Clenshaw v Tanner & Ors

A cyclist and a motorist may each be responsible for a collision where the motorist turns across a cycle lane without checking again, but the cyclist fails to keep a proper lookout. An appellate court will not disturb an apportionment absent an error of principle. Housing benefit may be deducted from damages for loss of earnings where the benefit meets expenditure which the claimant would otherwise have paid from earnings. The general rule that receipts arising from an injury are ordinarily taken into account applies, subject to a sufficient correlation between the benefit and the loss. The absence of housing benefit from the statutory recovery scheme does not establish an entitlement to double recovery.

The claimant was seriously injured when his bicycle collided with a breakdown lorry turning left across a dedicated cycle lane into a petrol station. The trial judge found both parties at fault and apportioned liability equally. He also discounted the claimant’s past and future loss-of-earnings claims to reflect his pre-existing psychiatric and alcohol-related difficulties, and deducted 70 per cent of housing benefit received after the accident.

The claimant appealed on liability and quantum. The central issues were whether the liability apportionment and earnings discounts disclosed any appealable error, whether a point about post-accident earning capacity had been raised below, and whether housing benefit was deductible from loss-of-earnings damages.

1. Appeal dismissed. The claimant’s liability was properly assessed at 50 per cent. The trial judge was entitled to find that the lorry driver had signalled and slowed before turning, but had failed to check again before crossing the cycle lane. The claimant had failed to keep a proper lookout and had not seen either the signal or the lorry turning. The cyclist’s vulnerability and use of a dedicated cycle lane did not relieve him of the need to take reasonable care for his own safety.
2. The apportionment involved no error of principle. The trial judge was entitled to assess the parties as equally responsible, and the appellate court would not interfere with that assessment.
3. The discounts applied to past and future loss of earnings were supported by the claimant’s deteriorating work and health history and the psychiatric evidence. They could not be faulted on appeal.
4. A complaint that the trial judge had failed to discount post-accident earning capacity for periods of absence was not raised at trial. The parties had agreed the calculations and embodied them in a draft minute of order. The claimant could not raise the point for the first time on appeal.
5. Housing benefit was properly deducted from loss-of-earnings damages. Following Hodgson v Trapp [1989] AC 807, receipts arising in consequence of the injury are prima facie taken into account, provided there is a correlation between the benefit and the loss claimed. Housing benefit met accommodation expenditure which the claimant would otherwise have met from earnings. The absence of an express statutory direction to disregard it meant that allowing recovery of the earnings loss in full would produce overcompensation.
6. The fact that housing benefit was not included in the statutory recovery scheme did not show that Parliament intended double recovery. The appeal was dismissed with costs, subject to detailed assessment and the matters recorded in the draft minute.

• Court of Appeal (Civil Division): Appeal from the judgment of Mr Justice Silber in the Queen’s Bench Division dismissed.
• High Court, Queen’s Bench Division: Judgment for the claimant in the sum of £74,661.25, with the claimant assessed as 50 per cent responsible for the accident.