Kyle Smith V. Bluebird Buses Limited
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2014] CSOH 75 |
| Court | Court of Session |
| Docket Number | PD753/13 |
| Published date | 25 April 2014 |
| Date | 25 April 2014 |
| Year | 2014 |
| 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...
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Leslie Buck (ap) Against (first) Jane Anne Ainslie And (second) Cis General Insurance Limited
...[2007] CSOH 36. [100] Mr McGregor submitted that the present pursuer was more blameworthy than the pursuer in Smith v Bluebird Buses [2014] CSOH 75, in which Lord Boyd found the pursuer 85% to blame. [101] In McNab v Bluebird Buses the pursuer was found 50% to blame where he walked along th......