding; and the only explanation for the collision that occurred was that one or both of the drivers had failed to maintain lane discipline and keep a safe distance as they negotiated the bend.
The claimant called as a witness a Mr Walford, a Canadian citizen who, as a holidaymaker in London, had been sitting in the bus with his wife at the relevant time and had witnessed the accident. His evidence was relied on in support of the claimant's case as to the position of the three vehicles when stationary at the traffic lights. At paragraphs 21–22 of his judgment, however, the judge found that Mr Walford's evidence was confused and could not be relied on.
The judge went on at paragraphs 23–24 to find that the claimant's own evidence as to the position of the vehicles at the lights was also unreliable, in particular because the claimant said that there was a car in front of the VW Passat but the judge did not think he could be right about that. It was indeed a striking feature of the case that the evidence showed the claimant to have been mistaken on that point. If the VW Passat was the first car in the inside lane at the lights, the claimant's account of his own position at the lights did not make sense.
At paragraphs 25–26 the judge said that he considered it unlikely that Mrs Dean and Mr Zeital both failed to check their wing mirrors at the lights or, if they did check them, that they both failed to see the claimant if he was in the position he said he was in, particularly given that he was wearing a high visibility vest. It was much more likely that at least one of them would have looked in their mirror and would have seen the claimant if he was there. The judge said that whilst he did not put this consideration at the forefront of his reasoning, it added weight to the proposition that the claimant was not where he said he was while waiting at the lights.
At paragraph 27 the judge said that he did not think he could make a positive finding on the evidence about precisely where the claimant was at the lights. In his view it was more likely than not that the claimant was in a position that meant that he was not visible to one or other of Mrs Dean and Mr Zeital, and probably to both, and thus was in the blind spot of at least one of them. If that was so, the most likely location, he said, would have been "somewhere behind Mr Zeital's car to the rear offside not on its rear offside, which … is what he said to the police initially" (original emphasis). However, the judge repeated that he did not think the evidence justified any positive finding to this effect.
At paragraph 28 he referred to a telling point made by counsel for Mr Zeital: if the claimant had been in the position he said he was, why did he not do what many motorcycle riders do in such a situation, namely filter down to the front of the queue at the lights in order to move away as soon as the lights changed and thus be out of the way of the traffic behind? The judge referred to that factor as adding weight to the proposition that the claimant was not where he said he was while waiting at the lights.
At paragraph 29 the judge said that his finding as to the claimant's position at the lights undermined the claimant's case significantly but did not destroy it. It would not absolve Mrs Dean or Mr Zeital from the obligation of keeping a lookout for unexpected vehicles but would mean that each was entitled to depart from the traffic lights believing that there was no motor scooter in the vicinity of the rear of their respective vehicles.
The judge went on to consider the way in which Mrs Dean and Mr Zeital negotiated the turn, or as much of it as they had effected before the collision occurred.
He found at paragraph 33 that Mrs Dean did what was entirely safe from the point of view of vehicles on her nearside, by taking a wide sweep and placing the nose of the bus over the central reservation to her offside as she swung left round the corner. He did not consider that anything she did fell below the standard of reasonable care.
As to Mr Zeital, it was argued for the claimant that he took too wide a berth and came too close to the bus, causing the claimant to impact with the car and be forced into the side of the bus. For reasons given at paragraphs 35–36, which are considered more fully below, the judge found that Mr Zeital's driving could not be said to have fallen below a reasonable standard.
He added at paragraph 37 that the driving of Mrs Dean and Mr Zeital fell to be judged by reference not only to what each did but to all the circumstances including the riding of the claimant himself. Even if Mrs Dean should have seen the claimant at the lights, she would have been entitled to assume that he would have seen the wide sweep she was taking on the bend and would adjust his position on the road accordingly. The same applied to Mr Zeital, who might in those circumstances have kept a little closer to the nearside but would have been entitled to rely on the rider of the motor scooter to have regard to the developing situation on the bend and to hold back until the bus and the car had negotiated the bend safely.
The judge expressed the view at paragraph 38 that in taking a deliberate decision to pass between or travel with the bus and the car as they undertook the left-hand turn, the claimant misjudged the situation. If he had held back the accident would not have happened.
All this led to the judge's conclusion at paragraph 40 that neither Mrs Dean nor Mr Zeital was negligent and that what the claimant did represented a failure to take reasonable care for his own safety. He said that even if he had found that the driving of either of the other two had fallen below a reasonable standard, he would have found the claimant largely to blame, certainly no less than 75 per cent.
The grounds of appeal
The grounds of appeal are that:
(1) the judge was wrong to find as a matter of fact that the claimant was not visible to either defendant driver while they...
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