Macleod (By His Deputy And Litigation Friend, Macleod) v Commissioner of Police of the Metropolis [2014] EWHC 977 (QB)

[2014] EWHC 977 (QB)Case No HQ12X004349
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/04/2014
Before
HIS HONOUR JUDGE MCKENNA
Between
Donald MacLeodClaimant(by his Deputy and Litigation Friend,ClaimantBarbara MacLeod)ClaimantCommissioner of Police of the MetropolisDefendant
Angus Withington (instructed by Housemans) for ClaimantJulian Waters (instructed by Legal Services, Metropolitan Police Service) for DefendantHearing Hearing dates: 17, 18, 20 and 21 March
JudgmentHis Honour Judge McKenna :Introduction
[1]On 24 March 2010 at about 9pm a tragic road traffic accident took place at a mini-roundabout marking the junction of the B102 Southgate Road and Northchurch Road in London involving a bicycle being ridden by the Claimant, Donald MacLeod, and a marked police car being driven by PC Reilly who, together with three other officers, were responding to an emergency call to a firearms incident in Hackney.[2]As a result of the accident the Claimant has suffered very significant injuries such that he has been unable himself to give any evidence as to how the accident happened, and in this action he pursues a claim for damages against the Commissioner of Police for the Metropolis (“the Defendant”). At this stage however, this court is only concerned with the issue of liability.[3]Southgate Road runs predominantly in a North–South direction, has one lane in each direction and is relatively straight for approximately 500 metres south and 350 metres north of its junction with Northchurch Road.[4]On the north-bound approach to the junction with Northchurch Road there is a raised central island which narrows the northbound lane to 4.7 metres. As the road approaches the give-way lines, the near side kerb curves inward, reducing the northbound lane to 3.9 metres. The mini-roundabout is a 1.6 metre diameter roundel painted on the road surface, whilst to the north of the junction there is another raised central island which forms part of a pedestrian zebra crossing. Moreover the whole junction is controlled by a traffic calming measure in the form of a raised speed table with ramps leading on to the platform which has the effect of raising the road to be level with the footpath. Give way road markings control road users entering the mini-roundabout.[5]It is common ground that the speed limit on Southgate Road was, at the material time, 30 miles per hour; although there is a statutory exemption provided by section 87 of the Road Traffic Regulation Act 1984 in cases where, as here, a police vehicle is responding to an emergency call.[6]Northchurch Road runs at right angles east to west to Southgate Road and is a dedicated cycle route. The western side is a two-way road with one lane in each direction whilst the eastern side is paved over and has bollards erected to prevent vehicular access, though it is permissible for cyclists and pedestrians to traverse.[7]Just before 9pm on 24 March 2010 PCs Reilly and Burbeck were on duty at Shoreditch Police Station and were instructed to rendezvous with other officers with a view to dealing with a shooting call in Hackney, as were two officers on the previous shift; PCs Basil and Stanwyck who were still on duty. The call was graded “I”, signifying an immediate response and the four officers left in a marked Vauxhall Astra police car being driven by PC Reilly.[8]The police car in question was operating its blues and twos and was fitted with an Incident Data Recorder (‘IDR’) which measured speed, acceleration and lateral movement as well as the use of brakes, headlights and blues and twos. An analysis of the data from the IDR suggests that the police car entered the mini-roundabout at a speed of 55 miles per hour. It was travelling north along Southgate Road.[9]The Claimant, who for about 10 months had worked with the Russell Group of Universities, based in Trafalgar Square, but who before that had worked for a number of years as a journalist for the Guardian newspaper based in Farringdon Road and latterly in York Place King’s Cross, was returning to his home at 8 Scholars Place, London N6, having met a friend in the Inner Temple and then having spent a couple of hours with that friend, a Mr Dursi, in El Vinos Wine Bar on Fleet Street. It is common ground that the Claimant was and had for many years been a keen cyclist who both cycled for pleasure at weekends and to work on a daily basis. On that night he was wearing a helmet and a high-visibility jacket, and his bicycle lights were illuminated.[10]The police car and the Claimant’s bicycle collided at some point on the speed table governing the junction of Southgate Road and Northchurch Road and it is common ground that an analysis of the IDR evidence suggests that the southern-most point at which the impact occurred was close to the centre road markings of Northchurch Road (see the joint report in the black bundle at page 167b, at paragraph 5.4). At the time it was dark and there had been some rain so the road surface was at least damp but not as wet as it appears in the various photographs produced to the court which, it is common ground, were taken on the night in question but after heavy rain had fallen in the period after the accident.[11]The physical damage to the bicycle and to the police car indicates that contact occurred between the right handlebar and the front left side panel of the police car as shown in the photograph in the joint report of the accident and reconstruction experts, a copy of which is to be found in the black bundle at page 155 (figure 1). The resting places of the bicycle and of the Claimant himself are shown on the scale plan at points A and B in the blue bundle.[12]For the sake of completeness I should record that the Defendant has a unit known as the Police Drivers Standard Unit, or PDSU, which deals with police collisions and driving incidents. Following the accident on the 24 March 2010, PC Reilly’s standard of driving was reviewed against the police standard for his particular level of response driving and PC Reilly received two points on his police driver’s permit for what was described as a “poor assessment of a hazard” namely the table-top traffic calming measure compounded with the layout of the junction. The assessment was conducted on the basis of the Defendant’s version of events and the expressed basis of the assessment was as follows:- “Driving regs state ‘a collision will be assessed “to count” where some causation can be attributed to the MPS driver. Where no causation can be attributed to the MPS driver, the collision will be recorded as “not to count”’. In making the assessment the standard used is on the balance of probabilities. I have assessed this collision ‘to count’ because, although the cyclist failed to give way: PC Reilly approached a junction with limited vision to his left at nearly twice the speed limit The road surface was wet He had three officers with him that would change the handling characteristics of the vehicle He made no allowance for the ‘table-top’ traffic calming measure just prior to the junction. He has failed to anticipate the approach of any vehicles from his near side This is a poor assessment of a hazard for which he is awarded two penalty points.” I have assessed this collision ‘to count’ because, although the cyclist failed to give way: The road surface was wet He had three officers with him that would change the handling characteristics of the vehicle That assessment was undertaken by PS Alan Franklin and the assessment is to be found in the black bundle at page 206.

He had three officers with him that would change the handling characteristics of the vehicle

[13]There is a dispute between the parties as to the pre-impact position and direction of travel of the Claimant. It is the Claimant’s case that he was travelling in the same direction as the police car, that is to say northwards along Southgate Road, when the police car struck him from the rear at the mini-roundabout at a point south of the roundel painted on the road, and on the Claimant’s behalf it is alleged that the driver of the police car, PC Reilly, failed to keep a proper lookout, failed to heed the presence of the Claimant ahead of him, failed to reduce his speed as he sought to negotiate the mini-roundabout and failed to control his vehicle so as to avoid a collision and to have sufficient regard for other road users.[14]The Defendant’s primary case is that the Claimant, rather than proceeding northwards along Southgate Road, in fact emerged out of Northchurch Road, that is to say from the police car’s left, at some speed, and into the path of the police car, or alternatively, it is pleaded that the Claimant had been riding on the pavement along Southgate Road and proceeded off the pavement and into the mini-roundabout without looking or waiting for the police car to pass. It was also pleaded that the Claimant was riding under the influence of alcohol. In the alternative, contributory negligence is also asserted.[15]It follows that the key issue of fact in this case is whether the Claimant was travelling north along Southgate Road or alternatively west to east along Northchurch Road.

The Legal Framework

[16]It is common ground that the duty on the driver of the police car is to drive with such care and skill as is reasonable in all the circumstances. He owes the Claimant a duty of care notwithstanding the fact that this was an emergency. See Marshall v Osmond [1983] QB 1074.[17]Negligence is a composite concept necessarily combining a duty of care, breach of that duty, causation and damage. As Lord Justice May, as he then was, put it in Roda Sam (previously known as Rawdah al-Sam) v Pascale Atkins [2005] EWCA (Civ) 1452), “16 Caparo and Murphy v Brentford were both cases concerning economic loss, not physical damage, but the principle is the same for each. The question is whether the relationship between the claimant and the defendant is such that it imposes on the latter a duty to take care to avoid or prevent the loss which has in fact been sustained. That question subsumes the question whether the acts or omissions of the defendant cause the damage relied on. If they do not there is no negligence”[18]The burden is on the Claimant to prove that the Defendant, on the balance of probabilities, breached a duty owed to the Claimant doing what he was doing and that but for that breach the damage would not have occurred.[19]The fact that an emergency vehicle was displaying adequate warnings is an important factor in deciding whether a breach of duty has occurred. In Keyse v The Commissioner of Police of the Metropolis [2001] EWCA (Civ) 715,

Lord Justice Judge, as he then was, put it this way:

“29 In my judgment, even in an emergency, a driver is required to drive reasonably carefully in all the circumstances. One significant feature of such cases where the vehicle in question is deployed by one of the emergency services, is that the driver is normally entitled to assume that other road users will not ignore the unmistakable evidence of its approach, and where appropriate, temporarily at any rate will use the road accordingly. Pedestrians can usually be expected to follow the relevant advice in the Highway Code. To that extent, the comment by McNair J in Gaynor v Allen in relation to the requisite standard of care is perhaps simply because of the passage of time and the advancement of technology, no longer to be regarded as accurate, certainly so far as the driving of emergency service vehicles giving conspicuous warning of their presence or approach. Depending on all the circumstances, the speed at which such a vehicle may reasonably be driven is likely to be faster either than that of a vehicle not being deployed in an emergency, or a vehicle in an emergency, which does not or cannot highlight that it is being used for such a purpose. For example, the driver of a civilian vehicle, taking a child to hospital in an emergency knows that however dire the emergency, that fact cannot be apparent to any other road user. Accordingly, in relation to civil liability, and if a prosecution should follow, ignoring defences of necessity or rescue which may be available, he should not drive on the basis that it is. 31 … in my judgment, although drivers should allow for the unexpected when they are at the wheel of a car, it would inhibit the valuable work done for the community as a whole, if drivers in the emergency services were not allowed to drive their vehicles on the basis that pedestrians would recognise their warning lights and sirens and give them proper priority by keeping out of their paths. ”
[20]Those passages from Keyse were discussed in Smith v Chief Constable of Nottinghamshire Police [2012] EWCA (Civ) 161, where at paragraph 27 Lord Justice Ward commented on them as follows:- “… a close analysis of the case demonstrates, therefore, that it was very much a fact specific decision ‘depending on all the circumstances’ where ‘normally’ the driver may assume pedestrians may not ignore him and where pedestrians can ‘usually’ be expected to follow the advice of the Highway Code. I do not disagree with a word of that but the comments should not be elevated into a statement of universal principle. Each case must be judged on its own particular facts and circumstances. The driving of PC Avann was undertaken in the emergency to attend the scene of a possible assault. Preventing that assault is laudable but not at the cost of an avoidable risk of catastrophic injury caused by negligently driving to the scene of the assault. ”[21]The decision in Smith also stresses the importance of the Defendant’s policy in such cases. In this case the Defendant’s Police Driver and Vehicle Policy clearly sets out the expectations of what is to be regarded as a reasonable standard. Relevant terms include the following:- “1.6 The aim of all drivers within the MPS should be that they drive in a manner that will not lead to them being involved in any collision and if they are, it should not be their fault. 1.8 One quote that has been in use for many years is:
‘NO CALL IS SO URGENT AS TO JUSTIFY A COLLISION, WHICH ITSELF WILL NOT ONLY CAUSE DELAY BUT MAY CAUSE DAMAGE AND POSSIBLE INJURY’
This is as relevant today as when it was first used. 1.9 All MPS trained drivers who are allowed to make use of legal exemptions have received instruction based on Roadcraft that will enable them to: ‘ensure that their vehicle is always in the right place at the right time, travelling at the right speed and in the correct gear. Thus, a driver will be in complete control of any situation with which they might be faced’ 1.10 A driver who is driving to the system of a car control and in the way they were trained should not become involved in any ‘too count’ collisions and the aim of the MPS is to have a zero ‘too count’ collision record 1.4 Police drivers should develop positive attitudes that will assist reducing the risk of a collision by: … • making safety their primary concern in all driving decisions 13.2 When using the vehicle there is a requirement by the MPS that you will operate the vehicle safely, in the manner you have been trained or authorised to, complying with the Police Driver and Vehicle Policy 13.321 The decision whether to use audible and visual warning equipment remains the responsibility of the driver, irrespective of the grading of the call The grading of emergency calls by CCC acts as a guide for officers and staff when deciding on the appropriate response to a particular call. The grading does not dictate how a driver should drive or remove the driver’s discretion in deciding whether to use warning equipment and/or make use of any road traffic exemptions Drivers and operators should not request a call to be ‘regraded’ to justify their decision whether to use warning equipment or exemptions Whilst an ‘I’ call will usually imply a fast response is required, it may be that local knowledge dictates this not to be necessary. Equally, response to an ‘S’ graded call may become more urgent and the driver may choose to respond using warning equipment and exemptions 13.323 Drivers must exercise extreme caution when using audio/visual warning equipment and acting on what is perceived to be the assumption that they have been seen or heard. Various disabilities can impact on an individual’s reaction or observance of such warning equipment and others may be using electronic devices that impact on what they can hear. It must not be assumed that members of the public have seen or heard them. This is particularly relevant on the approach to ATS control junctions and, whilst not intended to be exhaustive, the following aspects must be considered: • Drivers of other cars must not be pressurised into entering the junction to facilitate the progress of the police vehicle • Drivers entering the junction from other directions may not be aware of the presence of the police vehicle • Where police vehicles are unmarked, the recognition of their emergency status and reaction to covert warning equipment may be significantly reduced The above examples are merely illustrative. Each situation must be judged on its own merits.” The above examples are merely illustrative. Each situation must be judged on its own merits.”[22]Finally, I should refer to the relevant provisions of the Highway Code which are in these terms:- “219 Emergency and Incident Support vehicles. You should look and listen for ambulances, fire engines, police, doctors or other emergency vehicles using flashing blue, red or green lights and sirens or flashing headlights, or Highways Agency Traffic Officer and Incident Support vehicles using flashing amber lights. When one approaches do not panic. Consider the route of such a vehicle and take appropriate action to let it pass, while complying with all traffic signs. If necessary, pull to the side of the road and stop, but try to avoid stopping before the brow of a hill, a bend or narrow section of road. Do not endanger yourself, other road users or pedestrians and avoid mounting the kerb. Do not brake harshly on approach to a junction or roundabout, as a following vehicle may not have the same view as you.”[23]I approach the evidence in this case with these principles and guidance very much in mind.

The Evidence

[24]The court has had the benefit of hearing evidence from a number of witnesses of fact, though not, as I have indicated, from the Claimant himself. On behalf of the Claimant, they are Barbara MacLeod, the Claimant’s wife, Anthony Dursi, a friend and work colleague with whom the Claimant visited El Vinos, Dr Ravleen Sabaharwal, a doctor who gave initial medical assistance to the Claimant at the accident scene, Ben Edwards who was himself cycling home along Southgate Road on the night in question, Julia Walton and Lisa Hutchings who were sitting outside the Northchurch public house which is situated on the corner of Northchurch Road and Southgate Road, Julia Shepherd who was walking home along Northchurch Road towards its junction with Southgate Road and Georgia Knight who occupied a fourth floor bedroom of a property which overlooked the junction in question and who in fact gave separate statements to both those representing the Claimant and the Defendant.[25]On behalf of the Defendant, the court has heard evidence from the driver of the police car, PC Reilly, and the other occupants, PCs Basil, Stanwyck and Burbeck and from Patrick Einsman who was an off duty, City of London police officer who was also cycling home along Southgate Road but in the opposite direction to the direction of travel of the police car. Finally in terms of factual evidence, the court heard from Police Sergeant Franklin of the PDSU who, as I have recorded, was responsible for the assessment of PC Reilly’s driving standard and who awarded two penalty points against PC Reilly’s police permit.[26]In terms of expert evidence, the court has had the benefit of hearing evidence from James Keenan on behalf of the Claimant and Robert Seston on behalf of the Defendant, both of whom are road traffic accident investigators and whose respective reports are to be found in the black bundle at pages 58 ff. and 88 ff. In addition they have produced an addendum joint report, a copy of which is also to be found in the black bundle at pages 149 ff.[27]In the light of the fact that both experts agree that none of the data from the IDR or the physical evidence at the scene can assist in identifying the Claimant’s pre-accident route, the role of the expert evidence is necessarily limited to identifying possible scenarios but not the likelihood of such scenarios as well, of course, as placing the Claimant on the southern side of the roundel.[28]Before turning to a review of the factual evidence as to the accident circumstances I should deal with the issue of the role, if any, played by alcohol, albeit briefly. In her first statement made on 26 March 2010 PC Burbeck stated that she could instantly smell a strong smell of alcohol on the Claimant when she first arrived at the scene. PC Stanwyck, in his first statement recalled that he noticed that there was a trace of alcohol coming from the Claimant whilst neither PC Reilly nor PC Basil made any reference to any such sign of alcohol in their initial, or indeed later statements. Similarly, Dr Sabaharwal, who was, as she said, of course very familiar with dealing with patients under the influence of alcohol, and despite the fact that she held the Claimant’s head in line with his body with her own head in very close proximity to that of the Claimant, did not smell alcohol.[29]Mr Dursi in his evidence explained that he and the Claimant had shared a bottle of red wine that evening. Mr Dursi estimated that he had consumed approximately three quarters to the Claimant’s one quarter of the bottle and that after drinking two small glasses of red wine the Claimant had limited himself to water. This is evidence which is consistent with the evidence of Mrs MacLeod to the effect that the Claimant was a social drinker who would drink wine or beer but who, after one or two drinks, would revert to water and to the effect that he was very safety conscious when on the road with his bicycle.[30]I have no hesitation in accepting the evidence of Mr Dursi, corroborated as it is by that of Mrs MacLeod and more particularly by Dr Sabaharwal and indeed by omission by PC Reilly, and am satisfied on the balance of probabilities that the Claimant had consumed no more than two small glasses of red wine during the course of the earlier part of the evening, and therefore was not riding under the influence of alcohol. To be fair to counsel for the Defendant, although it was pleaded that the Claimant was riding under the influence of alcohol, in the course of his closing argument, he rightly conceded that there was no evidence to support such an assertion, but I deal with it out of an abundance of caution.[31]Mr Edwards gave evidence that he was cycling home from work north along Southgate Road and decided to stop at a Tesco Express located about 415 metres south of the mini-roundabout and, for that purpose, he turned into the entrance of Rosemary Gardens with a view to getting off his bicycle there and walking across Southgate Road to use the cycle parking bays located in front of the Tesco Express store. As he waited to cross the road he became aware of a vehicle travelling at high speed from his right. The vehicle was a large saloon with a siren but was unmarked and had no flashing lights. Shortly after that vehicle had passed him and whilst he was still waiting to cross the road a cyclist also came from his right. He noticed that the cyclist was riding a touring type of bike in a bronze or gold colour and that the cyclist was aged between 50 and 60 years old. Once the cyclist had passed he crossed the road, parked his bicycle and went to use the cash point, but had to wait a short period of time whilst a customer ahead of him completed his own transaction. Mr Edwards inserted his card in order to ascertain his balance and having discovered that his pay had not yet reached his account, he then retrieved his card, placed it back in his wallet and retraced his steps to his bicycle.[32]As he was waiting to re-cross the road he became aware of a police car travelling from his left, again heading north up Southgate Road. It was a marked police car with sirens sounding and blue lights flashing. He estimated the speed of the vehicle at in the region of 40 miles per hour. Once the police car had passed he got on to his bicycle, crossed the road, and cycled home and thought no more about the matter. In his original statement he estimated that the time gap from parking his bicycle and seeing the second, marked police car was two-and-a-half to three minutes, but in his oral evidence he reduced that estimate to one-and-a-half to two-and-a-half minutes, based on his having recently re-enacted his movements and having timed himself so doing.[33]He learnt of the accident as a result of being a member of a cycling forum and felt that the description of the cyclist who was injured in the accident matched the description of the cyclist who had passed him, and he was firmly of the view that the cyclist he’d seen was the Claimant, as he said, because it was rare to see someone of that age riding that type of bike at that time of night and because of its colour.[34]Julia Shepherd’s evidence was to the effect that she got off a bus on Essex Road which runs more or less parallel to Southgate Road and was on her way home, walking down Northchurch Road towards the mini-roundabout at its junction with Southgate Road. She was on the southern pavement of Northchurch Road near to its junction with Cleveland Road when she heard what she described as a very loud bang. She immediately went to see what had happened and whether she could help, but by the time she reached the junction there were a number of people already in the area and she quickly realised that a cyclist had been hit.[35]She estimated that she had been less than a minute away from the junction when the collision occurred, although she did not actually see the collision. She was also adamant that she did not see a cyclist on Northchurch Road, nor did she see one turning from Cleveland Road into Northchurch Road.[36]Julia Walton and Lisa Hutchings both gave evidence that they were sitting on a bench outside the Northchurch public house at the material time. Their attention was drawn towards the southern side of Southgate Road as a result of their hearing a siren, which was getting louder and louder. They both turned to their right to see the approaching police car. They were then aware of what Lisa Hutchings described as an almighty crash and she saw an object flying into the air, which turned out to be the Claimant. Ms Hutchings gave a short statement to the police officer that evening, and both she and Julia Walton made an assumption that the cyclist must have been travelling down Northchurch Road, but Ms Hutchings emphasised in her oral evidence that that was only a guess and that she had made that clear to the police at the time, as she had not actually seen the cyclist heading eastwards along Northchurch Road.[37]Georgia Knight was in her bedroom on the fourth floor of a house, which overlooks the west side of Southgate Road. At the time she was speaking to her boyfriend on her mobile phone. She heard a siren and went to the window to see what was going on and saw a police car travelling at speed up Southgate Road in the wrong lane towards the mini-roundabout and whilst on the roundabout it collided with a cyclist. She did not see the direction from which the cyclist had come, but assumed that he had come from Northchurch Road, and she described the point of impact between the cyclist and the car as 90 degrees. Her impression was that the police car had gone over rather than round the white roundel and her belief was that the front wheel of the bicycle had hit the front wheel of the police car, and after the impact, the cyclist seemed to keep travelling towards the police car. She readily accepted that she could have been mistaken as to the direction of the cyclist. It was all a bit of a blur and she just remembered the coming together of the bicycle and the police car, and that the bicycle was at an angle to the car. There are a number of photographs in the blue bundle depicting her room and the view she had of the junction from which it is plain that her view was to some extent obscured by a number of trees, albeit that they would not have been in leaf at the material time by contrast with the photographs.[38]Patrick Einsman’s evidence was to the effect that at the material time he was an off-duty police officer with the City of London Police and was cycling home southwards along Southgate Road, following a session at a local gym. It was dark, wet, cold and drizzly, and the road surface was wet and slippery. He approached the mini-roundabout at a speed slightly below normal because of the weather conditions and the reduced visibility, and could hear a siren some way in the distance, and could also see blue flashing lights approaching rapidly. As he continued to cycle he was adamant that no-one came towards him and nothing came across him from Northchurch Road, but his attention was drawn to something which he took to be a cyclist cycling in the shadows on the pavement on the north side of Northchurch Road (see the plan in the yellow bundle at page 369). He did not see any lights, nor any high-visibility clothing, nor could he see the colour of the bicycle. In his oral evidence he quite candidly indicated that this was the part of his evidence of which he was most unsure and though he thought that what he had seen was a cyclist he could not be sure.[39]He carried on cycling and crossed the mini-roundabout, and when he had travelled perhaps ten metres past the mini-roundabout a marked police car passed him in the opposite direction at speed. He saw no evidence of it slowing as it approached the mini-roundabout. About a second later he heard a loud noise, stopped and turned around to see the police car heavily braking and veering off to the right before eventually coming to a halt. He then saw a bicycle and a person lying in the road and went to assist the officers to secure the scene and in order to help them deal with the traffic. He conceded that he was mistaken in his original section 9 statement when he suggested that the zebra crossing was beyond the mini-roundabout as he approached it, although to my mind nothing turns on this simple mistake.[40]PC Reilly confirmed that he was the driver of the marked police car and that it was therefore his choice of route which was dictated by his view that traffic would be lighter on Southgate Road than other possible routes such as the A10 or Essex Road. He was very familiar with the area and used the route regularly when on emergency calls. As the particular call had been classified as “I”, an immediate response was called for, and in such cases, the aim, but he insisted not the requirement, was to attend the incident within twelve minutes. He left Shoreditch Police Station with the police car’s warning equipment activated and made his way along Shepherdess Walk, Eagle Wharf Road, North Road and into Southgate Road. At the traffic lights controlling the junction with Downham Road the lights were against him so he made the decision to progress through the junction on the off side. He took up an early position in the off side lane to signal that intention, reduced his speed and once he had slowed further to negotiate a taxi he went through the lights, although they were red against him, and continued along Southgate Road.[41]He knew that the next junction would be Northchurch Road and was familiar with its layout. He felt that as he approached he had a good line of sight and was adamant that there were no oncoming vehicles or cyclists and no pedestrians or cyclists on either side of Northchurch Road, and that the mini-roundabout was clear for him to proceed through it. He therefore entered the mini-roundabout and as he did so he saw, on his near side, a cyclist travelling fast. The cyclist entered his path and showed no indication that he was going to stop. He swerved to the right in an attempt to avoid the cyclist and initially thought that he had succeeded as the front of the car did not hit the cyclist, but he then heard an impact sound and one of the wheels of his car then collided with the raised kerb of the crossing island making the car more difficult to control, and then the off side wheels connected with the off side kerb before the car came to a halt.[42]In cross examination PC Reilly confirmed that the cyclist had come from the direction of Northchurch Road but he couldn’t say from which part of the road, and that the bicycle was travelling at 90 degrees to the direction of the police car and as far as he could ascertain, there had been no deviation in the cyclist’s direction. He had not braked as he approached the roundabout but denied that his speed was excessive, or dictated only by a need to get to the incident within the twelve minute target time, or that his priority was to get to the incident as quickly as possible. His concern was, he said, for potential hazards. Equally he denied any suggestion that the Claimant had been proceeding along Southgate Road ahead of the police car.[43]He was also asked whether he accepted that he was in any way at fault for the accident and considered that personally he did to a certain degree, with hindsight, as it was only natural or human in such circumstances, but he didn’t accept that there could be any legitimate criticism of his driving. When asked about his acceptance of and non appealing against the imposition of two penalty points he said that although he accepted them it didn’t mean he agreed with the decision, but that he had decided that the appeal was not worth pursuing. In particular, he disagreed with the assessment that he had limited vision as he approached the junction and that he had failed to anticipate the approach of any vehicle from his nearside. He also disclosed that he took a career break between September 2011 and 2012, really because of the effect on him of the accident and had not since returned to emergency response driving.[44]PC Burbeck was a front seat passenger and therefore had a clear and uninterrupted view of what was ahead of the police car as it sped up Southgate Road. She had responsibility to act as radio operator and for checking the mobile data terminal but these tasks had already been completed by the time that the police car was approaching the mini-roundabout. She had told PC Reilly the location of the rendezvous point in the vicinity of the armed incident. As the police car approached the roundabout the junction appeared to her to be clear. Once past the give way signs on the roundabout, in her first statement made on 26 March 2010 (yellow bundle page 249), she says she saw a cyclist come towards the police vehicle at speed. It had no lights showing and was a racing style pedal cycle. The police car swerved to the right and she heard the near-side wing mirror hit something and smash. She then heard a bang and felt the vehicle hit the island in the middle of the road and then the curb on the off side.[45]In her oral evidence she indicated that she was not a good passenger so was looking for hazards in the road as they went along. She did not notice any discernable change of speed as the police car approached the mini-roundabout and wasn’t able to comment on its actual speed, save to say that it didn’t seem to her that the car was travelling too fast for the conditions. She did not at any point see a cyclist in front of the police car on Southgate Road, either travelling north or indeed south, but just before the accident she saw a cyclist come from her left-hand side out of Northchurch Road. When challenged as to why she hadn’t said that in terms in her first statement (although in fairness it had been included in an addendum statement dated 12 May 2010 to be found in the yellow bundle at page 255), she said that she couldn’t answer that, but it was probably because she assumed that that would not have been in doubt. She was adamant that a cyclist had, as she put it, shot out as if to cross the mini-roundabout from left to right, but when she saw the cyclist he was on the near side of Northchurch Road and had gone past the give way line.[46]PC Stanwyck was a rear driver’s side passenger in the police car. At the junction with Northchurch Road he felt the car swerve to the right and at the same time heard a banging and saw the flash of a bicycle. He couldn’t remember whether the car slowed down at the roundabout and so far as he could recall, there was no prior warning.[47]PC Basil was sitting in the rear passenger side. He was familiar with the route, but wasn’t paying much attention during the course of the journey. He did however recall entering the mini-roundabout and had been looking at the public house when he became aware of a cyclist heading towards the car, travelling from the direction of Northchurch Road, which he said seemed to be travelling at a quick pace. He was then aware of the police car swerving to the right and then a collision. In his oral evidence he said that it had all happened very quickly but that the bicycle came directly out of Northchurch Road and didn’t seem to be slowing down, and he did not notice it attempting to steer. It was at a 90 degree angle to the police car.

Discussion

[48]For the accident to have happened in the way contended for by the Claimant, the two police officers in the front of the police car in particular must have failed to detect the presence of the Claimant, even though he was dressed in high-visibility clothing and riding a bicycle with its lights illuminated, who was plainly there to be seen for several seconds prior to the impact. On the other hand, for the accident to have happened in the way contended for by the Defendant, the Claimant, who was only two weeks short of his sixtieth birthday and was by all accounts a careful and responsible cyclist, must have chosen to access the eastern part of Northchurch Road, apparently to make use of a bicycle-friendly route, by failing to stop at a mini-roundabout and instead, and without any regard for his own safety, to cross at speed into the path of an oncoming police car, which had both its blue lights and siren activated and had been so activated throughout its approach.[49]Is it likely that the Claimant would have been travelling down Northchurch Road that fateful night? To my mind it is not. It is plain from the evidence from Mr Dursi that the Claimant had sought directions from him to Farringdon Road, a road which the Claimant knew well from his time working for the Guardian newspaper. Moreover, it was Mrs MacLeod’s evidence that her husband’s normal route back home took him through Clerkenwell and past the canal, and that he would seek to avoid busy roads such as Essex Road and the A10, and it appears to have been common ground among those witnesses who knew the area, that Southgate Road was less busy than those alternative routes. Furthermore, to my mind Mrs MacLeod gave a very convincing explanation as to how she knew that the Claimant’s usual route home would have taken him along Southgate Road, namely that she recalled walking down Southgate Road with her husband, who had told her about one of the houses having roses at the front door, which when in flower were exactly the same colour as the door, and when she had asked him how he knew this he replied that he cycled past it on his way to work. The Claimant knew the route home, had specifically asked Mr Dursi for directions to get him onto that route and had no reason to deviate from it.[50]Moreover, there are two independent and reliable witnesses who support the Claimant’s case as to his route home that evening. Ben Edwards’ evidence was clear, coherent and compelling. He was adamant that the person he saw cycling up Southgate Road was the Claimant and his description of the bicycle was clear and vivid, and its accuracy not challenged in cross examination. Secondly, Julia Shepherd was less than a minute away from the accident site at the time. She had walked down the length of Northchurch Road and did not see a cyclist on Northchurch Road nor one turning from Cleveland Road, and yet the Claimant would have been very visible to her had he cycled past her. Again, her evidence was clear, coherent and to my mind utterly reliable. The combination of that evidence, if accepted which it is, places the Claimant on Southgate Road and excludes Northchurch Road as a possibility.[51]Both Julia Walton and Lisa Hutchings, it is fair to say, did not see the Claimant cycling along Southgate Road. However this is not, to my mind, surprising given that they were, initially at least, facing Northchurch Road until their attention was drawn by the sound of the approaching police car. Moreover, their view was restricted and their focus was very much on the approaching police car.[52]Georgia Knight, too, did not see a bicycle on Southgate Road and her evidence, like that of Julia Walton and Lisa Hutchings as to the direction of travel of the Claimant, was as she frankly admitted a presumption. Moreover, her perception of a 90 degree collision with the front wheel of the bicycle striking the side of the police car is on the agreed evidence of the experts plainly incorrect, having regard to the absence of any damage to the front wheel of the bicycle. Her view too was restricted by the trees to which I have already referred.[53]Mr Einsman’s evidence was clear and unequivocal that he didn’t see the Claimant in Southgate Road although he fairly conceded that his identification of what he thought at the time to be a cyclist in the shadows of Northchurch Road could have been a mistaken one. In my judgment it is highly unlikely that what he saw was the Claimant having regard to the fact that the Claimant was wearing high-visibility clothing and his bicycle lights were illuminated and its colour. It would also place the Claimant north of the junction ahead of the accident which does not fit with location of debris. More importantly however, he conceded that his attention was drawn to the rapidly approaching police car’s flashing lights and this might well have contributed to his not having seen the Claimant as he approached and passed him on the other side of Southgate Road.[54]Three of the four occupants of the police car gave evidence to the effect that they observed the Claimant coming out of Northchurch Road. However, they only saw the Claimant after they had entered the roundabout at significant speed and for a fraction of a second, and PC Burbeck’s evidence that the Claimant maintained a direct line and continued to pedal is inconsistent with the physical evidence and frankly cannot on any view be correct. To my mind, their perception as to the Claimant’s direction of travel is mistaken. Their accounts are also inconsistent with the Claimant either commencing a deliberate turn or undertaking some sort of emergency turn in a last desperate attempt to avoid the impending collision and with the physical evidence. Their initial statements were all written in the company of each other. To my mind therefore none of this evidence is sufficiently cogent to undermine the eyewitness evidence of Mr Edwards and Julia Shepherd.[55]To my mind the police car was quite simply travelling far too fast in poor lighting conditions and visibility and the driver simply failed to keep a proper lookout. Both PC Reilly and PC Burbeck plainly failed to observe Mr Einsman who was cycling with his lights on in the opposite direction, despite passing him shortly before entering the roundabout. It is highly likely that they equally simply failed to see the Claimant ahead of them. PC Reilly was intent on getting to the incident at Hackney as quickly as possible and his focus as he indicated in the course of his evidence was as to whether he retained a right of way to enable him to maintain his speed. The overwhelming likelihood is that there was simply too much to observe in the run up to the junction and as with Mr Einsman, PC Reilly and indeed PC Burbeck simply failed to see the Claimant until he was virtually on top of him.[56]There is nothing in the evidence of the experts to cast doubt on the conclusions which I have reached based on my assessment of the factual evidence and indeed much to support them.[57]Save for Mr Seston in the course of his oral evidence, there has never been any suggestion that the accident could have occurred with the front wheel of the bicycle being essentially turned as an emergency measure, as was proposed by counsel for the Defendant during the course of the trial.[58]Mr Keenan believes that the bicycle was at an acute angle, as otherwise the Claimant and the bicycle simply could not have ended up in the resting positions that they did. In the joint statement at paragraph 4.2 it was agreed that:- “4 The initial point of contact between the parties was between the right side handlebar of the pedal cycle with the upper section of the near side wing of the Vauxhall Astra which, due to the upward sloping nature of the wing towards the windscreen, has caused the handlebar to engage into the metal causing the groove that is seen in the supplied police photograph. This would have the effect of ‘jamming’ the handlebar against the bodywork and propelling the pedal cycle to the north. 5 The damage sustained to the front near side wing of the Vauxhall Astra and to the right side handlebar of the pedal cycle indicates that, at least, the front wheel and handlebars of the bicycle would have to be turned to a degree towards the north so as to allow the relatively shallow angle of engagement by the handlebars with the upper surface of the vehicle’s wing 6 Given the physical damage to the near side and to the roof-mounted light bar on the police car, following initial contact by the handlebar with the wing, Mr MacLeod has made contact with the near side door mirror housing causing the mirror assembly to be flattened inwards against the door and the outer cowling to become detached; part of his torso or perhaps his pelvis area has made contact with the rear near side passenger window causing it to shatter; and his upper body, shoulder and/or head has more likely than not made contact with the end of the roof-mounted light bar causing some damage to it 7 Given that Mr MacLeod is likely to have been seated astride the bicycle at the initial point of contact, and based on the likely engagement of the handlebar as set out above, the continued contacts along the side of the car as set out in the preceding sub-paragraph (6) would have occurred as both he and the bicycle were accelerated northwards” (see black bundle page 154 and 155)[59]PC Osbaldeston specifically stated in his report that all physical evidence was consistent with the Claimant riding up Southgate Road and that the bicycle was at an acute angle relative to the car, and that it was approached by the car from its rear and its right. PC Osbaldeston was a full time collision investigator who produced a report on 21 July 2010. A copy of that report is to be found in the yellow bundle at pages 315 ff. and his reconstruction is to be found at section 7 of that report on pages 325 ff. Police Sergeant Webb, a senior collision investigator, has produced two reports dated respectively 11 August 2010 and 26 February 2012, copies of which are to be found in the yellow bundle at pages 370 ff. and 381 ff. respectively. On his initial reading of the IDR material, he agreed with PC Osbaldeston’s opinion of the evidence and even in his subsequent report, when he changed his view as to the analysis of the IDR material, he maintained that he agreed that the contact between the police car and the Claimant’s bicycle would have been made at the angle as described by PC Osbaldeston (see paragraph 3.1.5 on page 385).[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.[62]What of the conflicting evidence as to the proper interpretation of the IDR data so far as braking is concerned? Mr Keenan in his report at figure 10 on page 82 in the black bundle reproduced an enlargement of the acceleration traces as the police car passed through the junction above a copy of a plan produced by PC Osbaldeston showing a turn at the top of the speed table and the impact with the Claimant and braking occurring shortly afterwards. The last impact was when the police car went over the dropped kerb ( at letter E in figure 10 )[63]Sergeant Webb, for his part, in his second report ( and contrary to his conclusions in his first report ) which begins at page 381 in the yellow bundle, concluded that the collision with the greatest transverse acceleration was at 29 seconds from the commencement of the trace ( Marked A in his Appendix 2 ) and must have related to the police car’s last impact which he says was when the offside tyres were punctured on the eastern kerb edge. Moving backwards in time he plotted at 26.7 seconds a disturbance in longitudinal and transverse acceleration traces during a steer to the right ( E in Appendix 2 at page 389) which he concluded was most likely to have occurred when the police car mounted the speed table with the right steering either being steering away from straight ahead or steering back to straight ahead from a prior steering left of the police car to enable it to pass the southern traffic island on the correct side.[64]To my mind, and notwithstanding that Sergeant Webb’s opinions have not been tested in cross-examination, Mr Keenan simply cannot be correct in his interpretation of the IDR data, the evidence being that ramps used in conjunction with speed tables used to trigger the IDR yet there is no recording at all on Mr Keenan’s interpretation. More importantly and crucially, the tyre marks that can clearly be seen in the photographs such as at 023 and 024 were plainly caused in the incident on the evidence of Mr Seston, which I accept, which renders it impossible for the police car to have gone down the dropped kerb at all so that manoeuvre could not have caused the trace at E in figure 10 and supports Sergeant Webb’s interpretation in his second report and, on the balance of probabilities, I conclude that that interpretation is to be preferred.[65]To my mind it is plain that PC Reilly did not apply the police car’s brakes in reaction to the speed table. Not only was that his evidence to the court but that has consistently been his evidence and he plainly did not regard the speed table as a hazard or as a reason for caution. Moreover, one of the reasons why he had two points imposed on his police permit was because he made no allowance for the table top traffic calming measure just prior to the junction and this was one of the criticisms which he accepted as justified in the course of his evidence.[66]The only other explanation is that he reacted to the presence of the Claimant but he could only have seen the Claimant if he had been cycling along Southgate Road. The Claimant would not have been visible to PC Reilly if he had been on Northchurch Road bearing in mind the evidence as to reaction/perception time to an unexpected event is approximately one second or slightly less and therefore the distance the police car would have been from the junction when PC Reilly decided to apply the brakes and the geography of the junction.[67]Moreover, if the Claimant was coming from Northchurch Road at speed and if he was to be placed in accordance with Sergeant Webb’s analysis of the IDR, that is to say 15.5 metres north of the southern speed table, he would have had to have begun his turning manoeuvre from a position on the right hand side of Northchurch Road. This would mean that the Claimant would have been cycling in the wrong lane. Not only would that be out of character for the Claimant but would represent a significant risk given the oncoming presence of the police car, and is inherently unlikely.[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.

Conclusion

[69]In my judgment, the evidence of Mr Edwards was reliable and compelling, and, taken with that of Julia Shepherd, leads me to conclude on the balance of probabilities that the Claimant was cycling northwards up Southgate Road in the period immediately prior to the collision. He was therefore there to be seen by PC Reilly, who was quite plainly driving contrary to the terms of the Defendant’s own Policy, and the manner of his driving plainly fell below an acceptable standard and he failed to drive with such care and skill as was reasonable in all the circumstances. His speed was high and consistent with a desire to get to the rendezvous point as his priority rather than safely. The reality is that he would have arrived at the rendezvous point within the expected response time if he had driven to the speed limit. But for the breach of duty the injury to the Claimant would not have occurred.[70]Moreover, in my judgment there can be no question of contributory negligence on the part of the Claimant. At the point where the Claimant was, the road had narrowed and he would have contravened the Highway Code had he ridden on the pavement. The responsibility was that of PC Reilly to pass the Claimant safely and the Claimant cannot be criticised for failing to take emergency measures to avoid the impact in the circumstances of this case and notwithstanding that the police car’s siren and blues and twos were activated. PC Reilly was driving at an excessive speed in circumstances where he could not bring his police car to a halt in time to avoid the accident and contrary to the terms of the Defendant’s Policy and the manner of his driving fell below an acceptable standard and was conducted without such care and skill as was reasonable in all the circumstances. The factual matrix is materially different to that in Keyse and the injuries to the Claimant result from the negligent driving of PC Reilly.[71]It follows in my judgment that the Defendant is liable for the accident.[72]I trust that the parties will be able to agree the terms of an order that reflects the substance of this judgment.