The Pedestrian, the Bus & Contributory Negligence

Lord Boyd’s Opinion in Kyle Smith v Bluebird Buses Limited 2014 CSOH 75 was issued on 25 April 2014.

The Pursuer was a pedestrian and was injured in an accident in Aberdeen when he was struck by a bus driven by an employee of the Defenders.

A car was stopped at traffic lights in the eastbound offside lane intending to make a right turn. It was being used as a campaign vehicle in the General Election campaign and had flags flying from its exterior.

The occupants of the car were approached by the Pursuer who had been drinking. The Pursuer asked the occupants for a flag but there wasn’t one available and the Pursuer then grabbed a flag mounted on the nearside of the car, breaking it off.

At the same time the lights turned to green, the Pursuer turned to go toward the pavement. To do this he had to cross the nearside lane. In the course of doing this he was struck by a bus.

The evidence was to the effect that the Pursuer hadn’t checked it was safe to cross, that the bus was travelling between 5 and 10 mph and that the driver of the bus had little opportunity to avoid the accident.

Ultimately Lord Boyd found the Defenders liable but assessed the Pursuer has having contributed to the extent of 85%.

He took the view, on the basis of the evidence, that there was nothing obstructing the bus driver’s “sight lines” and no reason why he hadn’t seen the Pursuer earlier than he apparently had done. The bus driver had accepted that, having seen the Pursuer, he had sufficient time to come to a complete stop had he elected to do so. He had continued to move although moving the bus towards the pavement so that there was more room to pass the Pursuer at the nearside of the car in the offside lane.

It was held that given the Pursuer was actually on the road and not in a safe position, the facts of this case distinguished it from the case law relied on by the Defenders. There was a heavy onus on drivers to keep a lookout for pedestrians on the road “even when they are behaving with a disregard for their own safety.” Lord Boyd therefore considered that the bus driver should have stopped the bus rather than trying to drive past the Pursuer. The accident wouldn’t have occurred if the bus had stopped.

The Judge held that the Pursuer was careless. He should have crossed at the nearby pedestrian crossing and it was obvious that when the traffic lights changed to green, traffic would move. He should not have approached the car stationary in the outside lane. He had consumed alcohol and his “manner and demeanour” at the car in breaking and really stealing the flag and then walking into the path of the bus without looking, showed that he was paying no attention to crossing the road.

Lord Boyd said the Pursuer had the “heaviest responsibility”, he had paid no attention to his own safety and on that basis made the 85% contributory negligence assessment.

This case demonstrates an unusually high percentage deduction in relation to contributory negligence but shows that, depending on the circumstances of a particular case, such a large deduction may well be appropriate.

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