England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER JACKSON)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd January 2001

Tuesday 23rd January 2001

LORD JUSTICE DYSON: I will ask Sir Murray Stuart-Smith to give the first judgment.

1. MR JUSTICE SMITH: This is an appeal from the judgment of Mr Recorder Jackson given on 9th May 2000 in relation to an issue of liability only. Permission to appeal was granted by this Court on 21st July 2000. The action concerns a road traffic accident which occurred on 3rd August 1995 when the Defendant was driving a motorcar emerging from an access road on to the A13 road. That is a relatively fast road, although it is subject to a 40 mile an hour speed limit and it is a dual carriageway. The access road led to the factory or other premises, including that at which the Defendant worked.
2. The Claimant who worked at Fords, some little distance away, was riding his bicycle along the pavement in an easterly direction and therefore had to cross the mouth of this access road. The position is illustrated by some photographs and a sketch plan and it is clear that the pavement is not well sighted either for drivers emerging from the access road or pedestrians wanting to cross. The attention of a driver coming out would inevitably be primarily to his right because that is the direction in which the traffic is moving. The difficulty at this junction is caused, first of all, by the fact that it is not a very good sight line to a driver's right, but more importantly the view to the left of pedestrians coming along the pavement is seriously impeded by a concrete wall and it is not until one is relatively close to the junction that it is possible to see.
3. The Claimant's account was that the reason why he was riding his bicycle on the pavement, which he knew perfectly well he should not do, was because it was safer to do that than to ride on the main carriageway with lorries, and so on, passing him. He said that as he came to the junction he stopped with the front wheel of his bicycle just in the roadway in a position where he could see what was coming up from his right.
4. He saw, so he says, about 10 feet or so away from him, the Defendant's car. It was then some distance out from its nearside such that its offside wheels went over a drain cover which is shown in some of the photographs. That would put the nearside of the vehicle some distance, perhaps six feet or so, from the nearside kerb. The Claimant's evidence was that, having seen that, the car then accelerated and cut in sharply to the nearside catching the front wheel of his bicycle and knocking him over. He had dismounted from the cycle in the sense that he was not still riding it, but he was standing with his right foot on the ground and his left foot possibly still on the left pedal astride the bicycle. The front wheel being in that position was struck by the car with the result that he was knocked over himself and caught up in the bicycle. He suffered a very nasty injury to his leg.
5. The Defendant's version of matters was that he was coming out and he intended to move across to the offside lane of the dual carriageway. He was concerned mainly, as I have said, with traffic coming from his right. He glanced to his left as he approached the junction and he saw nothing. He therefore looked back to the right and as it was clear he proceeded forwards. He heard a shout which the Claimant gave momentarily before the impact. He did not see the bicycle or the Claimant until the actual collision occurred which was between his front nearside bumper and the wheel of the bicycle. He said that he stopped on a sixpence and indeed it seems to be common ground that he stopped within a very short distance so that it is quite clear that he was not doing any substantial speed.
6. One of the critical questions in the case was precisely where the bicycle was in the road when it was hit. As I have indicated, the Claimant's version was that the front wheel was just in the road in a position where there are double red lines going around the corner, and he marked that in a photograph number 20. The Defendant, on the other hand, said that he was considerably further out into the road than that because of the position of his car as he came round there and indeed where he stopped. He marked the position of where the car was in the same photograph and he put the offside wheel on the edge of a giveway triangle and his nearside wheel would then be some five feet or so nearer the kerb, leaving quite a substantial distance between the nearside of the motorcar and the pavement. If that were the position of the motorcar it is clear that the Claimant must have come considerably further into the road than he said. Indeed the Recorder did not accept the Claimant's account of where he was when the accident occurred. He said he rejected it for the very good reason that if it had taken place there:

"... Mr Williams [the Defendant] would have had to take a most extraordinarily tight line to the kerb in order for the collision to happen at all."

7. That is page 12 of the transcript of the judgment. He went on:

"I therefore find that Mr Lee's bicycle was not with one wheel only on the road. I consider he was further forward than that. I am unable to make a specific finding about how much further into the road but what I am satisfied about is that he had come to a halt for the purpose of checking whether it was safe to proceed..."

8. I should add that the Defendant's primary case at the trial had been that the Claimant had simply cycled across this junction without stopping at all. That was a matter of inference because the Defendant said he looked one moment and the Claimant was not there and the next moment the impact had occurred. Therefore the speed with which it had occurred led him to conclude that the cycle had not stopped at all. The Recorder rejected that and Mr Howarth has not seriously tried to persuade us that the Recorder was wrong about that.
9. The Recorder, having rejected the Claimant's evidence as to precisely where he was, failed really to make a clear finding. He said he was not able to find as to precisely where the bicycle was, but he does, as it seems to me, hold clearly that both wheels must have been in the road. That would certainly accord with the Defendant's account of the matter. It is unfortunate that the Recorder did not make a clearer finding about this because he could have done so if he accepted, in terms, the Defendant's evidence as to where he was. Again it would have been perfectly clear that the Claimant had come further than he said. But it seems to me that that is really the inference from what the Recorder said. He certainly does not reject the Defendant's account as to where he was when the accident occurred.
10. On those facts the Recorder found that the Defendant was solely to blame for the accident. He said that the Defendant had failed to keep a proper lookout. He ought to have appreciated that pedestrians, at any rate, might be going across there and he ought to have given a proper look to make sure that there was not somebody crossing the road as he pulled out.
11. Mr Howarth has challenged that finding. He submits that in fact it all happened very quickly and that it is perfectly possible when the Defendant, on his own version, said that he glanced to his left that in fact the Claimant was not in view and he came into view at a later stage. I am unable to accept that submission. It seems to me that the Defendant was, at any rate, partially to blame for this accident. He knew that people might cross the road at this point, pedestrians in particular. He said he had never seen a cyclist on this pavement, but he ought to have anticipated that pedestrians do not always take as much care of themselves as they should do, and that sometimes they have prams and things of that sought which they have to push in front of them.
12. The Recorder acquitted Mr Lee of negligence because he said that he was (and this is at page 13)"taking appropriate care on this very difficult junction to check whether he could safely cross" or not. It seems to me that that is, to some extent, inconsistent with a finding which he had already made at page 3 of his judgment where he said this:

"Looking at it from the point of view of a pedestrian coming along that pavement from west to east, he has to come almost to the curve line itself in order to be able to see sufficient of the exit road to know whether or not it is safe to cross the exit road."

13. The "curve" line may be a misprint for kerb line, but I think it makes very little difference. What he was saying was that you do not have to go into the road in order to see that it is safe to cross if there is nothing coming. You can stop on the edge of the kerb of the pavement and you can see that it is safe to do so. That is illustrated by the photographs, in particular photograph number 17. If one concludes, as I do, and indeed as the Recorder did, that the Claimant must have gone further into the road than it was necessary in order to ascertain that it was safe to cross, and when in fact it clearly was not safe to cross, it seems to me that that involves some criticism on the Claimant.
14. The Claimant was criticised in the Court below for riding his bicycle along the pavement in breach of the highway code and so forth. He accepted that he should not have been cycling along the pavement but the Recorder said that that really made no difference to the accident. He said that he was really in the position of a pedestrian and therefore the fact that he was breaking the law was neither here nor there. I am unable to agree with the Recorder about that. It seems to me that the fact that the Claimant was cycling had a bearing on this accident, firstly, because the front wheel of the bicycle, which is the first object which is liable to be hit in a collision of this sort, projects some two or three feet in front of somebody who is standing, as the Claimant was, astride the bicycle and if the bicycle is hit then, as happened here, the Claimant is liable to be knocked over and injured. So it makes him more vulnerable than a pedestrian.
15. Secondly, it seems to me that it had a bearing in this case because when the Claimant saw that the accident was likely to happen he tried to dismount from his bicycle by getting his other leg over the crossbar to get out of the way, but not surprisingly he was not able to do that. Standing astride his cycle he inhibited himself from getting out of the way, he also inhibited himself from moving the cycle back out of the path of the collision. Therefore in my view, although it was not the primary cause of this accident, it seems to me that the Claimant was himself at fault in two respects: in putting himself further into the road than was necessary from the point of view of ensuring that it was safe to cross, and in making himself more vulnerable in the two respects that I have described.
16. I think the Recorder was wrong to acquit him of all blame in this accident, nevertheless I think that the greater proportion of the blame should attach to the Defendant. After all a pedestrian or a cyclist is more vulnerable than somebody in a motorcar. If the Defendant had, as he ought to have done, anticipated that pedestrians might have been crossing here and might have been taking less care of themselves than they should have been, he would have looked sufficiently carefully, in my judgment, to see that it was safe to proceed. Accordingly I would apportion liability here as to 60 per cent against the Defendant and 40 per cent against the Claimant.
17. LORD JUSTICE DYSON: I agree. So to that extent this appeal succeeds.
Order: Appeal allowed; damages to be assessed; Claimant to pay the costs of the appeal.