TESSA TILL FOR AND ON BEHALF OF ALI ELBUZEDI AGAINST TAYSIDE PUBLIC TRANSPORT COMPANY LIMITED
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 6
PD591/15
OPINION OF LORD CLARKE
In the cause
TESSA TILL
for and on behalf of Ali Elbuzedi
Pursuer
against
TAYSIDE PUBLIC TRANSPORT COMPANY LIMITED
Defenders
Pursuer: Clark QC; Digby Brown LLP
Defenders: Sheldon QC; Murray; Clyde & Co
17 January 2017
[1] On 20 March 2012 Mr Ali Elbuzedi was a pedestrian on Commercial Street, near its junction with Exchange Street, Dundee. A National Express line bus, service No 22, was being driven by an employee of the defenders, Mr Filep Myzylowskyj, in Commercial Street, approaching its junction with Exchange Street. Mr Myzylowskyj (hereinafter referred to as “the driver”) died on 27 December 2013. As Mr Elbuzedi stepped onto Commercial Street the bus collided with him and he sustained serious injuries as a consequence of which he has been unable to give evidence in these proceedings. The present proceedings are pursued on his behalf by the pursuer, in terms of an order, made under section 53 of the Adults with Incapacity (Scotland) Act 2000.
[2] The case came before me for a proof as regards liability. While it was conceded, in submission at the close of the proceedings, by senior counsel for the pursuer, that, on any view, the accident was caused, to a significant extent, by Mr Elbuzedi’s failure to take care for his own safety, it was contended that it had been caused also, to a substantial extent by the fault and negligence of the driver for whose acts and omissions the defenders are vicariously liable.
[3] The averments of the pursuer upon which the case of fault against the driver is based are to be found in statement 4 of the Record and they are to the following effect:
“On or about 20th March 2012 Mr Elbuzedi was a pedestrian on Commercial Street near its junction with Exchange Street, Dundee. He was walking towards the edge of the pavement, about to cross the road. He started to cross the road. A National Express bus , service number 22, was travelling in a northerly direction along Commercial Street and was approaching the junction with Exchange Street. The bus service was operated by the defender and the bus was being driven by an employee of the defender, believed to be Filep Myzylowskyj. The defenders’ driver had a clear view of Mr. Elbuzedi on the pavement from at least 45 metres away. The defenders’ driver saw Mr. Elbuzedi on the pavement. He ought to have seen Mr. Elbuzedi moving to the edge of the pavement and onto the road. The defenders’ driver was driving at a speed of about 15 miles per hour. He did not apply his brakes at any time prior to the accident. He did not sound his horn to warn Mr. Elbuzedi of the presence of the bus. He continued to drive into Mr. Elbuzedi as Mr Elbuzedi started to cross the road. The bus collided with Mr. Elbuzedi, knocking him to the ground. Had the defenders’ driver started to apply his brakes at any distance of 18 metres or more from the point of impact he would have been able to bring the bus to a stop without hitting Mr. Elbuzedi. He would have avoided the accident. Had the defenders’ driver sounded his horn to warn Mr. Elbuzedi of the presence of the bus the accident would not have happened”.
[4] The response, thereto, in averment by the defenders in answer 4 is to the following effect:
“As the defender’s bus approached the locus Mr Elbuzedi was standing stationary on the pavement. At the last moment he stepped onto the roadway and into the path of the properly proceeding bus giving the driver no time to react and making a collision inevitable.”
[5] A good deal of the proof before me was taken up with whether or not, prior to Mr Elbuzedi being struck by the bus, he had stopped at, or before, the pavement edge abutting Commercial Street, before stepping on to Commercial Street or whether he, instead, had walked continuously, without stopping, from Exchange Street and on to Commercial Street. The pursuer’s primary position was that the latter was the case and that the driver should have seen that this was a pedestrian, not apparently intending to stop, before walking on to Commercial Street, and that, therefore, the driver should have taken the avoiding action specified in averment. The defenders’ position, on the other hand, was that Mr Elbuzedi had been seen to stop walking on the pavement before stepping on to Commercial Street, without keeping a careful look-out for himself, and that the driver had no reason to anticipate that Mr Elbuzedi was about to walk straight on to Commercial Street in to the path of the bus.
[6] The court, unfortunately, for the reasons previously noted, was not in the position to hear evidence from either Mr Elbuzedi or the bus driver. It was a matter of agreement that, in terms of the joint minute of admissions (No 22 of Process) between the parties that on the day of the accident Mr Elbuzedi “had no sight in his right eye”.
[7] The evidence led before me took the following form. I heard from two eye witnesses led on behalf of the pursuer, Thomas Dale, (now apparently known as McLean) and Ms Jemma Thompson. I heard also from Mr James Brunton, led as an expert for the pursuer and who spoke to a report lodged in court. For the defenders there was led, as an expert, Christina Holland, who spoke to a report and a supplementary report prepared by her. There was produced two discs (6/8 and 6/9 of process) which were agreed to be copies of discs containing CCTV images from the No 22 bus driven by the driver in Dundee on 20 March 2012. A copy of a set of prints of 16 photographs, 6/48 of process was agreed by the parties as being copies of photographs taken by officers from Police Scotland and showing images of the locus of the accident at Commercial Street, Dundee.
[8] The first witness for the pursuer was Thomas McLean who, as noted, was known as Thomas Dale at the time of the accident. He is a research student at the University of Leeds. At the time of the accident he was an undergraduate at Dundee University. He was walking, at the time of the accident, with a friend, on Commercial Street towards its junction with Exchange Street. In evidence, he said he had noticed Mr Elbuzedi come out of the side road, Exchange Street. He said Mr Elbuzedi walked straight from Exchange Street on to Commercial Street, as he put it “not looking at oncoming traffic”. The witness said he saw Mr Elbuzedi walk across the pavement which abutted on to Commercial Street. At the time Mr McLean said he saw a large double decker bus approaching. He remembered seeing people on the top deck of the bus, looking down onto the road. He said he vividly remembered that Mr Elbuzedi was not looking to his right, in the direction from which the bus was coming. The witness was unable to say if Mr Elbuzedi would have been visible to the bus driver. He said that, as events unfolded, he was of the opinion that “an accident was inevitably going to happen”. A statement which he had given to the police who attended the locus of the accident, and which is 6/33 of process, was put to him. He said that he had been shown its contents some two months before the date of the proof. The statement does not bear to have been signed by the witness. In it, it is recorded;
“As I looked directly ahead of me I saw an Asian gentleman standing on the right kerb waiting to cross the road. He looked to his left and stepped out into the roadway. He didn’t look to the right at all. As he stepped out it was exactly at the same time that a bus drew level with him.”
The witness informed the court that he had not said to the police officer, who had taken his statement, that Mr Elbuzedi had stopped and waited before he walked into Commercial Street. In cross‑examination he said he had not seen Mr Elbuzedi standing stationary at any point. Mr Elbuzedi had been walking quite fast. Mr McLean was adamant that Mr Elbuzedi had not been standing on the pavement waiting to cross. He could not explain why it was noted in the police statement that he had said that Mr Elbuzedi had been standing waiting to cross. He did suggest that the recording officer was somewhat distracted by events. There were, he said other discrepancies between what he had actually told the police officer and what had been recorded in the statement, although, as I have noted matters, he did not go on to specify what these were.
[9] The second witness, and only other eye witness to the accident, led on behalf of the pursuer at the proof was Ms Jemima Thomas. She informed the court that she does not drive. Somewhat surprisingly, like Mr McLean she maintained that the bus involved in the accident, on which she was a passenger at the time in question, was a double decker bus. It is a matter of agreement between both sides that the bus was in fact a single decker bus. This witness said she was a passenger on the lower deck of the bus. She was sitting on a raised seat on the driver’s side of the bus. She said she had a good view of the road ahead. When the bus came into Commercial Street she saw a male person walking on to Commercial Street not looking where he was going. He was not looking out for any traffic. He did not look right or left, and was facing just straight ahead as the bus approached. The witness said that Mr Elbuzedi had been walking at a medium pace. She said that, prior to the accident she had had no concerns about the way the bus was being driven. The bus had stopped as soon as it had hit the man.
[10] Mr James David Brunton was led by the pursuer as an expert witness. Mr Brunton is employed by an organisation known as Transport Research Laboratory (TRL). As previously mentioned he had prepared a report, 6/50, of process which he spoke to in evidence. He had served as a police officer for 15 years. He has a police accident driving certificate and a licence for driving large goods vehicles. He advised the court that he had extensive experience relating to the investigation of collisions and other types of road traffic accidents. He had given evidence in the Sheriff Court and in the High Court in criminal proceedings but he had not previously given evidence in the Court of Session. At para 1/7 of his report he lists a very long number of documents he had regard to in preparing his report, which included a substantial number of statements from witnesses who were not led by either party at the proof. Mr Brunton’s report made reference to the CCTV footage and the photographs about which he was also asked, in detail, in evidence. Notwithstanding the considerable detail in his report, the significance of this witness’s evidence was that he was of the view that Mr Elbuzedi had not stopped at the edge of the pavement before commencing to cross Commercial Street. So, under reference to figure 8 in his report, which is a still shot taken from the CCTV footage, the witness said at paragraph 6.8:
“In figure 8 after viewing the CCTV a number of times both in slow motion and frame by frame it appears that Mr Elbuzedi hesitates momentarily approximately 30cm from the kerb. When viewed at normal speed this hesitation is barely noticeable and lasts for less than one second. I would not expect the driver Mr Myzylowskyj to have noticed this minor hesitation given it appears to last for less than one second; he is seen to be walking towards them in a purposeful manner which should have alerted the driver, Mr Myzylowskyj to the possible that he was about to cross the road.”
It should be noted that Mr Brunton in his report, at paragraph 6.3, refers to the police statement given by the now deceased bus driver, in which he is noted as saying:
“I’d only driven about 30 yards down Commercial Street when I saw a male pedestrian standing on the nearside pavement”.
The statement is No 6/15 of process. It was signed by the driver. It was agreed by the parties, in the Joint Minute of Admissions, to be true and accurate. Mr Brunton’s view, in contradiction of what the deceased driver had been noted as saying, at the time of the accident, was to the effect that Mr Elbuzedi, apart from a very slight hesitation, had walked straight on to the road, without stopping and this was based on his assessment of the CCTV footage. In his evidence to the court, however, as I understood it, the position of the witness seemed to be that he could not now necessarily state that Mr Elbuzedi had walked virtually straight onto the road or without stopping at the pavement, before moving onto the road, but, in any event, it was his view that the driver could, and should have, in the circumstances, taken avoiding action which the witness contended meant applying the brakes and sounding his horn. At one point in his evidence Mr Brunton said that once the driver had seen the pedestrian walking towards the kerb he should have lifted his foot off the throttle but he went on to say that, on reflection, that that was in fact what had appeared to happen. It appeared that the driver had begun to decelerate. The driver of the bus did not appear to have had eye contact with Mr Elbuzedi. In that situation the witness said that the driver should have sounded his horn and decelerated to about five miles per hour, in the hope that the pedestrian would then have seen him.
[11] The video evidence did not allow the witness he said, to say with any certainty where Mr Elbuzedi had been positioned on the pavement as he made to make on to the roadway. On a number of occasions, Mr Brunton said that his view of what the driver could, and should, have done arose from the driver being “a professional driver.” At certain points, in his evidence, the witness said that the video material might be seen to show Mr Elbuzedi stopping, or hesitating momentarily, before stepping on to the road, but his view was “you should never assume that a pedestrian such as Mr Elbuzedi would look right before crossing the road”.
[12] In cross-examination it was put to Mr Brunton that he had not been, throughout his evidence, and in his report, performing his duty to help and assist the court but rather had been seeking to put forward the best case for the pursuer. He did not accept this. The police report of the accident 6/6 of process was put to him. It noted at page 2 “enquiries made and no fault attached to driver”. While the witness accepted that immediately prior to the accident the driver had other things to deal with, including keeping an eye open for other traffic on the road (and there were two oncoming vehicles on the other side of the road approaching his vehicle), carrying out mirror checks and maintaining the stability of the bus, he maintained that Mr Elbuzedi’s presence on the pavement was the biggest potential hazard. When asked to consider the CCTV evidence 7/13 photographs E14‑E29, he came to acknowledge that Mr Elbuzedi must have stopped on the pavement for some time and may have been stationary for about three to four seconds before stepping into the path of the bus. That was so particularly in relation to photograph 29. Mr Brunton had not been able to calculate exactly the speed at which Mr Elbuzedi was moving but thought that it appeared he was moving “purposefully”. The defenders’ expert witness had carried out a calculation in that respect which Mr Brunton did appear to be not in a position to contradict. The witness then appeared to accept, in cross examination, that he had not fully thought through the practical implications of the proposition that Mr Elbuzedi had been continually moving towards the road before being struck. Had he been doing so at the speed calculated by the defenders’ expert, he could have made it safely across the road before the bus reached the point of impact, or, alternatively would have been significantly further north of the Exchange Street junction than the point of impact. Ultimately, in cross examination, Mr Brunton acknowledged that at least to the average driver, there would have been nothing unusual, or particularly noticeable about Mr Elbuzedi’s conduct immediately prior to the accident.
[13] In re-examination the witness accepted that while elderly persons, young persons or others appearing otherwise to behave unusually, do, from time to time, step on to a road into the path of vehicles without stopping, sober adults would rarely do so. He had, in cross examination, accepted that the behaviour of Mr Elbuzedi would not have held up a “red flag” to an ordinary driver. At several places in his evidence, however, the witness seemed to be desiderating a higher standard of care imposed on the driver in this case than that imposed on an ordinary driver because as he repeatedly stated he was “a professional driver”. He also accepted that his approach to the matter he had been asked to consider was coloured by his own experience as a police vehicle driver and that such drivers, because of their need to drive, often very quickly, in certain emergency situations, are instructed to take certain precautions not required of ordinary drivers. The only criticism he had of the driver’s driving in the present case, was that he did not anticipate a possible hazard. He accepted that the driver had been already slowing down before the collision and that most pedestrians in the situation of Mr Elbuzedi would have stopped, looked to the right, seen the bus approach and would not have stepped on to the road.
[14] Ultimately Mr Brunton accepted that his views on the identification of hazards was indeed very much based on his police driver training and experience and that there was a special requirement for police drivers to exercise heightened awareness. His position was, however, that drivers in general, should not assume that pedestrians will do what they should. His motto was “never assume”.
[15] The sole witness led on behalf of the defenders was Miss Christina Holland who had produced a reconstruction report concerning the accident, No 7/3 of process and a supplementary report No 7/5 of process which were both spoken to by her in evidence. This witness is a chartered engineer and is now employed as a forensic investigator by Messrs Hawkins, a firm specialising in forensic investigation. She has given evidence in court in relation to road accidents. In preparing her report and her evidence she had considered a number of documents including witness statements, police accident reports, police photographs (attached to her report) and the CCTV footage from the cameras on the bus. The report had attached to it a number of still images from the cameras positioned on various positions on the bus. Apart from her professional qualifications and experience, she has been herself a driver for 19 years. Given the unavailability of evidence from Mr Elbuzedi and the driver, as has been noted, a good deal of the discussion in this case, was as to what was to be made of the CCTV footage and the stills taken from it. Miss Holland explained that camera 1 showed the view from the front of the bus and appeared to be mounted at the bottom of the windscreen close to the centreline of the vehicle, camera 2 showed the passenger doors of the bus from the inside. They appeared to be in a position above the driver’s head and to his offside. Cameras 3 to 6 showed the passenger seating area of the bus from four different positions. Camera 7 showed the view rearward along the offside of the bus from a position towards the front of the bus. Camera 8 shows the view forward along the nearside of the bus from a high position towards the rear of the bus. It was, I think, ultimately a matter of agreement that the footage from Camera 1 was the most helpful in relation to the determination of the issues in this case and the court certainly found it to be so.
[16] At paragraph 4.3.2. of her principal report the witness stated the bus accelerated after turning into Commercial Street up to a steady speed approximately 14 to 18 miles per hour (6.3 to 8.0 m/s). The bus maintained that speed until it passed the junction with Exchange Street and started to decelerate somewhere between the positions shown in photographs F17 and F19, ie somewhere between about a half second before the impact and one sixth second after the impact. She continued to explore reasons for so finding at paragraph 4.3.3. She had researched material relating to the type of vehicle in question and she said as follows. “According to Volvo website, B7 RLE buses are fitted with air brakes and EBS (Electronic Brake System). Vehicles (such as buses and large goods vehicles) fitted with air brake systems take additional time for the brakes to actuate after the brake pedal has been depressed. Braking systems on modern cars have a far shorter delay. In modern air brake systems (those fitted with EBS) the delay is typical of about quarter second. It is therefore likely that, if the bus started to decelerate between a half second before the impact and a sixth second after the impact, the driver pressed the brake pedal about 0.8 to 0.1 seconds before the impact. The witness at paragraph 4.3.4 noted that:
“The speed of the bus (calculated from the video recordings) at the time of impact was between about 11 and 15 mph (4.9 to 6.7 m/s).”
[17] Having carried out a calculation in relation to throw distance she reached the conclusion, at paragraph 4.3.5, that it was therefore likely that the impact speed was at or below the lower end of the calculated range, ie 15mph (6.7 m/s) or lower which is consistent with the speeds calculated from the video evidence.
[18] At paragraph 4.3.6 she noted that the bus came to rest about 4.1 to 4.7 metres after the impact. In order to stop in that distance from a speed of about between 11 to 15 mph the average deceleration would need to have been about 0.3 to 0.6 g where g is the acceleration due to gravity, 9.81 m/s 2). It was noted by the witness at 4.3.7 of her report that the bus was stationary from the frame shown in photograph F22 onwards. She therefore, concluded that it stopped somewhere between that frame and the previous one ie between about 5/6 and 1 1/6 seconds after the impact. In order to stop in that distance from the speed of 11 to 15 miles per hour (4.9 to 6.7 mls) the average deceleration would need to have been about 0.4 to 0.8g. She continued:
“I will use an average deceleration rate of about 0.4 to 0.6g (the overlap of the two calculated ranges) for my calculations. This would be hard or emergency braking, particularly with a bus with passengers on board”.
[19] Miss Holland’s analysis of the material with which she had been provided allowed her to state at paragraph 4.4.1 as follows:
“Mr Elbuzedi first comes into the view of camera 1 about 8⅔ seconds before the collision (photograph E14). It is impossible to be certain of his precise position because the camera was mounted on a moving vehicle and Mr Elbuzedi was near the edge of the frame, where the distortion of the image is greatest. However his position appears to remain the same and there is no evidence of movement (particularly a change in the relative position of his legs) until about 31/3 seconds before the impact (photographs E30 and G9) where he appears to have taken a step towards the road (based on the position of his legs; the resolution of the video recording is too low to detect movement of his body between frames with any certainty)”.
She found that Mr Elbuzedi’s walking pace was about 0.9 to 1.0 metres per second. At paragraph 4.4.4 of her report she said that
“Mr Elbuzedi stepped from the kerb about one second before the impact. If he continued to walk at the same speed (0.9 to 1.0 m/s) he would have reached the position about 0.9 to 1.0 metres into the road from the kerb at the time of the collision which is the approximate distance I have estimated in figure 3. It is therefore very unlikely that he hesitated or stopped in the road before the impact.”
At paragraph 4.5.4 the witness stated Mr Elbuzedi was probably visible from about 8 2/3 seconds (or a little more since the field of view available to Mr Myzylowskyj would have been wider than the field of view of the camera) before the collision. At that time Mr Elbuzedi was stationary on the footway about 1.8 to 2.0 metres from the kerb. She stated:
“Whilst a matter for the court, there would, in my opinion, have been no reason for Mr Myzylowskyj to have been aware of any intention Mr Elbuzedi might have had at that time of crossing the road. Mr Myzylowskyj might therefore dismissed him as a ‘potential hazard’”.
At paragraphs 4.5.5 to 4.5.6 the witness stated:
“Mr Elbuzedi started to walk towards the road about 3 1/3 seconds before the collision. However, before Mr Myzylowskyj could be expected to react to the movement of Mr Elbuzedi, he would have had to interpret the movement of Mr Elbuzedi as a hazard by identifying the possibility that he might continue into the path of the bus. Since Mr Elbuzedi was clearly an adult, and from the CCTV appears to have been walking normally, Mr Myzylowskyj might have assumed that he would stop at the kerb …”
Among her conclusions in her report, Miss Holland was to the following effect:
“5.1 I have analysed the video recordings taken by the CCTV cameras on the bus. I have used that information and measurements taken at the collision scene to calculate an average approach speed of the bus of about 14 to 18 miles per hour (6.3 to 8.0 m/s). I have confirmed that speed by calculating a range of speeds for the pedestrian throw distance.
5.2 I have also estimated the approach of Mr Elbuzedi as well as I can, given the evidence available to me. He appears to have been stationary on the footway about 1.8 to 2.0 metres from the kerb for several seconds before starting to walk toward the road about 3 1/3 seconds before the collision. His walking speed (if he walked perpendicular to the kerb) was about 0.9 to 1.0 m/s which is slower than the typical walking speeds of 1.3 to 1.7 m/s for men of his age range).
5.3 Mr Elbuzedi stepped from the kerb about 1 second before the collision and there is no evidence to suggest that he hesitated at the kerb or on the road or that he looked to his right in the seconds before stepping the kerb.
5.4 There was insufficient time from the moment when Mr Elbuzedi stepped from the kerb for Mr Myzylowskyj to have avoided the collision. I would not expect a driver to have taken emergency action in response to a stationary pedestrian 1.8 to 2.0 metres from the kerb.”
[20] It has to be noted that the witness’s calculation of the speed at which Mr Elbuzedi’s walking was slower than the typical walking speed of a man of his age which, does not seem to match Mr Brunton’s comment that the witness was walking in a “purposeful” manner.
[21] At page 5 of her supplementary report Miss Holland stated:
“At paragraph 6.4.4 of his report Mr Brunton states that Mr Myzylowskyj should have anticipated he (Mr Elbuzedi) was about to step out into the road and sounded his horn and applied his brakes’”.
“It is possible that Mr Myzylowskyj did anticipate that Mr Elbuzedi would step into the road and apply his brakes. However, by the time Mr Myzylowskyj anticipated this (probably about 1 to 1.5 seconds before the impact), it was too late to avoid the accident by braking and it is unlikely that he would have been able to sound the horn in time for Mr Elbuzedi to have avoided the collision. I would not expect Mr Myzylowskyj to have anticipated that Mr Elbuzedi would step into the path of the bus any sooner (as outlined earlier in this letter and in my report). It is a matter of common experience that most drivers do not sound their horns or brake every time an adult pedestrian approaches the kerb particularly when they appear to be walking slowly regardless of the direction in which the pedestrian is looking”.
She then later continued:
“When taken in context with the speed at which he (Mr Elbuzedi) was walking (slowly) and the oncoming car in the opposite lane, it is my opinion that most drivers would expect Mr Elbuzedi to stop at the kerb and wait for the oncoming car and bus to pass. That being the case, Mr Elbuzedi would have been a potential hazard at that time, not an immediate hazard requiring an emergency response”.
[22] In her evidence to the court this witness said that her analysis of the CCTV footage and the photographs allowed her to conclude that there was nothing to indicate to the bus driver that Mr Elbuzedi, prior to actually stepping from the kerb, was going to walk onto the road. As she put matters “if in every such situation a driver braked there would be chaos”. She could not detect anything wrong with the driver’s reactions in the circumstances. Even if the driver had identified Mr Elbuzedi as posing an actual hazard, requiring a response as soon as Mr Elbuzedi began to move, her view was that it would have been unlikely that the collision could have been avoided by either braking or sounding the bus’s horn or both. As an experienced driver, if she were to see a person standing some 2 metres from the kerb, apparently waiting to cross the road on which she was driving, she would not consider it necessary, or appropriate to stop.
[23] In her report Miss Holland had referred to a text book entitled “Forensic Aspects of Driver Perception and Response (4th Edition), the author being David Krauss. She referred, in particular, to page 14 of the extract from that work which is No 7/5 of the process. The passage in question is the following effect:
“It is generally safe to assume, however, that rational persons will not deliberately jeopardise their personal wellbeing or risk damage to their vehicle. The effective of movement of traffic relies to a great extent or an assumption that other roadway users will behave reasonably. Traffic would indeed be chaotic if drivers had to operate their vehicle in a way that would prepare them to respond to the possibility, however remote, that any vehicle or pedestrian may violate their right of way at any time”.
The witness, however, made it quite clear that she appreciated that the matter was entirely for the court as to whether or not it was satisfied that the bus driver in this case had exercised reasonable care in the circumstances of the particular case before it.
[24] In his written submission, which was supplemented by oral submissions, senior counsel for the pursuer invited me to accept Mr Brunton’s evidence to the effect that it appeared that Mr Elbuzedi had not been standing stationary at any time before crossing into the path of the bus. He accepted that the witness Miss Thomson was not helpful in the circumstances but did invite the court to accept Mr McLean’s evidence on this matter.
[25] Senior counsel for the defenders, however, invited me to accept that, having regard to what the CCTV footage demonstrated, the pursuer’s position was plainly wrong and the court should prefer the views of Miss Holland who had analysed it carefully and explained her findings to the court.
[26] I am satisfied that on this key issue in this case, the defenders’ submissions are to be preferred and I do so having for myself looked at the video evidence with some care, against the explanations given by the pursuer’s witness Mr Brunton and the defenders’ witness Miss Holland. The matter is entirely one of fact ultimately for the court to decide. In reaching the conclusion that I do, I have made all due allowance for the somewhat poor quality of the footage but I am satisfied that, having done so, Miss Holland’s view of that material coincides with my own rather than the view of Mr Brunton, which in any event, as has been seen, did waiver from time to time. As regards the witness Mr McLean, I reject his evidence on this key issue. His reliability was in my view, put in issue by his insistence that the bus involved was a double decker bus, which evidence he embellished by saying that he clearly had seen people looking down from the top deck. His evidence as to where he and his friend were situated before the accident occurred did not seem to square entirely what appeared on the CCTV footage. This witness’s evidence, on these matters, may be a good example of how careful one has to be with regard to eye witness evidence of an incident which itself lasts only for a second and has occurred several years before proof.
[27] In the result, I had no hesitation in preferring the evidence of Miss Holland to that of Mr Brunton where they were differing on questions of materiality. On the key issue, Miss Holland’s evidence, to my mind, had been arrived at throughout by a proper recognition of what her task was, namely, seeking to assist the court in an objective manner as to how the evidence might be interpreted. Throughout her evidence in chief and in cross examination, she gave that evidence in a careful and non-exaggerated manner but remained unshaken in her basic conclusions. On the other hand the pursuer’s witness Mr Brunton in his evidence to the court did, as has been seen, appear to recognise at times that his basic premise, namely that Mr Elbuzedi had never stopped at the edge of the pavement before seeking to cross the road, might not be compatible with what the CCTV coverage showed when he was asked to look at it again in court. I also found this witness’s approach driven very much by his own experience and expertise as a police driver, his mantra being “assume nothing”. For the reasons given in the extract from the work “Forensic Aspects of Driver Perception and Response” cited above, that approach to matters seems to me to amount to a counsel of perfection and does not reflect the legal requirements imposed upon drivers to exercise reasonable care in the circumstances they find themselves in, from time to time when driving.
[28] There is no doubt, in this case, that Mr Elbuzedi did not take the precautions that a mature adult would have been expected to take in the circumstances, namely to keep a proper look out and to stop before crossing onto the road when there was traffic travelling along that road in both directions. Whether or not those failures were, to some extent, caused because of the deficiency in his right eye sight, cannot be determined and, in any event, was not a matter the driver was, or could have been, aware of. As previously noted, it was accepted by senior counsel for the pursuer that a significant element of contributory negligence lay with Mr Elbuzedi himself. The question remains whether or not the court should, nevertheless, hold that, in fact, the accident was caused by his sole fault or whether some degree of blameworthiness attaches to the driver.
[29] In relation to apportioning blame between pedestrian vehicle drivers in the circumstances where a pedestrian is injured, I was referred by both sides to a number of authorities. Counsel on both sides accepted that all such cases are governed very much on their own individual facts, as these are determined by the trial court. There are some general observations in certain of the authorities cited, however, I feel to which useful reference might be made. In Ahanonu v South East London Bus Co [2008] EWCA Civ 274, a case involving a female teenage pedestrian and a bus Laws LJ said at paragraph 23:
“The judge, as my Lord has said, has in effect sought to impose a counsel of perfection on the bus driver Mr Votier. Such an approach I think distorts the nature of the bus driver’s duty which was no more nor less than a duty to take reasonable care. There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimants safety than a duty to take reasonable care”.
In Stewart v Glaze [2009] EWHC 704, a case involving a collision of a vehicle with a pedestrian, Coulson J at paragraph 10 said:
“In my judgment, it is the primary factual evidence which is of the greatest importance in a case of this kind. The expert evidence comprises a useful way in which that factual evidence, and the inference has to be drawn from it, can be tested. It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework of formulae against which the defendant’s actions have then to be rigidly judged with a mathematical provision”.
[30] In Birch v Paulson [2012] EWCA Civ 487, another case involving an adult pedestrian being run over by a vehicle, when seeking to cross a road, Lord Justice Davis, giving the unanimous judgment of the court said, at paragraphs 30 and 32 as follows:
“30 … The judge expressly found on his findings that the defendant had no reason to think that the claimant would, or might, behave as he did when her car was clearly visible to him. As the judge expressly found, the risk of the claimant moving out into the road would properly have been considered by a reasonable driver as extremely remote. Mr Willems complained that the judge had failed to give sufficient regard to the evidence about the claimant rocking or at one stage bending; but in fact, as is clear from his judgment, as above cited, the judge fully factored that into account to the extent that it was important…
32. Mr Willems stressed that it would have been very easy indeed for the defendant, as she approached this man on the kerb, either to have taken her foot off the accelerator or to have steered towards the centre of the road or both. No doubt it would have been relatively easy. But, as the judge rightly said, the legal test is not a question of the counsel of perfection using hindsight. Of course it is not, and drivers are not required to give absolute guarantees of safety towards pedestrians. The yardstick is by reference to reasonable care. As the judge found, there was nothing here to require the defendant as a reasonably careful driver to act in any way other than a way in which she did act given the situation in which she found herself at the time.”
[31] As I have said, in the present case, no doubt to some extent because of the absence of evidence for Mr Elbuzedi himself and from the driver, the concentration was very much upon the evidence given by the two experts. I have already emphasised that the key issue in the case involved matters of fact in relation to which the court alone and the court has to reach its conclusion. Nonetheless what both experts in their evidence can be looked at to provide assistance in that respect. I have no hesitation in saying that, I found Miss Holland’s evidence more beneficial in that respect than that of Mr Brunton. I consider that she was to be preferred in the manner of her giving of evidence, but, more significantly, I consider that it was based on a much more careful and secure consideration of the video evidence and the basis of it. It seemed to me that her examination of the material was made by an informed and experienced person with a sound group of practicalities. On the other hand I found Mr Brunton’s evidence to involve a “counsel of perfection” approach to matters.
[32] In the present case both parties’ experts had no criticism to make of the manner in which the bus driver, who was apparently very experienced, was driving his vehicle prior to the accident, in particular with regard to speed or the keeping of the vehicle under proper control. Ultimately the only real attempt at criticism of the bus driver, from the pursuer’s side, was the suggestion that he should have reacted more quickly than he did by braking and/or sounding his horn.
[33] Among the cases placed before me was that of Scott v Evans (unreported, QB, Birmingham, 17/1/14). This is a case, somewhat similar in its facts to the present case. In it an adult pedestrian sustained what were described as catastrophic injuries when he was struck by a vehicle while crossing the road. The court held, as a matter of fact, that the claimant and a companion had been standing on the edge of the pavement prior to his stepping onto the road and colliding with the vehicle. At paragraph 18 and paragraph 19 of his judgment held the trial judge:
“18 … there is no evidence that there was anything so unusual in the First Claimant’s conduct as to make the Defendant think that there was a real risk that he would suddenly step into the road where it was obviously dangerous to do so without looking to the right and, in particular, that the First Claimant would not in fact look to his right before he began to cross, as would be reasonably expected of any pedestrian in these circumstances. The First Claimant was clearly an adult male who was not behaving in any unusual way. The Defendant made it clear that he had not expected the First Claimant to step into the road, and in my judgment it was reasonable for him to have held that view. The Defendant did what the trial judge in Birch considered some cautious drivers might have done “
At paragraph 19 his Lordship continued:
“I find that the Defendant took reasonable care in doing what I found he did on his approach to the scene of the accident, and that to find that the Defendant should have sounded his horn and/or braked to reduce speed in addition, would be to impose a counsel of perfection using hindsight. Nor is there any evidence to suggested that the defendant was not keeping a proper look out; on the contrary, the evidence suggests that he was able to describe both the first claimant and his mother with some detail.”
[34] In my opinion those remarks can be applied mutatis mutandis to the present case (in the present case the bus driver, in his police statement was able to give a detailed description of Mr Elbuzedi).
[35] The only remaining question is whether when Mr Elbuzedi did begin to move towards the road, the bus driver still had the opportunity to avoid the collision and negligently failed to do so. As I have indicated Miss Holland addressed this question in some detail and took the view that there was nothing at that time which the driver could reasonably have done to avoid the accident. As has been seen the pursuer’s expert evidence was primarily predicated on Mr Elbuzedi not having been stationary, at any time, and the criticism of what the driver failed to do was based on that being the fact. As I have reached the view that Mr Brunton was wrong in his evidence about Mr Elbuzedi’s behaviour prior to the collision, his evidence as to what the driver could, and should have done, in that situation is of no assistance to the court. There was no substantial evidence given by Mr Brunton with regard to what are known as reaction times, in such situations, which are notoriously fact sensitive in any case. In the foregoing circumstances Miss Holland’s evidence on the basis of fact which I have found as to the behaviour of Mr Elbuzedi before he walked onto the road stands undisturbed. I have myself found no good reason elsewhere in the evidence for reaching any view contradictory to Miss Holland’s evidence that Mr Elbuzedi had been stationary and there was nothing which the driver could, and should have done, in the exercise of reasonable care, which would have avoided the accident.
[36] For all the foregoing reasons it follows that the defender falls to be assoilzied and I shall pronounce decree to that effect. The question of expenses will be reserved meantime.