Veronica Mccreery Against Terrence Letson And Others
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2015] CSOH 153 |
| Court | Court of Session |
| Published date | 10 November 2015 |
| Year | 2015 |
| Date | 10 November 2015 |
| Docket Number | PD2197/14 |
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 first defender’s actions with respect to the warning sign.
- The first defender’s reaction to the presence of the bus and the movement of the bus.
- The first defender’s speed as he approached the locus.
- The pursuer’s movements following her descending from the bus.
- The visibility of the first defender’s van as it approached.
The following witnesses gave evidence which was relevant to these issues:
- The defender
- Stuart Taggart (the driver of the lorry in the layby)
- Donald Beaton (the driver of the bus)
- Donna Hutchison (who was driving a vehicle stopped in the entrance to the hospital)
- PC Simon Lee (who arrived at the locus shortly after the accident)
- PC Michael Cargill (surveyed the locus of accident and made a plan)
- Stewart Blackwood (the defender’s crash scene investigator)
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...
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