Christopher Mcnab V. Bluebird Buses Ltd
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2007] CSOH 36 |
| Court | Court of Session |
| Docket Number | PD255/06 |
| Published date | 20 February 2007 |
| Date | 20 February 2007 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 36 | |
| PD255/06 | OPINION OF LORD BRODIE in the cause CHRISTOPHER McNAB Pursuer; against BLUEBIRD BUSES LIMITED Defenders: ________________ |
Pursuer: Macdonald; Lefevre Litigation
Defenders: Geoff Clarke; Simpson & Marwick
20 February 2007
[1] The pursuer is Christopher McNab. His date of birth is 23 August 1965. He lives at an address in St Cyrus, north of Montrose. The defenders are Bluebird Buses Limited. The pursuer sues the defenders for damages for personal injury sustained by him in an accident on 8 March 2003. Quantification of damages is agreed at £11,000 with interest at 8% per year from 6 February 2007 until payment. The issues for determination, therefore, were whether the defenders were liable in damages to the pursuer and, if so, whether any deduction should be made to reflect contributory negligence on his part.
[2] The case called before me for proof on 6 February 2007. In addition to the pursuer, I heard the evidence of Mr Gordon Ogilvie, a lorry driver who had witnessed the accident; Dr Hugh Barron, a road traffic expert; Mr Henry Davidson, the driver of the bus that had struck the pursuer; and PC David McKinnon, who was one of the police officers who had attended at the scene.
[3] It appeared to me that the circumstances of the accident were essentially uncontroversial. The pursuer had spent the afternoon of Saturday 8 March 2003 drinking in a public house in Montrose. He intended to catch a bus at 5.10pm from the centre of Montrose to take him home to St Cyrus, a distance of some 4 miles to the north. He thought he had been in the public house for about 4 hours, during which time he had drunk perhaps 5 pints of beer. When the bus did not appear as he had expected the pursuer decided to start walking home. His route took him northbound along the A92 Montrose to Aberdeen road. He walked along the left hand or western side of the road, using the footpath where one was available. The pursuer's last memory before the accident is of pausing to sit down and rest at the point he estimated to be about halfway between Montrose and St Cyrus. His next memory was of seeing someone he recognised as a neighbour and then being in the back of an ambulance.
[4] What was clear from the other evidence was that at a point north of the pursuer's recollected stopping place on a straight stretch of the A92 road which was illustrated in photographs contained in No.6/11 and 7/2 of process, the pursuer was struck from behind by a single decker bus, registration number M595 OSO driven by Mr Henry Davidson in the course of his employment with the defenders. The resulting damage to the bus was illustrated in the photographs contained in No.7/4 of process. This damage was to the front nearside. There was no direct evidence of where the pursuer had been immediately prior to the impact, or precisely what he had been doing. Mr Davidson only had become aware of what he described in his evidence as a black shape, immediately before the bus struck the pursuer. Mr Davidson took no avoiding action. He thought the pursuer to have been about one yard out from the kerb of the road. Mr Ogilvie, who had been driving a lorry which had been following the bus saw the pursuer being knocked to the nearside verge by the impact of the collision. Mr Ogilvie did not speak to having seen the pursuer beforehand. PC McKinnon took a statement from one of the bus passengers, Mrs Carol Haddingham. He read out this statement in the course of giving his evidence. According to this statement, Mrs Haddingham was sitting at the very front of the bus, on the nearside. She described it as being pitch dark outside. She saw a well built male walking north on the nearside of the road. He was to the right of the white line demarcating the edge of the carriageway. She saw his head hit the windscreen. She had first seen the male figure when he was about half the length of the bus in front. He was illuminated by the bus headlights. The driver said "Did I hit something?". I considered that the hearsay evidence of Mrs Haddingham was consistent with what I should otherwise have been prepared to infer, namely that the pursuer had been struck by the bus as he was walking north along the carriageway of the A92, some 2 or 3 feet out from the nearside kerb. He was walking with his back to the oncoming traffic. He was wearing dark clothing. Neither he nor the bus driver took any step to avoid a collision.
[5] At the point of the impact between the bus and the pursuer, the carriageway of the A92 is about 6.8 metres from kerb to kerb, as can be seen from, for example, the photograph which is No.7/2H of process. There are kerbstones along the length of the road at this point. There is a grass verge on both sides of the road. The condition of the grass verge at the western side of the road on the day after the accident is illustrated in the photographs contained in No.6/11 of process. As can be seen from these photographs the verge has a covering of grass. It slopes upwards towards a field fence. The photograph No.6/11/1 of process shows a dark area on the verge a little above the shadow cast by the photographer. The pursuer understood this to be his blood and that, accordingly, he had been thrown onto the verge at this point by the impact with the bus.
[6] The witnesses were agreed that it had been very dark at the time of the accident. At least one motor car had been travelling in the southbound carriageway with dipped headlights. As appears, for example, from the photograph which is No.6/11/2 of process, the southern end of the straight stretch is marked by a bend in the road. This is a right hand bend for traffic travelling north. Mr Davidson estimated the distance...
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