The car driver and the bus driver were both entitled to assume that the motorcyclist, who was somewhere to the rear of them, would hold back and let them complete their manoeuvres – decision in Landau v The Big Bus Company Limited, Pawel Zeital discussed.
In contested litigation, motorcyclists often argue that other road users should be on the lookout for them and that filtering through stationary traffic is something that is to be expected of them; that they are perfectly entitled to do this, as long as they are doing it safely. Other road users often find themselves having to argue that the motorcyclist was nowhere to be seen, was in their blind spot or was spotted too late for any avoiding action to be taken.
I have often made similar arguments in Court on behalf of both and in my own experience of dealing with cases such as this, liability is more often than not split between the motorcyclist and the other road user (usually a car driver) on the basis that the motorcyclist was there to be seen and that the other road user should have anticipated that the motorcyclist would want to proceed. Depending on the circumstances of course, the liability split varies. The main point though is that more often than not it is a split and not a dismissal of the claim or an outright win for the claimant.
A similar kind of argument was made yet again on a behalf of a motorcyclist (in fact a scooter rider), on appeal, in the case of Landau (Mr Landau being the scooter rider). Mr L was seriously injured as a result of coming in-between a car and a bus, both of whom who were parallel to each other, in their respective lanes, at traffic lights, and set off from those lights almost together in order then to a complete a sharp left hand turn. The gap between the car and the bus closed as they were both making that left hand turn, trapping Mr L, and a collision occurred before the turn had been completed.
The High Court Judge, hearing the claim at first instance, found that neither the bus driver nor the car driver had done anything wrong and that Mr L did not prove he was where he said he was when he was waiting for the traffic lights to change. Establishing liability against either of the other two drivers was clearly dependant on Mr L proving that he was in a certain position before the vehicles set off. But, he could not prove that and on the Judge’s findings, the drivers were entitled to assume there was no scooter there at the time they set off. The claim was dismissed.
Mr L appealed the decision. There is nothing out of the ordinary about the Court of Appeal’s review of the decision below; reluctance was expressed about interfering with any findings of fact; the Judge’s reasoning was based on those findings of fact.
What is interesting, however, about the Court of Appeal’s decision is that it was found that both the bus driver and the car driver were entitled to assume in the circumstances of that case that the scooter rider would hold back as they negotiated the turn after setting off from the traffic lights. Both the bus and the car drivers did not see the scooter before setting off because on the facts Mr L was not where he said he was.
Crucially though, the Court of Appeal added to the decision at first instance and found that both drivers were entitled to make the assumption that the rider would adjust his driving and hold back, even if the rider had been seen by the two drivers.
It was affirmed of course that the two drivers had to watch out for each other as they were negotiating this left hand turn; the car driver would have been concerned not to encroach into the bus’ path; likewise, the bus had to be manoeuvred carefully so as not to encroach into the other lane.
The appeal was dismissed and there was no finding of liability against either the bus or the car driver.
So does it mean then that, because of the assumption that both drivers were entitled to make, there was no real duty on either of them to carry on checking what the rider was doing? On one reading of the Court of Appeal decision, the fact that there was a scooter around could be ignored. Yet, in my experience of dealing with road traffic liability trials involving motorcyclists or scooter riders, judges often find that the other road user (invariably a car driver) has to continue checking around him and cannot assume anything. The fact that he does not check, and makes assumptions, is what often lands him with some proportion of liability.
The decision of the Court of Appeal is not surprising bearing in mind the factual scenario; what is more notable is the comment made about what assumptions could legitimately be made by the other two drivers even if the scooter rider had been seen. I can envisage some attempts to rely on this in contested litigation in aid of arguments against motorcyclists but the comment needs to be read in the context of the circumstances of the case.