England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2013

SIR ROBERT NELSON :

1. On 21 October 2009 the Claimant was crossing Victoria Street London SW1, on foot, when he was struck by a bus driven by the Defendant's employee Ms Denise Gordon. As a result of the accident the Claimant sustained head injuries and claims damages for personal injury. The only issue before me was that of liability. Each side contends that the other was primarily to blame for the accident.

The background

2. The junction of Victoria Street, Wilton Road and Allington Street, where the accident occurred is traffic light controlled. Victoria Street runs essentially east – west, Allington Street joins it from the North and Wilton Road from the south. The Claimant was crossing Victoria Street north to south at a point just to the west of the corner with Allington Street. At that point Victoria Street is some 15.1m wide and carries traffic in only one direction, namely westward. The single decker bus driven by Ms Gordon had come from the bus terminus at Victoria Station which is immediately nearby, and approached the junction south along Wilton Road where she stopped at the traffic lights before making a left hand turn into Victoria Street. Wilton Road is at an angle of about 60 degrees to Victoria Street and the collision occurred as Ms Gordon was completing her turn into Victoria Street, intending to stop at the bus stop a few metres down the road. The accident occurred between about 7.15 and 7.20 am but it was still dark.
3. After the accident Ms Gordon was prosecuted for careless driving and convicted in the Magistrates' Court but acquitted on appeal. She was found at fault by her employers at a disciplinary hearing on 26 October 2009 held by Mr Johnson, the Operating Manager, a decision which was affirmed by a two person appeal panel on 14 December 2009. Ms Gordon's driving record, including other disciplinary findings in respect of her driving, were put before the court, but I have concentrated solely on her driving on the day in question.
4. The Claimant was able to recall the circumstances of the accident and gave evidence before me. His honesty was not challenged but the Defence contended that parts his evidence were reconstruction rather than accurate factual recollection. Ms Gordon still works for the Defendant but did give evidence before me and the Defendant did not require her to do so. Two written statements, one made for the purposes of the appeal hearing against her conviction, were put in evidence. Mr Verdier a pedestrian walking east along Victoria Street gave evidence as did Mr Jeffries, a driver employed by the Defendant for some 30 years and a union branch secretary. The statement of the reporting police officer, PC Athawes was put in evidence, as was the police report, in which it was noted that the apparent cause of the accident at that stage was the pedestrians hurry and failure to pay attention and the possible failure of lookout of the driver.
5. In addition each side called an expert witness, Mr Wilson-Law on behalf of the Claimant and Mr Natt on behalf of the Defendant. Both were former police officers with considerable experience and expertise in collision investigation. They and the court were assisted by the fact that in the bus there were various CCTV cameras which recorded different parts of the event. Cameras 1, 2, 3, 5, 6 and 8 provided images from different parts of the bus which were helpful in determining some of the facts.

The facts

6. The Claimant left his work aiming to get the 7.19 am from Victoria. The precise time of the accident is unclear. The CCTV clock time records it as 7.18 though the joint statement of the experts indicates that the clock time recorded on the CCTV may not be synchronous to actual time, in spite of the fact that an employee of the Defendant, Janet Lloyd is recorded as finding that the time and date were correct. Her statement does not indicate against what that finding was referenced and it is, I was informed by the experts, known that CCTV time may not infrequently be several minutes out of time. In her verbal statement at the scene Ms Gordon said that she left the bus terminus at 7.15 am which is some 40 seconds away from the stop line in Wilton Street. PC Athawes reports in his statement that he arrived at the scene of the accident at 7.16 am, and refers to the accident occurring shortly after 7 am.
7. Mr Verdier said in evidence that the Claimant was walking across the road when he first saw him, and indeed in his view slowly, so that he thought "you had better get a move on".
8. This issue arises because of the Defendant's allegation that the Claimant was running or rushing for the train, a matter which he denied. Having heard the evidence I am of the view that whatever the actual time of the accident, the evidence does not support the proposition that the Claimant was running for or rushing for his train. He clearly appeared to think that whatever the actual time was he had enough time to get to his train by walking across the road.
9. The Claimant was carrying lever arch files and a shoulder bag. He was wearing a white shirt with a black top over it, and black trousers. He chose to cross, not at a designated crossing nearby, but north to south over Victoria Street. He did so, he said, because were he to have used a designated crossing he would have had to have crossed over three or four roads rather than just one in order to reach Victoria Station. There were road works at the junction with Allington Street at the time of the accident but I am satisfied that the Claimant chose to cross the road at the point he did cross it because that was his normal routine, and that the presence of the road works played no real part in his decision that day.
10. The CCTV and the still photographs show that the crossing point used by the Claimant, is used by other pedestrians. Both, on different dates, show pedestrians crossing where the Claimant crossed either north or south. The CCTV shows two men crossing south to north at this point immediately before the accident, one man wheeling a trolley ("trolley man") and the other with white shirt tail showing over his trousers. ("white tail man")
11. The junction is, as Mr Natt and Mr Hickman said, very well lit. It is a major junction for both vehicles and pedestrians, having Victoria Station, shops, restaurants, cafes, offices and a theatre immediately nearby. It was still dark at the time of the accident but the street lighting was on and the shops nearby illuminated.

The CCTV

12. Camera 1 is some 1.31m diagonally to the left and up from the drivers eye position; camera 2 shows the driver and which way she is facing; camera 3 shows the doorway of the bus at the front from which can be seen the position of the stationary bus in relation to the white line before it moved off, and the moment of impact and the damage sustained to the very extreme nearside of the windscreen; camera 5 shows the interior of the bus; camera 6 shows the same from the other side indicating the movement of the double decker bus, and camera 8 is on the nearside of the bus showing the view ahead and illustrating the time at which the traffic lights changed.
13. The frame rate for each camera is one image recorded at one second intervals.
14. The cameras provide a fish eye image which leads to a distorted view of the scene which the camera is recording. The image is monocular not binocular. The picture is somewhat pixelated and the street lights and other lights create a glare. As a consequence what the driver can see and what the lens records are very different. The effect of the fish eye lens and the distortion generally can be seen very clearly from Mr Natt's photographs (B1/264) showing the driver's view and the camera 1 view. Both experts agree that Mr Natt's photographs present an accurate picture of the level of distortion.

The Claimant's journey

15. The Claimant's journey from his place of work at Buckingham Palace where he worked as a Royal Protection Officer, bought him to the junction of Allington Street and Victoria Street. He arrived at the junction shortly before 07.18.05 on the time clock on the CCTV (frames 484001/484040) which is the first time at which, both experts agree, he can be detected on the CCTV. (Joint statement paragraph 30.) By 07.18.05 he had just stepped off the kerb and into the carriageway of Victoria Street, or was just about to do so.
16. The bus had meanwhile arrived at the ATS in Wilton Road at a clock time of 07.17.44, and remained stationary there for 22 seconds. The CCTV, camera 2, shows the driver looking to her left or towards her right while she is stationary 1.8m over the white line. (07.17.46 – 07.18.05) Her precise head or eye positions between each frame is not known as the images are recorded at 1 second intervals. There is a relevant area of obscuration for the driver, known as a blind spot, on the front windscreen of the bus, formed by the joint of the split windscreen and the vertical parked position of the two windscreen wipers. Due to this blind spot only a proportion of the Claimant could have been visible to the driver between 07.18.05, 07.18.06, 07.18.07, and 07.18.08. The majority of the Claimant would have been visible at 07.18.09. The blind spot could be overcome by relatively small movement of the driver, a task which the driver, in Mr Natt's view, would have carried out instinctively.
17. Mr Wilson-Law obtained the assistance of Mr James Manning a simulation and visualisation consultant to assess the visibility and the effect of the blind spot upon that. Mr Manning was not called to give evidence but both experts relied upon and used his reports in their evidence. Mr Wilson-Law's report of 14 April 2013, in answer to various questions posed to the experts, relies on a further investigation carried out by Mr Manning, relied upon by both parties, which illustrates the visibility the bus driver would have had at various stages of Mr Hickman in the road and in particular those between 07.18.08 and 07.18.09. This can be seen at page 9 on Mr Wilson-Law's report of 14 April 2013 (B1/354i). Mr Manning's reports and investigation relied upon by the experts, show what visibility could have been without any movement by the driver of her head or eyes or shoulders so as to overcome the blind spot.
18. Whilst the bus was stationary in Wilton Road waiting for the lights to change, the CCTV discloses that a pedestrian, "white tail man", crossed Victoria Street from south to north. He can be seen in the early part of his crossing in 07.18.00 two seconds after the bus had come to halt at the Wilton Road lights. This pedestrian therefore crossed Victoria Street, moving left to right away from the stationary bus - his passage across the road can be seen between clock time 07.18.00 and 07.18.06. There was no one crossing the pedestrian crossing in Wilton Road immediately in front of the bus to obstruct her view at that time, but the bus driver did not see "white tail man" at any stage of his journey across the road.
19. The pedestrian wheeling the trolley, "trolley man", crossing Victoria Street also from south to north, from the bus's left, can also be seen on the CCTV between clock time 07.17.54 – 07.18.01. The Bus driver did not see him crossing the road.
20. Both experts agree that there is also a further man shown on the CCTV which in clock time is 07.18.01 and 07.18.03, walking past the road works on the north side of Victoria Street at the junction with Allington Street, and then it would seem walking up Allington Street. He does not seek at any time to cross Victoria Street, but probably like "trolley man" arrived at the road works at about the same time as the Claimant. There were therefore, and were likely to be, pedestrians about that time of the morning, some of whom were crossing, and others who potentially might wish to cross Victoria Street.
21. Although the Claimant is first identified on the CCTV at 07.18.05, the first time his progress across the road can be identified with clarity is on the CCTV at 07.18.08. This was therefore the point taken by Mr Manning as the camera match position. The Claimant is then 6.86m into the road from the north kerb. The Claimant's walking pace was tested by Mr Wilson-Law and found to be between 1.3m/s and 1.8m/s. The experts agree that his walking pace was likely to be towards the upper range, and an average walking speed of 1.8m/s was therefore used for calculating his position in the road at various stages of his journey across it.
22. The Claimant, on his approach to the kerb, said that he saw that the lights were red for the two buses, the traffic lights being reflected in the bus windows. He said that he thought that lights were still at red for the buses when he started to cross the road, but that is not borne out by the CCTV. Even allowing for the fact that his walking speed was estimated rather known, the CCTV shows that, as the lights were at red/amber from frame 482850, clock time 07.18.03, and the Claimant stepped into the road at about 484040, (07.18.05) the lights must have already changed to red/amber by the time the Claimant entered the carriageway. This is conceded by the Claimant's counsel and indeed is consistent with the Claimant's own evidence in cross-examination at the hearing of the Defendant's bus driver's appeal against her conviction, when he said that he did not have a clear recollection of what colour the traffic lights were, at his point of crossing. The Claimant accepted in evidence before me that if the lights were red/amber for the buses it would not be safe to cross then, and that a higher degree of vigilance would be required from him if he did cross.
23. When the Claimant stepped into the road at about 484040 some 1.19 seconds had elapsed since the lights had changed to red/amber from red.
24. Whilst the Defendant's bus was waiting at the lights in the left turning lane in Wilton Road there was a double decker bus alongside it intending to go straight across into Allington Street. This bus can be seen alongside the Defendant's bus in the camera 6 image at 07.18.04 – 07.18.06.
25. When the double decker bus set off, slightly before the Defendant's bus as the CCTV camera 6 shows, the Claimant was about 1 metre into the road on the calculations made by the experts. The Claimant described being conscious of the buses revving up before they set off, but being uncertain at that time as to whether the double decker would go straight on or turn left. In fact the double decker went straight into Allington Street and did not in fact cause the Claimant any danger.
26. When the Defendant's bus started to move the Claimant would have been about 3.08m – 3.25m into the road. There would normally be a reaction time of about 1.5 seconds before he could respond to that event.
27. When the Claimant heard the buses revving up and became aware of their moving he thought he was some 40% to 50% across the road when that happened. He did not register the route of the double decker as that was, he said in evidence, to his left and was not a problem to him; it was the Defendant's bus which was threatening him. The calculations based on the camera match position show that the Claimant was in fact 3.08m – 3.25m into the road at the first movement of the Defendant's bus, i.e. 20% across the road not 40 to 50% across. When the Claimant had reached 6.86m from the north kerb, i.e. about 45% into the road, the CCTV reveals that he had already changed his gait and started to run, at a pace calculated by the experts at about 2.58m/s. Whilst this is at the lower end of running speed, the experts said, the Claimant said that as far as he was concerned, a heavy man in his fifties, it was a run.
28. In fact the Claimant told me in evidence that as the Defendant's bus was coming towards him and he realised that it was not going to stop, he ran for his life. He said there was no point waiting in the road when there were two buses moving off; nor was there any point in turning back when his momentum was forward and he was already half way across the road. The evidence of Mr Wilson-Law was that the Claimant's gait had probably changed by image 487001 clock time 07.18.08, as it had certainly done so by image 487850, which suggests that the Claimant had crossed about 5.38m, i.e. 30% of the road, when he reacted to the bus coming towards him as he described. On this basis there would have been a reaction time of 1.15 seconds after the bus had first moved, that is faster than a normal reaction time of 1.5 seconds.
29. The impact occurred at the clock time of 07.18.11, some 6.227 seconds after the Claimant had entered the carriageway. The Claimant was some 3.6m from the southern kerb when he was struck by the nearside corner of the front windscreen of the bus.
30. The Defendant's driver did not see the Claimant at any time during his journey across the road, nor indeed when he went across the front of the bus. The CCTV, camera 2, shows the Defendant's driver looking somewhat to her right at 07.18.05 (frame 484127) immediately before she moves off, and very shortly after the Claimant would have stepped off the kerb into the carriageway. She is then seen looking to her left at 07.18.06 as she sets off, and at 07.18.07, before looking almost straight ahead (though the position of the eyes is difficult to determine) at 07.18.08 before looking to her left again at 07.18.09 and 07.18.10 and 07.18.11.
31. The driver of a bus of this type was required to ensure that the nearside rear of the bus did not, as the experts put in their joint statement, "come into conflict with other road users, particularly cyclists or street furniture". It would be normal for a driver to look in her nearside mirror when making a left turn, to observe the position of the nearside of the vehicle in relation to the kerb edge. Mr Jeffries, a bus driver of 30 year's experience and a colleague of Ms Gordon, and branch secretary of the union, said in evidence that drivers were always wary of their nearside because of motorcycles or cycles getting up the nearside. The bus, Mr Jeffries said, had a large overhang over the rear axle and the rear of the bus swung to the right when making a left turn, so that the driver had to keep an eye on the nearside and also check the offside when moving off. The majority of the problems came from the nearside. Mr Jeffries described how in executing a turn such as this the driver would also be scanning the front as he went. Mr Natt said that the driver should look at the direction in which he was travelling but that there were other features the driver would scan to take into account the whole picture. In cross-examination Mr Natt said that there would be a sweeping look into the space that the driver was moving into, a general scan from mirror to mirror.
32. When he had observed bus drivers at the scene when he had inspected it, Mr Natt had noted a number drivers looking to their nearside as they pulled away from the lights. Mr Wilson-Law had also noted that drivers once they had set off, looked ahead. Mr Wilson-Law said in evidence that the driver's attention should have been primarily on the direction in which she was travelling but also to the nearside.
33. The tests carried out by Mr Manning, show that the bus driver would probably have had visibility of the Claimant, if she been looking in his direction, from the time he stepped into the carriageway at 07.18.05 to impact at 07.18.11, but because of the blind spot, such visibility would on occasions have been limited as a proportion of the Claimant would have been obscured by the blind spot. Thus at 487127 (07.18.08) when the driver was looking approximately straight ahead, the upper part of his body would probably have been available to have been seen, and at 488127 (07.18.09) the majority of the Claimant would be available to be seen, to the offside of the obstruction. Thus Mr Wilson-Law states:-

"Therefore between 07.18.08 (487127) when Ms Gordon is believed to be looking forwards and 07.18.09 (488127) when Ms Gordon has rotated her head to the left, Mr Hickman is available to be observed to the offside of the windscreen obstruction as she rotated her head."(B1/354h,i)

34. The driver could, by a relatively small movement of the head, overcome the obstruction. The expert evidence was to the effect that a driver instinctively and easily compensated for an obstruction and Mr Jeffries said that if looking to the front, part of the head and the shoulders had to move though not very much in order to overcome it. It is correct to say, as Mr Geoffrey Brown for the Defence submitted, that when a driver is scanning across the road there will only be a limited number of head adjustments that can be made.
35. Mr Manning's tests did not cover peripheral vision. It was agreed by the experts that moving objects in a driver's peripheral vision tended to catch the attention. Mr Wilson-Law agreed in evidence that it was easier to see an object moving left to right than right to left with peripheral vision. Whilst crossing the road the Claimant would be moving at varying rates.

Causation

36. The experts agree that the impact would probably have been avoided if the driver had braked to a halt by 07.18.10, or if she had slowed down by braking, or if she had steered away from the Claimant. The bus driver had to have seen the Claimant between 07.18.09 and 07.18.08 or earlier, to have braked to a halt, or slow down or swerved in order to avoid the collision.

The witnesses

37. The Claimant's honesty as a witness was not challenged but it was contended that elements of his account arose from reconstruction rather than accurate memory. The CCTV shows that the Claimant was wrong in his evidence that the traffic lights were red for the buses when he started to cross, and his position in the road when the bus moves, and he starts to run, are not pin point accurate, but what he genuinely believes to be the case.
38. I accepted him as a witness who put his own case with vigour, but was at all times attempting to provide the court with evidence that he genuinely believed to be true.
39. Ms Gordon's absence from the witness box left key parts of her evidence unexplained: why she failed to see "white tail man"; why she failed to see the Claimant at any time; why she apparently only looked ahead for about 1 second and for the rest of the time concentrated on her nearside; how she dealt with the blind spot; why she did not notice or appreciate that pedestrians might cross or in fact were crossing Victoria Street, and take that into account. Many other questions arise although the fact remains that those questions remain unanswered.
40. Mr Jeffries' witness statement contained much inadmissible opinion evidence but he was able to assist the court with how drivers dealt with the blind spot and the need to scan forwards as well keep an eye on the offside and nearside. Mr Verdier's evidence was brief but established that the Claimant was initially walking across the road and going at such a speed that Mr Verdier thought that he had better get a move on.
41. Both experts were knowledgeable and helpful to the court and were in substantial agreement on many important issues.
42. The evidence was helpfully analysed by counsel for both sides in both opening and closing submissions. I found these to be detailed and valuable and I have given careful consideration to their written and oral submissions.

Liability

43. I am clear in the conclusion that the Defendant's driver was negligent in her lookout. A failure to see something is not necessarily negligent; as Mr Brown submits if a reasonably careful driver could reasonably not have seen the Claimant it could not be negligent for Ms Gordon not to have done so. But that is not the situation here even when making all due allowances for the relative conspicuousness of the Claimant crossing the road in the dark early morning, the angle at which, and the limited extent to which he was moving across the driver's vision (particularly peripherally), the blind spot, the need for the driver to concentrate on the nearside and offside as well as the front reducing her time for looking to the front, and the lesser likelihood of pedestrians crossing Victoria Street from north to south as opposed from south to north, especially in the face of stationary buses waiting to set off from the lights.
44. The junction is, on the evidence of the Claimant and Mr Natt, and on judicial knowledge, very well lit. Some of the shops and business lit windows at that time of the morning will make some areas more clearly and intensely lit than others, but the Claimant did not have to be silhouetted against a window for him, or indeed any other person to be seen crossing the road. A study of the CCTV itself reveals that his figure can be seen, for example between 07.18.08 and 07.18.09 whether against the lit windows or by the street lighting. Camera 1, is higher above the head of the driver, but the images of the CCTV are distorted by the fish eye lens, and monocular as opposed to binocular vision compared with what could be seen by the driver. Furthermore the glare on the images of camera 1 and camera 8 make the pictures less clear than the driver's view. The pixelation and blurring of some of the images also distorts the real view the driver would have had. The substantial difference between the images and the driver's view is demonstrated by Mr Natt's photographs. Both experts agree that Mr Natt's pictures fairly represent that difference. Mr Wilson-Law described the visibility for the driver as being far greater than the images from the CCTV.
45. Mr Verdier, albeit a pedestrian, was able to see the Claimant crossing the road and Mr Wilson-Law's evidence was that there was no reason why the Defendant's driver would not have had sight of the pedestrians crossing and that Ms Gordon would have had visibility of the Claimant crossing from the moment he stepped into the road at 07.18.05 to the impact at 07.18.11, a period of time of 6.227 seconds, had she been looking in his direction during that period of time.
46. Insofar as Mr Natt disputed this evidence by saying that it depended on the conspicuity of the Claimant and whether he was obstructed by "white tail man" I prefer the evidence of Mr Wilson-Law which accords with the pictorial and oral evidence. Any obstruction by "white tail man" could only have been momentary and in any event the two men would have been in the driver's line of sight as Mr Natt conceded.
47. I conclude that the Claimant was properly visible whilst he was crossing the road, and sufficiently conspicuous to be seen by the Defendant's driver at any time when she was, or ought to have been, looking in his direction.
48. The driver of a bus such as this has various hazards facing her when making a left turn, not least concern about motorcyclists and cyclists coming up the nearside. It is for that reason that just prior to, and at, setting off it would be reasonable for a driver to check that her nearside was clear. That is what Mr Natt found the drivers did when setting off. As Mr Wilson-Law observed however and Mr Jefferies confirmed, drivers also have to look to the front, towards and into the road into which they are turning.
49. There is a continuing duty to check the road ahead and the potential hazards which it may give rise to. The duty does not merely arise when a driver chooses to look in that direction, as the lookout has to be reasonable, judged by objective standards. A driver should not enter a road in which she intends to turn, unless she can see that it is safe to do so, and Rule 170 of the Highway Code requires the driver to "watch out for pedestrians crossing the road into which you are turning. If they have started to cross they have priority so give way". The Rule presupposes not only a proper lookout, but a specific admonition to watch out for the very hazard which occurred here.
50. The bus driver's witness statement for the appeal against her conviction states that at 07.18.08 she "glanced forward". It is clear from the CCTV, camera 2, that Ms Gordon spent more of her time (07.18.06, 07.18.07, 07.18.09, 07.18.10, 07.18.11) concerning herself with her nearside than the road ahead (07.18.08); "glanced" appears therefore to be an appropriate choice of word to describe what she did. By doing this she effectively deprived herself of the opportunity of observing the potential hazards in the road ahead, a road the bus was entering. This was in my judgment an inadequate lookout. She should have been scanning the front as she went, to satisfy herself that it was safe to enter Victoria Street; a glance was insufficient.
51. Ms Gordon's employees found at her disciplinary hearing on 26 October 2009 that:-

"Ms Gordon should have been aware that there is always a risk of pedestrians stepping out into the road unexpectedly particularly in an area such as Victoria which is a major transport interchange. Mr Johnson said that he was concerned that Ms Gordon had spent too much time looking in her nearside mirror without moving her head to take into account what was going on in front of her."

52. This finding, made by Mr Johnson the Operating Manager who was himself a bus driver, was confirmed on appeal. I agree with that finding. It accords with my own view of the evidence and argument before me. There was excessive use of the mirrors in the circumstances by the bus driver which resulted in her failing to keep a proper lookout of the road ahead of her.
53. The driver's lookout was not merely defective in this respect, but also in her failure to see "white tail man" crossing the road whilst she was stationary at the lights. He had walked across the road which she about to enter and was there to be seen. There is a clear image of him at 07.18.00 in the images from camera 1; he is then in the early part of crossing Victoria Street to her left, the road that she is about to enter. There is no reason, apart from a deficient lookout, for her failure to notice the fact that this pedestrian was crossing the road that she was about to enter whilst she was sitting there stationary at the lights. He was crossing from her left, and his presence demonstrated that the need for her to be aware of the chance of pedestrians crossing Victoria Street at that point.
54. She had no reason to believe that pedestrians would not cross north to south as well as south to north. The joint report of the experts and the photo stills taken by the Claimant after the accident show that the route taken by the Claimant was not unusual. As a regular user of the junction (B/140 para 5) the Claimant should have been aware of that, particularly as the presence of "white tail man" crossing that morning would have reminded her of the potential hazards. It is right, as Mr Brown submits, that "white tail man" did not represent a significant hazard as he was already out of and heading away from the area of danger, but his presence should have alerted her to the fact that people did cross the road at that point and as he was crossing the very road into which she was intending to turn, his presence was not irrelevant to her driving.
55. Ms Gordon's witness statement states that she did not expect to see pedestrians crossing Victoria Street north to south because of the railings which were present and the fact that there was no dedicated crossing. A pedestrian, she said, would clearly see her bus and should not have been walking along the edge of the yellow box junction. The pedestrian was crossing in an area where he was not supposed to cross. She was not expecting to see a pedestrian walking from the Claimant came.
56. The reality she should have been considering however was quite different; namely that pedestrians did cross Victoria Street at that point and that they were doing so that particular morning. The fact that the bus driver was not expecting to see a pedestrian crossing at that point may explain not only why she did not look properly, or sufficiently to her front, but also why she failed to see him when she started looking in that direction at 07.18.08 (487127). At that time the Claimant was about 5.56m into the road and between then and 07.18.09 (488127) when Ms Gordon rotated her head back to the left he had moved to about 7.57m into the road, i.e. about halfway across. During that period of time from 07.18.08 – 07.18.09, the Claimant's upper body was available to be observed to offside of the window obstruction (the blind spot). He was running by then. The driver had a duty to accommodate the blind spot and had she done so more of the Claimant may have been visible to her. But in any event, the experts agree that he was visible to her. He would have been within either her central or peripheral vision at that time. Her failure to see him then, when she was moving forward, was also negligent. I do not accept Mr Brown's argument that a reasonably careful driver could reasonably not have seen the Claimant at that stage. The CCTV and the evidence of the experts satisfy me that he was there to be seen and should have been seen.
57. The Claimant did not need to be silhouetted in order to be seen in the well lit junction and his presence or movement was sufficient for the bus driver to see him, whether in her central or peripheral vision.
58. The blind spot should have been compensated for by the driver; the expert evidence is agreed that this is an instinctive response by a driver and little movement is required to achieve it. Its presence undoubtedly adds to the burden upon a driver, but that burden has to be discharged by the driver taking all proper and reasonable steps to overcome it.
59. The Claimant was already in the road when the bus set off and Rule 170 of the Highway Code applied. The bus driver should have given priority to the Claimant.
60. Perhaps the most obvious evidence of the bus driver's inadequate lookout is her failure to see the Claimant at any stage until after the impact. Even though he passed across almost the entire front of her bus she did not see him and was unaware of who or what she had hit until after the event. This is a clear demonstration of a failure of lookout and in particular of failure to concentrate properly upon the road ahead of her into which she was turning.
61. I therefore conclude that the driver was negligent in her lookout: she failed to look properly or sufficiently at the road ahead into which she was turning; she failed to see the Claimant when she did look at a time when he was visible to her and should have been seen; she failed to see the Claimant at any time until after the impact and she failed to see "white tail man" crossing Victoria Street while she was stationary at the lights. Other features such as failing to stop, or slow down or change course all arise from the failure of lookout. I do not consider that her speed in itself was excessive, though it was excessive for the lookout she was keeping.

Causation

62. Had Ms Gordon been keeping a proper lookout I am satisfied on the evidence that it is probable that she would have seen the Claimant in the process of crossing the road between 07.18.09 and 07.18.08, or earlier, i.e. in sufficient time, on the experts evidence, to slow down, change course or stop so as to avoid colliding with the Claimant. If the bus driver had been scanning the road ahead properly as she was moving forward, she could and should have seen the Claimant before 07.18.08 even allowing for appropriate use of her mirrors to check other hazards. In any event she could and should have seen him when she was looking ahead at 07.18.08.

Contributory negligence

63. I am equally clear in the conclusion that the Claimant was guilty of contributory negligence.
64. Whilst he did not use a designated crossing, the place where he chose to cross, and regularly crossed, was permitted and regularly used by other pedestrians. It was not in my judgment unsafe per se, but given the presence of the buses waiting to move off from the lights a high degree of vigilance as to their movement was required of the Claimant, as he would be having to pass in front of them or at least pass in front of the single decker bus in the left turning lane in Wilton Road. A high degree of vigilance was particularly important as the Claimant set off into the carriageway when the lights were red/amber for the buses. This clearly created a potential hazard for him if the buses did not see him. He should have waited for the buses to have moved off, or the lights to change again before crossing.
65. I am satisfied that he was walking when he started to cross the road as Mr Verdier's evidence and the experts evidence establishes, and that on his own evidence he thought the lights were still red for the buses when he started to cross, even though they were not. He was not, I conclude, trying to dash in front of the buses or outrun them as Mr Brown submitted, but when he appreciated that they were moving off, he carried on his forward momentum by breaking into a run.
66. I am satisfied on the Claimant's evidence, which I accept on this issue, that he did run because he had the impression, as he might well have done from its angle of approach when turning, that the Defendant's bus was coming towards him and accelerating. At the time when the Claimant broke into a run he was, as Mr Brown submits, less than halfway across the road but the bus was only 12 metres away and 2.4 seconds from impact. I am satisfied that the Claimant did in fact feel threatened by the single decker bus and initially in part by the noise of the double decker. He felt that he was forced to make a difficult decision with the bus moving towards him, even though with hindsight he would have been better to have stopped and waited for it to pass in front of him or, as it turned out in the case of the double decker, behind him. I am satisfied that the Claimant felt he was in a genuine dilemma to which his response was to break into a run. He did not knowingly take the risk of running when he knew that he could have waited. I am satisfied on his evidence that he responded instinctively to the situation which he thought faced him. Nevertheless it was the Claimant's actions in crossing the road when he did that placed him in the dilemma in which he found himself, and that denotes clear and significant contributory negligence.

Apportionment

67. Mr Brown submits that the Claimant's blameworthiness is greatly in excess of that of the Defendant's driver who had only a limited opportunity to see the Claimant in difficult circumstances. There was on the other hand, he submits, a high degree of fault on the Claimant's part in crossing when he did, taking risks at various different parts of his journey across the road. The Defendant's liability, Mr Brown submitted, should not exceed 25%, indicating 75% contributory negligence by the Claimant.
68. Miss Begley for the Claimant, submits that the Defendant should take by far the greater part of the blame for this accident as Ms Gordon was greatly more culpable. Miss Begley concedes the Claimant started crossing the road when the lights were red/amber, but the buses were still stationary and the Claimant reacted quickly when the buses revved up and moved off. The bus driver never saw the Claimant, moved off when the Claimant was already in the road, and proceeded round the bend into Victoria Street for over 4 seconds without seeing the Claimant. A proper lookout would have given the driver time to react. The Claimant should not be found responsible, Miss Begley submits, for more than 15 – 20% contributory negligence, in other words the Defendant should be 80 – 85% to blame.
69. I have assessed and weighed causation and the blameworthiness of both parties. Whilst I regard both parties as being guilty of significant negligence and responsibility for the accident, the continuing failure of lookout by the bus driver and the fact that the bus moved off when the Claimant was already crossing the road into which she was turning makes the bus driver more culpable.
70. I bear in mind that this was not a case where the pedestrian suddenly moved into the path of the bus, but had already been in the road when the bus set off, was there to be seen and should have been given priority by the turning vehicle. I have weighed this with the knowledge that a vehicle may be a potentially dangerous weapon and considered the cases of Eagle v Chambers [2003] EWCA Civ 1107 and Lunt v Kaglifa [2002] EWCA Civ 801.
71. Had the driver been keeping a proper lookout, braking to a halt or merely slowing down or changing course would probably have avoided the accident. Weighing causation and blameworthiness in respect of both parties I conclude that the Defendant through its driver was 60% to blame for this accident and the Claimant was 40% to blame.

Conclusion

72. Accordingly there will be judgment against the Defendant for 60% of the full value of the Claimant's claim.