Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS at TAIN

 

 

 

Case No. A34/06

JUDGMENT   by   SHERIFF DAVID O. SUTHERLAND   in causa   ABU MOHAMMED (formerly IVOR MOWAT) Assisted Person residing at 234 Formartin Road, Aberdeen, AB24 2RD   PURSUER   against   BLUEBIRD BUSES LIMITED, 6 Burnett Road, Inverness, IV1 1TF   DEFENDERS

 

 

Act: Macdonald

 

Alt: Guild

 

 

TAIN, 8 September 2011

 

The Sheriff, having resumed consideration, repels the pursuer's pleas in law; Upholds the defenders' 3^rd & 4^th pleas in law and Assoilzies the defenders from the craves of the initial writ with expenses as taxed; Allows an account thereof to be given in and Remits same, when lodged, to the auditor of court to tax and to report.

 

 

 

Sheriff David O. Sutherland

 

Finds in Fact

 

1)             On 8^th March 2005 the pursuer was a passenger on a Volvo B7 single-decker coach, owned and operated by the defenders, travelling from Tain to Inverness. The bus driver was Alexander Gilmour driving in the course of his employment with the defenders.

 

2)             The driver of the bus turned right on to the A9 to go to Inverness when his bus was struck by a lorry travelling southbound. The collision, which occurred at a relatively low speed, caused the bus to be pushed southwards and sideways coming to rest at the side of the road on the northbound carriageway, some two bus lengths south of the junction.

 

3)             The said collision caused the front nearside of the bus to crumple and implode with the front window and front door shattering, showering glass in to the front of the bus and on to a young male passenger sitting on the front nearside seat.

 

4)             The pursuer, who was travelling with his then wife, Mrs Christine Obote or Mowat, was sitting on the isle seat of the second front nearside row.

 

5)             The accident was caused by the fault and negligence of the said driver, Alexander Gilmour, for whose acts and omissions the defenders are liable.

 

6)             Other than a small cut to his hand, Alexander Gilmour suffered no injuries as a result of the accident.

 

7)             Said driver exited the bus via the front door but because of the damage to this door he instructed the passengers to leave by the emergency door which was located on the rear offside of the bus.

 

8)             He opened the emergency door and stood there offering assistance to passengers alighting on to the grass verge. He gave assistance to up to fifteen people, the other passengers declining any assistance and exiting unaided.

 

9)             The floor of the emergency exit is some five feet from the ground. If one sat on the floor at the emergency exit the drop to the ground would be some two feet.

 

10)         The pursuer was the last person to exit the bus. He sat on the floor of the bus at the level of the bottom of the emergency exit door. He then levered himself off the bus and on to the ground some two feet below. He did not ask for any assistance from the driver, who was in attendance to provide any assistance required.

 

11)         After the pursuer exited the bus, the said driver entered the bus going through its length to ensure no passenger was still on board.

 

12)         The pursuer declined any medical assistance from the ambulance crew at the scene nor did he attend hospital or his G.P. immediately after the accident. Indeed he boarded a replacement bus to carry on to Inverness.

 

13)         The pursuer did not sustain any injury as a result of the said bus accident or descending from the emergency exit.

 

 

 

 

 

NOTE

 

[1]          I first heard evidence from Dr. George Ferguson from the Medical Surgery in Peterhead who spoke of first seeing the pursuer on 23^rd March 2005 when he presented for a new patient examination. At this consultation Dr. Ferguson did not have access to the pursuer's medical records. The pursuer stated to the doctor that he had been in an accident some two weeks before when he was a passenger on a bus that had been hit by a lorry. The pursuer stated that since that time he had neck pain and stiffness and increased pain in his right ankle. Examination by Dr. Ferguson showed the pursuer to be tender over the left scalene muscle and having limitation of neck movement. He also found the pursuer to be tender over the medial aspect of his right ankle. The pursuer did not describe to Dr. Ferguson how he had injured his neck or ankle. Indeed Dr. Ferguson very properly stated that the injury described by the pursuer could have been from something other than the road traffic accident in that he had not been given any details of the accident from the pursuer.

 

[2]          The pursuer was seen again by Dr. Ferguson's surgery on 14^th April 2005 for a respiratory tract infection, but no mention was made of any ongoing pain in his neck or ankle. Similarly, when seen on 26^th April 2005 and 11^th May 2005, no mention was made of any pain in his neck or ankle.

 

[3]          I then heard from Dr. Stephen Lynch of the Calsayseat Medical Group in Aberdeen, who stated that the pursuer first registered with his practice on 13^th September 2005 and his last consultation was 25^th June 2007. Dr. Lynch spoke of the pursuer consulting a Dr. Sinclair (now retired) who noted "Bus accident March. Neck shoulder pain and exacerbation of old right ankle fracture pain." The pursuer was prescribed Ibrufen and Cocodamol.

 

[4]          He spoke of the pursuer seeing one of his colleagues on 30^th November 2005 and speaking of poor sleep patterns and nightmares. When seen by a psychiatrist a letter form the psychiatrist in the pursuer's notes commented that the nightmares related to sexual abuse as a child. Dr. Lynch considered that they had nothing to do with the road traffic accident. No mention was made in the psychiatrist's letter that the pursuer was suffering flashbacks from the accident.

 

[5]          I next heard from the pursuer, Abu Mohammed. He described how he had been travelling with his then wife on a bus from Tain to Inverness when the bus had been involved in a collision with a lorry when turning on to the A9 from Alness. He described how the bus driver had moved slowly out in to the middle part of the road when it was hit by a lorry and shunted about forty-five feet on to the kerb on the other side of the road. He described how his head went forward and then banged off the side of the back of the seat in front of him, jolting his neck and shoulders.

 

[6]          He described how he was then in shock, but after calming his wife down phoned 999. Shortly thereafter, police and ambulance arrived. The driver then jumped over his cab door and out of the damaged front door.

 

[7]          A police officer told the pursuer to exit from the rear of the bus. He was the last person to exit the bus and described the distance between the exit and the ground being three and a half to four feet.

 

[8]          He sat down on the floor and pushed himself down on to the ground, going over on his ankle as he landed. The surface on which he landed was flat grass. When he exited the bus, the driver was not there.

 

[9]          He was then taken by his wife to the ambulance and one of the crew had shone a light into his eyes and told him to see his doctor if he didn't improve or had any pain. He had told the ambulance woman that he had banged his head and that he had shooting pains up from his ankle.

 

[10]      He described how later that afternoon he felt pain in his neck and shoulders. The pain in his right ankle died down but came back later. He described the pain in his ankle to be similar to fracture pain.

 

[11]      The pursuer went on to describe how he had suffered recurring dislocation of his left knee since 1984. He had also fractured his right ankle in July 2004, but was pain free in his ankle since December 2004.

 

[12]      He went on to describe how he attended Dr. Janet Mair on the day of the accident and had mentioned to her the bus accident. She had advised him to take Nurofen and if it had not improved in a couple of days to consult his doctor.

 

[13]      Two weeks later he had seen his doctor in Cruden Bay and had described exactly what had happened in the accident and how the injuries occurred. He stated that he had told the doctor exactly how the accident happened and the manner in which he had hurt his neck and ankle. He had been asked to strip to the waist and the doctor had examined his head, neck and shoulders but not his ankle. By the time of this examination, the pain had died down so he had stopped or reduced his painkillers.

 

[14]      He spoke of telling one of the doctors in Cruden Bay (I think he was referring to Dr. Ferguson's surgery at Hatton, Peterhead) that he was suffering flashbacks.

 

[15]      He stated that the pain and stiffness in his neck diminished after six months but that the pain in his ankle still continued now and again, although not as bad as it had been.

 

[16]      He eventually stated that the pains and flashbacks all disappeared after six months.

 

[17]      In cross-examination, the pursuer stated that the injury was to the right-hand side of his neck and shoulder, although he did agree that Dr. Ferguson's note from 28^th March 2005 showed pain to the left shoulder and left part of the neck. However the pursuer maintained he had pain on the right-hand side as well and that he could not tell the doctor what to write down.

 

[18]      The pursuer stated that he did not have any pain in his neck when exiting from the bus, although he conceded that his pleadings on record stated that he felt shooting pains in his neck five minutes after leaving the bus.

 

[19]      The pursuer refused to accept the suggestion that the bus driver had gone to open the rear exit door and had assisted people out. This had included a lady in her 80s who had got off unassisted.

 

[20]      The pursuer stated that although he attended Dr. Mair in Bonar Bridge on the day of the accident with his wife, he actually left that practice in April 2004 but had not registered with another practice until March 2005. He had been staying in Aberdeen since 2004 although he had not registered with a doctor there, but later in his evidence he agreed that he had been a patient in Denburn Surgery, Aberdeen.

 

[21]      He confirmed that he had been seen by Dr. Steel on 11^th March 2005 regarding an application for Disabled Living Allowance, in which he indicated that he could only walk for fifty yards before his knee became sore. He stated that if he had walked, his knee would dislocate and he would collapse.

 

[22]      He explained how he had told Dr. Steel of the accident he had been involved in three days before but that the doctor said he could not take any account of that. He explained that the rules regarding E.M.P. reports prevented that.

 

[23]      In his appeal application for DLA he stated that he could not walk at all and that he could only walk two metres before feeling severe discomfort. He had stated in that application that he had needed help seven days a week for moving about indoors. He explained that when Dr. Mair of Bonar Bridge had written to the Department of Work and Pensions stating that he had been "able to get around" and had attended the surgery unaided, this had been because he had only visited her surgery a couple of times.

 

[24]      In his DLA application form dated 30^th November 2005, the pursuer stated that he was able to walk five metres before feeling severe discomfort.

 

[25]      In his DLA application form dated 19^th August 2006, the pursuer described severe pain in his right ankle and that he could not walk at all. Again he described walking two metres before the onset of severe discomfort.

 

[26]      He described the pain in his right ankle as coming from arthritis.

 

[27]      When questioned about no mention being made by the examining doctor of this pain, the pursuer stated that it was for the doctor to write down what he wanted.

 

[28]      The pursuer was also cross-examined regarding his non-attendance at an appeal from the Children's Panel in Orkney on 8^th October 2004. The pursuer's solicitors had written to his doctor for confirmation that he had attended Denburn Health Centre on 6^th October 2004 suffering from a swollen right ankle or foot and had been advised to rest, elevate his leg and not travel to Orkney. When it was pointed out to the pursuer that his doctor had treated him for an ear infection and had no record of a swollen right ankle or foot, he replied that one would have to ask the doctor for an explanation.

 

[29]      In re-examination by Mr MacDonald the pursuer confirmed that when he had put two metres down in his DLA application he could have meant twenty metres.

 

[30]      I then heard from Alexander Gilmour, the bus driver employed by the defenders. He told the court how he had been the driver involved in the accident on 8^th March 2005. He described having entered the A9 from Alness, crossing the carriageway to head south to Inverness when he had been struck by a lorry travelling south. He stated that his bus was at a 30° angle on the road and that the lorry had reduced its speed considerably before impact.

 

[31]      He thought the lorry had tried to pull to the left and that the impact was on the front nearside of the bus. He described how the bus was pushed to the northbound carriageway. His bus then came to rest on the northbound carriageway, facing south, about one and a half to two bus lengths past the junction on the south side.

 

[32]      He described exiting the bus and going round to open the emergency door. He described the emergency exit having two recesses which he considered to be inadequate and wrote a long report on that subsequently. He stood on the ground at the exit and assisted between a third and a half of the number of passengers to come down on to the ground level. If anyone wanted assistance he assisted them. No-one fell or stumbled exiting the bus and once the last passenger exited he went back in to the bus and checked that it was clear of passengers. As far as he was aware no-one had spoken to anyone from the ambulance service.

 

[33]      I then heard from Dr. William Steel of Grantown-on-Spey, a locum G.P. and examining medical practitioner. He explained how he examined the pursuer on 11^th March 2005 with regard to his DLA appeal. He did not have any of the pursuer's records when he examined him and he explained that he would have told the client that he was there to hear about his condition at the time of his application. He observed from his examination that the pursuer was able to walk ninety metres.

 

[34]      Finally I heard from Mrs Catherine Burke, a passenger on the bus. Although she did not know the pursuer, she recognised him as a frequent passenger on the bus. She thought he was sitting towards the front of the bus and she was sitting towards the rear.

 

[35]      She described the accident when the lorry hit the bus as the bus being pushed and shunted across the road as opposed to a feeling of a crash.

 

[36]      She described the impact as minor and did not feel a jolt or anything similar.

 

[37]      She stated that she was one of the last to exit the bus and that she had been helped down by the driver. She did not see the pursuer exit the bus and she did not see anyone receiving medical attention.

 

Decision

 

[38]      The question of fault and negligence regarding the road traffic accident is not in issue, the defenders accepting that their driver was at fault and that they are liable for his actions. However, they do not accept that they are liable for any injuries claimed by the pursuer, maintaining that he did not suffer any injury in the accident or when alighting the bus.

 

[39]      The pursuer, for his part, maintained that the injury to his neck was caused by the bus accident, his neck being jolted to the right and that the injury to his ankle was caused when exiting the bus with him landing and going over on his ankle.

 

[40]      I did not find the pursuer a credible or reliable witness. Dr. Ferguson stated that he examined the pursuer and noted details of his injuries in his consultation in March 2005, shortly after the accident. Dr. Ferguson spoke of pain to the pursuer's left shoulder and tenderness over the left scalene muscle. However, the pursuer maintained the injury was to the right-hand side of his neck and shoulder. The pursuer's explanation of this apparent discrepancy was that he could not tell the doctor what to write down.

 

[41]      Dr. Ferguson had to rely, in part, on what the pursuer told him. He did not have the pursuer's records in front of him nor did he have an explanation by the pursuer of exactly how the injury was caused and, as he stated in evidence, the injury described by the pursuer could well have come from something other than the road traffic accident.

 

[42]      No mention was made to Dr. Ferguson's colleagues in subsequent appointments of any pain in the pursuer's neck or ankle.

 

[43]      Dr. Lynch told us that he had never seen the pursuer. Although mention was made to one of his colleagues of poor sleep patterns and nightmares, a psychiatrist put this down to sexual abuse as a child and made no mention of flashbacks as claimed by the pursuer.

 

[44]      Perhaps the most concerning evidence relates to the pursuer's applications for Disabled Living Allowance. He was examined by Dr. Steel (Examining Medical Practitioner) three days after the road traffic accident and, quite properly, Dr. Steel did not take into account any minor injury which the pursuer claimed had occurred some three days earlier.

 

[45]      However, the pursuer claims to be only able to walk some two metres (accepted by agreement between the pursuer and defenders that this could have been twenty metres). Indeed, the pursuer claims in his Claim Pack not to be able to walk while Dr. Steel notes that he observed him walking some ninety metres.

 

[46]      Similarly, in his subsequent DLA claim dated 30^th November 2005, the pursuer says he can only walk five metres before feeling severe discomfort and in his claim of 19^th August 2006 that he could not walk at all because of severe pain in his right ankle.

 

[47]      Although separated from his wife, the pursuer told me that he was her carer. Again I find this strange, especially when he described to Dr. Steel on 11^th March 2005, regarding guidance or supervision when walking outdoors, that he always had someone with him in case his knee flared up.

 

[48]      In his DLA appeal application dated 28^th December 2006 (from an application dated 30^th November 2005) he states that he needs help four to five hours per day and requires help seven days a week moving about indoors, and that ten times per day. He also claimed to require help three or four times per night.

 

[49]      Against this the pursuer, in his pleadings, stated that he had fractured his right ankle in July 2004 but by the time of the accident the fracture had healed satisfactorily and he was able to walk without pain.

 

[50]      I simply do not accept the pursuer's position in evidence that that passage in the pleadings only referred to his ankle and took no account of his knee.

 

[51]      Finally, I noted with disquiet the pursuer's claim that he had not been able to travel to a Children's Panel in Orkney in October 2004 having been advised by his doctor to rest and elevate his leg. There had been no record of this in his medical notes and again the pursuer could not explain such a discrepancy.

 

[52]      In contrast, I found Mr Gilmour, the bus driver, a highly credible and reliable witness and preferred his evidence in all aspects compared to that of the pursuer. In particular when the driver stated that he had exited the bus by the front door and had gone round to the emergency exit and had opened that door enabling passengers to alight from the bus, I believed him. Further, I believed him when he stated that he had helped many passengers alight from the bus, had made available assistance to any passenger wanting help alighting and had waited there while all passengers alighted from the bus. In particular I also believed the driver when he said that nobody had stumbled or hurt themselves when alighting from the bus.

 

[53]      I have no doubt that the pursuer has serious longstanding health problems and a particular disability because of his recurring knee dislocation. It is, however, quite clear from the DLA papers lodged that he exaggerates symptoms and, as I have said, I regard his evidence regarding any injury claimed to be sustained as a result of the road traffic accident to be completely incredible and for that reason his claim must fail. Because I have rejected his evidence he has failed to discharge the onus on him in proof and accordingly I uphold the defenders' plea and grant decree of absolvitor with expenses, in the defenders' favour, as taxed.