England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WALSALL COUNTY COURT
HIS HONOUR JUDGE MITHANI QC
A.15YJ520

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/03/2017

LORD JUSTICE TREACY:

1. This is an appeal against the decision of His Honour Mithani QC sitting at Walsall County Court on 12 May 2015 to dismiss the claimant's claim for personal injuries, loss and damage arising from a road traffic accident which took place on 11 January 2011. The matter was heard as a liability only trial, as a result of an earlier case management decision.
2. Mr Elson, the claimant was riding his bicycle in company with a friend, Mr Roach. They were proceeding along the B5414 Newton Manor Lane, travelling towards its junction with the A5 in Warwickshire. The defendant, Mr Stilgoe was the driver of a vehicle travelling in the opposite direction. A collision took place as the claimant was overtaking a stationary line of traffic on his near side on an area in the road which was flooded. In doing so he entered the defendant's lane and the collision took place. The road was a single carriageway with one lane in each direction. There was a white broken line depicting the centre of the carriageway. This was a rural area and there was no street lighting. The accident took place at about 8am in dull conditions, when it would not have been fully day light.
3. In essence the claimant's final case was that the defendant had failed to keep a proper look out and that he should have seen the claimant manoeuvring his bicycle to go round a puddle, which would have taken him onto the defendant's side of the road. His initial case did not suggest that he had gone over to the defendant's carriageway. If the defendant had seen the claimant (as he should) he would have been in a position to stop, so as to the let the claimant complete the manoeuvre and return to his side of the road or, alternatively, he might have steered to his left and avoided the collision.
4. The defendant disputed the claimant's version of events and denied liability. He asserted that he was driving correctly on his own side of the road and that the claimant in attempting to get round the puddle encroached on his side of the road at a late stage and into the path of his vehicle. In the alternative the claimant had been substantially contributorily negligent.
5. Having heard evidence from the claimant, his companion Mr Roach, the defendant, and an independent eye witness, a Mr Cowan, who had been in a vehicle on the claimant's side of the road close to the point of collision, the judge rejected the claim, and held that the defendant was not responsible for the accident.
6. The judge found that at the time of the accident the defendant was entirely on his side of the road, and that the claimant had moved on to it. The judge found that at that point the claimant and Mr Roach were cycling next to one another, with the claimant on the outside. In so finding, he rejected the evidence of Mr Roach, which was to the effect that he had been cycling ahead of the claimant and gave a number of detailed reasons as to why he found Mr Roach's evidence unreliable. Mr Cowan had also given evidence stating that the cyclists were in single file, but the judge preferred the evidence of the defendant whom he found to be straightforward and reliable on this issue.
7. The judge went on to say that even if the two cyclists were cycling next to one another, he could not see any basis upon which the defendant could be liable for the accident. There was no reason why the claimant, to whom it would have been clear that there was a car approaching from the opposite direction on its correct side of the road, should not have stopped before he went round the puddle and entered the defendant's side of the road. The defendant had been driving properly, and at a speed appropriate to the road conditions. The claimant had veered onto the defendant's side of the road without making sure that it was safe for him to do so and when there was no good reason to do so.
8. The judge went on to say that if any liability had been established on the part of the defendant he would have found a substantial element of contributory negligence on the part of the claimant, both in the circumstances of the accident, and because of a failure to wear appropriate clothing or cycling gear and to have a lamp on, given the state of the light at the time of the accident. In exchanges after the ruling in which the claimant's counsel was seeking permission to appeal the judge, when pressed, indicated that damages would have been reduced by 35 to 40 per cent for contributory negligence. The judge did not expand on his reasons in the informal exchanges which took place.
9. The claimant submits that the judge erred in two respects. First, the finding of fact that the claimant had been riding alongside Mr Roach was perverse and against the weight of the evidence. Secondly, his finding that the defendant had not failed in his duty of care to see and avoid the claimant was wrong in law, given that the judge had made no finding that the claimant was not there to be seen at a reasonable interval before the collision.
10. In granting permission to appeal with some hesitation Dame Janet Smith referred only to matters pertaining to the second ground.
11. In relation to the first ground, Mr Rohrer argued that the judge was wrong to find that the cyclists were side by side because (1) he had disregarded the claimant's evidence about being in single file with Mr Roach (2) he had performed little analysis of the evidence of Mr Cowan the independent witness and (3) he had insufficient basis for rejecting Mr Roach's evidence.
12. The significance of this challenge to the judge's ruling was that if he had held that the cyclists were in single file, it would have been more difficult to find that the defendant had not failed in his duty to heed the presence of the claimant, given the defendant's acceptance in evidence that there would have been sufficient room for a single cyclist to pass between the queue of traffic and the oncoming traffic.
13. As to the second ground, it was argued the judge had failed to give a reasoned basis for the failure of the defendant to see the claimant beyond referring to the claimant's clothing and lack of lighting. It was submitted that those matters only went to contributory negligence. A driver in the position of the defendant had a duty to look out for and avoid a cyclist travelling in the opposite direction whilst passing a line of cars. If the claimant was there to be seen, then the judge was wrong in finding that the defendant, who had not seen him until virtually the point of collision, was not in breach of duty. If there was a breach of duty it would have been causative, because the defendant could have slowed, stopped or manoeuvred so as to avoid a collision. If liability was established, the claimant did not seek to challenge a finding of 35 per cent contributory negligence.
14. On behalf the respondent it was sought to uphold the judge's decision not only on the grounds set out in the judgment, but also on additional grounds set out in the respondent's notice. As to the first ground of appeal it was contended that permission to appeal had not been given, but that in any event the ground had no merit. The judge had made his decision based on the oral evidence and had made an assessment of the witnesses' credibility. In that respect he had a significant advantage over the appellate court which should be extremely slow to interfere with the judge's findings of primary fact when based upon an assessment of credibility of witnesses: see McGraddie v McGraddie [2013] UKSC 58.
15. The judge had set out in detail why he found Mr Roach's evidence to be unreliable and had plainly considered Mr Cowan's evidence before concluding that he preferred the account of the defendant, as he was entitled to do. Of particular importance was the judge's noting that had the cyclists been travelling in single file there would have been room for the claimant to proceed safely. Moreover the judge had found that the claimant had veered into the defendant's path.
16. As to the appellant's second ground, the key issue was whether the claimant was on the defendant's side of the road to such an extent and for such a period of time that the defendant ought to have seen him, and taken evasive action. Again, the finding that the claimant veered into the defendant's path was important in this respect. That finding had not been appealed and was relevant to the question of the defendant's duty to see and take evasive action. Further, the judge had found that the claimant should have stopped to allow the defendant to pass before encroaching onto the defendant's side of the road.
17. In the alternative it was submitted that if the defendant was liable then the claimant's level of contributory negligence should have been 75 per cent rather than 35 per cent. The judge had not considered the matter in any detail, but only briefly after giving judgment and in discussion with the claimant's counsel. The figure indicated by the judge was simply wrong, as on the judge's finding of facts the claimant's blameworthiness for the accident was considerably greater than that of the defendant. In particular the claimant was on the wrong side of the road, and to a greater extent than Mr Roach, who had safely passed the defendant's car. The claimant was not wearing any reflective clothing or a helmet. He had not stopped to allow the defendant to pass safely, was travelling too fast in all the circumstances, and failed to see the defendant's car.
18. In relation to the first ground the defendant took the point that permission to appeal was only granted in terms of the second ground. The claimant responded by submitting that permission had been given generally and that permission on the first ground had not been excluded. Alternatively he sought leave to advance the first ground. I tend to the view that although no reference was made to the first ground in terms, a general leave to appeal was given, but for the avoidance of doubt indicate that if need be I would grant leave for the first ground to be argued.
19. The essence of the first ground is a criticism of the judge for having concluded that the two cyclists were not riding side by side, but instead riding in single file. That is, of course, a finding of fact, and as was made plain in McGraddie v McGraddie it is a long settled principle that an appellate court should not interfere with the trial judge's conclusions on primary fact unless satisfied that he was plainly wrong. I have also had regard to the observations of Lewison LJ in FAGE UK Ltd and Anr v Chobani UK Ltd and Anr [2014] EWCA Civ 5 at paragraphs 114 and 115.
20. The claimant seeks to surmount that obstacle by an analysis of the evidence. There were three witnesses said to be broadly supportive of the claimant's case that he had been riding in single file as against the evidence of the defendant. It is of course the quality of the evidence that counts rather than the numbers of witnesses. Mr Rohrer only faintly relied on the evidence of the claimant, whose evidence he accepted was "limited". The evidence of the other cyclist, Mr Roach was considered in some detail by the judge and criticised with reasons. The judge's conclusion was that much of what Mr Roach had to say was unreliable, and that in contrast to his evidence the evidence of the defendant on this topic was straightforward and reliable. Thus far, there is no possible basis for criticising the judge's preference for the defendant's evidence.
21. Mr Rohrer placed strongest reliance on the evidence of the independent witness Mr Cowan, and criticised a failure by the judge to analyse that evidence on the issue of whether the cyclists were in single file or riding side by side or in parallel, before stating that he preferred the defendant's account over that of Mr Cowan and Mr Roach. It is right to say that the judgment undoubtedly gave consideration to Mr Cowan's account in some detail including his evidence that the cyclists were in single file. The judge specifically rejected aspects of Mr Cowan's evidence, namely as to whether the defendant was travelling too fast in the circumstances, and secondly an opinion as to why the defendant was at fault (which should never had been admitted in evidence in any event). However it is true that the judge did not in terms deal with why he preferred the defendant's evidence to that of Mr Cowan's on the single file issue. There is, accordingly, some force in Mr Rohrer criticism in this respect.
22. However, I note that the judge's conclusion on this issue was not determinative in his decision. At paragraph 23 he said:

"…However, even if I am wrong about that, and the claimant and Mr Roach were not travelling side by side or next or near to each other, I still cannot see any basis upon which the defendant can be liable for the accident."

23. That clearly requires a consideration of ground 2. If the judge's reasoning is sustained in relation to that ground, then any failure in relation to ground 1 becomes irrelevant. The core of the argument on ground 2 is that the defendant should have seen the claimant's approach prior to the collision and taken care to avoid him. This could have been done either by stopping or by steering to his left so as to give further room to the claimant. In this context Mr Rohrer argued that he was there to be seen for a sufficient time for the defendant, in discharge of his duty of care, to take necessary evasive action. A cyclist passing along a line of stationary traffic should have been observed by a driver coming the opposite way. That driver then should have modified his driving by taking account of the possibility that the cyclist might move into his path. Mr Rohrer submitted that the judge, whilst recognising that there was a duty of care even on a driver on the correct side of the road to keep a proper lookout, had failed to analyse the matter properly with regard to the position of a cyclist such as the claimant or determine how long the claimant had been on the defendant's side of the road.
24. The judge held that in the circumstances there was no requirement for the defendant to have stopped or taken some other precautionary manoeuvre. He found that the defendant had been travelling "perfectly properly" on his side of the road and at a speed appropriate for the circumstances and road conditions. The judge also made certain other important factual findings. He found that the claimant had moved onto the defendant's side of the road prior to arriving at the puddle, in circumstances where he should have seen the defendant approaching and should have stopped prior to entering the wrong side of the road. He described the claimant's move to the other side of the road as a "veer" which amounted to a "momentary" error of judgment. He found that there was no reason for the claimant to have moved to the defendant's side of the road, and I note that on the claimant's own case, Mr Roach had been able to proceed along the road without moving into the path of the defendant. He found that in the circumstances as the claimant initially approached on the correct side of the road, there was no reason for the defendant to anticipate that the claimant would suddenly move into his path, and thus no reason for the defendant to stop or move over to his left.
25. It is clear to me that the effect of the judge's findings is that the claimant was not on the defendant's side of the road for any length time sufficient for him to be observed by the defendant in a way which required him to take some evasive action. The judge's findings present a picture of a defendant driving properly, confronted at the last moment by a claimant who had made a decision to veer into his path without good reason for doing so. The clear implication of findings made by the judge was that in the circumstances there was no reasonable ground for asserting that the driver should have taken account of the possibility of a sudden veering into his path without good reason by the claimant. The judge's conclusions appear to me to show that the sole cause of the accident was the claimant's actions rather than any action or inaction of the defendant.
26. This was a judgment which was given ex tempore. It was not given with the degree of forensic detail which time for reflection would have enabled. I am, however, satisfied that the judge's findings were sustainable on the evidence so far as the second ground is concerned, and that they were sufficient both expressly and by necessary implication to lead to a proper finding that the claimant was the sole cause of this accident and that the defendant was not at fault. I would therefore dismiss the appeal on primary liability.
27. A secondary issue was raised as to the apportionment of contributory negligence. That issue would only arise if there was some liability on the part of the defendant. In the light of my primary conclusion, it is unnecessary to comment further.

LORD JUSTICE SIMON:

28. I agree.