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PI and Civil Litigation

Law - practice - procedure

02 OCT 2014

Michael Landau v (1) The Big Bus Company Limited (2) Pawel Zeital  EWCA Civ 1102  

Road Traffic Accident – Negligence
 Court of Appeal: LJ Richards, LJ Sullivan, LJ Black
 31 July 2014


 The claimant who was seriously injured in a collision with the defendant bus driver and defendant car driver alleged that the judge was wrong to find that the defendants were not negligent. In all the circumstances, the judge had not been wrong to dismiss the claim.


 On 3 May 2009, the claimant’s scooter became trapped between the rear nearside of the first defendant’s bus and the rear offside of the second defendant’s car whilst all the vehicles were negotiating a sharp left–hand turn. As a result, the claimant was injured and required a below–knee amputation to his right leg. At trial, Foskett J dismissed the claimant’s claim of negligence and found that the claimant had not been in the position he said he was at the traffic lights. The claimant appealed this decision on the following grounds:

  1. that 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,
  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% to blame.

 The general approach held by the appellate courts was not to interfere with findings of primary fact, especially when they depend to a significant extent upon the judge’s assessment of the witnesses and evidence heard (Henderson v Foxworth Investments Limited [2014] UKSC 41 and Biogen Inc v Medva Plc [1997] RPC1, cited).

 On appeal, the claimant did not challenge the judge’s finding that he was not in the position where he said he was stationary at the lights. The judge made it clear, he felt unable to make any positive findings 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. The relevant and crucial finding of fact was that the claimant was not in the position at the lights where he said he was. The judge’s finding in relation to this meant the claimant had failed to prove his case that the defendants 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, that he was nonetheless in a position where he was visible to the defendant drivers (Faunch v O’Donoghue [2013] EWCA Civ 1598 distinguished). The judge’s suggestion that the claimant was in a blind spot seemed to be plausible and supported by evidence at the trial.

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It was held that neither of the defendant drivers drove in a manner that fell below the reasonable standard of care. There was nothing in the judgment or evidence to justify that the bus driver should have seen the scooter earlier than she did.

The cases of London Passenger Transport Board v Upson [1949] 1 All ER 60 and Rouse v Squires [1973] 2 All ER 903 were cited and these established that a driver is not entitled to drive on the assumption that other road users will behave with reasonable care. The judge was therefore in error in saying the drivers had been entitled to assume that the claimant would hold back as they negotiated the turn. It was held that for the avoidance of doubt, it was not accepted that the judge was mistaken in his view that the drivers would have been entitled to assume in all the circumstances of this case that the claimant would hold back as they negotiated the turn.

On the basis that the judge’s decision was upheld, the issue of contributory negligence did not arise and the appeal was dismissed.