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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Landau v The Big Bus Company Ltd & Anor [2014] EWCA Civ 1102 (31 July 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1102.html Cite as: [2014] EWCA Civ 1102 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Foskett
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SULLIVAN
and
LADY JUSTICE BLACK
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Michael Landau |
Claimant/ Appellant |
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- and - |
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(1) The Big Bus Company Limited (2) Pawel Zeital |
Defendants/ Respondents |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Glen Tyrell (instructed by DAC Beachcroft Claims Ltd) for the First Respondent
Derek O'Sullivan (instructed by Clyde & Co) for the Second Respondent
Hearing date : 23 July 2014
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Crown Copyright ©
Lord Justice Richards :
The judgment below
The grounds of appeal
(1) the judge was wrong to find as a matter of fact that the claimant was not visible to either defendant driver while they were stationary at the traffic lights because he was in their blind spot;
(2) the judge was wrong to find that both defendant drivers had taken all reasonable care when turning into the junction and that to have expected them to have driven in a different way would be to impose a counsel of perfection on them;
(3) the judge was wrong to conclude that even if the claimant was visible to the defendant drivers before the vehicles moved off from the lights there was no fault attributable to either driver because they were entitled to assume that he would hold back; and
(4) the judge was wrong to have held the claimant to be 75 per cent to blame.
General approach
"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."
"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."
Ground 1: the claimant's position and visibility at the lights
Ground 2: the exercise of reasonable care in negotiating the left-hand turn
"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."
"… 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."
Ground 3: whether the drivers were entitled to assume that the claimant would hold back
Ground 4: contributory negligence
Conclusion
Lord Justice Sullivan :
Lady Justice Black :