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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Burridge v Airwork Ltd [2004] EWCA Civ 459 (19 March 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/459.html Cite as: [2004] EWCA Civ 459

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
(MR RECORDER DAVID WILLIAMS)

		Royal Courts of Justice Strand London, WC2
		19 March 2004

Friday, 17 March 2004

1. LORD JUSTICE PILL: Lord Justice May LJ will give the first judgment.
2. LORD JUSTICE MAY: This is an appeal from the judgment of Mr Recorder David Williams given in the Manchester County Court on 11 August 2003. He was concerned with the trial of the issue of liability only in a personal injury action arising out of a road traffic accident in Muscat, Oman, on 26 October 1999. The accident occurred at approximately 9.00 in the morning when it was daylight. The matter of jurisdiction to hear this case in Manchester was determined in earlier proceedings.
3. The claimant, Mr Burridge, was and possibly still is, the goal-keeping coach for the Omani National Football Team. At the time of the accident the team, as I understand it, had aspirations of qualifying for the World Cup. Mr Burridge was, in the context of these proceedings, a fit cyclist, who had joined Sultan Qaboos Street in Muscat on his bicycle travelling in the direction of Ruwi. He had joined it from a slip road from the Ghubrah Roundabout. Sultan Qaboos Street is a six-lane main highway passing over this roundabout. Once the slip road has joined the highway there is what has been called a hard shoulder, delineated by a yellow line between it and the nearside lane of the carriageway. This hard shoulder was not subject to the kind of restrictions as to its use such as apply to hard shoulders on motorways in this country.
4. A Toyota Hiace minibus owned by the defendants and driven for them by Abdul Ghafoor drove across the flyover of Sultan Qaboos Street which passed over the roundabout. Mr Ghafoor pulled onto the hard shoulder and stopped within the yellow line. He did so because he heard a noise towards the rear of his minibus which troubled him. He reckoned that a rear door might be insecure. Having stopped, Mr Ghafoor immediately opened his driver's off-side door into the face of Mr Burridge on his bicycle. Mr Burridge collided with the door, was knocked off his bicycle into the road and was hit and dragged along the road by another vehicle driven by Mr Dharwish.
5. Mr Burridge was severely injured. He has been certified in Oman as 35 per cent disabled. He claims that his injuries were caused by Mr Ghafoor's negligence, as they obviously were and as the Recorder found. That has not been challenged on this appeal.
6. The Recorder also found that Mr Burridge was not contributorily negligent. The defendants appeal only against this finding as to contributory negligence. They say that the Recorder gave inadequate reasons for this part of his decision. Simon Brown LJ gave permission to appeal. The Recorder was then invited under the procedure suggested in English v Reimbold and Strick Ltd [2002] EWCA Civ 605 to amplify his reasons. He responded to that request by giving some further reasons.
7. Both Mr Ghafoor and Mr Dharwish were prosecuted in Oman and convicted of one or more traffic offences. Mr Burridge was not prosecuted, although there may have been a local police suggestion of no persuasive relevance in these proceedings that he was to some extent responsible. This has not been relied on in support of any submission today in support of this appeal.
8. Mr Burridge remembers nothing of the accident itself, no doubt because of his injuries. He gave evidence and he was asked questions about such things as his fitness and the speed at which he habitually travelled on his bicycle. There was also a question of whether he had been listening to music on headphones, but that has not been pursued into this court. He had compiled a video after the event showing the nature of the road and its traffic. We have seen the first few minutes of the video. The scene of the accident itself is clearly, and to my mind adequately, shown in photographs, especially photograph AG8 exhibited to Mr Ghafoor's witness statement.
9. Sultan Qaboos Street is not a motorway. It has side roads and bus stops. Pedestrians can cross it. It is obviously at times a busy road with diverse traffic, no doubt some of it travelling at some speed. The video shows in general terms cars and vans stopping on the hard shoulder from time to time, for instance to pick up or let off passengers. It shows pedestrians using the hard shoulder. In one instance, there is a man sweeping the hard shoulder at the junction between a carriageway and what appears to be a slip road.
10. Mr Ghafoor gave evidence by video-link from Oman. The link was obviously poor. It froze on occasions and there were other interruptions. It was plainly not entirely satisfactory, but the Recorder took this into account. He referred in his judgment to a number of paragraphs of Mr Ghafoor's written witness statement. Mr Ghafoor had written this:

"8. As I approached the Ghubra flyover (near the Bowsher Hotel) at about 9am on 26 October 1999 I heard a noise coming from the back door of my vehicle. I thought that the back door might not be shut properly, so I decided to stop the vehicle to check the door. I first checked in the mirror, and seeing nothing blocking the way indicated 'right' and pulled over into the hard shoulder of the highway just after the flyover.

9. The hard shoulder is wide enough to accommodate a large truck. I parked in a position on the 'hard shoulder' shown in AG8 [that is the photograph to which I have already referred] so that when I opened the door it would remain within the yellow line marking the boundary of the hard shoulder.

10. When I stopped I put on the hazard lights and the handbrake. I checked both the rear view mirror and wing mirror but didn't see anybody. I did not see any bicyclist so I am not sure what direction he came from.

11. I then opened the driver-side (left-hand side) door of the vehicle in order to get out of the vehicle and check the rear door. I began to open the door, when the door was partially open a bicycle ran into the end of the door of my vehicle. I had not seen him approaching. The impact occurred inside the yellow-line marking the hard-shoulder, and he fell onto the road.

12. After impacting with the door of my vehicle, the bicycle stayed at the foot of the door and the bicyclist fell into the road and was hit by another vehicle (a Toyota Cressida Registration 28992). I now understand that this vehicle was driven by Mr Khalid Dharwish bin Abdulla Zadjali.

13. The Toyota Cressida was probably driving at 60kmh."

Mr Ghafoor was cross-examined. During the course of his cross-examination he was challenged as to his evidence that he looked in his mirrors before opening the door. He also gave evidence that he had looked over his shoulder. He was asked questions about his assertion that he had turned on the hazard lights. His answers were not satisfactory, and it appeared that he may well have been referring, not to the hazard lights, but to an internal warning light telling him that there was an open or insecure door. The possibility that he turned on the hazard lights is not now relied on in this appeal.

11. The Recorder rejected the critical parts of Mr Ghafoor's evidence. He said this, in paragraphs 8, 9 and 10 of his judgment:

"8. Mr Ghafour, as I have already observed, gave evidence before this court this morning on the live video link. I have already indicated to counsel during the course of submissions, which I have found most helpful, that I do not accept the evidence of Mr Ghafour. That is the judgment of this court, doing the best that it can for Mr Ghafour, having regard to language difficulties and the like. But I reject his evidence when he says that almost simultaneously he checked both the rear view mirror and the wing mirror and did not see anybody. I have looked at his photograph on page 180, I trust with considerable care, and observed Mr Ghafour's evidence on that issue and it is beyond the bounds of belief that if Mr Ghafour had followed that model practice, which ought to be carried out by any driver in his situation, that he could possibly have missed seeing the claimant, Mr Burridge. Whether Mr Burridge was in the proper lane on the road or whether or not he was on the hard, shoulder had Mr Ghafour done what he said he did he would have seen Mr Burridge. That view is expressed after looking at page 180 and considering the simultaneousness of the events of looking in the mirror as claimed by Mr Ghafour and opening the door and there is the immediate collision with Mr Burridge. As I have noted, I do not accept his evidence.

9. I conclude, therefore, that this is unfortunately one of those situation where a driver, for whatever reason, pulls up -- and I do not challenge Mr Ghafour's reasons -- a car and immediately opens the door to attend to something as quickly as possible, to get out of the way or to carry on with the journey or whatever, opened the door without looking. That is my firm conclusion in this case.

10. Therefore I am satisfied that the claimant's case has been discharged on the civil burden of proof, indeed beyond that."

Accordingly, and for those reasons, which are not challenged in this court, the Recorder found that liability was established.

12. As to the question of contributory negligence, all that the Recorder said was as follows (paragraph 12):

"I have invited submissions, which were most forcefully made by the counsel for the defendant, in respect of the issue of contributory negligence. Skilfully arguments were placed before me that it was an issue that should be considered. I have considered it and I come to the conclusion that on the facts of this particular case contributory negligence as an argument fails. Therefore the claimant succeeds in his claim and in its entirety."

13. As I have said, a ground of appeal was and remains that the Recorder there gave inadequate reasons. He was invited to give further reasons and he did so, in these terms:

"I am invited to give further reasons for rejecting the Appellant's submissions on the issue of contributory negligence.

In my judgment on liability, I concluded that the Appellant's employee was wholly to blame for the injuries suffered by the Respondent.

After considering all the evidence, it was my judgment that the employee, Mr Gaphur without warning, suddenly pulled up the vehicle he was driving in order to attend to some problem with the vehicle. Without warning, he immediately opened the van door which struck the Respondent, causing him to fall into the path of an oncoming car.

Having seen the video of the scene of the accident, together with the still photographs, it was my judgment that it was inconceivable that Mr Gaphur had checked to see if there was any traffic either to the side of him or to his rear. I rejected his evidence about looking into the rear-view mirrors and physically turning round in the cab to check for traffic.

Accordingly, it was my judgment that the Respondent had no opportunity to take any action to avoid the collision between him and the van door. He could not have foreseen the Appellant's action: he was not at fault.

These were my reasons for rejecting the contributory negligence submissions."

Pausing there to consider those additional reasons, it is submitted, correctly in my view, that the first three main paragraphs of those additional reasons were concerned with the Recorder's findings about Mr Ghafoor's actions and responsibility and not intrinsically with the question of whether or not Mr Burridge was at fault. As to the final main paragraph there is a statement that Mr Burridge had no opportunity to take any action to avoid the collision. There is a statement that he could not have foreseen the appellant's action, but beyond that there is no further material as to contributory negligence.

14. There are a number of written grounds of appeal elaborated in an initial and additional skeleton argument and responded to by a skeleton argument on behalf of the claimant. The claimant's written skeleton argument addresses each of the particulars of contributory negligence in the defence and submits, for the reasons there set out, that they were unsustainable.
15. This appeal has sensibly been conducted on a narrower basis than in the written skeletons. It seems to me that the only realistic basis on which contributory negligence could be advanced is that Mr Burridge should have anticipated that the driver of a minibus who had just pulled on to the hard shoulder might open his door and get out, and that he was at fault if he did not take steps to guard against that possibility. This is the basis upon which Mr Soole QC has advanced the appeal before the court today. His submissions may be summarised as follows. He submits that the Recorder failed to address in his further reasons, just as in his original judgment, the critical issue of contributory negligence. He submits that he based his conclusion that Mr Burridge had no opportunity to take any action to avoid the collision wholly or in part upon an additional finding of fact for which there was no evidence. Mr Soole refers to the sentence in the further reasons to the effect that Mr Ghafoor pulled up the vehicle he was driving suddenly without warning. The following sentence is not challenged. In substance, it appears in the original judgment. The following sentence was "without warning he immediately opened the van door which struck the respondent causing him to fall into the path of an oncoming car."
16. Mr Soole submits that the critical issue was whether, in the circumstances of this roadway and its user, a reasonably careful cyclist should, before overtaking this parked van, have anticipated that the driver might open the door without checking to see if it was safe to do so; and whether in consequence the cyclist should have entered the main carriageway, or at least swerved to his left to avoid the possibility, or alternatively stopped until it was safe to overtake the parked vehicle. As I say, although other matters were mentioned in the written grounds of appeal and skeleton arguments, Mr Soole accepts that today this court need not consider matters other than this. He submits that the Recorder gave inadequate reasons for his decision in relation to contributory negligence. But he submits and accepts that there is no need for this court, if we accept his submissions, to order a retrial, because this court is in as good a position as would any other court be on the material before it to make a judgment on the issue.
17. Mr Soole draws attention to the fact, supported by evidence, that Mr Burridge was cycling on the hard shoulder within the yellow line. The door which Mr Ghafoor opened did not extend when it was opened beyond that yellow line. Mr Burridge was cycling quite slowly along a road with which he was familiar. Mr Soole draws attention to the nature of this road and its uses as seen in the video. He says that it was obviously foreseeable that the driver of the minibus might get out of the vehicle on its off-side. I agree that this was foreseeable. Insofar as the Recorder decided otherwise, I think he was wrong to do so.
18. Mr Soole refers us to the well-known passage in the opinion of Lord Uthwatt in London Passenger Transport Board v Upson [1949] AC 155, where he said this (at page 173):

"In the view that I have formed it is not necessary for me to deal with the question of negligence. I desire only to register my dissent from the view expressed by the Master of the Rolls that drivers 'are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians, will behave with reasonable care.' It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take."

The expression "folly in all its forms" appeared in the respondent's written skeleton and other material for this appeal.

19. Mr Soole submits, correctly, that during the course submissions before the Recorder the issue of contributory negligence was raised and articulated in the way in which he would articulate it in this court. He has drawn our attention to various passages in the submissions and they substantiate that point. At one point in the transcript the Recorder said that contributory negligence was the main issue. But Mr Soole submits that contributory negligence was not properly dealt with in the Recorder's judgment. There was, he submits, nothing in the original judgment, and the further reasons do not deal with the main argument that Mr Burridge was at fault in not anticipating what happened.
20. As to the new fact, the finding that Mr Ghafoor suddenly pulled his vehicle on to the hard shoulder in order to attend to some problem, it is submitted that no case was made to this effect and there was no evidence to support it. Mr Soole suggests that that finding is inconsistent with the material in paragraph 9 of the original judgment which I have read. I did not think myself that there is an inconsistency here, but I agree that stopping suddenly does not feature in the original judgment.
21. As to the need for reasons, reference is made to a recent decision of this court in Gibbons v Pickard [2002] EWCA Civ 1780, in which Clarke LJ said that remarks central to a judge's decision should feature as reasons in the eventual judgment. It is not sufficient only to make such remarks during argument.
22. It is submitted that Mr Burridge could and should have gone go into the carriageway or waited. There was an opportunity to do so. The Recorder was wrong to find otherwise. It was an opportunity which a reasonably careful cyclist could and should have taken.
23. Mr Grime QC, in answer to those submissions, points out that the Recorder was faced with the situation in which there was very little evidence on this central point. Mr Ghafoor was the only witness who was able to give direct evidence as to what occurred. The Recorder was not satisfied with the crucial parts of his evidence. This makes the case of the party who has to establish something very difficult. The evidence was thin as to the width of the hard shoulder and the width of the van. The case that the open door did not overlap the carriageway was only supported thinly by the evidence. Mr Grime submits that there was insufficient evidence to reach that conclusion safely. For my part, I think that the photographs show sufficiently clearly the hard shoulder at the point of impact to be wide enough for a minibus parked close to the kerb to open its off-side door without intruding into the carriageway.
24. As to opportunity, Mr Grime submits that it was reasonable for the Recorder to consider that Mr Ghafoor did not exercise much care and deliberation at any stage. It was legitimate, he submits, for the Recorder to put on one side the formalised account given by Mr Ghafoor in his witness statement. He could have held on the evidence that Mr Ghafoor pulled in suddenly. On that point, I am not convinced by Mr Soole that the sentence to which he refers is critical to this appeal for reasons which I will elaborate in a moment.
25. As to the question of anticipation, Mr Grime refers to general possibilities that may be perceived by cyclists in circumstances where a vehicle has parked on a hard shoulder of this kind. Such possibilities include that the vehicle might itself pull out and go back into the carriageway. It might reverse. The off-side door might open. Such general possibilities were hazards which were foreseeable. There might be other possibilities which constituted no hazard whatever, for example if the driver of a stationary vehicle was picking somebody up or letting them off his vehicle on the nearside. Opening the driver's door, suggests Mr Grime, is a possibility but perhaps not a likely possibility. He accepts that there may be circumstances when general hazards of this kind may be elevated so that greater care is necessary, as if an indicator light is on or if there is some positive visible indication that a door may be opening. But here, he submits, there was nothing to show that there was anything other than a hazard of a general kind. In those circumstances he asked what was it reasonable for Mr Burridge to do. He submits that it is an unreasonable counsel of perfection that he should stop. What should he stop for? More sensible for him, perhaps, to pass the van but to give it a reasonable berth. Cyclists very often pass stationary vehicles in all sorts of circumstances. It is a commonplace to see passing cyclists not having moved so far away from stationary vehicles to be outside the extent of a door if it were fully opened. The same submission could apply where cars are overtaking stationary vehicles. This does not, of course, says Mr Grime, give an absolute safeguard against the door opening to its full extent, but it would give the cyclist an opportunity to react if there is folly by the driver opening the door without seeing that it was safe to do so.
26. Here, the precise facts are only a matter of speculation because there was no evidence of the kind that Mr Grime was discussing hypothetically. It was possible, he suggests, that Mr Burridge may have been to some extent away from the van, probable that he was quite close to the yellow line. He must have been quite close to the carriageway because his cycle came to rest on the hard shoulder, but he himself fell into the carriageway to be run over by Mr Gharwish. There is a little point perhaps in Mr Ghafoor's witness statement, where he said "when the door was partially open a bicycle ran into the end of the door of my vehicle." It is a small point, but the "end of the door" is some indication that this speculation perhaps on Mr Grime's behalf may have a shred of evidence to support it. As I say, Mr Grime submits that it cannot be said what the precise facts were, but Mr Burridge probably did not get caught between the door and the side of the vehicle, indicating perhaps that he was some way away from the side. It is not, he suggests, argued that Mr Burridge could have avoided the opening door; rather, that he should have anticipated its opening. Particulars of negligence do not say what it is that Mr Burridge should have done. If he had pulled out beyond the reach of the door that might have been reasonable if he saw the door beginning to open. But it was not, he submits, reasonable simply because the minibus had stopped when fast moving traffic might be coming reasonably close from behind on his left. Finally, Mr Grime suggests that there was some evidence that there was probably a passenger in the van. This could have suggested, if Mr Burridge had seen him or her, that the van was stopping to let the passenger out.
27. I do not think that the Recorder adequately addressed the central submission as to contributory negligence relating to anticipation either in his original judgment or in his further reasons. Thus unsupported, his decision cannot stand. It is not suggested that there should be a rehearing. I accept that this court is in as good a position to consider the issue and that we should do so.
28. I have already indicated that I think the Recorder was wrong to say that Mr Burridge could not have foreseen the appellant's action. As to the matter of opportunity, I do not consider that the sentence of which Mr Soole complains was critical. The Recorder, I think, was wrong to say that Mr Burridge did not have the opportunity to take avoiding action. That would only be so if Mr Ghafoor had pulled in so suddenly as to make it impossible for Mr Burridge to avoid a collision, in which event Mr Burridge would surely have hit the minibus towards or at its rear. Since he did not, it seems to me that whether Mr Ghafoor pulled in suddenly or not is not central to the question of contributory negligence. I think Mr Burridge had the opportunity to take evasive action. The question is whether he is in any way at fault in not doing so.
29. In my view, Mr Soole's submission intrinsically comes close to saying that all or most cyclists who drive into an unexpectedly opening car door will in part be to blame for that accident. In my judgment, this cannot be right. It would be putting the standard of care too high so to hold. Each case will depend on its own facts and it will be for the party alleging contributory negligence to establish particular facts from which the court can find that the cyclist was at fault. In the present case, I do not consider that the defendants have established facts which indicate that Mr Burridge was at fault. The mere fact that the minibus had just pulled off the carriageway and stopped and that Mr Burridge was about to overtake it do not seem to me to be enough.
30. Mr Grime is, in my view, correct to say that the evidence relevant to this point was scanty. We cannot tell at what distance from the minibus Mr Burridge was attempting to overtake it, though there are perhaps some straws in the wind on that point. We cannot judge the degree of hazard he would have encountered if he had pulled out so as to avoid the door altogether. We can say that such a manoeuvre would have put him into, or very close to, the carriageway and at risk of being struck by a vehicle coming up from behind. I am not at all impressed with the submission that he should have stopped. That, to my mind, is not practical bicycling; and the evidence did not establish anything beyond a very general possibility to suggest that the driver of the minibus was going to open his door suddenly and without due care. As I say, in my judgment, it would be placing the standard of care too high to conclude that Mr Burridge was, on the facts of this case, at fault. As Mr Soole has said, it is in the end a jury point. Putting myself in the position of a jury, that, for those reasons, is my conclusion. I would dismiss this appeal.
31. LORD JUSTICE PILL: The judge's conclusion that Mr Ghafoor was negligent is not challenged, and realistically so. In my view, Mr Ghafoor's blameworthy conduct made the major contribution to this collision. The issue is whether the judge should have found contributory negligence by the claimant, Mr Burridge, and an apportionment of one-third is claimed against him. The judge's finding on contributory negligence was, in my view, insufficiently reasoned. He was given an opportunity to expand on it in circumstances described by May LJ. If, as appears likely, the reason given when further reasons were supplied was that the claimant had no opportunity to avoid the collision, that is not a reason I can accept. Given the fact that the claimant was approaching a stationary vehicle from behind on a cycle, the overwhelming probability, in my judgment, is that he had an opportunity to take action knowing the vehicle was present ahead of him.
32. It is common ground that this court is in as good a position to rule upon the question of contributory negligence and apportionment as the trial judge was. The question posed for this court, as expressed by Mr Soole QC for the appellant, is whether in the circumstances existing in this road and its use a reasonably careful cyclist should, before overtaking a parked minibus, have (1) anticipated the possibility of the driver opening the door without checking, and (2) avoiding the possibility of collision either by moving towards the main carriageway or, if that was not safe, stopping and waiting until it was. The evidence is that the door was opened when the claimant was very close to it, and in those circumstances I accept the statement of the issue by Mr Soole as correct and appropriate. He has referred to it as the "anticipation issue".
33. Mr Soole submits that the cyclist should have moved to his off-side (to the left in this case, vehicles in Oman being driven on the right-hand side of the road); it was foreseeable that people would be getting out of a vehicle which had stopped on the hard shoulder. If it was not safe to move towards the main carriageway, then the cyclist should have stopped until it was.
34. Both counsel submit that the court must look at the specific situation on this road. It was a main road in Oman, a dual carriageway with three lanes in each direction and what has been described as a hard shoulder. The road carries a heavy volume of traffic and much of it is fast moving. I will use the expression "hard shoulder" but it should not be thought that either in terms of uniform engineering standards or in terms of use, the hard shoulder performed the same function as that on motorways in the United Kingdom. There is a more relaxed attitude in Oman to its use. Vehicles parked on the hard shoulder temporarily and pedestrians walked along it. Indeed pedestrians crossed the road, hazardous though that may be, and there is a possibility of people emerging from vehicles which had stopped in a location such as that where Mr Ghafoor stopped his van.
35. The evidence is that the minibus had just overtaken the claimant. There was every prospect that the driver would have seen the cyclist as he overtook him and pulled in on his nearside. He had every opportunity to do so. The claimant was familiar with the road. He was moving towards the minibus from the rear and must have been in a position close to the boundary between the hard shoulder and the carriageway on which there was likely to be fast moving traffic. A cyclist is of course vulnerable to any impact with a vehicle.
36. For the claimant to move to his off-side presented a potential hazard. He would have to move into the carriageway, or at any rate close to the boundary between the hard shoulder and the carriageway, and close to or into the path of traffic which was likely to be fast moving. Indeed, when he had come into contact with the door of the minibus he fell into the path of a vehicle which was moving in the same direction as he had been and was struck by that vehicle.
37. The test in contributory negligence was put by Lord Uthwatt in Upson, to which my Lord has referred. Another familiar statement of the principles involved is that of Du Parcq LJ in Lewis v Denye [1939] 1 KB 540 at 554:

"In order to establish the defence of contributory negligence, the defendant must prove, first, that the plaintiff failed to take 'ordinary care for himself,' or, in other words, such care as a reasonable man would take for his own safety, and secondly, that his failure to take care was a contributory cause of the accident."

(Charlesworth, 10th Edition, paragraph 3-09).
38. In my judgment, there was no lack of reasonable care in the claimant following the line he did even though it was within the range of the radius of the minibus door if someone in that vehicle was so foolish as to open it without warning. Expecting the cyclist to take further precautions would, in my judgment, be to impose too high a standard of care upon him in the circumstances of this case. It was possible that someone would open the door of the minibus; it was foreseeable only in the sense of it being a possibility. But in failing to act in a way other than he did, the claimant was not, in my judgment, failing to take ordinary care for himself.
39. I agree with May LJ that this appeal should be dismissed.
COSTS JUDGMENT
40. LORD JUSTICE PILL: The successful respondent claims his costs and that is not, nor could it be, disputed. Schedules have been prepared, albeit that for the successful respondent late in the day. The sum claimed is £24,917.25, including VAT.
41. On behalf of the appellants Mr Soole does not agree that figure, but he has not sought to challenge it either generally or in detail. The figure which the appellants had correctly disclosed is somewhat lower but not dramatically so. We are prepared to assess costs and to make an order in the sum claimed.

(Appeal dismissed; the Appellant do pay the Respondents' costs of the appeal assessed in the sum of £24,917.25, including VAT).