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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Afouzar v First Centrewest Buses Ltd [2014] EWHC 3426 (QB) (23 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/3426.html Cite as: [2014] EWHC 3426 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 October 2014

Her Honour Judge Coe QC :

Facts and Background

1. This is a claim for damages for personal injury arising out of a road traffic accident which occurred on 9th February 2012 at the junction of High Street Acton, and Steyne Road (Horn Lane), London. On 14.1.14 (p.14 in the bundle) it was ordered that liability be tried in advance of causation and quantum. In accordance with that Order I have heard evidence in relation to, and this judgment is in respect of, liability only.
2. The basic circumstances can be stated quite shortly. Much of the detail is agreed. To start with the junction itself: the High Street (the A4020) runs at this point pretty much along the west-east axis of the compass and Steyne Road (the A4000) (which becomes Horn Lane fairly soon after this junction and is referred to as Horn Lane on occasions in the evidence) runs into the junction from pretty much the north. Beyond this junction to the west, the High Street becomes known as the Uxbridge Road.
3. In advance of the junction there is one lane east bound on the High Street, but in the approach to the junction this becomes two lanes for traffic travelling east on the High Street and there are two lanes for traffic travelling west. There are 4 spurs to Steyne Road at the junction: the first (from east to west) is a slip lane for traffic coming from the east on the High Street to travel north; the second is for traffic from the west turning right to travel north; the third is for traffic travelling south wishing to turn to travel west on the high street; and the fourth is for traffic travelling south wishing to turn east. At each spur the traffic is controlled by traffic lights as is the traffic travelling in both directions on the high street. As depicted in the map on page 135 in the bundle there are pedestrian islands in the centre of the High Street and two triangular and one longer pedestrian island in the mouth of Steyne Road between each of these spurs.
4. At page 67 in the bundle is a statement from Mr Leonard Brown dated 4th March 2014. That statement is agreed. Mr Brown is a principal engineer employed by Transport for London. I shall refer to his evidence below, but beginning at page 74 of his statement he sets out the operational details of each of the phases of the traffic lights at this junction.
5. The Defendant's bus driver Mohamed Ahmed was driving a red double-decker bus (SN09 CDX) on the E3 route travelling from the Greenford Depot to Edensor Road in Chiswick. The approach of the bus to the junction is shown in the aerial view at page 136 in the bundle. Mr Ahmed drove along Gunnersbury Lane to the lights where he stopped because they were showing red. When they changed to green he performed a right turn to travel east along the High Street and approached the junction in the offside of the two lanes. The Claimant , a pedestrian, was walking at along the east side of Steyne Road, jogged over the first slip road and on to the easterly triangular traffic island and then picked up pace and set off to run across the eastbound lanes of the High Street when a collision occurred between him and the Defendants bus.
6. He suffered significant injuries including a head injury. He has no memory of the impact itself.
7. At the time of the collision which occurred at about 13.47, it was daylight and visibility was good. The road surface was dry. The traffic lights were working properly and there were no defects in the road markings, the road signs or the road surface. The speed limit on the High Street was 30 miles an hour.
8. By his Particulars of Claim which is at page 3 in the bundle the Claimant alleges that this accident was caused by the negligence of the Defendant's driver. The specific allegations which were honed and developed over the course of the hearing are that Mr Ahmed: drove too fast in the circumstances; failed to observe the traffic lights; failed to stop at the traffic light; failed to observe and heed the presence of the Claimant; was not sufficiently alert on the day in question; and in the circumstances his driving fell below the standard of a reasonably competent bus driver.
9. These allegations are denied by the Defendant in its defence at page 7. The Defendant alleges that the incident was caused by the Claimant's negligence because he: failed to observe and heed the pedestrian crossing lights which were red against him; failed to stop at the kerb; failed to keep a proper lookout; failed to observe and heed the bus; ran into the road; ran in front of the bus; failed to obey the Highway Code; failed to remove his hood; and created a situation of danger in which a collision was inevitable. In the alternative the Defendant alleges that the Claimant was contributorily negligent.
10. It is not in dispute that the Claimant was himself negligent. In the closing submissions on his behalf, counsel for the Claimant accepted in full the allegations of contributory negligence pleaded against him. On the basis of the CCTV evidence he could not have argued against them. Thus he accepts that he was running, that he crossed the road against a red pedestrian light and that he did not look to his right or did not recognise the obvious presence of the bus. He contends however that the Defendant's driver was primarily negligent.
11. Apart from the lay witnesses, I heard evidence from the Claimant's road traffic reconstruction and investigation expert, Mr Hague and from the like expert for the Defendant, Mr Shephard. Significantly in this case I also have the benefit of some filmed footage taken from CCTV cameras positioned on the highway and also from the cameras positioned on the bus. The lead up to and the moment of the impact is shown. This evidence is helpful and important. Although it does not show a complete picture from the points of view of both Mr Ahmed and Mr Afouzar, it has enabled the experts to provide quite precise evidence about the speeds and distances involved.
12. Mr Ahmed was prosecuted in respect of this accident at Wimbledon Magistrates Court on a charge of driving without due care and attention. The case was dismissed at the end of the prosecution evidence on the basis that there was no case to answer. Some of the evidence in the bundle and some of the evidence to which I was referred is evidence which was obtained or prepared for those criminal proceedings.

Claimant's Evidence

13. The Claimant did not give evidence. He relies on the CCTV evidence. The only witness he called was Mr Hague. In his report Mr Hague outlined the facts to which I have already referred. From an analysis of the CCTV footage he sets out that at about five seconds before impact the Claimant was walking along the footway in Steyne Road and crossed the first spur with the pedestrian light green in his favour and red against the traffic. He crossed at a jog. He continued to jog towards the pedestrian crossing across the High Street and began to run just before he entered the road. The pedestrian signals were displaying a red man signal against him. He either did not check for traffic or if he did his view was obscured by his hood.
14. As Mr Ahmed approached the junction the lights were green in his favour but changed to amber before he reached the first stop line. Mr Ahmed did not stop for the amber light proceeded through the junction. In travelling the 120m from the Gunnersbury Lane junction to the first stop line the bus was travelling at a speed of about 26mph and a increased his speed slightly to 28 mph which was its speed about one and a half seconds before impact. There was then some braking so that the bus was travelling at about 26 mph at impact.
15. He concludes that allowing for a one second perception reaction time Mr Ahmed could have stopped the bus when the lights changed to amber by braking at an average rate of 0.3g which is firm breaking. 0.34g is undesirable braking. When cross examined he said that if the bus had been doing 30mph when the lights changed (when it was 33m away) he could have got through the lights before they turned red. If he had been 40 m away and taken one second to respond the required braking rate would have been 0.34g. The Claimant was within Mr Ahmed's potential sight from around five seconds prior to the impact. Had he seen him the Claimant's actions in jogging across the first crossing would not have warranted an emergency response but if Mr Ahmed had monitored the Claimant as he ran across the pedestrian island he could have been ready to apply emergency braking as he reached the kerb. Had he done so the collision would have been avoided either because the bus could have been stopped just prior to the impact or because the Claimant would have had time to cross in front of the bus. It is Mr Hague's view that at the time that the bus crossed the advanced stop line the lights had just turned red. He acknowledged that the frame by frame analysis he carried out to see the fading and illuminating of each light would be dramatically different from what a driver would see.
16. At page 138 Mr Hague has plotted the positions of the bus and the Claimant in the five seconds prior to impact and has plotted the Claimant's line of sight. He expresses the view that a running pedestrian would be more readily detected as a potential hazard than a pedestrian who was walking or stationary. There were no other pedestrians or hazards at the junction at the material time. He calculates that the Claimant reached the kerb immediately prior to the second crossing at about 1.2 seconds prior to impact when the bus would have been 15 m away. Had Mr Ahmed already seen the Claimant so he was ready to apply emergency braking when the Claimant reached the kerb then had he applied emergency braking at the rate of around 0.54g he may have been able to stop prior to impact.
17. In oral evidence he said that the first potential clear view of the Claimant (image 92 on p.116) would have been about 2.5 seconds before impact. The Claimant would have been able to see the bus for about 4 seconds before impact At 2.24 seconds before impact the Claimant would have been about 7m from the point of collision. He acknowledged that the Claimant had a greater opportunity to avoid the collision than the driver did.
18. Alternatively the time delay caused by the emergency braking might have enabled Mr Afouzar to clear the path of the bus.
19. Mr Hague said that the position of the passengers on the bus did not feature in his consideration. He conceded that in order to stop for the Claimant on his analysis Mr Ahmed would have to have exceeded acceptable braking levels for passengers. If a braking rate of 0.5g could be achieved there would be a risk of injury to passengers.
20. From the CCTV footage (view of the driver) Mr Hague calculates that Mr Ahmed did not detect Mr Afouzar as a hazard until around 0.48 seconds prior to impact when the Claimant was already 2 1/2 m into the road. Allowing for driver response time to a previously undetected hazard at that point the collision could not have been avoided.
21. At page 95 he says that the parties would probably not have had a view of one another five seconds prior to impact. The bus would have started to emerge into view as the Claimant stepped onto the first crossing and would have been fully within view by the time he was halfway across that first crossing and four seconds prior to impact. Mr Ahmed would have had an available view of the Claimant over the top of stationary vehicles at the first crossing from about 3 1/2 seconds before Mr Afouzar reached the kerb with the second crossing and would have had an unrestricted view of him from about two and half seconds prior to impact. It is his view that if Mr Ahmed had looked in the Claimant's direction he could have detected him as a hazard so that he could have been ready to brake as the Claimant reached kerb which was about 1.2 seconds prior to impact.
22. It is agreed that the traffic signals changed to Amber when the bus was travelling at about 26 miles an hour and was around 33 m from the normal stop line. Mr Hague accepted that being 40m from the lights when they change would be the most inconvenient distance.
23. At p.139 in the bundle is a letter from Mr Hague dated 30th June 2014 which provides responses to questions from the Defendant's solicitors. He sets out that the calculation of speed is made allowing for the time lapse on the CCTV footage and by reference to the length of the bus. The results are accurate to within about 1 mph for each interval. He confirms that the peak speed for the bus was around 28 mph. In order for Mr Ahmed to have braked in response to the amber light he would have to have applied firm breaking at around 0.32g. 0.35g is undesirable but not alarming for a seated passenger on a public service vehicle. 0.43g is severe and uncomfortable and may inflict injury if passengers are unprepared. The maximum braking deceleration regarded as permissible for a public service vehicles is about 0.5g otherwise serious injury is likely to be caused. It is unlikely in any event that a bus would be able to achieve a deceleration rate greater than 0.5g.
24. Mr Hague acknowledges Mr Ahmed applied emergency braking to avoid a collision with the Claimant serious injury to passengers on the bus would have been possible although he concludes that that is a hypothetical situation because it is apparent that Mr Ahmed did not detect the Claimant as a hazard and make a conscious decision not to apply emergency braking.
25. He sets out figures for perception response time for drivers. The median for drivers reacting to an unexpected or unfamiliar hazard is 1.1 seconds. The median for an expected hazard is 0.7 seconds. It is his view that a changing traffic signal is an anticipated hazard. Mr Ahmed therefore may have been able to stop for the traffic light having seen the amber signal with less than firm braking. He concludes that Mr Ahmed could have stopped for the traffic light had he chosen to do so.
26. There is some evidence that Mr Ahmed steered the bus to the right at about the time of the impact but Mr Hague says it is not clear whether that was in order to negotiate the slight right-hand bend at the junction along the High Street or in response to the appearance of the Claimant or both. Some braking on approaching the junction is apparent but may have been due to the gradient in the road at that point.
27. That was the Claimant's case.

Defendant's Evidence

28. On behalf of the Defendant I heard evidence from the bus driver Mr Ahmed, and from the lay witnesses Ms Evans, Mr Bennett, Ms Brown and Police Constable Galloway as well as from the Defendant's expert Mr Shephard.
29. Mr Ahmed's statement is on page 22 and sets out that he has held a driving licence since 2000 and a PCV licence since 2006. He has no endorsements and has not been the subject of any complaint. He told me that he is familiar with the relevant bus route and drives it almost every day. His shift began shortly before the accident at about 1:10 in the afternoon. Before the impact, having negotiated the Gunnersbury Lane junction, he checked the road ahead using his offside and nearside wing mirrors and his rear-view mirror and was alerted to the fact that one of his passengers had illuminated the stop sign. As he headed towards the relevant junction he could see the traffic lights were green. He estimates his speed on the approach to the lights as being between 20 and 25 miles an hour. There were no pedestrians waiting to cross the crossing. As he approached the junction he was aware that the traffic lights changed from green to amber, he was so close to the crossing when he became aware of it that he considered that it will not be safe for him to stop the bus. As he passed through the junction he was aware of an object or blur to his left-hand side and now knows that this was the Claimant. He describes Mr Afouzar running into the front near side of his cab and the front near side windscreen cracked. He says it all happened in a split second from the first point that he was aware of the blur/object. He can tell from the footage that he swerved but could not swerve far.
30. Following the impact he was immediately concerned for the safety of his passengers and brought the bus to a controlled stop. He ensured that the passengers were all right. He went to see the Claimant lying in the road and saw that there was a police officer at the scene and went back to his passengers. He gave an account of the accident to the police. He did not feel very well after the accident and was taken to hospital in an ambulance. He gave an account to the police from the ambulance. He did not have an interpreter when he spoke to the police He has been extremely upset and distressed by the incident and the subsequent criminal proceedings.
31. He said that on the day of the accident he was healthy and he had had enough sleep having been to bed at 10pm the day before. He said that he would travel the route three or four times a day. He said that he can remember from the point of approaching the traffic lights at the junction and that the light was green and he was committed to the junction. He saw the light was amber when the accident had already happened. He was sure that he would not have been travelling faster than 20 to 25 miles an hour. He said that he had been trained that this would be a safe speed even going through green lights. He said that in his view the Claimant would have crashed into the bus even if it been stationary because he was not looking where he was going. He said that he slowed down for the junction. He confirmed that when he committed to the junction the lights were green and they were amber by the time he got into the middle of the junction and still amber just after the moment of impact. Looking at the photographs and plans he felt that the lights were still green when he was at about the level of the public house shown to his near side.
32. Ms Lyndy Brown's evidence is at page 65 in the bundle. She was a passenger on the bus and was intending to get off the bus at the stop immediately following the junction where the accident occurred. She was sitting two or three seats back from the driver on the driver's side. She says that as they turned on to the High Street the lights were showing green in their favour and she does not recall them changing as they approached. She says that the bus was very close to the pedestrian crossing when a pedestrian ran out into the road. The pedestrian did not check the road conditions. He simply ran into the road. She says that one second he was not there and the next he was. He was wearing a grey top with a hood which tied around his face. She recalls screaming as she saw him run in front of the bus. She did not believe that there was anything that the driver could have done to avoid the pedestrian. There was no opportunity to brake or avoid the collision. She said that her view was out of the windscreen but she could not see as clearly as is shown from the camera images. She saw that what was going to happen was inevitable and that is why she screamed. She does not recall the lights changing but she does not think she was looking at them any more. She said that the bus driver could not have stopped without throwing the passengers around.
33. Miss Katazyna Evans' evidence is at p.37. She was a passenger the bus on the upper deck. She was seated at the front left-hand side. She saw the lights at the relevant junction were are green in favour of the bus. She was speaking to somebody on her phone when she saw in the corner of her eye a gentleman in a jogging suit run towards the crossing. The next thing she heard was a loud noise followed by the sound of people from the lower deck screaming. She ran to the back of the bus and saw the Claimant lying by the side of the road. She called 999. She felt that she saw the pedestrian from about the position shown in image 103 on page 117. She estimated that it would be three or four seconds on the bus from the Gunnersbury Lane turn to the pedestrian island.
34. Mr Stephen Bennett's statement is at page 46. He was travelling about five cars behind the bus at the Gunnersbury Lane junction. He was a passenger in a Porsche Boxster which is not the Porsche Boxster shown on the film about 35 m behind the bus as it went through the High Street junction. The car in which he was travelling was intending to turn left into the slip road at Steyne Road and he says that he saw the Claimant run across the junction and onto a pedestrian island and saw his head turn but seemed to him as though he looked into his hood. He then ran across the High Street. He had the impression that the pedestrian was heading for the bus door to try to get the driver to open it. He said there was a huge bang and the bus stopped instantly and he remembered being shocked. He dialled 999. He confirmed that the car he was travelling in was not immediately behind the bus and that he was positioned approximately outside the police station when he dialled 999. He identified the position of the vehicle he was travelling in as being where it says -3 on page 138 (in red).
35. Robert Galloway, a police constable, gave evidence. His statement is at page 55. He saw this accident. He was travelling in an Audi car south on Steyne Road intending to turn right. His car can be seen in the image on page 116 (image 82) as the third vehicle back from the junction on Steyne Road. He was about 15 m away from the traffic lights. He caught sight of a male in his peripheral vision crossing the junction and running across the main road of the High Street. He thought he was headed for a bus stop on the other side of the road. He thought that the bus was travelling at about 25 to 30 miles an hour. He did not see the Claimant look right at all before he ran into the road and into the path of the oncoming bus. He recalled saying to himself "What are you doing? Stop!" as the man ran out directly into the path of the bus. He could see what was about to happen. He said that the bus had just passed the primary eastbound traffic lights when the near side front of the bus hit the Claimant's right-hand side. He said that the bus braked immediately causing it to jerk forwards. He said that the Claimant failed to look right to check for oncoming traffic and once he had run out into the road the bus had no chance to stop in time.
36. Mr Shephard confirmed his report and the matters set out in a joint report. The impact was not on the pedestrian crossing, but was approximately 1m east between the crossing and the yellow box junction. The damage to the bus was consistent with a pedestrian impact in front of and not to the side of the bus. The Claimant did not attempt to cross within the bounds of the pedestrian crossing but chose to run at an angle across the road and extrapolating that angle would suggest that he would have ignored the pedestrian crossing totally, passing to the east of the central island on the High Street. The Claimant is seen to be contravening the red man signal. The bus was travelling east down a slight gradient towards the junction. The driver applied the vehicle's brakes for less than half a second, releasing them prior to crossing the first stop line at the junction. The initial speed of the bus prior to braking was 26.3 mph having covered the distance of 36.4 m in 3.14 seconds. The bus came to a rest 40m past the point of impact, the driver bringing the vehicle to a controlled stop towards the near side of the road. At the time of the collision the vehicle was probably travelling at a speed not significantly lower than 26 miles an hour and came to a halt at a comfortable rate of deceleration.
37. The Claimant would have had a potential view of 50m towards the west in the direction the bus was coming from and could have seen any vehicles approaching along the High Street from the island. The bus driver would have had a clear unobstructed view as he approached the junction and there were no other pedestrians on the crossings.
38. This was a particularly busy junction with a variety of potential danger areas including vehicle activity, traffic signals, and pedestrian interaction in a complex intersection with five islands, seven pedestrian crossings and 19 traffic lights. In terms of perception reaction times the research shows that most drivers will begin to respond to a relatively straightforward emergency in about 1.5 seconds. The range being 0.9 to 1.5 seconds.
39. Mr Shephard is very strongly of the view that it is important that "canned" numbers are not simply applied to every scenario. He agrees the calculations of the distance (of about 33 m) from the lights when they changed to amber and the three second time. It is his opinion having considered the images that the front of the bus was just over the advance stop line as the lights changed to red. Firm but not emergency braking could have brought the bus to stop at a speed of 26 miles an hour in 27.2 m and so the driver could have stopped having seen the lights change to amber. This is based on a perception reaction time of one second but not greater.
40. The Claimant had every opportunity to stop on the first pedestrian island and look and had he done so he would have seen the bus. The red signal would have been displaying against him. Mr Shephard could see no indication of the Claimant turning his head to the right on any of the images. If he did turn his head then there is the potential for his sightline have been obscured to some extent by his hood.
41. The bus driver did perceive the Claimant less than a second before the impact. From the images Mr Shephard calculates that: the bus was 17m from impact at the point when the Claimant left the first island on to the High Street; the bus driver applied additional steering when about 8m from impact; and the point of final braking was about 5m from impact. Assuming that the bus driver reacted at the point that the Claimant left the island and steered the reaction time would be between 0.8 and 1 second.
42. Mr Shephard concludes that the act of steering by the driver altered the angle of impact and pushed the Claimant away from the path of the bus enabling the bus to pass without running him over. He says that typically in flat fronted vehicle pedestrian impacts the pedestrian is "punted" in front of the vehicle and the vehicle subsequently runs over the pedestrian. He says that had the driver applied emergency braking instead of steering he may have stopped prior to the impact, but on the balance of probabilities some if not all of the passengers would have been injured to some extent given the amount of braking that would have been required.
43. He says that with a perception reaction time of 0.9 seconds and reacting to the lights changing at precisely the point they changed the bus driver could have stopped using firm braking (whereby passengers would not be thrown from their seats) in 28 m. With a range of perception reaction time from 0.9 to 1.5 seconds for the majority of the range the driver would not have been able to stop safely.
44. The Claimant ran into the path of the double-decker bus when it was 13.5 m from the crossing. Had the driver applied emergency braking when he first reacted to the Claimant he could not have stopped the bus within the available 17m so as to avoid the collision.
45. Mr Shephard told me that the average driver does not break maximally except perhaps once when doing an emergency stop during their driving test. Calculating the distance and times the Claimant was not even onto the island when the lights were changing to amber. He expresses the view that drivers have to formulate a driving plan. The image on page 116 (image 92) is the first potential full view of the pedestrian. The pedestrian is four metres from the kerb. He is still jogging in that image at 2.24 seconds and 4 m away. The Defendant had 1.2 seconds from the Claimant stepping off the kerb. He would have to receive a stimulus, decide if there was anything to be done, what to do about it and do it. As a public service vehicle driver he would have duties of care for the safety of the passengers and of the vehicle. He would have to be concerned if there were any passengers standing or upstairs or moving around. Mr Shephard considered that 0.5g would be achievable and 0.54g is high. Anything above 0.43g may inflict injury. 0.35 to 0.43g would easily throw someone over if they were not expecting it.
46. Where the bus was 33 m from the stop line it would have to brake a lot harder to stop than it would if it had been 40 m away which is the time intended to allow the driver to stop safely.
47. Mr Shephard is not aware of any perception reaction times specifically for bus drivers. He acknowledges that there are differences in perception reaction times for expected and unexpected hazards and that the unexpected times are longer. However participants in the research are aware they are being watched. There is no covert surveillance and the research has to be viewed with that in mind. He referred to the "dilemma zone" which may result from a light change or a missed observation of the light changing, the dilemma being whether to brake or continue.
48. From the timings on the DVD in the hundred metres up to the junction after Gunnersbury Lane there would be four seconds when the light was on green and three seconds when it was on amber. A total of seven seconds for the approach to the junction and the collision. From the point that the lights change to amber to the stop line is 2.8 seconds.

Agreed and joint evidence

49. There is a joint statement which Mr Hague and Mr Shephard have signed which is at page 183 in the bundle. The experts agree that the Claimant and the bus driver would have had a view of one another shortly after the Claimant stepped onto the first crossing. They agree that Mr Afouzar did not look or perhaps his view was obscured by his hood. They agree that the Claimant crossed the kerb about 1.2 seconds before impact when the bus was about 15 m away. The Claimant crossed at an angle and at the time of the impact was between the limits of the crossing and the beginning of the yellow box junction.
50. They agree that the bus was 33 m from the normal stop line and travelling at about 26 mph when the light changed to amber. There was then a gradual acceleration to 28 mph and then gradual braking to about 26 miles an hour at the moment of impact. The front of the bus crossed the normal stop line when the traffic signals were displaying amber and was about halfway over the normal stop line when the signals change to red. Mr Hague considers that the red signal was brighter than the amber signal when the bus crossed the advanced stop line Mr Shephard from his analysis considers that the bus was over the advanced line before the red signal was predominant. Both experts agree that the period of time between the fading of the amber and the illuminating of the red light is tenths of a second and would not be apparent to a driver (it relates to the heating and cooling of the filament in an old traffic light). The appearance from the driver's point of view would be instantaneous change.
51. The experts agree that if the Claimant had waited on the pedestrian island until the green man signal had illuminated the collision would have been avoided. Similarly had he looked towards the approaching bus and/or had his vision not been obscured by his hood he would have seen the bus approaching and the collision would have been avoided had he stayed on the pedestrian island. Both in his report and in the joint statement (agreed by Mr Shephard) Mr Hague sets out that it may be that the Claimant made an assumption that any traffic would stop for the amber signal. For the reasons given below in the absence of any evidence from the Claimant and I find that it would be wrong of me to make any assumption or findings about the Claimant's state of mind immediately prior to the collision. As was submitted on his behalf, what is important is what he did not why he did it.
52. The bus driver applied gradual braking (which was probably due to the downhill slope with the right-hand bend) immediately prior to the impact. He did not apply firm or emergency braking in an attempt to stop the lights at or to avoid the collision with the Claimant. He did not sound the horn. Mr Ahmed steered the bus to the right with the substantive steering movement beginning between 0.75 and 0.5 seconds before impact. The initial right-hand steering movement at the junction was probably in order to negotiate the right-hand bend. It may be that he applied greater steering when he detected the Claimant, but the experts are not sure whether this was in an attempt to avoid the Claimant or continued negotiation of the bend. In any event steering applied momentarily before the collision would have had little effect on the course followed by the bus.
53. Mr Ahmed could have braked in response to the amber traffic light and stopped before reaching the normal stop line. This would have required firm but not harsh braking. The rate of required braking would have been slightly less than for drivers who might need to stop when three seconds from the stop line and approaching at 30 miles an hour and significantly less than those who might have been travelling at 40 miles per hour.
54. The experts accept and agree the evidence of Mr Leonard Brown that the amber phase of the traffic light lasts for three seconds. This is a standard phase. As Mr Brown said, the amount of time a signal displays a green signal is dependent upon the amount of traffic wishing to proceed in any particular direction and there are a number of methods used to determine the amount of green time. None of these methods adjust or amend the safety critical inter green or minimum green timings. The obligation to show an amber signal for three seconds is statutory and defined by the Department of Transport. Passing through an amber signal reduces the effective inter green time. The red man signal for pedestrian crossings is not mandatory.
55. Looking at Mr Brown's report at page 78 it is apparent that the red man pedestrian signal will be displaying for the last two seconds of the green stage the three seconds of the amber stage and the first three seconds of the red stage on the traffic lights for the bus driver.
56. Had Mr Ahmed obeyed the amber traffic light signal and stopped at the first stop line the collision would have been avoided. Had he stopped prior to reaching the advanced stop line the collision would have been avoided.
57. Perception reaction times are not constant and vary from one driver to another. A slower perception reaction time would have the consequence of harsher braking in order to stop. Mr Hague feels that provided he was reasonably alert there was no reason why Mr Ahmed could not have stopped for the changing signal. Mr Shephard feels that there were a variety of potential danger areas at the junction demanding the driver's attention.
58. The experts agree that Mr Afouzar would have been more conspicuous as a hazard than a pedestrian who was walking or stationary.
59. Had Mr Ahmed seen the Claimant during the 3 1/2 seconds he was available to be seen and running towards the kerb he could have applied emergency braking as the Claimant reached the kerb which may have enabled him to stop the bus just prior to impact or slow the bus down enough to allow the Claimant across in front of the bus.
60. From the CCTV footage Mr Ahmed was looking ahead and to the right on approach to the crossing and did not appear to look towards the Claimant until about half a second prior to impact when Mr Afouzar was already 2.5 m into the crossing at which point it would have been too late to avoid the collision.

Submissions on behalf of the Claimant

61. On behalf of the Claimant I was invited to view the footage of the driver Mr Ahmed in the 10 minutes or so leading up to the impact and it was submitted that this showed that he was not sufficiently alert.
62. It was submitted to me that I should consider the CCTV footage as being beyond doubt the best evidence and that the role therefore for the independent witnesses from whom I heard was limited. I was asked to find that the bus driver should have identified the Claimant as a potential risk and should therefore already had been primed and deciding whether or not he might need to take some action so that he should have been for example covering the brakes. This was on the premise that the Claimant would have been visible for almost 5 seconds before impact, initially only his upper body above the railings and the cars but then all of him visible from the point when he reached the traffic island. The Claimant relied upon the fact that as a jogging pedestrian he would have been more visible.
63. I was invited to find that the driver was not reasonably alert. I was invited to prefer the evidence of Mr Hague. Mr Ahmed could have braked for the changing traffic lights and the risk of cars behind was not relevant given that the rear facing CCTV camera on the bus shows that the closest vehicle to the back of the bus was 35 m distance at the point of impact. I was asked to find that the appropriate perception response time for the changing of the lights would be 0.7 seconds so that less than firm braking would be necessary. I was asked to find that the driver had a duty to obey the traffic light signals which changed when the bus was 33m from the first stop line.
64. I was also asked to find that the Defendant was driving too fast. On his own evidence he had been trained to slow down at a junction and this was a complicated junction (it is submitted). Therefore following the Defendant's evidence I was invited on behalf of the Claimant to find that the fastest appropriate speed was 23 mph based on Mr Ahmed's evidence that he was trained to drive between 20 and 25 mph. Further I was asked to find that he should have been slowing down for foreseeable hazards at the junction and that a lower speed would have given him time to stop
65. I was asked to consider that Mr Ahmed has an ample understanding of simple English questions and could respond and that I should infer that his witness statement which is in sophisticated language would be beyond his reach and that therefore I could not be confident that it was in fact his statement [I note that this was not put to Mr Ahmed]. Based on his earlier statements to the police therefore I was invited to find that Mr Ahmed simply did not check the state of the lights or will not admit that he acknowledged the change of lights because he is doubtful of his decision-making because he knows he was not at his best that day. Therefore I should conclude that his driving fell below the standard of a recently competent bus driver and I cannot find that he saw the lights change and decided it was safer to proceed.

Defendant's submissions

66. The Defendant reminds me that the burden of proof is of course on the Claimant. I am asked to find that this was a busy junction and that the Claimant's actions in running out were "a driver's worst nightmare". The Claimant was at fault and concedes that he was. His attempt to persuade me that the bus driver was primarily negligent depends on a dissection of the case by tenths of a second, for example in the frame by frame analysis by Mr Hague of when the amber light filament faded and the red light illuminated. It is submitted that this offends against the principle in Ahanonu (see below). In reality as shown on the CCTV the whole incident was over in an instant.
67. It is submitted that the Claimant had the better view and the better opportunity to avoid the accident. The lack of opportunity that the bus driver had to avoid the collision is strongly supported by the lay witnesses and there is no reason not to accept their evidence. I am asked to find that he Claimant was running at the time, not jogging.
68. The Defendant asks me to reject the notion that a driver approaching a green light should react or slow because it may change, particularly where he has not seen it showing green for very long (in this case about 4 seconds). When considering the risk of an accident occurring if a driver brakes harshly or suddenly I am urged to take into account the particular situation of a driver of a public service vehicle, in this case a double-decker bus. It is said that Mr Hague has only really considered the matter from the point of view of a car driver and not taken into account the risk of injury to bus passengers, particularly if they are unprepared.
69. It is submitted that Mr Ahmed made a reasonable decision, taking into account all the appropriate factors. There is no evidence that he was trying to "beat the lights" as is alleged in the Claimant's skeleton argument. Even if he did not see the lights change, there is no obligation on a driver to watch the light constantly.
70. The Defendant says that the Claimant's case depends on the bus driver prioritising the Claimant's safety above all others. I should conclude there is no negligence here on the part of the Defendant's driver by reference to the evidence and the case law.

Findings

71. Based on a combination of the evidence I prefer (detailed below) and the agreed evidence I make the following findings. As far as the evidence of Mr Ahmed is concerned the primary contradiction which I need to resolve is the variation in the account that he gives in his statement from the account which he gave earlier and the account which he gave in his oral evidence. In his initial statements to the police he said that the traffic light was green in his favour. His statement (which is reflected in the pleadings) he says that he saw the light to change from green to amber as he approached it but given his proximity to the junction he made the decision to carry on. He said in his evidence on several occasions that he was "committed" to the junction. In his oral evidence he said that the light was green and that he did not see it change to amber but that immediately following the accident he looked up and saw that the light was still amber at that time.
72. I accept that Mr Ahmed (and it is apparent from his statement) was very familiar with this bus route which he drove several times a day. I accept that he found the accident shocking and its consequences very stressful in terms of the abortive criminal proceedings and these civil proceedings. His willingness to give evidence on behalf of his employer and his account of his stress since the accident indicates to me that he has been very anxious to "clear his name".
73. Mr Ahmed needed the services of the interpreter for some but not all of his evidence. His command of English was limited but he clearly understood most of what was being said and chose to answer in English when he was able to. I have made allowance for this in considering some of his answers.
74. I find that when he was expressing himself without an interpreter at the early stages of the investigation he was anxious to stress that the light was green and, of course, it is accepted that as he approached the junction light was green and his favour but it changed. I find that Mr Ahmed was attempting to make it clear that the light was in his favour and against any pedestrian. I find that he was helped to a considerable degree in the preparation of his witness statement by those acting for him but I do not find that that statement, albeit not in his own words, does not come from his own account and I therefore find that he did see the amber light and that he did make the positive decision to proceed rather than stop for it. I make this finding on the basis that the only potentially independent evidence that there is on the point is the agreed evidence of the experts from the footage that there was some acceleration at about the point that the lights changed from about 26 miles an hour to about 28 miles an hour. I find that this is consistent with the decision having registered the amber light to proceed through the junction rather than come to a halt.
75. There is evidence from the witnesses to suggest that the light was green but that must be wrong in light of the footage and the expert evidence. It does however support the Defendant's case to the extent that it makes it clear that the bus passengers whose attention would not have been on the light all the time and who admitted that they were distracted in various ways had formed the clear view that they were passing through the junction with the light on green. In other words the impression they formed was that the light would still be green as they went through the junction. In fact of course it was not.
76. If I am wrong in making this finding and Mr Ahmed did not see the light it is of course argued that he should have done and that his failure to do so was negligent. I do not find that if he did not see the light it was negligent. If he did not look again having seen the green light I find that it was because being familiar with this junction he had formed the view that the lights would be green or green and then amber for a period of time which would enable him to pass through the junction before that changed to red. Given the nature of this junction I think there were other hazards and/or potential hazards for him properly to be looking at. Having reached a point whilst driving a double-decker bus with passengers on board as he approached the junction with the lights of green he knew or had made the decision that he would cross the lights before they change to red.
77. In any event had he been negligent (and I find that he was not) in not looking at the green light (and I find he did look) that would not be no causative in circumstances where, as I find, he would have proceeded through the amber light in any event.
78. The real issue it seems to me is whether or not the Claimant succeeds in the argument that it was negligent not to stop for the amber light. I find that it was not. The bus was already within the "dilemma zone", or "critical or tipping point" being less than 40m from the stop line. Mr Ahmed was driving a double-decker bus with many passengers on board as I find. Given that I accept the evidence that a passenger had pressed the request stop bell there were likely to be passengers moving around and/or standing up. There was a possibility of vehicles behind. All of the vehicles at the junction were appropriately stationary at their stop lines. He had no reason not to think he could proceed.
79. In reaching the conclusions that I do about the circumstances of this accident I have to bear in mind that whilst the experts and indeed the court has had the luxury of careful consideration of the footage and the evidence, these events took place in a very short period of time and over a short distance.
80. Mr Ahmed did not see the Claimant until he saw, as described, a blur or object coming towards the side of the bus. There was, as the experts agree, nothing that could have been done then. The next key issue therefore is whether or not Mr Ahmed should have seen the Claimant at an earlier stage and identifying him as a hazard should have prepared for emergency action. There is no criticism of the failure to see him when he was on the other side of the first crossing. There is street furniture and there were cars there was no complete view and until he got into the first crossing the Claimant was walking. He began jogging across the first crossing (not running) and the lights were in his favour. As he jogged onto the island I find there was nothing to alert the driver to the risk that he would run into the road against the pedestrian signal. I do find however that Mr Ahmed should have been aware of the Claimant from the point that it became apparent that he was not stopping at the kerb. I accept that are running pedestrian is a more obvious hazard than a stationary or walking one and that whilst there were other things to look at Mr Ahmed should have seen him therefore at the point at which the Claimant failed to stop at the kerb edge. At that point there was 3 1/2 m of road before the impact. On the basis of the expert evidence which I have explored Mr Ahmed could not have stopped safely. I find that he was already turning the bus to the right for the bend in a normal and controlled way but I do find that he swerved to his right in a more extreme way in that last fraction of a second when he became aware of the Claimant . He did bring the bus to a stop, but did not perform emergency braking. I do not find that the failure to attempt emergency braking or to swerve more violently was negligent. Either course of action would have caused a real risk of injury to passengers on the bus and one other road users. The Defendant had trained Mr Ahmed to take these factors into account. In any event I do not accept that on a balance of probabilities the collision would have been avoided. It is too speculative to say that how the Claimant would have reacted. I do not consider it negligent for the driver not to have braked at a rate which might have been in excess of the bus's capability anyway and which would have given rise to a real risk of serious injury to passengers. I heard evidence that maximal braking is rarely achieved.
81. The Claimant's argument is that as he reached a point before the edge of the triangular island, Mr Ahmed should have identified him as a potential risk and should have been prepared for the possibility of emergency braking. By reference to Mr Hague's report (page 96) it is not clear that he would have been able to stop in any event. It is not clear that the bus could have achieved this level of deceleration in any event. They would have been a high risk of serious injury to passengers. It was not negligent therefore as I find for Mr Ahmed not to have braked in this way. It was not negligent as I find for him not to have seen the Claimant but even had he done so at the point at which I find he could reasonably have anticipated a risk it was already too late for the collision to have been avoided at all or the collision to have been avoided without serious risk to others.
82. I find that the Claimant did not see the bus but should have done. Either he did not look at all or as Mr Bennett said he turned his head but effectively looked into the side of his hood. Mr Bennett says he saw the Claimant turn his head and I have no reason not to accept his evidence. However the fact that the Claimant turned his head within his hood explains in the fact that no one else from any other angle saw him turn his head and as is apparent from the film footage it is clear that he did not see the bus which was there to be seen. He was negligent in crossing the road when the pedestrian signal was against him. I accept is not mandatory but he failed to take care for his own safety by crossing against the signal. Had he looked and had the road been clear and had he had time to cross safely without running then it may not have been negligent to ignore the red man but that is not the case here. The red signal is at least a warning to stop and look and had he done so he would have seen the bus. I find that the Claimant simply ran out into the road in front of the bus. That finding is entirely consistent with the DVD evidence.
83. The lack of evidence from the Claimant means that I cannot reach any conclusion other than what is there to be seen on the camera and to be gleaned from the other witnesses. I do not know where he was going or why. I do not know if he was going to catch a bus. I do not know if he was familiar with the area. I cannot infer that he was confused by the lights or assumed they would be in his favour.
84. The Defendant served a notice to admit facts which is at page 13 in the bundle and with which the Claimant did not comply until I asked a direct question on the first day of the hearing. I granted the Defendant permission to rely on the statement of Mr Neill and the exhibits thereto. I made it clear that I am not concerned with any aspect of the quantum of damages in this case. It was conceded that the Claimant had not given evidence because it was not considered expedient for him to do so where he could not remember the impact itself. It was not being suggested that by reason of any ongoing cognitive difficulty he was not able to give evidence. The Claimant gave evidence at the magistrates' court. Paragraph 11 of Mr Neill's statement indicates that at that hearing the Claimant was shown a copy of the council CCTV footage and simply would not confirm that he was the gentleman seen running in front of the bus. The Claimant's statement for the criminal proceedings is now in the bundle that page 244 a. In light of the Claimant's failure to give evidence at this hearing I am asked to draw an adverse inference.
85. It is submitted on behalf of the Defendant that the Claimant knew that he could not deal with cross-examination. He could not answer any of the questions as to why he did not stop at the signal, see the bus and so on and that in consequence he would have had to have conceded that he was reckless rather than merely negligent. I was urged that I should draw such an inference where the expectation by the court is that Claimant would give evidence and would have evidence to give.
86. The Claimant says that I should not draw such adverse inference. He did give evidence at the magistrates' court, but he was required to do so.
87. Since it is conceded that he is capable of giving evidence and since it is apparent from his statement for the magistrates' court that the Claimant could have given some information at least about where he was going and why, his familiarity with the area and the events leading up to the seconds before the impact it does seem clear that there was an expectation that the Claimant would give evidence. However in light of his now full and frank admission that he was contributorily negligent as pleaded against him and given that I accept that he does not have any recollection of the accident itself it does not seem to me that he would have been able to add anything in particular to the overall case. I agree that the evidence of Mr Neill suggests that the Claimant rather perversely was unwilling (rather than unable) to confirm that the images in the footage are of him. By his concession as to his own negligence he clearly accepts that it does show him. He runs the case on the premise that he is the person involved in the accident shown in the footage. I do not think that there is enough material here for me to be confident that it would be appropriate to draw an adverse inference as requested. I was referred to and take into account the principles set out in Wisniewski v Central Manchester Health Authority [1998] PIQR P324. However as I have indicated I am also not able to make any assumptions or draw any conclusions as to the Claimant's behaviour or the reasons therefore or his thought processes.
88. All I can see of his actions is what is apparent from the footage and from the description of the witnesses and I only have that evidence to act on in reaching conclusions as to who is responsible for this accident.
89. The consequence is I can only reach the bald conclusion that the Claimant is at fault without excuse, mitigation or reason for not looking where he was going, for running, for not seeing the bus, for not stopping, for not heeding or acting upon the red pedestrian signal and in effect for running into the path of the bus.
90. It is apparent that the Claimant was crossing at an angle which took him outside the crossings parameters. In other words he was paying no heed at all to the hazards of the junction. The CCTV footage makes it clear that the Claimant as I find showed a reckless disregard for his own safety.
91. As part of the Claimant's exercise in looking back and then reconstructing a case on negligence (as I find he has done) it was submitted that the driver was not as alert as he should have been. It is clear to me that this was an allegation made somewhat late in the day based upon a review of the CCTV footage which it was hoped would bolster the Claimant 's argument that the driver was not paying sufficient attention to the lights and/or the hazard presented by the Claimant as a running pedestrian. I did view the footage and it is right to say that in the course of the 10 minutes Mr Ahmed yawns on several occasions. He stretches on occasion albeit when the bus is stationary. He has one hand on the wheel from time to time and he slumps forward on one occasion. I also saw him looking in his pocket when the bus was stationary. He coughed. He waved at another bus driver. I saw his facial reaction at the sudden appearance of the Claimant. I also witnessed his attention to passengers.
92. I saw no evidence that he was not sufficiently alert and I so saw no behaviour which I considered to be abnormal. He was paying attention to the lights, to the traffic flow, to his passengers and to another bus driver. He was otherwise driving normally. I accept his evidence that he had had an adequate amount of sleep and was feeling well. I do not find that he was not sufficiently alert.

Case Law

93. I was referred to some principles from the case law. The Defendant relied on the decision in Stewart v Glaze [2009] EWHC 704 (QB) at paragraphs 72 to 76 as well as the decision in Ahanonu v South East London and Kent Bus Company [2008] EWCA Civ 274 at paragraphs 19 and 20 and Sam v Atkins [2005] EWCA 1452 at paragraphs 15 – 17.
94. These cases support the proposition that it is important to ensure that the court does not unwittingly apply the standard of the 'ideal' driver and emphasize "[the] 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 courtroom, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the Claimant's safety than a duty to take reasonable care." Further in Stewart v Glaze, Coulson, J. underlined that it is the primary factual evidence that is of the greatest importance in a case of this kind. While recognizing that accident reconstruction expert evidence can be useful to test the factual evidence and inferences to be drawn from it, he added: "It is, however, very important to ensure that the expert evidence is not elevated into a fixed framework or formula against which the Defendant's actions are then to be rigidly judged with a mathematical precision." In that case, the claimant's case depended on the unspoken assumption that Mr. Glaze should have been watching Mr. Stewart as he walked towards the kerb and as he stepped off the kerb, essentially excluding all other considerations. Coulson, J. said "In my judgment that was not a realistic scenario, it largely ignored the standard of the reasonable driver; and it elevated what might have happened into an assumption of what should have happened."
95. On the issue of apportionment, the Claimant argued that the Defendant should bear the majority of the responsibility and referred me to the case of Satnam Rehill v Rider Holdings Limited [2012] EWCA Civ 628 at paragraph 32 in particular. I accept that when apportioning liability a heavier responsibility may lie on a bus driver given the greater "causative potency" of a bus being driven in a town centre. However, there has to have been some negligence on the part of the bus driver before those considerations become relevant. This concept of "causative potency" is also referred to in the case of Belka v Prosperini [2011] EWCA Civ 623 at paragraph 16, but again this relates to apportionment after each party has been considered to be blameworthy to some extent. There is some further explanation of this idea in Lightfoot v Go-Ahead Group PLC [2011] EWHC 89 (QB) where "It is not simply a case of assessing the comparative blameworthiness of the parties, but of their respective "responsibility for the damage" was quoted as accurate.
96. On apportionment, the Defendant submits that this case falls squarely within the dicta at paragraph 16 in Eagle v Chambers [2003] EWCA Civ 1107 so that the Claimant should bear the greater responsibility as a pedestrian who has suddenly moved into the path of an oncoming vehicle.
97. I agree with the Defendant that the cases of Ahanonu and Stewart are of most relevance to the issues with which I am concerned in this case.

Conclusion

98. By reference to the findings I have already made and applying the case law cited I have reached the clear conclusion that the Claimant was solely responsible for this accident. He accepts he was at fault. He could have avoided this accident. He gave the Defendant's driver no chance to avoid it. He ran into the path of the bus. That is the reality of what is shown on the CCTV footage and the clear impression of the witnesses who were there at the time. I find their evidence to be useful and informative. I do not think it is right to ignore it simply because there is CCTV evidence. The experts have carried out a very close analysis of the details from the footage and with the benefit of hindsight. It would be unrealistic to focus on calculations made in terms of tenths of seconds to decide negligence here. One only has to consider the range of perception reaction times, the unknown rates of even emergency braking and the fact that the calculations are made from the footage to realise the scope for variation. In any event the Claimant's expert still cannot positively conclude that from the first realistic perception of the Claimant as a potential hazard the bus driver could have stopped in time.
99. The Claimant is forced therefore to focus on his allegations of "anterior negligence". Thus reliance is placed on the driver not being alert, failing to stop for the amber light and failing to travel at a speed of less that 25mph. I do not find he was not sufficiently alert. I do not find it was negligent not to stop for the amber light. He was less than 40 metres away when it changed, driving a double-decker bus carrying many passengers, and passed through the advanced stop line before the red light was illuminated. He was travelling within the speed limit and where he says he was driving at 20-25 mph as he had been trained to do it would be a counsel of perfection to say that it was negligent for him to have been driving at 26mph.
100. The Claimant with the benefit of hindsight has attempted to construct a case based on Mr Ahmed's actions leading up to the collision. The fact that different actions would have meant that the accident did not happen does not means that Mr Ahmed's actions were negligent. To take the Claimant's argument to its logical conclusion, for example, had he left the depot five minutes late he would probably have been at the junction five minutes later and there might not have been a collision. However leaving on time could not arguably be negligent.
101. If I am wrong about the lack of liability on the part of the Defendant then for the reasons I have given and by reference to the passage in Eagle v Chambers referred to by the Defendant I would find the Claimant to be 75% contributorily negligent.
102. In the circumstances the Claimant's claim is dismissed.