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Landau v The Big Bus Company Limited & Pawel Zeital [2014] EWCA Civ 1102 - 31/07/14


The Claimant sustained a serious injury to his right leg, which consequently necessitated a below-knee amputation, as a result of a road traffic accident in which his motor scooter became trapped between a tourist bus operated by the First Defendant and a car driven by the Second Defendant on proceeding from a set of traffic lights at a junction in Trafalgar Square, London. His claims in negligence against the two defendants were the subject of a trial of liability in the Queen's Bench Division before Foskett J.

The Claimant's case at trial was that given neither of the defendant drivers had seen the Claimant at the traffic lights the drivers had failed to keep an adequate look out, and given that the junction was wide enough for all three vehicles to proceed safely the collision had occurred because the defendant drivers had failed to maintain lane discipline and keep a safe distance.

In his judgment handed down on 7 October 2013 (see [2013] EWHC 3281 (QB)), Foskett J dismissed the Claimant's claims. He found that the Claimant had been in the blind spots of the defendant drivers at the traffic lights and concluded that both defendant drivers had taken all reasonable care when proceeding from the junction, holding that to have expected them to have driven in a different way would be to impose a 'counsel of perfection on them'. He further held that even if the drivers had seen the Claimant before proceeding from the traffic lights, no fault was attributable to them because they were entitled to assume that the Claimant would hold back and not pass between the vehicles. Even if the driving of the defendant drivers had been negligent, Foskett J also held that the Claimant was in any case 75% to blame for the accident.

The Claimant appealed Foskett J's findings of fact. The Court of Appeal, with the majority judgment given by Richards LJ with whom Sullivan and Black LJJ agreed, dismissed the Claimant's appeal on all grounds. In doing so, the Court held at paragraph 18 that: "in so far as the grounds of appeal seek to take issue with the judge's findings of fact, it is necessary to keep in mind the well-recognised reluctance of appellate courts to interfere with findings of primary fact, especially where they depend to a significant extent upon the judge's assessment of witnesses he has seen and heard give evidence". In so holding, the Court followed the guidance provided by the Supreme Court in Henderson v Foxworth Investments Limited [2014] UKSC 41, that "an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot be reasonably explained or justified".