Landau v The Big Bus Company Ltd & Anor

This appeal concerns a road traffic accident on Sunday 3 May 2009 near the junction of Pall Mall East and Cockspur Street in the area of Trafalgar Square, London. The roads form part of a one way system. At the junction is a set of traffic lights. The accident involved three vehicles which had come down Pall Mall East and, as was common ground at the trial, had stopped at the traffic lights. One was a tourist bus operated by the Big Bus Company Limited (the first defendant) and driven by Mrs Dean. It was in the outside (right hand) lane. The second was a VW Passat motor car driven by Mr Zeital (the second defendant). It was in the inside (left hand) lane. The third was a 125 cc motor scooter ridden by Mr Landau (the claimant). The position of the scooter at the lights was a central issue at the trial. When the lights changed to green the vehicles moved forward and started to negotiate the sharp left-hand turn into Cockspur Street. The claimant’s scooter became trapped between the rear nearside of the bus and the rear offside of the car before any of the vehicles had completed the turn. Although the bus and the car stopped very quickly, the claimant sustained a serious injury to his right leg which subsequently necessitated a below-knee amputation.

The claimant’s claim in negligence against the two defendants was the subject of a trial of liability in the Queen’s Bench Division before Foskett J. For reasons given in a judgment handed down on 7 October 2013 (see [2013] EWHC 3281 (QB)), the judge dismissed the claim. The claimant brings this appeal against the judge’s order giving effect to that decision.

Reference should be made to Foskett J’s judgment for a fuller description of the general background, the evidence and the judge’s detailed factual findings.

In summary, the claimant’s case at trial was that when the vehicles were stationary at the traffic lights, the bus driven by Mrs Dean was the first vehicle in the outside lane, the VW Passat driven by Mr Zeital was the second vehicle in the inside lane (i.e. with one other car between it and the lights), and the claimant’s motor scooter, whilst also in the inside lane, was in the gap between the offside of the VW Passat and the nearside of the bus. What he said about the respective positions of the three vehicles was crystallised in a sketch plan prepared by him prior to trial in response to a request for further information. He contended that his own position at the lights was a normal place for a scooter or motorbike to be, and one in which he would have been clearly visible to the drivers of the bus and the VW Passat. Given that by their own admission neither driver had seen him at the lights or until moments before the collision, it followed that they had failed to keep an adequate look out. Further, the junction was wide enough for all three vehicles to get round without colliding; and the only explanation for the collision that occurred was that one or both of the drivers had failed to maintain lane discipline and keep a safe distance as they negotiated the bend.

The claimant called as a witness a Mr Walford, a Canadian citizen who, as a holidaymaker in London, had been sitting in the bus with his wife at the relevant time and had witnessed the accident. His evidence was relied on in support of the claimant’s case as to the position of the three vehicles when stationary at the traffic lights. At paragraphs 21-22 of his judgment, however, the judge found that Mr Walford’s evidence was confused and could not be relied on.

The judge went on at paragraphs 23-24 to find that the claimant’s own evidence as to the position of the vehicles at the lights was also unreliable, in particular because the claimant said that there was a car in front of the VW Passat but the judge did not think he could be right about that. It was indeed a striking feature of the case that the evidence showed the claimant to have been mistaken on that point. If the VW Passat was the first car in the inside lane at the lights, the claimant’s account of his own position at the lights did not make sense.

At paragraphs 25-26 the judge said that he considered it unlikely that Mrs Dean and Mr Zeital both failed to check their wing mirrors at the lights or, if they did check them, that they both failed to see the claimant if he was in the position he said he was in, particularly given that he was wearing a high visibility vest. It was much more likely that at least one of them would have looked in their mirror and would have seen the claimant if he was there. The judge said that whilst he did not put this consideration at the forefront of his reasoning, it added weight to the proposition that the claimant was not where he said he was while waiting at the lights.

At paragraph 27 the judge said that he did not think he could make a positive finding on the evidence about precisely where the claimant was at the lights. In his view it was more likely than not that the claimant was in a position that meant that he was not visible to one or other of Mrs Dean and Mr Zeital, and probably to both, and thus was in the blind spot of at least one of them. If that was so, the most likely location, he said, would have been “somewhere behind Mr Zeital’s car to the rear offside not on its rear offside, which … is what he said to the police initially” (original emphasis). However, the judge repeated that he did not think the evidence justified any positive finding to this effect.

At paragraph 28 he referred to a telling point made by counsel for Mr Zeital: if the claimant had been in the position he said he was, why did he not do what many motorcycle riders do in such a situation, namely filter down to the front of the queue at the lights in order to move away as soon as the lights changed and thus be out of the way of the traffic behind? The judge referred to that factor as adding weight to the proposition that the claimant was not where he said he was while waiting at the lights.

At paragraph 29 the judge said that his finding as to the claimant’s position at the lights undermined the claimant’s case significantly but did not destroy it. It would not absolve Mrs Dean or Mr Zeital from the obligation of keeping a lookout for unexpected vehicles but would mean that each was entitled to depart from the traffic lights believing that there was no motor scooter in the vicinity of the rear of their respective vehicles.

The judge went on to consider the way in which Mrs Dean and Mr Zeital negotiated the turn, or as much of it as they had effected before the collision occurred.

He found at paragraph 33 that Mrs Dean did what was entirely safe from the point of view of vehicles on her nearside, by taking a wide sweep and placing the nose of the bus over the central reservation to her offside as she swung left round the corner. He did not consider that anything she did fell below the standard of reasonable care.

As to Mr Zeital, it was argued for the claimant that he took too wide a berth and came too close to the bus, causing the claimant to impact with the car and be forced into the side of the bus. For reasons given at paragraphs 35-36, which are considered more fully below, the judge found that Mr Zeital’s driving could not be said to have fallen below a reasonable standard.

He added at paragraph 37 that the driving of Mrs Dean and Mr Zeital fell to be judged by reference not only to what each did but to all the circumstances including the riding of the claimant himself. Even if Mrs Dean should have seen the claimant at the lights, she would have been entitled to assume that he would have seen the wide sweep she was taking on the bend and would adjust his position on the road accordingly. The same applied to Mr Zeital, who might in those circumstances have kept a little closer to the nearside but would have been entitled to rely on the rider of the motor scooter to have regard to the developing situation on the bend and to hold back until the bus and the car had negotiated the bend safely.

The judge expressed the view at paragraph 38 that in taking a deliberate decision to pass between or travel with the bus and the car as they undertook the left-hand turn, the claimant misjudged the situation. If he had held back the accident would not have happened.

All this led to the judge’s conclusion at paragraph 40 that neither Mrs Dean nor Mr Zeital was negligent and that what the claimant did represented a failure to take reasonable care for his own safety. He said that even if he had found that the driving of either of the other two had fallen below a reasonable standard, he would have found the claimant largely to blame, certainly no less than 75 per cent.

The grounds of appeal are that:

In so far as the grounds of appeal seek to take issue with the judge’s findings of fact, it is necessary to keep in mind the well-recognised reluctance of appellate courts to interfere with findings of primary fact, especially where they depend to a significant extent upon the judge’s assessment of witnesses he has seen and heard give evidence: see, for example, paragraphs 14-22 of the judgment of Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577, cited with approval at paragraph 46 of the judgment of the House of Lords in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325. A further, recent statement of relevant principle is to be found at paragraph 67 of the judgment of the Supreme Court in Henderson v Foxworth Investments Limited [2014] UKSC 41, [2014] 1 WLR 2600, per Lord Reed:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

It is also necessary to keep in mind the observations of Lord Hoffmann in Biogen Inc v Medeva Plc [1997] RPC 1, 32, as to the approach of an appellate court in relation to a trial judge’s evaluation of facts by reference to a legal standard such as negligence or (in the context of a patent, as in Biogen itself), obviousness:

“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance …, of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation …. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.”

In this case the judge was familiar with the area where the accident occurred and had seen DVDs showing traffic negotiating the relevant junction; he had a body of documentary evidence before him, including a police accident report, plans and photographs, as well as witness statements; and he heard oral evidence from five witnesses, in the course of a trial that lasted two days. His reserved judgment is clear and methodical but cannot be expected to be a complete statement of the factors that led him to his conclusions.

It became clear from Mr Waite’s submissions at the hearing that the claimant does not challenge the judge’s finding that the claimant was not in the position where he said he was while stationary at the lights. The concession that that finding could not be appealed was inevitable, given that the finding was based on a careful assessment of the witnesses and was supported by cogent reasoning.

Instead, the focus of the claimant’s challenge under ground 1 is the judge’s “finding” that the claimant was in a blind spot somewhere behind Mr Zeital’s car, to the rear offside. It is submitted that the blind spot scenario was unsupported by the evidence and was introduced by the judge himself without canvassing it with parties or giving them an opportunity to make submissions on it in accordance with the approach set out in Faunch v O’Donoghue [2013] EWCA Civ 1598 at paragraph 15. All the evidence pointed to the claimant being visible and not in the blind spot of either Mrs Dean or Mr Zeital. None of the witnesses said that he was in a blind spot, and the possibility was not put to any of them in cross-examination. Although the judge found that the claimant was not in the position where he said he was, he must have been in a position where Mrs Dean and Mr Zeital could have seen him.

That line of argument has several difficulties to it. First, the judge made it clear that on the evidence he felt unable to make any positive finding as to the claimant’s position at the lights, albeit he considered it more likely than not that the claimant was in a blind spot (see paragraph 8 above). What he said about the claimant being positioned somewhere behind Mr Zeital’s car, to the rear offside, was not a finding of fact and did not form a necessary part of his reasoning. The relevant and crucial finding of fact was that the claimant was not in the position where he said he was. That was the central issue of dispute between the parties. The judge’s finding in relation to it meant that the claimant had failed to prove his case that Mrs Dean and Mr Zeital ought to have seen him while stationary at the lights. The claimant did not advance an alternative case that if he was not in the position where he said he was, he was nonetheless in a position where he was visible to the defendant drivers.

Accordingly, this is not a case where the judge’s conclusion was based on an alternative scenario introduced by him and not canvassed with the parties. It is far removed from the situation in Faunch v O’Doherty, from which the claimant gains no assistance.

In any event, the judge’s suggestion that the claimant was in a blind spot behind the VW Passat seems to me to be plausible and supported by evidence at the trial. The suggested location behind the VW Passat would fit with the claimant’s original statement to the police, to which the judge referred, that when stationary at the lights “I was in the left hand lane, with a car in front of me, I was positioned to the rear offside of the car”. Although there were other cars behind the VW Passat at the lights, there was nothing in the evidence to indicate that the next car was so close to it as to leave no room behind it for the claimant’s scooter. In that connection Mr Waite referred us to the witness statement of a Mr Thompson, who said that he had been driving “directly behind” the VW Passat. Mr Thompson was not called as a witness at the trial and it is not clear what evidential status his witness statement had. But the statement as a whole is not helpful to the claimant. It does not indicate how much room there was between Mr Thompson’s car and the VW Passat. It states that Mr Thompson cannot recall when he first saw the scooter or whether the rider waited at the traffic lights with the rest of the traffic, but it continues: “I do remember the rider coming past my car on my driver’s side and that the movement was quick”. That suggests a very different scenario, though not one explored at the trial (where it was common ground that the claimant was stationary at the traffic lights) and therefore not one that can be taken further.

In support of his finding that the claimant was not in the position where he said he was, the judge attached weight, as he was entitled to do, to the unlikelihood of both Mrs Dean and Mr Zeital failing to check their wing mirrors at the lights or, if they did check them, of failing to see the claimant (see paragraph 7 above). The same point supports the judge’s suggestion that the claimant was positioned in a blind spot at the lights. I should add that the various photographs and passages in the evidence that we were shown by Mr Waite do not persuade me that wherever he was positioned the claimant must have been visible to Mrs Dean through the nearside wing mirror of the bus or to Mr Zeital through the offside wing mirror of his car or through the internal rear-view mirror of the car. They do not undermine the judge’s suggestion of a blind spot.

For all those reasons I am satisfied that ground 1 fails and that it was open to the judge to examine what happened next on the basis that Mrs Dean and Mr Zeital were each entitled to depart from the traffic lights believing that there was no motor scooter in the vicinity of the rear of their vehicles.

Ground 2 challenges the judge’s finding that after moving forward from the traffic lights Mrs Dean and Mr Zeital each exercised reasonable care in negotiating the left turn up to the point of the collision. It is submitted that the judge’s error lay in finding that to expect the drivers to have driven in any different way would be to impose a counsel of perfection. The main thrust of the argument is directed towards the bus and the car having got too close to each other, but it is also said that the drivers failed to keep a sufficient look-out for vehicles behind them. As to that aspect of the argument, the judge accepted that although Mrs Dean and Mr Zeital were entitled to depart from the traffic lights believing that there was no motor scooter in the vicinity of the rear of their vehicles, they remained under an obligation to keep a look-out for unexpected vehicles.

In order to explain the submissions it is necessary to say a little more about the judge’s reasoning on this issue. At paragraph 31 of his judgment he said that the sharp left-hand turn into Cockspur Street is on any view quite a difficult turn for all vehicles, with a limited margin for error on the part of two vehicles that are negotiating the turn at the same time; and when one of those vehicles is a large vehicle like a tourist bus, the negotiation of the turn requires particular care. The driver in the outside lane had to have in mind pedestrians on the central reservation and also other vehicles to the left; and the driver in the inside lane had to consider the vehicles in the outside lane as well as the possibility of cyclists on the nearside. Although the judge did not mention it at this point, it is also relevant to note an earlier finding (at paragraph 9) that on the day of the accident a Sikh festival was taking place in Trafalgar Square and the square was perhaps somewhat more crowded with pedestrians than usual. This was plainly relevant to the risk that pedestrians would be present on the central reservation as vehicles negotiated the turn.

At paragraph 34 the judge said that the impression one gets from the video evidence is that when the car is on the inside and the bus is on the outside, the car tends to take its lead from the bus. The bus, as will be appreciated by the car driver, will be cutting in at some point in the left-hand turn, because of its size. Most cars appear to hold back to judge at what point they can safely pass on the inside of the bus. That would seem to be the everyday experience of a driver of a car in such a situation. It means that the main focus of the car driver’s attention will be on the bus.

After those general observations the judge turned to deal specifically with the position of the bus driver, Mrs Dean. He said this (at paragraph 33):

“So far as the photographic evidence is concerned, it does seem to me to demonstrate convincingly that Mrs Dean did what was entirely safe from the point of view of vehicles on her nearside, namely, taking a wide sweep and, as she put it, placing ‘the nose’ of the vehicle over the edge of the central reservation. That is demonstrated on the photographs of where the bus ended up after she had brought it to a stop. If she had started turning to the left before the Claimant collided with her, she could not have done so by very much. That suggests that she was indeed doing what the video suggests most drivers of the large tourist buses do; namely take as wide turn as they can consistent with the need to turn before the central reservation to which I have referred. The video demonstrates that in most, though not all cases, the noses of the buses go over the edge of the reservation or, even if not over it, then very close to it. I cannot for my part see that anything she did was below the standard of reasonable care. She was driving in a way that was designed to be safe for all and in my view she did so.”

It appeared from the written grounds of appeal and Mr Waite’s skeleton argument that the judge’s reasoning in relation to the line taken by Mrs Dean was being challenged and that it would be contended that she was negligent in getting too close to the VW Passat in negotiating the turn. In his oral submissions, however, Mr Waite said that he did not disagree with what the judge said about Mrs Dean’s position on the road. His case before us was that the judge did not deal with the question whether Mrs Dean was negligent in failing to look out for unexpected vehicles. He submitted that she ought to have seen the claimant’s scooter coming between the bus and the VW Passat sooner than she did and ought thereupon have stopped in order to avoid a collision.

Mrs Dean’s evidence was to the effect that in the first part of the turn, moving very slowly, she concentrated on bringing the front of the bus over the central reservation, looking out for pedestrians on the pavement; she then looked in her nearside mirror and saw that the car was very close to her; she was fully into the turn and preparing to straighten up when she saw the scooter appear between the car and the bus and hit the bus in the region of the rear wheels, whereupon she braked and stopped. Mr Waite’s submission is that if she saw the car in her mirror she should have seen the scooter; she should have been on the look-out for unexpected vehicles but she failed to see the vehicle that was there to be seen.

I do not accept those submissions. It seems to me that the judge rightly concentrated on the line taken by Mrs Dean because that was the focus of the argument before him. I am in complete agreement with the judge’s conclusion on that issue and, as I have said, it is no longer challenged by the claimant. But the alternative contention that Mrs Dean should have seen the scooter in her mirror sooner than she did is equally lacking in substance. She could not be expected to be looking in her nearside wing mirror all the time. She was right to devote her attention first to the offside and bringing the front of the bus over the central reservation without risk to pedestrians. The fact that when she then looked in the nearside mirror she saw the car but not the motor scooter does not mean that she failed to see a vehicle that was there to be seen. There is nothing in the judgment or the evidence to justify the conclusion that she ought to have seen the scooter any sooner than she did. I have no doubt about the correctness of the judge’s conclusion that she drove with reasonable care.

I turn to consider the position of Mr Zeital. The judge referred at paragraph 34 of his judgment to the submission for the claimant that Mr Zeital took too wide a berth and came too close to the bus, causing the claimant to impact with the car and be forced into the side of the bus. At paragraph 35 he said that a judgment as to where a car on the inside of a bus in such a situation ought to position itself for its own safety, let alone the safety of others, was not easy. A motorist was likely to judge his or her position by reference to what the bus is doing. He cited a passage from Ahanonu v South East London and Kent Bus Company [2008] EWCA Civ 274 in which Laws LJ said that the first instance judge had “in effect sought to impose a counsel of perfection on the bus driver”, an approach that “distorts the nature of the bus driver’s duty which was of course no more nor less than a duty to take reasonable care”. The judge in the present case continued (at paragraphs 35-36):

“… As I have said more than once, positioning the car on the road in such a situation is very much dependent on where the bus is and that, not unreasonably, would have been his principal focus. Whilst Mrs Dean said that he was close or appeared to be close, she did not regard his position as any hazard from the point of view of the bus she was driving. I am inclined to think that the gap of six inches to which she referred is really the gap that appeared to be the gap after the vehicles had come to a halt and the photographs tend to confirm that. I am unable to understand how there was room to accommodate the Claimant’s scooter in the accident if the gap had only been six inches.

It does seem to me that characterising a piece of driving as negligent in this situation does require careful consideration, because the margins for error are so fine. The photographs of where Mr Zeital’s car ended up might well suggest that he was taking a wider berth than was necessary. However, Mr O’Sullivan was right, in my view, to emphasise (a) that the car was moved forward to release the Claimant, and (b) that given Mr Zeital’s sudden appreciation of the presence of the Claimant to the side of his car and the proximity of the bus, he could do nothing but brake. He had not by this time had the opportunity to turn to the left and maintain or secure an appropriately safe distance between his car and the bus. When looked at fairly with these considerations in mind, I do not think that Mr Zeital’s driving can be said to have fallen below a reasonable standard or that he breached his duty of care to other road users, including the Claimant.”

Mr Waite submits that the judge based his conclusion on Mr Zeital having taken his lead from the position of the bus. If that had been Mr Zeital’s evidence he would not quarrel with the conclusion. But Mr Zeital’s evidence was that when he pulled forward from the lights and had travelled approximately 10 metres, reaching the left hand bend onto Cockspur Street, he was ahead of the bus, the front of which was 1-2 metres to the rear of his car, to the offside, but the gap was closing up as the bus turned. It is submitted that in the light of that evidence the judge’s finding in relation to Mr Zeital is unsustainable and that it was Mr Zeital’s position on the road that created the danger.

Mr Zeital’s position is undoubtedly more problematic than that of Mrs Dean. As the judge observed, the photographs of where he ended up might well suggest that he was taking a wider berth than was necessary. Mr Zeital’s own evidence does also create a doubt as to whether he can be said to have been positioning himself by reference to what the bus was doing. On the other hand, his account of being ahead of the bus on reaching the left hand bend onto Cockspur Street does not fit comfortably with Mrs Dean’s evidence as to where he was when she first saw him or with the final positions of the vehicles as shown by or to be inferred from the photographs, even when all due allowance is made for the evidence that Mr Zeital stopped first. As the passage I have quoted makes clear, the judge also had in mind that at the point where Mr Zeital observed the presence of the claimant and braked he had not yet had the opportunity to turn to the left and maintain or secure an appropriately safe distance between his car and the bus. The overall evidential picture is far from clear-cut. In my view the judge grappled with it conscientiously and in the circumstances I see no proper basis for an appellate court to interfere with the evaluation he made. I am not persuaded that he was wrong to find as he did that Mr Zeital’s driving had not fallen below a reasonable standard.

Finally on this ground, I should stress that the judge did not proceed on the basis that to have expected either driver to drive in a different way would be to impose a counsel of perfection. His quotation from Ahanonu v South East London and Kent Bus Company served simply to underline the point that the correct question was whether each driver took reasonable care. That is the question on which the judge correctly focused, with the conclusion that neither drive drove in a way that fell below a reasonable standard.

In relation to both drivers the judge went on to observe at paragraph 37 that their driving did not fall to be judged in a vacuum but by reference to all the circumstances, including the driving of the claimant himself, in relation to which he made observations to the effect that even if Mrs Dean or Mr Zeital should have seen the claimant at the lights they would have been entitled to assume that he would see the line they were taking on the turn and would adjust his position accordingly. Ground 3 challenges that reasoning. It is submitted by reference to London Passenger Transport Board v Upson [1949] 1 All ER 60 and Rouse v Squires [1973] 2 All ER 903 that a driver is not entitled to drive on the assumption that other road users will behave with reasonable care. In this case what the claimant did was not only foreseeable but was the kind of behaviour that both drivers accepted one could expect of a motorcycle or motor scooter rider in London. The judge was therefore in error in saying that the drivers would have been entitled to assume that the claimant would hold back as they negotiated the turn.

I do not think that this ground arises for decision if grounds 1 and 2 are rejected. The judge’s conclusion that neither Mrs Dean nor Mr Zeital drove negligently did not depend on the reasoning criticised by ground 3. That reasoning was advanced on the alternative premise that, contrary to the judge’s primary findings, Mrs Dean and/or Mr Zeital should have seen the claimant at the lights or, perhaps, should at least have seen him sooner than they did when negotiating the turn. Since I see no basis for interfering with the judge’s primary findings, it is unnecessary for me to address this alternative consideration. For the avoidance of doubt, however, I should make clear that I do not accept that the judge was mistaken in his view that the drivers would have been entitled to assume in the circumstances of this case that the claimant would hold back as they negotiated the turn.

On the basis that I would uphold the judge’s conclusion that neither Mrs Dean nor Mr Zeital drove negligently, the issue of contributory negligence does not arise.

For the reasons given I would dismiss this appeal.

I agree.

I also agree.