Sousa v A & J Bull Ltd & Anor

Negligence requires proof that the defendant’s breach caused the claimant’s injury. A motorist may have to anticipate that other road users will behave foolishly, but that principle does not impose liability where the defendant’s driving is not shown to have caused the accident. Where causation depends on a technical matter, such as turbulence generated by a heavy vehicle, the court must have evidence capable of supporting the inference. It is not permissible to assume the relevant technical effect. In an accident involving a cyclist who loses control while a lorry overtakes in an adjacent lane, the claimant must establish both a failure to exercise reasonable care and a causal connection between that failure and the loss of control.

The claimant was seriously injured when the bicycle on which he was travelling lost control while being overtaken by a heavy goods vehicle. His leg was amputated above the knee. The bicycle was carrying a passenger on its cross-bar, and evidence indicated that it was already wobbling before the lorry passed.

A deputy High Court judge found the lorry driver negligent, treated the claimant as 30 per cent responsible, and assessed damages on a 70 per cent basis. The defendants appealed against liability, contributory negligence and quantum. The central issue was whether the evidence justified finding that the driver’s manner of overtaking caused the bicycle to lose control.

1. Appeal allowed unanimously. Keene LJ gave the first judgment, with Thorpe LJ and the President agreeing. The order below was set aside. The appeals on contributory negligence and quantum therefore did not arise.
2. The accident was not a conventional collision between a motor vehicle and a bicycle. The bicycle toppled while the lorry was partly past it, and the critical question was what caused the loss of control.
3. The trial judge’s finding that the lorry’s proximity, probably through turbulence, caused the accident lacked an adequate evidential basis. The claimant’s evidence was speculative, the cyclist who was steering had not attributed the loss of control to the lorry, and no expert evidence addressed whether a lorry travelling at about 25 miles per hour would create significant turbulence.
4. A judge cannot assume a technical matter of this kind. Evidence was also available that the bicycle was wobbling independently of the lorry. That evidence had not been properly addressed.
5. Although motorists must anticipate a certain degree of folly by other road users, as recognised in London Passenger Transport Board v Upson [1949] AC 155, negligence still requires proof that the defendant’s act or omission caused the injury. The lorry was travelling in the outer lane while the bicycle had the whole of the nearside lane available, and the court was not satisfied that the driver fell below the standard of a reasonably competent motorist.
6. Costs were awarded to the defendants below and on appeal. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) [2001] EWCA Civ 1039: appeal allowed with costs; the deputy High Court judge’s order was set aside.
• High Court of Justice, Queen’s Bench Division: the defendants were held liable in negligence, with the claimant 30 per cent responsible and damages assessed on a 70 per cent basis.