A5426/07

Gladys Philips and Mary Glasgow v First Glasgow (No 1) Limited

Glasgow : March 2008

The sheriff, having resumed consideration of the cause, repels plea in law 2 for the First Pursuer and plea in law 2 for the Second Pursuer, sustains plea in law 2 for the Defenders, assoilzies the Defenders from the craves of the writ, and decerns, finds the Pursuers liable to the Defenders in the expenses of the action as Assisted Persons, and in respect thereof, allows an account thereof to be given in and thereafter remitted to the Auditor for taxation, and thereafter on the motion of the Pursuers, there being no objection thereto, modifies to nil any liability so taxed of the Pursuers to make payment thereof to the Defenders.

FINDINGS IN FACT

• On 4 August 2004 the first pursuer and the second pursuer, who are friends, were travelling together on a number 40 single-decker bus, owned by the defenders and then being driven by their driver, Mr Thomas Kenmuir, in the course of his employment.
• Sometime after 1 p.m. on that day, the bus was travelling eastwards in Shettleston Road Glasgow, which is a main and always busy arterial route. It had just left a bus stop at which it had stopped. The next stop along the road was that at which the two pursuers were intending to alight. They were intending to visit, together, another friend who lived nearby. They had been sitting together in a double seat near to the front. The entrance and exit door is the same, and is at the front nearside, opposite the driver's cabin.
• In accordance with their usual practice, and with that of most bus passengers, the two pursuers rose from their seat shortly after the bus pulled away from the stop before theirs and started to make their way to the front of the bus, where they intended to wait in order to get off once the bus had stopped and the doors had opened. As they did so, the first pursuer was to the right of the two and holding on with her right hand to a vertical pole, which is there for that purpose, and the second pursuer was holding onto the top of a seat with her left hand. The second pursuer was also holding, with her right hand, the left arm of the first pursuer. They advanced almost to the very front of the bus.
• The bus was travelling at no more than 15 - 20 mph and the driver was intending to stop at the next stop anyway, as he had seen it ahead of him on the left and had seen that there were passengers waiting to get on there. It was very busy with traffic and there were vehicles parked all along both sides of the road.
• As he progressed from one stop to the next, suddenly and without warning, a tan coloured dog, about the size of a Labrador, ran out from the left hand (nearside) of the road straight across in front of the bus and only a short distance ahead of it. The driver saw it. He thought the bus might hit it. He was aware that any sudden braking on his part created a risk that passengers, particularly any who might be standing at the time, might be thrown about and possibly injured. Passengers are permitted to stand on bus services, and not just when they are boarding or exiting. The driver had only a moment to decide whether and how to react. He thought that there was a possibility that the dog might be followed onto the road by a child trying to catch the dog. His view of the nearside pavement was obstructed by parked vehicles. Acting instinctively, he did brake the bus, but not fully in the manner of an emergency stop.
• Despite his efforts in attempting to limit the effect of his having applied the brakes, the bus did slow suddenly and with a sufficient jerking movement so as to cause both pursuers to lose their grip on their respective handholds and each other. The first pursuer was thrown forward into the front windscreen and then onto the floor, sustaining injuries. The second pursuer was thrown to the side and put out her left hand to steady herself, hitting the side window with it and sustaining injuries thereby.
• The bus did not strike the dog. It continued to run across the other carriageway of the road, where a car travelling in the opposite direction to the bus also braked in order to avoid hitting it.
• The injuries sustained by the first pursuer are reasonably valued at £2000, and those sustained by the second pursuer are reasonably valued at £2500, both inclusive of interest to the date of the proof.

FINDINGS IN FACT AND LAW

• The first pursuer not having sustained any loss injury or damage through any fault or negligence for which the defenders are liable, they are entitled to be absolved from the first crave of the writ.
• The second pursuer not having sustained any loss injury or damage through any fault or negligence for which the defenders are liable, they are entitled to be absolved from the second crave of the writ.

NOTE :

Basic Circumstances of the Claim

These are not really in dispute. The two pursuers, who are both middle-aged ladies, are friends who were travelling together on the bus operated by the defenders on a regular route and being driven by their driver in the course of his employment. They got on together at the same stop and intended to get off together at the stop immediately after the place where the incident which brought about their injuries occurred. They had been sitting together in a double seat, and when they became aware that the bus was approaching their stop, they rose together to make their way to the front of the bus where the door is. Each claimed that she was holding on to a fixed support with one hand and to each other with the other hand.

It is accepted that while they were in that position, the bus braked suddenly, causing them to be thrown to the front and side. There was a dispute as to the manner in which they had been supporting themselves at the time, but that was not difficult to resolve. There was also a dispute as to what it was which caused the driver to brake suddenly, but there was no dispute that he had done so, resulting in the jerking movement which destabilised the pursuers, and the only explanation proffered was that put forward by the driver, which in evidence was supported by an independent witness, another passenger on the bus, namely that he was trying to avoid hitting a dog which had run out in front of the bus.

Quantum was agreed by joint minute in the event of the pursuers' succeeding, at £2000 for the first pursuer and £2500 for the second.

Issues with the Pleadings

The pursuers' case is curiously pled, and does have an impact on the outcome. Rather then have a separate condescendence of fault, in accordance with hallowed practice, such averments as are meant to infer fault on the part of the driver (it not being disputed that there would be vicarious responsibility for any proved negligence on his part) are simply run on after the description of the accident. Further, there is a clear element of suggesting absolute liability by virtue of the fact that the driver braked at all, and particularly to avoid hitting a dog.

After narrating the fact of the braking and that the pursuers fell as a result, the pleadings say simply, "In the circumstances, the driver of the bus was negligent..." They go on to say that the standard of driving by the driver fell below that which would be expected from a reasonable driver of such a vehicle, and that the driver had a duty of care (expressed absolutely) to ensure the safety of the passengers on the vehicle at all times and to drive in such a manner as to ensure (again expressed absolutely) their safety at all times. It is doubtful if these averred duties would allow the pursuers to succeed.

The defenders also advanced a doubtful case of contributory negligence against the pursuers, based on their suggested failure to take care of their own safety, but ultimately that came to be a suggestion that they should not have been standing up at all, and should always wait until the bus stops at the stop before getting up to leave. They had no pleadings for that case though, and the evidence was also against such a suggestion. Ultimately, and correctly, they abandoned that case.

Evidence in the Case

Pursuers' Case

Both pursuers gave evidence in support of their case, as did Steven Dick, a passenger who spoke to the sudden braking and to the consequences for the pursuers, but was not aware of the reason for the braking, since he had been sitting towards the back and could not see in front of the bus. The pursuers gave evidence in accordance with the factual case pled and were effectively unchallenged. There was a dispute about whether they pressed the bell to alert the driver that they were getting off, and the evidence is inconclusive on that, but noting turns on it anyway, since the driver was not travelling fast and was intending to stop at the next stop in any event.

They both said that they had not seen a dog run onto the road, but that does not exclude the possibility, because the second pursuer was slightly behind the first, and both were slightly behind the driver. After their evidence, one was left with the question: if he did not brake for a dog, why did he brake ? No other explanation was put forward. They effectively left it up to the driver to negate the question of negligence.

Defenders' Case

They led the driver and another passenger, Jean Capie, a lady sitting behind the driver who said she saw the dog as it passed the front offside corner of the bus and continued across the road, where it was nearly struck again by a car coming the opposite way which also braked to avoid hitting it.

The outcome of the case depended on the evidence of the driver, and, frankly, just like the two pursuers, there was no way in which his evidence could not be accepted as truthful and essentially reliable.

He explained what had happened. When asked how he reacted to the sudden appearance of he dog, he said that he had "half braked" as he was thinking of his passengers. He later explained that he meant by that that he had not "stood on the brakes" so as to bring the bus to an emergency stop, but merely had braked so as to attempt to avoid hitting the dog. He accepted that the dog was so close that it was within his stopping distance, but that does not mean that he should not, for that reason alone, have refrained from trying to avoid hitting it, and in any event, the dog was not stationary; it was moving quickly from left to right.

He said, on a number of occasions, that when thinking of how to react, he thought of his passengers and their safety. His first thought, he said, when he saw the dog run out, was that it might be that there was a child in charge of it who would run out after it to stop it. On account of the parked vehicles, he could not see who or what was on the pavement. Because of his fear that there might be a following child, he said that he had taken the decision not just to carry on and hit the dog. When asked in cross-examination if the truth was that he had not given a thought about the safety of his passengers, he replied that if that had been so, he would just have slammed on the brakes (fully).

Quite simply, there was no basis on which his evidence could be rejected.

Submissions

Pursuer

It was submitted that they had made out their claim and that it was supported by reference to a number of authorities. In Mars v Glasgow Corporation 1940 SC 202, Lord President Normand stated that the pursuers had established a prima facie case of negligence against the defenders but that the defenders could excuse themselves by proving that their driver's action was not the result of his negligence but the result of the negligence of the second defender (the driver of a car which was said to have been responsible for causing the accident), but that if negligence on the part of the other driver had not been proved, the defenders had failed to discharge the onus resting on them of establishing by evidence a reason other than their driver's negligence for what was prima facie a negligent act on his part. He went on to say that the stopping of a tram car by braking so violently as to throw passengers off their seats is evidence of negligence and conclusive evidence of negligence if no justification is proved.

A number of points need to be made at this juncture. Firstly, the situation averred there was that the driver of a tramcar operated its magnetic brake system to avoid colliding with a motor car which pulled across suddenly in front of it. One must be careful, in 2008, in drawing similarities between accidents involving motorised buses, which is the present case, and trams, trains or other rail-tracked vehicles, whose stopping mechanisms are wholly different from those in use by the driver here. (It is also clear from what Lord Jamieson said in Sutherland (infra) that there were multiple braking systems in operation in tramcars - see p 571). The braking in Mars was so violent that persons were thrown out of their seats, whereas the victims here were standing, and I do not believe on the evidence that the braking was as severe as it was in Mars.

Also, the situation in Mars predates the significant impact of the reforms introduced by the Miscellaneous Provisions Acts of 1940 and 1945, and cases of that period tend to involve issues of onus of proof in a way which is often not now so significant. The second last paragraph of the Lord President's opinion in Mars in fact indicates that the case was decided on a question of onus, and he explicitly stated that that is always an unsatisfactory way of deciding a case.

I was then referred to the case of Sutherland v Glasgow Corporation 1949 SC 563, which is yet another incident where a tramcar driver made a sudden application of the vehicle's magnetic brake system. This time though, the facts are closer to the present case, because the reason for the braking was the driver's desire to avoid hitting a small dog which ran in front of it, and the person injured was a passenger who was standing while making her way to her seat. The situation is therefore similar to that in the present case.

That case was decided, yet again, on the question of onus, it being held that the onus was on the defenders to prove that their driver had acted reasonably in dealing with the emergency caused by the dog, having in view the probable effect on the pursuer there of a sudden stop, and that, on the evidence, they had failed to discharge that onus. It was submitted at one stage in argument before me that that case is binding on me, being a decision of the Inner House, but while it does indeed carry the authority of that court, it is only the essential ratio of the decision which is binding.

Does that case say that the driver of a public service vehicle owes to his passengers a duty of care which is paramount, and supersedes all other duties he may have to any other road users, including animals ? If it did, and if it said that where the driver is faced with the situation which pertains in the present case he must simply run over the dog rather than risk injury to his passengers by sudden braking, then this present litigation would not be taking place. So, is that the ratio of Sutherland (supra) ?

Lord Jamieson, at page 570, expressed the view that where such a driver is faced with a decision of whether to run down a human being, or brake and possibly injure his passengers, there was no difficulty: he was justified in taking action to avoid the immediate danger even with the possible risk to his passengers. But, if it is a dog which runs out, he asked, "Is he to risk injury to his passengers in order to save the dog ?" His answer was that each case must be judged on its own merits, but then said, at page 572, "The driver's first duty is to his passengers and in ordinary circumstances he is not justified in taking action to avoid a dog or other small animal if thereby he is subjecting his passengers to the risk of injury". The use of the expression "first duty" does suggest a paramountcy.

Lord MacKay said, at page 569, that "I for one am completely against laying down.........any law that saving animal life from imminent danger may not in proper circumstances be an "excuse" or a "justification"." He went on to say that every passenger [in a tramcar - though the same must equally apply to motorised buses] must expect some risk of deceleration from many different causes, and concluded by saying, under reference to the duties of the driver, "I find difficulty therefore in accepting any proposition which depends on a supposed "paramountcy" of one of several duties" and that " No driver of a public vehicle should, if at all possible, be forced by the law to elect whether to be responsible to the owner of an animal by deliberately driving into it and over it, or else to be responsible to slightly injured passengers whose balance was upset, and that he must take such a decision momentarily upon the spur of an emergent situation".

Finally. Lord Justice Clerk Thomson, at page 567, expressly declined the opportunity to lay down general principles in this area, saying, "As the problems which may arise are infinitely various, I am averse to attempting any general statement of the law. This is one of the occasions when one is well justified in saying that each case must depend on its own facts." In that case, he ruled that the prima facie case of negligence on the part of the defenders' driver had not been displaced by the evidence led (which is back to the onus point).

It was submitted to me that it was still the law that the defenders had to justify their driver's conduct (the onus point again). It is also significant that in the opinion of Lord Justice Clerk Thomson in Sutherland (supra) he observes that the driver's duty to human beings was entirely ignored in that case and that it appeared from the driver's evidence that he never considered it. (That is manifestly not the driver's evidence in the present case).

It was submitted that the pursuer had discharged the onus of showing that the driver had been prima facie negligent in braking violently for some reason, that he had competing duties, and that the defenders had not discharged the onus on them because no justification for his actions had been established.

Finally, I was referred to the case of Parker v Hunter (1904) 12 SLT 181, a road traffic case arising from an accident over 100 years before the accident in the present case. The rules regulating conduct of motorised vehicles were yet to be fully developed in those early days, (as were motorised vehicles), and the actual case was an action for damages brought by a dog owner in Callander against the driver of a motor car which, while travelling at 10 mph, knocked the dog down and killed it. Reading the case shows a clear attempt to fix absolute liability (as, curiously, the pursuers' pleadings do in the present case) but the sheriff (-substitute), anticipating the decisions of the court of half a century later, declined the opportunity to promulgate hard and fast rules, albeit suggesting that the need to take avoiding action may depend on the size of the animal, but the case is not really in point, as the real decision is based on the duty of the dog owner, who was present at the time, (and, it may be said, was no doubt as surprised as the unfortunate dog even to encounter a motor car in April 1904).

There was therefore in the present case, it was said, severe braking, which caused injury, therefore that was a breach of duty by the driver which had not been shown to be justified. The lack of justification arose because, it was argued, there was no proof that there was a dog at all, but if there was, braking would not have prevented a collision anyway, that the driver acted instinctively and without giving the matter full consideration, and the risks to his passengers in braking were much more significant than the risks to the dog.

As I have said, I am satisfied that there was a dog, the argument about probability of hitting it anyway assumes that it was a stationary target, which it was not since the bus did not in fact hit it, and I have to consider the explanation given by the driver as to why he did what he did.

Defenders

They said they would address the burden of proof, the evidence, the case law and ask me to conclude that they should be absolved from liability.

They submitted that the primary onus was on the pursuers to prove their case but accepted that if there was made out a prima facie case of negligence, then that would reverse the burden of proof. They submitted that the proper ratio of Sutherland (supra) was that each case had to be examined on its own merits and that if the bus driver was held to have acted reasonably in the circumstances, then there was no negligence on his part, and no liability in consequence.

They then explicitly accepted that a prima facie case of negligence had been made out by the pursuers but also that the defenders had discharged the burden incumbent on them. I was asked to accept the evidence of the driver and the supporting witness for the defenders, which not only provided the reason for the braking, but also fell to be accepted as a consideration of all relevant factors and therefore, something which could properly be described as reasonable in the circumstances.

On the authorities, Parker (supra) was distinguished for the reasons I have already set out, and Sutherland (supra) was distinguishable on its facts. The principle was, it was said, that the driver did not have a paramount duty to his passengers, only an overall duty to take reasonable care (for all who might be affected by his actions). I was referred to Parkinson v Liverpool Corporation [1950] 1 All ER 367 and it was suggested that this case was closest to the present on the facts. This is a decision of the Court of Appeal in England, and therefore, although persuasive, not technically binding on me.

It is however interesting to see that the approach taken in England appears to be formulated in a different way from the approach in Mars and Sutherland (both supra) in Scotland, though at the end of the day, perhaps it reaches the same result. (The court in Parkinson was referred to Sutherland (supra)). The facts are almost identical to the case before me, though perhaps the braking there was more violent than here.

The report does not concentrate on questions of onus; rather, it simply reports that at first instance, after the driver had given his explanation in evidence, (which is the same as in the case before me), the judge found that the driver had acted as any reasonable person would have done in a like emergency, and that he was not negligent, and that the action failed.

The only reasoned opinion on appeal is that of Tucker LJ. He stated that if there had been no explanation for the sudden braking, the court would have been entitled to draw an inference of prima facie negligence, and an explanation would be called for. The driver had given one, which was accepted by the judge at first instance. He then commends the judge for his approach and said that what the judgement amounted to was that the driver's evidence established that an emergency arose, and that the driver did that which an ordinary reasonable careful driver would do in the circumstances of that particular emergency.

His Lordship then dealt with the case of Sutherland (supra) which was referred to them. He did not regard that case as establishing some sort of paramount duty (and I respectfully agree with that analysis). (He also pointed to the significance of the magnetic braking device, as opposed to a driver operated pedal, which I have already commented upon). He made the interesting observation that he was not prepared (and the other two judges agreed with him) to accept as the law in England all of what was said as to applicable duties in cases of this kind by the Court of Session in Sutherland (supra).

He concluded by saying, "The duty owed by the driver is a duty to take reasonable care, having regard to the passengers he is carrying and having regard to the other users of the road" and then, after pointing out the failure of the driver in Sutherland (supra) to apply his mind to the variety of risks, said that although drivers in these circumstances act instinctively, they are required to go through some process of reasoning. In that case, the driver had said that he would try to save the animal's life if possible, without endangering anybody else, and the judge had accepted that evidence.

Perhaps the approach of the Scottish courts can be said to be a presumption that sudden braking is prima facie negligent and the driver must provide a reason and thereby displace that presumption, whereas the approach of the English court is that sudden braking is not necessarily negligent, and that provided a satisfactory explanation is given, and accepted, there is no negligence. The result though, as I suggested earlier, is perhaps the same.

That (English) approach was followed in Barry v Greater Manchester Passenger Transport Executive (1984 Bingham and Berrymans' Personal Injury and Motor Claims Cases 12.46). The facts are once again almost identical to the facts here and the court held that it was wrong to say that there is a duty to the passengers which is greater than to the intervening dog. The driver's instinctive reaction could not be faulted, but also the court echoed the sentiments of Lord MacKay in Sutherland (supra) by saying that passengers on public transport take the risk that the driver may effect emergency braking causing inconvenience.

It was submitted that even if there was no hope of avoiding the obstruction which came into the path of a bus (animate or inanimate) it was still consistent with the driver's overall duty that he should make the attempt, provided that he took all relevant matters into account.

Finally, it was submitted that the defenders had discharged the onus on them.

Assessment and Conclusions

Whatever is the correct way to approach it, and of course the defenders accepted they had to discharge an onus, this is a case where the defenders did lead evidence showing why their driver did what he did. There is no basis for disbelieving that evidence, which is corroborated by an independent witness. So, since he braked for the reasons he gave, does that demonstrate that he applied his mind, in the moment he had to do so, to all relevant considerations ? He said that he did, and I accept that. Does that mean that his actions have to be regarded as reasonable in the circumstances ? It is not possible to regard them as unreasonable.

I can analyse this in a number of ways. In all the circumstances, since the driver gave evidence which I accept and which discloses that he had in mind his various and sometimes competing duties when he decided to apply the brakes, he was not negligent. Alternatively, if the fact of sudden braking can be said to give rise to an inference of prima facie negligence, then the acceptance of the driver's evidence means that the defenders have discharged the onus upon them of rebutting any presumption of negligence.

And finally, and returning to the way the pursuers pled their case, the duties properly imposed upon him (which are not those pled) are to take reasonable care for the safety of his passengers and to act with due consideration for other road users. He did not have a duty never to brake suddenly. In the event of a sudden emergency presenting itself, he had a duty to take reasonable care to take into consideration the safety of his passengers when deciding how to react. In all the circumstances, he discharged those duties and is therefore not guilty of negligence, and the defenders are therefore not liable.

Or, to deal with it by looking at the actual duties pled, the driver of the bus was not negligent; the standard of his driving did not fall below what might be expected from a "reasonable driver of such a vehicle"; in braking sharply and without warning he did not act without due care and consideration for the safety of his passengers; he did not have a duty of care to ensure the safety of his passengers at all times, or to drive in such a manner (whatever that means) as to ensure their safety at all times.

He did not fail in any of his duties, those pled or actually incumbent. As a result, by whatever method one reaches the conclusion, the defenders are entitled to absolvitor, but since the pursuers were legally aided, their liability to pay the defenders' expenses, which naturally follows, will, by concession, be modified to nil in accordance with their entitlement so to move.