BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCreery v Letson & Ors [2015] ScotCS CSOH_153 (10 November 2015) URL: http://www.bailii.org/scot/cases/ScotCS/2015/[2015]CSOH153.html Cite as: [2015] ScotCS CSOH_153 |
||
[New search] [Help]
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 153
PD2197/14
OPINION OF LORD BANNATYNE
In the cause
VERONICA McCREERY
Pursuer;
against
TERRENCE LETSON and OTHERS
Defenders:
Pursuer: A Smith QC, Galbraith; Drummond Miller LLP
Defenders: Wilson; Clyde & Co
10 November 2015
Introduction
[1] This action came before me for proof and the issues before me were restricted to liability and contributory negligence.
[2] In the action the pursuer sought reparation for loss, injury and damage which she sustained as a result of a road traffic accident on 21 October 2011 on the U328 Liff Hospital Road.
[3] Shortly before the accident the pursuer had got off a bus which had stopped in a layby on the opposite side of the road from one of the entrances to Liff Hospital. This was a designated bus stop. The pursuer was crossing the said road towards the hospital entrance when she was struck by a van driven by the first defender who at the material time was working in the course of his employment with the second defenders.
[4] The pursuer did not give evidence in that as a result of the injuries she sustained in the accident she had no memory regarding the circumstances surrounding the accident.
The locus of the accident
[5] The accident occurred on an unclassified road from Dundee to Liff (the U328) at the junction with North Road and the entrance to the Royal Dundee Liff Hospital.
[6] The road at the point of the accident runs in a generally east/west direction. It has a width of 5.7 metres. It is a rural two way undivided road to which the national speed limit of 60mph for cars applies. Goods vehicles not exceeding 7.5 tonnes are subject to a maximum speed restriction of 50mph.
[7] At the locus of the accident there is on the north side of the road a bus stop and shelter. The bus stop is situated within a layby which measures 62.5 metres in length and at its widest point is 4.3 metres in width.
[8] Directly opposite the bus stop on the south side of the road is a bell mouth entrance into the said hospital.
[9] As one travels westwards towards the locus the carriageway curves very slightly right before travelling relatively straight to the locus. The point at which the curve ends is approximately 65 metres before the locus.
[10] About 520 metres east of the locus there was a sign warning of disabled persons crossing the road.
The circumstances of the accident
[11] The bus on which the pursuer was travelling had four video cameras. The video obtained therefrom was date and time stamped and the timings stated hereafter are from these cameras.
[12] The pursuer was on a bus travelling east towards Dundee. The bus pulled into the bus stop in the layby on the north side of the road opposite the entrance to the hospital. The bus pulled into the layby behind a lorry. The pursuer got off the bus at about 12.07.56. She intended to cross the road and go into the hospital grounds. When she descended from the bus she turned left and walked along the nearside of the bus towards its rear. She then went behind the bus. She reached the rear offside corner of the vehicle at about 12.08.05. She then walked out from the rear of the bus onto the carriageway and was walking across the carriageway between about 12.08.05 and 12.08.09.
[13] Shortly after 12 noon the first defender was driving west along the said road in a Mercedes Benz HGV registration number YD58 HBG.
[14] He approached the locus. At about 12.08.05 the van driven by the first defender was first seen by the forward facing camera on the bus. At about 12.08.10 the van driven by the first defender collided with the pursuer.
[15] At about 12.08.01 the bus began to move away from the bus stop and to pull out of the layby past the lorry parked in front of it. The front of the bus as it made the said manoeuvre moved towards the centre of the road. The width of the road available to the first defender’s van became more restricted as a result of this manoeuvre of the bus.
The pursuer’s case
[16] It was accepted by Mr Smith on behalf of the pursuer that the court should make a finding of contributory negligence against the pursuer and he submitted that the appropriate finding should be a figure of one-third.
[17] However, it was his position that the way that the first defender had driven his vehicle at the relevant time was negligent. Mr Smith characterised the negligence in this way:
“The defender was negligent in his driving; that he knew or ought to have known that there was a risk of pedestrians seeking to cross the road or otherwise be in the road; and that he should have moderated his speed accordingly. This case is absolutely not that when the pursuer was visible, the defender should have been able to avoid her. We say, simply, that he should never have been in a position of extremis as he found himself”.
[18] He went on to say this: the first named defender was aware of the dangers ahead: having seen the warning sign and being aware of the presence of the bus: “the obvious and clear obligation (against that background) would have been to slow, so that he did not end up in a situation whereby he was faced with the very danger that he is warned of in the Highway Code”, namely: persons seeking to cross the road from behind a bus.
The specific issues arising
[19] Given the approach taken to the issue of negligence on behalf of the pursuer, the issues which in my opinion arose in judging whether there had been a failure by the first defender in the duty of care which he owed to the pursuer were these:
The following witnesses gave evidence which was relevant to these issues:
I now turn to address each of these issues.
1. The warning sign
[20] The first defender had driven this road before and was aware of the warning sign and said that he observed it on the day of the accident. The first defender gave no evidence that he had taken any action in light of the warning sign. His evidence was that at that point he was travelling at 40 to 45mph and his implicit position was that that was a safe speed having regard to the speed limit on the said road and the presence of said warning sign.
2. The first defender’s reaction to the presence of the bus and the movement of the bus
[21] The first defender’s position in evidence was that he saw the bus behind the lorry in the layby and the bus pulling out as he approached the locus. When he saw the bus he said his reaction was this: “probably covered brake in case bus came out”.
[22] He saw the bus pulling out when he was 30 to 40 yards from the entrance to the hospital. He was travelling at about 40mph. As the bus started to move out he took his feet off the accelerator. As it continued to move out he started braking slightly. When he first saw the pursuer he was doing about 30-35mph.
[23] He was asked in examination in chief a number of questions about the risk of people walking out from behind a bus and he said this:
A. “Don’t expect someone to walk out from behind buses”.
“Q. Recognise particular danger at bus?
A. Not expect people to walk out from behind bus”
“Q. People can sometimes be a bit silly – approaching scene at over 30mph?
A. It is not a 30mph zone, driving at 40 to 45mph”.
A. “Didn’t cross my mind pedestrian might be crossing”.
With respect to the above evidence of the first defender Mr Smith submitted that he had not considered the possibility of a pedestrian attempting to cross behind the bus. The Highway Code, although requiring a pedestrian to look before crossing and to exercise caution, also warned drivers to be aware of the risk of pedestrians crossing the road from behind buses. The foregoing summary of the position as set out in the Highway Code was not disputed by Mr Wilson on behalf of the defenders. In addition, the presence of the hospital and of elderly and disabled people was indicated by the sign. The defender was aware of the fact that a hospital was ahead, and that a bus stop was ahead. He submitted that what was clear from the evidence was that as the first defender approached, what Mr Smith described as a scene of increasing danger, he either did not consider the possibility of someone crossing the road, or discounted it. Either way, the risks of a pedestrian crossing from behind the bus was an irrelevance to the first defender.
[24] Mr Wilson’s position in reply was that the first defender had reacted appropriately to any dangers. On the evidence he had braked as he saw the bus and by the time he saw the pursuer his vehicle was travelling at 30 to 35mph. With respect to the first named defender’s response to the questions put to him by Mr Smith as set out above, he said this: the first defender’s position had been that he was aware of the risk and that he was always careful on that road because of joggers, horses etc. He had explained that was why he was driving at 15 to 20mph less than the 60mph speed limit. He went on to say that he did not expect someone to walk out from behind a bus but that was a different matter from not being aware of the risk that that might happen.
3. The first defender’s speed prior to the accident
[25] The first defender’s evidence on this was that when 200 yards from the locus he was travelling at 40 to 45mph. I have set out in the previous section his evidence regarding his speed at various stages. He went on to say that when he saw the pursuer he had braked hard and that when he hit the pursuer he was doing less than 30 to 35mph.
[26] The position of Mr Blackwood was that the first defender’s van had approached the locus at a speed of 30mph. I will look in more detail at his evidence later in this opinion, in light of the submissions made.
[27] The only other evidence on this issue came from three witnesses: first, Mr Beaton who estimated the speed of the van as it approached the locus as being 45 to 50mph and he said he thought this a bit fast given the signs for disabled people which were up. The second person to give evidence on this issue was Stewart Taggart and he described the van driven by the first defender as zipping past. He was going a bit fast. He estimated the van speed at 50mph although he accepted in cross examination that this was a guess. In his police statement he described the first defender as being on the gas and he adopted this as part of his evidence. Thirdly, Miss Hutchison’s evidence was that she was not sure as to the speed of the van. She said “driving looked normal to me”.
[28] It is perhaps convenient at this stage to deal with Mr Smith’s position regarding Mr Blackwood. I believe it would be fair to describe his position regarding Mr Blackwood as a root and branch attack on his evidence. His position was that on all material matters Mr Blackwood’s evidence should not be accepted. He went so far as to submit “that he was plainly going out of his way to assist the defender at all costs”.
[29] In support of that broad contention he made the following detailed point in his written submissions:
“1. He failed to narrate the very extensive portions of the Highway code that related to the obligations of a driver. However, he narrated in full the provisions relating to pedestrians. He had no good explanation for this omission other than ‘oversight’.
2. He failed to mention the presence of the road sign warning of the hospital and risk of persons crossing. His explanation is simply unacceptable that it was warning of an entrance to the hospital earlier. By analogy, if one sees a sign warning of low flying aircraft, or deer, is it seriously suggested that after 50m or so, one can assume there is no elevated risk? This omission it is submitted is indicative of bias.
3. He did not carry out ‘throw’ calculations to assess the speed of the vehicle at impact. His explanation that it was a glancing blow and they might not have helped might have been a good one if he had said that in his report. However, he was palpably unaware of the fact that the pursuer ended up at the side of the van some 30m away.
4. He was reluctant to engage in the exercise of saying how much time would have been saved by a speed reduction from 100m away, suggesting that it was not possible to do the calculation. However, as was demonstrated, this was a simple exercise which he agreed gave appropriate figures on certain assumptions. His reluctance was, it is submitted, either because of bias or a failure to understand a simple proposition of physics.
5. He was prepared to speculate about a number of matters including the point of impact – which is logically not in front of the car emerging from the bell mouth.
6. In 7.6 (of his report) and following, he suggests something that is not part of the case by either party nor is it what the defender suggested: that somehow the pursuer might have blended in to the background. This is designed, it is submitted, to serve the defender’s interests.
7. He fails to address the pursuer’s case that the defender could have slowed down prior to the hazard perception.
8. The explanation for why the pedestrian would be able to see 100m, but the driver sees less was simply incomprehensible, no doubt again designed to serve the interests of the defender. There were no measurements of height of the driver versus that of the pedestrian, although Mr Blackwood sought to suggest that that was an influence.
9. He failed to calculate the speed of the vehicle using coefficient of friction on the basis of the stop distance. When he did it in the witness box, his answer (of about 42mph) was immediately coupled with an explanation that there can’t have been full braking. He was thus willing to try to explain the inconsistency with his own evidence by denouncing something that was clearly the position of the first defender. The other explanation is that he got his calculations wrong”.
[30] His secondary position regarding the evidence of Mr Blackwood was that, in any event, I should prefer the evidence of the two eye witnesses (Taggart and Beaton) with respect to the speed of the first defender’s van.
[31] Mr Wilson in reply submitted that I should accept the evidence of Mr Blackwood on speed. He submitted this: that the most objective evidence was that of the defenders expert. It was based on the plan 6/2 of process (prepared by PC Cargill) and the CCTV footage. He submitted that his analysis of distances and speeds based on the detailed timings contained in the CCTV footage was carefully and objectively carried out. He submitted that I should accept his opinion on speed, namely that in the 65 metres pre the point of impact the first named defender’s speed was in the region of 25 to 35mph. That he submitted was more or less the same figure as given by the defender in his evidence in answer to questioning from Mr Smith. Accordingly, he submitted that if I did not accept Mr Blackwood’s evidence, nevertheless he invited me to accept the pursuer’s own evidence on speed.
[32] With respect to the evidence of the two eye witnesses he submitted that Mr Taggart in relation to his estimate of the speed, namely: 50mph had accepted in cross-examination that this was a guess. He also submitted that this witness was unreliable as there was a difference between his evidence in court and his position in his statement to the police as to where he was at the time of the accident, either in the cab of the lorry or outside the lorry.
[33] With respect to Mr Beaton his position in evidence was that it all happened in a second and he submitted given this: the court could not really hold his evidence as reliable.
[34] In summary it was his position that I should accept the evidence of the first defender and Mr Blackwood (which coincided) with respect to speed and reject the evidence of Mr Beaton and Mr Taggart.
4. The pursuer’s movements prior to the accident
[35] As I have said the pursuer was not in a position to give evidence and accordingly the only evidence on this came from the first defender and from Mr Blackwood. The latter’s evidence being based upon his analysis of the CCTV footage from the bus. I have set out this analysis earlier.
[36] The first defender’s position was that he was approaching the bus. The bus was pulling out from the bus stop. He had to swerve slightly to the left to get past the front of the bus and at that point he saw the pursuer. He braked “hard” with “full force”. He described the pursuer as being slightly left of centre and the gap being bigger behind her than in front of her so he swerved to go behind her.
5. The visibility of the first defender’s van as it approached
[37] The only evidence on this came from Mr Blackwood and was this: from the layby the pursuer (if there were no obstructions) would have had a view of the van when about 100 metres east of the locus. However, her view would have been materially reduced because of the presence of the lorry in the layby and the bus as it moved out.
[38] The first defender as he approached the locus would have been able to see part of the layby and therefore part of the lorry and bus from 100 metres away. He would have had a full view of the bus and van and accordingly the whole of the layby from about 70 metres away.
[39] Mr Blackwood’s position was that the first named defender would first have seen the pursuer when he was 18.48 metres from the point of impact. It appears therefore that the first opportunity the pursuer would have had to see the first named defender’s van from the offside rear corner of the bus would have been from a distance of about 18.48 metres.
Analysis of the evidence on the above issues
[40] At the heart of the pursuer’s case was the contention that the first defender had failed to react appropriately to risks by moderating his speed.
[41] It was the pursuer’s position that:
With respect to the warning notice I hold that he did not react to this and continued to drive at 40 to 45mph. That was the first defender’s position and I saw no reason why I should not accept this evidence.
[42] With respect to the presence of the bus and the bus moving out, the first defender’s van was at that stage on his evidence travelling at about 40mph, his only reaction was to take his foot off the accelerator, he having said that when he saw the bus he had probably covered the brake in case the bus came out. He also said that when he saw the bus come out he had braked slightly. I did not accept that he had braked slightly. It did not fit in with his earlier evidence of merely taking his foot off the accelerator and covering the brake. Moreover, he did not say this in his statement 6/6 of process (given shortly after the incident). In this he only said: “lifted my foot off the accelerator”. His position as regards braking in his statement to the police was this, after seeing the pursuer: “My foot was hard on the brakes” and he repeated the above in his evidence. Thus it appeared from this evidence that the only material braking was in response to seeing the pursuer and not before.
[43] So far as any reaction to the risk of a pedestrian appearing from behind the bus I have earlier set out the first defender’s answers to a series of questions on this issue. On the basis of these answers he did not address his mind to this risk. He did not foresee this risk and he took no action in light of this risk. The risk of someone walking out from behind the bus was reasonably foreseeable. His ability to see such a person was significantly limited by the bus drawing out from the layby towards the centre of the road.
[44] Looking overall at the pursuer’s evidence I am persuaded that his lack of perception of the risk and his evidence as to what actings he took (in so far as I accepted that evidence) coincide and show that the pursuer took no action on becoming aware of the bus and its moving out from the layby.
[45] With respect to his speed on approach to the locus this issue is inter-related with the issue of his reaction or lack thereof to the presence of the bus and its moving out from the layby. The first defender’s position was that he was travelling at 30 to 35mph (when he first saw the pursuer). I am satisfied that his speed was greater than this and about 40mph. I have reached that view in that the first defender in his evidence said that was his speed in the earlier stage as he was approaching the locus and I saw no reason not to accept that evidence. Thereafter on the evidence which I accepted he had taken no material reaction to modify that speed when he saw the warning sign and when he saw the bus and the bus moving off. This lack of reaction and failure to modify his speed finds some support in the first defender’s evidence that as he passed the bus he had to swerve into the entrance to the hospital in order to get round the bus. Having to carry out such a manoeuvre suggests that the first defender was travelling too fast. If the bus was coming out onto the road in such a way that the gap was becoming too narrow for the first defender to get past without swerving, he should have been reducing his speed considerably to avoid having to swerve to avoid the bus.
[46] In addition to the evidence of the first defender as regards his speed on approach there is also the evidence of Mr Blackwood that the approach speed was 30mph. This figure was based on a consideration of the film from the cameras on the bus and their accompanying time stamp, together with his opinion from analysis of the film: “that the approach speed of the (van) from the point where it becomes visible is relatively constant and does not appear to reduce significantly on its approach. However such speed reduction could occur as it reaches and passes the (bus) which is consistent with the physical evidence detailed on the Police Scale Plan”. (see: paragraph 9.19 of his report).
[47] There are in my view certain difficulties with the evidence of Mr Blackwood in relation to the speed of the van as it approached. First his position is incompatible with the first defender’s position in evidence that he braked fully. Mr Blackwood’s position with respect to the speed of the first defender’s van is based on the first defender not applying full braking from when he saw the pursuer. As I have said the first defender in his evidence said that he applied full braking from when he saw the pursuer. I saw no reason to not accept the first defender in relation to this. Such a reaction from a driver would be what would normally be expected on seeing a pedestrian in the road in front of his vehicle. If he did apply full braking then Mr Blackwood’s position was that the first defender’s approach speed was 42mph. That figure I believe tends to fit in with the view of speed I have formed from that part of the first defender’s evidence which I have accepted as I have earlier set it out. It also tends to fit in with the evidence of the two eye witnesses. The two eye witnesses were independent witnesses who separately believed the first defender’s speed was too high as he approached the locus and in the range of 45-50mph. They of course had only a short time to reach that view and it is of course not easy to judge speed, however, they independently arrived at the view that the defender’s speed was too high and that it was in the range of 45mph to 50mph and I was persuaded that I should accept the qualitative assessment that it was too high a speed and that the speed was not as low as 30mph.
[48] The second difficulty with his calculation of speed was this: the position of the pursuer at the time of the collision. In his evidence he placed the pursuer in a position which seemed logically unlikely, namely in front of the car driven by Ms Hutchison in the bell mouth of the entrance to the hospital. If that is not correct and I am persuaded because of its logical unlikelihood that I should not accept it then that throws out his calculation of speed which is based on his understanding of the point of impact. Mr Blackwood accepted in his evidence that he was not aware of the exact point of collision.
[49] Thus before turning to the argument advanced by Mr Smith in the course of his submissions as to whether I should accept this witness’s evidence I would say this: there are I believe good reasons for not accepting his evidence regarding the speed of the van as it approached the locus, for the reasons which I have sought to lay out above.
[50] I now turn to Mr Smith’s submissions regarding Mr Blackwood. In my opinion there is some force in the submissions.
[51] Given the nature of the dispute between the parties Mr Blackwood’s failure to quote the relevant provisions in the Highway Code relative to the duties incumbent on the first defender where a bus was present in circumstances where he had quoted in full those applying to the pursuer was not acceptable. Such a presentation did not I am satisfied give a full and balanced picture to the court.
[52] His failure to mention the warning sign given it formed a material part of the pursuer’s case was also I believe odd and again tended to suggest that the report was not balanced. His explanation for this omission, as set out by Mr Smith, in my opinion did not explain the omission. One would have expected him in his report to say why he had not found it significant, if that was his position, rather than not referring to the warning sign at all.
[53] Mr Blackwood’s failure in his report to calculate the speed of the vehicle driven by the first defender by using the coefficient of friction on the basis of the stop distance again appeared surprising. This is a well-recognised method for the calculation of speed of a vehicle. No real explanation was given as to why it had not been used. It is my opinion that in order to provide a report containing all relevant information for the court, the figures produced by such a calculation should have been provided by this witness in his report. In particular I am persuaded that is the case where the figures provided, when this method of calculation was used, produced a materially different figure from that stated in Mr Blackwood’s report and produced a figure which was significantly less favourable to the defenders’ position. Again I believe this showed a lack of balance and even handedness in the preparation of the report.
[54] In addition Mr Blackwood had not carried out throw calculations which again is a well-recognised method of calculating the speed of a vehicle involved in a pedestrian collision of this type. Mr Blackwood gave an explanation in court as to why he had not used this method of calculation of the speed of the vehicle, namely: because the pursuer had been struck a glancing blow. This failure to do a throw calculation given the explanation proffered by Mr Blackwood is a less significant point than the others made by Mr Smith. Nevertheless it is a matter which I would have thought should have been covered in the report, even if it was only covered to the extent of an explanation as to why this form of calculation was not used. Overall his calculation of the speed of the vehicle driven by the first named defender appeared to me not to be approached in a wholly balanced fashion.
[55] The section of Mr Blackwood’s report between paragraph 7.6 and 7.8 was, as submitted by Mr Smith, not part of the case put forward by either party. However, it clearly favoured the defender’s position and I again find some force in Mr Smith’s submission that this seemed designed to serve the defenders.
[56] In addition there was as submitted by Mr Smith no effort by Mr Blackwood in the course of his report to engage with and comment upon the pursuer’s case. Rather the report dealt entirely with the position put forward on behalf of the defenders. Given that the pursuer’s approach was entirely different from the defenders, once more I believed in order to present a balanced report the pursuer’s case had to be examined by this witness and commented upon and not just the defenders’ position. One aspect of this was as follows: Mr Blackwood in his report did not deal with the question of the effect of various levels of speed reduction from 100 metres from the locus of the accident. When he was asked to carry out this exercise in the box he was able to do this by the carrying out of certain simple calculations. This appeared to me to be an example of his failure in his report to engage with the pursuer’s case. This again in my judgment evidenced the overall lack of balance in his report.
[57] So far as his giving different figures for the distance at which a pedestrian in the layby could see the first defender’s van as it approached (100 metres if no obstructions) and the first defender could see the layby (70 metres) I found his explanation unconvincing and difficult to follow based on the information which he put before the court. In any event by the end of his evidence on this issue he appeared to accept that at 100 metres from the locus the first defender could have seen at least partly the lorry and the bus, in the same way that according to his evidence the pursuer but for the obstructions of the lorry and the bus could have seen the van.
[58] Overall I believe there are a number of individual issues in relation to the report prepared by Mr Blackwood which suggested a lack of overall balance and even-handedness in the preparation of the report. Taking the various individual matters together I am persuaded that the report did lack the necessary balance. In these circumstances I am not prepared to accept the evidence of Mr Blackwood relative to the speed of the first defender’s vehicle as it approached the locus of the accident, namely 30mph. Rather based on that part of the first defender’s evidence which I accepted, the evidence of the two eye witnesses and Mr Blackwood’s evidence based on the coefficient of friction and stop distance I hold his speed on approach was about 42mph.
[59] For the above reasons I am persuaded that the first defender did not modify his driving as he approached the locus of the accident and in particular as he approached the bus and that he approached it at about 42mph, the speed he had been travelling at for some distance prior to the collision. In my judgment that was too high a speed to approach an area of potential hazard. The potential hazard was presented by the entrance to the hospital, the potential presence of disabled people, as was signalled by the warning signs some distance before and the potential of persons coming from behind the parked bus and as it moved away. If a bus is at a bus stop or just moving away therefrom there is a material risk of a pedestrian acting foolishly and walking across the road behind the bus. Such a danger does not only exist where there is a school bus and the likelihood of the presence of schoolchildren as appeared to be suggested by Mr Wilson. The final potential danger was this: his view of what would emerge from behind the bus was further limited by the bus pulling out towards the centre of the road. The fact that the bus was pulling out and thus even further limiting the first defender’s view as to what was happening at the rear is in my view an important factor. It not only limited the first defender’s view, it also limited the gap which the first defender was intending to go through. Figure 10 in Mr Blackwood’s report shows the extent to which the bus was limiting the gap and this is confirmed by the first defender’s evidence that he required to swerve into the bell mouth to get round the bus. Where the bus was manoeuvring in this way the duty on the first defender was to moderate his speed.
[60] The submission on behalf of the pursuer was that 35mph or even 25mph would have been too fast. In elaboration of this point Mr Smith stated that the Highway Code made it clear that significant injury could occur even at 20mph and whatever the defender did, he managed to hit the pursuer at such speed that it caused her very significant injury.
[61] In reply to this it was Mr Wilson’s position that what Mr Smith was seeking to do was to impose an absolute duty on the first named defender. He was seeking to impose a duty which guaranteed the pursuer’s safety. He described the approach advanced by Mr Smith as not practical and not the law. In support of this he referred me to the judgment of Mr Justice Coulson in Stewart v Glaze [2009] EWHC 704 (QB) at paragraphs 7.2 and 7.3.
[62] In further support of this submission he directed my attention to paragraph 38 of the opinion of the Lord Ordinary in Jackson v Murray [2012] CSOH 100 which was in the following terms:
“38. Mr Smith also referred to a judgment of the Court of Appeal in Howell-Williams v Richards Brothers & Anor [2008] EWCA Civ 1108. This case concerned injuries sustained by a five year-old child who was struck by a car as she ran across a road from behind a school minibus. It is noted by the Court of Appeal (paragraph 13) that the trial judge had described the duty of a driver when approaching a stationary school bus as being
‘…first to keep a lookout, to see that it is a school bus; then to modify, if necessary, [his/]her driving; and lastly to be vigilant for any child stepping out into or running into the road’.
I respectfully agree with this formulation and propose to adopt it in assessing whether the defender in the present case was negligent. Mr Smith’s submission, as I understood it, came to be that in order to fulfil his duty of care, a driver approaching a stationary minibus which might be a school bus was bound to reduce his speed to the extent that he would be able to stop in time to avoid a collision no matter how late a child (or other person) were to emerge from behind the bus and attempt to cross the road in front of him. I regard this submission as placing an unfounded and unrealistic burden on a car driver. I was referred to no authority in support of it and in my opinion it does not accord with common sense or the direction to drivers in the Highway Code (para 206) to ‘drive carefully and slowly…[inter alia] when driving past bus and tram stops; pedestrians may emerge suddenly into the road’. I agree with Mr Hanretty that it would impose an unreasonable duty on drivers to require them to slow to perhaps walking pace every time a potential hazard presented itself and, indeed, would create multiple additional hazards as drivers negotiated their way at intermittent speed along a road, braking almost to a halt every time an obstacle capable of concealing an irresponsible pedestrian presented itself. It appears to me to be inevitable that circumstances may occur in which a child or other pedestrian will emerge into view too late for a driver proceeding even at a reasonable speed to react and brake quickly enough to avoid an accident, in which case the driver would escape liability. An example of a case of this kind is mentioned in Clerk & Lindesell on Torts (20th ed. 2010) at paragraph 8-183. The duty of the driver, in my opinion, is rather to proceed as set out above, driving sufficiently slowly and carefully to give himself or herself a reasonable opportunity to react and take action to prevent a collision should the foreseeable event occur of a child or other person attempting to cross the road”.
[63] It was his position that what was said there remained a correct statement of the law.
[64] It appeared to me that Mr Smith’s submission in the instant case came close to what he had submitted in Jackson v Murray as set out above. I agree with Lord Tyre that this would place an unfounded and unrealistic burden on the car driver. However, I am persuaded that to approach the locus at about 42mph was to approach at too fast a speed, given the potential hazards which the first defender was facing as I have outlined these above. Given these potential hazards it did not comply with the duty to take reasonable care for the safety of other road users to approach the locus at that speed. The question then arises: what would a reasonable speed have been for the first defender to approach these potential hazards? I would answer that question as follows: an appropriate speed to approach the locus would have been 20 to 29mph. Such a speed is not requiring the driver to slow down to walking speed, when a potential hazard arises, which is unreasonable and unrealistic. However, it does I believe properly take account of the number and degree of potential hazards, which the first defender was facing as he approached the locus.
Causation
[65] Having made a finding as to the speed at which I believe the first defender ought to have been driving as he approached the locus of the accident, I turn to the issue of causation. I believe on the evidence that the first defender was aware at all relevant stages of the hospital entrance and the possible presence of disabled people at the hospital entrance. He was or should have been aware of the bus in the layby and the possibility of persons coming from behind the bus from approximately 100 metres from the collision site. Mr Blackwood’s final position on the issue was this: he accepted the defender would have been able to see the bus at least partly from approximately 100 metres away. He should have been aware of the bus drawing out very shortly thereafter.
[66] Taking the above position as to when the first defender would have seen the bus in the layby Mr Blackwood was asked in cross-examination a number of questions about the reduction in speed necessary to avoid the collision: he agreed that if at 100 metres from the locus of the accident the first defender had reduced his speed from 45mph to 40mph the accident would have been avoided. He also accepted that the collision would have been avoided if the first named defender had appreciated at 100 metres from the locus the danger and reduced his speed to 35mph. He was asked this: if rubbed off just a little speed was it unlikely that the pursuer would have been struck, he answered: yes. The defender’s position that on the evidence the first defender was not in a position to appreciate risks at 100 metres I did not accept this for the reasons already stated.
[67] I am persuaded for the foregoing reasons that had the first named defender reduced his speed to the speed which I have found to be a reasonable one in the circumstances then the accident would have been avoided. Accordingly I believe had the defender fulfilled the duties I have held incumbent upon him, then the collision would not have occurred. The causative test is therefore met.
Conclusion on Liability
[68] I am persuaded for the foregoing reasons that the first named defender failed to take reasonable care as he approached the locus of the accident in the following respects: the first defender was aware of the warning sign. He accordingly ought to have been aware of the potential for disabled persons crossing at or about the locus of the accident. The first defender should have appreciated the risk of someone, however foolishly, walking out from behind the bus. He failed to appreciate that risk and was accordingly not keeping a lookout for such an event occurring and reducing his speed to take account of it. He did not reduce his speed as he approached the bus. He approached the locus of the accident at or about 42 miles per hour, this was too high a speed to approach the locus, given the presence of the entrance for the hospital, the road sign having warned of the possibility of disabled people, the presence of the bus, the risk of persons coming from behind the bus and the drawing out of the bus which limited to an even greater extent his ability to see what was happening beyond the back of the bus and in addition limited the gap through which the first defender’s van had to pass.
Contributory negligence
[69] It now remains to deal with the issue of contributory negligence.
[70] The pursuer’s position, as I have already said, was to accept a finding of one-third contributory negligence.
[71] In support of this position Mr Smith in particular relied on the decision of the Supreme Court in Jackson v Murray 2015 UKSC 5 and the guidance given therein.
[72] He advanced the following argument in his written submissions:
“We submit in this case it is worse for the defender (than the position of the defender in Jackson v Murray where a 50:50 finding was ultimately made by the Supreme Court). He actually appreciated the danger; and the graphic reconstruction shows a scene of considerable danger from both the bus and the obvious danger of persons crossing. Equally, the pursuer had a restricted view of the road. One might say she should not have crossed when the view was restricted, but we deal with that below: in Jackson it was held that she actually must have walked out when the defender’s car was bearing down on her. In addition, the pursuer was in a run at some point.
We submit therefore that any contributory fault on the part of the pursuer was less than in Jackson.
We should also consider what the pursuer might have seen when she commenced walking out. As far as we know, if she had looked out just as the bus was moving, from the camera view of the bus it would have been hard to say that the defender was visible. The onus of proof on contributory negligence of course is on the defender.
Can it be said on the evidence that if she looked, she would have seen anything other than a clear road ahead? Unaware of the speed at which the defender was approaching? The defenders have we submit failed to show that she would have.
AGE OF THE PURSUER IN JACKSON VERSUS THIS CASE
We submit that there is no material difference in the obligations of a 13 year old compared to the pursuer in this case. As was found by the Lord Ordinary and recorded at paragraph 12, the pursuer was ‘fully aware’ of the risks from the road. That finding was not challenged on appeal, and not disputed in the Supreme Court by the majority judgment.
Indeed as recorded in para 14, the Inner House also took the view (even whilst altering the finding to 70%) that she would have been fully aware of the risks.
We submit therefore, having regard to the observations in Jackson, that as the pursuer was an informed 13 year old, there is no merit in any suggestion that a distinction has to be drawn where an adult is crossing the road.
On the findings in Jackson, the pursuer must have stepped out in front of a car which she could see approaching at speed. We say that there is qualitatively a greater culpability on the basis of the approach of the Supreme Court than in this case, where there is no evidence that the pursuer would or should have actually seen the defender squeezing through a gap.
For that reason we say therefore that any contributory fault should be limited to one third”.
[73] In reply Mr Wilson on behalf of the defender submitted:
How does the Court apportion blameworthiness and liability between the pursuer and the defender so as to arrive at a just and equitable result?
It was he submitted necessary to take account of both the blameworthiness of the parties and the causative potency of their acts. Accordingly while the causative potency issue of the defender driving a vehicle remains an issue, it is not the sole one and the issue of the respective blameworthiness of the parties remains crucial, see Eagle v Chambers 2003 EWCA Civ 1107 [2004] RTR 9.
He accepted that a car could do more damage than a person.
However, he submitted that the pursuer’s behaviour was seriously blameworthy and as such of major causative significance.
Compared to this, what is the extent of the culpability of each of the pursuer’s and defender’s behaviour? He submitted that it was the pursuer’s behaviour that was the more direct and immediate cause of the damage.
The pursuer had relied on Jackson v Murray in which the majority of the court held that contributory negligence should be assessed at 50%.
The facts of Jackson v Murray were these
The pursuer here was born 09.06.50. Accident on 21.10.11 and accordingly the pursuer was 61 years old. Not just fully aware of the danger of crossing as a 13 year old but would have had many years of life experience. The decision not to wait and see that the way to cross was clear and safe was even more inexcusable and blameworthy.
Compare the driving of the first defender here:
Given the different factual circumstances of the present case, submit that the defender’s culpability is significantly less.
In all the circumstances, submit that any finding of contributory negligence on the part of the pursuer must be more than the 50% that the Supreme Court considered appropriate in Jackson.
What percentage that should be was a matter for the court. Each case decided on its own specific facts, however he referred to two authorities:
Ehrari v Curry [2007] EWCA Civ 120; [2007] R.T.R.42 – contributory negligence assessed at 70%, it should be more than that. In Ehrari, the accident happened on a busy street, where he knew of the risk of children seeking to cross the street, he had not in fact seen the child. Had he done so he could have taken effective avoiding action. The driver of the vehicle was driving at a reasonable speed. Compare here.
Eagle v Chambers is a somewhat unusual case in that while the Appeal Court assessed contributory negligence at 40%, in that case the pedestrian had been in the driver’s vision long enough for the driver easily to have taken action to avoid the pedestrian although the driver had been driving at a excessive speed and was not keeping a proper look-out. Again, compare the situation here. See: the observations at pages 120-121.
Discussion
[74] The relevant statutory provision with respect to contributory negligence is contained in the Law Reform (Contributory Negligence) Act 1945 which provides:
“(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share and the responsibility for the damage”.
[75] The section offers no guidance as to how responsibility is to be apportioned. However, the Supreme Court in Jackson v Murray reviewed the guidance given in case law and from this review identified two aspects to apportioning liability, namely: the respective causative potency of what was done and the respective blameworthiness of parties.
[76] In considering these two aspects it is clear from the case law that in a road traffic case one factor which should be had regard to is the potential destructive disparity between the pedestrian and the person driving the vehicle.
[77] In considering, against that legal framework, the apportionment of liability in this case I have found of considerable assistance the analysis of Lord Reed in Jackson v Murray at paragraph 40 where he said this:
“[40] As the Extra Division recognised, it is necessary when applying s.1(1) of the 1945 Act to take account both of the blameworthiness of the parties and the causative potency of their acts. In relation to causation, the Extra Division based its view that ‘the attribution of causative potency to the driver must be greater than that to the pedestrian’ on the fact that ‘a car is potentially a dangerous weapon’. Like the Court of Appeal in Eagle v Chambers I would take the potentially dangerous nature of a car being driven at speed into account when assessing blameworthiness; but the overall assessment of responsibility should not be affected by the heading under which that factor is taken into account. Even leaving out of account the potentially dangerous nature of a car being driven at speed, I would not have assessed the causative potency of the conduct of the defender as being any less than that of the pursuer. This is not a case, such as Ehrari v Curry (where contributory negligence was assessed at 70 per cent), in which a pedestrian steps directly into the path of a car which is travelling at a reasonable speed, and the driver fails to take avoiding action as promptly as he ought to have done. In such a case, the more direct and immediate cause of the damage can be said to be the conduct of the pedestrian, which interrupted a situation in which an accident would not otherwise have occurred. Nor is it a case, such as Eagle v Chambers (in which contributory negligence was assessed at 40 per cent) or McCluskey v Wallace (where the contributory negligence of a child was assessed at 20 per cent), in which a driver ploughs into a pedestrian who has been careless of her own safety but has been in his line of vision for long enough for him easily to have avoided her. In the present case, the causation of the injury depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender’s driving at an excessive speed and without keeping a proper look-out. If the pursuer had waited until the defender had passed, he would not have collided with her. Equally, if he had slowed to a reasonable speed in the circumstances and had kept a proper lookout, he would have avoided her”.
[78] The factual circumstances in the case before me appear very similar to those in Jackson v Murray.
(a) As in Jackson v Murray this is not a case where the pursuer stepped directly into the path of the first defender who was travelling at a reasonable speed, and the first defender has failed to take action as promptly as he should.
(b) Equally this is not a case in which the first defender has ploughed into the pursuer who has been in his sight for long enough for him easily to have avoided her.
[79] Rather the present case, as in Jackson v Murray, appears to fall between these two extremes. The factual situation in the instant case is very similar to what was present in Murray v Jackson as set out in the last sentence of paragraph 40 in Lord Reed’s judgment. The causation of the injury in the present case depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender not having proper regard to the potential dangers facing him and driving at an excessive speed in all the circumstances. If she had waited till he passed she would not have been run down. Equally if he had had regard to the potential hazards and slowed down he would not have hit her. Looking at the matter in that way I believe that a 50-50 apportionment is appropriate.
Decision
[80] For the above reasons I find that the defenders are liable to make reparation to the pursuer and that liability should be apportioned between the pursuer and defenders on a 50-50 basis. I was not addressed on further procedure in this case or on the issue of expenses. Accordingly I reserve my position in relation to these matters. If parties wish to address me on these issues then an appropriate motion should be enrolled.
