Court finds pedestrian 85% responsible for road accident
Smith v Bluebird Buses Limited
Outer House, Court of Session
25 April 2014
Catherine Hart examines this case in which the Court of Session considered the apportionment of blame in an action for damages brought by a pedestrian against a bus driver. While accepting that there was a degree of contributory negligence, the Claimant maintained that the majority of blame rested on the bus driver. However, having heard evidence, the court disagreed.
The Claimant was struck by a bus while crossing the road in April 2010. On the day of the accident the Claimant had been drinking and approached a car which was sitting stationary in the outside lane of a two carriageway road at a set of traffic lights. He removed a flag which had been attached to the car and then turned and walked back towards the pavement, which involved crossing the inside lane. He walked diagonally towards the oncoming traffic and, as he did so, was struck by a bus being driven by one of the Defenders’ employees. The Claimant had not checked whether it was safe to cross before he did so.
The Claimant had not given evidence at the proof (trial). Although the Claimant’s agents accepted that there was a degree of contributory negligence on his part, they contended that the Defenders’ driver had been far more responsible for the accident and submitted that contributory negligence should be restricted to 20%.
The Defenders’ position was that the bus driver had done all that he was required to do in the exercise of reasonable care and that the accident had been caused by the sudden and unexpected dash into the path of the bus, giving the driver no time to react. On that basis, it could not be said that the driver had been at fault.
The bus driver’s evidence at proof was that, when he saw the Claimant, he took his foot off the accelerator and covered the brake pedal, but he accepted that, if he had applied the brake when he first saw the Claimant, he would not have hit him. He accepted in the evidence that he should have applied the brake.
Police officers gave evidence that their investigations suggested that it had been a low speed collision, probably from walking speed to 10 to 15mph.
Having heard the evidence, the judge determined that the speed of the bus had been between 5 and 10mph. There was nothing blocking the bus driver’s view and no reason for him not to have seen the Claimant before he actually appeared to have done so. The judge did not consider it appropriate to find that there had been no fault on the part of the bus driver given that, before the accident occurred, the Claimant had been standing at the near side of the car. The traffic lights had, or were about to, change to green and, when the cars in the outside lane moved off, it was reasonably foreseeable that the Claimant, being left in an exposed position between the line of cars in the outside lane and the bus, would try and get to safety. The nearest safe point was the pavement and, in order to get to the pavement, he had to cross the inside lane. The judge referred to there being a “heavy onus” on drivers to look out for pedestrians on the road, even if the pedestrian was behaving in a way which showed disregard for his or her own safety. In the exercise of due care and attention, the bus driver should have brought the bus to a stop, rather than trying to manoeuvre past the Claimant. If he had done so, the accident would not have happened.
On the issue of contributory negligence, the judge was satisfied that the Claimant had been careless of his own safety. He could and should have crossed at the nearby pedestrian crossing. Instead, he had turned round and walked into the path of the bus and it was clear that he did not look before doing so. The judge suggested that it was rare for a pedestrian to be found more responsible than a driver for an accident in which the pedestrian had been hurt, although he noted that the English Court of Appeal had qualified that position in Eagle v Chalmers RTR9 where “the pedestrian has moved suddenly into the path of an oncoming vehicle”. The judge concluded that the Claimant should bear more responsibility for the accident as he had paid no attention to his own safety and had crossed at a point where it was not safe to do so. His action in approaching the car in the outside lane when it had stopped at the lights was inherently dangerous. The judge assessed contributory negligence at 85%.
For further details please contact Catherine Hart, Professional Support Lawyer on 0141 228 8084.
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