Thomas Collins v London General Transport Services Ltd

Case No: 04TLQ1261

High Court of Justice Queens Bench Division

10 March 2005

[2005] EWHC 2071 (QB)

2005 WL 2452731

Before: Mr Justice Leveson

Thursday, 10th March 2005

Representation

• Mr C Wilson-Smith Q.C. & Mr H Trusted (instructed by Anthony Gold & Co) appeared on behalf of the Claimant.
• Mr H Palmer QC (instructed by Hexalls) appeared on behalf of the Defendant.

Judgment

Mr Justice Leveson

1 At about 7pm on 14th December 2000, Mr Thomas Collins was riding his bicycle home along Newington Butts, in the direction of Elephant and Castle in South London. Although slightly inaccurate, in common with the convention adopted throughout this trial, I will refer to this direction of travel as northbound. His home was in a block of flats on the offside of the road, reached through Hampton Street, which provides access to bicycles only. Hampton Street cannot lawfully be reached directly from the northbound carriageway of Newington Butts, because no right turn is permitted by that junction. At the start of these proceedings, how Mr Collins came to be cycling across Newington Butts to reach Hampton Street was in issue, but what is clear is that as he did so, he was struck by a London bus. Unfortunately, he was not wearing a helmet and he suffered serious head injuries. In the proceedings commenced for damages for personal injury, this hearing has been devoted to issues of liability.

2 The Topography and the Traffic Lights

Newington Butts is a dual lane single carriageway with a partial central refuge. The inside lane of the northbound carriageway is reserved as a bus lane. On the near side of that carriageway, that is west of the main road, offset from Hampton Street on the east, but south of it is Church Yard Row, another narrow road with restricted access for bicycles. The offset junction which has the interrupted central refuge is controlled by traffic lights, made more complex by the inclusion within the junction of a pedestrian crossing, which is north both of Church Yard Row and Hampton Street. The stop line for the northbound lights is some 25 metres away from the stop line for the southbound lights.

3 The operation of these lights has been a matter of some contention during the course of the various proceedings since the accident, but it is now common ground between the parties and their experts. In particular and of enormous significance, it is agreed that the traffic in the broadly southbound opposite carriageway of Newington Butts is held at traffic lights north of Hampton Street where Dominic Hughes, an important witness on his motor cycle, was waiting, for longer than the northbound traffic is held south of Church Yard Row. Thus when the southbound lights turn to red and amber, the northbound carriageway has been on green for four seconds, and six seconds have elapsed since the northbound lights themselves turned to red and amber.

4 I can deal immediately with the colour of the traffic lights at the time of the accident, not only because the evidence is one way and clear, but also because it is relevant when I consider the way in which the case was originally pleaded on Mr Collins' behalf. Mr Collins has no memory of the accident and thus the state of the lights. Mr Michael O'Keith, the driver of the bus, has consistently maintained that the traffic lights were green in his favour. He cannot say at what moment they changed, but he was sufficiently far away not to have had to reduce speed in anticipation of having to stop. Mr Dominic Hughes, who was the only other witness to speak of the condition of the lights, said that at the time of the impact, his traffic light was changing from red to amber. He thought and still believed (incorrectly according to the agreed evidence) that the light after the red light was a flashing amber, rather than red and amber, but accepting as I do, that the lights were changing for him at the time of the accident, it follows from the evidence of the phases of the lights that Mr O'Keefe did indeed face a green light for his northbound journey.

5 It is important to add that Mr Hughes would have been concerned particularly about his own traffic lights which had held him and had delayed his own travelling, his own movement.

6 The Manoeuvre of the Claimant

The pleaded case was that Mr Collins turned left into Church Yard Row, performed a U-turn in that road and then rode his bicycle across the junction in order to reach Hampton Street. As I have said, he has no specific recollection of the accident and this case was based on what he described was his invariable practice over the three years that he had been cycling home from work. He was not aware that the traffic sign prohibited left as well as right turns, although it is common ground that it did. In any event, he said that he never turned right directly from Newington Butts into Hampton Road. He was supported by his daughter, Mrs Deborah Hilton, who used to take her children to wait in his flat and could see the junction. When she saw him, she said he always performed the manoeuvre that he had described.

7 The difficulty with this possibility is that it would mean that Mr Collins turned off Newington Butts, cycled to turn round, did so and then approached the junction, not crossing as the lights were green in his favour, but only after they had turned red, emerging into the path of a bus, which as I have found, had the benefit of a green light. Mr Collins said that he would never have cycled out against a red light. It is not therefore surprising that Mr Wilson-Smith QC on his behalf should open the case with the words that the court was likely to conclude, (as Mr O'Keefe asserted) that the Claimant was attempting to make a right hand turn from the bus lane of Newington Butts across the front of the bus when the bus had a green light in its favour.

8 If Mr Collins did not appreciate the presence of the bus behind him, which he clearly did not, such a manoeuvre, although illegal as it involved a right turn at a point when he was required to continue travelling northwards, would not necessarily be surprising. He would have been able to see the traffic in the opposite direction, including Mr Hughes on his motorbike stationary, and whatever his belief about the state of the northbound lights, might have felt that he could cross in safety. Suffice to say in closing, Mr Wilson-Smith did not contend to the contrary.

9 Although Mr Wilson-Smith approached the Claimant's case on that basis, notwithstanding that it involves an inevitable finding that the Claimant attempted to turn right directly in front of a bus which had a green light to continue through the junction, he maintained that a proportion of the responsibility of this accident still rests with the Defendant on the basis that the driver, Mr O'Keefe, was driving too fast and paying insufficient attention. It was further pleaded that his training had revealed that he was insufficiently experienced to be driving this type of vehicle, although by the conclusion of the case, the way in which his lack of experience was put was that it should affect the way in my approach to his evidence.

10 To deal with the first contention of speed, I must describe the evidence dealing with the lead up to the accident and what was discovered, or is legitimately to be inferred from an examination of the bus, the bicycle and the position of Mr Collins after the accident.

11 The Accident

Miss Lisa Phillips was sitting on the bus and recalled that there were two jolts during the course of the journey. The first occurred when she thought that a car might have stopped sharply in front of the bus causing it to jolt. The second, which was said was 15 to 30 seconds later, although she later explained that she was not very good at estimating time, was an emergency braking of such severity that passengers were thrown forward. In her statement she said that prior to the accident the driver had been travelling at speed. She had not made such an allegation in her original questionnaire to the police, but her statement went on that it was difficult to say exactly how fast, but certainly of more than 30 miles per hour. Her statement had put the first jolt near a bus stop, which is in itself only a matter of 30 metres from the junction which would leave very little time before the accident and nothing like 15 to 30 seconds.

12 Mr O'Keefe dealt with this jolt the first time when he gave evidence. He postulated the first jolt might have been the consequence of an automatic gear change. As his evidence became developed, he became more positive in that regard and said that he recollected this happening. No fault was recorded as found on the vehicle. Whereas I do not accept this recollection, or indeed that the jolt necessarily occurred because of any mechanical failure, I do not accept that this first incident whatever it precisely was, was anything to do with the accident. I certainly do not accept that it occurred near the bus stop.

13 Neither am I prepared to accept, without more, Miss Phillips' assessment of speed. She does not drive and, although I accept that judgment of speed is not restricted to drivers it may be no more than that she considered that the bus was going rather faster than normal. That may very well be so, given that it was a clear night and unusually there was little traffic on the northbound carriageway of the road. I am not prepared to conclude on the basis of this evidence that the bus was travelling in excess of the speed limits, although I will return to the question of speed having reviewed the expert evidence of reconstruction.

14 I must first deal with the very important evidence given by Mr Hughes. He had seen the bus and accurately described how it had passed on the offside of the bollard marking the start of the bus lane, some 135 metres prior to these lights. This was explained by Mr O'Keefe on the basis that he could see the bicycle ahead and wanted to give it a wide berth on this comparatively empty road. In his statement, Mr Hughes said that the bus was travelling at “a significant speed” and did not appear to be slowing down as he would have expected given the light ahead of him. In fact, of course unappreciated by him, the light facing the bus was green. His statement goes on:

“As I waited, I noticed a cyclist in my peripheral vision. I noted that the cyclist was crossing that side of the carriageway and therefore that I needed to be vigilant to be sure that he crossed before I moved off. At this time the light in front of me was red. I am not sure where the cyclist came from and whether he came from the pavement intending to go straight across the cycle crossing, or whether he turned right from the bus lane.

What I did note was that the bus was 25 to 30 metres away from the crossing when the cyclist started to cross. At the last minute, the bus braked hard. The cyclist was probably a third of the way across the second lane when the bus hit him … At this point the traffic light on my side was just changing from red to amber.”

15 I have already dealt with the colour of the light. As to the account of the lead up to the accident, he elaborated by saying that the speed of the bus was in excess of the 30 mile an hour limit, and excessive because the bus was approaching a set of traffic lights which, from his point of view were red. The allegation that the bus was exceeding the speed limit was also first made during the course of Mr Hughes' evidence. He accepted that he did not know the phasing of the lights for the oncoming traffic, but rejected the suggestion that his only reason for believing the bus was travelling excessively fast was that he believed that it was approaching a red light. He repeated that he had first seen the bicycle as it was coming from the broad direction of a cycle crossing that is across the width of the road.

16 When cross-examined, he said that when he first saw the bicycle, he did not appreciate there would be a collision. This was no doubt because he thought the bus would stop at what he perceived was a red light. He said that he then looked to see what the car to his left was doing and he could not say how far the bus was away when the cyclist started his journey, because he was not looking over his shoulder at the time. He repeated that he could not say how far the bus was away when the cyclist turned towards Hampton Street, and he added that he could not see the cyclist in Newington Butts, although that was his “best recollection” and he now thought an assumption.

17 Although he was not specifically cross-examined on the estimate in his statement of 20 to 25 metres, it is difficult to see how it stands against his evidence that he could not say how far the bus was away when the cyclist started to turn. Further, Mr Hughes was 25 metres away from the northbound stop line on the opposite side of the road, looking across the complex junction. Nobody has mentioned that it was dark and although the bus was illuminated that could easily make the estimation of distance more difficult. Again, if (as I have found) Mr Collins was in the bus lane, Doctor Andrew Ninnon(?), the Claimant's expert, told me that he had only moved laterally three to four metres in all. There is no question of Mr Hughes seeing him turn. He noticed him only as he was already crossing the road, so he must have moved laterally to some extent as he negotiated the turn, and the impact was between the rear of the bicycle and the near side front of the bus under the headlight. Thus, his movement laterally would have been very limited indeed.

18 It is for that reason that I do not accept that the bus was then 20 to 25 metres away. I have no doubt that Mr Hughes was doing his best to help me, but it is important to remember that when he was looking across the road, he was not visualising an accident because he thought the bus was stopping at the lights. He was concerned about the hazard likely to face him and thus, the bicycle. In the circumstances, I do not accept this estimate as accurate and derive no assistance from this aspect of his evidence.

19 Mr Hughes went on to say that after the collision the cyclist fell on the spot. He was not projected forward, but simply fell over. He said that he ensured that the cyclist was not moved and that he was roughly in the position of the bollard, which is in the break between the central refuge provided for cyclists to pass between Church Yard Row and Hampton Road. As to this he simply cannot be right and it is not suggested that he is. First the cyclist must have been projected forward otherwise he would have been run over. Secondly, both Doctor Ninnon and Mr Shellshear, the expert advising the Defendant, agree that the marking on the police plan beyond the intersection is overwhelmingly likely to represent the position of Mr Collins or perhaps the blood of Mr Collins. That accords with my experience. Third, the police drawing has the position of the bus blocking this intersection from some three metres behind the mark assumed to be Mr Collins. If the body had been where Mr Hughes said it was, it would have been underneath the bus.

20 Mr Hughes went further. In his statement, he asserted, as he had to the police, that the bus was reversed backwards. To me he simply said that it was his impression that the bus had reversed, he did not see it happen. Mr O'Keefe denied ever reversing the bus and Miss Phillips, who was a passenger upon it, did not suggest that the bus moved backwards after the impact. To the police she did say that the bicycle had moved but not the bus. Reverting to the police plan, the back of the bus was alongside the traffic lights stop sign and the front of the bus, on my estimation from the scale, only about three metres from where Mr Collins was found. There is no support from the police investigation for this concern. In the circumstances, I do not accept that Mr Collins was where Mr Hughes said and neither do I accept that the bus reversed. These findings also undermine the extent to which I could ever have relied on Mr Hughes for his estimates of the distance of the bus from the bicycle while it was moving across the road.

21 As to speed, although Mr Hughes expressly stated he had not assumed excessive speed purely on the erroneous basis that he believed the bus was approaching a red light; it is my judgment that to such extent as he truly considered its speed, he was affected by his belief as to the lights. Further there would have been no particular reason for him to assess the speed of the bus which was never going to affect him or his riding, thus although he spoke of noticing the bus some 135 metres away and being conscious of its speed, and when giving evidence said that the speed exceeded 30 miles an hour, I do not accept that to be so, although the extent of the bus's speed is a matter to which I shall return later.

22 First I ought to deal with Mr O'Keefe's account of the accident. At the time, when he was in shock, he said to Mr Hughes that the bicycle had pulled in front of him and he had been unable to avoid a collision. He also said that he had only been driving buses for a couple of months, but I do not attribute any significance to this. I do not accept that he was blaming inexperience for the accident. Miss Phillips' recollection was that he simply said that he, that is the cyclist, “just cut across me.”

23 To the police Mr O'Keefe signed a brief account in these terms:

“I was travelling along Newington causeway towards Elephant and Castle. I was in the outside lane of two lanes, the inside lane being a bus lane. I had noticed a cyclist in the bus lane in front of me. That is why I was not in the bus lane.

I was doing about 25 miles an hour roughly. The bicycle was two cycle lengths in front of me and to my left.

As I was getting closer to him to overtake, [sic] the cyclist just swerved sharp right in front of the bus for no apparent reason. There was no traffic directly in front of me and the bus lane was clear all the way down to the roundabout.

It happened so quickly there was nothing I could do.

I slammed on the brakes. One of my passengers fell over. I have no idea why the cyclist swerved.”

24 In his statement for these proceedings he made it clear that the traffic lights were green in his favour. He also said that he remembered seeing a cyclist in the bus lane and that when he saw him, he was “a good couple of bus lengths” in front of him in the middle of the bus lane. In court however, he said that he had passed on the offside of the bollards, 135 metres from the junction because he saw the cycle further up the road, which is very much further than two bus lengths. He explained this discrepancy on the basis that in his statement he was dealing with the time that he was coming up to the junction. He had previously deliberately chosen the offside lane because of the bicycle. Mr Wilson-Smith put to Mr O'Keefe that he only saw Mr Collins two bus lengths away from him. He denied it.

25 As to the statement to the police, I do not read it as Mr Wilson-Smith suggests. I accept Mr Palmer's submission that Mr O'Keefe was provided a background which explained that he was not in the bus lane, because he had seen the bicycle. He then went on to describe the incident. Whereas I doubt Mr O'Keefe's estimate of distance (namely, two bicycle lengths), I reject the suggestion that he was conceding that he had not seen the bicycle until he was immediately behind it.

26 I appreciate that his statement for these proceedings speaks of “a good couple of bus lengths in front of me,” but even that does not necessarily suggest lack of sufficient attention to what is in the road in front of him. There is no suggestion of any violent manoeuvre out of the bus lane to avoid the cyclist at the time, or indeed during the accident. It may be that until Mr Hughes spoke of seeing the bus enter the right hand lane by the bollards, Mr O'Keefe did not recall that detail. I reject, however, the suggestion that he did not see him until the very last moment, or that he was not paying attention to the road.

27 In his statement for these proceedings, Mr O'Keefe went on describing the cyclist in these terms:

“He was maintaining a straight route. In the meantime, I was driving in the middle of the outside lane and I too was maintaining a straight route alongside the double white line.

At no time did I change course. I remained in the outside lane for a number of reasons. First the bus stop is a request stop. There were no people waiting at the bus stop and none of the passengers on the bus had requested to stop there.

Secondly, I had been instructed in training school not to drive behind a cyclist since this might cause them to be unnerved. We were also told to give cyclists a wide berth. As such, in order to give the cyclist sufficient room, my intention was to remain in the outside lane, pass the cyclist safely and then return to the bus lane when I had passed him, all the time giving him plenty of room.

During the whole of this time, the lights remained green in my favour. There were no other vehicles in the bus lane or the outer lane.

I maintained a steady course and kept the cyclist in my vision the whole time.

I had no cause to sound my horn. I had my foot covering the brake due to the fact that there was a cyclist in the vicinity, and also due to the fact I was approaching the toucan crossing.

I was maintaining a steady speed of about 20 to 25 miles per hour maximum and this was the speed that I was still going when I was about to pass the cyclist. I had no cause to press the brake pedal.

I remember approaching the cyclist and was almost on a level with him. He was approximately one cycle length in front of me when, without any warning, he suddenly turned into my path.

He made no signal whatsoever, either with his arm of with the angle of his bike. I had no idea at all that he was going to turn right in front of the bus and I had in fact thought he was going to carry on cycling straight up to Elephant and Castle.

I hit the brakes hard, thereby affecting an emergency stop. However, there was no way that I could have avoided hitting the cyclist.

The rear wheel of the cycle collided with the front nearside of the corner of the bus and hit the headlights.

The cyclist was thrown off his bike and a lady on the bus also hit her head.

I believe the collision took place just before the lights. The bus came to a stop just before or on the crossing.” [Quote ‘Unchecked]

28 When cross-examined, he modified this account to some extent. He repeated that he had covered the brake as he approached the cyclist, but then went on to say that as he determined to overtake him, he returned his foot to the accelerator intending, having passed him, to move back into the bus lane. He also got into difficulty when describing the moment that he applied his brakes. First he said that he applied his brakes when the cyclist pulled in front of him. Then he said that he had not been able to apply the brakes before the bus and the bicycle came into contact with one another. This was relevant because his estimate of pre-accident speed and speed at the time of the accident was the same, namely 25 miles per hour.

29 In the same way that reliance cannot be placed on precise estimates for Mr Hughes, neither can such reliance be placed on Mr O'Keefe's estimates. Thus, I do not accept the precise estimate of speed. Neither do I accept that Mr O'Keefe is doing anything more than guessing that his pre-accident and pre-impact speed were the same.

30 This incident, five years ago, was over in an instant. He was not seeking to ascertain precisely where he was on the road when the bicycle turned in front of him, as undoubtedly it did, or to judge whether he had managed actually to apply the brake before the exact moment of collision or after it. Although Mr Wilson-Smith suggested these differences undermined Mr O'Keefe's overall credibility and established that he was deliberately attempting to mislead the court, I do not agree. I accept that he was more dogmatic on certain matters than he had been before and that he had said things which he had not said before.

31 It is obviously necessary for me to approach his evidence with a measure of caution, but a broad account of the accident, namely that Mr Collins swerved or turned right in front of his bus as he approached a green traffic light, not only remains, but is not essentially challenged. As to his speed, however, I recognise also the dogged insistence on 25 miles an hour must also be treated with care. Before deciding upon the issue of speed however, I must turn to the inferences that can be derived from the expert analysis of the accident. Perhaps unusually, Doctor Ninnon and Mr Shellshear advising the Claimant and the Defendant respectively were in almost complete agreement as to the conclusions that were open following analysis of the vehicles, the damage and the physics of the collision. First it is necessary to refer to the police diagram which puts the bus in its post accident position, slightly obliquely with its rear near side on or straddling the line between the bus lane and the main carriageway, with its front almost exactly a bus length in front of the stop line. That is to say ten metres. It is straddling the junction, straddling what would have been the cycle lane crossing Newington Butts. The front of the bus was approximately three metres behind the position of Mr Collins as the experts construed the plan.

32 The first conclusion is based on consideration of the position of the bus after the accident and the stopping distance. It is put in the joint statement of the experts in this way:

“Neither of us is able to locate the point of impact from the physical evidence available. When attempting to calculate the speed of the bus, we can make use of its final rest position as indicated by the police.

We are aware it is said that the bus may have been reversed after the collision.

On the basis of the Claimant coming to rest at the small circle shown on the police plan, we agree that if the impact occurred in the reach of the gaps and the traffic in the central islands, the speed of the bus at its impact was likely to have been around 15 to 20 miles per hour.”

That conclusion was reached independently whether the bus had in fact reversed, although I have found that it had not.

33 It is next appropriate to observe that the experts calculate that the time that it would have taken for Mr Collins to reach the point of impact from becoming a reasonably clear hazard to Mr O'Keefe, they suggest that the bus could have slowed something between 1–11 miles an hour on the basis that Mr Collins turned right towards Hampton Street from Newington Butts. This is based on the calculation by Doctor Ninnon, accepted by Mr Shellshear (albeit not a calculation he would himself would have included within his report) which deals with the path which Mr Collins would have taken.

34 Doctor Ninham's report which Mr Shellshear accepted and which is therefore un-contradicted puts the matter in these terms:

“Mr O'Keefe has described Mr Collins swerving across the road from position approximately in the middle of the bus lane. Based on a smooth curve path from such a position towards a gap in the concrete islands, path radius five to seven metres, I estimate that he would have travelled approximately five metres from him, having turned far enough to represent a reasonably clear hazard, about 0.5 metres lateral movement from his original position and the point of impact.

I further estimate that his speed would have probably been between about seven and ten miles an hour. That speed range leads to a lateral acceleration in the range 0.4 for paths of radius five to seven metres.

It follows that Mr Collins would have represented a reasonably clear hazard for some 1.1 to 1.6 seconds before the collision.”

35 I accept that in 1.1 to 1.6 seconds it is possible to react, depending upon the precise moment that Mr O'Keefe appreciated that Mr Collins was going to turn right in front of him, and then apply the brakes, in which regard it must be remembered there is a 0.25 second lag between the application of the brakes on this bus and that application being transmitted to the wheels. In that period, I have no doubt that Mr O'Keefe did react and I have little doubt that this was the broad limit of his ability to do so.

36 It is obviously important not to be over dependant on the calculation of time in analysis of reaction, braking, lag and deceleration. What it does is to illuminate the general parameters within which this accident happened. In my judgment, taking all the evidence into account, I have come to the conclusion that Mr O'Keefe was travelling along Newington Butts rather faster than normally, but I do not accept that he was exceeding the speed limit for the road, given the absence of traffic on the road. Neither do I characterise the manner of his driving as negligent.

37 The reconstruction is entirely consistent with the bus being driven at a lawful speed, getting ready to pass the bicycle properly. I accept that the bus was straddling the bus lane marking, but there was ample room for the cyclist in the road. For whatever reason, Mr Collins believed that it was safe for him to turn right, describing a path which quickly put him over 45 degrees to the main carriageway.

38 I also accept that Mr O'Keefe reacted to that manoeuvre as quickly as he could and was able to bring the bus to a stop, straddling the very junction through which Mr Collins had intended to pass. In the circumstances, I reject the allegation that he was not paying sufficient attention to Mr Collins on his bicycle. If the accident had occurred to the offside front of the bus, it may well be that there would have been sufficient time for Mr O'Keefe to avoid it. As it is, it occurred to the very nearside front, the rear wheel of the bicycle was likely to have protruded beyond the bus.

39 In the circumstances, this action fails. I do not leave it however without expressing sympathy to Mr Collins for his unfortunate injury, caused when he chose to perform a manoeuvre which tragically took him directly in the path of a bus and I also thank counsel for their assistance.