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OUTER
HOUSE, COURT OF SESSION
[2008] CSOH 59
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PD1894/06 & PD1878/06
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OPINION OF LADY PATON
in the cause
ELSIE HAMPTON and ANTHONY STEPHEN HAMPTON
Pursuers
against
FIRST GROUP PLC trading as FIRSTBUS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Frain-Bell, Advocate; Gillespie Macandrew
Defenders: McGregor, Advocate; Simpson & Marwick
10 April 2008
Introduction
[1] In
October 2003, Mr and Mrs Hampton visited Edinburgh for a holiday weekend. They stayed in the Caledonian Hotel at the
west end of Princes Street. At 20.50 pm on Sunday 19 October 2003, they were returning to
their hotel. They crossed Princes Street at its junction with Lothian Road. Mrs Hampton (the first pursuer) was hit by a
double-decker bus. She suffered serious
injuries. Her husband (the second
pursuer) suffered as a result of witnessing the accident.
[2] Each
pursuer subsequently raised an action in the Court of Session, blaming the
bus-driver and seeking damages. The
proofs were conjoined and restricted to the issue of liability. The pursuers gave evidence, as did a
taxi-driver Raymond Wallace, a police officer Sergeant Latto, and an accident
investigator Peter Sorton. The defenders
led one witness, namely Vicky Melville, an associate with Messrs Simpson &
Marwick, solicitors.
The road junction
[3] Princes Street lies on an east-west
axis. Lothian Road lies on a north-south axis,
joining Princes Street from the south side at a
T-junction at the west end. The junction
is painted with criss-cross yellow lines to alert motorists not to enter the
hatched square unless the exit road is clear.
The pursuers were crossing on the west side of the square, from north to
south, assisted by pedestrian signals on traffic light stanchions. Taking that route in 2003, a pedestrian
crossing the road in a north-south direction from Frasers store to the
Caledonian Hotel had to cross in two stages, namely:
Stage 1: crossing five lanes of
traffic in Princes Street (without a traffic island), in compliance with the
pedestrian crossing signal or "green man" on the traffic light stanchion
situated on a triangular pavement area to the south of Princes Street; and reaching that triangular pavement area.
Stage 2: waiting on the triangular
pavement area until permitted to cross a further lane (taking traffic from
Lothian Road in a westerly direction to Shandwick Place) by another green man
on the traffic light stanchion situated on the more southerly pavement opposite
the Caledonian Hotel, crossing to that pavement, and ultimately crossing
another single lane of traffic to reach the pavement outside the hotel.
[4] Crucially,
the pedestrian crossing signals governing the two stages outlined above were
phased to operate at different times. In
other words, the green man permitting pedestrians to cross the five lanes of
traffic on Princes Street was activated at a
different time from the green man permitting pedestrians to cross the further
lane leading west to Shandwick Place. A pedestrian properly obeying the pedestrian
lights would have to cross the five lanes when permitted to do so by the green
man on the traffic light stanchion on the triangular pavement area. The pedestrian would then have to wait on
that triangular pavement area until a further green man was illuminated on the
traffic light stanchion on the more southerly pavement opposite the Caledonian
Hotel.
An outline of the evidence relating to the
accident
Evidence led
on behalf of the pursuers
[5] Mrs
Elsie Hampton (the first pursuer, aged 63, social work consultant) stated that
on the evening of Sunday 19 October 2003, she and her husband had a
meal and some wine in a restaurant in Rose Street. They then walked back towards the hotel. They stood outside Frasers store at the west
end of Princes Street, waiting at the traffic
lights to cross in a southerly direction to the Caledonian Hotel on the other
side. The first pursuer was wearing an
off-white fleece which was very visible at night.
[6] The
first pursuer described seeing three lanes of traffic stationary in a straight
line on her right-hand side. She saw no
vehicles in the yellow hatched box junction.
It was raining and the road was wet, but the area was quite well lit. The first pursuer checked the lights to see
whether they could cross. In her words:
"We saw a green light,
straight opposite ... a green man ..."
She glanced to her left and saw a red light indicating
"stop", which she thought was holding the traffic on her right.
[7] The
pursuers then proceeded to cross Princes Street. They were walking side-by-side, each carrying
two bags of shopping. The first pursuer
described looking at the stationary vehicles on her right. When she reached the end of the stationary vehicles,
she turned to look left. At that point,
"the bus was here" (and she indicated with her hand a distance of about a few
inches from her face). There had been no
prior warning. The bus hit her full in
the face.
[8] The
next thing the first pursuer remembered was regaining consciousness in hospital
in the early hours of Monday morning.
She had suffered inter alia two
skull fractures, a fracture under her left eye-socket, an intracranial
haemorrhage, and an elbow injury. She
remembered nothing after the bus hit her.
She did not remember speaking to police officers. She denied having emerged from behind a car
waiting to turn right into Lothian Road.
[9] The
pursuers subsequently re-visited the scene of the accident on two occasions,
once in June 2007, and once on the night before the proof in November 2007. They watched the traffic lights change. They noticed that when a pedestrian crossing
signal showed red (a red man), there was nevertheless a pedestrian crossing
signal showing green (a green man) on the far side of Princes Street, just outside the
Caledonian Hotel. That green man was in
their line of vision. The pursuers
concluded that the green man outside the Caledonian Hotel had probably been the
green man which they had been looking at on the night of the accident. As the first pursuer put it:
"We made a mistake. At the time we thought that we were crossing
responsibly."
She confirmed that neither she nor her husband could
have seen the pedestrian crossing signal presumably showing red on the traffic
light stanchion on the triangular pavement area referred to in paragraph [3]
above.
[10] In
cross-examination, the first pursuer again confirmed that they had not seen
that red pedestrian signal. They had
been looking at the green man outside the hotel. They would not have crossed the road unless
they thought it was safe to do so. They
had been standing waiting outside Frasers store for several minutes. The first pursuer totally denied any
suggestion that (a) she and her husband knew that they were crossing against
the traffic signals, "on the red"; (b)
the traffic on her right was not in fact stationary; and (c) she had emerged from behind a car
waiting to turn right into Lothian Road.
[11] Anthony
Hampton (the second pursuer, aged 55, social work consultant) stated that the
holiday weekend in October 2003 had been his first visit to Edinburgh. Nevertheless he thought that he and his wife
had crossed the junction at Princes Street once or twice before the
accident. At the time of the accident,
they stood and waited at the traffic lights.
The second pursuer saw three lanes of stationary traffic on his
right. On his left, his recollection was
that the traffic lights showed red, stopping the three lanes of east-bound
traffic. He did not see any traffic in
the yellow hatched box junction.
[12] At the
time, the second pursuer thought that he had seen a green light on the far
side. He could not be sure whether it
was a circular green light, or a pedestrian crossing sign (a green man). He had made the assumption that it was safe
to cross. He and his wife proceeded to cross
the road, she being on his right-hand side.
They were walking reasonably briskly, both carrying shopping bags. They were reasonably level for most of the
way across.
[13] When
they reached the end of the three lanes of stationary cars, the first pursuer
was a step or so ahead of him. She was
hit by the bus. There was no
warning. As she was hit, the second
pursuer heard the screeching of brakes.
His first sight of the bus was when it came "right across [his] face - a
few feet away". He saw his wife knocked
backwards. The impact had been so hard
that he thought she was dead. She was
lying on the road, apparently unconscious as he did not see any movement. The emergency services arrived very
quickly. The second pursuer stood back
while the ambulance crew tended to his wife.
Police officers spoke to him. He
believed that he told them that he had not seen the bus coming. He had been absolutely shattered by the
accident, which appeared to be extremely serious. He could not say whether his wife spoke to
anyone, as people were clustered round her.
He did not recall telling the police that no responsibility could be
attached to the driver (although later, in cross-examination, he conceded that
it was possible that he had made such a comment, he just could not
remember). The second pursuer denied any
suggestion that his wife had stepped out from behind a car waiting to turn
right into Lothian Road.
[14] The
second pursuer confirmed that he and his wife had subsequently re-visited the
scene of the accident. He noticed that
the way the pedestrian signals were arranged, he tended not to look at the
relevant light (on the traffic light stanchion on the triangular pavement area
described in paragraph [3] above), but rather at the pedestrian crossing signal
on the traffic light stanchion on the more southerly pavement, opposite the
Caledonian Hotel. That was the natural
line of sight. He commented:
"I think I made a mistake
and looked at the green light outside the Caledonian Hotel ... I accept that I
might have made a mistake on the night."
[15] In
cross-examination, the second pursuer did not agree that the bus-driver had no
opportunity to avoid colliding with his wife.
He confirmed that his wife had probably taken "one pace, no more than
two" into the carriageway the bus was travelling on. She had been on his right-hand side, no more
than a pace ahead of him. The bus had
not knocked him down, but had narrowly missed him. The second pursuer accepted that it was
possible that the pedestrian crossing signal on the traffic light stanchion on
the triangular pavement area had been showing red when they were crossing.
[16] Raymond
Wallace (aged 51), a taxi-driver with
over 18 years' experience, was driving his taxi on the evening of Sunday 19 October 2003. He drove down Lothian Road in a northerly direction,
and came to a halt at the foot of Lothian Road at the traffic light
junction just outside the Caledonian Hotel.
He witnessed the accident. He saw
traffic on Princes Street flowing from west to east (Shandwick Place to Princes Street) and from east to west (Princes Street to Shandwick Place). He saw a couple leave the pavement from
Frasers' corner, and walk briskly across.
At that moment, there was no traffic coming from their right (the west). There was one car stationary in the outside
lane, facing east, waiting to turn right into Lothian Road.
[17] As the
couple passed in front of the waiting car, a bus came along Princes Street from the taxi-driver's
right-hand side (east). The bus was
travelling at a steady speed. The male
pedestrian looked to his left and saw the bus.
He then put out his arm and hand towards the female pedestrian, as if
trying to stop her. However she was
looking to her right and did not stop.
The bus hit her.
[18] Mr
Wallace confirmed that he had a clear view of everything. There had been no traffic in the box
junction, and nothing directly in front of the bus-driver. The bus-driver's field of vision had been
fairly clear. The bus had been in front
of Mr Wallace just as the woman stepped out in front of the bus. Mr Wallace saw the bus "hit the brakes, and
stopping".
[19] Mr
Wallace agreed that the junction of Lothian Road and Princes Street was a busy one, much used
by visitors and tourists. He could not
remember the weather that evening, although it might have been raining. He did not recall the woman "jumping out from
behind" the car waiting to turn right, such that the bus-driver might not have
seen her until she emerged; but he could not be sure.
[20] In
cross-examination, Mr Wallace agreed that it was common to find pedestrians
crossing in front of oncoming traffic.
It was also common for pedestrians to wait in the middle of the road
between flows of traffic, waiting for an appropriate gap in the traffic before
continuing to cross. Mr Wallace stated
that if he had been the bus-driver, he would not have done anything
different. The bus-driver had been
stopping well before he hit the pedestrian.
[21] Sergeant
Gordon Latto (aged 39) was on duty in
Edinburgh city centre during the evening of Sunday 19 October 2003. At about 20.50 pm, he and a colleague were
sitting in a stationary car in Princes Street, facing west, waiting to
turn left into Lothian Road. The weather was fair, but the road surface
was wet.
[22] Sergeant
Latto became aware of a bus across the junction of Princes Street and Lothian Road, with its hazard lights
on. He and his colleague went to
investigate. At the front of the bus,
they found the first pursuer on the ground with her husband and others nearby. She was conscious. The police officers asked her where her
injuries were, and she replied that she had injuries to her head. The officers called an ambulance.
[23] The
police officers then spoke to the bus-driver, the taxi-driver, and the second pursuer. The second pursuer told them that he and his
wife had been crossing from the Frasers' side, north to south. He had become aware of a bus coming along the
road. He had stopped, but his wife had
not. The second pursuer appeared to be
slightly agitated, but not under the influence of drink. He was shocked by the accident.
[24] The
first pursuer was then taken away in the ambulance, accompanied by her
husband. From their inquiries, the
police officers concluded that, from their point of view, there had been no
fault on the part of the bus-driver.
They completed a vehicle accident report, and took no further action.
[25] Peter
Sorton (aged 56), FIMI, MITAI, AIRTE, accident investigator with special
expertise in the reconstruction of road traffic accidents, was consulted about
the present case in 2005. He carried out
a site inspection in February 2005, had a plan of the area prepared, and
compiled a report dated 17 March 2005.
[26] At the
outset of Mr Sorton's evidence, counsel for the defenders objected to the
admissibility and relevancy of his evidence so far as relating to the speed of
the bus; the place where the accident
occurred; and the speed of the
pedestrian. It was submitted that Mr
Sorton had no factual basis upon which to give any opinion. Having heard counsel for the pursuers in
reply, I allowed the evidence subject to competency and relevancy.
[27] Mr
Sorton confirmed that there had been no physical evidence, such as marks on the
road, from which he could reconstruct the circumstances of the accident. He had made certain assumptions, which might
or might not be borne out by the court's findings relating to the circumstances
of the accident. He had not sat in court
during the evidence of the pursuers, or Mr Wallace, or Sergeant Latto. He had been provided with statements and
accident reports, in particular witness statements from the pursuers and Mr
Wallace, and the bus-driver's accident report (a document not lodged in
process). He had been informed that the
couple were attempting to cross Princes Street from north to south at the
traffic lights in question, and that a bus had been travelling from east to
west. He studied the junction and the
phasing of the lights as at February 2005, and arranged for photographs to be
taken. In cross-examination, he accepted
that he was not in a position to confirm that precisely the same light phasing
had been operation on 19 October 2003.
[28] The
various reports and statements given to Mr Sorton included a statement
apparently given by the bus-driver in an accident report, reproduced in
paragraph 14 of Mr Sorton's report as follows:
"As I left the lights at Rutland Place and Lothian Road travelling at about 5 to 10
miles per hour, a woman ran across in front of me. She hit the screen and wiper and fell in
front of the bus. As I called 999, a
police car that was waiting at the lights of Lothian Road came across and took
control."
Mr Sorton was also provided with a statement from the
taxi-driver, indicating that the bus-driver had not been driving faster than 25
miles per hour; a description of the
weather as poor, raining, with a wet road;
the agreed fact that the accident had occurred at 20.50 pm, when it was
dark, but with good visibility because of the lighting at the junction; the fact that the bus-driver must have had a
clear view of the entire width of Princes Street at the scene of the accident,
and equally that the pursuers must have had a clear view of Princes Street
before setting out across the road. Mr
Sorton emphasised that in the absence of physical evidence such as marks on the
road indicative of the point of impact and speed of the vehicle, any
reconstruction which he could carry out was restricted to simple mathematical
calculations based on time, speed, and distance, and upon what the witnesses
said in the documentation that he had seen.
Thus he accepted that his evidence was limited, and would be affected by
findings in fact made by the court.
[29] Mr
Sorton confirmed that the speed-limit in Princes Street at the relevant time was 30
miles per hour. That was the maximum
speed at which a vehicle should drive under ideal conditions. In certain conditions, a speed of less than
30 miles per hour might be appropriate.
[30] For the
purposes of his reconstruction calculations, Mr Sorton had made certain
assumptions, namely, that the first pursuer had crossed the three east-bound
lanes, and had entered the outside west-bound lane when she was struck by the
bus; that the bus-driver had passed
through the junction in the centre of the outside west-bound lane; that the part of the bus which hit the first
pursuer was close to the offside of the bus;
that the first pursuer had been walking (or running) at a speed average
for her age, giving a crossing-time from the north kerb to impact of 6.38
seconds (walking) or 3.36 seconds (running);
that an average perception-reaction time for drivers was one
second; that the bus-driver had seen the
first pursuer setting out from Frasers' pavement; and that the bus had a braking distance average
for that type of vehicle on a wet road and depending upon the speed at which it
was travelling.
[31] On the
basis of the information provided, and the assumptions set out in paragraph [30]
above, Mr Sorton then calculated various stopping distances for the bus,
depending upon its speed (estimated variously at 5, 10, and 25 miles per
hour). Mr Sorton had made no
calculations based on an assumed speed of 30 miles per hour. In that context, he commented that the speed
of the bus must have been substantially less than 30 miles per hour. If the speed had been 30 miles per hour, the
accident would have been fatal, unless there had been very substantial
pre-impact braking. As he put it:
"One can't be hit by a bus
at 30 miles per hour, and survive."
Mr Sorton was able to
demonstrate that, dependent upon the distance of the bus from the junction at
the moment when the first pursuer stepped off the Frasers' pavement, and
assuming the driver to have seen her doing so and to have reacted by braking,
there were circumstances in which the bus could have come to a halt prior to
impact with the first pursuer. Further,
in paragraph 123 of his report, Mr Sorton noted that:
"If the true approach speed
of the bus was as low as 5 to 10 miles per hour, then Mrs Hampton could have
travelled across almost half of the width of the road before being observed by
the bus-driver and the driver would still have had the opportunity to brake his
vehicle to a halt short of the point of impact."
[32] Nevertheless,
Mr Sorton accepted that his calculations were dependent upon a combination of
factors about which he was wholly reliant upon information provided or
assumptions made: for example, the
actual speed of the bus at the time of the accident; its distance from the
junction when the first pursuer set out from the north kerb; her walking or running speed; and the point at which the bus-driver had
seen the first pursuer. Mr Sorton could
not therefore give an opinion whether or not the bus-driver should, in the
circumstances which actually occurred, have been able to stop his vehicle in
time to avoid a collision. There might
be a situation where the bus-driver had not seen the first pursuer until she
was directly in front of him in the west-bound lane, in which case the bus
could not have been brought to a halt without hitting her. Mr Sorton discounted, however, any suggestion
that the bus-driver might not have seen the first pursuer until the last minute
because she had stepped out from behind a stationary car waiting to turn right,
as the elevated position of a bus-driver made it possible for him to see such a
pedestrian over the roof-line of a car.
If the bus-driver had been looking ahead through the junction, there was
no reason why he should have failed to see the first pursuer setting out to
cross the road.
[33] In
relation to the phasing of the traffic lights at the junction, Mr Sorton's
evidence was in general consistent with the evidence give by the pursuers and
the taxi-driver Mr Wallace, confirming the pedestrian crossing stages set out
in paragraph [3] above. Two further
factors were pointed out: (i) As a
result of certain time-lags in the sequence of the traffic lights (to avoid
instantaneous changes) there were brief moments when signals remained
unlit. One such moment resulted in a
green pedestrian signal showing on the stanchion outside the Caledonian Hotel
at a time when no pedestrian signal was illuminated on the stanchion on the
triangular pavement area. (ii) A
pedestrian standing outside Frasers' store waiting to cross the road could look
to his left and see a red circular light and a small green arrow pointing
straight ahead. That combination of
lights permitted the main flow of traffic to proceed in an easterly direction
along Princes Street, while stopping any traffic
wishing to turn right (south) into Lothian Road. However the visual impression might be
confusing for a pedestrian, in that the pedestrian might think that the main
traffic flow from west to east had been halted.
Evidence led on behalf of the defenders
[34] Counsel
for the defenders moved the court to allow a late witness to give evidence,
namely Miss Melville, an associate solicitor with Messrs Simpson & Marwick,
and that despite the fact that she had been sitting in court as counsel's
instructing agent. Counsel explained
that her evidence related to the fact that the bus-driver, Maurice Martin, had
proved untraceable. Counsel for the
pursuers did not oppose the leading of the witness.
[35] Vicky
Melville (aged 31), solicitor and
associate with Messrs Simpson & Marwick, stated that the defenders'
insurers had instructed her firm in November 2006. The bus-driver's whereabouts were
unknown. Messrs Simpson & Marwick
had attempted to trace him, by inter alia
instructing investigators, and making inquiries of the driver's mother and
of a company in Germany (thought to have employed
him). All inquiries proved unsuccessful.
Submissions
Submissions
for the pursuers
[36] Counsel
for the pursuers submitted that the defenders should be found liable for the
accident on Sunday 19 October 2003. In general, where any inconsistencies in
evidence arose, the court should prefer the evidence of the pursuers, who were
clearly credible and reliable.
[37] Traffic
lights:
The pursuers had given honest evidence, and had accepted that they
had made a mistake. They thought that
they had seen a green light, and had crossed the road. In fact, they must have seen the green man on
the traffic stanchion outside the hotel, indicating that it was safe to cross
the slip-road leading to Shandwick Place, but not that it was safe
to cross the five lanes of traffic on Princes Street. The pursuers had also glanced to their left
and seen a red light which they assumed halted the traffic flowing from their
right (west). That impression was
explained by Mr Sorton's evidence about the red circular light for
right-turning vehicles, but a green arrow for ongoing traffic. Counsel invited the court to accept the
pursuers' evidence that they had seen three lanes of east-bound traffic
stationary at the traffic lights, with one car waiting to turn right into Lothian Road. In all the circumstances, the pursuers
crossed the road thinking that it was safe for them to do so. They should not be held to have been at
fault.
[38] Collision with bus: Counsel contended that neither pursuer had
seen the bus in time. Any alleged
gesture of the arm on the part of the second pursuer towards the first pursuer
may have been misinterpreted by the taxi-driver Mr Wallace. It was significant that the police had
decided that there should be no further proceedings, including any proceedings
against the pursuers. The junction was
wide and well-lit. One could draw an
inference from the taxi-driver's evidence about the bus braking before impact,
namely that the bus-driver had seen the pursuers crossing the road. As the bus-driver was braking before impact,
and as he must have had a clear view from his elevated position, he ought to
have been able to stop in time. If the
court were to hold that the bus was travelling at 5 to 10 miles per hour, there
was all the more reason to conclude that the driver had ample opportunity to
have seen the pursuers before entering the danger zone, and ought to have been
able to stop.
[39] On the
issue of speed, counsel contended that, in the absence of the driver's
evidence, there was nothing in the evidence to refute the inference that the
driver had been travelling at 5 to 10 miles per hour, as set out in his
accident report referred to by Mr Sorton.
Such a speed could not in itself be criticised, and counsel in effect
departed from that branch of the case of fault.
However the speed was relevant to the second branch of the case of
fault, namely that the driver was not paying due care and attention. An inference of lack of care and attention
could be drawn from the speed of the bus, the impact itself, and the evidence
of the pursuers, the taxi-driver, the police officer, and Mr Sorton. At a speed of 5 to 10 miles per hour, the driver
ought to have been able to stop the bus before it hit the first pursuer.
[40] In
relation to the objection to Mr Sorton's evidence, counsel pointed out that Mr
Sorton's report was dated 17 March 2005, yet the defenders had not
responded by producing their own expert report.
None of Mr Sorton's evidence had been challenged in
cross-examination. There had been only
one question in cross-examination, namely whether or not Mr Sorton could say
that the phasing of the lights was the same in 2003 (but in any event his
evidence on phasing had been supported by the evidence of the taxi-driver).
[41] Final
submission: Counsel invited the court to find the
defenders liable to make reparation to the pursuers. As for sole fault or contributory negligence,
counsel accepted that the pursuers had crossed the road at a time when they
should not have done. However when
assessing any percentage of contributory negligence, the court should take into
account the confusing arrangements at the traffic lights. The pursuers were a responsible couple who
would not have crossed the road unless they thought it safe to do so.
Submissions for the defenders
[42] On
behalf of the defenders, counsel invited the court to grant absolvitor in both
actions. The pursuers had failed to
establish any negligence on the part of the defenders' bus-driver. In particular, there was no evidence that the
bus had been driven through a red light.
On the contrary, the evidence suggested that the light for the
bus-driver had been green. Further,
there was no evidence about the speed of the bus. Mr Sorton's evidence was that the speed must
have been well under 30 miles per hour, otherwise the accident would have been
fatal. The taxi-driver described the speed
of the bus as "steady". Mr Sorton's
report referred to the bus-driver's statement that he had been travelling at 5
to 10 miles per hour: but the statement
itself had not been produced in court, and Mr Sorton acknowledged that he could
not identify the signature at the end of the statement. Counsel submitted that in such circumstances,
despite the terms of the Civil Evidence (Scotland) Act 1988, the pursuers had
been unable to establish whether the statement which Mr Sorton had seen was
indeed a statement by the bus-driver.
Thus counsel's primary position was that there was no acceptable
evidence about the speed of the bus. If,
contrary to that submission, the court accepted hearsay evidence in the form of
Mr Sorton's reference to the bus-driver's statement, then at best for the
pursuers, the bus was travelling at about 5 to 10 miles per hour.
[43] Crucially,
there had been no evidence about the position of the bus when the pursuers
began to cross the road. Thus Mr Sorton
was unable to base his calculations on fundamental facts such as the speed of
the bus, and its position when the pursuers began to cross. Other pieces of evidence were missing. There was no evidence about where the bus and
the first pursuer came to rest after the collision. There was no evidence about which part of the
bus struck the first pursuer. It was
clear from Mr Sorton's report that he had been obliged to proceed on
limited evidence.
[44] Counsel
turned to the two bases of the pursuers' claims, namely that the bus "was
travelling at a speed which was not appropriate in the circumstances"; and that the bus-driver "failed to pay due
care and attention to the road ahead".
At best for the pursuers, the evidence disclosed that the bus was
travelling at 5 to 10 miles per hour. At
worst for the pursuers, the speed of the bus had not been established. Counsel for the pursuers had in effect
departed from his case so far as based upon speed.
[45] Counsel
further submitted that the pursuers had failed to establish any fault in the
form of lack of due care and attention.
It was not clear what the bus-driver should have done to avoid the
accident. The taxi-driver was a
straightforward credible witness. He
said that he would not have done anything different from the bus-driver. It was a common occurrence for pedestrians to
cross to a position in the middle of the road, whether or not there was a
traffic island, and to wait there until it was safe to cross the remaining part
of the road. The second pursuer gave
evidence that the first pursuer had taken one step beyond where he was when she
was hit by the bus. He had not been hit,
so while it was not possible to pin-point exactly where the collision occurred,
the second pursuer provided some assistance in that his wife had been only one
step ahead of him. If the first pursuer
had in effect stepped out and then been hit by the bus, one could draw the
inference that impact was inevitable whether the bus was travelling at 5 miles
per hour, or 30 miles per hour. Even at
5 miles per hour, and even if braking hard, impact was inevitable.
[46] The
strands of evidence did not therefore support the view that the bus-driver had
been driving without due care and attention.
Essentially, there was an evidential vacuum. There was no evidence suggesting that the
first pursuer had given any sign that she was about to step in front of the
bus, certainly not at a point when the bus-driver would be able to draw to a
halt before hitting her. It was
difficult therefore to define how the bus-driver failed, or what he should have
done. Mr Sorton's report contained a
hint that the bus should have been drawing to a halt as soon as the pursuers
stepped off the pavement at Frasers' store.
But that argument could not properly be advanced, bearing in mind the
unknowns in the evidence, and the practice of pedestrians of crossing one half
of the road and then waiting in the middle for a suitable gap to cross the
other half of a road.
[47] In the
result, counsel sought absolvitor, primarily on the basis that the onus of
proof rested upon the pursuers, and that there had been a failure to establish
fault on the part of the bus-driver.
Alternatively the evidence established that the accident had been caused
by the first pursuer's sole fault in crossing the road without looking to the
left to check for oncoming traffic. At
the very least, there had been significant contributory negligence, in the
region of 90 per cent.
Discussion
Credibility
and reliability
[48] The
pursuers were honest, credible witnesses, trying to give an accurate account of
what must have been an extremely traumatic accident. However I ultimately formed the view that
their accounts could not be relied upon in every detail. Whether as a result of their unfamiliarity
with the area in question, or the shock of the accident, or the passage of
time, it seemed to me that the pursuers were mistaken in relation to certain
aspects of the accident. Where
discrepancies arose between their evidence on the one hand, and the evidence of
the taxi-driver Mr Wallace and the police officer Sergeant Latto on the
other, I preferred the evidence of the latter two, each of whom struck me as
wholly credible and reliable.
Objection to
Mr Sorton's evidence
[49] As
noted in paragraph [26] above, counsel for the defenders objected to the
admissibility and relevancy of Mr Sorton's evidence so far as relating to the
speed of the bus and of the first pursuer, and the precise location of the
accident. Counsel submitted that Mr
Sorton had not listened to the primary evidence of fact. In any event, even if he had sat in court, no
evidence had been led entitling Mr Sorton to form a view on those matters.
[50] It is
true that Mr Sorton did not hear the witnesses' evidence. He gave his expert opinion on the basis of
statements, productions, and a site visit conducted about one and a half years
after the accident. He had no physical
evidence (such as marks on the road or on the bus) which might have assisted
him in his reconstruction of the accident or in his calculations. Thus at the outset of his evidence, Mr Sorton
was careful to emphasise the limitations of his evidence. Ultimately, however, I concluded that Mr
Sorton's evidence should be admitted.
The weight to be given to his evidence, with all its limitations, will
be a matter for the court. Accordingly I
repel the defenders' objection to the admissibility and relevancy of Mr
Sorton's evidence insofar as relating to the speed of the bus and of the first
pursuer, and the precise location of the accident.
Sufficiency of
evidence
[51] The
burden of proving negligence on the part of the bus-driver rests upon the
pursuers. It is for the pursuers to
prove, as best they can, the crucial circumstances of the accident including
facts such as the precise place where the collision occurred; the speed of the bus and its distance from
the pedestrian crossing at the relevant times (for example, when the pursuers
stepped off the north kerb, and when they reached the centre of the road). It is also for the pursuers to prove whether
a driver who had been looking ahead and paying due attention could in the circumstances
have braked and brought the bus to a halt without colliding with the first
pursuer.
[52] The
evidence in this case suggests that the bus was travelling at a speed of 5 to
10 miles per hour, or possibly more, but certainly substantially less than 30
miles per hour. The precise place on the
carriageway where the collision occurred, the point of contact between the
pedestrian and the bus, and the final resting-places of the first pursuer and
the bus, were not identified.
Furthermore, the distances between the bus and the pedestrians at
relevant times (such as the time when the pursuers left the north kerb, or when
they reached the centre of the road) were not established. Ultimately therefore, despite the range of
calculations provided by Mr Sorton, incorporating an average driver's
perception/reaction time, the braking capability of a double-decker bus, and
distances within which such a bus could be brought to a halt, certain crucial
facts relating to the accident have not been established. For that reason, the defenders are in my
opinion entitled to absolvitor.
Esto there is a
sufficiency of evidence
[53] Lest I
am wrong on that matter, I give a view on liability on the basis of such
evidence as there is, drawing inferences where necessary.
[54] Findings in fact: I find the following facts proved:
(i) The pursuers were a
responsible couple who would not have tried to cross Princes Street unless they thought that
they were permitted to do so. However on
Sunday 19 October 2003, they made a genuine
mistake, and misread the traffic lights.
They proceeded to cross Princes Street thinking that they were
permitted to do so, when in fact the relevant pedestrian crossing signal was at
red, and the traffic on Princes Street was flowing east and west
in five lanes, constituting a major vehicular thoroughfare.
It will be seen from the
above findings that I accept the pursuers' own evidence about their mistaken
reading of the traffic lights, and their evidence together with that of Mr
Sorton and Mr Wallace concerning the phasing of the traffic lights at the
junction of Princes Street and Lothian Road in October 2003.
(ii) At the relevant time,
there was only one east-bound car stationary in the outside lane at the lights,
waiting to turn right into Lothian Road. Apart from that one car, there were no
stationary vehicles in the three east-bound lanes to the pursuers'
right-hand-side at the traffic lights.
The pursuers had noticed that stationary car, and had also looked left
and seen a red light which they wrongly assumed to be halting the traffic on
their right.
It will be seen from the
above findings that I accept the evidence of the pursuers about seeing a red
light to their left (accounted for by Mr Sorton's explanation in paragraph [33]
above), but I prefer the evidence of the taxi-driver Mr Wallace in
connection with the one stationary car rather than three lanes of stationary
traffic to the pursuers' right. Mr
Wallace was well-situated to observe the traffic flow on Princes Street. He gave clear evidence that vehicles were
travelling west and east along Princes Street, and that there was only
one vehicle stationary at the lights, waiting to turn right into Lothian Road.
(iii) The bus-driver was
driving his bus in a westerly direction along Princes Street towards the traffic lights
at the Lothian Road junction. He had a green light in his favour,
permitting him to travel straight ahead through the junction towards Shandwick Place. When driving through the junction, he was
travelling at about 10 miles per hour.
In this context, the terms
of section 2 of the Civil Evidence (Scotland) Act 1988 permit me to take
account of the description of events said to have emanated from the bus-driver,
and noted in paragraph [28] above.
Perhaps more importantly, I found the evidence of Mr Sorton on the
question of the speed of the bus to be very persuasive. Not only had Mr Sorton seen the statement
(which he understood to be that of the bus-driver), but he gave his view that
the speed of the bus must have been substantially less than 30 miles per hour,
otherwise the accident would have been fatal.
(iv) The pursuers walked to
the centre of the road without difficulty, simply because at that particular
moment no east-bound vehicles were travelling through the junction. They walked in front of the one stationary
car waiting in the outside east-bound lane to turn right into Lothian Road. At that stage, the second pursuer happened to
look left and saw the bus. He put out
his arm and hand towards his wife to try to stop her from moving forwards. However she was looking to her right and
continued to step forwards. She stepped
into the path of the bus.
In relation to these events,
I accept the evidence of the pursuers and Mr Wallace that the pursuers walked
in front of (and not behind) the stationary car waiting to turn right into Lothian Road. However in relation to events thereafter, I
prefer the evidence of Mr Wallace and Sergeant Latto to that of the
pursuers. Mr Wallace had a clear view of
events as they unfolded, and gave evidence that he had seen the second pursuer
look to his left, then put out his arm and hand towards the first pursuer as if
trying to stop her, but without success.
Sergeant Latto for his part gave evidence that the second pursuer told
him that he (the second pursuer) had seen the bus and had stopped, but his wife
had not.
(v) In the circumstances
outlined above, the first pursuer in effect stepped directly in front of the
moving bus, giving the bus-driver insufficient time to come to a halt without
hitting her. In view of the evidence of
Mr Wallace concerning the practice of pedestrians of walking across oncoming
traffic and waiting in the middle of the road for an appropriate gap in the
traffic before completing their journey across the road, a driver such as the
bus-driver, travelling along the west-bound carriageway, could not in my view
have been expected to take any precautionary measures (such as slowing down or
coming to a halt) as soon as he saw the pursuers leaving the north kerb and walking
on the east-bound carriageway. On the
contrary, with a green light in his favour, a driver such as the bus-driver
would be entitled to assume that the pursuers would stop in the middle of the
road to let his bus pass before finding a gap in the traffic behind the bus in
which to complete their journey across the west-bound half of the road. Thus the bus-driver would not expect the
first pursuer to walk onto the west-bound carriageway into the path of his oncoming
bus.
In relation to this chapter
of the evidence, I accept the evidence of the second pursuer to the effect that
the first pursuer was only a step ahead of him when she was hit by the
bus. That description is consistent with
a situation where the second pursuer stopped in the centre of the road, while
his wife took a step or so further into the path of the oncoming bus. I also accept the evidence of Mr Wallace, who
described the bus as braking before it hit the first pursuer. In other words, the bus-driver saw the first
pursuer stepping in front of his bus and immediately applied the brakes, but
was unable to stop in time to avoid impact.
[55] Liability:
In each action, there are two allegations of fault made against the
bus-driver, namely:
1. The bus was travelling at a
speed which was not appropriate in the circumstances.
2. The bus-driver failed to pay
due care and attention to the road ahead.
[56] A speed
of about 10 miles per hour was in my opinion entirely appropriate in the
context. The bus-driver could not be
criticised for adopting such a speed.
Counsel for the pursuers very properly conceded that matter, and
intimated that he did not insist upon that part of the case of fault.
[57] In
relation to paying due care and attention, the facts which I have found proved
do not in my opinion support such an allegation. On a balance of probabilities, it seems to me
that the bus-driver, paying appropriate attention to the road ahead, and
noticing the pursuers crossing the east-bound carriageway, would assume that
they would stop in the centre of the road to await a gap in the traffic behind
the bus before crossing the west-bound carriageway. In so doing, the bus-driver would assume that
neither pursuer would attempt to cross in front of his moving vehicle in
disobedience to the traffic lights and at considerable risk to personal
safety. The first pursuer's action in
stepping directly into the path of his oncoming bus would, in such
circumstances, be entirely unexpected.
The bus-driver appears to have responded to the unexpected situation as
best he could by braking immediately.
[58] On the
basis of the evidence available, therefore, I am unable to hold that the
accident was caused to any extent by the fault or negligence of the
bus-driver. Accordingly I grant the
defenders absolvitor.
[59] Sole fault, contributory negligence: In the circumstances, it is unnecessary
to give any view on issues of sole fault or contributory negligence. I would be reluctant to categorise the
pursuers' conduct in such terms, as I accept that the accident occurred as a
result of a genuine mistake on their part in misreading the pedestrian crossing
signals at the traffic lights.
Decision
[60] For the
reasons given above, I grant the defenders absolvitor in each action. Meantime I reserve all questions of expenses.
