England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/08/2011

The Honourable Mrs Justice Swift :

The claim

1. On 31 July 2008, the claimant, Valerie Steadman, who is 69 years old, was travelling as a passenger on a route 49 double-decker bus (the 49 bus) which was operated by the first defendant and being driven by their employee, Stephen Atkinson. Mr Atkinson was driving the 49 bus along Kensington High Street behind a Ferrari sports car being driven by the second defendant, Matthew Sala. Suddenly, Mr Atkinson braked hard, bringing the 49 bus to a halt, as a result of which Mrs Steadman was thrown from her seat and struck her head on part of the internal structure of the bus before falling to the floor. Sadly, she suffered spinal cord damage at levels C3 and C4, resulting in tetraplegia. Mr Atkinson's explanation for having braked suddenly was that the Ferrari in front of him had braked without warning, causing him to perform an emergency stop in order to avoid a collision.
2. Mr Sala was traced by the police about a fortnight later and interviewed about the accident. He told them that he had no specific recollection of his journey on the day in question and was unaware that any incident had occurred. He denied that he had braked suddenly and that he had done anything to cause the accident.
3. The claimant issued proceedings against both defendants on 3 March 2010. In their Defences, each defendant denied liability and blamed the other. On 2 September 2010, Master Fontaine ordered a trial of the preliminary issue of liability as between the two defendants. That order was subject to an undertaking being given by the first defendant that, if the court should find that the second defendant was not negligent, the first defendant would meet the claimant's claim in full.
4. I heard evidence and submissions in relation to the issue of liability between 13 and 15 July 2011. At the hearing, the first defendant was represented by Mr Geoffrey Brown and the second defendant was represented by Mr Winston Hunter QC. I heard evidence from Mr Atkinson and from Mr Brian Exley, who was called on behalf of the first defendant. Mr Sala also gave evidence. Two experts in road accident reconstruction also gave evidence. They were Mr Damian Mutch of Hawkins and Associates Ltd, on behalf of the first defendant, and Dr John Searle, of Road Accident Analysis (RAA), on behalf of the second defendant. Both experts provided Reports and plans together with annotated photographs and still frames from the CCTV footage. They provided a Joint Statement dated 6 July 2011 and gave oral evidence.

The bus driver

5. Mr Atkinson was employed by the first defendant from 7 November 2005 until 18 August 2008. Before that, he had worked in a number of capacities, including as a taxi driver in Sydney, Australia, and in London. Having joined the first defendant, he underwent about eight weeks' training and secured his PCV licence. He completed his probationary period in May 2006.
6. In the course of the proceedings, the first defendant disclosed documents relating to Mr Atkinson's employment. These included a series of documents relating to his manner of driving and general conduct, as observed by a number of different people with whom he came into contact in the course of his work as a bus driver..
7. On 7 May 2006, whilst still in his probationary period, a bus driven by Mr Atkinson struck a Peugeot car. Mr Atkinson completed an accident report form the same day. He described how the bus he was driving had been stationary behind the Peugeot at a junction governed by traffic lights. When the lights changed, the Peugeot remained stationary. Mr Atkinson attempted to manoeuvre around the Peugeot and to drive through the junction. As he did so, the Peugeot started to move and the rear of the bus came into contact with the Peugeot's front. In the accident report form, Mr Atkinson acknowledged that he had been to blame for the accident. To the question on the form:

"How could YOU have avoided the accident?"

he answered:

"Brake instead of manoeuvred/waited longer/not assumed other driver is awake".

In oral evidence, Mr Atkinson attributed this accident to his inexperience at the time.

8. Following that incident, Mr Atkinson was required to undergo an assessment of his driving. The assessment was carried out on the morning of 23 May 2006. Mr Atkinson failed the assessment. The assessor's report stated:

"… main fault was speed into hazards and speed towards junctions and trying to negotiate turns at maximum speed. Blind spot checks and return to nearside mirror before leaving stops was also poor. Left braking very late on many occasions. Meeting coming [traffic?] also needed attention."

In oral evidence Mr Atkinson indicated that he did not agree with the comments made by the assessor. In particular, he dismissed the suggestion that he had tried to negotiate turns at "maximum speed" as "preposterous".

9. The assessor recommended that Mr Atkinson should undergo further training until he had achieved and maintained the first defendant's standard of driving. As a consequence, in the early afternoon of the same day, Mr Atkinson underwent a "corrective training session". The report following that session described him as:

"Better with speed. Much better all round, moving off procedure needs consistency."

10. Later in the afternoon, Mr Atkinson underwent a final assessment in which he was faulted on his use of mirrors when changing speed, his use of speed and his following distance. However, he achieved an overall pass. His training manager recommended that a covert observation of his driving should be arranged within 3-4 weeks. As I understand the position, the first defendant carries out covert observations of its drivers on a routine basis; such observations are carried out either randomly or following a specific request arising out of concerns about an individual's driving skills. A driver assessment report dated 3 August 2006 (possibly resulting from the covert observation recommended on 23 May 2006) recorded:

"Good drive. Aware of the actions of other road users."

11. Mr Atkinson was assessed again on 7 December 2006, probably by way of covert observation. The assessment report contained a number of positive comments about his driving. He was however, criticised for early application of the parking brake which, it was said, had caused passengers minor discomfort. The assessor on that occasion also observed:

"While following traffic, a safe braking distance was maintained, though on occasions more room for error should have been allowed when stopping behind vehicles".

12. On 1 February 2008, Mr Atkinson was again the subject of covert observation. On this occasion, the assessment report was highly critical of his driving. It stated that Mr Atkinson had increased acceleration as he made a right turn, causing the bus to lean and a (fortunately empty) baby buggy to fall over. Mr Atkinson was said to have moved away from one bus stop with a boarding passenger still on the footplate and from another stop when a pedestrian was very close to the bus. He had allowed the bus to roll forward whilst passengers were boarding. He was judged as presenting a high risk of causing a collision and of passenger injury. The overall impression created by the report is that of a driver who was impatient, rushed and lacking in consideration for his passengers and other road users. In oral evidence, Mr Atkinson dismissed the criticisms contained in the assessment report as "nonsense". He said that the assessment had been carried out by someone who was very inexperienced with buses and that the criticisms were "totally irrelevant". He said that the buggy had fallen over, not because of the way he had driven, but because it was top heavy with shopping. He maintained that the report was full of inaccuracies and misrepresentations.
13. The employment documents included reports about two further incidents when Mr Atkinson had been involved in altercations with ticket inspectors. On the first occasion, 9 December 2006, two inspectors boarded Mr Atkinson's bus and one of them queried the fact that a passenger had been allowed to alight from the bus at a bus stop which was not an authorised stop for route 49 buses. Mr Atkinson took exception to the criticism and told the inspectors to get off his bus. When they would not, he stopped the bus in such a position that it was blocking other traffic. He agreed to move the bus only when asked to do so by other bus drivers. According to the report of the inspectors, Mr Atkinson had been angry and very abusive and had threatened to throw the inspectors off the bus.
14. Mr Atkinson's account of this incident was that he had allowed an elderly passenger to alight from the bus at an unauthorised bus stop in order to reduce the distance she had to walk. His action in doing so was no business of the ticket inspectors. The inspector who had approached him had been aggressive and officious. It was for that reason that he had demanded that the inspectors should get off his bus immediately. He accepted that, when they declined to do so, he had sworn at them and refused to move his bus until requested to do so by another bus driver. Mr Atkinson said that the inspectors' account of his behaviour was untrue. They had "axes to grind" and had misrepresented what had happened. He accepted that he had sworn, which he said he now regretted, but added that the inspector had displayed an "unacceptable attitude" and that he considered that his own behaviour had been appropriate in the circumstances.
15. The second incident, involving a different ticket inspector, occurred on 27 March 2007. The inspector reported to the first defendant that, when he boarded Mr Atkinson's bus that day, he had spoken to Mr Atkinson about the fact that Mr Atkinson was wearing jeans, rather than his regulation uniform trousers. He said that Mr Atkinson had sworn at him and had refused to carry out the normal practice of signing a statement to confirm that the inspector had been on the bus. In oral evidence, Mr Atkinson said that he may well have sworn at the inspector. He considered that the inspector had behaved officiously and he had responded accordingly.
16. At the time of the relevant incident, Mr Atkinson had been driving buses on route 49 for about 2½ years and was thoroughly familiar with the layout and road conditions on Kensington High Street.

The second defendant

17. Mr Sala is 53 years old and a consultant orthopaedic surgeon based at two hospitals situated in Harrow-on-the-Hill. His evidence was that he has been driving for over 30 years. He wrote a car off shortly after passing his test. Since then, he has been involved in only two accidents, both of which occurred when another driver drove into the rear of his car whilst it was stationary. He is a sports car enthusiast and has owned a number of sports cars in the past. He purchased the Ferrari in November 2007.
18. On 31 July 2008, Mr Sala was travelling back from his work in Harrow along Kensington High Street. He usually used a different vehicle to commute to and from work but, on this occasion, he was driving his Ferrari. He was following a familiar route from his place of work to his home, which was situated close to the place where the incident occurred. He said that it was unusual for him to leave the hospital as early as he had done on that occasion and he would have been in no hurry to get home.

The scene of the accident

19. The relevant events occurred in the north-east bound carriageway of Kensington High Street. At this point, the north-east bound carriageway is divided into two lanes, with a broken white line between lanes. It is separated from the carriageway taking traffic in the opposite (south-west) direction by a traffic island in the middle of the road.
20. The accident occurred on the approach to the junction of Kensington High Street with Campden Hill Road. That junction is not controlled by traffic lights. At the mouth of Campden Hill Road is a hatched yellow box covering both lanes of the north-east bound carriageway of Kensington High Street. Traffic travelling north-east along Kensington High Street is not permitted to stop in the yellow box, so as to keep it clear for traffic turning left from Campden Hill Road into Kensington High Street, and for traffic travelling south-west along Kensington High Street to turn right into Campden Hill Road. A central filter lane is provided in the south-west bound carriageway of Kensington High Street for the use of traffic preparing to turn right into Campden Hill Road.
21. A short distance south-west of the junction of Kensington High Street with Campden Hill Road, in the north-east bound carriageway, is a pedestrian crossing governed by lights. There are zigzag lines marked on the road before the crossing. At the end of the zigzag lines is a stop line where north-east bound traffic must wait when the lights at the pedestrian crossing are against it.
22. The accident happened at about 17.10 hours on a weekday afternoon. It is common ground that, at that time, Kensington High Street was very busy. Traffic was heavy and generally slow moving, with a great deal of stopping and starting. There were a lot of pedestrians around.

The evidence

Mr Atkinson

23. Since the accident, Mr Atkinson has given his account of the events leading up to the accident to the police (in an oral account given to PC Burrows at 18.00 hours on 31 July 2008 and noted by him in his pocket book at the time, and also in a collision/incident information form which Mr Atkinson completed on 5 October 2008); to the first defendant (in an accident report form completed by Mr Atkinson on the day of the accident); and in a witness statement dated 16 July 2009 made for the purposes of these proceedings. He also gave oral evidence at the hearing.

The second defendant

24. Mr Sala made a witness statement dated 17 November 2009 for the purposes of these proceedings and gave oral evidence.

CCTV footage

25. Closed circuit television (CCTV) footage is available which shows part of the events described by Mr Atkinson. The footage is available from two sources. Positioned within the 49 bus at various points were eight cameras. The footage relevant to these proceedings was taken by a camera positioned above Mr Atkinson's head, which gave a view through the front windscreen of the bus. CCTV footage is also available from a camera installed at a Tesco store situated adjacent to the north-east carriageway of Kensington High Street. That camera was positioned so as to give a view through the glazed frontage of the store. It afforded a side-on view of vehicles moving north east along Kensington High Street at a point just before they entered the zigzag lines on the approach to the pedestrian crossing.
26. CCTV footage provides a series of "still" frames, with a timed interval between each frame. The expert evidence was that the time interval between successive frames on the bus CCTV footage was two seconds (+/- 0.1 of a second). The time interval between the frames on the Tesco CCTV footage was 0.5 of a second. Each frame of both sets of CCTV footage is marked with a time. The timings for the two sets of footage are not exactly synchronised and, in this judgment, I have referred only to the times marked on the bus CCTV footage. The timings of the frames of the bus CCTV footage are rounded up or down to the nearest second as appropriate. Thus, despite the fact that the time interval between frames is two seconds, successive frames may bear times which are one second or three seconds apart.

The first appearance of the Ferrari

27. In his oral evidence, Mr Atkinson said that he remembered the Ferrari coming in front of him suddenly on Kensington High Street. He thought that he had first seen it when he was within 100 metres of the junction of Kensington High Street and Argyll Road. The two vehicles were in the offside lane. In his account given to the police in October 2008, Mr Atkinson described for the first time how the Ferrari had "pulled in front of" him. He had not mentioned that in either of his previous accounts of the incident.
28. The bus CCTV footage did not bear out Mr Atkinson's account. The first relevant frame of the bus CCTV footage is timed at 17:08:30. At that stage, the 49 bus is in the nearside lane and is stationary at a bus stop with another bus in front. The Ferrari can be seen in the offside lane. It has passed the 49 bus and is passing the other stationary bus in front of it. In the next frame [17:08:32], the 49 bus has started to move and is pulling over into the offside lane in order to pass the stationary bus in front of it. The Ferrari can be seen in the offside lane about 30 metres ahead of the 49 bus, which completes its manoeuvre and follows the Ferrari. Mr Atkinson was asked about this apparent discrepancy. He suggested that the Ferrari might have pulled in front of his bus at an earlier stage, before the sequence of events seen on the CCTV footage. However, I was informed by the parties that all the earlier bus CCTV footage had been viewed and the frame timed at 17:08:32 shows the first appearance of the Ferrari.

Events at the junction of Kensington High Street with Argyll Road

29. The next few frames [17:08:34–17:08:44] of the bus CCTV footage show that the 49 bus, now in the offside lane, catching up with the Ferrari which has stopped behind a line of stationary traffic at the junction of Kensington High Street and Argyll Road. The 49 bus comes to a halt behind the Ferrari.
30. In oral evidence, Mr Atkinson said that the Ferrari was not being driven normally. He had a clear view through the rear windscreen into the Ferrari and it was apparent to him, from the moment the Ferrari appeared, that the driver's attention was focussed on something (he suggested that it might have been a map, a mobile phone or documents of some sort) on his front passenger seat. He said that, when the traffic lights turned to green and the traffic in front of the Ferrari began to move, the Ferrari remained stationary. The Ferrari driver was taking no notice and was unaware that the traffic lights had changed. Mr Atkinson said that, after a time, he gave a short "pip" on his horn to attract the attention of the Ferrari driver. The Ferrari driver responded by looking up and moving off.
31. These events can be seen on the bus CCTV footage. It shows the 49 bus stationary in the offside lane immediately behind the stationary Ferrari. The bus is about 3 metres behind the Ferrari. The Ferrari has a prominent brake light positioned at the base of the rear windscreen which is illuminated. It also has two conventional brake lights situated near to the rear bumper.
32. In the frame timed at 17:09:04, it is clear that the traffic in front of the Ferrari is about to move off. The brake lights on the Peugeot car immediately in front of the Ferrari are no longer illuminated. The Ferrari's brake lights are still on. In the next frame [17:09:05], the traffic ahead of the Ferrari is still stationary and the Ferrari's brake lights are still on. The traffic in the nearside lane has begun to move. The frame timed at 17:09:07 shows that, in the nearside lane, the traffic is moving. In the offside lane, the Peugeot in front of the Ferrari is moving forward. The Ferrari is still stationary with its brake lights on. The 49 bus has moved up closer to the Ferrari. Meanwhile, a car (which can later be recognised as a Toyota) is starting to come alongside the Ferrari in the nearside lane.
33. In the frame timed at 17:09:09, the Peugeot in front of the Ferrari has moved a distance estimated by the experts to be about 6 metres from its previous stationary position. The Ferrari remains stationary but its brake lights have now gone off. The 49 bus has moved even closer to the rear of the Ferrari before stopping again. It is presumably at about this point that Mr Atkinson says he sounded his horn. The Toyota in the nearside lane has almost passed the Ferrari.
34. The next two frames [17:09:11 and 17:09:13] show the Toyota moving from the nearside lane into the gap between the Peugeot and the Ferrari in the offside lane. By the frame timed at 17:09:11, the Peugeot has moved forward about 15 metres from its previous stationary position and the Ferrari is starting to move forward also. The 49 bus behind the Ferrari is still stationary. By 17:09:13, the Ferrari is following the Toyota in the offside lane and the 49 bus has set off and is following the Ferrari.
35. Mr Atkinson had not mentioned the presence of the Toyota in any of his accounts of the events leading to the accident. It was suggested to him that the CCTV footage showed that, as the traffic in front of him began to move, Mr Sala had seen the Toyota approaching on his nearside and deliberately held back to allow it to move into the offside lane in front of him. Mr Atkinson said that the movements of the Toyota were completely irrelevant because Mr Sala had been unaware of what was going on around him. He had been concentrating on his front passenger seat and could not have seen the Toyota. In the account given to the police in October 2008, Mr Atkinson had said that the Ferrari had remained stationary for as long as 5-6 seconds after the Peugeot had moved off and before he sounded his horn. He accepted that the CCTV showed that the period was significantly less. However, he said that times and distances were not pertinent. What mattered was that Mr Sala had not been concentrating on his driving.
36. Mr Sala's evidence was that, because of the Ferrari's high petrol consumption, he always made a point of driving it as smoothly as possible, keeping a distance from the car in front and avoiding unnecessary stopping and starting. Thus, he would not always set off from a stationary position immediately the traffic in front of him began to move forward. He said that his usual practice, once the car in front had started to move away, would be to take stock of the traffic around him. Having viewed the CCTV footage, he said that he would have seen the Toyota coming up on his nearside and would have realised that it wanted to move into the offside lane. He would have considered it impolite to prevent it from doing so. It appeared from the CCTV footage that he had released the footbrake preparatory to moving off [17:09:09] but did not accelerate until the Toyota was a sufficient distance in front of him. He did not accept that he had been slow to move off. He considered his driving behaviour, as shown on the CCTV footage, to have been entirely normal.
37. Mr Sala was unable to recall whether, on 31 July 2008, there had been anything on his front passenger seat which would have attracted his attention. He said that it was possible that, when his car was stationary in traffic, his attention might have been directed towards his hi-fi system or something else inside or outside the car. However, he said that, once he was driving forward, he would not be looking anywhere other than the road. The Ferrari has a tinted and angled rear windscreen. Mr Sala doubted whether, given the elevated position of the bus driver and the low suspension of the Ferrari, it would have been possible for the bus driver to see inside the Ferrari.

Subsequent movements of the 49 bus and the Ferrari

38. Frames 17:09:15–17:09:21 of the bus CCTV show the Toyota and the Ferrari moving through the junction of Kensington High Street with Argyll Road in the offside lane, followed by the 49 bus. As they go through the junction, the vehicles are estimated by the experts to be travelling at about 25mph. However, ahead of them, another build-up of traffic is starting.
39. The bus CCTV footage frame timed at 17:09:23 shows that the Toyota in front of the Ferrari has come to a stop behind traffic in the offside lane. The traffic has stopped in compliance with the lights at the pedestrian crossing on the approach to the junction of Kensington High Street with Campden Hill Road. The Toyota is positioned just within the zigzag lines on the approach to the pedestrian crossing. The Ferrari is slowing down and coming abreast of the CCTV camera situated in the Tesco store. The 49 bus is travelling behind the Ferrari. Frames 620–644 of the Tesco CCTV footage show the Ferrari coming to a halt behind the Toyota in the offside lane. During this period, the bus CCTV footage shows that the 49 bus has come to a stop about 4 metres behind the Ferrari. The Ferrari's brake lights are on.
40. In oral evidence, Mr Atkinson said that there had been a total of three occasions when the driver of the Ferrari had failed to notice that the traffic around him had moved off and the Ferrari had remained stationary, i.e. two occasions before the incident immediately preceding Mrs Steadman's injury. The CCTV footage shows only two occasions when both the Ferrari and the 49 bus were stationary: the first occasion at the junction of Kensington High Street and Argyll Road and the second occasion at the pedestrian crossing, as described in the previous paragraph.

The events leading up to the accident

41. Mr Atkinson's evidence was that, when the lights changed and the traffic in front began to move off, once again the Ferrari did not do so. The driver was still concentrating on whatever was on his front passenger seat. He lifted off his brake but did not accelerate. The Ferrari was rolling slowly forward, with the driver still looking down at the front passenger seat. Mr Atkinson described how he pipped his horn, whereupon the Ferrari driver "decelerated rapidly" and he was forced to do an emergency stop. In his previous accounts of the incident, given to the police and to his employer, Mr Atkinson had described how the Ferrari driver had "slammed on" his brakes. In his witness statement, he had said that the driver had "brought his car to an immediate standstill". When he was asked about his use of the phrase "decelerated rapidly", Mr Atkinson said that he had used those words because he had been reading the papers in the case and listening to his counsel opening the case on his behalf. He said that he did not remember saying that the Ferrari driver had "slammed on" his brakes. He recalled saying that the Ferrari driver had "brake tested" him and that is what he had done. He had indeed used the term "brake tested" (as well as "slammed on" his brakes) in his report to his employers on the day of the accident.
42. In his witness statement, Mr Atkinson estimated that, at the time he sounded his horn, the traffic ahead was about 200 yards in front of the Ferrari and travelling freely. Mr Atkinson had sounded his horn twice in quick succession. He did not see the rear brake lights of the Ferrari come on and said that he was "entirely convinced" that the driver had deliberately "brake tested" him by applying his handbrake instead of the footbrake. Mr Atkinson said that he had carried out a "text book emergency stop" in order to avoid a collision. He concluded his witness statement by stating:

"I am absolutely adamant that the driver of the Ferrari used his vehicle as a weapon and deliberately brake tested me which caused me to carry out an emergency stop".

43. Frames 645–647 of the Tesco's CCTV footage show the Toyota moving off whilst the Ferrari remains stationary. A white van can be seen abreast of the Ferrari in the nearside lane.
44. In the frame of the bus CCTV footage timed at 17:09:39, the white van can be seen alongside the Ferrari. Some distance in front of the van and also in the nearside lane is a bus which is moving through the zigzag lines on the approach to the pedestrian crossing. The Toyota in front of the Ferrari is moving forward within the zigzags in the offside lane. The Ferrari's brake lights have gone off. Meanwhile, the 49 bus has moved to a position closer to the rear of the Ferrari.
45. Frames 648–651 of the Tesco CCTV footage show the white van passing the Ferrari in the nearside lane. As it completes that manoeuvre, the Ferrari can be seen moving off slowly (the slight movement is evident from the position of its wheel spokes). The next frame of the bus CCTV footage, timed at 17:09:41, shows the Toyota approximately 10 metres ahead of its previous stationary position in the offside lane. There appears to be a build-up of traffic in the nearside lane and the white van is displaying its right indicator, signifying its intention to pull into the gap in the offside lane between the Toyota and the Ferrari. The brake lights of the Ferrari are off and it is probably moving slowly at this point. The 49 bus has closed up to a distance estimated by the experts at about 1 metre behind the Ferrari. It is at about this point that Mr Atkinson says that he sounded his horn again.
46. Frames 652–655 of the Tesco CCTV footage show the Ferrari moving forward in the offside lane. The 49 bus can be seen travelling close behind the Ferrari. In the next frame of the bus CCTV footage [17:09:43], there is a bus in the nearside lane which has stopped before entering the yellow box at the junction of Kensington High Street with Campden Hill Road, probably because its lane on the other side of the junction is blocked by stationary traffic. The white van can be seen completing its change of lane from the nearside to the offside lane, thus overtaking the stationary bus in the nearside lane. The Ferrari is entering the zigzag lines on the approach to the pedestrian crossing, with the 49 bus about 5 metres behind it.
47. Frames 656–658 of the Tesco CCTV footage show the Ferrari and the 49 bus continuing to move past the front of the store. The bus CCTV footage frame timed at 17:09:45 is the last frame before the incident occurred. In it, the Ferrari can be seen nearing the stop line at the end of the zigzag lines. The white van is approximately 18 metres in front of the Ferrari. The gap between the Ferrari and the 49 bus behind it is estimated by the experts at 6.5 metres, possibly less. A Mini can be seen positioned in the filter lane of the south-west bound carriageway of Kensington High Street, preparatory to turning right into Campden Hill Road. Frames 659–663 of the Tesco CCTV footage show the 49 bus passing the store frontage. As it does so, it is being passed by a silver car travelling in the nearside lane.
48. By the time of the next frame of the bus CCTV footage, timed at 17:09:48, the accident has already occurred. (That is known because of footage from another CCTV camera inside the 49 bus which shows that Mrs Steadman had fallen by the frame timed at 17:09:49.). The bus in the nearside lane can be seen, still stationary at the yellow box junction with stationary traffic in front of it on the other side of the junction. The white van is travelling along the offside lane about 25 metres in front of the Ferrari. The Mini has reached the junction and is about to start its right turn. The Ferrari is at or almost at the stop line for the pedestrian lights. Its brake lights are not illuminated. It is evident that the 49 bus has by this time closed up to about 0.5 metres from the rear of the Ferrari. The experts agree that the Ferrari reduced speed in the interval between the frame timed at 17:09:45 and 17:09:48.
49. It was suggested to Mr Atkinson that the CCTV footage showed that Mr Sala's apparent delay in moving off behind the Toyota was due to his intention to allow the white van to change lanes in front of him. Mr Atkinson insisted that Mr Sala had not been paying attention to the white van. He said that he had moved closer to the Ferrari at this point because he had lifted off the brake of the 49 bus when the traffic ahead started to move and then, because the Ferrari did not move, he sounded his horn.
50. Mr Atkinson rejected the suggestion that, having moved off, the Ferrari driver had then slowed down to indicate to the driver of the Mini that it was safe to complete his right turn. He said that the suggestion was "complete nonsense". The Ferrari driver had not been attending to what he was doing and would not have seen the Mini. Mr Atkinson was adamant that he had not seen the Ferrari's brake lights come on and that, if they had done, he would have seen them. He believed that the most likely explanation for his failure to see the lights was that the Ferrari driver had used his handbrake. He said that, despite his description in his witness statement of the Ferrari coming to an "immediate standstill", he was not sure whether or not it had actually come to a halt.
51. Mr Sala's evidence was that, when the lights at the pedestrian crossing changed to green and the traffic in front of his Ferrari started to move off, he would once again have taken stock of the traffic around him. He would have seen the white van coming up on his nearside and would have realised that its driver wanted to move into the outside lane to overtake the stationary bus in the nearside lane. It was clear from the CCTV that he had chosen to let the white van into the offside lane in front of him. Meanwhile, he had released the footbrake preparatory to moving off when there was a safe distance between his car and the white van. Mr Sala did not accept that he had failed to follow the Toyota immediately because he had not been paying attention. He said that the fact that he had released the foot brake as the white van was passing him (which was evident from the bus CCTV footage) demonstrated that he was alert and preparing to move off shortly. He observed that the Ferrari has very rapid acceleration and it is necessary to apply the accelerator very gently when moving from a standstill.
52. Mr Sala said that, having moved off, he would have seen the Mini in the filter lane ahead, waiting to turn across the north-east bound carriageway of Kensington High Street into Campden Hill Road. He said that he would then have had a choice. He could continue at the speed at which he was then travelling. That would have left the driver of the Mini uncertain as to whether he would be able to make his turn before the Ferrari passed through the junction. Mr Sala said that, alternatively, it was open to him to moderate his speed. That would have made it clear to the driver of the Mini that he would be able to make his turn before the Ferrari reached the junction. It was clear from the CCTV footage that he had chosen the latter alternative. He believed that this was the explanation for his reduction of speed. He said that he regarded this as a normal piece of considerate driving on his part.
53. Mr Sala denied that he had braked suddenly in front of the bus as an act of malice because the bus driver had sounded his horn at him and in order deliberately to cause the bus driver to brake heavily. He said that he would not have done that. Apart from any other consideration, he was driving a very expensive car which was a precious possession and he would not have deliberately put it at risk of a collision with a double-decker bus. In any event, he considered that bus drivers have a difficult enough time without other drivers making their lives more problematic. He said that he was accustomed to driving in heavy city traffic and did not readily become irritated by other road users.
54. Mr Sala rejected entirely the suggestion that he had used his handbrake to bring the Ferrari to a sudden halt or reduce speed. He described the Ferrari's handbrake as "almost useless" and said that, once engaged, it is very difficult to disengage. He said that he would never have used the handbrake in that way.

The subsequent movements of the vehicles

55. In the subsequent frames from the bus CCTV footage, the Ferrari can be seen crossing the stop line and proceeding on its way, passing through the junction of Kensington High Street with Campden Hill Road after the Mini has made its right turn. The traffic in the nearside lane remains stationary whilst the traffic in the offside lane is moving relatively freely.
56. By the frame timed at 17:09:50, the 49 bus has braked and stopped. A short time later it begins to move, coming to a stop by the frame timed at 17:09:57. Mr Atkinson explained that the movement occurred when he left his cab to see what was happening in the passenger area. He had failed to engage the handbrake, as a result of which the 49 bus rolled forward. He went back to the cab and put the handbrake on, whereupon the bus came to stop again. By that time, the Ferrari can be seen about 80 metres further along the road.
57. In oral evidence, Mr Atkinson said that, having done his "brake test", the Ferrari driver was "off like a shot". In the account of events given to the police in October 2008, he had described how the Ferrari "sped away, this time at speed". He had not mentioned that fact in either of his previous accounts. In his witness statement, he said that, no sooner had the Ferrari stopped than "he immediately accelerated away along the High Street at very high speed". However, the experts agree that the Ferrari accelerated in a wholly normal fashion, reaching a speed of about 21mph in eight seconds. If it had accelerated to its maximum capabilities, it could have achieved a speed of at least 70-80mph in the same period.

The evidence of Mr Exley

58. The first defendant's witness, Mr Brian Exley, gave a number of accounts of events. It is necessary to describe in some detail the history of his involvement in the case and the circumstances in which he came to give his various accounts.
59. On 31 July 2008, Mr Exley, a retired business man who is now 77 years old, was walking in a north-east direction along the pavement adjacent to the north-east carriageway of Kensington High Street, towards its junction with Campden Hill Road. He was near to the 49 bus when it made its emergency stop. He got onto the bus and offered assistance in calling the emergency services. He spoke to Mr Atkinson, whom he knew from previous bus journeys and whom he had, he said, always found courteous. It is clear that, at some point in their conversation, Mr Exley gave Mr Atkinson his contact details. Those details (recorded with a slight inaccuracy) appear in the written report of the accident made by Mr Atkinson to his employers later that same day.
60. Mr Exley left the scene shortly after his conversation with Mr Atkinson to go about his business but he returned there some time later and spoke to a police officer. The note made by police officer records:

"On bus… As I got off, I saw a Ferrari brake in front of the bus … the lady fell downstairs. I thought she'd had a coronary".

61. The following day, Mr Exley went to the first defendant's bus garage. He signed a short typed statement about the incident. That statement recorded that he had been a passenger on the 49 bus and had alighted from it at the previous stop. The bus had only just pulled away from the bus stop and was travelling at a slow speed. The statement described how Mr Exley had seen a car which he believed was a Ferrari in front of the 49 bus. The car "slammed on its brakes" abnormally. The bus driver had to apply his brakes in order to prevent an accident. The statement then described how Mr Exley had spoken to the bus driver and had offered his assistance should the matter go further.
62. On 30 December 2008, Mr Exley signed a witness statement on behalf of the first defendant for the purpose of these proceedings. The witness statement was prepared by an employee of the first defendant's solicitors, Ellisons, after discussion with Mr Exley. The statement described how Mr Exley had been walking in a north-east direction along Kensington High Street having alighted from a route 49 bus (not the bus driven by Mr Atkinson) south-west of the junction of Kensington High Street with Argyll Road. He had reached the vicinity of the Abbey National (now Santander) office which was situated next door to the Tesco store on the side nearest to the junction of Kensington High Street with Campden Hill Road. The statement said that Mr Exley wanted to cross the road and so kept looking at the traffic, waiting for a gap in the traffic to enable him to get across.
63. The statement went on to describe the subsequent events in great detail. It said that the Ferrari and the 49 bus had been travelling at about 20mph with the bus a "sensible distance" behind the Ferrari when the Ferrari gradually slowed down and came to a halt. There was, it said, no apparent reason for it to stop. The bus came to a halt behind the Ferrari. The two vehicles remained stationary for a few seconds after which the bus driver sounded his horn. The Ferrari then set off again, followed by the bus. However, the Ferrari had only travelled approximately its own length when it appeared to slam on its brakes and stopped without warning. The bus stopped also and Mr Exley saw a passenger fall to the floor. The statement concluded with these words:

"I have absolutely no hesitation in stating that I consider the driver of the sports car is entirely at fault for causing the bus driver to brake so suddenly and sharply in an effort to avoid colliding with the back of the car which ultimately led to the passenger falling down".

64. On 17 December 2009, the second defendant took a witness statement from Mr Exley. In it, Mr Exley said that he had seen the 49 bus stop under heavy braking. He had seen a sports car drive past in a normal manner. He had seen no reason for the bus driver to brake as he did. His action was not caused by any action on the part of the sports car. Mr Exley sought to retract the statements made at the first defendant's bus garage and to the first defendant's solicitors, stating that they were not accurate accounts of what had occurred.
65. On 27 June 2011, the first defendant's solicitors served a Notice of Intention to rely on hearsay evidence, namely Mr Exley's witness statement of 30 December 2008, on the ground that he was unable to attend since he was unfit to do so. No medical or other evidence was produced to support the contention that Mr Exley was unfit to attend court. The second defendant's solicitors therefore contacted Mr Exley to ascertain the position and requested information from Ellisons as to the basis of their contention that he was unfit to attend court. Ellisons responded that they had no such evidence but had been concerned about Mr Exley's state of mind as a result of the contents of the witness statement he had given to the second defendant's solicitors, in which he had repudiated the contents of his previous statements. Subsequently, the second defendant's solicitors obtained a further witness statement from Mr Exley, dated 3 July 2011. In it, Mr Exley stated that he was fit to give evidence at court and that no one had been in contact with him to enquire as to his health or his ability to give evidence. The first defendant therefore issued a witness summons and Mr Exley attended to give oral evidence.
66. I need hardly say that Ellisons' conduct in asserting, without evidence, that the witness was unfit to give evidence was highly regrettable. Had the assertion been accepted at face value by the second defendant's solicitors, it could have led to the court being misled.
67. In oral evidence, Mr Exley explained that, some time before 31 July 2008, he had been the victim of an assault and had subsequently undergone a major operation. He was recovering from those ordeals at the time of Mrs Steadman's accident. As a consequence, he had been very upset about the injuries sustained by Mrs Steadman and very concerned about her well being. He had first become aware of the fact that something was wrong when he saw the doors of the 49 bus swing open and people get off. He got onto the bus, saw the injured passenger and spoke to Mr Atkinson who told him that "he [the Ferrari driver] slammed the brakes on". He said that, when he first saw the 49 bus, it was stationary. He saw the back of the Ferrari as it drove off along Kensington High Street. He could not say whether the Ferrari had anything to do with the 49 bus braking.
68. When asked about the witness statement which he had signed on 30 December 2008, Mr Exley said that, as a pedestrian, he would not have taken sufficient notice of the traffic to remember events in the detail described in the statement. He said that he had been "over and over" the details with the first defendant's solicitor's employee and, afterwards, in his own mind. He had been anxious to give a precise and accurate account. However, he said that the narrative contained in the witness statement was far more detailed than he could actually recall. He observed that, even now, he had not really "got over" this accident. It had been "getting him down" as he had been anxious at all times to do "the right thing".

The expert evidence

69. The experts were in agreement about many aspects of the case. The main area of disagreement related to the events immediately preceding the accident.
70. Having studied the bus CCTV footage, the experts agreed that, during the two-second interval between the frame timed at 17:09:45 and the frame timed at 17:09:48 (period 10), the speed of the Ferrari had reduced.
71. Mr Mutch considered that the Ferrari travelled about 9 metres during the two-second interval (referred to hereafter as "period 9") between the frame timed at 17:09:43 and the frame timed at 17:09:45. On that basis, he calculated that the Ferrari's average speed over period 9 was a little over 10mph. Mr Mutch estimated that, during period 10, the Ferrari travelled about 3-3.5 metres. From that estimate, he calculated that its average speed had reduced to just over 3.5mph over period 10. The accuracy of the calculations of the Ferrari's speed for each speed depends on the accuracy of his estimate of the distance travelled by the Ferrari during each period.
72. Mr Mutch's evidence was that such a reduction in speed would have equated to a deceleration of a minimum of just under 0.15g (where 'g' is the deceleration due to gravity) during period 10, at about the time that the 49 bus braked. He explained that 0.15g is a "minimum" figure because the deceleration may not have continued for the whole of the period. He suggested that Mr Sala had braked at least as firmly as a typical braking rate for someone stopping at give way lines or red traffic lights, despite the fact that there was no immediate reason for him to do so.
73. Dr Searle doubted whether the position of the Ferrari in the bus CCTV footage frames could be estimated with sufficient accuracy to make a reliable calculation of its deceleration levels during periods 9 and 10. He said that even a small difference in the estimate of the distance covered by the Ferrari over one of those periods could alter the calculations significantly.
74. Dr Searle said that, in any event, a deceleration level of 0.15g was very low. By way of example, a deceleration level of 0.25g represented a typical deceleration when preparing to stop at the end of a road. Thus, even if Mr Sala had applied a deceleration of 0.15g, he did not consider that this was in any way abnormal. The deceleration could, he said, have been effected by engine braking alone or, if not, by no more than a touch on the footbrake.
75. Mr Mutch did not consider that the reduction in the speed of the Ferrari in the two-second interval between periods 9 and 10 could have been effected merely by Mr Sala taking his foot off the accelerator and allowing the Ferrari to slow down by means of engine braking alone. At the request of the first defendant's solicitors, he had performed tests on a Ferrari which was the same model as that owned by Mr Sala (the test Ferrari). For reasons which have not been explained, neither the second defendant's solicitors nor Dr Searle were informed about these proposed tests in advance and the results were disclosed only shortly before trial and after the joint discussions between the experts had taken place. Such lack of co-operation is regrettable and, in other circumstances, might well have resulted in the evidence being excluded.
76. As a result of his tests, Mr Mutch concluded that, if the driver wished to reduce the speed of the test Ferrari to below 5mph, it was necessary to apply the footbrake, thereby signalling to the car's computer to apply the clutch. If the brake was not applied, the car engine would decelerate to a speed of about 5mph and would continue to idle at that speed without decelerating further. Mr Sala confirmed in evidence that this is how his Ferrari would behave in similar circumstances.
77. Mr Mutch went on to say that he had measured the deceleration levels in the test Ferrari and they were significantly lower than 0.15g. The deceleration level required to reduce speed from 10.6 mph to 5mph, for example, was as low as 0.05g. Dr Searle, who had not had an opportunity to observe or participate in the tests, observed that the deceleration levels measured by Mr Mutch were much lower than he would have expected. He acknowledged that, if they were correct, the effect would be that it was less likely that the reduction in the speed of Mr Sala's Ferrari during period 10 had been the result of engine braking and more likely that it had resulted from a momentary application of the footbrake. He said that, even then, the deceleration would have included some engine braking which would have reduced the amount of footbrake application needed.
78. Having examined the CCTV footage, the experts agreed that it was highly unlikely that Mr Sala applied full emergency braking or to put it colloquially, "slammed his brakes on". Neither did they consider it likely that he had applied the handbrake forcefully.
79. The experts agreed that, if Mr Sala had applied his footbrake, the brake lights would have been illuminated and Mr Atkinson must have failed to see them. Dr Searle pointed out that the brake lights on the Ferrari are very sensitive to any use of the footbrake and come on before the vehicle slows in response to the application of the footbrake.

Discussions and conclusions

Mr Atkinson's evidence

80. Mr Atkinson was a thoroughly unsatisfactory and unimpressive witness. He gave his evidence in a belligerent manner, insistent at all times that he was right and that anyone who held a view different from his was wrong. Those latter features of his evidence were most striking when he was addressing the criticisms of his driving and his conduct contained in the second defendant's documents. In each and every case where a serious criticism of him was made, Mr Atkinson dismissed the criticism as resulting from ignorance, malice and/or self-interest. Whilst he accepted that he used verbal abuse towards the inspectors who boarded his bus, he made clear that he regarded his conduct as both appropriate and justified. His demeanour in the witness box made it only too easy to believe that he had behaved in a hostile, aggressive and threatening manner to the inspectors who had sought to point out that he was in breach of his employment regulations.
81. I accept Mr Brown's submission that, since I have not heard from the persons who compiled the various documents, I must exercise caution in drawing any conclusions from them. Nevertheless, the information contained within the documents comes from a number of different people and relates to variety of circumstances. From the documents a clear picture emerges of a man whose aggressive personality extends into his attitude at work, making him prone to be impatient, inconsiderate and heedless of the interests of his passengers and other road users.
82. I am satisfied that, as matters have developed, Mr Atkinson has tailored his evidence according to what, at the relevant time, he has considered to be to his best advantage. In October 2008, for the first time, he asserted that the Ferrari had "pulled in front" of his bus. Contrary to his suggestion in evidence, I am satisfied that he intended that assertion to be a criticism of Mr Sala's driving. In the event, the bus CCTV footage demonstrated that the assertion was untrue. Similarly, in October 2008, he asserted for the first time that, after the incident, the Ferrari had driven off at speed. That assertion also was shown to be false although, even in the face of the agreed expert evidence, Mr Atkinson sought to maintain it at trial. In his witness statement made in July 2009, Mr Atkinson stated for the first time that he was "convinced" that Mr Sala had "brake tested" him using his handbrake. I am entirely satisfied that, by that time, he was aware of (if he had not already viewed) the contents of the CCTV footage and realised that the relevant frames did not show the Ferrari's brake lights coming on immediately before the accident occurred. Because of that, he made the assertion about the use of the handbrake. He continued to insist at trial that, if the Ferrari's brake lights had come on, he could not have missed them so that the most likely explanation was that Mr Sala had used his handbrake for the "brake test". His description, used for the first time in his oral evidence, of the driver of the Ferrari "decelerating rapidly" (rather than "slamming on" his brakes) resulted by his own admission from reading the case papers and hearing counsel's opening. Prior to his oral evidence, the essence of Mr Atkinson's allegation had been that Mr Sala had "slammed on" his brakes and brought the Ferrari to a standstill. By the time of the hearing, he was talking of "decelerating rapidly" and professing himself unsure whether or not the Ferrari had come to a halt. By then, he would of course have been aware that the experts had agreed that it was highly unlikely that Mr Sala had applied full emergency braking or "slammed on" his brakes. These and other features lead me to the conclusion that Mr Atkinson's evidence cannot be relied upon unless it is supported by other credible evidence.

The second defendant's evidence

83. Mr Sala, on the other hand, gave his evidence in a calm, straightforward and measured fashion, weighing each question carefully, making plain what he did and did not remember and appearing to take pains to ensure that his answer was entirely accurate. I found him to be an impressive and compelling witness.

Mr Exley's evidence

84. When giving evidence, Mr Exley was plainly in a very anxious state. It is clear that he has a strong sense of duty which led to him becoming involved in these events in the first place. It is evident also that, probably because of the effects of the previous assault, he was extremely upset about Mrs Steadman's accident. He impressed me as a man who was doing his utmost to tell the truth as he recalled it.
85. In oral evidence, Mr Exley was adamant that he had seen nothing of the events leading up to the accident. He said that the first that he knew of it was when the bus was stationary and its doors opened. He was not very clear as to whether and/or where he had seen the Ferrari but he was insistent that he had not seen it brake and cause the bus to brake also.
86. It is clear that, when Mr Exley got onto the bus, Mr Atkinson told Mr Exley that the accident had occurred because the Ferrari driver "slammed on" his brakes. Since Mr Exley knew Mr Atkinson slightly and plainly thought highly of him, it is probable that he accepted Mr Atkinson's account without question. I am satisfied that Mr Exley was in a somewhat vulnerable and susceptible state at the time and that, because he was very concerned about Mrs Steadman and sorry for the predicament in which Mr Atkinson found himself, he effectively adopted Mr Atkinson's account when speaking to the police and when giving a statement to the first defendant's employee the following day. It is significant that, even in those early accounts, a number of details were wrong. Mr Exley had not been a passenger on the 49 bus being driven by Mr Atkinson; he had not got off the same 49 bus at a stop very shortly before the accident just previously; the 49 bus had not just pulled away from a bus stop; and Mrs Steadman did not fall downstairs. Thus, even at that early stage, the accounts he gave were not reliable and/or he did not make himself clear to the persons to whom he gave the accounts.
87. Mr Exley's witness statement, made in December 2008, contained far more detail than would be expect from an elderly pedestrian who had been walking along a crowded street - a point which Mr Exley repeatedly made in oral evidence. It was much more detailed than the statement made by him on the day after the accident. I am satisfied that it contained far more detail than Mr Exley had actually seen. I regard it as probable that it came into existence as a result of a combination of Mr Exley's desire to help Mr Atkinson (and possibly Mrs Steadman also) and his continuing vulnerability, coupled with over-enthusiastic efforts on the part of the statement taker to compile as detailed and favourable (to the first defendant) an account as possible. However it occurred, Mr Exley clearly became uncomfortable about the contents of the witness statement and about the contrast between the amount of detail it contained and his actual recollection of events. As a result, he repudiated the statement in his later witness statement and in his oral evidence.
88. I accept that Mr Exley's observations were confined, as he said in oral evidence, to the events that occurred after the bus had come to a halt. I am in any event entirely satisfied that his previous statements cannot safely be relied upon as supporting the evidence of Mr Atkinson.

The accident circumstances

89. I find that the two occasions when there was a time lag between the traffic in front of the Ferrari moving off from a stationary position and the Ferrari setting off to follow them occurred when Mr Sala chose to allow other vehicles (the Toyota, then the white van) to move into the offside lane in front of him. He was near home and was in no hurry. When driving his Ferrari, he was conscious of the need, in order to avoid excessive fuel consumption, to avoid unnecessary stopping and starting and to drive smoothly. I accept his evidence that his actions in allowing the vehicles to move in front of him were typical of his usual practice, which was to drive with due consideration for the traffic around him.
90. I reject entirely Mr Atkinson's evidence that the time lags before the Ferrari moved off were caused by inattention or lack of care on Mr Sala's part. On the contrary, I am satisfied that Mr Sala was paying attention to the traffic around him and was according it a high level of consideration. It is to be noted that, as both the Toyota and the white van were passing the stationary Ferrari, Mr Sala had already taken off the footbrake preparatory to moving off. This does not suggest that he was oblivious to what was going on around him. It may be that Mr Atkinson genuinely regarded Mr Sala's failure to follow immediately after the car in front of him as being a manifestation of culpable inattention. However, I am satisfied that his evidence that Mr Sala's attention was focussed solely on his front passenger seat and that he was taking no notice of other traffic even when his car was moving, was untrue and constituted a deliberate attempt to portray Mr Sala's driving in an unfavourable light.
91. I consider it highly unlikely that Mr Atkinson would have been able to see through the rear windscreen of the Ferrari for most of the time when he was stationary behind it. I cannot discount the possibility that, at a certain point or points, he may have been able to see parts of the interior of the Ferrari. It is possible also that, when the Ferrari was stationary, Mr Sala may have been looking at something in his car, rather than at the road ahead. That would not be unusual or culpable. I am, however, satisfied that Mr Sala remained alert to the movement of traffic around him. That is evidenced by what I find to be his awareness of traffic approaching on his nearside and (later in these events) of the Mini travelling in the opposite direction.
92. I reject entirely the first defendant's primary case, namely that Mr Sala deliberately braked without warning because of irritation at the fact that Mr Atkinson had twice sounded his horn at him. It is inconceivable that Mr Sala would have placed himself or his Ferrari at serious risk (as they would plainly have been if he had braked suddenly) of being struck from behind by a double-decker bus or that, as a doctor, he would have exposed the bus driver and the passengers on the bus to risk of injury as a result of the bus having to make an emergency stop. Furthermore, I accept Mr Sala's evidence that it would have been wholly inconsistent with his character and manner of driving to act in that way.
93. At trial, the first defendant advanced a secondary case. It was said that Mr Sala was negligent in braking as he did at a time when he should have known that the 49 bus was too close to him and that it was therefore unsafe to do so.
94. It is agreed that Mr Sala reduced speed shortly after setting off from a stationary position. I find that he did so in order to signal to the driver of the approaching Mini that it was safe for him to make his turn into Campden Hill Road. I accept that, if the Ferrari had continued at the same speed, the Mini might well have been able to complete its turn before the Ferrari arrived at the junction. In practice, however, the driver of the Mini would probably have chosen to exercise caution and to wait before turning since he could not have been sure of the speed of the Ferrari and would not have been able to gauge precisely when it would reach the junction. By reducing his speed, Mr Sala made it quite clear to the Mini driver that it was safe for him to turn. It was an action which was entirely consistent with the considerate attitude shown to the drivers of the Toyota and the white van.
95. At the time he began to reduce speed, Mr Sala was travelling slowly, no more than about 10 mph or so. He reduced speed to no less than 3-3.5mph. I accept Dr Searle's evidence that it is not possible to estimate the Ferrari's speed during periods 9 and 10 – nor the level of deceleration - with great precision. What is clear, however, is that all the speeds involved were very low. Some of the Ferrari's reduction in speed would have been achieved by engine braking. It is possible that Mr Sala may have touched the footbrake to bring his speed below 5mph. If he did so, that must have happened during period 10, when the brake lights would not have been captured on a frame of the bus CCTV footage. If the brake lights came on, however, Mr Atkinson should have seen them.
96. In any event, I am entirely satisfied that Mr Sala did not brake heavily or in an abnormal manner. There was no reason for him to do so and, as he made clear, it was his practice to drive as smoothly as possible. His action in reducing speed to indicate that it was safe for the Mini to turn in front of him was an entirely normal manoeuvre for a driver negotiating heavy city traffic.
97. I find that what caused this accident was the fact that Mr Atkinson had become impatient and irritated with what he saw as delay by Mr Sala and in particular at the fact that Mr Sala had allowed two vehicles to move into the offside lane in front of him. His impatience had led him to sound his horn at Mr Sala on at least two occasions before the accident and (as can be seen in the bus CCTV footage frame timed at 17.09.41) to move up to a position unnecessarily close to the rear of the Ferrari. It is clear that, at the time the Ferrari began to reduce speed, the 49 bus was driving too close to the Ferrari. It is possible that, at the time, Mr Atkinson was concerned to encourage the Ferrari driver to move on and to avoid the risk that the silver car which was passing the bus in the nearside lane at the time might be allowed to move into the offside lane.
98. As a consequence of the inadequate distance between the 49 bus and the Ferrari - and also, I find, probably because of either his failure promptly to notice the Ferrari's brake lights come on and/or the fact that the Ferrari was slowing down - Mr Atkinson had to make an emergency stop to avoid a collision. I find that it was because of Mr Atkinson's actions that the accident occurred. Had he been driving at a safe distance from the rear of the Ferrari and/or keeping a proper look out, the accident would not have happened.
99. It was argued on behalf of the first defendant that Mr Sala should have realised that the 49 bus was too close to him and should not therefore have reduced his speed. I do not accept this contention. Mr Sala had very recently moved from a stationary position and was driving slowly. He would have known that the bus would be travelling slowly behind him. His attention was plainly directed to the traffic (in particular the Mini) in front of him. He could not be expected to keep the 49 bus in view through his rear mirror at all times. He was entitled to assume that the bus driver's attention would also be focussed on what was happening in front of him and that he would be driving with ordinary care. I do not consider that Mr Sala's failure to realise that the bus was too close and, as a result, to maintain a constant speed constituted negligence on his part.
100. I therefore find that there was no negligence on the part of the second defendant and dismiss the first defendant's claim against the second defendant.