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Pedestrians On the Pavement v Buses

It has been widely reported in recent years that London buses are involved in two accidents per day. Some of these accidents are claims by pedestrians who have been struck whilst on the pavement by a bus. The recent case of Whyte v Bluebird Buses Ltd [2015] CSOH 56 is a helpful reminder of the principles to apply when considering a collision between a pedestrian on the pavement and a bus.

Mr Whyte was a school boy aged 13 at the time of the accident and he sued the Bluebird bus company for injuries sustained when a bus driver encroached over the edge of the pavement. The accident occurred in Scotland which has one of the highest road traffic accident rates in Europe. Liability was denied and there was a full trial. The evidence was that the boy had been standing on the edge of the bus stop kerb and that the top half of his body was overhanging the road.

It was held that the driver was not negligent in driving the bus so as to overhang the kerb, but that he had driven the bus too close to the kerb and, bearing in mind that he had seen the boy earlier on his approach, such driving had been negligent. The Court suggested the bus ought not to have been driven in such a way as to hit someone on the kerb, even had the child stood at the edge of the kerb, he was entitled not to be struck by a vehicle while he was on the pavement. It was held that he was not contributory negligent in view of his age.

This case affirms the principles set out in the case of McEwan v Lothian Buses Plc [2014] CSIH 12, which concerned a successful appeal where a pedestrian was struck on the head by a wing mirror of a bus driver whilst he was walking on the pavement. He succeeded on his claim with no reduction for contributory negligence. It was held that it should be anticipated by a driver that a pedestrian might move towards the kerb as the bus driver pulled in. The Judge gave the following useful guidance at paragraph 22:

"He was on the foot pavement where, as a pedestrian, he was entitled to be and prima facie not at risk of being struck by a motor vehicle. We are of the opinion that it is reasonably foreseeable in the circumstances of this case that a pedestrian walking within about a metre of the edge of a pavement may, at any time, change direction and come to the edge of the pavement. In the circumstances of this case, the duty of a driver is to take reasonable care by driving at a speed, manner and position to avoid hitting a pedestrian with part of the bus encroaching over the pavement. Obviously such a prima facie case of negligence may be displaced in a particular case depending on the evidence."

These cases are in line with the case of Osei-Antwi v South East London & Kent Bus Company [2010] EWCA Civ 132, where the Claimant appealed against a decision that she was contributory negligent for an injury caused by a bus driver when she was standing on the pavement whilst waiting to cross a road. The rear of a bus had mounted the pavement while it was turning the corner into the road and collided with her causing her injury. The bus company had argued that the Claimant had taken an obviously dangerous position on the pavement and had failed to keep a proper look out. The Judge agreed and found her one-third contributory negligent. The Court of Appeal allowed the appeal and found the Claimant had been standing on the pavement, several inches back from the edge of the road and she was not obliged to move further back. She was not contributory negligent.

All of these cases support the original authority in this area of Chapman v Post Office [1982] RTR 165, where the Claimant was stood on the kerb when she was struck by the wing mirror of a Royal Mail van. At first instance the Judge apportioned blame equally. Upon the Appellant's appeal it was held that a pedestrian was not negligent if he stood on the kerb. The Master of the Rolls held:

"It seems to me that the finding of the judge simply cannot stand. I see no reason why a person standing on the kerb is guilty of negligence at all: even if she leans out or has her back turned to the oncoming traffic. Even if she went an inch or two into the roadway, I cannot see that that would amount to negligence in the slightest. The very fact that a van driver hits with his wing mirror a lady standing legitimately on the kerbside."

Therefore, in the pedestrian's on the pavement v bus cases, it is hard to displace the prima facie case that the bus driver is negligent where the driver collides with a pedestrian on the pavement. This would appear to be the case even where a young boy, as in the case of Mr Whyte, was leaning out into the road. However, all cases turn on their own facts, and the presumption can be displaced.