McGeer v McIntosh

A driver of a large goods vehicle making a left turn must make the mirror observations reasonably required by the circumstances. Where the vehicle’s road position may mislead a following cyclist, the driver may be required to make a further nearside mirror check immediately before turning. That requirement does not impose a duty to keep constant watch on the mirrors.

A cyclist who sees, or should see, a vehicle straddling lanes cannot safely assume its intended direction and undertake it at speed without being able to stop. On appeal, an apportionment for contributory negligence will stand unless the judge made an identifiable error or adopted an assessment outside the range reasonably open to the court.

The claimant suffered severe injuries when her pedal cycle collided with the defendant’s articulated HGV as it turned left at a junction. The HGV had stopped while straddling two lanes. The claimant then travelled along its nearside and across its front.

HHJ Raynor QC, sitting in the High Court, found the defendant negligent for inadequate nearside mirror observations before moving off and for failing to check again immediately before turning. The judge also found the claimant contributorily negligent and awarded 70% of her damages.

The defendant appealed the findings on visibility, the need for a further mirror check, and the 30% apportionment against the claimant.

1. Appeal dismissed. Treacy LJ gave the judgment, with which Christopher Clarke LJ and David Richards LJ agreed. The appeal raised no issue of law or precedent of general significance.
2. The trial judge was entitled to find, on the totality of the evidence, that the maximum period from the HGV moving off to impact was eight seconds. The finding permissibly relied on CCTV evidence and reconstructions. The alternative analysis based on estimated vehicle speeds involved uncertainty and did not establish that the claimant had been invisible when the HGV moved off.
3. The defendant had not made reasonably careful nearside mirror observations before moving off. On the findings, the claimant would have been visible for about three seconds before the vehicle started. Further, reasonable care required a further nearside mirror check immediately before the left turn. The road configuration could suggest to a cyclist that the HGV was moving right, the driver could not know that his indicators were visible, and undertaking-cyclist/HGV collisions were a known risk. This was not a requirement to keep a constant watch on the mirrors.
4. The claimant was also contributorily negligent. She saw, or should have seen, the HGV straddling two lanes and could not safely assume that it would go straight ahead or turn right. By continuing at speed without being able to stop and undertaking the HGV, she failed to heed rule 73 of the Highway Code.
5. Applying section 1(1) of the Law Reform (Contributory Negligence) Act 1945 and the appellate approach stated in Jackson v Murray and Anr [2015] UKSC 5, the court found no basis to disturb the 30% reduction. The judge was entitled to give substantial weight to the HGV’s causative potency, size and potential to cause very serious injury, notwithstanding its low speed.

• Court of Appeal (Civil Division) — dismissed the defendant’s appeal and affirmed the findings of negligence and 30% contributory negligence: [2017] EWCA Civ 79.
• High Court (Queen’s Bench Division) — on 9 November 2015, HHJ Raynor QC found for the claimant in negligence and reduced her damages by 30% for contributory negligence.