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
(HIS HONOUR JUDGE SEYMOUR)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th October 2009

Lady Justice Smith:

1. This is an appeal from the order of HHJ Seymour QC, sitting as a judge of the High Court. The claim before him arose out of a road traffic accident which took place in July 2006 on Euston Road between Euston and St Pancras stations. The claimant was riding her pedal cycle in an easterly direction towards St Pancras. She was overtaken by a coach belonging to the defendant and driven by a man named James Smith. The claimant's case was that the coach had failed to give her sufficient clearance and had clipped her right handlebar. This, she said, had caused her to lose control of her cycle and to fall off. She sustained quite serious injuries, mainly to her right shoulder and elbow. The defendant's case was that Mr Smith had allowed sufficient clearance and that the claimant had fallen from her cycle for some other reason, unrelated to the movement of the coach. The judge dismissed the claim, holding that the claimant had failed to prove that it was the coach which had caused her to fall. The claimant appeals from that decision.
2. The accident occurred outside a hotel called Novotel. This hotel has quite a long frontage onto Euston Road and, for its own purposes, has installed a number of CCTV cameras. These were operating at the time of the accident. Three cameras captured some of the movements of the appellant's cycle and the respondent's coach. However, the cameras were focused mainly on the pavement area outside the hotel rather than the roadway itself and, because of the direction in which they were pointing, they did not capture the whole sequence of events. At the western end of the hotel there was a camera pointing diagonally away from the building in a south-easterly direction. I shall call that the first camera. At about the middle of the building another camera, which I shall call the second camera, pointed diagonally in a south-westerly direction. Further, towards the eastern end of the building, a third camera pointed to the south-east. Thus, as the two vehicles approached the accident scene from the west, the cyclist could be seen travelling away from the first camera, she having already passed the western end of the building. The first frame in which she was visible was taken at 17.46.59. Just over ten seconds later she was lying on the ground, so the crucial events had taken place over a period of ten seconds, during which images were available on the camera. I shall refer to the various frames of the CCTV images by reference to the number of seconds past 17.47.
3. By 17.47.05 -- that is five seconds past -- she, the cyclist, was disappearing from the view of the first camera and the coach could be seen following her. By that time she had been picked up by the second camera, the one in the middle of the building. Indeed, she is first visible to that second camera at one second past, but is more clearly visible at two seconds past. She is riding towards the camera. At that time the coach cannot be seen. By four seconds past she has almost crossed the field of view of that camera. In the next frame, at five seconds past, she has disappeared at the eastern end of the field of view. She is then not picked up by the third camera until 10 seconds past so she is out of view for 5 seconds.
4. On the second camera, on the frame timed at five seconds past, the coach is coming into view at the western end. It takes about three seconds to cross the field of view of that camera. At seven seconds past, only the rear end of the coach is visible. It then disappears from view and is not picked up by the third camera until the framed timed at 10 seconds past. In that frame both vehicles have come into sight but the accident has already happened. On that frame the cyclist is falling off her cycle but has not quite come to rest. The coach has passed her as to about half its length.
5. In the next frame, at 11 seconds past, the cyclist has come to rest in more or less the same position as she was in the previous frame. But, by that time, the coach has passed her completely. So, as I have said, the CCTV images do not capture the two vehicles during the few seconds when something happened to cause the appellant to fall off her cycle.
6. Unfortunately, although there were a number of pedestrians on the pavement and some other vehicles on the road, no independent witness saw the accident. Some heard a noise and, on looking, saw the result of the accident. Their evidence was agreed. So the only live evidence received by the judge was that of the appellant and Mr Smith, the driver.
7. The judge also received agreed evidence from family members that the appellant was a very experienced cyclist who had never before had an accident. He received a police report which contained a brief account of the accident from Mr Smith and a hearsay account from the appellant's daughter. The appellant herself was unable to speak to the police officer as she was undergoing medical treatment. The hearsay account given by the daughter was this:

"I was cycling along the bus lane when the coach got too close and clipped me, which knocked me off the bike."

Mr Smith's account to the police officer was that, when asked what his explanation was for the collision, he said:

"I went past her slowly and I heard a thump. When I looked in the mirror she was on the floor. That was it."

8. The appellant put in a written statement in which she said that she had been cycling along Euston Road with her wheels about one to two feet outside the double red lines. These red lines were to indicate that this was a red route on which stopping was not allowed. In configuration they are very similar to the double yellow lines which prevent parking and they are clearly seen in the photographs before the court. The appellant said that as she passed in front of the Novotel she became aware of a coach overtaking her very closely indeed. It clipped her right handlebar and she lost control of the cycle and fell off. She gave evidence in accordance with that statement. In cross-examination it was put to her that the coach had not clipped her handlebar. Something else had caused her loss of balance and she had fallen against the side of the coach. Two suggestions were put to her. One was that her wheels might have slipped on some metal service covers which were fairly close to the edge of the road. She said that she did not believe that she had reached them when she was struck by the coach.
9. The second suggestion was that she had in some way been unsettled by a pedestrian who had been walking or jogging either just on the edge of the pavement on the outside of the protective barriers which guard the pavement at that point or possibly in the gutter. The jogger was visible on two frames of the third CCTV camera. On the frames timed at eight and nine seconds past, he can be seen moving westwards: that is, towards the cyclist, who was not yet in sight, but by ten seconds past he had disappeared from view.
10. As to that second suggestion, the appellant said that she did not remember seeing that jogger and she asserted that he had not interfered with her passage in any way. Throughout cross-examination she maintained that she had a clear recollection of the coach clipping her right handlebar.
11. Mr Smith's evidence was not satisfactory. Three months after the accident he made a statement to the defendant's insurer, which was demonstrably inaccurate in several important respects; and, inconsistently with his statement to the police, he said that he had not heard any sound which indicated that there had been a collision involving this coach. The judge disregarded Mr Smith's evidence and was fully entitled to do so. I should mention that in his oral evidence Mr Smith sought to abandon his written statement and to explain matters more consistently with what he had earlier said to the police. However, it was unclear from cross-examination whether he had in fact been aware and had seen the cyclist as he was approaching her. The judge made no finding as to whether or not he had. As I say, the judge was entitled to reject or disregard Mr Smith's evidence.
12. However, the judge also rejected the appellant's evidence. At paragraph 12 of his judgment the judge said that her evidence was "wrong". But the only example he gave of any incorrectness was that she had apparently said that she was riding in the bus lane. In a sense that was wrong, because at that point on Euston Road the eastbound carriageway comprises two lanes, both open to all traffic. In other words, there is no dedicated bus lane at that point. However, it was not clear whether that error of description was the appellant's own error when speaking to her daughter or whether the error was the daughter's in relaying the appellant's account to the police officer. But, even assuming the error to be the appellant's, it does not seem to me that this was an error which could warrant the wholesale rejection of the appellant's evidence. At the worst it was an error of terminology. What was being conveyed was that the appellant was cycling in the nearside lane. That she certainly was. In any event, the error seems understandable. For one thing, the appellant was in some pain at the time she gave this early account; for another, it was an understandable mistake for anyone to make. On roads such as this one, the inside lane is often dedicated to buses. In fact, this stretch of Euston Road is not but a few yards ahead of where the accident occurred; the road widens slightly, the layout is changed and a bus lane is provided.
13. Thus, it appears to me that the judge rejected the appellant's evidence for no good reason. If that so-called error was his only reason it was, in my judgment, quite inadequate. If the judge had other reasons for rejecting the appellant's evidence he did not express them. In my view, this was an important error on his part.
14. Having rejected the evidence of the only two eyewitnesses, the judge proceeded to decide the case on the basis of what could be seen in the CCTV images. The quality of these was not bad. However, they had two serious shortcomings. The cameras were, as I have said, focused on the pavement areas rather than the roadway. The images of vehicles in the roadway were small and often in the corner of the frame. Moreover, the view of the edge of the roadway was partially obscured by the protective barriers. Most important of all, for the reasons I have already explained, the cameras did not capture the moment at which the accident happened. It only captured the run up to it and the result of it. The vital events were not seen. The event which caused the appellant to fall from her cycle could have occurred at any time between five seconds past and nine seconds past.
15. At paragraph 16 of his judgment, the judge accepted that, from the CCTV, it appeared that the appellant had, as she claimed, been riding outside the red lines. Her evidence, as I have said, was that she was riding between one and two feet outside the red lines. There was no criticism of her for that. It was not suggested that she was expected to ride within the red lines, in effect in the gutter.
16. The judge then considered the position of the coach and whether it appeared that it had given the appellant a sufficiently wide berth. He appears to have considered the last few frames on which the coach was visible from the second camera. By consideration of the position of the coach as seen on the first camera at four seconds past, he considered that the nearside of the coach was, he said, perhaps a foot outside the red lines. I pause to observe that that would put the coach on a collision course with the cyclist which it was following. The judge then observed that, from the second camera, at six seconds past, the offside of the coach appeared to be on the white line dividing the two main lanes. He made no observation as to the position of the nearside which was of course the crucial side. I am in just as good a position as he was to assess the position of the nearside of the coach at that time, six seconds past. It appears to me that the nearside of the coach was quite close to the red lines and, in my judgment, the coach appears to be on a course very close indeed to the cyclist's path.
17. The judge then switched to considering the position of the coach in the frame from the third camera at ten seconds past, where the cyclist can be seen falling. In this frame the coach has half overtaken the cyclist. At the point on the road where the front of the coach had reached, the carriageway is widening just before a junction on the left-hand side and the coach appears to be a considerable distance from the kerb and indeed from the red lines. The judge considered that this showed that the coach appeared to have given the cyclist sufficient room. However, it does not appear to me that this frame provides a reliable guide to the position of the nearside of the coach in relation to the kerb or the red lines, as it would have been a few yards further back when any collision, if there was one, would have occurred.
18. The judge rejected the claim because he considered that the claimant had not proved on the balance of probabilities that the coach struck her handlebar. In assessing the evidence and in reaching his conclusions, he fell into an error in that he made an observation which was inconsistent with an earlier finding. He observed that the appellant had been riding along the red lines, whereas earlier in his evidence he had said that she was riding outside them and appeared to be maintaining a course along that line. Also, he appears to have forgotten that he had found that, before the accident time, the nearside of the coach was quite close to the red lines. He seems to have gauged the position of the coach by reference only to the frame taken at ten seconds past when the view of the road is where it has widened out.
19. In short, I do not consider that the judge could safely infer from the CCTV evidence that the coach gave the cyclist a sufficiently wide berth. It seems to me that the appellant's evidence was crucial. She had consistently claimed that the coach had been very close to her as it passed and had clipped her handlebars. She may have been wrong, but she was not demonstrably wrong by reference to the CCTV camera evidence. In my judgment, the judge should have evaluated her evidence in connection with the CCTV footage and, if he thought it appropriate, in connection with Mr Smith's evidence, and he should have either accepted or rejected her evidence for reasons which he should have explained.
20. It is trite law that this court will not readily interfere with the decision of a trial judge on the facts of the case. But in this case it appears to me that we should do so. The judge has disregarded the appellant's evidence without giving any adequate reasons for doing so. Given the shortcomings of the CCTV evidence, it was not open to him, in my judgment, simply to hold that the appellant had failed on the burden of proof. I would allow the appeal.

Lord Justice Ward:

21. I agree.

Lord Justice Rimer:

22. So do I.

Order: Appeal allowed