England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr A Marriott QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 27th June 2001

1. THE PRESIDENT:I will ask Lord Justice Keene to give the first judgment.
2. LORD JUSTICE KEENE:This is an appeal against a decision of Mr Arthur Marriott QC, sitting as a Deputy High Court Judge, delivered on 4th April 2000. By that decision the judge found the defendants liable in negligence in respect of injuries caused to the claimant in a road traffic accident, but held the claimant to be 30 per cent responsible for the accident. The defendants appeal against the finding of liability and against the apportionment of liability. There is also an appeal against the judge's assessment of the quantum of damages, which, on a 70 per cent basis, came to just over £844,000. The claimant was very severely injured in the accident, with the result that his left leg had to be amputated above the knee. The first defendant was the owner of the lorry involved in the accident. The second defendant, Mr Kew, was the driver employed by the company.
3. The accident occurred on 19th December 1994 at about two o'clock in the afternoon. It was a fine, clear day. The claimant, Mr Sousa, was at that date 20 years old. He had been in the United Kingdom since 1992, having grown up in Venezuela. He was riding his bicycle from his home in West Norwood, London, to his then place of work in Covent Garden. However, he was giving a lift on the bicycle to a Portuguese friend of his, a Mr Paolo Garrett, who was riding on the cross-bar of the bicycle, with his legs on the offside. Mr Garrett was steering the bicycle, Mr Sousa peddling it while resting his hands on Mr Garrett's shoulders. Although Mr Sousa had carried other friends on his bicycle in this way, it was the first time that Mr Garrett had ridden with him. It seems that they had travelled for about two miles by the time they reached Brockwell Park, where they were travelling northwards along Norwood Road, the A215.
4. The claimant and Mr Garrett on the bicycle crossed some traffic lights at green. Just north of the lights, the road widened so as to become a four-lane undivided carriageway, with two lanes in each direction and a broken white line in the centre. Lane markings beginning a little way north of the junction indicated the two lanes northbound. There was a parked car, a Ford Sierra, ahead occupying part of the nearside northbound lane. Mr Kew, the second defendant, an experienced heavy goods vehicle driver with (as the judge said) an unblemished record, was driving his usual vehicle, a relatively new Mercedes Benz articulated lorry, in the same northerly direction. It was full, with a load of some 38 tonnes. The tractor unit of the vehicle had three axles, the trailer had two. The vehicle was over 51 feet in length, eight feet four inches wide and 13 feet nine inches high. The judge found that the vehicle was in good condition and Mr Kew had consumed no alcohol.
5. There were differing accounts as to what then happened. According to Mr Sousa, Mr Garrett steered the bicycle out to the right to pass the parked Sierra. He could not remember giving any signal that they were going to pull out or looking behind him to see if there was any vehicle following. According to the judge's summary of his evidence:

"He then remembers a lorry overtaking rather close to them and what he described as `the wind' generated by the lorry caused Mr Garrett to lose control of the bicycle. Mr Sousa said that the bicycle fell to the left, he fell off and landed in the road. He saw the rear nearside wheels of the trailer coming towards him. The wheels then ran over his left leg and the lorry stopped."

6. In fact, the judge's reference in that summary to the wind from the lorry causing the loss of control is not entirely accurate. What Mr Sousa actually said when cross-examined was that Mr Garrett might have lost control because of the wind from the lorry.
7. The judge also referred to a statement made to the police at the scene of the accident by Mr Garrett, who did not give evidence at trial. After describing the arrangements for the two of them on the bicycle, Mr Garrett said:

"When we got to the park I lost control of the steering and we went under the wheels of the lorry on our right."

8. Mr Kew, in a statement to the police and in his evidence at trial, described seeing the bicycle ahead with the two men on it and seeing also the parked Sierra. He described the bicycle as "wobbling about". He had been travelling at about 30 miles an hour but eased up on his speed. He pulled into the outside lane (that is to say, the offside northbound lane) and wanted to give the bicycle plenty of room. He described starting to pass them but watched them in his nearside mirror. He suddenly saw them lose control and the bicycle come in towards the rear of the trailer. He slammed on his brakes and came to a halt. It seems that the nearside wheels on the first rear axle of the trailer went over Mr Sousa's leg.
9. A police officer, Police Constable Seabrook, attended the scene of the accident and took measurements. He produced a valuable sketch plan showing the carriageway and the position of various features. At the point of the accident, the carriageway in total was about 42 feet 10 inches wide. Each of the two northbound lanes was approximately 10 feet wide. The road, which is subject to a 30 miles per hour speed limit, curves slightly to the left as seen by northbound traffic. The articulated lorry came to a halt with the trailer alongside the parked Sierra and the tractor unit in front of the Sierra. There was a skid mark measuring 11 feet five inches at the rear of the trailer. The rear axles of the trailer were behind the rear end of the Sierra and the bicycle was found approximately in line with the rear of the Sierra. Police Constable Seabrook's sketch shows the Sierra parked next to the kerb in the nearside lane and the lorry wholly within the offside lane. He measured the distance of the nearside of the lorry to the kerb as 12 feet at the front and 12 feet eight inches at the rear, although the sketch, it must be said, showed the lorry roughly parallel to the road alignment.
10. There was expert evidence from both sides seeking to establish where the accident had occurred. Perhaps not surprisingly, this could not be achieved with any precision. However, there seems to have been no dispute that the collision between the bicycle and the trailer (in so far as there was one) must have occurred at some distance before the position of the Sierra. The skid mark left by the lorry began something like 25 feet before the rear of the Sierra and Mr Sousa himself said in evidence that the accident happened before the bicycle reached the parked car.
11. There was some independent evidence in writing from a Mr Phillips, who was on the far side of the road. He gave a statement to the police at the time and a formal witness statement later. He described the bicycle as "wobbling quite badly" as it just cleared the junction, as though the men were losing control of it. He referred to the lorry having virtually overtaken the bicycle when the front wheel turned towards the kerb and then came out again very quickly, the bike then going under one of the nearside rear wheels of the lorry.
12. The learned deputy judge posed the issue in the following terms:

"The key question, regardless of precisely where in relation to the Sierra the collision took place, is whether Mr Kew left, as he intended to, sufficient space to pass both the bicycle and the Sierra safely taking fully into account, as Mr Kew recognised, that trucks of the size of this Mercedes Benz create a certain turbulence which can affect the stability of cyclists even without passengers on the cross-bar if the truck passes too close."

13. After a reference to part of the Highway Code, the judge then answered that question as follows:

"I think Mr Kew misjudged the space which was necessary to ensure that he could pass safely. He was clearly alive to the danger that the bicycle might wobble or swerve into his path. He would have stopped if he had considered it necessary to do so but he clearly believed that he could allow the bicycle sufficient space to avoid the risk. He made, in my view, an error of judgment and passed too close to the bicycle. I think the probability is, as Mr Sousa said, that the turbulence caused Mr Garrett to lose control."

14. I should add that the judge seems to have accepted that the lorry was travelling within the speed limit, probably somewhere around 25 miles per hour, although there is no express finding as to the vehicle's speed.
15. He then went on to conclude that Mr Sousa had contributed to the accident, because to ride with a passenger on the cross-bar was potentially dangerous; but he held that Mr Sousa's contribution was very significantly less than Mr Kew's, and on that basis he assessed Mr Sousa's contribution at 30 per cent.
16. Those conclusions are now challenged by the defendants. On their behalf, Mr Crowley QC emphasises that there was never any suggestion that the lorry struck the bicycle, as opposed to the bicycle going out of control and toppling over after part of the lorry had already passed the bicycle. The bicycle had been in one lane and the lorry in the other, even though the bicycle may have been pulling out with a view to passing the Sierra in due course. It is submitted that the cause of the accident was the loss of the control of the bicycle, which was in turn the result of the dangerous way in which the two men were riding it. Mr Crowley criticises the judge for failing to make clear findings as to where the bicycle was in relation to the nearside kerb when Mr Kew made the decision to pass the bicycle and as to where the lorry was at that time. Generally it is contended that Mr Kew took reasonable care in all the circumstances and that there was no evidence to show that any action or failure to act on his part led to the accident.
17. Mr Burton QC reminds us that it is not for this court to interfere with the findings of primary fact made by the trial judge. He submits that the evidence showed that Mr Kew saw the bicycle from some distance and was aware that it was wobbling, but erroneously thought that he could give it a wide enough berth. Mr Kew, according to the judge, could have stopped, but took the risk of carrying on. There was evidence that Mr Kew was aware that the bicycle was starting to pull out to pass the Sierra. While Mr Burton accepts that the claimant and Mr Garrett were not behaving sensibly, he contends that it is well-established that motorists must anticipate that others on or in vicinity of the road may behave foolishly, and the motorist must therefore take reasonable care to guard against such folly. Reliance is placed on the decision in London Passenger Transport Board v Upson [1949] AC 155, where the House of Lords emphasised that it is common experience that many road users do not behave with reasonable care, Lord Uthwatt saying (at p.173):

"A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take."

18. The claimant submits that there was no error of law here by the judge and no basis for interfering with his finding of negligence.
19. For my part, I do find it unfortunate that the judge did not make a finding as to where in relation to the Sierra the accident happened. It seems to be implicit in the way in which he formulated the "key question" that he was assuming that the lorry had to pass both the bicycle and the parked car at about the same time, so that Mr Kew had to assess whether there was adequate space for him to do that. But it is quite clear, and not in dispute, that the bicycle went over on its side at some distance before it got to the Sierra. The precise distance may be difficult to ascertain, but all the evidence, including the skid mark and the allowance to be made for a reaction time before Mr Kew braked, points towards it being at least 45 feet behind it, once a reaction time is allowed for before the skid mark begins. At that location the nearside lane was empty but for the bicycle itself.
20. Again, there is no clear finding in the judgment as to where in that lane the bicycle was prior to the accident or whether it was moving across the lane. There is evidence to suggest that it had begun to pull towards the outer edge of that nearside lane, but a finding as to its precise position would have been helpful.
21. It is not in dispute that the lorry did not run into the bicycle. The lorry was proceeding along in the outer lane and was partly past the bicycle when there was a loss of control by those on the bicycle. In effect, the bicycle went toppling over, casting the claimant into the path of the nearside rear wheels of the trailer. The fundamental question was why did that loss of control (principally on the part of Mr Garrett, who was steering and, presumably, braking) occur? What caused the loss of control of the bicycle?
22. I emphasise that, because this is not the conventional case of a motor vehicle striking a bicycle, but of the latter going out of control. The judge seems to attribute the cause to the proximity of the lorry, probably because of turbulence caused by it. It is, however, difficult to discern the evidence from which such a conclusion could properly be drawn. Certainly, in his witness statement for trial, Mr Sousa refers to "the suction and the noise of the lorry" causing Mr Garrett to lose control. But when cross-examined, Mr Sousa merely said that Mr Garrett "might have lost control of the bike because of the wind of the lorry". But that was not what Mr Garrett had said to the police. In his statement to the police, Mr Garrett made no reference to wind or noise from the lorry and had not sought to blame the lorry for his loss of control. Mr Sousa seems to have been speculating about what caused Mr Garrett's loss of control and, since there was no other evidence from Mr Garrett, the claimant was in some difficulty. No doubt there could have been expert evidence on the existence and degree of any turbulence caused by a lorry of this size travelling at 25 miles per hour or thereabouts in an urban area, but no such evidence was called. The judge suggests that Mr Kew had recognised that lorries of this size create turbulence, but the transcript shows that he had accepted that proposition in the most general terms, referring to the effect which trains passing non-stop through stations have. It simply cannot be assumed by a judge that turbulence of any significance is created by a lorry travelling at less than 30 miles per hour. It may be created or it may not, but it is a technical matter which requires evidence to establish it.
23. I cannot see that there was any proper evidential basis for concluding that it was the distance of the lorry from the bicycle which caused Mr Garrett to lose control. One has to bear in mind that there was ample evidence that this bicycle was wobbling about anyway, irrespective of the presence of the defendants' lorry. Mr Sousa himself acknowledged that, saying that "the bike wobbles all the time", that relating to the situation when he was carrying Mr Garrett on the cross-bar. Mr Phillips, in one of his statements, refers to the bicycle wobbling quite badly as it just cleared the junction, "and it looked as if the men were losing control of it". That was not, it seems, referable to the presence of the lorry. Yet the judge does not deal with that evidence, which points to the possibility of a loss of control independent of the lorry, save to say that Mr Phillips' statements did not help him on the causation of the loss of control of the bicycle. The learned deputy judge did not explain why those statements did not help on that issue.
24. Given the state of the evidence, in my judgment it was not open to the judge to find that the driving of Mr Kew caused this accident, even in part. Liability in negligence, of course, requires a breach of the duty of care which causes the damage. In a case like this, the standard of care required is bound up with the topic of causation. If Mr Kew did not cause the accident, it is very difficult to infer that he fell below the proper standard of care by passing too close to the bicycle. While a motorist must anticipate a certain degree of folly on the part of other road users, he is not responsible in negligence unless his acts or omissions can be shown to have caused, at least in part, injury or damage to the claimant. I for my part do not accept that Mr Kew fell below the standard of care expected of a reasonably competent motorist, since he overtook this bicycle at a point where the bicycle had the whole of the nearside lane available and where the lorry was in the outer lane. But in any event, the defendants cannot be liable unless there is evidence from which it can properly be concluded that their lack of care caused the accident. That evidence did not exist in the present case.
25. I reach this conclusion without enthusiasm, since it means that this young man's life, blighted as it is by the loss of a leg, will not now enjoy the compensatory measures which an award of damages can secure. That is an unfortunate feature of our system of liability based upon fault. But it is the conclusion at which I have arrived.
26. It means that I would allow this appeal on liability. Neither the appeal on contributory negligence nor that on quantum therefore falls to be considered.
27. LORD JUSTICE THORPE: I agree.
28. THE PRESIDENT: I also agree. The appeal is allowed and the order of Mr Arthur Marriott QC, sitting as a Deputy High Court Judge, on 10th April 2000 is set aside.
Order: appeal allowed with costs here and below; order of the judge below set aside; claimant's liability for costs assessed at nil; public funded assessment of the claimant's costs; monies in court to be paid out to defendants' solicitors together with accrued interest; permission to appeal to the House of Lords refused. [DOES NOT FORM PART OF APPROVED JUDGMENT]