Burridge v Airwork Ltd

Contributory negligence is not established merely because a cyclist could foresee, in a general sense, that a driver might open the door of a stationary vehicle. The defendant must prove particular facts showing that the cyclist failed to take ordinary care for his own safety and that the failure contributed to the accident. The standard of care must not become a counsel of perfection. Moving into or near fast traffic, or stopping, may be unreasonable where there is no specific warning of an opening door. Where a trial judge’s reasons are inadequate but the appellate court is in as good a position to decide the issue, it may determine the issue itself. The appeal was dismissed.

The claimant, a cyclist, suffered serious injuries in Muscat when he collided with the driver’s off-side door as a minibus stopped on a hard shoulder. He fell into the carriageway and was struck by another vehicle. The trial judge found the minibus driver negligent and rejected contributory negligence.

The defendants appealed only on contributory negligence, arguing that the claimant should have anticipated the door opening and should have moved towards the carriageway or stopped. The trial judge’s original and amplified reasons did not adequately address that central issue. The Court of Appeal therefore considered whether the claimant had failed to take reasonable care for his own safety.

Appeal dismissed. May LJ delivered the first judgment, and Pill LJ agreed.

1. The trial judge’s reasons did not adequately address the central issue: whether a reasonably careful cyclist should have anticipated that the driver of the stationary minibus might open the door without checking. Findings that the minibus driver was wholly to blame did not themselves determine whether the claimant was contributorily negligent.
2. The Court of Appeal was in as good a position as the trial judge to decide the issue on the evidence. A retrial was unnecessary. The existence of an opportunity to take evasive action did not itself establish fault.
3. The governing test requires the defendant to prove both a failure by the claimant to take ordinary care for his own safety and a causal contribution by that failure. The formulation in Lewis v Denye [1939] 1 KB 540 at 554 was applied. The court also applied the approach in London Passenger Transport Board v Upson [1949] AC 155 at 173: road users need not anticipate every form of folly, but must have regard to the common forms of danger taught by experience.
4. The road was a busy dual carriageway with fast-moving traffic. Moving towards the carriageway could itself create a serious hazard. Stopping was not a practical requirement on the evidence, which showed no more than the general possibility that a driver might open the door. The mere fact that the minibus had stopped and that the claimant was overtaking it did not show a failure to take ordinary care. The defendants had not established particular facts indicating fault.

The appellants were ordered to pay the respondent’s costs, assessed at £24,917.25 including VAT.

• Court of Appeal (Civil Division): The appeal against the finding that the claimant was not contributorily negligent was dismissed. The court decided the issue itself because it was in as good a position as the trial court.
• Manchester County Court: Mr Recorder David Williams, on 11 August 2003, found the minibus driver negligent and rejected the defence of contributory negligence after a liability-only trial.