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Cite as: [2007] ScotCS CSOH_31, [2007] CSOH 31

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 31

A382/01

OPINION OF LORD MENZIES

in the cause

CANDACE DONALDSON (AP)

Pursuer;

against

HAYS DISTRIBUTION SERVICES LIMITED

Defenders:

________________

Pursuer: MacAulay, Q.C., R.G. Milligan; Drummond Miller LLP

Defenders: Ivey, Q.C., U. Doherty; HBM Sayers

15 February 2007

Introduction
[1] This is an action for damages for personal injuries arising out of an accident which occurred on 27 October 1998 in the loading bay area of the Eastgate Centre, Inverness. It is averred on behalf of the pursuer that she purchased some furniture from the Argos store in the Eastgate Centre on that date, and was thereafter directed by staff in the store to go to the loading bay area where her purchase would be available to be uplifted. It is further averred that the collection point for large goods such as furniture purchased from stores such as Argos within the Eastgate Centre was situated within the loading bay area, and that before the pursuer's accident it was common for customers to enter the loading bay area on foot in order to pick up items purchased therefrom. When the pursuer was within the loading bay area she saw a member of staff at the loading bay opening used by the C & A store located within the Eastgate Centre. She asked that person if she was at the collection point for Argos, and was told that she was not. As the pursuer turned to leave, an articulated lorry, owned by the defenders and driven by one of their employees, reversed back towards the open loading bay, crushing the pursuer between the rear of the trailer of the lorry and the loading bay wall. As a result of this accident the pursuer sustained serious injuries.

[2 ] The value of the pursuer's claim, on the basis of full liability being established, has been agreed between the parties in a Joint Minute of Agreement (No.45 of process). The dispute between the parties was limited to whether the pursuer was able to establish fault on the part of the driver of the lorry, and if so whether the accident was caused or contributed to by the pursuer's own fault. The defenders averred that the pursuer knew or ought to have known by the close proximity of the lorry to the loading bay, and by its engine running, that the lorry was likely to be involved in a delivery to the loading bay, and it was her duty not to walk between the trailer of the lorry and the loading bay wall. Furthermore, there were signs at the entrance to the loading bay area warning that this was not a pedestrian route and "no unauthorised entry service vehicles only".

The evidence
[3 ] The pursuer gave evidence but could remember nothing of what happened on 27 October 1998. Her husband, Iain Donaldson, who was a retired solicitor, also gave evidence on her behalf. He confirmed that she had set off that day from their home in her own car in order to purchase a fairly large and heavy item of furniture from the Argos store in the Eastgate Centre, Inverness. He himself had been shopping in the Eastgate Centre with his wife over many years. There was a shoppers' car park in the Centre, which was separate from the pick-up points for the various stores. The pursuer had gone on foot to find where the Argos pick-up point was, intending then to get her car and collect the item which she had purchased.

[4 ] Mrs Irene Cunningham was employed as a part-time sales assistant at the C & A store in the Eastgate Centre on 27 October 1998. In the late afternoon of that day she went down to the loading bay area to receive a delivery from a lorry; she remembered clearly dealing with the driver and with this particular delivery. Delivery of goods to this loading bay involved a lorry being driven into the loading bay area and then reversed towards the C & A loading hatch. This hatch is shown in photographs 6 and 7 of 6/13 of process; the hatch was closed by a shutter door, and the floor of the C & A delivery area was several feet above the level of the general loading bay area. This particular delivery had been completed and the rear of the lorry trailer had been closed. Mrs Cunningham was closing the roller shutter door to the loading hatch when a lady came round the corner of the loading bay area and asked Mrs Cunningham if this was the Argos loading bay. Mrs Cunningham said that it was not, and the lady was about to turn away when the lorry reversed into her, crushing her between the rear of the lorry trailer and the concrete area below the C & A hatch. This all happened very quickly - Mrs Cunningham was only aware of the lorry reversing when the accident happened. Mrs Cunningham was standing beside the button which operated the roller shutter door, about one yard from the edge of the loading bay. The lady was approximately in the middle of the loading hatch when she asked Mrs Cunningham if this was the Argos loading bay, so she was perhaps two or three steps away from the corner. After she was told that it was not the Argos loading bay, the lady did not hang around; she was about to turn away when the accident happened. When the driver had completed his delivery, Mrs Cunningham confirmed that she was the only person at the shutter door. She was not aware of any signs on the wall of the loading bay area indicating that this was not a pedestrian area.

[5 ] Richard Reeves was working in the Eastgate Centre on 27 October 1998 with his brother. They were involved in a sales promotion and set up a stall in the Eastgate Centre for the whole of that week. They travelled to and from the Centre in a high van which would not fit into the shoppers' car park, so they had obtained permission to park the van in the loading bay of the Centre. Mr Reeves confirmed that No.7/8 of process was a photograph which showed the entrance to the loading bay area, and on either side of the pillar to the right of the photograph could be seen the entrance and exit respectively to the shoppers' car park. As one entered the loading bay area, the Reeves' van was parked in the corner at the far end, approximately 40 feet beyond the cab of the lorry in the position shown in photograph 1 of 6/13 of process. They got access from the loading bay area to their stall in the Eastgate Centre by means of service lifts or internal stairs; there were two or three lifts which gave access between the shopping centre and the loading bay area, and about ten different flights of access stairs.

[6 ] At about 5.00pm on 27 October 1998 Mr Reeves and his brother came down to the loading bay area and got into their van. Richard Reeves was driving. He saw the lorry belonging to the defenders in the vicinity of the C & A loading hatch. Richard Reeves drove his van forward some distance, but could not get past the lorry as it was parked at an angle. He stopped his van, and saw the driver at the passenger side of the lorry. The driver waved, as if to say that he was going to move the lorry; he walked around the front of the lorry and jumped into the driver's side of the cab. He made no checks under or behind the lorry - he just jumped into the driver's seat and started reversing.

[7 ] At about the same time as he saw the driver at the passenger side of the lorry, Richard Reeves saw the pursuer entering the loading bay area. When he first saw her, the pursuer was close to the black pole towards the right side of the photograph which is No.7/8 of process. She walked down the left side of photograph 1 of No.6/13 of process, parallel to the left wall in that photograph, and then disappeared from Mr Reeves' view. Mr Reeves was not 100% sure how far the rear of the lorry trailer was from the C & A hatch when he first saw the lorry, but thought that it might be about 4 feet away. He did not think that the driver moved forward after he jumped into the cab having waved to Mr Reeves - he was of the view that the driver had completed his delivery and had already moved forward to enable the rear doors of the lorry to be closed, and knew that he could reverse back the same distance. He was sure that the driver carried out no checks to the rear or underneath his lorry, and there was no audible reversing siren when he reversed the lorry. The driver did not have to start up the lorry when he jumped into the cab - the engine was already running. Mr Reeves used to be a lorry driver and would have noticed the distinctive noise of a lorry's engine being started. The driver simply jumped into the cab, engaged reverse gear, and reversed until the rear of his trailer struck the vertical black buffer on the corner of the loading hatch, which is shown in photographs 6 and 7 of No.6/13 of process.

[8 ] As the lorry reversed, Mr Reeves was able to drive past the cab, and he drove his van towards the exit of the loading bay area. As he passed the rear of the trailer and the hatch area he saw something fall from the back of the lorry, and his brother observed that it was "that woman". Mr Reeves parked the van and his brother went to help the pursuer, who was collapsed on the ground near to the large pool of blood in photograph 7 of No.6/13 of process. The pursuer got up and tried to move, but Mr William Reeves put her back down on the floor in the recovery position. Richard Reeves saw a lady standing in the open hatchway of the C & A loading bay. He did not himself become involved in assisting the pursuer because he is squeamish, whereas his brother is trained in first aid. Richard Reeves sat on the kerb at the left side of photograph 1 of No.6/13 of process; the lorry driver came and sat beside him and Mr Reeves observed that he was quite annoyed at the lorry driver because he did not seem to care about what had happened and did not try to phone for the police or for an ambulance.

[9 ] In cross-examination Richard Reeves reiterated that he was not aware of the lorry moving forwards towards him before the accident; he could see out beyond the lorry and down the whole passenger side of the cab and trailer. His van was stationary in front of the cab, and perhaps one van's length away from it. He was paying particular attention to the driver, because the driver was about to reverse his lorry and nobody was guiding him. Richard Reeves was certain that the driver made no checks below or to the rear of his lorry, and Mr Reeves did not see him look in the wing mirrors (although these would have been of no assistance given the position of the cab and the trailer). Richard Reeves said that he was watching the driver carefully; he watched him get into the cab and immediately he started reversing, without looking and without anyone guiding him. The engine of the lorry was running throughout. When he first saw the pursuer, she would be approximately where the cameraman was when taking photograph 1 of No.6/13 of process, and he agreed that his van would be obvious to anyone in that position, who would have seen the van trying to get out and the lorry blocking its route. He agreed that the pursuer must have crossed to the other wall before the accident, but he was not paying as much attention to her movement as he was to the actions of the lorry driver. When the lorry reversed, he was aware of the left rear corner of the lorry coming into contact with the vertical rubber cushion on the corner of the C & A loading bay. He had worked in the Eastgate Centre some months previously; he was not aware of any signs at the entrance to the loading bay indicating that this was not a pedestrian area.

[10 ] William George Reeves also gave evidence. He was the brother of Richard Reeves and was working with him in the Eastgate Centre in October 1998. They had been there for some days before this accident, and he confirmed that they parked their transit van in the loading bay area. When they finished work they went down to their van by a means internal to the building - he could not remember whether they used a lift or internal stairs. His brother Richard was driving and he was in the front passenger seat. He became aware of the lorry belonging to the defenders blocking their exit with the cab unit at a slight angle to the trailer. The lorry was not angled as much as the lorry shown in photograph 1 of 6/13 of process - the trailer was in line with the loading bay but the tractor unit was not. William Reeves saw the driver of the lorry standing at the passenger side of the lorry. He also noticed a lady carrying shopping bags who was walking across the entrance to the loading bay area. When he first saw her she was at about the mirror on the right side of the photograph which is No.7/8 of process, and she was walking diagonally across the roadway towards the hatch of the C & A loading bay. At this time the driver was at the passenger side of the cab unit of the lorry. In order to let the Reeves' van out, the driver walked around the cab, got into the unit and moved the lorry. William Reeves thought that he would have had to move the cab forward to straighten it up, and then reverse. He could not say definitely how far the driver moved forward, but he thought that he did in order to straighten up the cab. He did not remember seeing the driver making any checks before he got into the cab. He did remember the lorry moving forward, perhaps by about 2 or 3 metres. He did not remember seeing the lady after she had walked across behind the trailer.

[11 ] Once the lorry had reversed, there was sufficient room for the van to leave, and Richard Reeves drove the van past the lorry. As they passed the rear end of the trailer, William Reeves notices something falling down. This was in the area at the corner of the loading bay with the vertical rubber buffer on it. He said to his brother that he thought that that was the lady with the shopping bags; his brother stopped the van and they ran back into the loading bay area. William Reeves found the pursuer in the area of the C & A loading hatch, either on the ground or trying to get up. Blood was coming from her nose and mouth. William Reeves was a qualified first aider and placed her in the recovery position and reassured her.

[12 ] In cross-examination William Reeves stated that he did not know if members of the public were entitled to be in the loading bay or not. He and his brother had been given permission to park their van there and to use the stairs or lifts. As he was watching the driver walking around from the passenger side of the trailer into the cab of the lorry, William Reeves was in the passenger seat of the van which was situated about 20 to 30 metres in front of the lorry cab. He could not remember if the van drove forward and stopped closer to the lorry, but he did not see the driver making any checks. His recollection was that the lorry moved forwards and then immediately backwards, with no significant stop or pause between the two directions of travel. Before this he saw the driver walk round the front of the cab and climb into the cab, and during that time he did not see the driver carry out any checks as to whether there were people in the vicinity of the lorry.

[13 ] PC Alistair Stewart was a qualified road traffic accident investigator with Northern Constabulary with 28 years service. He arrived at the loading bay area of the Eastgate Centre at about 6.45pm on 27 October 1998, and the photographs which comprise No.6/13 of process were taken at the time that he attended the scene. He had been to the loading bay of the Eastgate Centre before, when he had picked up some goods from the loading bay. On that occasion he had driven out of the shoppers' car park into the loading bay to pick up goods. He said that that was the way people did it at that time. The defenders' lorry was in the position shown in photograph 1 of No.6/13 of process when he arrived. He confirmed finding bloodstaining to the right side of the concrete area below the C & A loading hatch, and a pool of blood on the ground, as shown in photographs 6 and 7. He also found marks at the rear of the lorry trailer, including a fluid mark to the left of the telephone number in photograph 3, and a bloodstain on the left part of the underrun bar of the tailgate in photograph 4 which corresponded with marks on the concrete area of the wall. He inspected the lorry and found that although there was a reversing alarm fitted to the vehicle, it did not function at the time. There were no reversing lights on the trailer, although there were reversing lights on the tractor unit. He prepared the sketch plan which was No.6/14 of process. He confirmed that the tyre stop was the yellow and black hatched ramp on the floor of the loading bay, visible in photographs 5 to 8 inclusive, and this was an aid to lorry drivers because when the back wheels of the trailer touch this tyre stop the back of the trailer would be up against the horizontal rubber stop but not touching the loading bay. He measured the distance from the entry gate of the loading bay area to the C & A loading bay hatch and found this to be 11.6 metres diagonally from the bottom corner of the gate to the corner of the loading bay. This would take a lady walking at average walking speed about 8 or 9 seconds to cover. He observed that articulated trailers were generally a standard size, namely 40 feet in length, and that if the rear of the trailer was squashed against the vertical rubber stop in photograph 6 of 6/13 of process, the rear tyres of the trailer would certainly be on the tyre stop.

[14 ] In cross-examination PC Stewart agreed that pedestrians were not supposed to enter this area, and there was a sign on the wall saying that this was for vehicle access; however, this was not the large sign shown in photograph 7/9 of process, and he did not remember that sign being there at the time, although it might have been. The much smaller sign below it said "Danger This is not a pedestrian route", and PC Stewart thought that this sign was there at the time. He confirmed that the mirrors of the vehicle were properly set and that it was not obligatory at that time to have a reversing lamp on a trailer nor a functioning audible alarm. He agreed that there was a blind spot at the rear of the trailer, and that if somebody was standing in this blind spot the driver could not see that person from the driver's position in the cab. He expressed the view that because there was a tyre stop there was no need for a banksman to assist the driver in reversing.

[15 ] In re-examination PC Stewart agreed that the position regarding signs changed after this accident. Before the accident, he himself had gone into the loading bay area to collect goods and had seen others doing this; it was common practice. After the accident large no entry signs were erected and the gates were kept closed. He agreed that the smaller sign in photograph No.7/9 of process was very small, and he had seen people picking up goods from the loading bay area on foot - this was the easiest way to collect things, as the shoppers' car park was just next door. He agreed that the tyre stop was there to prevent damage to the loading hatch area and to the trailer. If the rear tyres of the trailer were on the tyre stop there would be no gap to enable a pedestrian to stand behind the trailer - the rear of the trailer would be touching the horizontal rubber barrier below the hatch area.

[16 ] PC Kenneth Newbigging was a retired police constable; in October 1998 he had almost 31 years service and was the reporting officer for this accident. He arrived at the scene just a few minutes after the accident occurred. He took a statement from the driver of the lorry later that evening. The driver was also breathalysed at the scene, with a negative result, and the tachograph was checked and found to be in order. PC Newbigging then took a statement under caution from the driver of the lorry, Mr Stephen Ruck. This statement was noted in PC Newbigging's notebook, but with the agreement of counsel I was provided with a typed copy, which was agreed to be accurate. This was in the following terms:

"I had finished delivering two pallets to C & A. One of the girls went up to get the paperwork and I was securing the tail lift at the rear of my lorry. The tail left was not used. It was lowered in the upright position. After that I took off the electrics for the tail lift. After that I went into the cab of the lorry. The lorry engine was still running. I engaged 1^st gear and started to move forward, when a white van came up in front of me. I had moved a foot or two. I stopped to let him past. I noticed the white van was having trouble in getting past. He might have hit my mirror so I reversed back into the loading bay and stopped. When the white van passed I moved forward. As I pulled forward, the white van had stopped half way up my trailer. Two men jumped out waving their hands. I stopped, got out of my lorry and went to the rear of my trailer when I noticed the accident. I had not seen the girl at any time when working around the trailer or in my mirrors when manoeuvring. After that everything went blank until you all arrived. I left the vehicle exactly where it was when I stopped."

[17 ] In cross-examination PC Newbigging was asked whether the loading bay area was a permitted pedestrian area, and he replied that he did not know at the time whether it was or not, and he still really did not know.

[18 ] The final witness for the pursuer was Mr Peter Sorton, an expert in accident reconstruction who spoke to his report (No.6/24 of process). He stated that unless a camera was fitted to the rear of the trailer (which was not the case here) the driver of an articulated lorry has no view at all of the area immediately behind the rear of the vehicle. If the cab and trailer were in a straight line the driver would have a view along the side of the vehicle from a point just behind the mirrors, but this would not extend to the area immediately to the rear of the trailer. He observed that the manoeuvre of reversing a trailer up to the C & A loading hatch was not an easy one, and there was very little room to spare. Only at the very beginning of the manoeuvre would the driver have a full view down both sides of the trailer, and he would lose this view from all mirrors as the manoeuvre commenced. He expressed the opinion that if it was foreseeable that there might be pedestrian activity immediately to the rear of the trailer, the only step which the driver could take (in the absence of a camera at the rear of the trailer) was to reverse with the assistance of a banksman. Checking the rear area of the trailer himself would not be sufficient, because it was foreseeable that a pedestrian would walk into the area between the loading bay and the trailer between the time that the area was checked and the time that the reversing manoeuvre began. This matter was the subject of specific training in the Heavy Goods Vehicle Drivers Test, where drivers were instructed to look at every situation individually and consider the risk of pedestrians being present. Although the risk is reduced where a driver knows that everyone who is moving about is properly trained or is a driver, and so a lookout or banksman is not invariably required, there was a specific question in the HGV theory test concerning what a driver should do when reversing into a loading bay. The correct answer was that if the driver could not be sure that there was no risk of pedestrian movements at the rear of the trailer he should employ a lookout or banksman while reversing. Mr Sorton expressed the opinion that if members of the public are collecting goods in a loading bay area, there is an absolute need for a banksman if any reversing of commercial vehicles (even commercial vehicles such as Ford transit vans) is carried out. If the driver could be properly satisfied that the area was restricted to other professional drivers or appropriately trained staff, it might be acceptable to dispense with a banksman; similarly a driver might not need a banksman to keep a lookout if he was in an empty warehouse with only one entrance gate which was secured. However, if people went into the area to collect goods, then Mr Sorton was of the opinion that the driver required the assistance of a banksman in order to avert the risk of injury to pedestrians.

[19 ] In cross-examination Mr Sorton agreed that reversing an articulated lorry and trailer up to the C & A loading bay was a difficult manoeuvre, and the driver must be aware of what was happening on the nearside of his trailer, the far side of it and in front of the cab. It was put to him that if the driver moved forward for a foot or two, and then wanted to reverse the same distance, it was less likely that there would be a pedestrian in the blind spot at the rear of the trailer. Mr Sorton disagreed with this proposition strongly. He was of the opinion that this was potentially more hazardous than reversing over a longer distance, because the pedestrian might expect the manoeuvre to have been finished, and the action of moving a short distance forward and then reversing the same distance would deprive the pedestrian of the chance to get out of the way. In such a situation Mr Sorton expressed the opinion that it was foreseeable that even a qualified and trained pedestrian might assume that the manoeuvre was completed, and might walk into the gap between the rear of the trailer and the loading bay, assuming that the next movement of the vehicle would be forwards.

[20 ] In re-examination Mr Sorton reiterated the view that moving a short distance forward and then reversing was more hazardous than a simple reversing manoeuvre, and in such a situation if the driver had moved forward and then wished to reverse there was a greater need than in other situations to use a banksman or lookout in order to reduce the risk of injury to pedestrians. If the forward movement was slightly further - e.g. a couple of metres - and if the driver was satisfied that the area was restricted to properly qualified persons, the situation might be slightly different and the driver might not need a lookout. However, if the movement forward was only a couple of feet, there was no chance for a pedestrian to get out of the way if the lorry then reversed, and the driver would need to have a lookout to assist him - the driver would have created a trap by moving forward, and even a trained person might enter that trap and not have time to get out of the way.

[21 ] Two witnesses were led on behalf of the defenders, namely Robert McCabe and the driver of the lorry Stephen Ruck. Mr McCabe was the car park attendant at the Eastgate Centre and was employed as such on the day of the accident on 27 October 1998. He had been employed in this capacity since 1 July 1997. He knew the loading bay area of the Eastgate Centre, and at the time of the accident his work involved him sitting in a small cabin at the exit to the shoppers' car park, collecting parking fees as shoppers left. At about 5.00pm on 27 October 1998 the pursuer approach Mr McCabe and asked how to get to the Argos loading pay in order to collect a heavy package; he directed her to the Argos loading bay. He understood that she would be getting to it by car. If he had known that she intended to walk, he would have advised her not to do so, because the agreement was that people would go to the Argos loading bay with cars as the loading bay area was not a pedestrian area. He had been told to stop people taking pedestrian access to the loading bay area and not to allow them in. He would do this once or twice each week. He was not aware of members of the public taking pedestrian access to the loading bay. He agreed that in addition to entering the loading bay by the vehicular access shown in photograph No.7/8 of process, it was also possible to access it by lifts and stairs from the shopping centre, although the lifts were marked as service lifts and the stairs were for use by the public in emergencies only.

[22 ] Mr Stephen Ruck was the driver of the defenders' lorry at the time of the accident. He had held an HGV1 licence since 1981, and had driven HGV lorries while working for the Royal Navy until about 1993. After he left the Navy he became a driving instructor, and then worked on board cruise ships but drove HGVs when on leave. He had driven various types of trucks, but mainly articulated lorries. He had been employed as a driver with the defenders since ending his employment on cruise ships in about 1996 or 1997. Prior to the date of the accident he had made three or four deliveries to the C & A loading bay in the Eastgate Centre, although this was not his normal work area.

[23 ] On 27 October 1998 he reversed his articulated lorry up to the C & A loading bay and delivered the goods to the staff there. He was awaiting delivery paperwork to be returned to him, and intended to secure the back of the trailer and turn the lorry in the turning area. He lowered and secured the rear shutter door of the trailer and then raised the tail lift. He then walked down the passenger side of the lorry, to a point between the cab unit and the trailer, in order to disconnect the umbilical cord which supplies power to the trailer. He then walked around the front of the cab, took a quick look under the whole length of the trailer, then started the engine up and began to move forward. He then saw a white transit van which was making to leave the loading bay area, and he decided to let the van out before turning, as this would allow more room. As the van was approaching the front of the cab Mr Ruck thought that the van might hit his passenger side mirror, so he reversed back a little. Throughout this exercise he saw no pedestrians at the rear of his trailer. He could see out of the main exit of the loading bay area while sitting in the driver's seat, and he could also see the exit area from the point at which he was standing disconnecting the umbilical cord. He saw no pedestrians at all.

[24 ] He drove the lorry forward at most about 3 feet, and then reversed at most about 2 feet - just enough so that the white van would not touch his mirror. When he had closed the tail lift at the rear of the trailer there had been a gap between the rear of the trailer and the loading bay of only about 2 or 3 inches - just enough to allow the tail lift to be raised. He believed the area to be a non-pedestrian area, because there were signs to that effect at the entrance. One of these said "deliveries only, no pedestrians" and on the other side of the entrance there was a similar sign with a round sign beneath it with a pedestrian and a line through it. Before 27 October 1998 Mr Ruck had never seen pedestrians in the loading bay area, except for cleaners who wore high visibility yellow jackets.

[25 ] In cross-examination Mr Ruck stated that he had been within the loading bay area on about six occasions at most before 27 October 1998, the last of which had been about one week previously but this had not been to the C & A loading bay. There was no barrier or gate on the entrance to the loading bay area. On one previous occasion he had used a lift, but this gave access to the back of shop premises and not to an area to which the public had access. He had never used the stairs and did not know where the emergency stairs were. He could not imagine why any member of the public might want to enter the loading bay, although he accepted that it was possible that children might stray in, and that members of staff and cleaners could be in the loading bay area. He agreed that it was necessary to some extent to be on his guard when reversing his lorry, in case children or staff might be in the vicinity of the rear of the trailer, and that was why he looked underneath the trailer. After the delivery was completed, there was a problem with the paperwork, and while he was waiting for this to be sorted out Mr Ruck said that he raised the tail lift and then walked down the passenger side of the trailer to the umbilical cord. At that time he was not aware of the white van. He denied that at that time he realised that the lorry was blocking the exit route for the white van and that he acknowledged this with a wave; he did not see the white van while he was on the passenger side of the trailer but only saw it when he was in the driver's seat in the cab and had begun to move forward. At this time the lorry was not blocking the exit of the white van, but as the lorry pulled forward, so the white van drove forwards. When Mr Ruck had been standing by the umbilical cord he had looked up the passenger side towards the entrance to the loading bay area. He had a good view, and if the pursuer had been anywhere in the vicinity he would have seen her. He did not see her, and he was looking. If he had seen her, he would have waited to find out what she was doing. He agreed that if the pursuer was walking from the entrance to the loading bay area towards the rear of the trailer, the driver of the lorry would not be keeping a proper lookout if he did not see her and reversed the trailer, but this was not what happened because she was not there.

[26 ] Mr Ruck stated that he walked around the front of the cab and unlocked the driver's door; it took him about two seconds to walk round from the umbilical cord on the passenger side and unlock the door. As part of his training he always looked under the vehicle to check that there were no animals or children towards the rear of the trailer; if the pursuer was walking round the back of the trailer he would have seen her feet. This procedure involved a quick glance under the vehicle as he opened the door. All of this happened before he saw the white van. As he started to pull forward, the driver of the white van pulled forward at the same time and Mr Ruck decided to allow him to come out. He disagreed that he jumped into the cab without carrying out any checks; when he looked under the cab and trailer he could see the whole length of the vehicle. He moved forward about 3 feet at most, and as he pulled forward he put full lock on to turn hard left. When full lock is applied to an articulated lorry, unlike a car, the cab of the lorry turns almost at right angles. His intention at this time was to move away, and before this forward movement the rear of the trailer was only inches away from the loading bay, with no space to allow a pedestrian to walk between the rear of the trailer and the loading bay. By moving forward a space was created there. Mr Ruck stated that he drove forward a maximum of about 3 feet, and then reversed about 2 feet - he did not reverse fully back into the loading bay, and he was not prepared to accept that the lorry hit the vertical rubber strip on the corner of the C & A loading bay. He was not reversing blind, because he had the use of his mirrors, although these did not show the rear section of the vehicle. He denied that having put hard lock on this resulted in a reduction of his rear view through the use of the mirrors - if anything he thought that he got rather more of a view of the trailer. It did not cross his mind to stop and check again that there was no one in the blind spot to the rear of the trailer - if he had seen anyone in the vicinity, he would not have reversed at all.

[27 ] It was put to him that in his training before obtaining an HGV licence he was told that when reversing blind he should normally have a banksman to assist him, but he replied that the main times when a banksman was required was when one was reversing close to a school or where children might be playing around. He disagreed that the general advice was not to reverse blind, and he asserted that he was not taught to have help when reversing, and that part of his skill was to reverse into an enclosed area without assistance. He was aware of the advice in the theory test that when reversing into a loading bay area one should obtain the assistance of a banksman or lookout, but only if there was a risk of someone being there. He observed that "you just don't get time to do it, or people to do it". He was also aware of the advice given to car drivers in the Highway Code that if they could not see behind them they should get someone to guide them back, but he observed that he did not need someone to guide him, because it was safe to reverse back and he had checked once that it was safe. He stated that the audible reversing alarm did work on the lorry except when it had its lights on, but that it did not work when the lights were on. He maintained that the trailer was fitted with reversing lights which worked, and he disagreed with the police findings in this regard. He was sure that there were signs affixed to the wall on each side of the entrance to the loading bay area stating "no entry to pedestrians". He remained adamant that if the cab was at an angle to the trailer this improved his view of the exit/entrance area of the premises, so that if anyone was walking in he would see them. He was sure that he did check his mirrors before moving forward. He was also certain that he checked under the vehicle before he got into the cab, but the open driver's door would conceal this from the Reeves brothers in the white van at the front of the cab. In carrying out this check, he could see underneath the whole of the vehicle, right up to the corner of the loading bay.

Submissions for the parties
Submissions for the pursuer
[28 ] Senior counsel for the pursuer moved me to sustain the pursuer's first plea-in-law and to grant decree for the whole of the sum agreed in the joint minute for the parties (No.45 of process). He reminded me that the only case still before the court was the common law case set out in Article 3 of condescendence, and that there was no dispute that Mr Ruck reversed his lorry "blind" without the use of a banksman or lookout and struck the pursuer, nor that the point of contact was likely to be at the nearside edge of the trailer, as the pursuer was trapped against the wall to the right of the loading hatch as shown in photograph 6 of 6/13 of process. He submitted that there were two principal questions for the court:

(i) Ought the driver of the lorry to have been aware of the pursuer's general presence in the loading bay immediately before the accident? He submitted that the answer to this was that he ought to have been.

(ii) Ought the driver to have reversed blind in the circumstances, without the assistance of a lookout? He submitted that the answer to this was that he ought not to have done so.

Senior counsel's submissions dealt with three aspects of the case, namely:

1) Mr Ruck had a duty to keep a proper lookout for the presence of pedestrians such as the pursuer, and in this duty he failed.

2) In any event, Mr Ruck had a duty to use a lookout when reversing in the circumstances which prevailed at the time of the accident.

3) Contributory negligence.

[29 ] With regard to the first of these, senior counsel submitted that on the basis of the evidence of the Reeves brothers Mr Ruck ought to have become aware of the pursuer's presence before he entered the cab of the lorry. Even if this was not the case, having regard to his own evidence, he ought to have become aware of her presence if he had been keeping a proper lookout before he reversed the lorry. On his evidence, the space for the pursuer to enter into between the rear of the trailer and the loading bay did not open up until he moved forward, and on his evidence the mirrors would give him a view of where the pursuer must have been before she entered this space. Accordingly, even on Mr Ruck's own evidence, he failed to keep a proper lookout. Richard Reeves stated that Mr Ruck did not look in his mirrors before reversing, which might explain why he did not see the pursuer. Moreover, according to both Richard and William Reeves, Mr Ruck was on the passenger side of the lorry when the pursuer entered the loading bay area. Richard Reeves said that he saw the pursuer at about the same time as he saw the driver at the trailer end of the cab. William Reeves also saw the driver and also noticed the lady with shopping bags. These were two credible and reliable independent witnesses with a good view of the general location, and their evidence can be tested by what Mr Ruck accepted that he had to do. He accepted that if the pursuer was there, a driver keeping a proper lookout ought to have seen her, and if he had seen her he would not have reversed. If the court accepted the evidence of the Reeves brothers, that was an end of the matter. Where there were discrepancies between the evidence of the Reeves brothers and Mr Ruck (for example regarding a wave to acknowledge their presence) the independent evidence of the Reeves brothers should be preferred to that of Mr Ruck. It was also important that the pursuer was within the loading bay area before moving into the space between the rear of the trailer and the loading bay itself for a period of about 8 or 9 seconds, on the basis of the unchallenged evidence of PC Stewart. The only reasonable inference to draw from this is that if Mr Ruck did not see her, he was not keeping a proper lookout. On the question whether Mr Ruck checked under the vehicle or looked in the mirrors, Richard Reeves was certain that he did neither of these things. Mr Ruck suggested that when he checked under the vehicle this action might be hidden from the Reeves' review by the open driver's door, but this proposition was never put to either of the Reeves brothers. If Mr Ruck did carry out any checks, why did he not see the pursuer? Mr MacAulay submitted that it was clearly established that there was a failure by Mr Ruck to keep a proper lookout to check that there were no pedestrians in the vicinity of his lorry before he reversed towards the loading bay.

[30 ] With regard to the second branch of the submission, namely the duty to use a lookout when reversing in the circumstances, Mr Ruck accepted that he was reversing "blind" without being able to see the area immediately to the rear of the trailer. It was a reasonably foreseeable risk that a pedestrian might be in the vicinity of the rear of the trailer. There was no barrier to pedestrian access to the loading bay area. Staff from several shops in the Eastgate Centre had access to it. The Reeves brothers had access to it. The area was easily accessible by the public generally, and Mr Ruck accepted that this was the sort of area into which a child might stray. Mr McCabe said that people did wander into the loading bay area, and PC Stewart stated that it was common practice for members of the public to enter the loading bay area to collect items purchased, not just in cars but also on foot. This was therefore not the sort of area envisaged by Mr Sorton in his evidence as an example of when a banksman or lookout might not be required, videlicet an empty warehouse with a locked entrance gate, or a place where there was no risk of pedestrian activity; it was reasonably foreseeable that pedestrian shoppers, members of the public and staff might be walking in this area. On the basis of Mr Sorton's evidence there was no real doubt that Mr Ruck should have had a lookout if he was reversing blind into this loading bay - the correct answer to the HGV theory test indicated that a lookout should be used. Moreover, Mr Sorton was of the opinion that the movement of the vehicle forwards by a few feet and then immediately thereafter backwards increased the hazard, because someone in the vicinity of the rear of the lorry might gain the impression that the lorry would move away, and a situation in the nature of a trap might be created. Indeed, Mr Ruck stated that it was his original intention when starting the lorry up and driving forward that he would continue to move forwards. All of this increased the need to have the assistance of a lookout before reversing. Mr Sorton was not really challenged on his assertion of principle that if there was a reasonable risk that someone might be in the vicinity of the rear of the trailer a lookout should be used to assist in reversing. In Article 3 of condescendence reference was made to para.178 of the Highway Code. This was an error, because the reference to para.178 related to the 1999 version of the Highway Code: the relevant paragraph at the time of the accident was para.129 of the 1996 version of the Highway Code, the wording of which was identical to para.178 of the 1999 version which was accurately set out in the pleadings. In this regard senior counsel referred me to McCrone v Normand 1989 S.L.T. 332, in which the court held that a sheriff was fully justified in having regard to the equivalent provisions of an earlier version of the Highway Code. If there was a foreseeable risk of people being at the rear of the vehicle, the driver had a duty not to reverse blind and without the assistance of someone to guide him. Accordingly, on the second limb of the pursuer's case there was a clear breach of duty by Mr Ruck.

[31 ] Mr MacAulay invited me to make no finding of contributory negligence. If the first branch of the pursuer's case was successful (i.e. failure to keep a general lookout), the timings were such that when the lorry moved forward the pursuer was in the immediate vicinity of the loading bay. On the evidence, the movement forward would be likely to give someone in the pursuer's position a false sense of security as to what the lorry would do next, i.e. that it would continue to move forward. On Mr Sorton's evidence, even an appropriately trained person might think that there would be no backward movement of the lorry. In light of this it was difficult to say that the pursuer failed to have regard to her own safety. On the second limb of the pursuer's case (namely failure to have a banksman/lookout) there was no scope for contributory negligence because the sole cause of the accident was the failure to have a lookout. Mr Ruck's negligence was so extreme that there was no scope for contributory negligence. It was necessary to balance the culpability of the parties. Moreover, it was necessary to remember that Mr Ruck was driving a very large vehicle and that an articulated lorry could do so much more damage to a person than a person could do to an articulated lorry, and all the evidence pointed to Mr Ruck's conduct "being very much more causatively potent than that of the pursuer". In this regard senior counsel referred to Eagle v Chambers [2003] EWCA Civ 1107; [2004] RTR 9. The court should therefore be very slow to find that the pursuer bears any responsibility for the damage which she sustained.

Submissions for the defenders
[32] Senior counsel for the defender's primary motion was for decree of absolvitor, which failing for a finding of contributory negligence against the pursuer. With regard to the first of these, senior counsel submitted that the pursuer had failed to establish that Mr Ruck did not exercise reasonable care in his manoeuvring of the lorry at the material time. The duty was of course one to take reasonable care, not of insurance. Mr Ivey was content with the formulation of Mr MacAulay's first question, namely ought the driver to have been aware of the pursuer's general presence in the loading bay immediately before the accident; however, the evidence was not such as to enable the court to answer this question in the affirmative. Mr Ruck's evidence was clear on this matter - he said that he never saw the pursuer at any time. Against this, the evidence of the Reeves brothers needed to be taken with great care. There were material inconsistencies between the evidence of the two brothers. They were however consistent on two points - (1) both brothers saw the pursuer in the general vicinity of the entrance to the loading bay, but did not see her again until she fell to the rear of the trailer after the accident; and (2) the pursuer was not seen by either brother when Mr Ruck began to manoeuvre the lorry.

[33] There was inconsistency between the Reeves brothers as to where the driver might have been when they noticed the pursuer at the entrance to the loading bay area. Richard Reeves said he could not be 100% sure when he first saw the lady, but it was at about the same time as he saw the driver, and he thought the driver was about halfway down the passenger side of the trailer. He said that the driver went round the front of the cab, jumped in and started reversing, without any forward movement. William Reeves saw the driver on the passenger side of the lorry and also saw the lady with shopping bags, but he could not say if he saw her at the same time as he saw the driver. The driver then went round the front of the cab and got into it; this was either when the Reeves brothers were getting into the van or when they were in the van and about to set off. He then said that the driver moved forward and then backwards. William Reeves could not say whether the driver made any checks or not; it was surprising that Richard Reeves concentrated on this matter. Senior counsel submitted that the evidence of William Reeves should be preferred to that of Richard Reeves, whose failure to notice the forward movement of the lorry rendered his evidence on other details questionable. He submitted that it was most likely that the pursuer appeared at the entrance to the loading bay area after the driver had disconnected the umbilical cord and was moving around the front of the cab where he would not see her. The Court could not conclude that there was a failure of reasonable care by the driver in not seeing the pursuer before she walked into the blind spot at the rear of the trailer, nor could the Court conclude that it was unreasonable for the pursuer not to consider that there might be someone in the blind spot. In light of Mr McCabe's evidence, and Mr Ruck's evidence that he had seen no pedestrians apart from cleaners on his previous visits to the loading bay area, and the evidence of William Reeves and also the evidence of the signs, it was reasonable for Mr Ruck to assume that there would be no pedestrians in the loading bay area. There was nothing to suggest that there would be somebody standing behind the trailer, when nobody had been standing there shortly before; there was therefore no reason to employ a banksman to assist in reversing.

[34 ] Turning to contributory negligence, senior counsel submitted that if there was any fault on the part of the driver, it was less than the fault of the pursuer herself. The lorry and trailer were situated in a loading bay, with the rear of the trailer close to the loading hatch. The engine of the lorry was running, and the loading bay shutter was open. There was an obvious relationship between the lorry and trailer and the loading hatch, and the pursuer ought to have seen the white van and realised that the lorry was either going to remain stationary or reverse. He described the pursuer's decision to walk into the gap to the rear of the trailer when the lorry had moved out and its path was blocked by the van as folly of high order. In the event of any fault being found against the driver, senior counsel submitted that he should be at most 25% to blame, and the pursuer should be found 75% to blame.

Discussion

[35 ] Much of the evidence in this case was not contentious, and witnesses were in agreement as to many aspects of what happened. Where there were inconsistencies between the Reeves brothers on the one hand and Mr Ruck on the other, I preferred the evidence of the Reeves brothers. They were independent witnesses who had a good view of what was happening. They each impressed me as credible and reliable witnesses, who gave their evidence in a careful manner. They were speaking to events which occurred more than 8 years before the proof, and inevitably there were some inconsistencies between their recollections - it would have been surprising if there had been none. However, these inconsistencies did not relate to the central issues in the proof and did not undermine their evidence. I found Mr Ruck to be very defensive of his actions in this matter and to be reluctant to consider hypotheses that were put to him. He disagreed with the findings of the police regarding his trailer, and he was adamant that he carried out checks in his mirrors and underneath the trailer before reversing, and that he would have seen the pursuer if she had been there, yet he was unable to explain how the accident might have happened or how the pursuer came to be in the position where she sustained her injuries without his seeing her.

[36 ] I am satisfied on the evidence that the pursuer entered the loading bay area at about the time when Mr Ruck was at the umbilical cord on the passenger side of the lorry at the rear of the tractor unit. At this time the engine of the lorry was running and the lorry had been moved forward a very short distance to enable the tail lift to be raised, but not far enough forward that a pedestrian could fit between the rear of the trailer and the loading hatch. At this time the Reeves brothers were probably in their van and were about to drive forwards or had just begun to drive forwards. Mr Ruck did not check at this time to see if there were pedestrians in the loading bay area, but walked round the front of the cab of his lorry, opened the door and got into the cab without carrying out any check towards the rear of the trailer. If he had carried out any such check he would have seen the pursuer in the loading bay area. He then drove the lorry forward a short distance, of about 2 or 3 feet, and after a short pause reversed it about the same distance. He did not check in his mirrors before reversing, although it is unlikely given the angle of the cab to the trailer that his mirrors would have given him a view of the area in the vicinity of the rear of the trailer, and they would certainly not have given him any view of the blind spot behind the rear of the trailer. In the period between the lorry moving forwards and then moving backwards the pursuer walked into the gap between the rear of the trailer and the loading hatch, and had her very brief conversation with Mrs Cunningham. When the lorry reversed, the pursuer was trapped between the rear of the trailer and the concrete area below the loading hatch, and had no opportunity to escape.

[37 ] In these circumstances I am satisfied that the accident occurred primarily as a result of the fault of Mr Ruck. Looking to the two "principal" questions posed by senior counsel for the pursuer at para. [28] above, I consider that Mr Ruck ought to have been aware of the pursuer's presence in the loading bay immediately before the accident, and he ought not to have reversed blind in the circumstances without the assistance of a lookout.

[38 ] Turning to the first submission for the pursuer, I consider that Mr Ruck did have a duty to keep a proper lookout for the presence of pedestrians, and I am satisfied on the evidence that in this duty he failed. The defenders did not challenge the evidence of PC Stewart that it would take a lady walking at average walking speed about 8 or 9 seconds to walk from the entry gate to the loading bay area to the corner of the C & A loading bay. If Mr Ruck had been keeping a good lookout when he was at the umbilical cord on the passenger side of the tractor unit he would have seen the pursuer in the loading bay area. Again, if he had looked underneath the length of the trailer before entering the cab he would have seen the pursuer. He stated as much in his own evidence. He claimed that he had carried out these checks and that if the pursuer had been anywhere in the vicinity he would have seen her, and if he had seen her he would have waited to find out what she was doing before he reversed. Yet the fact remains that the pursuer was in the vicinity of the trailer and was injured by the lorry reversing. I am satisfied that the accident was caused primarily by Mr Ruck's failure to keep a proper lookout for the presence of pedestrians.

[39 ] I am also persuaded that the second submission for the pursuer is well founded, namely that in the circumstances which prevailed at the time of the accident Mr Ruck had a duty to use a lookout when reversing the lorry. Although there were signs at the entrance to the loading bay area (albeit relatively small signs at the time of the accident) to the effect that pedestrians should not enter the area, it was reasonably foreseeable that there might be pedestrians in the area. There were no gates across the entrance to present a physical barrier to pedestrians entering the area. The entrance and exit to the shoppers' car park was immediately adjacent to the entrance to the loading bay area, and Mr Ruck accepted that children might wander into the loading bay area. PC Stewart said that until the accident occurred, it was common practice for shoppers to go into the loading bay area to collect goods. There was clearly some demand from pedestrians to do this, because Mr McCabe said that he would tell pedestrians once or twice a week not to walk into the loading bay area. Moreover, Mr Ruck himself had seen cleaners in the loading bay area, and there were several lifts and numerous internal stairways which gave access to the back parts of the various shops in the Eastgate Centre. It was reasonably foreseeable that staff or others, such as the Reeves brothers, might enter the loading bay area on foot; indeed, on Mr Ruck's own evidence, when the accident happened he was waiting for some paperwork to be brought down to him in relation to the delivery which he had just completed. I am satisfied that the pursuer has made out her case that Mr Ruck had a duty to use a lookout when reversing in the circumstances which prevailed at the time of the accident, that he failed to do so, and that this failure in duty also caused the accident.

[40 ] I now turn to the question of contributory negligence. The evidence was to the effect that the loading bay area of the Eastgate Centre was an area to which members of the public were not supposed to have pedestrian access (although as a matter of fact it appears that members of the public did take pedestrian access in order to collect goods). Although I am not satisfied on the evidence that the large sign shown in the photograph which is No.7/9 of process was erected at the entrance to the loading bay area before this accident happened, I am satisfied that the smaller sign shown in that photograph was present at the time, stating "Danger. This is not a pedestrian route". I am satisfied that there was such a sign on the wall on either side of the entrance to the loading bay area, and that these signs should have been visible to the pursuer. Although there was no physical barrier to prevent her doing so, I consider that the pursuer ought to have known that she should not walk into the loading bay area. Moreover, I am satisfied that when she did so, the engine of the defenders' lorry was running, and the Reeves' van was clearly visible and the pursuer would have seen the van trying to get out and the lorry blocking its route. It was in my view an obviously dangerous thing to do to step between the rear of the trailer of an articulated lorry which has its engine running and the concrete wall of the loading hatch. The gap between the back of the trailer and the wall was quite small; if the lorry reversed towards the hatch there was clearly little or no scope for a pedestrian in that gap to escape.

[41 ] In these circumstances I consider that the pursuer failed in her duty to take reasonable care for her own safety by walking between the rear of the trailer and the loading bay wall. However, I consider that the pursuer's share in the responsibility for the damage which she suffered is substantially less than the driver's responsibility. Having regard to all the circumstances discussed above, I consider that it is just and equitable that the damages recoverable by the pursuer should be reduced in terms of section 1(1) of the Law Reform (Contributory Negligence) Act 1945, and that the extent of this reduction should be 25%. I shall find the defenders liable to the pursuer in 75% of the sum agreed in the Joint Minute (No.45 of process). This sum was £325,000 net of recoverable benefits and inclusive of interest to 16 January 2007. I shall accordingly pronounce decree in favour of the pursuer for the sum of £243,750, with interest thereon at the judicial rate from 17 January 2007 until payment.