Motorcyclist fails in High Court appeal over dismissal of claim against London borough

The High Court has rejected all grounds argued by a motorcyclist who claimed he had been injured in an accident because the London Borough of Lewisham failed to provide adequate warning of a build-out that partly obstructed a road junction.

The claimant appealed against an order made by HHJ Saggerson dismissing his personal injury action.

Mr Justice Cotter heard that the claimant was riding his motorcycle at night when he made a right turn into Leyland Road, where he rode into an extended area of footway/kerb 75mm high controlling the entry into the road.

Lewisham had built this to halve the access width of Leyland Road at its junction with the busier Dorville Road as a traffic management measure.

The claimant did not see the build-out until he was about to collide with it and argued it was a dangerous hazard and so Lewisham was liable for his accident.

The council denied liability on the basis that the build-out was not a hazard of sufficient seriousness and/or there was sufficient mitigation in place.

It said the accident was entirely the claimant’s fault as he had been riding too fast and not paying adequate attention to his surroundings.

Cotter J said the claimant now argued that HHJ Saggerson arrived at a conclusion not properly open to him.

He said the judge should have found in his favour as Lewisham had created a danger for motorcyclists approaching the junction at night who were not familiar with it, and that his injuries and losses flowed from the council’s negligence and failure to maintain the junction pursuant to s41 of the Highways Act 1980.

The claimant’s grounds of appeal were:

HHJ Saggerson fell into error when applying his factual findings to the legal matrix;

• he fell into error in failing to consider whether the build-out was a real source of danger to less than reasonably careful motorcyclists and other road users;
• he was wrong not to have found that there had been a breach of the duty under section 41 of the Highways Act 1980 to maintain the Highway;
• he was wrong to find the build-out was ‘there to be seen’;
• he was wrong to find that exceeding the speed limit by up to 5mph at the time of the collision extinguished all liability given that any duty of care is owed to the less careful driver as well as careful highway users;
• he was wrong not to find that the changed layout post-accident equated to a decision/tacit acknowledgement that the layout which pertained at the time of the accident was a hazardous danger and a trap;
• his contributory negligence findings were unbalanced and unfair in determining that the preponderance of the negligence was on the claimant’s part.

Cotter J rejected all these arguments. He said contending that HHJ Saggerson fell into error because of the position of a lit one-way sign to only one side of the junction “has the clear and obvious difficulty…that there was no finding that the appellant was in any way misled by its existence”.

He continued: “In my view the judge clearly, and carefully, weighed up the relevant factors and the conclusion reached was plainly one that was open to him.

"The question to be addressed was not whether the junction could have been made safer…rather whether the build-out was a real source of danger at the time.

“In my view the judge was fully entitled to reach the view that it was not. He weighed up all the relevant material factors and there was nothing plainly wrong about his analysis.”

He said the claimant “cannot identify any fundamental error in the judge's approach and simply disagrees with the conclusion”.

Cotter J said HHJ Saggerson had adequately considered whether the build-out was a real source of danger to less than reasonably careful motorcyclists and other road users.

He said that if a highway authority had to take into account a lack of care by a less than careful road user “it would mean that it would be very difficult to construct very many traffic calming measures”.

On the alleged breach of s41 he said the claimant had been unable to point to any authority “to support the proposition that a failure to re-paint a white line at a junction mouth constituted a failure to maintain for the purposes of section 41”.

Turning to the claimant’s objection to HHJ Saggerson’s finding that the build-out was ‘there to be seen’, Cotter J said: “I struggled to understand this ground and specifically whether it was an attack on the judge's finding of fact, or not, or an extension or repeat of ground 1…

“In any event it is plain that put in context the finding was that the build-out was ‘there to be seen’ (as there was a reasonable opportunity afforded to someone approaching the turn) as opposed to somehow being disguised/concealed/obscured (e.g. a road sign may not be there to be seen if a road users' view is blocked by foliage).

"It was an wholly unobjectionable finding. In so far as the argument is that the Judge was wrong to not to have found that the build-out was ‘disguised' it is devoid of merit. There was no element of disguise at all.”

Cotter J also dismissed objections to HHJ Saggerson’s findings on the claimant’s speed, the irrelevance of Lewisham’s later changes to the junction and contributory negligence.

Mark Smulian