Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 16
PD2260/08	OPINION OF LORD UIST in the cause ANTHONY BROOKES Pursuer against FIRST ABERDEEN LIMITED Defenders _____________ ­­­­­­­­­­­­­­­­­

Pursuer: Allardyce; Digby Brown LLP

Defenders: Miss Shand QC, Macnaughton; Simpson & Marwick

19 February 2010

Introduction

[1] The pursuer, who was born on 31 December 1961, was driving his scooter in a southbound direction in Scotstown Road, Bridge of Don, Aberdeen on 27 January 2006 when he lost control, fell off it and was injured. He maintains in this action that this was caused by a northbound bus operated by the defenders, and driven by one of their employees, Risdon Dougan, acting in the course of his employment with them, being driven northwards in the southbound lane, requiring him to take evasive action. The defenders maintain that Mr Dougan was driving northwards at a speed of 20 mph or thereabouts, that there was a row of parked cars on his left which he required to overtake by straddling the white lines in the centre of the road, that the pursuer was travelling in the centre of the southbound lane, passed the front of the bus and at some point thereafter lost control of his scooter and fell off it. The defenders further maintain that the bus was well established in its passing manoeuvre when the scooter approached it and the pursuer could either have waited to allow the bus to pass him or proceeded with care into the available space on the east side of Scotstown Road.

[2] The area in which the incident occurred is shown on an aerial photograph 6/27/6 of process, although the point marked "Collision Locus Area" is wrong as there was no collision and the incident did not occur at that point. I heard evidence about the occurrence of the incident from the pursuer and Mr Dougan, who was called as a witness on behalf of the pursuer. There was also evidence from Constable Martin McGroarty and a paramedic, Stephen Munro, both of whom arrived at the scene, and from two accident investigators, Barry Seward, a witness for the pursuer, and John Alexander, a witness for the defenders.

The Evidence

[3] The pursuer explained in his evidence that he lived in Peterhead and on 27 January 2006 he was driving his scooter southwards down Scotstown Road on his way to work as a security officer. He was travelling at about 30 mph and had the lights of his scooter on. He was also displaying L plates as he was the holder of a provisional licence and had been since 1982. He thought the road was wet. As he was driving down the road he saw a bendy bus coming towards him on his side of the road as well as its own. He was not quite sure where he was when he saw the bus. He slowed down and used his brakes to avoid the bus. He swerved because the bus was coming directly towards him. The bus was more on his side of the road than on its own side. He was in the middle of the road near to the white line about to turn right. He had to swerve in a hurry when he was quite near the bus. He then had to swerve again to avoid striking the kerb and he fell off his scooter, which went over him. He was driving very slowly when he fell off. The bus was travelling faster than he was and did not take any evasive action as it approached him. He then altered his evidence to say he was just before Scotstown Gardens (a road off to his left) when he first saw the bus. He fell off his scooter just before the junction with Balgownie Road (a road off to his right). He remembered seeing Balgownie Road. He could not remember if he fell off the scooter before or after Scotstown Gardens. He was not able to say where the bus was when its driver first saw him. The bus did not swerve or slow down and he did not think the bus driver saw him. He was unable to say how much space there was between the bus and his nearside. He thought the bus driver should have stopped "because it was a wet road and everything like that and he should have seen me". He could not recall if the bus driver could have stopped. If the bus had stopped he would possibly not have avoided falling off his scooter as he would have to have taken the same avoiding action. When he had first seen the bus he did not particularly have a space in which to stop: he was "practically on the bus".

[4] In cross-examination the pursuer stated that Scotstown Road was on his normal daily route to work. There were not always parked cars on the west side of Scotstown Road. On the day of the incident he was not aware of parked cars there. Scotstown Gardens was to his left when he first saw the bus. He could not remember exactly where he came off the scooter. He could see Balgownie Road when he was "on the floor" (by which he meant the ground). He could not recall coming off the scooter outside the Ashvale shops on Scotstown Road. He did not come off his scooter at the southern entrance to the Ashvale shops because he would not have been able to see Balgownie Road from there. He did not accept that the bus was going to pull up at the bus stop on the other side of the road and that it had already passed him when he fell off his scooter. He could not recall if he was halfway along the length of the bus when he fell off his scooter. Nor could he recall if there was sufficient room for him to stop before encountering the bus or sufficient space for him to pass the side of the bus. He believed that the bus driver did not see him until the last minute. He could not recall where the bus was when he fell off his scooter. He fell to the right of his scooter and it went over his left leg.

[5] Mr Dougan, the bus driver, stated that he had been a bus driver for just under 30 years. He drove any bus on any route, including a bendy bus one or two days a week. A bendy bus was not more difficult to drive than other buses. On 27 January 2006 he drove a bendy bus into Scotstown Road by turning left from Balgownie Road. He then proceeded to drive up the hill in Scotstown Road. There was a line of parked cars about 100 yards long on his nearside at the brow of the hill. He overtook them on a clear road and was almost 80% through that manoeuvre when he saw a scooter on the other side of the road in the centre of his own lane about 20 yards beyond the end of the line of parked cars and about 40 yards from the bus. There were no other vehicles on the scooter's side of the road. The front of his bus was at the end of the line of parked cars when the bus and the scooter began to pass each other. He noticed in his offside mirror that the scooter was halfway along the side of the bus when it started to wobble. He stopped the bus. By the time the scooter had reached the rear of the bus it had toppled over. When he stopped the bus its front was into the kerb just before the bus stop on his nearside. When he had been overtaking the line of cars the centre of the bus was over the white line in the middle of the road, although that varied depending on the width of the parked car which he was overtaking. He thought the scooter was at Danestone Terrace when he first saw it. It had its lights on but they were not very bright and looked like side lights. The scooter moved to its left, which he thought was sensible as there would have been the risk of a collision if it had not done so. When he first saw the scooter there was plenty of room for it to pass safely along the side of the bus. He accepted that he could have slowed down or stopped. He thought there was maybe a metre or more between the scooter and the pavement on its nearside. The scooter did not swerve: it moved over to its left. The scooter driver came off the scooter just at the entrance to the shops, short of the bus stop on his nearside.

[6] Constable McGroarty (29) was a police officer stationed at Bridge of Don in 2006. He received a call from the ambulance service to attend the incident on Scotstown Road and went there accompanied by a probationer. When he arrived at the scene the scooter was half on and half off the road on the southbound carriageway south of Danestone Terrace. He marked the locus with a cross on the photograph on page 14 of Mr Seward's supplementary report 6/28 of process. (This was at a point north of the Ashvale shops). In the road accident report which he compiled (6/23 of process) he stated the locus to be "B997 Scotstown Road, Bridge of Don, Aberdeen, north of Scotstown Gardens". He mentioned Scotstown Gardens as it was a road he was "more familiar with" due to the fact there was a children's home there. He thought he was either mistaken about the locus or he had mentioned Scotstown Gardens because he knew it. He had provided a signed statement (6/35 of process) to an insurance company on 10 October 2008 in which he had expressed a view on relevant factors. Paras 6-12 of the statement read as follows:

"6. The motorcycle was on its side partially on the east side of Scotstown road about 20-30 yards south of Danestone Terrace.

7. The bus had moved after the accident and was parked on the west side of Scotstown road between the junction of Cairnfold Road and Danestone Terrace.

8. The ambulance was on scene when I arrived and the motorcycle rider was in the back of it with paramedics. He was complaining of pain in his left leg where he was caught between the bike and the road. His injuries were never thought to be life-threatening.

9. There was no sign of any skidmarks and no suggestion that speed was a contributory factor in either case.

10. In my opinion the road is not wide enough for the parked cars, the bus and the motor cycle to be side by side all at the same time.

11. There were a number of parked cars on the west side of Scotstown Road and once the bus had pulled out to overtake the first one there was nowhere for him to go until he passed the last one.

12. Due to the combination of a slight bend and significant dip in the road the bus driver could not have seen the motorcyclist or the motorcyclist the bus until the bus was about halfway along the line of parked cars."

He did not think he was mistaken in what he said in the statement about where the scooter was when he arrived. He took a mental note of parked cars in a line down the east carriageway of Scotstown Road.

[7] He cautioned the bus driver, who replied:

"I was just overtaking the parked cars. The motorcycle was coming in the opposite direction in the middle of his own lane. He was about halfway along the bus. I seen he started to wobble, which I seen in the mirror. I don't know if he actually touched the bus, but the next I seen he just went over. I stopped."

The following question and answer session then took place between the constable and Mr Dougan:

"Q. Was your bus moving when he went over?

A. I think when I seen him starting to wobble I slowed down and stopped.

Q. After you stopped the bus did you move the bus before the police came?

A. No.

Q. Anything else to say?

A. You should be able to get the tape of the CCTV on Monday."

[8] At the time Constable McGroarty was of the opinion that it would have been tight for the scooter to pass the bus. Para 10 of his above statement was his retrospective view that there was not sufficient room for the scooter to pass the bus.

[9] In cross-examination Constable McGroarty stated that he felt the bus had been on its offside lane from some time back and could not get back onto its own side of the road until it had cleared the line of parked cars. He felt that, if necessary, the scooter should have stopped to let the bus through. He imagined that the scooter driver would have seen the bus from sufficiently far back to be in a position to slow down and stop if necessary. He remembered having seen the shops south of where he was standing. Para 6 of his above statement was from memory. He did not at the time make a note in his notebook of the precise locus and he did not take any road measurements. Road policing officers were called to an accident only when it was a fatal or possibly fatal one. From the point where the scooter was it was not possible to see Balgownie Road. The damage to the scooter was to its nearside. There was no damage to the bus.

[10] Stephen Munro, a paramedic, was led as a witness for the defenders. He attended the incident in Scotstown Road on 27 January 2006. His memory of the incident was that it was outside the Ashvale shops. The patient report form which he completed (6/37 of process) showed that he received the call at 17.09 or 17.10, he arrived at the patient at 17.23 and left the scene at 17.37. The history and additional information on the form had been taken from the patient. His colleague Fiona Duncan (whose report was 6/38 of process) had arrived before him at 17.16.

[11] Barry Seward (55), a consultant collision investigator from Bristol, was led as a witness for the pursuer. His principal report (6/27 of process) is dated 16 September 2009 and his qualifications and experience are set out in appendix 2 to that report. He also produced a supplementary report dated 8 November 2009 (6/28 of process). He had been a road traffic police officer for 24 years in the Avon and Somerset Constabulary and a consultant collision investigator since 2005. In his principal report he described Scotstown Road as a single carriageway road comprising two lanes (one for traffic in each direction) separated by a central white hazard line (long line with short gaps). It is approximately 7.65 metres wide, equally divided between the two traffic lanes (3.82 metres each). The parked vehicles would take up approximately 2 metres of road width based on average vehicle width together with an allowance for space alongside the kerb. The bendy bus was a Volvo B7LA, 2.476 metres wide at the front wheels, approximately 18 metres long and articulated in the middle section. The pursuer's scooter was a SYM Euro MX 125cc motorcycle with an overall width of 0.7 metres at the handlebars.

[12] When he compiled his principal report Mr Seward proceeded on the basis that when Mr Dougan came to the brow of a hill just before the offside junction with Scotstown Gardens he moved towards the offside of the road to pass parked vehicles and that the pursuer was riding his scooter in the opposite direction on his correct side of the road when, faced with the bus travelling towards him, he reacted to its presence but lost control of his machine, which fell to the ground. On the basis of these facts Mr Seward set out twelve conclusions in his report, the last four of which were as follows:

"9. The onus is on the bus driver to ensure that it is safe before he moves to the offside of the road to pass the parked cars (Rule 163 of the Highway Code).

10. The onus was on the bus driver to give way to oncoming traffic.

11. If the bus driver had simply slowed down or stopped then this incident would not have occurred.

12. There would appear to be no other reason for the loss of control than the fact that the bus was 'squeezing' the gap available to the pursuer."

[13] In his supplementary report Mr Seward proceeded on the basis of a different scenario, taken from the police report, which indicated the locus as being much closer to the Danestone Terrace junction, which is approximately 70 metres north of Scotstown Gardens. On this scenario the bus would have been in the middle of passing the parked vehicles and the view of each party would have been better than at the brow of the hill and the bend near Scotstown Gardens. On 3 November 2009 he visited the locus and recorded several video clips which he produced on a DVD. This showed, he said, that a bus approaching the bus stop on its near side where it was going to stop was "wider out" at the rear, with its nearside wheels virtually touching the white line. In discussing the avoidability of the accident in section 3 of his report he stated as follows:

"3.7 The location of the incident is a matter for the court. In my opinion the bus driver has a responsibility under the Highway Code to give way to oncoming traffic prior to and whilst passing parked cars on his side of the road. It would appear that in this case this was not done.

3.8 The incident was in my opinion avoidable if the bus driver had simply slowed down or stopped when he saw the approaching motorcycle.

3.9 If the court decides that the incident occurred at this point along the road then the bus was also in view to the motorcyclist who would have had little space in which to pass. He could have slowed down or stopped to allow the bus to continue, albeit the onus was not on him to do so."

The words "or moved over to his left" could be added at the end of para 3.8. There was an onus on both drivers, but he believed more of an onus on the bus driver, as he was on his wrong side of the road and it was dark.

[14] In cross-examination Mr Seward accepted that his principal report (6/27 of process) had been prepared without his having visited the locus and on the understanding that the incident had occurred south of Scotstown Gardens. There was an onus on the scooter driver to make sure that it was safe to go through the gap between the offside of the bus and the pavement. The gap would have been about 1.9 metres wide.

[15] John Alexander (66) was a retired police inspector, having completed 31 years service, and retired in 1995 as Inspector in charge of traffic management in Tayside Police. He had operated his own consultancy as an accident investigator since March 1999. He produced a report (7/1 of process) dated 3 September 2009. He had visited the locus and taken a series of photographs. He described what he saw at para 6.11 of his report:

"During the time spent at the locus vehicles were found to be constantly parked at the western kerb and basically at no time were there less than eight motor cars and vans parked from a position to the south of Scotstown Gardens to the commencement of the bus stop at Danestone Terrace. Given the foregoing observation, it is clear that this would be a commonly encountered situation for drivers of service buses following the foregoing route and having to pass these parked vehicles. Also, it was noted that the spacing between these parked vehicles tended to be sporadic, but insufficient to allow such a long vehicle to manoeuvre into a gap."

When at the locus he saw a small car travelling south pass an oncoming bus at the Ashvale shops without incident. In the case of the pursuer and Mr Dougan he would have expected the scooter to stop in order to allow the bus to complete its manoeuvre.

[16] At para 6.17 of his report Mr Alexander stated:

"Observationally there was more than adequate time and distance for the rider of the SYM Euromax motor scooter to respond or react to the approaching Volvo Eclipse bus and for him to decide on what action to take, be it simply to slow down or stop to allow the already established northbound bus to continue, or to proceed with caution as described earlier. In this regard there were numerous examples of such a common sense approach being adopted by the drivers of vehicles at this busy location."

[17] Mr Alexander thought that the more sensible option for the scooter driver would have been to slow down, adjust his speed and allow the bus to complete its manoeuvre. He set out his conclusions at paras 8.10 and 8.11 as follows:

"8.10 Considering all the factors present in this accident it is clear that the driver of the Volvo Eclipse bendy bus has been well established on the common manoeuvre of passing parked vehicles at the locus. Providing due regard was paid by the driver to an acceptable distance between the parked vehicles and the nearside of his bus, there was an adequacy of width available to the rider of the SYM Euromax motor scooter to safely pass.

8.11         There is no prospect of the rear of the bus swinging out as claimed and inspection of the bus by the attending police officers revealed no evidence of contact damage between it and the SYM Euromax motor scooter. Based on all the foregoing reasoning it would appear that the fall from the scooter was the sole responsibility of the rider and where his potential inexperience (sic) may well have been a factor for the fall, but almost certainly unconnected with the driving and the course followed by the driver of the Volvo Eclipse bus."

[18] Mr Alexander stated in cross-examination that as far as he was aware Mr Dougan was following a perfectly acceptable course to pass the parked vehicles at a moderate speed and he saw the scooter. In re-examination he stated that there was no way the pursuer could suddenly have become confronted by the bus: he would have seen it in time for him to stop.

Discussion and conclusion

[19] In considering the evidence relating to this incident it is first of all necessary to decide exactly where it occurred on Scotstown Road. I have reached the view that the pursuer was unreliable and wrong in his evidence about where the accident occurred. I am satisfied, on the basis of the evidence of Constable McGroarty and Mr Dougan, that the pursuer fell off his scooter just to the north of the Ashvale shops at a point just south of the junction of Danestone Terrace with Scotstown Road. Secondly, I am satisfied that Mr Dougan was able to see the scooter and the pursuer was able to see the bus for some time before they began to pass each other. Thirdly, I am satisfied that, when the pursuer first saw the bus, Mr Dougan was well established in the manoeuvre of overtaking at a moderate speed the line of vehicles parked on his nearside, and that this manoeuvre constituted a perfectly acceptable course for him to follow when driving the bus. Fourthly, I am satisfied that the pursuer could have slowed down and, if necessary, stopped to allow the bus to complete its overtaking manoeuvre before he proceeded further. In my opinion this would have been the safe and sensible course of action for the pursuer to have adopted. Fifthly, I am satisfied that the pursuer, when approaching the bus, did not swerve to his left to avoid a collision, but, as Mr Dougan deponed, simply moved over from the middle of his own lane to his nearside. Sixthly, I am satisfied, on the basis of the evidence of Mr Seward and Mr Alexander, that there was sufficient space in the gap between the offside of the bus and the pavement on the pursuer's nearside for the pursuer, had he proceeded with due caution, to have passed safely in the gap alongside the bus. Seventhly, I am satisfied that there was no contact between the bus and the scooter before the pursuer lost control of his scooter. There was no dispute in the evidence on this point.

[20] It was submitted for the pursuer that Mr Dougan should have slowed down and pulled to his left or stopped in the circumstances. I reject this submission. All drivers are familiar with the situation which faced the pursuer, namely, a large vehicle overtaking a line of vehicles on its offside and so taking up a portion of the other side of the road, and it is well known that the sensible course is to slow down and, if necessary, stop to allow the large vehicle to complete its manoeuvre. Mr Seward said that he would have stopped had he been driving the scooter. Had Mr Dougan stopped the bus in the course of its overtaking manoeuvre he would not have enlarged the size of the gap between the offside of the bus and the pavement: all that would have happened is that the pursuer would have had to pass a stationary bus as opposed to a moving bus. So far as Mr Dougan slowing down and pulling to his left is concerned, this would perhaps have enlarged the gap to a minor extent, but at the expense of Mr Dougan having to drive closer to the parked vehicles on his nearside. In any event, as there was sufficient space for the pursuer to have passed through the gap, I fail to see how Mr Dougan could in the circumstances be under a duty to slow down and pull into his left. When the scooter passed him he was driving at a speed of approximately 15 miles per hour. Moreover, there is nothing to suggest that, had he slowed down or stopped, the pursuer would not have lost control of his scooter. The cause of the pursuer losing control of his scooter was not established in the evidence.

[21] In light of my above findings I conclude that Mr Dougan, who seemed to me to be an experienced, careful and sensible bus driver, was not in any way negligent in his driving of the bendy bus at the material time.

Damages

[22] Although the pursuer's case on liability has failed, it is appropriate that I should state what damages I would have awarded had liability been established.

[23] The pursuer sustained bruising to his right forearm and a rupture of his left anterior cruciate ligament in the incident. The nature of the injury to his left knee was not recognised immediately and it was therefore not until 27 October 2006 that he had definitive surgical treatment to reconstruct his anterior cruciate ligament. He avers that he developed Complex Regional Pain Syndrome (CRPS) (otherwise known as Reflex Sympathetic Dystrophy) in his left foot as a result of the operation. I heard evidence about CRPS from Professor Ian Power, Professor of Anaesthesia, Critical Care and Pain Medicine at the University of Edinburgh. He had examined the pursuer on 27 July 2009 and produced a report (6/31 of process). In his summary he stated:

"At present Mr Brookes is suffering from hyperalgesia and allodynia of his left foot. This is described as being exquisitely sensitive and prevents him from carrying out many of the activities of normal daily living.

... it is interesting that the pain is presently not near the surgical site of his cruciate ligament repair, but rather in his left foot. Of course, surgical procedures can produce postoperative long-lasting pain by poorly understood mechanisms. It is clear that Mr Brookes has had ongoing problems with his left foot for some time, but he now claims that his present pain was not present before the accident on 27 January 2006. In any case Mr Brooks relates his present painful state to the accident and the subsequent anterior cruciate ligament repair of 2006, when the pain in his foot became so exquisite.

The doctors in the pain clinic in Aberdeen ... diagnosed this problem as Complex Regional Pain Syndrome, ... a painful post-traumatic condition in a limb, with an incidence reported at 2.6 per 10,000 person year. ... It is characterised by sensory, motor (muscle power) and sympathetic nerve (nerves that control blood flow) dysfunction in the affected limb, but the cardinal feature is incapacitating, severe pain. Although spontaneous resolution can occur, when CRPS persists beyond 6-8 months it does usually develop into a chronic, debilitating condition with profound and lasting impact on quality of life, activities of daily living and the ability to sustain gainful employment. The causes are unknown, but evidence suggests a contribution of both peripheral and central nervous system mechanisms.

At the time I interviewed this patient he did not have the full features of CRPS, but this could be as a result of the treatment he has had from the pain management clinic in Aberdeen. He does display apparent hyperalgesia and allodynia in his left foot. I could find little evidence of motor abnormalities, trophic changes or other sensory abnormalities. I would therefore consider that at present Mr Brookes displays some features of a resolving CRPS."

In his oral evidence Professor Power stated that "none of us fully understand this disorder". The operation had been in the knee and subsequently there was pain in the foot, but he postulated that perhaps an altered blood flow caused by the tourniquet on his leg had precipitated the pain. He had once previously encountered pain in the foot after a knee operation. CRPS was not a disease with a known cause and effect.

[24] I accept the submission for the defenders that it has not been proved that anterior cruciate ligament surgery can cause pain in the foot and that, even if it can do so, it has not been proved that it did so in this case. Professor Power was, at best, theorising about the cause of the symptoms of CRPS in this case. I note also that the pursuer had a history of pre-existing pain in his left foot.

[25] In my opinion an appropriate award of solatium for the knee and forearm injuries would have been £6,500 (Tulloch v Lothian Regional Council (1992) GWD 18-1074; Mearns v Lothian Regional Council 1991 SLT 338; JSB Guidelines 9^th Ed, 2008, p 50, (M)(b)(ii)).

[26] Miscellaneous expenses incurred by the pursuer were agreed at £364 and the services claims under sections 8 and 9 of the Administration of Justice Act 1982 at £2,000 inclusive of interest.

[26] So far as wage loss is concerned, I accept the submission for the defenders that wage loss should be calculated down to 14 November 2006, when there is a record of the pursuer complaining of foot pain. That brings out a net wage loss of £3,853 for the period from the date of the accident up to 14 November 2006.

[27] The total award of damages, exclusive of interest, would therefore have been £12,717.

[28] In para 13 of the joint minute number 26 of process it is agreed between the parties that by nine months after the left anterior cruciate ligament reconstruction the injury suffered by the pursuer to his left knee had resolved sufficiently that it no longer prevented him from returning to his work as a security guard. I would therefore have awarded interest on the award of solatium at 4% per annum from 22 January 2006 to 27 July 2007, and at 8% per annum from 27 July 2007 to date. I would have awarded interest at 8% per annum on the sum of £364 for miscellaneous expenses from 22 January 2006 to date. In relation to wage loss, I would have awarded interest on £3,853 at 4% per annum from 22 January 2006 to 14 November 2006, and at 8% per annum from 14 November 2006 to date.

Decision

[29] As I am satisfied that there was no negligence on the part of Mr Dougan I shall grant decree of absolvitor.