Road traffic accident update

The Clapham omnibus has many passengers according to the recent judgment of Lord Reed in Healthcare at Home v The Common Services Agency [2014] UKSC 49. The passengers include the venerable, reasonable man but also the officious bystander and other fictitious legal personalities. Lord Reed reminds us that the views of the reasonable man on the Clapham omnibus ought not to be established by evidence but, in the words of Lord Radcliffe in Davis Contractors Ltd v Fareham UDC [1956] AC 728, he is an hypothetical person who is “the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice” and is and must be embodied as the court itself.

I, however, am not concerned so much with the august passengers on the Clapham omnibus but with the liabilities of the driver of the vehicle and those of other buses in Great Britain, where bus drivers must adhere to the standard of the reasonable driver, as judged by the man on the Clapham omnibus.

Many claims against bus drivers and their employers arise out of sudden application of the brakes, causing passengers to be thrown around the vehicle, sustaining injury in the process. For example, in Christian v Selkent [2014] EWCA Civ 944, a passenger was injured when the bus driver applied the brakes suddenly and another passenger was thrown onto the claimant.

The driver had braked in response to a vehicle being driven into the bus lane from the nearside lane. The incident, which was caught on CCTV footage from the bus, took place over less than six seconds. The bus driver had reacted to a situation that had arisen suddenly and unexpectedly. The claim failed and the Court of Appeal upheld the trial judge, observing that a driver of a vehicle faced with an emergency is not to be judged by too critical a standard when he had acted on the spur of the moment.

A similar situation arose in Cridland v Stagecoach [2014] EWHC 728 (QB), where a bus was proceeding in the same direction as a youth on a push scooter. The bus could not overtake because there was traffic approaching. When the bus was about 10 metres away from the youth the bus driver sounded the horn as a warning. This was taken as a rebuke, it would seem, as the youth turned and gestured to the driver, who feared that the youth was going to throw the scooter at the bus and applied the brakes forcefully, causing the claimant, a passenger, to strike his head on the seat in front. The driver’s reaction had been reasonable and liability was not established.

In busy urban areas bus drivers have to look out not only for the safety of their passengers but also other road users, who may not always exercise reasonable care. It is important to bear in mind the fact that a bus, in particular, is a large and dangerous vehicle and by comparison motor cyclists, pedal cyclists and pedestrians are very vulnerable and such road users are likely to suffer disproportionate consequences in a collision to those suffered by the bus and its driver.

In Landau v The Big Bus Company Ltd [2014] EWCA Civ 1102, a tourist bus and a VW Passat motor car negotiated a left-hand bend together after a set of traffic lights in central London. The road had two lanes in that direction and the Passat was in the nearside lane. The claimant, riding a motor scooter, had positioned himself between the bus and the motorcar at the traffic lights. When the vehicles set off from the traffic lights the claimant became trapped between the vehicles so that he sustained serious injuries.

Justice Foskett dismissed the scooter rider’s claim, finding that he had positioned himself between the two larger vehicles in such a place that he was not seen by either the bus driver or the driver of the Passat when they each checked their mirrors. The bus driver had exercised reasonable care as she drove off and negotiated the bend and her driving had not fallen below the standard of a reasonable driver.

On appeal the Court of Appeal reminded itself of the recent judgment of Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41: “… 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 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 Court of Appeal also bore in mind the observations of Lord Hoffman in Biogen v Medeva Plc [1997] RPC 1: “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.”

Accordingly, in the absence of any error on the part of the trial judge, the claimant’s appeal in Landau v Big Bus was dismissed.

It would be difficult to find a more meticulous judgment than that of Sir Robert Nelson in Hickman v London Central Bus Company [2013] EWHC 1703 (QB).

There, a pedestrian was crossing Victoria Street in central London when he was struck by a bus. It was a dark early morning in October but the area was well lit. The claimant had chosen not to cross at a pedestrian crossing, which was a legitimate decision, but having chosen to cross at that location a high degree of vigilance was required.

The claimant was properly visible as he crossed the road and the judge observed that the Highway Code specifically enjoins motorists to look out for pedestrians at junctions, which the bus driver had failed to do as she had placed too much attention on her mirrors as opposed to the road ahead. Primary liability was established, there clearly had been contributory negligence and liability was apportioned 60/40 in favour of the pedestrian.

The fact that the standard expected of a reasonable bus driver is a high one is illustrated
by the case of Rehill v Rider Holdings [2012] EWCA Civ 628 where, during the post-Christmas sales in Bradford city centre, the claimant walked into
the road at a busy junction against a red man pedestrian signal. A bus, which was turning a corner at the junction, collided with the pedestrian so that he fell into the road and was then run over by the front, nearside wheel of the bus. The trial judge found that the bus driver ought to have noticed the pedestrian as he stepped out. Appropriate braking may not have prevented the bus from striking the claimant but it would have saved him from being run over.

On appeal, the trial judge’s assessment of contributory negligence was readjusted from one third to one half. The court noted the observations in Eagle v Chambers [2003] EWCA Civ 1107: “it is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an
oncoming vehicle”.

In Smith v Bluebird Buses Ltd [2014] CSOH 75, an intoxicated man, the pursuer, stopped to talk to the occupants of a Scottish National Party election vehicle on the Lang Stracht in Aberdeen, which, as the name implies, is a long, straight road. The car was decorated with two saltire flags. The pursuer helped himself to a flag and, as traffic lights turned green, he stepped into the road and was struck by a bus. The court found that the bus driver, having observed the pursuer, ought simply to have stopped the bus and so primary liability was established. This was one of the exceptions to the principle in Eagle v Chambers, and contributory negligence was assessed at 85 per cent as the pedestrian had not looked and stepped into the path of the bus.

While all road traffic accident cases are entirely fact sensitive, the above cases are good examples of the application of the test of reasonableness perceived through the fictitious eyes of the man on the Clapham omnibus. SJ

Roger Cooper is a barrister practising from Parklane Plowden