We previously discussed the implications of the first instance judgment in McGeer v McIntosh: Paving a safer way for cyclists?
The appeal sought to challenge the Judge’s findings on liability and apportionment. Given that this necessitated arguing that the Judge’s findings on fact and approach to apportionment were outwith a reasonable judicial range, the dismissal of the appeal is unsurprising.
Whilst Lord Justice Treacy indicated that there was no important point of law or principle involved in the case, the decision is instructive and useful for those seeking to act for cyclists in accidents involving HGVs or other large vehicles; regrettably an increasingly common type of accident with often disastrous consequences.
The decision shows the value of expert reconstruction evidence in appropriate cases. Although courts are sometimes reluctant to permit such evidence, in particular following the comments of the Court of Appeal in Liddell v Middleton [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”] PIQRP 36, there are some cases, this being one, where it is essential. The Claimant who was grievously injured in the accident had no recollection of it. No eyewitness had a complete view of the circumstances leading up to the accident and of the accident itself; in particular no-one observed the Claimant as the Defendant commenced his manoeuvre. Her position at this time was therefore inevitably the subject of reconstruction.
In reality, the Defendant’s case was based on reconstruction, but this reconstruction was grounded in estimations of witnesses at the scene. On the other hand, the Claimant through the evidence of Mr Ric Ward, was able to produce a reconstruction substantially based on CCTV evidence, which did not rely upon what Lord Justice Treacy described as “guesstimates”. The Court of Appeal considered that His Honour Judge Raynor QC was entitled to treat the scientific reconstruction as being more accurate than that based upon eyewitness estimation.
The Court of Appeal also upheld the Judge’s finding that the Defendant was not only negligent in failing to see the Claimant before he set off from the traffic lights, but that he had a continuing duty to maintain some form of observation, in particular before he turned left, at which stage he would no longer have a view down his nearside (paragraph 14, Court of Appeal judgement). Lord Justice Treacy, consistent with the finding at first instance, did not consider that the Defendant should maintain a constant view in his nearside mirrors from moving off to turning left, but that he should have made an additional check prior to turning left.
Given the known risk of undertaking in these circumstances, the Defendant’s position in the road which would create a perception that he would be turning right, and the fact that the Defendant’s indicators were masked by a vehicle immediately behind him, Lord Justice Treacy accepted that the Judge was entitled to find reasonable care would necessitate a further check immediately prior to turning left. This finding is consistent with guidance in the Highway Code in Rule 72,
- “Just before you turn, check for undertaking cyclists and motorcyclists”And in Rule 211
- “Be especially careful when turning and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”
The decision of the Court of Appeal therefore confirms a high duty on drivers of HGV vehicles and other heavy vehicles when turning at junctions, in particular in circumstances in which movement to the right is necessary before a left turn.
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