Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 75
PD753/13	OPINION OF LORD BOYD OF DUNCANSBY in the cause KYLE SMITH Pursuer; against BLUEBIRD BUSES LIMITED Defender: ________________

Pursuer: D I MacKay QC, McNaughtan; Digby Brown

Defender: Rolfe; Simpson & Marwick

25 April 2014

[1] The pursuer is Kyle Smith. On 27 April 2010 he was badly injured in an accident which occurred on the A944 Lang Stracht, Aberdeen. The defenders are Bluebird Buses Limited. The accident happened when a Stagecoach bus owned and operated by the defenders struck the pursuer.

[2] Parties agreed quantum in the sum of £25,000 sterling inclusive of interest until 18 March 2014. Accordingly the proof was confined to the issue of liability including the question of contributory negligence.

[3] As the name implies Lang Stracht is a long straight road running generally east to west within the city of Aberdeen. It is a four lane road with two lanes in either direction. The accident occurred in the vicinity of its junction with Stronsay Drive. The junction is controlled by lights. There is a pedestrian crossing at the lights as well as a number of other crossings nearby. On the day of the accident it was dry and overcast. The road was dry.

[4] At about 3.30 pm that day a Citroen Picasso saloon car was stopped at lights in the eastbound offside lane on Lang Stracht. It was intending to turn right into Stronsay Drive. The car was being driven by John Corall an Aberdeen City Councillor. There were four other occupants including two other councillors, Calum McCaig and Joanna Strathdee. The car was being used as a campaign vehicle for the SNP in the general election campaign. It had two saltire flags on either side flying from the exterior of the car. The flags were on short poles. These were attached to the car by a hook which slips over the top of the window. The window is then wound up securing the flag in place. The flags flew above the roofline of the car.

[5] While the car was stopped at the lights the pursuer approached the car on the passenger side. He had crossed Lang Stracht close to but not at the pedestrian crossing from the direction of Stronsay Drive - that is from south to north. It is a matter of admission that he had consumed alcohol. He went to the front passenger side of the car. Joanna Strathdee was in the front passenger seat. She wound down the window. The pursuer asked for a flag. She looked for one on the floor of the car but they did not have one to spare. Ms Strathdee told the pursuer that they did not have one but he said that he would take one anyway. The lights turned to green. The pursuer grabbed at the flag flying from the nearside of the car breaking it off. He turned quickly and suddenly to make his way to the pavement. That involved crossing the eastbound nearside lane. The route he took was not direct but diagonally away from the junction towards the traffic. As he did so he was struck by the bus. He fell slightly sideways. The pursuer did not check that it was safe to continue crossing. The bus was travelling at between 5 and 10 miles an hour when the accident happened. The driver had little opportunity to avoid the collision.

[6] The bus which struck the pursuer was a single decker Stagecoach bus at that time operating route 215. It was driven by Mr Gordon Mackie. He has about 5 years experience as a bus driver. He had trained on that route and had been driving it for several months usually three or four times a day five days a week depending on shift patterns. It was a quiet route. Just before the accident he had taken the bus from the outside into the inside lane. He was approaching the junction with Stronsay Drive. He had a clear view in front of him and ought to have been able to see the pursuer. He observed the pursuer at the passenger side of a car on the outside lane seemingly having an argument with the occupants. At that point he was doing between 10 and 20 mph. However he took his foot off the accelerator. That action brakes the bus speed. He also drove towards the left in towards the pavement to give the pursuer more room. His intention was to manoeuvre the bus past him. The pursuer was bent over with his head at the passenger window and a hand up at the flag on the side of the car. The lights changed to green and the Citroen car started move off. The pursuer then turned and walked a few steps towards the bus hitting the windscreen. He fell and his head came to rest about 3.3m in front of the bus. Mr Mackie immediately stopped the bus.

[7] Mr Corall drove his car to the side of the road and stopped. The occupants ran back to give assistance. Mr Mackie had already attended to the pursuer and placed him in the recovery position. An ambulance was called and he was taken to hospital. Since quantum is agreed it is not necessary for me to go into the injuries that the pursuer sustained but I note from the pursuer's averments on record that he sustained head and chest injuries and remained in hospital for about 12 weeks.

Police were called to the scene and statements were taken. Mr Mackie was interviewed under caution. He cannot recollect if he was charged but he was not prosecuted.

[8] Both Mr Mackay and Mr Rolfe made written submissions which were supplemented by oral submissions. I summarise the main points.

[9] For the pursuer Mr Mackay submitted that there were two possibilities. Either Mr Mackie had failed to observe the pursuer until the last minute when there was no reason for him failing to notice the pursuer in which case he was negligent in not keeping a good lookout on the road ahead of him. Alternatively he had observed the pursuer and in particular his unusual behaviour and decided that it was sufficient to lift his foot off the accelerator as opposed to braking immediately in a situation where (a) the lights had changed or were about to change; (b) Mr Mackie did not know whether the pursuer would stay where he was or try and cross the road to the pavement; and (c) Mr Mackie ignored the possibility or probability that the pursuer would suddenly move towards the pavement. In those circumstances Mr Mackie was negligent for driving his bus forwards until it was not possible to avoid colliding with the pedestrian instead of braking as soon as he saw the unusual behaviour of the pedestrian in the middle of the road.

[10] Mr Mackay accepted that there was an element of contributory negligence on the part of the pursuer. However he submitted that the bulk of the negligence rested with the driver. Accordingly he submitted that the pursuer's contribution should be limited to 20%.

[11] Mr Mackay submitted that there was a duty on a driver to drive in such a fashion as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated; Brown & Lynn v Western SMT Co. Ltd 1945 SC 41, per Lord Justice-Clerk at page 35. He drew a parallel between the circumstances of this case and those that pertained in Eagle v Chambers [2004] RTR 9. In that case the claimant suffered serious injury as a result of a road traffic accident. The accident occurred at night on a dual carriageway along the front at a seaside resort. The weather was fine and the visibility was good. Witnesses saw the claimant, aged 17 years, in a distressed and emotional state and unsteady on her feet, walking in the carriageway. She was dressed in light coloured clothing. She had ignored advice from pedestrians and motorists, who were concerned for her safety urging her to stop. The defendant, driving his car at about 30 to 35mph struck the claimant in the outside lane. The defendant accepted that he had consumed alcohol during the evening to impair his driving ability but denied liability for the accident. The judge found no evidence that the claimant had suddenly moved or stumbled into the defendant's path. However he held that had the defendant exercised the standard of care of a reasonable driver he would have seen the claimant earlier and could have taken avoiding action. His failure to do so was causative of the accident. However he concluded that the claimant was substantially responsible for the accident and should bear a greater share of the responsibility for her injuries apportioning her contribution at 60%. The Court of Appeal allowed the appeal substituting 40% as the claimant's responsibility. Hale LJ giving the opinion of the Court said that it would be rare for a pedestrian to be found more responsible than a driver unless he has suddenly moved into the path of an oncoming vehicle. The courts had consistently imposed on the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon.

Mr Mackay submitted that Mr Mackie had accepted that he was to some extent at fault during his cross examination.

[12] As to the proportion of damages that might be assigned to the pursuer Mr Mackay referred me to Redhill v Ryder [2013] RTR 5. This involved a bus travelling at about 4mph which hit a pedestrian. Richards LJ, giving the decision of the Court of Appeal said that there was a heavy responsibility on the driver of any bus in a town centre; paragraph 32. The Court overturned the assessment of one third contributory negligence by the claimant and substituted a finding of one half. The claimant had moved into the path of the bus. In Ayres v Odera [2013] EWHC 40 (QB) the finding of contributory negligence by the claimant was 20%. In McNab v Bluebird Buses Limited [2007] CSOH 36 Lord Brodie made a finding of 50% contributory negligence. This again was a case where a pedestrian was knocked down by a bus.

[13] For the defenders Mr Rolfe's primary submission was that Mr Mackie was not at fault. If I was against him on that submission he submitted that the primary responsibility was on the pursuer. Contributory negligence should be assessed at a figure not less than 80%.

[14] Mr Rolfe pointed out that the Court of Appeal in Eagle v Chambers had qualified the statement that it would be rare for a pedestrian to be found more responsible than a driver by adding "unless the pedestrian has suddenly moved into the path of an oncoming vehicle"; paragraph 16. That was what had occurred here. Mr Rolfe submitted that this case was on all fours with the circumstances in Birch v Paulson [2012] EWCA Civ 487. In that case a pedestrian who appeared to have been under the influence of drink was observed to stand at the verge of a kerb at a traffic island. He was seen to stand at the kerb for about 15 seconds but he made no attempt to cross the road. The defendant was driving her car along the road. When she was a few metres from the man he suddenly stepped out in front of the car. An eye witness said in her witness statement that the driver had no chance of avoiding hitting the man. The judge found that given the speed of the car and reaction times the accident could not have been avoided. The judge found no fault on the part of the driver and that was upheld on appeal. Davis LJ commented that drivers are not required to give absolute guarantees of safety towards pedestrians; paragraph 32. In Stewart v Glaze [2009] EWHC 704 (QB) a man who had been sitting at a bus stop got up and walked to the kerb and then stepped out in front of the defendant's car. Coulson J found there was no liability on the defendant.

[15] Mr Rolfe submitted that the Court should be careful not to be guided by what is termed '20-20 hindsight'; Stewart v Glaze, quoting Laws LJ in Ahanonu v South East London & Kent Bus Company Limited [2008] EWCA Civ 274 (paragraph 5).

[16] Mr Rolfe submitted that on the evidence the pursuer was in a place of safety at the passenger side of the Citroen car. Mr Mackie slowed the bus down and moved over towards the kerb to get passed him. In doing so he had done all that was required of a bus driver exercising due care. The accident was caused by the sudden and unexpected dash into the path of the bus. The driver had no time to react. Accordingly no blame could attach to the driver.

Discussion

[17] I found all the witnesses to be truthful in their accounts and doing their best to assist the court. Mr Calum McCaig, who was situated in the rear passenger seat, was a most impressive witness. His observations were acute. He was careful in his evidence, not straying into opinion or speculation. Mr Corall's evidence was somewhat more exaggerated particularly in his description of the pursuer's movements but I did not think that I could or should reject his evidence. It was clear that most of the witnesses were sympathetic to Mr Mackie; Mr Robertson who was driving a car third in line at the lights behind the Citroen, and who witnessed the accident said that he had gone back to give a statement to police officers because he felt sorry for the bus driver.

[18] I found Mr Mackie to be essentially truthful and honest and at times candid in his acceptance of what he might have done to avoid the accident. However he did not have a particularly clear recollection of events. I also found it difficult to accept his estimation of distances involved.

[19] It is difficult to estimate the speed of the bus when it struck the pursuer. Evidence was led from PC David Findlay who is a traffic officer with 7 years experience of road traffic investigation. He was called to the scene around 5pm that day. However his investigations were limited as he was stood down the following day. He explained that this would occur when the collision was downgraded in seriousness; the pursuer's condition had improved. The only conclusion that he could reach was that this was a low speed collision probably from walking speed to 10 or 15mph. Mr McCaig thought that the speed of the bus was in single figures. Mr Mackie said that he was travelling at less than 5mph. Mr Robertson estimated the speed at 10mph and hesitated before accepting that it might be less. Ms Strathdee did not witness the point of impact but she is a former bus driver. She said that if the bus had been travelling more than 10mph the pursuer would have ended up under the bus.

[20] The force of the impact propelled the pursuer a distance of about 3.3 metres. There was no evidence as to what force would produce that result. All that one can say is that there must have been forward movement sufficient to knock the pursuer that distance.

[21] All agree that this was a low speed collision. However I think it likely that the bus was travelling at more than 5mph. The estimate given by Mr Robertson is probably nearest the mark. Accordingly I consider that the speed of the bus was in the range of 5 to 10mph but more likely at the higher end of that scale.

I am satisfied that there was nothing to impede Mr Mackie's sight lines and no reason for him not to have seen the pursuer before he apparently did. I say apparently because I found it difficult to reconcile some of his evidence. According to him he was travelling at between 10 and 20mph when he first saw the pursuer bent down at the passenger side of the car in the outside lane. At that point he said he was about 12 feet away. He then slowed down by first taking his foot of the accelerator. That action does not merely decelerate the bus but acts as a brake. Mr Mackie covered the foot pedal with his foot and when he saw the pursuer moving away from the car he applied the brake. According to him he was travelling at between 0 and 5 mph when he struck the pursuer. I found that difficult to accept. It seemed to me to leave little time for deceleration. There are a number of possibilities. Either he was not travelling as fast as he thought he was when he first saw the pursuer or he was further away than he thought when he first saw him or he was travelling faster than he said he was when he struck him. It could have been a combination of all three and I find that to be the most likely explanation. Indeed it seems to me that Mr Mackie must have seen him earlier than he estimated. In the first place he accepted that he had sufficient time to stop completely had he wanted to do so. Secondly he had moved the bus over towards the pavement in order to give the pursuer room.

[22] The primary issue for me is whether or not Mr Mackie failed to drive with due care and attention for the safety of the pursuer. Mr Mackie said in the course of his evidence that when he saw the pursuer he took his foot off the accelerator and covered the brake pedal. He accepted that if he had applied the brake when he first saw the pursuer he would not have hit him. He was asked if he now accepted that that was something he should have done to which he replied that he should have done. He said that hindsight is a wonderful thing and that we all make mistakes.

Mr Mackay submitted that this evidence was a clear acceptance of fault on Mr Mackie's part. Mr Rolfe's submissions were to the effect that Mr Mackie had done all that was required of him by slowing down, covering the brake and moving over to the side to give the pursuer room.

[23] One must be careful not to over analyse with the benefit of hindsight, particularly in the relative comfort and forensic atmosphere of a court room. Nevertheless I cannot accept Mr Rolfe's submissions that there was no fault on the part of Mr Mackie. The difficulty is this. The pursuer was standing at the nearside of the outside lane beside the car. The lights had just or were just about to turn green. There were a number of cars in the outside lane. They were about to move off. The bus was in the inside lane. As the cars moved off the pursuer would be left in the exposed position between the line of vehicles in the outside lane and the bus and any vehicles following the bus in the inside lane. At that point the pursuer was bound to try and get to safety. The nearest point was the pavement. To get there he would have to cross the inside lane. Mr Mackie however had moved over to manoeuvre past the pursuer potentially leaving him in the middle of moving traffic.

[24] Mr Rolfe first submitted that the pursuer was in a place of safety where he was. Indeed although I pressed him on this I did not understand him to budge from that primary submission. He did however suggest that the pursuer could easily have gone the other way to the centre of the road. That is true but that would mean crossing the line of traffic in the outside lane. The more natural way for the pursuer to go was to the pavement. In order to do so he would either have to cross in front of the bus or wait until it and any traffic behind had passed before reaching the safety of the pavement.

[25] The fact that the pursuer was actually on the roadway and not in a safe position in my opinion clearly distinguishes this case from the facts in Birch v Paulson and Stewart v Glaze relied on by Mr Rolfe. As I will come on to discuss the pursuer's behaviour contributed in large measure to the accident. Nevertheless there is a heavy onus on drivers to look out for pedestrians on the road even when they are behaving with a disregard for their own safety. I consider that, exercising due care and attention Mr Mackie ought to have brought the bus to a stop rather than try and get past him. Had he done so, as he accepted, the accident would not have occurred.

Contributory Negligence

[26] The pursuer did not give evidence. There was no explanation offered as to why he was not a witness and I cannot speculate on what he might or might not have said. Given his injuries it is entirely possible that he is unable to recollect much of what happened. I can only make findings based on the observations of others.

I am satisfied that the pursuer was careless of his own safety. He could and should have crossed at the pedestrian crossing. Although the traffic in the outside lane travelling east was stopped at the lights it would be obvious that the traffic would begin to move when the lights changed to green. He should not have approached the car standing at the lights in the outside lane. It is accepted that he had consumed alcohol. Mr Corall described him as staggering. No one else mentioned that although Ms Strathdee said that he banged on the bonnet of the car as he crossed in front of it. The critical issue is not whether he was under the influence of alcohol but what his actions were. However it may be that actions may be explained by a mixture of alcohol, and having taken the flag, adrenalin. His manner and demeanour at the window of the car, his stealing of the flag and his walking without looking into the path of the bus demonstrated that his mind was far from the task of crossing the road.

[27] The evidence showed that after he grabbed the flag from the car the pursuer turned and made off toward the pavement. Mr McCaig said that he walked. Mr Corall said that he pirouetted round straight into the bus. I thought that exaggerated and he did not have as clear a view as the others. Mr Robertson said that he turned quickly. There appeared to be agreement that the pursuer did not move directly towards the pavement but diagonally, that is into the path of the bus. Mr Mackie said that the pursuer walked into the bus. Since that evidence accords with the other evidence I accept it. It is also clear that the pursuer did not look before he walked away and that, given the path he took, Mr Mackie had little chance at that stage of avoiding the accident. It is clear that he did not see the bus since the evidence, which I accept, is that he walked diagonally into its path.

[28] Mr Mackay accepted, as he had to, that there must be a finding of contributory negligence. The question is what the proportion should be. I accept that it will be rare for a pedestrian to be found more responsible than a driver for an accident in which a pedestrian is hurt. However in Eagle v Chalmers the Court of Appeal in England specifically made an exception where a pedestrian had suddenly moved into the path of an oncoming vehicle. That is what happened here.

[29] In my opinion the pursuer must bear the heaviest responsibility for what happened. He paid no heed to his own safety. He crossed the road away from pedestrian crossings. He approached the car in the outside lane when it was stopped at lights. That was inherently dangerous. He stole the flag from the vehicle. He turned quickly without looking and walked a few steps into the path of the bus.

The apportionment of blame as between two parties is always difficult. Nevertheless I am satisfied that by far the greatest blame for the accident lies with the pursuer. Accordingly I shall find the defenders liable to the pursuer but assess contributory negligence at 85%.

[30] I shall make an award of damages of £3750 with interest thereon from 19 March 2014 to date of decree at the rate of 4% per annum. I shall reserve the issue of expenses.