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Motorcyclist trapped between vehicles fails in appeal against dismissal of claim

Landau v Big Bus Co Ltd & Zeital
Court of Appeal
31 July 2014

The Court of Appeal has upheld a first instance decision that two drivers were not responsible for a road traffic accident in which a motor scooter rider became trapped between their vehicles. Sarah Mir and Tony McLoughlin highlight the key findings in a judgment which underlines the Court of Appeal’s reluctance to interfere with findings of fact and which applies a welcome degree of pragmatism.

Facts

This appeal concerned a motor accident involving three vehicles which were stationary at a junction controlled by traffic lights. When the lights changed to green, the vehicles moved forward and started to negotiate a sharp left hand turn into a street.

The First defendant’s driver, operating a tourist bus was in the outside (right hand) lane. The Second defendant was driving a car in the inside (left hand) lane. The claimant was riding a motor scooter and the central issue of dispute was his position.

As the vehicles proceeded to move, the motorcycle 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.

The claimant sustained a serious injury to his right leg resulting in a below knee amputation.

First instance decision

The claimant alleged that his position was a normal place for a scooter or motorbike to be and clearly visible to the defendants. He argued that the defendants had failed to a) keep an adequate look out, b) maintain lane discipline and c) keep a safe distance as they negotiated the bend.

Foskett J found the lay evidence, advanced on behalf of the claimant, to be confused and therefore not to be relied upon. Similarly, it seemed more likely than not that the claimant was in a position that meant he was not visible to one or others of the defendants, if not both and therefore in their blind spot. The judge also questioned why the motorcyclist did not filter down to the front of the queue of lights in order to move away, as soon as the lights changed i.e. what many motorcyclists would do in such situations, to be out of the way.

Accordingly neither defendant was found to be liable whilst the claimant had failed to take reasonable care for his own safety. Interestingly, the judge said that even if he had found that the driving of the defendants fell below a reasonable standard, he would have found the claimant largely at fault with an apportionment of not less than 75%.

Court of Appeal Findings

Richards LJ, Sullivan LJ and Black LJ dismissed the claimant’s appeal.

Giving the lead judgment, Richards LJ reminded the parties of the well-recognised reluctance of appellate courts to interfere with primary findings of fact especially when they depended upon the trial judge’s assessment of witnesses he had seen and heard give evidence.

The appeal was based on a number of grounds including the claimant’s position and visibility at the lights. Although the main issue in dispute was that the claimant was not in the position where he said he was, the claimant did not advance an alternative case i.e. that if he was not in the position where he said he was, he was nonetheless in a position where he was visible to the defendants.

The defendant bus driver could not be expected to look in her nearside wing mirror at all times and she was right to devote her attention first to the offside and bring the front of the bus over the central reservation without risk to pedestrians. Similarly, the second defendant was likely to judge his or her position by reference to what the bus was doing.

There was no basis for interfering with the trial judge’s primary finding i.e. that the defendants should have seen the claimant at the lights or sooner when negotiating the turning nor was the trial judge mistaken in his view that the defendants would have been entitled to assume, in the circumstances that the claimant would have held back as they negotiated the turn.

The appeal was therefore dismissed as the issue of contributory negligence did not arise.

Comment

This decision underlines the inherent, and long established, reluctance of the Court of Appeal to interfere with findings of fact made by a court of first instance where the trial judge has had the benefit of seeing and hearing live evidence from the witnesses, and where the appellate court has not.

The trial judge’s reasoning was assessed in fine detail and was determined to be beyond criticism. In the circumstances, the appeal was without merit.

In fact, the first instance decision, and the Court of Appeal’s endorsement of it, was based upon a welcome degree of pragmatism. It recognised that motorists, especially when driving in busy, built up areas, cannot have “eyes everywhere” and are entitled to focus upon the most significant and obvious areas of risk. In addition, it would not have been unreasonable for both defendants, if they had seen the claimant in their mirrors, to assume that he would have held back as they negotiated the turn, rather than proceeding as he did.

Contact

For further information, please contact Sarah Mir, Senior Solicitor on 0151 907 3164 or Tony McLoughlin, Director on 0151 907 3042.

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