MacLeod v The Commissioner of Police for the Metropolis [2015] EWCA Civ 688

[2015] EWCA Civ 688Case No B320141292
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 977 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
His Honour Judge McKenna
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 8 th July 2015
Before
LORD JUSTICE JACKSONLORD JUSTICE TOMLINSONLORD JUSTICE FLOYD
Between
DONALD MACLEOD ( a protected party suing by his litigation friend BARBARA MACLEOD)Claimant/ RespondentTHE COMMISSIONER OF POLICE FOR THE METROPOLISDefendant/
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Julian Waters (instructed by Directorate of Legal Services, Metropolitan Police) for AppellantAngus Withington (instructed by Nicholson & Morgan) for RespondentHearing Hearing date: 24 June 2015
JudgmentLord Justice Floyd :
[1]On 24 March 2010 the claimant and respondent, Donald MacLeod, was cycling home when he and his bicycle were hit by a police car travelling at speed to answer an emergency call. He sustained very serious injuries, including injuries to his head. The injuries were of such seriousness that, in the subsequent proceedings, which were brought by his wife and litigation friend Barbara MacLeod claiming damages against the Commissioner of Police for the Metropolis (“the Commissioner”), he was unable to give any evidence as to how the accident occurred.[2]In a reserved judgment dated 3 April 2014 given after a liability-only trial lasting five days, HHJ McKenna, sitting as a judge of the High Court, held that the accident was caused by the negligence of the police driver, PC Reilly, for whose conduct the Commissioner was liable. The Commissioner was granted permission to appeal by Davis LJ on 13 October 2014.[3]The case for the Commissioner was presented by Mr Julian Waters: that for Mr MacLeod by Mr Angus Withington.

The facts

[4]The accident occurred at the junction of Southgate Road and Northchurch Road in London (“the junction”). Southgate Road runs in a south to north direction and Northchurch Road runs east to west. There is a mini-roundabout with a painted central roundel at the junction. Southgate Road is fairly straight for about 500 metres to the south of the roundabout. The junction has a raised speed table, so that vehicles approaching the junction have to go up a traffic-calming ramp some metres before the give-way markings on the road. The ramp raises the carriageway to the height of the pavement. The speed limit on Southgate Road was 30 mph, although section 87 of the Road Traffic Regulation Act 1984 provides a statutory exemption from the speed limit for a police car responding to an emergency call. To the north and to the south of the junction there are raised central traffic islands.[5]Northchurch Road is a cycle-friendly route. The western side is a normal two way road with access to and from Southgate Road. The eastern exit from the roundabout is paved over and closed off to cars by bollards, although cyclists and pedestrians can enter this section from the junction, and continue to the east down Northchurch Road.[6]On the south western corner of the junction is the Northgate pub, outside which two of the witnesses called by the claimant were sitting. On the north western corner is an apartment block called De Beauvoir Court, from an upper window of which another witness had a view of the accident.[7]The claimant was, at the time of the accident, employed by the Russell Group of Universities. He was in his late fifties. He had worked as a journalist for a number of newspapers, including for The Guardian at its offices in Farringdon Road and latterly in York Place, King’s Cross. On the night of the accident he met a friend who worked in the Inner Temple for a drink at a wine bar in Fleet Street before setting out for his home at Scholars Place, London N16 on his bicycle. His bicycle was brightly coloured. On that night he wore a high-visibility jacket, and a cycle helmet. He had lights on his bicycle and they were, the judge found, illuminated. Before leaving Fleet Street he asked his friend for directions to Farringdon Road. The route which he took from there undoubtedly took him to the junction, but the precise route is the subject of the only dispute on this appeal. The dispute is as to the direction from which the claimant approached the junction. The case advanced on behalf of the claimant is that he was approaching the junction from the south.[8]Meanwhile PCs Reilly and Burbeck were on duty at Shoreditch Police Station and were instructed to respond to an “I call” (which requires an immediate response) to deal with a reported shooting in Hackney. PCs Reilly and Burbeck, together with two other officers from the previous shift, PCs Basil and Stanwyck, left in a marked Vauxhall Astra police car driven by PC Reilly. The car was displaying flashing blue lights, mounted on its roof, and sounding its siren. The car was fitted with an Incident Data Recorder (“IDR”) which detects and records the instantaneous speed, forward acceleration and lateral acceleration of the vehicle as well as the use of brakes, headlights, flashing blue lights and sirens. From the IDR it is possible to determine whether a vehicle is steering to the left or to the right, relative to its own axis.[9]PC Reilly’s route to the incident took him up Southgate Road northbound towards the junction. It is common ground that the police car approached the junction at 55 mph. At the time it was dark, and there had been some light rain earlier in the evening, making the road surface damp.[10]The collision occurred on the speed table at the junction. The most southerly position at which it occurred was level with a line running through the centre markings of Northchurch Road and the central painted roundel of the roundabout.[11]Contact initially occurred between the right hand handlebar of the claimant’s bicycle and the upper section of the near side wing of the police car. The experts were agreed that this had the effect of jamming the handlebar against the bodywork of the car and propelling the cycle to the north. The claimant was thrown forward and came to rest beyond the junction in the left hand lane of Southgate Road. The police car steered to the right as it passed through the junction, attempting to pass to the right of the northern raised island but striking the kerb of the island with its nearside wheels. It continued over the southbound lane of Southgate Road where its offside wheel hit the pavement kerb on that side. These kerb strikes provided markers on the IDR, from which it was possible to work backwards and identify the point of the collision with the claimant and the point at which the police car passed over the ramp. There is no longer any dispute about the correlation between the IDR and the position on the ground. This has enabled the range of possible points of impact and the sense in which the car was being steered to be identified.[12]There was no damage to the wheels of the bicycle, but the handlebars were seriously deformed. The experts were agreed that the physical evidence suggested that at least the front wheel of the bicycle was pointing in the general direction of travel of the police car.[13]Apart from a groove where the right hand handlebar of the bicycle engaged with the front nearside wing, the police car displayed damage to the roof mounted flashing blue lights and to the rear window, which was broken. These two areas of damage were ascribed respectively to the impact of the claimant’s head and his body.

The factual issue

[14]The principal factual issue at trial was the pre-impact route taken by the claimant. As I have indicated, the case advanced on behalf of the claimant was that he was approaching from the south.[15]The case advanced on behalf of the Commissioner was that the claimant entered the junction from the western side of Northchurch Road at some speed. An allegation that the claimant was cycling under the influence of alcohol was not pressed below and is now abandoned.[16]Both sides advanced cases based on alternative scenarios. Thus the claimant had an alternative case if it were found that he emerged from Northchurch Road, and the Commissioner had an alternative case based on the claimant emerging from the pavement of Southgate Road directly onto the roundabout. We heard no argument on these alternative cases and I need not consider them further.

The judgment of HHJ McKenna

[17]The judge’s summary of the evidence from the main factual witnesses was not the subject of any specific criticism by Mr Waters. The judge dealt first with the evidence of Mr Edwards, another cyclist. Mr Edwards had been cycling home up Southgate Road from the South when he decided to stop at a supermarket on the eastern side of the road. Whilst waiting to cross, a cyclist passed him. Mr Edwards’ description of the cyclist and his bicycle matched that of the claimant and his bicycle. On returning to cross the road a police car was approaching from the south with a siren sounding and flashing blue lights.[18]The judge accepted that Mr Edwards saw the claimant that evening in Southgate Road. He described Mr Edwards as an independent and reliable witness who gave clear, coherent and compelling evidence. His description of the bicycle was clear and vivid, and was not challenged in cross-examination.[19]Next the judge dealt with the evidence of Julia Shepherd. She had been attending a retirement party and was walking from the Essex Road down Northchurch Road towards the east. She was on the southern pavement of Northchurch Road towards its junction with Cleveland Road when she heard the accident. She did not see a cyclist in Northchurch Road, nor one turning from Cleveland Road (which runs parallel to Southgate Road for some distance) into Northchurch Road.[20]The judge also described Ms Shepherd as an independent and reliable witness. Her evidence that she was adamant that she had not seen a cyclist was “clear, coherent and to my mind utterly reliable”.[21]The judge then turned to the evidence of Julia Walton and Lisa Hutchings, who were sitting on a bench in front of the Northgate pub, facing north across Northchurch Road. They both turned to their right when they heard the police car, and then heard the loud bang caused by the collision with the claimant. They saw something flying through the air, which must have been the claimant. The judge said that both witnesses assumed that the cyclist was travelling eastwards down Northchurch Road and that Ms Hutchings had said in her oral evidence that this was only a guess. He also recorded that neither witness saw the claimant cycling on Southgate Road either.[22]The judge felt less able to place reliance on the evidence of Ms Walton and Ms Hutchings, given that, at least initially they were facing Northchurch Road until their attention was drawn to the police car. Their view was restricted and their attention was focussed on the police car.[23]Georgia Knight was the resident of De Beauvoir Court. The essential points of her evidence as summarised by the judge were as follows. She was speaking to her boyfriend on the telephone when she heard a siren. From her window she was able to see a police car travelling up Southgate Road in the wrong lane towards the junction. She said it collided with the cyclist who she assumed was coming from Northchurch Road. She described the collision between the cyclist and the car as being at ninety degrees. Her impression was that the police car had gone over rather than round the painted roundel. She accepted that she could have been mistaken as to the direction of cyclist. It was all “a bit of a blur”.[24]The judge expressed reservations about Ms Knight’s evidence. He pointed to her admission that her assessment of the direction of travel of the claimant was a presumption; her perception of a ninety degree collision with the front wheel of the bicycle striking the side of the police car as being incorrect in the absence of any damage to the front wheel of the bicycle. Her view had been restricted by trees, although they had not been in leaf at the time.[25]The judge next dealt with the evidence of PC Einsmann, who was cycling home in a southerly direction. As he approached the junction he could hear a siren in the distance. He was adamant that nobody was coming towards him or across him from Northchurch Road. However his attention was caught by something which he saw on the north pavement of Northchurch Road, in the shadows which he took to be a cyclist. He did not see any lights on the cycle or its colour, or any high visibility clothing on the cyclist. He accepted in his oral evidence that he was unsure about this part of his evidence.[26]When PC Einsmann had passed the junction he saw the police car approach the junction without slowing. He heard a loud noise, stopped and turned round to see the police car veering off to the right before eventually coming to a halt.[27]The judge recognised that PC Einsmann’s evidence was clear and unequivocal except for his identification of what might have been a cyclist in Northchurch Road. He held it to be highly unlikely that what PC Einsmann had seen was the claimant. The claimant was visible in his high visibility jacket and brightly coloured bicycle with lights. Moreover PC Einsmann placed the cyclist on the north pavement, ahead of the point where the IDR evidence showed the accident to have occurred. As to his not having seen the claimant approaching in Southgate Road, the judge pointed to the fact that PC Einsmann accepted that his attention was drawn to the approaching police car. This might have distracted him from noticing the claimant.[28]The judge then summarised the evidence of the police officers in the car. On the critical issue, PC Reilly said that the cyclist had come from the direction of Northchurch Road, had entered the path of the police car and showed no intention of stopping. He had swerved to the right to avoid him and thought he had succeeded as the front of the car did not hit him. He then heard an impact. PC Burbeck was in the front seat next to PC Reilly. Her evidence was that the cyclist had shot out of Northchurch Road, maintained a direct line and continued to pedal. PC Basil gave similar evidence, namely that the bicycle came directly out of Northchurch Road, was not slowing down and not attempting to steer. It was at 90 degrees to the police car.[29]The judge pointed out that these three police witnesses only saw the claimant after the car had entered the junction and for a fraction of a second. The evidence that the cyclist came straight out of Northchurch Road without deviation was inconsistent with the physical evidence. He considered their perceptions of the approach of the claimant to be mistaken, although he pointed out that it was inconsistent with any last minute emergency turn by the claimant. The evidence did not strike him as sufficiently cogent to undermine the evidence of Mr Edwards and Ms Shepherd.[30]The judge then turned to the expert evidence. The judge heard from two accident reconstruction experts, Mr Keenan for the claimant and Mr Seston for the Commissioner. They had produced a joint report in which a range of possible scenarios for the accident, including that in which the claimant was cycling up Southgate Road had been described. He pointed out that, save for Mr Seston in the course of his oral evidence, there had never been any suggestion of a sudden emergency left-hand turn by the claimant, such as had been suggested on the part of the Commissioner during the trial to account for the parallel alignment of bicycle and police car. Mr Seston’s previous view had been that the engagement was either at a shallow angle or that the claimant had possibly managed a slight left-sweeping turn and had achieved that prior to the collision.[31]The judge also had reports before him from police experts who were not called to give evidence because of limitations on expert evidence. However as both experts had referred to the reports, there has been no point taken on the judge’s reference to them. PC Osbaldeston is a police accident investigator with 15 years experience as a full time collision investigator. He arrived at the scene within about 90 minutes of the accident. In his report dated 21 July 2010 he had concluded that the claimant was riding north along Southgate Road when he “apparently moved into the path of the Police vehicle”. The judge noted that PC Osbaldeston formed the view that the bicycle was at an acute angle relative to the car and the bicycle was approached from its rear and right.[32]Police Sergeant (“PS”) Webb made two reports of which the longer is dated 26 February 2012. He is the senior collision investigator for south east London. In his second report he gave the revised analysis of the IDR data which was ultimately accepted by the judge. In both his reports he agreed with PC Osbaldeston as to the angle at which the car and cycle would have approached each other. He also concluded that at the point at which the police car went up the ramp it was steering to the right, which he explained might have been either steering away from straight ahead or steering back to straight ahead from a prior steering to the left to pass the raised island to the south of the junction on the correct side.[33]At paragraphs 60 and 61 of his judgment the judge dealt with a suggestion that the claimant might have emerged from Northchurch Road in the correct lane but then suddenly effected a last minute emergency turn so as to align the front wheel of his bicycle with the police car:
“60. Mr Seston had previously stated unequivocally in both his report and the joint statement that the engagement was at a shallow angle or that the accident might possibly have happened if Mr MacLeod had managed a slight left sweeping turn, and had achieved that change in direction prior to the collision and notwithstanding the gear in which the bicycle was found. 61. The explanation that the Claimant could have in some way affected an emergency turn so as to present the front wheel directly parallel to the police car is not only contrary to Mr Seston's previously expressed opinion and what was agreed with Mr Keenan, but is also contrary to the factual evidence.”
[34]The judge made two further observations before drawing matters together in his conclusions. The first was that if the claimant was coming from Northchurch Road and executing a normal turn so as to align his bicycle with the police car, he would have had to start on the wrong side of Northchurch Road. This would have been out of character for the claimant who was a careful cyclist. Secondly he dealt with a theory advanced in cross-examination of Mr Keenan, namely that it would be impossible for the accident to have occurred by the bicycle being hit from behind when the police car was steering to the right. He said this at paragraph 68 of his judgment:
“68. To my mind there is nothing in the theory that it would have been impossible for the bicycle to have been hit from behind without the rear of it being damaged as the police car was steering to the right. Such a theory is based on an assumption that the Claimant was cycling precisely north at the time when the police car was approaching, whereas the reality is that in all probability the Claimant wasn't able to cycle in a perfectly straight northerly direction in circumstances where he is likely to have reacted instinctively to the rapid approach of the police car.”
[35]The judge found that the evidence of Mr Edwards and Ms Shepherd was reliable and compelling and allowed him to conclude that the claimant was indeed cycling up Southgate Road when he was hit from behind by the police car. The police car had been driving too fast, without the degree of care and skill which would have been reasonable in the circumstances.

The appeal

[36]The Commissioner advances three grounds of appeal: i) The judge’s findings of fact were against the weight of the evidence; ii) The judge erred by rejecting expert evidence that the accident could have occurred by the claimant entering the junction from Northchurch Road at right angles to the police car and just before impact, turned his front wheel to the left to avoid the collision; iii) The judge erred in making a finding that the claimant turned to his right before the collision when there was no evidence to support such a finding, and such a theory was not put to the witnesses and was not part of the claimant’s case at trial.

Legal principles

[37]It is well settled that the Court of Appeal will not lightly interfere with a judge’s findings of fact. It can only do so where the judge’s decision was wrong. There are numerous authorities to this effect, collected together by Lewison LJ in Fage UK Limited and another v Chobani UK Limited and another [2014] EWCA Civ 5 at 114. Lord Neuberger explained the principle and its rationale in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 as follows:
“52. …The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judge's findings of primary fact. 53. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).”
The appeal Ground 1

The appeal

[38]This ground is a head-on challenge to the judge’s findings of fact and his evaluation of the evidence. Notwithstanding the principles set out above, it has been necessary, nonetheless to consider it carefully.[39]Mr Waters began his argument by pointing out that this was a case where the evidence relied on by the claimant did not, as he put it, overlap with that relied on by the Commissioner. Thus he submitted that the evidence of Mr Edwards and Ms Shepherd was “subjunctive”, by which he meant that it was evidence from which the judge felt able to draw inferences. By comparison the evidence of those who had been close to the scene of the collision was more direct. He submitted that the judge had been wrong to hold that this evidence, which only made out a basis for inference, could displace the eye-witness evidence of the police officers, Ms Hutchings, Ms Walton, Ms Knight and PC Einsmann.[40]Mr Waters took us to the police forms MG 11 on which Ms Walton and Ms Hutchings had first recorded their impressions of the accident. Thus, for example, in her MG 11 Ms Walton had described the body flying up in an arc from west to east, and illustrated this by an arrow flying over the top of the car from side to side. In her cross-examination she had accepted that she had not seen a cyclist in Southgate Road, but went on to say that she had not seen one anywhere, and therefore not in Northchurch Road either.[41]Ms Hutchings said in her MG 11 that she thought at the time that she had seen a cyclist in Northchurch Road but as time had gone by she had got a little confused and she was not sure now. She said “it was as if the cyclist had turned out of Northchurch into Southgate Road”. Her impression was that the cyclist had hit the front grille of the car but on the left. Unlike Ms Walton she thought the body had been propelled forward and landed in Northchurch Road. She marked on a plan what she considered to be the path of the cyclist, making a sharp left hand turn from Northchurch Road into Southgate Road from the correct side of Northchurch Road.[42]Ms Knight was a student and 17 years of age at the time of the accident. She not only made a statement on form MG11, but also gave a statement to both parties and the judge allowed cross-examination by both parties. In her MG11 she said that it appeared to her that the cyclist was coming out of Northchurch Road but she could not see far enough to be sure. She said “I just presume that as he was almost at 90 degrees to the police car that he had travelled out of the junction to the west”. She drew on the plan a picture of a bicycle driving straight towards the side of a car. She said she saw the front wheel of the bike impact the side of the car. She said “I may sound strange but after the initial impact the cyclist seemed to keep travelling forwards towards the police car”. She says she then saw the bicycle land in Northchurch Road, and it looked mis-shapen.[43]Finally Mr Waters referred us to the evidence of PC Einsmann. The judge has accurately summarised it in the passage I have already referred to in his judgment. Mr Waters stresses what he calls the “positive negative” nature of this evidence, namely that PC Einsmann was actively looking for other road users, and did not see the claimant in Southgate Road.[44]I was wholly unimpressed by these forays into the written evidence and the transcripts of cross-examination. There is always a need with accident witnesses to be careful to distinguish evidence of what they actually saw from evidence about they think might have happened. The judge was plainly alert to this danger when evaluating the evidence of the various witnesses.[45]Thus, although Ms Walton had certainly recorded an impression that the man was thrown from east to west, she also said that she did not see enough of the accident to be able to say where the man had come from. Her final sentence was “All I can say for sure is that the police car was travelling from south to north and the man travelled from west to east in the air, I think”. This is hardly a promising basis for a submission that the judge ought to have accepted this account. In any event I do not see how the claimant can have been thrown any appreciable distance west to east when he ended up due north in the left hand lane of Southgate Road. To make matters worse, during cross-examination, Ms Walton volunteered that she had been “sort of told what had happened and … I sort of assumed that was right”.[46]Similarly Ms Hutchings explained in cross-examination that what she had said about the cyclist coming from Northchurch Road was an assumption. She explained that she did not think she had seen the cyclist at all.[47]Ms Knight’s account also had inconsistent features, not least her account of the impact occurring at right angles, which was inconsistent with the physical evidence. She also places the resting place of the bicycle in Northchurch Road. In cross-examination she accepted that the branches of the tree were substantial, even though not in leaf at that time of year, and had blocked her view so that she could not get a proper picture of what happened. As to what she saw at the point of collision she accepted that it was “all a bit of a blur” and she might be mistaken. Later in her evidence when, being cross-examined by Mr Waters, she started to refer to the bicycle being at “an angle” to the car. It is fair to say that Mr Waters managed to get Ms Knight to accept that the angle was such that it was impossible for the cyclist not to be coming down Northchurch Road. I would, for myself, have regarded that as opinion evidence that Ms Knight was unqualified to give. The judge was perfectly entitled to accord it no weight.[48]Finally, despite the positive quality of PC Einsmann’s evidence, the judge was obviously entitled to conclude that he did not see the claimant in Northchurch Road, given the witness’ expressed uncertainty, and the fact that his account placed whatever it was he saw too far north for it to have been the claimant. The fact that he did not see the claimant in Southgate Road is explicable by the fact that he was concentrating on the approaching police car.[49]It should be apparent that, had the matter rested there, the judge’s conclusion that the claimant was cycling north up Southgate Road would be impregnable on appeal. The judge was perfectly entitled to place reliance on the evidence of Mr Edwards and Ms Shepherd. Once that evidence is accepted, it is true that the judge made an inference that the claimant approached the junction from the south. But the inference to be drawn is a very powerful one indeed. To have approached the junction from Northchurch Road the claimant would have had to have diverted from Southgate Road after he had passed Mr Edwards and taken a diversion, possibly down Cleveland Road and into Northchurch Road, before rejoining Southgate Road at the junction. This is a possible step to have taken in order, perhaps, to have a short section of quieter road. But as Mr Withington points out, to have taken such a cautious approach at that moment makes it all the less likely that he would have rashly cycled into Southgate Road from Northchurch Road into the path of a well-lit police car sounding its siren only seconds later.[50]Mr Waters, however, relied on his cross-examination of Mr Keenan to attempt to tilt the scales conclusively in the Commissioner’s favour. The theory on which the cross-examination is based is that if a cyclist is travelling in a straight line it is impossible for a car steering to the right to miss the rear wheels and yet hit the handlebars.[51]Given that it was known to PC Osbaldeston, PS Webb, Mr Keenan and Mr Seston when they made their reports that the rear wheel of the cycle had not been hit, that the right handlebar had been hit, and that at least one scenario was that the claimant was travelling in a straight line and straight up Southgate Road, it is nothing short of astonishing, if the proposition be a good one, that their combined expertise did not alight on this point earlier. It must have come as a surprise to Mr Keenan that it was going to be suggested, contrary to the common ground between himself and Mr Seston, that one of the agreed possible scenarios was now suggested to be impossible.[52]I am perfectly prepared to accept a different and more limited proposition, namely that if a car and a bicycle are initially travelling in parallel alignment and the bicycle goes straight on and the car steers to the right, then, provided the car misses the back wheel, it will not hit the bicycle at all, let alone on the handlebars. This is so whether the car starts to the left or to the right of the bicycle. The same is no doubt true if the car and bicycle start on divergent paths, and the cycle carries straight on and the car steers to the right. On the other hand if the car and bicycle do not start out in parallel alignment, and are on converging paths, for example paths which will meet at an acute angle, it is just as obvious that it is possible for the car to hit the bicycle anywhere along its length, including on the handlebars.[53]With those considerations in mind it was plainly essential that when the new theory was put to Mr Keenan it was clear what assumptions were being made about the respective paths of bicycle and car. Although I have read and re-read the cross-examination of Mr Keenan, it does not seem to me to emerge clearly that cross-examiner and witness are ad idem on the assumptions which the witness was to make about the initial or indeed final orientation of the vehicles through the phase when the police car was steering to the right. Thus Mr Keenan initially rejects the broad proposition, which I have set out in paragraph 48 above:
“Q. If he was travelling in a straight line, it is not possible for a car swerving to the right, or steering to the right, to miss the rear wheel and nevertheless impact with the handlebars. Mr Keenan: Well I think you are mistaken on that. It is possible to do that. The handlebars stick out further that the back wheel.”
[54]Later these exchanges occur: Mr Keenan: We’ve got a movement to the right. It is moving to the right, it’s not a hard steering on the steering wheel. There’s a movement to the right. And at that point, there’s the possibility that the handlebars could have come in contact with the front of the vehicle without Mr MacLeod himself impacting with the vehicle. Q. That’s my question, can you explain to His Lordship how that could possibly happen. Mr Keenan: Well without actually demonstrating it and getting a cyclist and sitting on a cycle exactly the same manner as Mr MacLeod was sitting on and putting them together, then it’s …. I can’t explain it. Q. So you can’t explain how that could happen. Mr Keenan: No Q. No, thank you. I suggest Mr Keenan to you that the fact that the car was turning to the right, these are your words, and the first evidence of impact is with the handlebars to the nearside front side of the car, proves beyond doubt that the cyclist had to be turning to the right at the point of impact, that’s right isn’t it? Mr Keenan: I disagree with you on that. Without actually trying it, I would disagree with you.

Mr Keenan: No

[55]Thus far, Mr Keenan is being cautious, as he was plainly entitled to be given the novel point being made. Mr Waters also relied on a passage in Mr Keenan’s evidence in which the emphasis is on the final position of the claimant. Mr Keenan says that the final position of the claimant suggests that the direction of travel was up Southgate Road. He says that if the claimant was steering towards the centre of the road the final position of the claimant would be further across the road to the east than it was. This point makes sense if one is comparing the case in which the claimant is travelling up Southgate Road to that in which he is travelling at right-angles across it. It makes much less sense if the vehicles are merely travelling at a small acute angle to each other. In any event, this was a not a point which was supported by Mr Seston and the judge was not bound to accept it. Given that Mr MacLeod’s body hit the side of the police car, smashing the overhead blue lights and the window, and was thence propelled forwards, it is not at all clear to me that he would have retained any west to east momentum even if he was travelling west to east, let alone if he was merely at a small acute angle to the car. The car and the cyclist do not behave like billiard balls. However having secured agreement on this rather shaky footing, Mr Waters pressed on as follows:
“Q. So your only explanation is it for where the body ends up, is that he must have been travelling in a straight line? Mr Keenan: That would suggest he wasn’t steering towards the centre of the road. Q. So he was not steering he was travelling in a straight line. Mr Keenan: Yes. Q. So your only explanation for this accident occurring if Mr MacLeod was cycling northwards up Southgate Road, is that he was travelling straight? Mr Keenan: Yes at the … Q. But, you cannot … I’m sorry. Mr Keenan: … at the point of impact. Q. At point of … Mr Keenan: I don’t know what he was doing beforehand. Q. But you cannot explain to this court how he can have been travelling straight and the handlebars struck but not him, if the police car, as we know was turning to the right. That’s your evidence isn’t it? Mr Keenan: Yes”
Mr Keenan: Yes at the … Q. At point of … Mr Keenan: Yes”

Q. At point of …

[56]There is a difference between not being able to explain a complicated collision scenario which you have not previously considered, and involves consideration of multiple factors, and accepting that a scenario is impossible. The judge was not compelled to conclude by that evidence that the scenario was impossible. Moreover there was ample evidence before him to suggest that it was indeed possible for car and cycle to be travelling up Southgate Road and for the accident to occur with the car steering right, but on a converging course with the bicycle.[57]Thus, PC Osbaldeston had explained that the physical evidence showed that the bicycle was at an acute angle to the car. He stated that the car would have approached the bicycle “from its rear and to its right”. PC Osbaldeston also suggests that the claimant might have commenced a right turn, intending to cross into the eastern arm of Northchurch Road, again therefore creating a converging angle. PS Webb expressly agreed with PC Osbaldeston’s analysis of the angle. PS Webb’s analysis of the IDR also explained that the right steering might have been either steering away from straight ahead or steering back to straight ahead from a prior steering to the left to pass the traffic island on the correct side. If it was the latter, then there was again an opportunity for the cyclist to be approached from the rear and to the right. Finally, Mr Seston described the impact as a glancing one which, to my mind, again suggests an acute angle of approach.[58]Drawing this together, the judge was perfectly entitled to come to the conclusion which he did at paragraph 68 of his judgment that there is nothing in the theory that it would have been impossible for the bicycle to have been hit from behind without the rear of it being damaged as the police car was steering to the right. Mr Waters accepted that the judge is not a prisoner of the expert evidence. The judge is entitled to apply his common sense and experience when evaluating the totality of the evidence. It was entirely possible for the accident to have occurred as contended for by the claimant.[59]I would therefore reject the first ground of appeal which asserts that judge’s conclusions were against the weight of the evidence.

Ground 2

[60]The second ground of appeal is concerned with the alternative scenario in which the claimant is said to have entered the junction from Northchurch Road, but executed a sudden emergency manoeuvre by turning his handlebars to the left. This again was a theory only advanced at the trial by way of cross-examination and not previously considered by the experts. Again, in a complex accident investigation at a trial, it is asking a lot of an expert to consider a new theory on his feet.[61]Subject to one qualification, Mr Keenan did agree that a sudden left turn by the claimant from the left hand lane of Northchurch Road into Southgate Road was a possibility. His qualification concerned the final position of the claimant, which would have been further to the east if this had occurred. Mr Seston accepted that he had never considered this scenario until he had heard it suggested in Mr Keenan’s cross-examination, but said that, having heard the suggestion, he found little to argue with. He disagreed with Mr Keenan’s view that this would have affected the final position of the claimant.[62]Mr Waters submits that the judge was wrong to say that Mr Seston’s oral adoption of this alternative scenario was “contrary” to his previous evidence, as Mr Seston had frankly accepted that he had not previously considered it. I do not accept that there is anything in this point. Mr Seston’s previous evidence was that either there was a shallow angle engagement when both vehicles had been travelling in the same direction, or alternatively that if the cyclist came from Northchurch Road, he had effected a slight left sweeping turn and had achieved a change in direction prior to collision. The new theory of a sudden turn is contrary to the existing theories in the sense that it is different from them. It is a legitimate point for comment that Mr Seston had not mentioned it earlier. There would have been no need to suggest the elaboration of the sweeping turn if this new theory was a realistic explanation.[63]Mr Waters also challenges the judge’s conclusion that this alternative theory was contrary to the factual evidence. In order for this alternative theory to arise at all, the claimant must have been emerging from Northchurch Road. I have already explained why the judge was entitled to place reliance on the evidence of Mr Edwards and Ms Shepherd as providing a strong inference that this did not occur. The judge was perfectly entitled to take this into account when rejecting the alternative reconstruction theory advanced for the first time at trial.[64]I would therefore reject this ground of appeal. The judge was entitled to reject the alternative scenario for the reasons he gave.

Ground 3

[65]The third ground of appeal suggests that the judge made a finding that the claimant turned to his right before the collision. I can deal very shortly with this ground. The judge simply made no such finding. I have set out paragraph 68 of the judgment above. I have also referred to the ample evidence which the judge had to show that the claimant and the police car were on convergent courses. Anyone who has ridden or driven on London’s roads knows that subtle changes of direction can make the difference between safety and disaster. I would therefore also reject this ground of appeal.

Conclusion

[66]This is an appeal on the facts. Where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one(i) which there was no evidence to support,(ii) which was based on a misunderstanding of the evidence, or(iii) which no reasonable judge could have reached, that the Court of Appeal will interfere with it. The Commissioner has failed to make out any such objection to the findings of fact made by HHJ McKenna in his judgment. There was ample evidence which he fully understood and on which he could properly rely to make those findings. For my part I would therefore dismiss the appeal. Lord Justice Tomlinson[67]I agree. Lord Justice Jackson[68]I also agree.

Cited in 2 later judgments