INJURY (CYCLING) – NEGLIGENCE
CAUSATION : CLOSED-CIRCUIT TELEVISION : CYCLING : REASONS : ROAD TRAFFIC ACCIDENTS : JUDGE’S DECISION BASED ON CLOSED-CIRCUIT TELEVISION FOOTAGE : FAILURE TO PROVIDE ADEQUATE REASONS FOR DISREGARDING CLAIMANT’S EVIDENCE
A judge had not given adequate reasons for disregarding the evidence of the claimant in her claim for personal injury following a road traffic accident, and he had been wrong to rule solely on the basis of closed-circuit television footage that she had not made out her case.
The appellant cyclist (T) appealed against a decision attributing the injuries she sustained in a road traffic accident to some cause other than the negligence of the respondent coach company (X). T had been cycling along a main road one to two metres away from the kerb and double red lines when she was overtaken by a coach. T had been aware of the coach but contended that it had not given her a wide enough berth and had clipped her handlebars, causing her to fall and sustain injuries. X contended that its driver (Z) had given T sufficient clearance and that she had fallen off her bicycle for another reason. Closed-circuit television footage showed the path of the coach and the bicycle prior to and after the accident, but it did not show the cause of the accident; neither were there any eyewitness accounts. Evidence came from T and Z. The judge disregarded Z’s evidence as being inconsistent and inaccurate. T provided written and oral evidence and her daughter gave hearsay evidence. The judge disregarded T’s evidence, saying that it was wrong because her daughter’s hearsay evidence was that she had been cycling in a bus lane where there was not one. The judge based his decision solely on the closed-circuit television footage. Although he accepted that T had been cycling one to two metres away from the kerb and that the nearside of the coach was approximately one metre away from the kerb prior to the accident, he held that T had not fallen due to the coach clipping her handlebars but for some other reason. T submitted that the judge had failed to provide adequate reasoning when disregarding her evidence.
HELD: The judge had disregarded T’s evidence, saying that it was wrong, but provided no reason for its rejection. The only apparent error was in the evidence that T had been cycling in a bus lane when in fact at the point prior to the collision there was no bus lane, but there was one further along the road. However, that was T’s daughter’s hearsay evidence, so it was not even clear whether the error was T’s. Even if the error was T’s, it did not warrant the rejection of all her evidence. At worst it was an error of terminology, but it still conveyed that T was cycling in the inside lane. If that minor error was the only reason for rejecting T’s evidence, given that it had been consistent throughout, then that was an inadequate reason. Further, if the judge had rejected her evidence for other reasons he had failed to express them. The judge then went on to base his decision entirely on the closed-circuit television footage. Whilst the footage was of good quality, it focussed mainly on the pavement instead of the road and the view of the road was obscured by railings. However, and most importantly, it did not show the actual accident or its cause; it showed footage prior to the accident and the aftermath. The judge accepted that T was cycling one to two metres outside the double red lines and observed from the footage that prior to the accident the nearside of the coach was one metre outside the red lines, thus indicating that the coach was on a collision course with the bicycle. The next available piece of footage, which was a few seconds after the accident, showed the coach a considerable distance from the kerb and red lines, and T falling. However, that was not a reliable indication of where the coach had been a few seconds before, when the accident had occurred. Nevertheless the judge used that footage to gauge the position of the coach when the accident occurred. It was impossible to say from the footage alone whether the coach had given T a wide berth and T’s evidence was crucial in making such a determination as for the most part she had been consistent. T might well have been wrong but the judge should have evaluated her evidence in connection with the footage and then either rejected or accepted it as necessary. Instead he disregarded her evidence and failed to provide an adequate reason for doing so. Although the Court of Appeal should be slow to interfere with the fact-finding of a lower court, in the instant case it had had the benefit of seeing the footage and, given its limitations, the judge had been wrong to rule that the case had not been made out on the basis of that footage alone. A retrial would be ordered.
TALEB v TRINA COACHES LTD (2009)