Rickson v Bhakar [2017] EWHC 264 (QB)

[2017] EWHC 264 (QB)Case No TLQ/16/0932
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/02/2017
Before
THE HONOURABLE MR JUSTICE BLAKE
Between
ROBERT MATHEW RICKSONClaimantNIROUR BHAKARDefendant
Grahame Aldous QC and Richard Wilkinson (instructed by Dean Wilson LLP) for ClaimantDerek O’Sullivan QC (instructed by DAC Beachcroft) for Defendant.Hearing Hearing dates: 7 th, 8 th February 2017
Judgment ApprovedThe Honourable Mr Justice Blake :
[1]On Sunday 26 August 2012 shortly before 7.30 am the claimant Mr Rob Rickson was taking part in a cycling time trial on the west bound carriageway of the A27 dual carriageway when he collided with the rear of a white van being driven by the defendant Mr Bhakar. The collision caused catastrophic and life changing spinal injuries leaving him paralysed. Mr Bhakar had been travelling on the eastbound carriageway and he was engaged in making a right turn into Yapton Lane at a designated gap in the dual carriageway. He thought he was safe to make a turn and there were no oncoming vehicles approaching. He was wrong about that and in due course he was convicted of an offence of driving without due care and attention in the Magistrates’ Court. He has admitted negligence.[2]The issue at this trial is whether the defendant has proved that there was contributory negligence on the part of the claimant. The defendant contends that this can be established on the following basis: i) The race was conducted on a clear day in dry conditions with good visibility on the westbound carriageway. ii) The Yapton Lane junction was at the top of an incline that gave approaching road users some 200 to 300 metres observation of whether there were potential hazards at the junction. iii) There were two carriageways of 3.5 metres each continuing westwards (as Mr Rickson was going to do) and a left turn lane south into Yapton Lane. The location of the impact was somewhere between the centre of the nearside lane (Lane 1) and the centre line between Lane 1 and Lane 2. iv) The defendant’s van was 5.4 metres in length and the claimant’s cycle made contact with the van on and over the rear wheel a metre from the end of the van. v) It would have taken approximately four seconds for the van to have moved across the carriageway at a speed of about 10 MPH. vi) The claimant’s cycle was travelling at between 20 to 25 MPH. At that speed and in those conditions the claimant would be approximately 40 metres away when the van first started to move across the junction. vii) 40 metres of distance and 4 seconds potential notice of the van crossing the carriageway gave the claimant ample opportunity to apply his brakes and slow down, if he was keeping reasonable observation of the road ahead. viii) The force of the impact was such that both experts agreed that there was no difference between the travelling speed at the time when the van crossed the road and the impact speed ix) The claimant may have swerved within Lane 1 of the westbound carriageway from near the outer nearside edge of that lane to the point of impact but that action was too little too late. Even a fractional reduction in speed would have resulted in a collision being avoided. x) The only reasonable inference to be drawn on the balance of probabilities from the failure to brake was that the claimant was not keeping a sufficient look out at the road ahead for one reason or another. xi) In the circumstances of the known risks to cyclists engaging in a road race on this dual carriageway, a failure to keep a sufficient lookout for potential hazards and to apply the brakes during a period of approximately four seconds was negligence that contributed to the accident.[3]The claimant disputes that he was guilty of contributory negligence although understandably has no recollection of either the impact or his thoughts and actions in the moments leading up to it. He was an experienced cyclist who had undertaken time trials on the A 27 before, was aware of the general need to be alert to the risks of motorists creating dangers for cyclists, and the particular and need to be alert at this particular junction where cars both crossed over from the east bound carriageway and joined the westbound carriage from Yapton Lane.[4]It is contended on his behalf:- i) There are too many variable factors about the speed of the defendant’s van, precisely how many metres it travelled when it crossed the westbound carriageway, the precise location of the impact and the angle of impact for the court to be able to draw the conclusion that the claimant would have had four seconds to react to the hazard and respond. ii) Even if there might have been four seconds available, this was an ‘agony of the moment’ case where the claimant’s choice of action, swerving to avoid the collision, as opposed to applying his brakes cannot be criticised as unreasonable. iii) There is an insufficient factual foundation for the court to be able to draw the inference that the claimant failed to keep an adequate lookout to be able to detect and observe potential hazards.[5]I heard from the defendant; his father who was following him in another van; PC Volant, the officer who first attended the scene and found the claimant in the road, the claimant; Julia Hammond, another cyclist who was participating in the road trial shortly behind Mr Rickson; Dr Elliot who gave first aid to the claimant; Mr Maguire one of the organisers of the time trial, and two experts in road traffic issues: Dr Walsh for the defendant and Dr Chinn for the claimant. I was satisfied that each was doing their best to assist in the recollection of what happened.[6]The only eye witness to the impact was a Mr Richards who was riding his motorcycle along the west bound carriageway that morning. He made a statement on 18 November 2012 admitted as hearsay evidence in which he said:
“I would describe the road conditions as perfect they were dry, remarkably in good condition, bright sunshine from behind me as I was travelling along I could see my shadow in front of me. The skies were clear and it was ideal conditions for my journey. I would describe the sun as dangerously low for on- coming traffic any vehicle heading east it may (have) cause(d) them some problems. As I travelled west bound I could see a large white van in the slip road to turn right across the westbound carriageway, the van was highlighted due to the bright sunshine. I would say that he was turning right due to this position in the road; I first saw this vehicle approaching the said junction from an approximate distance of about half a mile, at this point I decided to pull into lane 2 to be able to go around him if he pulled across. I saw the van approach the junction and stop at the junction for an estimated 4 seconds before he turned right across my carriageway, at this point I did not notice any cyclist and my main priority was the white van and my safety and looking ahead. I would estimate that I was about 2-300 metres from the van when it started to turn right across the two lanes of the westbound carriageway. I felt safe and I was not compromised. As I continued my journey I still did not notice the cyclist I saw the van (stop) I saw the van pull across the centre white line, that is too say he had cleared lane 2, I can say the whole vehicle had cleared the lane, I was just about to open up the throttle to pass the van when I heard a crack and crunch it sound like bone breaking, and the cycle slid down the passengers’ side of the van just behind the passenger door towards the back. I would say the position of the van was that it had its front wheels were over the lines into the junction on the left hand side the way it was heading and there quarter of the van was still in lane 1.”
[7]He estimated that the van was travelling at between 10 to 15 MPH as it crossed the motorway. After the collision the van continued to go forward to a distance of about a van length.[8]Ms Hammond observed the white van before it made its journey across the carriageway and saw its manner of crossing but did not see the impact. She was cycling in the time trial behind Mr Rickson about a minute behind him but was slowly gaining on him. He was travelling no more than 24 MPH. Her bicycle had a speedometer that she could check her time with. She described the incline up to the junction as a rise coming up the rise she was doing 24-25 MPH but started to fall off at the top but aimed to maintain a speed of 20 to 21 MPH. She saw the white van cross the carriageway about 200-300 away. When she made her police statement on 4 September 2012 she gave an estimate that the van was travelling about 20 MPH. She said the van was ‘not fast in my opinion and there were no sudden movements from the van. It did not seem like a rushed exit’. In cross-examinations she accepted that description of the van’s movement was accurate and she could not give an accurate estimate of the van’s movement and could not give an accurate estimate of its speed. She had expected the van to cross the junction safely by the time she got there. She was overtaken by a tandem cyclist shortly before the accident. She gave evidence about the ‘head down’ position used by cyclists in road races, what she meant by references to her head down in her police statement, and the safety implications of not keeping a look out on the road ahead.[9]A number of issues have narrowed and been clarified in the course of the hearing. At one point there was a disagreement between the experts as to the speed that Mr Rickson was travelling: Dr Walsh estimated 18 MPH on the basis that he may have been ‘plateauing’ to conserve his energy for the final spring, and Dr Chinn thought a speed of up to 30 MPH was possible as a strong cyclist approached the race finish on a modest incline. Both of the extremes can be discarded in the light of Ms Hammond’s evidence of speed that was agreed by Mr Rickson. He accepted that he would have been travelling in the low 20’s as he came to the top of the incline. His Cat-eye cycling computer showed that he had travelled 16.9 miles with a mean speed of 22 MPH and a maximum speed of 33.4 MPH. I am satisfied that Mr Rickson was travelling at 22-23 MPH and below 25 MPH shortly before the accident..[10]It is probable from what Mr Richards mentioned in his witness statement and Mr Bhakar told police when interviewed on 8 October 2012 that the low sun would have an impact on the view of a driver looking east to check if the road was clear, but it was unnecessary to explore expert evidence on this. The defence accepted that whatever the difficulty careful observation should have resulted in other road users being seen, but Mr Bhakar had apparently not seen Mr Richard’s motorbike, the tandem, or the cycles of Mr Rickson or Mr Hammond. He also indicated in cross examination that he had not seen the race marshals or cycling event signs that had been posted at roundabouts he had passed before reaching the junction.[11]Of the outstanding disagreements between the experts relevant to the issues in paragraph 2 above; the most significant were: i) The place on the van where the impact with the cycle had hit: Dr Chinn believed it might have been 50 cms further forward from the point Dr Walsh identified. ii) The angle at which the cycle had hit the van: Both experts were agreed that it was not a 90 degree contact Dr Walsh favoured 40 to 60 degrees and Dr Chinn 30 to degrees. An impact at an angle was consistent either with the van having moved across the carriageway into Yapton Lane at an angle or Mr Rickson having steered his bicycle towards the centre of the carriageway shortly before impact, or both. iii) The place on the highway where the impact had taken place: Dr Chinn preferring the dividing line between Lanes 1 and 2 rather than in the middle of Lane 1. iv) The speed of the van as it crossed the junction and whether it had moved 10 or 7.7 metres at the time of the impact: apart from estimates about acceleration rates from a stationary position at the junction (if this was indeed the case), both experts had sought to test their opinions by video recordings of vehicles crossing the junction. Dr Walsh had attended the scene at the anniversary of the same race at the same time of day in August 2015. He was principally there to record the position of cyclists as they came up the incline to the junction, but happened to record a white van of very similar dimensions to the defendant’s van (although with an extra metre in length beyond the rear axle). This van made the same journey from turning point in the central reservation to the other side of the junction in just over four seconds. He thought that gave confidence to his estimate of acceleration rate and a time of 3.9 seconds to cross, with a range of 3 to 5 seconds. Dr Chinn attended the scene on 17 January 2017 around 1.00pm when he recorded a number of vehicles crossing the junction in 2 seconds.[12]I am satisfied that Dr Walsh’s opinion is to be preferred on the first of these issues. He had the advantage over Dr Chinn of having examined the defendant’s van in 2012. He had found not only evidence of rubber markings along the side of the van starting just above the rear nearside wheel arch (likely to have been caused by the handlebars), but also a cleaning or scuff mark on the wheel itself that was consistent with impact from a cycle tyre. In his view, these marks together made ‘compelling evidence’ pointing to the point of impact as was the absence of any indentation or other marks where a bicycle wheel could have hit the van. Dr Chinn explained in evidence that there were other possibilities based on his examination of the damage to the bicycle. In my judgment, the other possibilities were speculative by contrast to the probability established by the evidence identified by Dr Walsh.[13]I am equally satisfied to the civil standard that the point of impact on the highway was at least a metre to the nearside of the white line dividing Lanes One and Two. This follows if the whole van had cleared Lane Two (as Mr Richards had estimated), and the point of impact was a metre from the end of the van (as I have concluded). No reason was suggested why Mr Richard’s estimate may not be reliable. In my judgment, he would have been particularly anxious to note the position of the van with respect to Lane Two into which he had moved when he first saw the van start to cross the dual carriageway.[14]These two conclusions further suggest that whatever the precise trajectory of the van from the turning point in the central reservation to the Yapton Lane junction, if a van of 5.4 metres had completely crossed a Lane of 3.5 metres, it would have travelled at least 9 metres, and Dr Walsh’s estimate of distance is more likely to be accurate than that of Dr Chinn.[15]This leaves the critical question of the speed of the van. A good starting point is Mr Richard’s estimate of 10 to 15 MPH, as he appears to me to have been a percipient observer as he approached on his motorcycle at 60 MPH. For what it is worth the defendant estimated his speed was 5 MPH when interviewed by the police in October 2012. He was not cross examined on the passage of his witness statement for this trial when he said that he got up to a speed of 10 MPH by the time of impact and had changed gears from first into second. Whatever speed he reached, it appeared to Ms Hammond not to be travelling fast and it made no sudden movement. I am satisfied the van did come to a complete stop before making the turn and it if did not make a sudden dash across the carriageway, there would be a significant limit to the speed it could reach after nine or ten metres.[16]The defendant agreed in cross-examination that he would want to cross the carriageway with care and as fast as he could to get out of harm’s way. However, I accept the defence point that the road conditions as the defendant understood them to be just before 7.30 on Sunday 26 August were markedly different from those photographed by Dr Chinn around 1.00pm on 17 January 2017. The A 27 can be a very busy road, and if traffic is heavy, cars need to move fast across the carriageway in the gaps between oncoming traffic. If no traffic is perceived to be oncoming, such a consideration would not apply, and a traverse of the carriageway in the early morning when there were no oncoming cars would be more likely to mirror the speed and the time of the traverse of the van recorded at the appropriate time of day by Dr Walsh.[17]I am satisfied from all the evidence that Dr. Walsh’s estimate of 10 MPH is on balance more likely to be accurate than the higher speeds suggested by Dr Chinn. Nothing turns on the fact that the defendant personally has not given his time estimate of the trajectory. It was hardly a relevant issue when facing his prosecution, and an estimate given now would be unlikely to carry any weight. By contrast, there is a body of evidence independent of the defendant, as to the manner and speed of his crossing; if there is a reliable estimate of speed and the distance travelled can be identified, the passage of time has been accurately calculated by Dr Walsh at around 4 seconds.[18]Having been satisfied of these conclusions of primary fact, I turn to consider whether they resulted in the claimant having had a fair opportunity to observe the defendant’s van when it first made its way forward from the turning area adjacent to Lane 2. In my judgment, that is the moment when the potential hazard presented by a stationary van waiting to make a turn became a hazard to approaching road users. This was what was observed by both Mr Richards and Ms Hammond.[19]Dr Walsh’s original calculation of the distance that the claimant would have been at this moment were based on a cycle speed of 18.5 MPH. That is now recognised to be too slow in the light of the evidence at trial. He was able to recalculate distance whilst in the course of his evidence as follows: at 22 MPH: 31 to 45 metres; at 24 MPH 34-49 metres. What was more important than distance was the time available to react.[20]Dr Walsh identified reaction time of 1 to 2 seconds when a hazard has been noted with 1.5 seconds taken as the average reaction time for ordinary road users in normal circumstances. He identified a range of deceleration rates at between 0.35 to 0.5g for both brakes on a sports bicycle of the kind that the claimant was using.[21]Appended to the joint statement of November 2016 are some revised tables provided by Dr Chinn, who by then had accepted that a cycle speed of 30 MPH was too high. He was using a distance of 7.7 metres for the progression of the van across the carriageway and made the measurement when the front of the van reached the nearside boundary to Lane One, whereas for the reasons previously noted I am satisfied that the relevant van distance was a little longer. Nevertheless at a cycle speed of 25 MPH (a little higher than I have found to be the actual speed) and a van speed of 10 MPH with the bike decelerating at 0.4g and a reaction time of 1.5 seconds the following data is obtained: Reaction distance: 16.8 metres Braking distance: 16.0 Stopping distance: 32.8 Distance to impact 38.8 metres.[22]Dr Walsh’s comment on these figures is informative. Not only would the cyclist have been able to come to a complete halt before the point of impact, if the process of making reaction (as per Dr Chinn’s table) had started some 38 metres away, but if there had been any braking at all by the claimant, the delay to his arrival at the impact site would have meant that the van would completed its passage over Lane 1 in the intervening period. A vehicle traveling at 10 MPH would move 4.5 metres a second. Here the experts were agreed that the claimant had not decelerated from the approach speed but had swerved from his position on the nearside edge of Lane One (perhaps 40 cms from the edge) to the impact point that I have concluded was about one metre from the offside edge of the lane. It would have taken a fraction of a second for the van to have passed on the further metre and avoided contact.[23]I am, therefore, satisfied that there was both an opportunity afforded to a reasonable cyclist keeping a look out on the road ahead and that if such opportunity had been taken, the collision would have been avoided, either because the cyclist could have effected a complete halt or because even slight deceleration would have enabled the van to pass over without impact.[24]The claimant was an experienced cyclist who had performed time trials on this road on two previous occasions. He was aware of the position of this junction and the hazard that it presented to cyclists. He was familiar with the advice leaflet handed out to participants and the safety instructions directed to beginners and others that included:
“i) a cyclist is less likely to be seen than a car by a driver of vehicles. You need to remember this when approaching any road junction…. ii) head down riding is another major hazard as the rider will not see an obstacle on the road…it is no good saying ‘the car should not be there. The answer to that is ‘You should have seen it’…. iii) Any road junction or roundabout can constitute a hazard in a race. Competitors are travelling much faster than motorists are used to seeing cyclists moving and may make an error of judgment. Be ready for it. Slip roads joining and leaving dual carriageways and other major roads are places where care is particularly necessary.”
[25]The claimant’s time trial bicycle was equipped with conventional handle bars and tri bars on which elbows can be rested during periods of speed where it is not necessary to rise in the saddle to generate energy to climb. The brakes were attached to the handlebars and the gear shifts to the tri-bars. There was also an on board computer that enabled the cyclist to view current speed, average speed, time and distance. The claimant wore an aerodynamically designed helmet with a point at the back.[26]The most aerodynamically efficient position was for the cyclist to crouch forward almost parallel with the horizontal bar of the cycle frame, keep the chin up for observation and the air flowing over the helmet onto the back and shoulders. This position although efficient could be uncomfortable to maintain over a long time. The race had lasted about 47 minutes at the time of the accident. In his witness statement the claimant indicates that he would not have allowed his head to drop down during the race as it was aerodynamically inefficient as well as unsafe as taking attention off the road ahead. Despite these recognised disadvantages, Dr Walsh had unobtrusively filmed competitors in the 2015 running of this race riding up the incline before the impact site, and some 25% had dipped their heads down in the position advised against.[27]The evidence from the claimant and others was that the hands could move in an instance from the tri-bars to the handle bars where brakes could be applied. The claimant said that in the event of an emergency he would apply his back brakes first. It is recognised that too rapid a deceleration can cause the bicycle to topple over. It is not advisable to both undertake a sharp turn and brake at the same time.[28]In summary, an experienced cyclist was approaching a potential hazard presented by a clearly identified junction, with a long clear view of the same. He knew the road and was aware of the potential hazard such a junction might pose. I can see no reason why if the claimant was maintaining a forward look out on approaching the junction he would not have seen the white van waiting for a few seconds to make the turn across the carriageway and then starting to move across at a slow and steady pace. I can also see no reason why if he had made such observations he would not have decelerated by braking. There is no reason to consider that his attention needed to be directed elsewhere. It may be that the presence of a motorbike or an overtaking tandem would have deterred a change of lane or position within the lane, but that would not deter braking.[29]It is not the defence case that the claimant needed to have kept his eyes constantly ahead for the whole of the approach to the junction, although if he had been alerted to a potential hazard I would anticipate that he would have done so until the hazard had been negotiated.[30]In the absence of any evidence about how the claimant was riding at the time, where his head was or what he saw and when, it is not possible to reach any conclusion as to whether he let his head down or became too absorbed in reading his time computer or the position of fellow competitors. Despite his evidence of best practice, I conclude that none of these options can be discounted as possibilities. I am satisfied that there was an effective opportunity to observe the defendant’s van before he crossed and after he started to cross and to react and respond by applying at least the rear brake to achieve deceleration, albeit that this opportunity was measured in seconds. I am equally satisfied that the claimant did not take this opportunity to decelerate.[31]Was the claimant guilty of negligence in failing to take this opportunity? It is submitted on his behalf that this was an agony of the moment case and the court cannot conclude that a swerve rather than a of the brake was negligent. Reliance is placed on Dr Walsh’s concession that in an emergency situation the forcefulness or the brake and the decision whether to brake or swerve was for the judgment of the cyclist. I accept that a person placed in a situation of responding to a danger created by another cannot be considered guilty of negligence merely because one of two available options turns out to be less effective. It is only if the court can infer on balance of probabilities that the only reasonable option in response to the circumstances of which the claimant either was or should have been aware was to brake, that a finding of contributory negligence could be made. My view of the swerve undertaken was that it was very much a last minute reaction, when the opportunity had not been taken to apply the brakes earlier.[32]I have every sympathy for the claimant both for the peril in which he was placed by the defendant’s driving and the catastrophic consequences of the injuries suffered as a result of the collision. I have carefully reviewed the evidence of fact and opinion and the respective submissions made on it, but I am driven to the conclusion that the failure to either observe or react when the opportunity was there to do both was in all the particular circumstances of this case culpable and constituted contributory negligence.[33]I recognise at once that his culpability was very much less than the defendant. He did not create the hazard; he failed to observe or to make a reasonable response it when he had time and/or space to do so or to make a reasonable response to it when. The defendant was able to make his turn at his leisure and had ample opportunity to keep a watch on the road and observe all traffic including cyclists. It is surprising that he failed to have noticed the signs and monitors on the way to the junction or apparently any of the cycles and motor-cycles coming his way. Any cyclist is peculiarly vulnerable to being hit by a car and a cyclist in a time trial is particularly vulnerable when sharing the road with a motor vehicle.[34]I must assess the degree of contribution in the round reaching a conclusion that I consider that is just and equitable in all the circumstances. In my judgment a figure of 20 per cent contribution is appropriate in the circumstances outlined above.[35]The defendant therefore succeeds in this trial to the extent of a finding of 20% contributory negligence.