Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 192
PD1842/11	OPINION OF LORD DOHERTY in the cause PETER BROWN Pursuer; against FIRST GLASGOW LIMITED Defenders: ________________

Pursuer: Middleton; HJB Claims LLP, Solicitors

Defenders: Pugh; Simpson & Marwick, Solicitors

21 December 2012

Introduction

[1] In this personal injuries action the pursuer claims damages in respect of injuries sustained by him in a road traffic accident on 29 August 2008. On that date he was working as a delivery driver. He had stopped his delivery van next to shops in Carmunnock Road, Glasgow. He had double parked in the southbound carriageway because there were vehicles parked next to the kerb. He put his hazard warning lights on. He went into a customer's shop. On leaving the shop he went to the rear of the van. At about 07.38 he opened the offside double door at the rear of the van outwards towards the centre of the road. The offside wing mirror of a double decker bus travelling northwards struck the door. The pursuer was knocked to the ground by the door as it swung back.

[2] The bus was driven by the defenders' driver, Christopher Taylor. Just prior to the collision he had pulled into a bus stop on the northbound carriageway. Cars had been parked close to the bus stop with the result that he had been unable to pull in next to the kerb. When he pulled out of the bus stop he drove out in an arc in order to keep clear of cars parked to the north of the bus stop.

[3] I heard evidence from the pursuer, Mr Taylor, and from two road traffic accident investigation expert witnesses, Mr John Marshall and Mr John Alexander. I also had the benefit of CCTV images, and a dvd, from cameras fitted to the bus.

[4] Certain matters were uncontroversial. It was common ground (i) that when the pursuer was making his way from the shop back to his van he was aware that the bus was at the bus stop; (ii) that the pursuer had not checked that there were no vehicles approaching him on the northbound carriageway before he opened the door; (iii) that the bus was being driven slowly (at 10 mph or less); (iv) that the bus driver had no time to react to avoid the collision with the door. In the event of liability being established damages were agreed (on a full liability basis) at £12,500 inclusive of interest to the date of the proof.

The evidence relating to controversial matters

[5] The pursuer indicated that when he came out of the shop he could see, to his left, the tail end of the bus at the bus stop. At the time of impact he had not opened the door fully. He estimated he had opened it through about 135 degrees. That was his normal practice. The outer edge of the door remained in the southbound carriageway. He had stopped to look north behind him to check if the road was clear of traffic, but he had not yet looked south. He had opened the door to that extent without looking south because the door was still "well within" his side of the road. He accepted that had he looked he would have seen the bus approaching, but he suggested that he would still have felt there was room to open the door as there was no need for the bus to cross the centre line.

[6] Mr Taylor had been a bus driver since 1983. He assisted with the training of newly qualified bus drivers. He was very familiar with Carmunnock Road. Just before the accident he had stopped at the northbound bus stop opposite the shops. He was unable to pull in properly to the kerb because of parked vehicles before and after the bus stop. The bus was about 3 or 4 feet from the kerb. He saw the pursuer's delivery van double parked on the other side of the road about a bus length or so in front of him. Its hazard lights were on. He did not see anyone in the cab or at the van. It was common for vans to make deliveries to the shops. He had not expected a rear door to be suddenly thrown open. There were often doors on the side of such vans. As the bus had not been fully into the kerb at the bus stop it was easier for Mr Taylor to pull back out on to the road. There was not much "end swing" on the bus. He had to steer clear of cars parked to the front of the bus stop. He believed the rear of the bus would have been about a foot from them when he passed them. He accepted that the CCTV images showed a gap of at least three or four feet between the nearside front of the bus and the first parked car as he passed it, but he maintained that that clearance was necessary for safety and to ensure that the back of the bus cleared the car. He accepted he had gone on to the centre line of the road as he drove back out. He did not think he had crossed it, but if he did it would have been in order to clear the parked cars in front of the bus stop. He said he would have had to have pulled back to his own side of the road to clear the van safely. He had been using the available road. It had been a standard pull out from a bus stop. It had not been a particularly difficult manoeuvre. In any event he had pulled the bus back in by the time it got to the van's wing mirror. His recollection was that the side of the van was about a foot or two from the centre lines, but when the CCTV images were put to him he conceded it was possible it was a bit more than that. As he approached the back of the van the door "just came round with no warning and hit the mirror". He volunteered that he thought the door may have hit the stalk which attached the wing mirror to the bus (because if it had hit the mirror he believed it would have been moved out of position, but it had not been).

[7] Mr Marshall spoke to the road being about 12.5 m wide from kerb to kerb. The pursuer's van was about 2.33 m wide. When open to 180 degrees the offside rear door would add 1.04 m to the width of the van. The body of the bus was 2.6 m wide. The offside wing mirror projected a further 21.5 cm. The wing mirror on the near side projected less. The base of each wing mirror was about 1.8 m above the ground. The total width of the bus including wing mirrors was 3.03 m. A CCTV image a short time after the accident showed the open door when it was in about a 180 degree position. The outer edge of the door was very close to, but did not quite reach, the centre line of the road. The visual gap between the side of the van and the centre line appeared to be a little more than a metre. On the basis of the CCTV images Mr Marshall confirmed that the bus took an arced route out of the bus stop. The gap between the front nearside of the bus and the car to the front of the bus stop appeared to be at least 1.22 m, and was probably more. The front offside of the bus headed slightly into the opposing lane and then turned back into its own lane. At the point of impact the door had been opened wider than 135 degrees, but not as far as 180 degrees. Mr Marshall did not see any need for the bus to have crossed into the opposing carriageway. In his opinion the bus could have pulled out without doing so. It was reasonably foreseeable that something might be happening at the back of the van. By leaving the clearance he had on the nearside, and driving as close as he had to the van, Mr Taylor had not taken enough account of the potential risks on the offiside.

[8] Mr Alexander's measurements were very similar to Mr Marshall's. He estimated the van to have been just over a metre from the centre lines. He considered the impact to have occurred near to the centre lines, with the open door at almost, or at, 180 degrees. Under reference to the CCTV images he accepted that the offside of the bus had crossed the centre line - he thought by about 10 cm - but had come back on to the line before the impact. He did not think the offside would have been in the opposing carriageway at the time of impact, but the wing mirror would have been. The gap left between the front offside of the bus and the parked car seemed to him to have been rather wide. He did not believe that it had been necessary for the bus to have crossed the centre line. He considered that a careful driver could have carried out the manoeuvre remaining in his own carriageway. He did not think the possibility of the van door being opened in his path was something Mr Taylor ought to have anticipated. He advised that in 40 years he had never encountered such an accident.

The parties' submissions

[9] Mr Middleton submitted that Mr Taylor had been negligent in crossing the centre line and in steering the bus so close to the van. He did not require to do so. He had given the parked car too much clearance with the result that he gave the van too little clearance. A reasonably careful driver should take reasonable care to maintain his vehicle on his own side of the road. It was obvious that there might be activity at the rear of the van. The open door did not reach as far as the centre line. It had not been opened as far as 180 degrees at the time of impact. The wing mirror, and probably the offside of the bus, were over the centre line at the time of impact. The pursuer had not checked the road was clear before he opened the door, but had the bus not intruded into the opposing lane the accident would not have happened. In those circumstances, if there was any finding of contributory negligence on the pursuer's part, the defenders should bear the major share of responsibility for the accident.

[10] Mr Pugh submitted that the defenders should be assoilzied. Any encroachment into the opposite carriageway had been minor. Mr Taylor's evidence that he had required to drive as he did, and had used the road available to him, should be accepted. He had not driven negligently. The accident had been caused through the sole fault of the pursuer. He had opened the door suddenly into the path of the bus, without looking to see that it was safe to do so. Had he not done that the accident would not have happened. In the event that Mr Taylor was at fault to any extent, the pursuer's contribution to the accident, and his blameworthiness, far exceeded Mr Taylor's.

Discussion

[11] I accept the evidence that at the point of impact the door had been opened a good deal beyond 135 degrees but had probably not quite reached 180 degrees. In this regard I find the evidence of Mr Marshall, Mr Alexander and the CCTV evidence to be more reliable and persuasive than the pursuer's recollection. From the same sources I think it clear that the van was probably just over a metre from the centre lines (from the images it seems to me to be likely that when in the 180 degree position the edge of the door was still of the order of a few inches from the adjacent white line); that Mr Taylor left clearance of at least 1.22 m between the front nearside of the bus and the first parked car as it pulled out past it; that the offside of the bus crossed the centre lines (by significantly more than the 10 cm suggested by Mr Alexander); that it was still on the pursuer's side of the road very shortly before the impact but was returning to its own side of the road; that at the time of the collision the offside of the bus is likely to have been on the white line or marginally over it on the pursuer's side of the road. I accept Mr Marshall's evidence that the bus ought to have been positioned further over to its nearside on the road. I think it clear from the CCTV images (including the images taken from the upper deck) that there was a very considerable gap between the bus and the nearside parked cars just before, and at the time of, the impact.

[12] I am in no doubt that to a very large extent the pursuer was the author of his own misfortune. He was aware of the presence of the bus at the bus stop. He knew or ought to have known that it was a wide vehicle which might require to be driven in the vicinity of the centre line. Notwithstanding this, he opened the door to a position close to the centre of the road without checking if it was safe to do so. I formed the clear impression from the content of his evidence, and the manner in which he gave it, that he regarded himself as entitled to do so (without having taken the precaution of checking) because he was still on his side of the road. In doing what he did he failed to take reasonable care for the safety of other road users.

[13] However, I also consider that Mr Taylor's driving did contribute to the accident's occurrence. I think it plain from the evidence of Mr Marshall, Mr Alexander and the CCTV images that he drove closer to the van than he need have, and intruded on to the other carriageway. Of course, had the pursuer not opened the door suddenly all would have been well - there would have been a gap of at least 2 feet between the edge of the mirror and the side of the van. Nonetheless, in the circumstances, Mr Taylor ought to have been alert to the possibility of activity at the rear of the van, and ought to have take greater care to keep to his own side of the road. I accept the evidence that he could have done so.

[14] While I find Mr Taylor to have been at fault, the pursuer's breach of duty was far more blameworthy than Mr Taylor's. Mr Taylor made an error of judgement in deciding how much clearance to give to the potential hazards he faced on his nearside and his offside. In striking that balance he fell below the standard of a reasonably careful driver, but he did not court obvious danger. On the other hand, opening the door as the pursuer did, without checking it was safe to do so, was much more egregious. In the circumstances damages awarded to the pursuer will be reduced by 80 per cent on account of his contributory negligence.

Decision

[15] I shall pronounce decree against the defenders in favour of the pursuer in the sum of £2,500 damages, with interest thereon at the rate of 8 per cent per year from the date of decree until payment. I shall reserve all questions of expenses.