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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McNab v. Bluebird Buses Ltd [2007] ScotCS CSOH_36 (20 February 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_36.html
Cite as: [2007] ScotCS CSOH_36, [2007] Rep LR 36, [2007] CSOH 36

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 36

PD255/06

OPINION OF LORD BRODIE

in the cause

CHRISTOPHER McNAB

Pursuer;

against

BLUEBIRD BUSES LIMITED

Defenders:

________________

Pursuer: Macdonald; Lefevre Litigation

Defenders: Geoff Clarke; Simpson & Marwick

20 February 2007

[1] The pursuer is Christopher McNab. His date of birth is 23 August 1965. He lives at an address in St Cyrus, north of Montrose. The defenders are Bluebird Buses Limited. The pursuer sues the defenders for damages for personal injury sustained by him in an accident on 8 March 2003. Quantification of damages is agreed at £11,000 with interest at 8% per year from 6 February 2007 until payment. The issues for determination, therefore, were whether the defenders were liable in damages to the pursuer and, if so, whether any deduction should be made to reflect contributory negligence on his part.

[2 ] The case called before me for proof on 6 February 2007. In addition to the pursuer, I heard the evidence of Mr Gordon Ogilvie, a lorry driver who had witnessed the accident; Dr Hugh Barron, a road traffic expert; Mr Henry Davidson, the driver of the bus that had struck the pursuer; and PC David McKinnon, who was one of the police officers who had attended at the scene.

[3 ] It appeared to me that the circumstances of the accident were essentially uncontroversial. The pursuer had spent the afternoon of Saturday 8 March 2003 drinking in a public house in Montrose. He intended to catch a bus at 5.10pm from the centre of Montrose to take him home to St Cyrus, a distance of some 4 miles to the north. He thought he had been in the public house for about 4 hours, during which time he had drunk perhaps 5 pints of beer. When the bus did not appear as he had expected the pursuer decided to start walking home. His route took him northbound along the A92 Montrose to Aberdeen road. He walked along the left hand or western side of the road, using the footpath where one was available. The pursuer's last memory before the accident is of pausing to sit down and rest at the point he estimated to be about halfway between Montrose and St Cyrus. His next memory was of seeing someone he recognised as a neighbour and then being in the back of an ambulance.

[4 ] What was clear from the other evidence was that at a point north of the pursuer's recollected stopping place on a straight stretch of the A92 road which was illustrated in photographs contained in No.6/11 and 7/2 of process, the pursuer was struck from behind by a single decker bus, registration number M595 OSO driven by Mr Henry Davidson in the course of his employment with the defenders. The resulting damage to the bus was illustrated in the photographs contained in No.7/4 of process. This damage was to the front nearside. There was no direct evidence of where the pursuer had been immediately prior to the impact, or precisely what he had been doing. Mr Davidson only had become aware of what he described in his evidence as a black shape, immediately before the bus struck the pursuer. Mr Davidson took no avoiding action. He thought the pursuer to have been about one yard out from the kerb of the road. Mr Ogilvie, who had been driving a lorry which had been following the bus saw the pursuer being knocked to the nearside verge by the impact of the collision. Mr Ogilvie did not speak to having seen the pursuer beforehand. PC McKinnon took a statement from one of the bus passengers, Mrs Carol Haddingham. He read out this statement in the course of giving his evidence. According to this statement, Mrs Haddingham was sitting at the very front of the bus, on the nearside. She described it as being pitch dark outside. She saw a well built male walking north on the nearside of the road. He was to the right of the white line demarcating the edge of the carriageway. She saw his head hit the windscreen. She had first seen the male figure when he was about half the length of the bus in front. He was illuminated by the bus headlights. The driver said "Did I hit something?". I considered that the hearsay evidence of Mrs Haddingham was consistent with what I should otherwise have been prepared to infer, namely that the pursuer had been struck by the bus as he was walking north along the carriageway of the A92, some 2 or 3 feet out from the nearside kerb. He was walking with his back to the oncoming traffic. He was wearing dark clothing. Neither he nor the bus driver took any step to avoid a collision.

[5 ] At the point of the impact between the bus and the pursuer, the carriageway of the A92 is about 6.8 metres from kerb to kerb, as can be seen from, for example, the photograph which is No.7/2H of process. There are kerbstones along the length of the road at this point. There is a grass verge on both sides of the road. The condition of the grass verge at the western side of the road on the day after the accident is illustrated in the photographs contained in No.6/11 of process. As can be seen from these photographs the verge has a covering of grass. It slopes upwards towards a field fence. The photograph No.6/11/1 of process shows a dark area on the verge a little above the shadow cast by the photographer. The pursuer understood this to be his blood and that, accordingly, he had been thrown onto the verge at this point by the impact with the bus.

[6 ] The witnesses were agreed that it had been very dark at the time of the accident. At least one motor car had been travelling in the southbound carriageway with dipped headlights. As appears, for example, from the photograph which is No.6/11/2 of process, the southern end of the straight stretch is marked by a bend in the road. This is a right hand bend for traffic travelling north. Mr Davidson estimated the distance from that bend to the point of impact with the pursuer at about 80 yards. Constable McKinnon estimated the distance as being between 100 and 150 metres but this was not a matter on which he prepared himself to give evidence and he emphasised that it was no more than an approximation.

[7 ] Both Mr Ogilvie and Mr Davidson put the speed of the bus as it travelled along the straight at about 35 miles per hour.

[8 ] When Mr Macdonald, on behalf of the pursuer, came to address me on the question of fault, he began by considering the position of the pursuer. So far as drink was concerned, there was nothing to suggest that the pursuer's consumption of about 5 pints over the course of the afternoon had contributed to the accident. When Mr Ogilvie had stood close to the pursuer as he lay at the side of the road, Mr Ogilvie was aware of the smell of drink and there is a notation to similar effect in the hospital records, but there was no indication that he was significantly affected by alcohol. His speech was not slurred, for example. As far as the pursuer wearing dark clothing was concerned, Mr Macdonald submitted that again this had not contributed to the accident. Mr Davidson had given evidence to the effect that even if the pursuer had been wearing light clothing, he would have been unable to see him more than about 11/2 bus lengths ahead. As far as walking on the road rather than on the verge was concerned, as the pursuer had explained in evidence, he had good reasons for choosing the road. There was grass on the verge and because it was so dark he feared that he might trip or otherwise lose his footing. On the other hand, Mr Macdonald did accept that the pursuer's decision to walk with his back to oncoming traffic had been both negligent and causative of the accident. Mr Macdonald then turned to consider the position of the bus driver, Mr Davidson. He had freely admitted that because of reflections from the interior light in the bus he did not have a full view across the width of his windscreen. He had described an effect whereby he could see some 4 or 5 bus lengths ahead on the offside, say 60 or 75 yards, but only 2 or 3 bus lengths or 30 to 45 yards when looking through the midline of his windscreen and only 1 or 11/2 bus lengths or 15 to 22 yards when looking out of the extreme nearside. Mr Macdonald drew my attention to Rule 105 Highway Code which requires that a driver should drive at a speed that will allow him to stop well within the distance that he can see to be clear. Given what Mr Davidson had said about the restriction of his visibility to the nearside, he should not have been driving that bus at night on an unlit road. If that was putting the case too high, it was Mr Davidson's duty to compensate for his lack of nearside vision by keeping a very close watch on the side of the road when he had the opportunity to see it when looking ahead. He had clearly not done so. Mr Macdonald referred me to the decision in Fraser v McIver and Another, T G Coutts, QC, 4 July 2003, unreported. In that case, the pursuer had been walking along the middle of the northbound carriageway of the A9 on a pitch dark night when he had been struck by a motor car driven by the defender. Mr Coutts had found the defender liable by reason of having driven at a speed that was excessive in the circumstances given the limits of his vision. However, he apportioned 90% of the blame to the pursuer and only 10% to the defender. Whilst Mr Macdonald conceded that the pursuer in the present case was, to some extent, contributorily negligent, he was much less culpable than had been the pursuer in Fraser v McIver.

[9 ] Mr Clarke for the defenders submitted that the first question to consider is whether it had been proved that the defenders' driver, Mr Davidson, fell below the standard of reasonable care. Mr Davidson had given evidence to the effect that he was a highly experienced and skilful driver. It had not been put to him that he ought to have seen the pursuer, rather the suggestion was that he should have been driving more slowly. Mr Clarke submitted that it simply could not be maintained that travelling in a bus at 35 or even 40 miles per hour on a road such as the A92 was negligent. Mr Clarke accepted that the evidence was that glare from the internal bus lights meant that visibility to Mr Davidson's nearside was restricted but he said that he had a clear view of the road ahead for a considerable distance. The problem with vision to the offside need not give rise to concern unless the driver is alerted to a hazard such as an obstacle on the road or a pedestrian. Mr Davidson had said that had the pursuer been wearing light clothing he would have seen him. Mr Clarke accepted that the pursuer had proved that he had been knocked over by the bus. He accepted that Mr Davidson had not seen the pursuer until the last moment and had not taken avoiding action. However, that did not allow the Court to infer fault on the part of the bus driver, given what the pursuer was wearing and the fact that he would be viewed against a background of a verge sloping up towards a field. One could not say that a reasonably careful driver, driving at a reasonable speed in the circumstances would have seen the pursuer. The pursuer had said in evidence that he thought he would have been visible but there was no other evidence to that effect. The matter was compounded by reason of there being no evidence as to what the pursuer had been doing immediately before the accident. The pursuer inferred that he was on the road but there was no evidence to that effect. This was an accident on any view primarily caused by the pursuer. He had been walking on the wrong side of the road. He had been walking on the carriageway rather than the verge. He had been wearing dark clothing. He had apparently not observed the approach of the bus. He had not got out of the way. It was Mr Clarke's position that Mr Davidson should not be found to have been at fault. However, if the Court was against him on that, contributory negligence fell to be assessed at a substantial figure. He suggested 80%.

[10 ] I agree with Mr Clarke that the first question to be considered is whether, on all the evidence, I can conclude that the defenders' fault caused this accident. Contrary to Mr Clarke's submission I infer that at least from the point at which the footpath on the western side of the road came to an end, the pursuer had been walking on the carriageway, some 2 or 3 feet out from the kerb. He was therefore there to be seen by a driver approaching him from behind, such as Mr Davidson, as and when he was illuminated by the headlights of that driver's vehicle. In that Mr Davidson did not see the pursuer until the last moment, I am prepared to infer that he was at fault by reason of not keeping a good lookout. I am also prepared to infer that had he seen the pursuer earlier he would have been able to take avoiding action by moving perhaps no more than a yard out towards the centre of the road, it being Mr Davidson's evidence that his 2.5 metre wide bus was centrally positioned in the northbound carriageway of the road. In taking this view I do not underestimate the difficulty for Mr Davidson in spotting the pursuer. The witnesses were agreed that it was a very dark night. As Mr Clarke pointed out, the pursuer was wearing dark clothing and walking against a dark background. I agree with Mr Clarke that it is difficult to criticise the speed at which Mr Davidson was driving, at least if that factor is taken in isolation. I am not satisfied that Mr Davidson was in breach of Rule 105 of the Highway Code. The distance from the point at which the bus came out of the bend, giving the driver the first opportunity to see straight ahead and the point of impact with the pursuer was, on the evidence, no more than 150 metres and perhaps considerably less. Depending on the speed of the bus and the precise distance involved, Mr Davidson would have had only between 5 and 10 seconds to identify the figure of the pursuer, leaving aside the problem of restricted vision on his nearside due to the reflections from the interior lights of the bus. One might have thought that additional difficulty would have been caused by the light of the approaching car, although Mr Davidson made little of this. It is understandable that Mr Davidson did not see the pursuer. The duty incumbent upon a driver such as Mr Davidson is only that of reasonable care and not that of insurance, but, as I took Mr Clarke to concede, a high standard of care is required of a driver of a motor vehicle. It appeared to me that in all the circumstances of the accident Mr Davidson did not meet that high standard.

[11 ] That left the question of contributory negligence. Mr Macdonald had conceded that the pursuer was at fault. It seemed to me that this concession was inevitable. The pursuer himself had conceded that he was at fault, at least in choosing to walk with his back to oncoming traffic and failing to get out of the way of the approaching bus. I attach no importance to the fact that the pursuer had been drinking. If the pursuer's consumption of alcohol made him more foolhardy than he otherwise would have been, it is his foolhardy behaviour that I must consider, not its explanation. I accept that there were reasons not to walk on the grass verge when it was pitch dark. The photographs suggest that walking on the verge might be relatively straightforward in daylight but I accept that it might not be entirely prudent to walk on the verge at night. However, in the exercise of reasonable care, the pursuer had to balance up the various risks and act in a way that they were reduced. Having chosen to walk along the carriageway of an A road at night, I consider that the pursuer was bound to walk on the side of the road where he was facing oncoming traffic in order that he be alert to it and able to take avoiding action when necessary. The pursuer did not do that. I would assess his contribution at 50%. Damages therefore fall to be assessed at £5,500 with interest thereon from the agreed date at the agreed rate of 8%.

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