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ROKSANA GAJDAMOWICZ AGAINST (FIRST) FIRST GLASGOW LIMITED AND (SECOND) KEITH MOFFAT


Submitted: 13 July 2017

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

IN THE ALL-SCOTLAND SHERIFF COURT

 

[2017] SC EDIN 43

PIC-PN1745-16

JUDGMENT OF SHERIFF FIONA LENNOX REITH, QC

 

In the cause

 

ROKSANA GAJDAMOWICZ

 

Pursuer

 

Against

 

(FIRST) FIRST GLASGOW LIMITED and (SECOND) KEITH MOFFAT

 

Defenders

 

Pursuer:   McCaffery, Advocate; Digby Brown, Solicitors, Edinburgh

Defender:   Cleland, Advocate; Clyde & Co, Solicitors, Edinburgh

 

Edinburgh, 13 July 2017

The sheriff, having resumed consideration of the cause, finds in fact:

(1)        The pursuer is 24 years of age.  She is employed as a sales person.  She was born in Poland.  She has lived in Scotland since 2006.  She learned to ride a bicycle when she was a child.

(2)        In August 2014 she was living and working in Glasgow.  She was used to commuting to and from work by bicycle in Glasgow.

(3)        At about 8.20 pm on 30 August 2014 the pursuer was cycling along London Road, Glasgow in a westerly direction.  She was making her way home after having visited a friend.  She was wearing a safety helmet.  She was also wearing earphones.

(4)        The pursuer had not previously cycled along London Road.  However, prior to setting out on said date, she had checked Google Maps to see where the bus lanes were. 

(5)        At about 8.20 pm on said date the pursuer brought her bicycle to a halt at traffic lights on London Road at the junction with Arcadia Street.  The pursuer was positioned in the cycle lane to the left-hand side of the road close to the kerb.

(6)        A bus, registration number YN53 EFP (“the bus”) owned and controlled by the first defenders, was travelling in the same direction on London Road.  It was being driven by the second defender on the number 18 route.  The bus also came to a halt at the traffic lights.  It drew up behind a car at the lights.  The car was next to the pursuer at the lights.  There were two westbound lanes at this point.  The car and the bus were both on the inside of the two westbound lanes.  There was a second car in the outside westbound lane.  The bus was accordingly positioned behind and to the right of the pursuer when they were waiting at the lights.

(7)        The bus was a Volvo B7TL double-decker bus.  It was 10,691mm long, 2,516mm wide, 4,295mm high and 12,240 kg in weight.

(8)        Number 6/4 of process is a copy disk of CCTV footage taken from the bus and relating to the accident hereinafter referred to.

(9)        Number 5/20 of process is a copy disk of edited CCTV footage from number 6/4 of process.  The footage was taken from on-board cameras including a camera located at the front of the bus facing out of the front windscreen of the bus and a camera located near the front door of the bus facing out to the nearside of the bus.

(10)      The on-board camera at the front of the bus was located approximately in the centre of the front of the bus facing out of the windscreen.  It was angled to the left-hand side of the bus.

(11)      There were passengers, including standing passengers, on the bus.

(12)      When the traffic lights turned to green the pursuer set off in a westerly direction across said junction towards the city centre.  The bus followed shortly after the pursuer had set off.  The car in the inside westbound lane moved off across the junction ahead of the pursuer.  The second car in the outside westbound lane then also moved off, overtaking the pursuer. 

(13)      When the pursuer was crossing the junction, she moved to the right by a small amount.  It is likely that this was due to the offset of the kerb line from the traffic lights to the kerb line of the continuation of London Road at the other side of the junction.

(14)      Once beyond the junction and into the continuation of London Road the pursuer then readjusted to her left again for a short time so that she was just to the right of the double yellow lines on the left-hand side of the road.

(15)      Beyond the junction of London Road and Arcadia Street the westbound carriageway of London Road became a single wide westbound lane about 6.5 metres wide for a short distance.  It was separated from two eastbound lanes by centre white lines.

(16)      A short distance after the continuation of London Road beyond the junction of London Road and Arcadia Street the said single wide westbound lane split into two westbound lanes.  The left-hand, inside, of the two lanes became a marked lane restricted to buses, taxis and bicycles.

(17)      There was a merge right arrow painted on the road surface shortly before the start of the left-hand, inside, westbound lane dedicated to buses, taxis and bicycles.  The merge right arrow directed traffic to the right-hand, offside, westbound lane travelling towards the city centre.

(18)      Shortly before the merge right arrow the pursuer steered to her right towards the start of the right-hand, offside, westbound lane.  She undertook this manoeuvre in under two seconds. 

(19)      The pursuer did not check for traffic, such as the bus, coming up behind her or signal her intention to steer to the right before she undertook said manoeuvre.

(20)      The pursuer was at no stage aware of the bus.  It is likely that this was because the pursuer was wearing earphones.  It is likely that she would have heard the bus, and would have been aware of it coming up behind her, had she not been wearing earphones. 

(21)      After the bus crossed the junction behind the pursuer into the continuation of London Road it moved to the right-hand side of said single wide westbound lane.  The second defender was preparing to overtake the pursuer.  As he was doing so, without prior warning and without having checked for traffic such as the bus coming up behind her, the pursuer steered her bicycle to the right and into the path of the bus.  It is likely that the pursuer was intending to make her way to the right-hand, offside, westbound lane as directed by the merge right arrow. 

(22)      When the pursuer steered to the right the second defender in turn steered the bus further to the right when overtaking the pursuer.  However, the pursuer’s bicycle struck the front nearside corner of the bus.  As a result, the pursuer and the bicycle were knocked to the ground.  As a result, the pursuer sustained loss, injury and damage.

(23)      There would have been sufficient room within the said single wide westbound lane for the bus to overtake the pursuer safely without having to cross the centre white lines if the pursuer had not steered to the right into the path of the bus coming up behind her.

(24)      The bus was travelling at about 15 miles per hour.

(25)      After the pursuer’s bicycle had struck the front nearside corner of the bus, the second defender pulled the bus into the left-hand side of the road in the nearside bus lane which had commenced shortly after the merge right arrow.  He brought the bus to a halt prior to the next bus stop.  He alighted from the bus and went to the pursuer’s aid. 

(26)      The second defender phoned for an ambulance.  He removed the pursuer’s helmet upon advice from the emergency services as she was bleeding.  He tried to speak to the pursuer.  To do so he removed earphones which the pursuer was wearing in both ears.

(27)      The second defender had not been intending to stop at the next bus stop located beyond the location of the said accident.  There had been no-one signalling to get on or off the bus there.

(28)      It was not established that the second defender failed to allow sufficient room between the bus and the pursuer’s bicycle when he was overtaking her.

(29)      The second defender had insufficient time to avoid colliding with the pursuer when she steered right into the path of the bus without prior warning and without checking for traffic coming up behind her. 

(30)      Had the pursuer continued to cycle straight ahead, and had she not without prior warning steered to the right and into the path of the bus when the second defender was overtaking her, there would have been no collision between the pursuer’s bicycle and the bus.  

(31)      There was enough room within the said single wide westbound lane for the bus to overtake the pursuer safely without having to cross the centre white lines.

(32)      The loss, injury and damage which the pursuer sustained as a result of the said accident, inclusive of interest to date of decree, was £30,000. 

 

Finds in fact and law:

  1. The pursuer has failed to prove that the first and second defenders were negligent at common law.
  2. The accident was solely caused by fault and negligence on the part of the pursuer.
  3. The first and second defenders are entitled to be absolved from liability.

Therefore, assoilzies the first and second defenders from the craves of the initial writ; finds the pursuer liable to the first and second defenders in the expenses of the cause; allows an account of expenses to be given in and remits the same, when lodged, to the auditor of court to tax and to report; sanctions the cause as suitable for the employment of junior counsel.

 

Note

Introduction

[1]        This is a case in which the pursuer seeks reparation for injuries sustained by her when her bicycle was in collision with a bus owned and operated by the first defenders which was being driven at the material time by the second defender.  Quantum was agreed at a figure of £30,000, inclusive of interest until the date of decree, in the event of the defenders being found liable to the pursuer and subject to any finding of contributory negligence on the part of the pursuer for the collision.  The proof was accordingly restricted to the question of liability.  The pursuer’s claim was based on a breach of the common law.  The defenders pled that the accident was solely caused or at least contributed to by the fault and negligence of the pursuer.

[2]        Medical evidence was agreed.  A joint minute entered into between parties also agreed details in relation to the bus, photographs of the locus of the accident, CCTV footage taken from cameras located in the bus and evidence taken on commission from PC Mark Augaitis.  The pursuer gave evidence on her own behalf and led evidence from Mr Steve Parkin, an accident reconstruction specialist, and from Mr Thomas Gillespie who was driving another bus behind the bus being driven by the second defender.  The second defender, Keith Moffat, was led in evidence on behalf of the defenders.  Evidence had also previously been taken on commission from PC Mark Augaitis, but neither party founded on his evidence in submissions.

 

The averments

[3]        The pursuer averred in statement of fact 4: “The front of the bus struck the rear of the pursuer’s bicycle.  The pursuer was knocked from her bicycle onto the ground”.  She further averred: “Had the second defender driven his vehicle at an appropriate distance from the pursuer’s bicycle and allowed sufficient room before attempting his manoeuvre the collision would not have occurred”.

[4]        In statement of fact 6 the pursuer averred that her claim was based on the second defender’s breach of his common law duty to take reasonable care for the pursuer, and for which the first defenders were said to be vicariously liable.  She admitted that there were duties of reasonable care incumbent on her in respect of her own safety. 

[5]        The defenders averred in answer 4:

“Suddenly and without warning the pursuer then swerved her bicycle to her offside into the path of the first defender’s bus.  The pursuer did not provide any signal nor did she look behind her before moving into the path of the first defender’s bus.  There was insufficient time for the second defender to avoid colliding with the pursuer… Had the pursuer ridden her bicycle at an appropriate distance from the first defender’s bus and had she not manoeuvred into the path of the oncoming bus without warning, the collision would not have occurred”.

 

In answer 6 the defenders averred that the accident was solely caused by fault and negligence on the part of the pursuer, or at least materially contributed to by her.

 

Summary of evidence for the pursuer

Pursuer:

[6]        The pursuer’s recollection was adversely affected by her having suffered retrograde amnesia as a result of the accident.  Her evidence was, therefore, in effect based on what she viewed from edited CCTV footage in relation to the accident and the minutes preceding the accident played while she was giving evidence and which she had first viewed a few days before the start of the proof.

[7]        The pursuer’s position was to the effect that, after crossing the junction with Arcadia Street and having readjusted to her left-hand side again close to the kerb, she had been intending to continue cycling straight ahead into the bus, taxi and cycle lane ahead and to stay about 1m from the kerb.  She entirely rejected the suggestion that she had been intending to make her way into the right-hand offside lane ahead after the merge right arrow painted on the road surface shortly before the start of the left-hand inside lane dedicated to buses, taxis and bicycles.  She accepted that she had at no stage been aware of the bus coming up behind her.  She denied that she had been wearing earphones.  However, she did not now have any recollection of the accident.  She gave evidence to the effect that she had had a recollection of the bus lane coming up and of having wondered if there was a bus behind her and that she had had to turn her head to see if there was a bus.  This was a memory which had she said come back to her following therapy about 18 months after the accident.  She did not recall having seen the bus though.  The pursuer agreed - from having been shown passages and still frames from the edited CCTV footage - that following the collision the bus had gone to the left and had stopped at a bus stop.  The footage was paused at 20:18:50 during the course of her evidence.  This was in fact the very last frame on the edited version of the CCTV footage, number 5/20 of process.  This frame, therefore, showed a still image, and the pursuer’s interpretation of it was that it showed two pedestrians at the bus stop.  The footage was then replayed for a short time from just before the still image and back up to the still image and, from what she viewed, the pursuer said that her assumption was that the two people shown in the brief footage were walking towards the bus and agreed that it seemed that they had been walking towards the end of the pavement onto the kerb.  However, I have to say that, from my viewing of the edited CCTV footage which was played in the course of evidence of a number of witnesses, I did not feel that I could be satisfied that the pursuer’s interpretation and assumption was correct.  The edited CCTV footage was edited so that it came to an end at 20:18:50.  It, therefore, did not show what if anything the pedestrians did, or where they went, after that point.

[8]        In cross-examination, the pursuer confirmed that she was familiar with the Highway Code, including rule 67 which provides: “You should – look all around …before turning or manoeuvring to make sure it is safe to do so.  Give a clear signal to show other road users what you intend to do…be aware of traffic coming up behind you”.  The pursuer did not accept that the edited CCTV footage showed that she had veered to the right after crossing the junction with Arcadia Street.  She denied that she had been heading to the right-hand, offside, westbound lane following the direction of the merge right arrow painted on the road surface just ahead of her.  She maintained that she had turned her head to check if a bus was coming up behind her.  She accepted that she had not indicated that she was steering to the right, explaining that this was because she had been planning to go straight ahead.  Her position was that she would have indicated if she had been coming out to the right.  She did not appear to me to accept that the edited CCTV footage showed her steering to the right just before the merge right arrow.  She said that she did not recall wearing earphones, explaining that she did not listen to music and that she was not a musical person.  She had not been aware of, or heard, the bus at any point.

 

Mr Steve Parkin:

[9]        Mr Parkin confirmed that he was an accident reconstruction specialist (although he did not in fact reconstruct the accident in the present case) and that he had prepared the report, number 5/21 of process.  He gave evidence about the layout of London Road and the junction with Arcadia Street, and just after the junction where the accident occurred.  The centre white lines beyond the junction had had the configuration 4, 2, 4.  This signified that each white line was about 4m long with a space of about two metres between each white line.  He confirmed that they could not help accurately to determine distances, but that they could help provide broad estimates.  His report had contained some stills from the CCTV footage.  He was shown the edited CCTV footage, number 5/20 of process, in the course of his evidence.  He gave evidence to the effect that, when the pursuer had crossed over the junction with Arcadia Street, his impression was that she had started to steer to the right and that she had been heading for the outer of the two westbound lanes as though she had been trying to merge in line with the merge right arrow even although she did not need to do this.  It was put to him by Mr McCaffery for the pursuer that her evidence was that she had been intending to continue into the bus lane, and Mr Parkin was asked if, from what he had seen on the CCTV footage, he agreed with this.  Mr Parkin commented that one could not tell from the CCTV evidence whether the pursuer had “veered” (his word) unintentionally.  Mr Parkin described the centre white lines as hazard warning lines, but said that a driver was allowed to cross them if there was any need to do so.  The pursuer would have been in the view of the bus driver for all of the time he was behind her.  Mr Parkin confirmed that he had assumed from watching the CCTV footage that the pursuer had been heading for the right-hand, offside, westbound lane.  He commented: “It looked as though it was an intentional steer”.  However, he confirmed that his assumption about this could be incorrect if the pursuer’s evidence were to be accepted.  He was then taken through rule 163 of the Highway Code which reads inter alia: “… give motorists, cyclists and horse riders at least as much room as you would when overtaking a car”.  Mr Parkin was asked for his view - from what he had seen of the CCTV footage from the cameras within the bus as regards the positioning of the bus and the bicycle just before the collision - he replied that this was “somewhat difficult to judge”.  He explained that this was because one would need to know precisely where the camera was mounted and how wide angled it was.  He went on to say that his “impression” was that the bus had been “relatively close” to the bicycle.  He agreed that, as a cyclist, the pursuer was a vulnerable road user.  The single wide westbound lane was about 6.5m wide.  He thought that the bus would probably have been about 2.5m wide.  After the pursuer had steered to the right, Mr Parkin confirmed that – from his viewing of the CCTV footage – the bus had then steered to the right in an attempt to avoid collision.  He thought that the point at which the bus and the bicycle had collided was probably the front nearside corner of the bus.  He was told that it was said by the defenders that the pursuer had given no signal and that she had moved into the path of the bus, and he was asked if what he had seen would be consistent with the pursuer moving into the path of the bus.  He replied that the pursuer was seen to steer to the right and that she was not seen to look over her shoulder or to give a signal.   He added: “It must be that she is moving into the path of the bus.  She moved to the right, the bus then moved to the right”.  There was then the collision at the front nearside corner of the bus.  He agreed that this was consistent with the pursuer having moved into the path of the bus.  Mr Parkin confirmed that, if the pursuer had intended to continue cycling straight ahead, she would not have required to give any signal or to have to turn round to look behind her.  Mr Parkin confirmed that there did not appear to be any traffic on the other, eastbound, side of the road beyond the centre white line.  On being asked if he could estimate how close the bus “might” have been to the pursuer’s bicycle at the point when the pursuer had steered to the right and the bus had steered to the right, Mr Parkin responded that it would be necessary to combine footage from the two cameras on the bus and that this gave the “impression”, which he described as being “very much an estimate” of “perhaps” of the order of three feet.  By contrast, in looking at the photograph accompanying Highway Code rule 163, he estimated that the distance between the car and the cyclist in the photograph there was about five feet.  Even with the centre white hazard lines, the bus could have crossed over the white lines to overtake the pursuer.  There was no traffic approaching from the opposite direction.  This would have provided “more space” for the pursuer. 

[10]      In cross-examination, Mr Parkin confirmed that he was not an expert cyclist or an expert driver and that, in his evidence, he had been giving his “impressions from the CCTV footage” from his perspective as a driver.  He confirmed, on being shown the CCTV footage, that the pursuer had seemed to be cycling in a reasonably straight line but that, in two seconds, she had deviated from this to move to the right.  He agreed that at this point the collision was about to happen.  He agreed that, if the westbound carriageway was about 6.5m wide and, if the bus was about 2.5m wide, there could have been two buses side by side safely in that carriageway leaving about a 1.5m space.  He also agreed that there was, therefore, no need to cross over the centre white line for a bus to pass another bus or a car, or a vehicle such as a bicycle.  On being asked if he knew where the camera was on the bus, he said that he had been told that it was on the dashboard in front of the driver.  He confirmed that the pursuer would have had no need to steer to the right if she had intended to stay in the bus lane ahead but that, if she had wanted to move to the offside lane, she would have required to move over to the right, and that, in that event, she should have given an indication to other road users that she was doing so and that she should have checked that there was nothing coming from behind her.  Mr Parkin was asked whether he agreed with the pursuer’s position that she had not deviated and he responded: “I think that she definitely steers to her right”.  Mr Parkin confirmed that, if the collision had been with the front of the bus, the pursuer would have been knocked forward (which she was not).  He agreed that, given the length of the bus and given that the pursuer had been steering to the right, it was likely that she would still have struck the bus even if it had been slightly further out, if it had not been for the steering of the bus.  He agreed that a collision would have been inevitable if the pursuer had kept steering to the right and if the bus had not then steered to the right.  He was asked about the pursuer’s position that she had not heard the bus and he commented: “Buses are really quite loud”.  He agreed that, if she had stuck to her path (of going straight forwards) and gone into the bus lane, there would have been no collision.

 

Thomas Gillespie

[11]      Mr Gillespie told the court that he was employed as a driver with Park’s of Hamilton but that, as at 30 August 2014, he had been employed by the first defenders as a bus driver.  On that date he was driving a bus on the 263 route along London Road behind the bus being driven by the second defender on the number 18 route.  He also saw the pursuer on her bicycle at the junction of London Road with Arcadia Street.  After the traffic lights at the junction turned green he saw the bus being driven by the second defender move to the outside, right-hand, lane.  He saw the collision between the bus and the pursuer’s bicycle just past the junction with Arcadia Street.  He thought that the bicycle had collided with the bus.  He told the court that the pursuer was turning the bike to the right as if she was saying: “This bus is not getting past me”.  He saw her handlebars turning to the right as if she was moving to the outside (right-hand) lane.  He added: “She hit the back of the bus because she turned out”.  He had also driven a bus on the number 18 route.  On the bus he had driven, the on-board camera had been in front of the driver, namely in front of the steering wheel of the bus in the middle of the dashboard in front of the driver.  It had, therefore, been positioned to the right-hand side at the front of the bus.  Mr Gillespie thought that the pursuer had come out and hit the bus.  He said that there was not much that he would have done differently to what the second defender had done.  He was asked whether he had been able to tell if the bicycle had collided with the bus.  He replied: “I think it is 50/50.  They both could have done things differently”.   He told the court that the bicycle was quite far away from the kerb and that, if she had been close to the kerb, he thought that the collision would not have occurred.  He then added: “I think that the bus driver was in a perfect position”. 

 

Summary of evidence for the defenders

Keith Moffat:

[12]      Mr Moffat, the second defender, had been a bus driver with the first defenders for about three years by the date of the accident.  He was now a taxi driver.  It had been his choice to make this change.  He was aware that a driver should give a cyclist plenty of room when overtaking and that there should be at least a car’s width between them.  He confirmed that he was driving the bus concerned on the number 18 route on 30 August 2014.  This was a double-decker bus.  He had driven on that route regularly almost every day for about a year.  He described stopping behind a car at the traffic lights at the junction of London Road with Arcadia Street.  He had been aware of the pursuer on her bicycle to his left in front of him at the junction.  When the traffic lights turned green he moved off and pulled out into the right-hand westbound lane.  He was moving over to the right to overtake the pursuer’s bicycle.  He was not intending to stop at the next bus stop at the other side of the junction as no one was signalling to get on or off the bus.  He described how he had pulled out to overtake the pursuer and that, as he was about to go past her “She just turned right.  She came out and I clipped her on the left”.  When asked how much of a gap had been between the bus and the pursuer’s bicycle when overtaking, he responded “At least a car’s width”.  At this point, he was asked to view the edited CCTV footage, number 5/20 of process.  Mr Moffat told the court that, on the bus he had been driving that day, the camera at the front had been positioned in the centre of the dashboard of the front of the bus and that there had been another camera on the nearside of the bus.  He confirmed that the bus had been about 2.5m (or about eight feet) wide.  The camera at the front had been in the centre of the front of the bus and not centred in front of the driver’s part of the dashboard.  He confirmed that some buses have cameras in different locations.  He was asked about Mr Gillespie’s experience of a bus on the number 18 route when he had said that the front camera had been in front of the driver, and responded: “I am sure it was to my left”.  He then viewed the edited CCTV footage.  He had not seen it before.  He confirmed that he had not been intending to stop at the next bus stop after the junction and that, if he had been stopping at the next bus stop, he would not have overtaken the pursuer.  In that event, he would have stayed behind the pursuer’s bicycle as it would not have been safe, and there would not have been enough time to have overtaken her and then pull in again at the next bus stop.  It had seemed to him that the pursuer had been heading towards the bus lane which was coming up.  He had, therefore, thought that he had had plenty of room to go past her.  He then saw her turning right towards the front of the bus.  He agreed that this had happened in less than two seconds.  She was coming right in front of the bus.  She now seemed to be heading towards the right rather than towards the bus lane.  She did not turn her head to look.  He added: “I don’t think she knew I was behind her”.  He went on to say that, if she had turned her head, she would have seen him and would not have turned right, and would not have made the manoeuvre.  He confirmed that he had overtaken bicycles before that lots of times.  It was a regular occurrence.  He said that the bus was in the right-hand lane.  Before the pursuer steered to the right he was moving right towards the centre white line to overtake her.  He thought he had given her plenty of room.  He thought he had given her the full lane to herself to the left, as he put it.  He confirmed that, with the westbound carriageway being 6.5m wide and the bus being about 2.5m wide, he could have overtaken another bus and that he would not have required to cross the centre white line to do that. 

[13]      Mr Moffat went on to give evidence to the effect that, when he was about to pass the pursuer, he saw her turning right out of the corner of his eye and so he pulled to the right and then, after the collision, he went in to the left and pulled up at the side of the road so that he could go to help the pursuer.  He called the emergency services.  He had been going at about 15 miles per hour.  The pursuer’s bicycle had hit the front nearside corner of the bus.  She had been wearing a helmet.  She was lying in the road unconscious.  He took the earphones out of both ears to talk to her.  He was trying to reassure her that she was going to be fine as she might have been able to hear him.  He was 100% sure that she had been wearing earphones.  He had taken them out of both ears.  They were “in ear” ear buds.  He could not think of anything he could have done differently to avoid the collision.  The pursuer had come across his path without any signal, she had had earphones in her ears and she did not turn to look behind her.  He was asked if it was likely that someone would not hear a bus if they were not wearing earphones and he replied: “No, a bus is too noisy”. 

[14]      In cross-examination, in relation to the on-board camera at the front, Mr Moffat reiterated that it had been in the middle of the dashboard and, therefore, at the mid-point of the bus at the front.  There would, therefore, have been one half of the width of the bus to the right and one half of the width of the bus to the left of the camera.  With the bus being 2.5m wide, that would have meant 1.25m to the right and 1.25m to the left of the camera.  He told the court that the front camera was watching the left kerb.  As he put it: “It was angled to the left as that is the more dangerous side”.  He confirmed that there had been about a car’s width between the bus and the pursuer’s bicycle when he had been about to overtake the pursuer.  He agreed that the bus had weighed about 12 ½ tonnes and that a cyclist is more vulnerable.  He confirmed that there had been nothing to stop him crossing over to the other side of the road (the eastbound carriageway).  However, he said that there had been no need for him to go over the centre white line.  He had thought that, leaving the pursuer with the left-hand lane to herself, there had been more than enough space, but she had then moved to the right.  He told the court that he would say that he had been about 3m from the left-hand side of the road.  This was before the pursuer had steered to the right (when she steered to the right he indicated that this gap had reduced to about three feet) shortly before the collision.  He stopped before the next bus stop.  He had stopped in order to get help for the pursuer.  He had not been stopping at the bus stop to pick up or drop off passengers.  Although the next bus stop was a bus stop for the number 18 bus, there had been nobody waiting to get off or on the bus at the next stop.

[15]      Mr Moffat told the court that he had removed the pursuer’s helmet to stop the bleeding.  He had been told to do this by the emergency services when he was on the phone to them.  He was adamant that she had had earphones on.  He said that, when he had been about to pass the pursuer, he had left her sufficient room about the width of a car but that it had been when he was about to pass her that she had turned right. 

[16]      In re-examination, on the basis that the westbound carriageway was about 6.5m wide and the bus was about 2.5m wide, Mr Moffat was asked whether there had at any time been a gap of as much as 1.5m (or the width of a car) between the offside of the bus and the centre white line and he flatly denied this.  He was clear that a car could not have overtaken the bus and stayed in the westbound carriageway.  There had been a point when the bicycle was about three feet from the bus, but this was after the pursuer had steered to the right into the path of the bus.  Before that, he had been more than three feet from the pursuer’s bicycle.  He agreed that he could have crossed the centre white line to give the pursuer more space, but he explained that he did not do that because he had felt that it had been safe enough to give her sufficient room and that there had been no need to go to the “wrong side of the road”.  At the point when the pursuer had steered right into the path of the bus, she had probably been a full car’s width from the left-hand kerb.  In relation to the point of impact, Mr Moffat thought that the ultimate position of the fallen bicycle on the road had been further away (namely, nearer the left-hand kerb) because he thought that, as it had hit the bus on the bicycle’s right-hand side, it would have bounced back and would have been thrown back towards the kerb.

 

Summary of submissions on behalf of the pursuer

[17]      Counsel for the pursuer submitted that the pursuer had discharged the burden of proof resting on her that, on a balance of probabilities, the collision between the pursuer and the bus which caused the pursuer’s fall and subsequent injuries was a result of the fault and negligence of the second defender for whose actings in the course of his employment with them the first defenders were vicariously liable.

[18]      Counsel submitted that both the pursuer and the second defender were under a duty to take reasonable care to keep a good look out for other road users and to take reasonable care for the safety of other road users including each other.  Counsel submitted that, whilst the court might find that those duties were breached by either or both parties, the “causative breach” was that the second defender had failed in his duty to take reasonable care for the safety of the pursuer by failing to leave sufficient space between his bus and the pursuer’s bicycle as he overtook her beyond the junction with Arcadia Street. 

[19]      Counsel went on to submit that, whilst the court might be persuaded that the pursuer was in breach of her duty to take reasonable care for her own safety by failing to follow certain recommendations for safe cycling as contained in the Highway Code, if the second defender had allowed the appropriate amount of space between the bus and the pursuer, any failure in duty on the part of the pursuer would not have resulted in a collision as in fact occurred.

[20]      Counsel submitted that the pursuer was both credible and reliable in her evidence.  On that basis, I was invited to accept the pursuer’s evidence, including her evidence to the effect that, once over the junction with Arcadia Street, she had been intending to continue travelling straight ahead and into the bus lane.

[21]      Counsel for the pursuer submitted that, although there had been no reconstruction of the accident by Mr Parkin, Mr Parkin’s evidence had been helpful in certain, albeit small, ways in respect of the measurements of the road, the presence of and description of the type of centre marking lines on the road and how they could be used to gain a “broad impression” of distances.  I was reminded that Mr Parkin’s evidence had been to the effect that the pursuer had steered towards the bus just before the collision.  However, counsel submitted that this required to be weighed against what he submitted was the close proximity of the bus at the time and, had the bus been further away, the pursuer steering to her right would “perhaps” have been of no significance and no collision “might” have occurred.  He further submitted that had “sufficient space” been afforded to the pursuer then the collision “may” have been avoided and that there had been sufficient space to allow the second defender to afford the pursuer ample space, and that is what the second defender ought to have done.

[22]      In relation to Mr Gillespie’s evidence, counsel submitted that, if Mr Gillespie was correct about the position of the camera at the front of the bus (as being in front of the steering wheel in front of the bus driver rather than at the centre of the front of the bus as a whole), this would have placed it to the right hand side of the bus and, if Mr Gillespie had been right about that, counsel submitted that that would have placed the right hand side of the bus well to the left of the centre line of the road and that this would have afforded the second defender plenty of scope to allow further space between him and the pursuer, perhaps even without the need to cross into the opposite carriageway.

[23]      In relation to the evidence given by the second defender, counsel for the pursuer raised questions about the reliability, and perhaps even credibility, of aspects of his evidence, in particular in relation to the second defender’s evidence about whether he had been intending to move left into the bus lane beyond the junction, the positioning of the camera at the front of the bus he was driving, whether the pursuer was wearing earphones at the time of the collision, whether he had removed the earphones from the pursuer’s ears following the accident, whether the bus was about three metres from the left-hand side of the road just before the collision and whether there had been a “car’s width” between the bus and the pursuer just before she steered to the right before the collision.

[24]      In support of his submissions, counsel for the pursuer referred to two English cases, namely Sinclair v Joyner [2015] EWHC 1800 (QB) and McGeer v McIntosh [2017] EWCA Civ 79.  Both cases had involved collisions with cyclists.

[25]      In Sinclair v Joyner Mrs Justice Cox found in favour of the claimant with contributory negligence on the part of the claimant being assessed at 25% after having had “regard to the respective positions and conduct of the parties”.  Mrs Justice Cox had accepted a submission by counsel for the claimant that the “causative potency” of the motor vehicle driven by the defendant in that case had been highly significant in assessing apportionment.  She took the view that, in assessing contributory negligence, there required to be an overall appreciation of the claimant’s blameworthiness, taken with the causative potency of what she had done.  Mrs Justice Cox had also commented on the question of hazards presented by vulnerable road users.  This was plainly a reference to the claimant as a cyclist.  Counsel for the pursuer submitted that, in the present case, there was a similar situation of vulnerability of the pursuer as a cyclist as compared with the size of the bus and the danger presented by it to a cyclist.

[26]      In McGeer v McIntosh, as to apportionment of liability, the judge at first instance had found that the major responsibility lay with the defendant as driver of the HGV vehicle concerned.  The judge at first instance had said that the “causative potency” of the HGV had been highly significant in assessing apportionment given the likelihood of very serious injury to a cyclist in the event of collision.  In the circumstances, the claimant in that case was found to be 30% contributorily liable.  The Court of Appeal held, at paragraph 28 of the judgment in that case, that it had been appropriate for the judge at first instance to have taken into account the causative potency of the HGV given the likelihood of very serious injury to the cyclist in the event of a collision.  The Court of Appeal did not interfere with the assessment by the judge at first instance. 

[27]      Counsel for the pursuer submitted that there should similarly be a finding in favour of the pursuer in the present case.  A reasonable road user would have afforded the pursuer “more room”.  The issue of “causative potency” was, he submitted, a real issue in the present case as well.  Any apportionment should favour the pursuer over the second defender given the pursuer’s particular vulnerability.  There had been an “imbalance” between the two vehicles, namely the bus and the bicycle.  This had created a “high onus” on the second defender in the particular circumstances.  Counsel accepted that there had been quite different factual circumstances in McGeer v McIntosh.

[28]      I asked counsel for the pursuer about the averment on behalf of the pursuer in statement of fact 4 that “the front of the bus struck the rear of the pursuer’s bicycle”.  Counsel submitted it did not matter which part of the bicycle had been struck by the bus.  He submitted that the “main causative factor” for the collision had been the failure of the second defender to allow sufficient space when carrying out his overtaking manoeuvre.  I was also reminded about rule 212 of the Highway Code which says:  “When passing motorcyclists and cyclists, give them plenty of room”. 

 

Summary of submissions on behalf of the defenders

[29]      Counsel for the defenders invited the court to grant decree of absolvitor in favour of the defenders because the evidence did not support any finding of fault against the second defender, the bus driver.  He submitted that, rather, on the evidence, it was clear that it was the pursuer who was solely at fault for the accident due to the movement she made to her right on her bicycle.  Had she stuck to the route she was taking before moving to the right, there would have been no accident.

[30]      Counsel’s esto position was that, even if it was held that the second defender was at fault, the evidence showed that the accident would have occurred anyway.  The pursuer would still have struck the nearside of the bus even if the bus had afforded more of a gap between it and the pursuer.  He submitted that the pursuer’s case must therefore fail on causation.  Counsel’s second esto position was that, if it was held that the second defender was at fault and that this was causative of any accident, in respect that the vast majority of the blame for the accident rested with the pursuer, damages should be reduced in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945.

[31]      In relation to the pursuer’s evidence, counsel submitted that, in so far as her general experience of cycling was concerned, the pursuer’s evidence was credible and reliable.  However, he submitted that she was wholly unreliable as regards her impression of what she saw on the CCTV footage.  Counsel also submitted that the pursuer’s evidence about wearing earphones was unsatisfactory.  She did not absolutely rule out wearing them.  Although she said that she would not have been listening to music, the evidence of the second defender about removing earphones from her should be preferred.  In summary, counsel’s position was that, especially in cross-examination, the pursuer had seemed rather evasive and dogmatic, being unwilling to accept obvious points based on the CCTV footage.  She may have convinced herself over time that she was not to blame for the accident, but that must significantly colour the reliability of her evidence at the very least. 

[32]      In relation to Mr Parkin’s evidence, counsel submitted that Mr Parkin was a credible and reliable witness, and an impressive witness.  However, the extent to which he provided expert opinion was almost non-existent and so of limited value to the court.  Counsel submitted that Mr Parkin did provide some skilled evidence of fact, although, again, this was limited in terms of value and assisting the court.  Counsel submitted that it seemed that Mr Parkin had given his evidence exclusively based on his impression of what he had viewed on the CCTV footage not as an expert but rather as a driver.  Counsel also submitted that neither Mr Parkin nor any other witness had given evidence of what would be considered an acceptable gap which should have been left by the bus.  He submitted that the only conclusion that could be drawn was that a gap of five feet would have been acceptable (this was on the basis that Mr Parkin had made reference to the photograph of a car overtaking a bicycle at rule 163 of the Highway Code and he had estimated the gap between the cycle and the overtaking car in that photograph as being about five feet).  Counsel submitted that this largely tallied with the evidence of the second defender in referring to the width of a car. 

[33]      Counsel submitted that Mr Gillespie had largely been a credible and reliable witness who had been doing his best to tell the truth.  However, there had been part of his evidence where it might be thought that he was unreliable e.g. thinking that the pursuer had struck the rear of the bus.

[34]      Counsel submitted that the second defender, Keith Moffat, was a credible and reliable witness.  Counsel submitted that he had given his evidence in a calm manner and did not prevaricate or give his evidence in a dogmatic manner.  Based on Mr Moffat’s evidence and the CCTV footage, counsel submitted that it would seem reasonable to infer that the gap between the bus and the pursuer was at least five feet until the pursuer moved to her right just before the collision.  The second defender had described the gap as being about the width of a car.  Counsel also submitted that Mr Moffat’s evidence about the pursuer wearing earphones should be preferred.  Nothing from his evidence, or the way in which he gave his evidence, could possibly support the suggestion that he was incredible on this issue.  There was no reason for him to lie about it.  It also might explain why the pursuer claims that she did not hear the bus.

[35]      Counsel then addressed the question of the legal duties applicable and their application to the evidence.  He submitted that, as road users, both the pursuer and the second defender had duties to take reasonable care in carrying out their movements on the road.  He accepted that the second defender had a duty to take reasonable care when overtaking other road users, including the pursuer.  He accepted that the Highway Code, rule 163, sets out good and proper guidance as to how to perform overtaking manoeuvres.  He submitted that, on the basis of the evidence, the second defender complied with the duties to take reasonable care incumbent upon him.  It was clear that the second defender had left sufficient space to allow his bus to safely overtake the pursuer.  Although he could have moved over further to his right in his overtaking manoeuvre, there was no duty upon him to do so.  Counsel submitted that the second defender would only be negligent if he should have moved further over.  It is not enough that he could have done so.  His duty was only to take reasonable care.  His driving did not require to comply with a counsel of perfection.  In this connection, I was reminded of paragraph 56 of the judgment by Mrs Justice Cox in Sinclair v Joyner where she had said:  “Mr Freeman is right in submitting that the courts must not fall into the trap identified in Ahanonu and impose a counsel of perfection upon car drivers, thereby distorting the duty upon them to take reasonable care in the circumstances”.  Counsel submitted that, in the present case, although there was no doubt that the second defender could have done something different, namely that he could have moved over further to his right in his overtaking manoeuvre, that was different to saying that he should have moved further over.  Counsel submitted that that was the difference between reasonable care on the one hand and strict liability on the other hand.

[36]      Counsel went on to submit that there was no evidence to assist the court as to what a reasonable range of distance would have been to allow the court to determine whether a distance of X might be acceptable whereas a distance of Y would be negligent.  Counsel submitted that there was nothing to suggest that a distance of three feet would be unacceptable.  By way of contrast, leaving five feet seemed to be acceptable.  I was reminded that there was no case on record that the second defender’s reaction was somehow inappropriate or ought to have been different.  The pursuer, as a cyclist, in complying with her duties to take reasonable care, ought to have done so in accordance with rules 63, 65 and 67 of the Highway Code.  She failed to do so.  She turned to her right without looking to see if it was safe to do so.  The pursuer failed to give any indication that she was doing so.  She turned right into the path of the correctly proceeding bus being driven by the second defender.  She failed to see or hear the bus behind her even though it was entirely obvious that she ought to have at least heard it had she been paying proper care and attention to her surroundings.  The pursuer was, therefore, entirely at fault for the accident.  Had she stuck to her original line, there would have been no accident. 

[37]      Counsel submitted that, separately, it was abundantly clear that the accident would still have happened even had the second defender been further out to the right.  He submitted that the pursuer had to prove that, absent any fault on behalf of the second defender, the accident would have been avoided.  I was reminded that, on record, the pursuer averred in statement of fact 4: “Had the second defender driven his vehicle at an appropriate distance from the pursuer’s bicycle and allowed sufficient room before attempting his manoeuvre the collision would not have occurred”.  Counsel submitted that the pursuer had palpably failed to prove this averment.  The pursuer had the onus to prove that “but for” the negligence of the second defender, there would have been no collision.  He submitted that it was clear that the accident would still have happened regardless and that she had failed to discharge that onus.  He further submitted that, esto the second defender was to any extent at fault, the vast majority of any blame rested with the pursuer in respect of her negligence and that any award of damages must be reduced to reflect her contribution.  He submitted that the appropriate test was to consider the blameworthiness of each party and the causative potency of the accident.  He submitted that the pursuer clearly bore the vast majority of both, and submitted that an appropriate percentage to reflect that contribution would be 90%. 

[38]      In relation to the authorities to which counsel for the pursuer had referred, counsel for the defender told me that he had no difficulty about the concept of the issue of vulnerability of a cyclist.  However, he submitted that a cyclist such as the pursuer should be aware of their own vulnerability, that they too should be aware that they do not have the same protection as a large vehicle and that, if they move out to the right without looking and indicating, manifestly this would be dangerous and foolhardy given that, if hit, she is going to come off much worse.  He also submitted that the facts and circumstances of both cases were quite different to those in the present case and, therefore, that there was nothing of any particular value in either case as regards liability and contributory negligence in the present case.  He submitted that the outcome in the present case should be quite different. 

 

The principal issues

[39]      (i) Which lane was the pursuer intending to make her way to immediately prior to the collision?

            (ii) Did the pursuer steer the bicycle to the right into the path of the bus without signalling her intention to do so and without having checked for traffic coming up behind her?

            (iii) Did the second defender fail to give the pursuer sufficient room when overtaking her?

 

Discussion and conclusions

(i) Which lane was the pursuer intending to make her way to immediately prior to the collision?

[40]      The pursuer had no actual recollection of the accident due to having suffered retrograde amnesia.  Her evidence, therefore, appeared to be based upon her viewing of, and interpretation of, the edited CCTV footage.  Having seen and heard the pursuer in evidence against the background of the evidence as a whole, including the CCTV footage, I did not feel that that I could conclude that she was a credible and reliable witness.  Regrettably, I formed the clear view that she was, at the very least, not a reliable witness in relation to the material facts relating to the accident and that there were also question marks about her credibility.  For example, although the CCTV footage showed very plainly that she steered to the right immediately prior to the collision with the bus, she did not appear to me truly to accept this despite viewing it several times.  She seemed to me to be attempting to maintain inconsistent positions, on the one hand that she had not been intending to cycle to the right into the right-hand lane but instead intended to carry straight on (even although the CCTV plainly showed her steering to the right just before the collision), but on the other hand also maintaining that she had turned her head to check if a bus was coming (even although the CCTV evidence did not show the pursuer turning her head at any stage to check if there was a bus coming up behind her, either before or during her steer to the right towards the offside lane).  It was also not clear to me why, if she had truly been intending to continue straight ahead to the bus and cycle lane, she had apparently thought that she should turn her head to check to see if there was a bus behind her.  That was never explained.  Another notable issue was why the pursuer apparently did not hear the bus coming up behind her.  I am satisfied that it is likely that this is because she was wearing earphones at the time.  No other credible explanation was put forward to account for this, and I had no difficulty accepting and preferring the evidence of Mr Moffat that he had had to remove ear buds from both of her ears in order to try to communicate with her.  My assessment was that he was entirely truthful in his account about that.  I did not accept either the pursuer’s initial denial or what appeared to be her later rather less certain position about this. It may well be, as Mr Cleland suggested in submissions, that she has convinced herself over time that she was not to blame for the accident and that may significantly have coloured the reliability of her evidence at the very least but, unfortunately, any such beliefs on her part are, in my assessment, ill-founded. 

[41]      Mr Moffat described how he had pulled out to overtake the pursuer and that, as he had been about to overtake her, she turned right towards the front of the bus in less than two seconds.  Mr Gillespie also saw the pursuer turning the bicycle to the right as if she was saying: “This bus is not getting past me”.   I accepted Mr Moffat as being a credible and reliable witness.  He struck me as being a patently honest witness who was trying his best to assist the court.  In my assessment, he was straightforward and careful in his evidence.  I also accepted Mr Gillespie as being a credible and reliable witness with the exception of his impression of the bicycle having struck the rear of the bus.  In relation to his experience of where the front facing camera was on the bus which he had driven on the number 18 route is concerned, I had no reason to disbelieve him about this, but I accepted Mr Moffat’s evidence to the effect that cameras can be in different positions on different buses and that, so far as the bus he was driving on the number 18 route that day was concerned, it was where he said it was, namely in the centre of the front of the bus as a whole.

[42]      Mr Parkin’s interpretation of the CCTV footage relating to this issue was interesting.   (I accepted his evidence as credible and reliable, subject to comments below in relation to the issue of attempting to determine distances).  His immediate impression on viewing the CCTV footage was that the pursuer had been heading for the outer of the two westbound lanes as though she had been trying to merge in line with the merge right arrow even although she did not need to do this.  It was only when he was told by counsel for the pursuer of what her evidence had been as to her intention at that point that he seemed to me to row back a bit and said that one could not tell from the CCTV evidence whether the pursuer had “veered” unintentionally, but shortly after that he said that it looked as though it had been an intentional steer.  In my view, it is likely that this was an intentional steer (or “veer” as Mr Parkin also described it) by the pursuer and it is likely that this is because she was immediately prior to the collision intending to make her way to the right-hand, offside, westbound lane as directed by the merge right arrow. 

 

(ii) Did the pursuer steer the bicycle to the right into the path of the bus without signalling her intention to do so and without having checked for traffic coming up behind her?

[43]      The answer to this question very much follows from the answer to the first question.  I have already concluded, without difficulty, that the pursuer steered to the right.  It was clear that this was into the path of the bus, as described by Mr Moffat and accepted by Mr Parkin, and I did not understand it to have been suggested otherwise by counsel for the pursuer.  Mr Moffat said that the pursuer did not signal an intention to do this, and the pursuer accepted in cross-examination that she had not indicated that she was steering to the right (her explanation being that this was because she had been planning to go straight ahead).  It was also plain from the CCTV footage that she did not signal an intention to steer to the right.  Mr Moffat also said that the pursuer had not turned her head to check for traffic behind her.  This was also Mr Parkin’s conclusion from having viewed the CCTV footage.  By contrast, this is something which the pursuer said that she had had a recovered memory of having done, although it was not clear why she would have been checking behind her if she had truly been intending just to continue straight on.  Be that as it may, I accepted and preferred the evidence of Mr Moffat on this issue.  It was also plain from the CCTV footage that she did not turn her head at any stage to check if there was a bus coming up behind her, either before or during her steer or veer to the right towards the offside lane and into collision with the front nearside corner of the bus.  My answer to this question is, therefore, yes.  As a result, I am satisfied that she did not comply with rule 67 of the Highway Code.  As to the ultimate position of the pursuer’s fallen bicycle on the road, it seemed to me that there was likely to be force in Mr Moffat’s thinking that, as it had hit the bus on the bicycle’s right-hand side, it would have bounced back and would have been thrown back towards the kerb.

 

(iii) Did the second defender fail to give the pursuer sufficient room when overtaking her?

[44]      Counsel for the pursuer submitted that the “causative breach” was that the second defender failed in his duty to take reasonable care for the pursuer by failing to leave sufficient space between the bus and the pursuer’s bicycle as he overtook her.  This was in effect the contention on behalf of the pursuer in statement of fact 4 as read with the averments on her behalf in statement of fact 5.  As I was reminded by counsel for the defenders, there was no other case on record, such as that the second defender’s reaction was somehow inappropriate or that it ought to have been different.  The critical issue is, therefore, whether the pursuer has proved that the second defender failed to exercise reasonable care by failing to leave sufficient space between the bus and the bicycle when overtaking her.   Counsel for the pursuer submitted that she had discharged the burden of proof resting on her on a balance of probabilities.  In my judgement, the pursuer did not discharge this burden of proof. 

[44]      The evidence bearing on this issue from both the pursuer and Mr Parkin was entirely based on their respective interpretations of the edited CCTV footage taken from the cameras inside the bus.  The pursuer sometimes referred to approximate distances, but such references were based only on viewing and trying to interpret the CCTV footage and were not based on any actual recollections of the events themselves.

[45]      In relation to Mr Parkin’s evidence, he confirmed that he had recorded in conclusion 9.2 of his report, number 5/21 of process, that the bus was positioned “relatively close” whilst preparing to overtake the cyclist.  The expression “relatively close” was not explained or defined in his report.  It became apparent from his evidence that there were distinct limitations in relation to the extent to which it was now possible to determine distances from viewing the edited CCTV footage.  He commented that the 4, 2, 4 configuration of the centre white lines “could not help accurately to determine distances, but that they could help provide broad estimates” (my emphasis).  Then, when asked for his view - from what he had seen of the CCTV footage from the cameras within the bus as regards the positioning of the bus and the bicycle just before the collision - he replied that this was “somewhat difficult to judge”.  He explained that this was because one “would need to know precisely” where the camera was mounted and how wide angled it was.  He then went on to say that his “impression” was that the bus had been “relatively close” to the bicycle.  This was the same expression he had used in the conclusion at paragraph 9.2 of his report. 

[46]      As to the first question of where the camera was mounted, in cross-examination, Mr Parkin said that he had been told that it had been on the dashboard in front of the driver (by which I understood him to mean literally in front of the driver as described by Mr Gillespie as having been his experience on a bus he had driven on the number 18 route, but contradicted by Mr Moffat – whose evidence on this I accepted as regards the position of the camera on the bus he was driving that day).  I, therefore, think it more likely than not that, in going on to give estimates of distances in evidence, Mr Parkin did not proceed on the basis of the front camera being mounted as described by Mr Moffat, namely in the middle of the front of the bus as a whole.  As to the second question of how wide-angled the camera had been, Mr Moffat told the court in cross-examination that the front camera was watching the left kerb.  As he put it: “It was angled to the left as that is the more dangerous side”.  Mr Parkin did not clarify whether he had been aware of the way in which the camera had been angled or whether he had taken this into account when then going on to give estimates of distances in evidence.

[47]      In evidence in chief, Mr Parkin was then asked if he could estimate how close the bus “might” have been to the pursuer’s bicycle at the point when the pursuer had steered to the right and the bus had steered to the right.  Mr Parkin responded that it would be necessary to combine footage from the two cameras on the bus and that this gave the “impression”, which he described as being “very much an estimate” of “perhaps” of the order of three feet.

[48]      Having given careful consideration to the whole of the evidence, including the limitations referred to by Mr Parkin, I have come to the view that I cannot be satisfied that the pursuer has established on a balance of probabilities, the onus being on her to do so, that the second defender failed to give her sufficient room when overtaking her.  It was, therefore, not established that the second defender failed to comply with rule 163 of the Highway Code.  In the first place, it was not established to my satisfaction what the minimum amount of room would have been in the circumstances to satisfy the requirement to be “sufficient”.  Counsel for the pursuer relied on the photograph accompanying Highway Code rule 163 coupled with Mr Parkin’s estimate that the distance between the car and the cyclist in the photograph there was about five feet.  However, there was no evidence that a lesser distance would not be “sufficient”.  In the second place, although counsel for the pursuer did not invite the court to make a finding in fact that the distance between the bus and the pursuer’s bicycle was about three feet or one metre (or in fact invite the court to make any specific finding in fact as to distance between them) when the second defender was preparing to overtake the pursuer, counsel seemed to suggest in his submissions that, from the evidence of the pursuer and Mr Parkin (both based on seeking to interpret the CCTV footage), it appeared that the distance between them at that point had been about three feet or one metre.  The implication from his submission to this effect was that this – if established – would have represented a failure by the second defender to give sufficient room.  However, Mr Parkin made it clear that this figure of three feet or one metre was “very much an estimate”.  And this was not surprising against the background of his evidence that the positioning of the bus and the bicycle just before the collision was “somewhat difficult to judge” as one would need to know “precisely where the camera was mounted and how wide angled it was” – which he did not.  This was a critical issue and, in all the circumstances, I cannot be satisfied that it was established that it is more likely than not that the distance between the bus and the pursuer’s bicycle at that point was about three feet or one metre, or indeed any other distance. 

[49]      I also noted with interest Mr Parkin’s acceptance that, if the westbound carriageway was about 6.5m wide and, if the bus was about 2.5m wide (both of which measurements I accepted), there could have been two buses side by side safely in that carriageway leaving about a 1.5m space and that that there was, therefore, no need to cross over the centre white line for a bus to pass another bus or a car, or a vehicle such as a bicycle.  Mr Moffat firmly denied that there had ever been a gap of as much as 1.5 metres (which he described as being about a car’s width) between the offside of the bus and the centre white line and was equally firm that a car could not have overtaken the bus and stayed within the westbound carriageway.  Mr Gillespie also commented that he thought that the bus driver had been in a “perfect position”.  In the light of the evidence and having viewed the edited CCTV footage against the background of Mr Moffat’s description of where the camera was mounted and how it was angled, I think that it is most unlikely that a car could have overtaken the bus and stayed within the westbound carriageway. It, therefore, seems to me that Mr Moffat is likely to have been correct in his recollection about this.

[50]      Mr Moffat also agreed that he “could” have crossed the centre white line to give the pursuer more space, but said that there had been no need to do that as he had felt that he had given the pursuer plenty of room.  For example, he described having given her the left hand lane to herself.  Mr Moffat’s recollection was to the effect that there had been a car’s width between the nearside of the bus and the pursuer’s bicycle.  He thought that there had been a point when the gap had reduced to three feet, namely when the pursuer steered to the right into the path of the bus.  However, as I have already indicated, I am not satisfied that I am in a position to determine what the distance was between the bus and the bicycle. 

[51]      I also accepted Mr Moffat’s evidence that he had not been intending to stop at the next bus stop.  I have already commented, at paragraph [7] above, on the edited CCTV footage and I accepted Mr Moffat’s evidence that there had been no-one signalling to get or off the bus at the next stop.

[52]      In my opinion, counsel for the defenders was correct in his submission that the second defender would only have been negligent if he “should” have moved further over, and that it would not have been enough that he “could” have done so.  The second defender accepted that he could have moved further over, but in all the circumstances including my conclusions in relation to proof of distances, I am not satisfied that it has been established that he should have done so.

[53]      I was also reminded by counsel for the defenders that the second defender’s duty had been to take reasonable care and that his driving did not require to comply with a counsel of perfection.  Counsel for the pursuer did not take issue with these submissions, correctly in my opinion. 

[54]      In relation to the two authorities to which my attention was drawn by counsel for the pursuer, I entirely accepted the proposition about the cyclists being vulnerable road users and, therefore, the need to give them plenty of room.  Plainly, a cyclist is a lot more vulnerable than most, if not all, other road users, particularly as compared to the size and danger presented by a large bus.  However, the facts and circumstances of both cases were very different to those in the present case and, in the present case, I am not satisfied that it has been established that the second defender was at fault to any extent.  In so far as counsel for the pursuer invited the court to have regard to the issue of “causative potency”, that may very well be a pertinent issue if the court is satisfied that fault has been established on the part of a defender, but it is then necessary to determine the extent to which, if at all, apportionment may be appropriate as between a defender and a pursuer.  That was the context in which observations about “causative potency” were made in both of the authorities to which I was referred.  As I say, however, that does not arise in the present case as I am not satisfied that any fault on the part of the second defender has been established.  To the contrary, I am satisfied that the accident was solely caused by fault on the part of the pursuer and that this was the “causative breach” of the collision.  She did not hear the bus coming up behind her as she was wearing earphones.  Even then, the accident would not have occurred had she continued to cycle straight ahead.  Instead, being unaware of the bus coming up behind her, and without first checking behind her and without indicating her intention to steer to the right, she steered or veered to the right and into the path of the bus when the second defender was overtaking her.  Had she not done so, I am satisfied that there would have been enough room within the single wide westbound lane for the bus to have overtaken the pursuer safely without having to cross the centre white lines.  The second defender had been about to do that safely when the pursuer steered to the right into his path in under two seconds leaving him with insufficient opportunity to prevent the bus, which included both seated and standing passengers, colliding with her bicycle.

[55]      It in any event seems entirely possible that the pursuer would still have struck the nearside of the bus even if the bus had been slightly further out to the right.  Mr Parkin agreed in cross-examination that, given the length of the bus and given that the pursuer had been steering to the right, it was likely that she would still have struck the bus even if it had been slightly further out, if it had not been for the steering of the bus.  He similarly agreed that a collision would have been inevitable if the pursuer had kept steering to the right and if the bus had not then steered to the right.  It is, therefore, far from clear that the accident would have been avoided even if the bus had been slightly further out to the right when overtaking the pursuer. 

 

Result

[56]      I, therefore, grant decree of absolvitor in favour of the defenders.  It was agreed that expenses should follow success and that it would be reasonable and appropriate that the cause should be sanctioned as suitable for the employment of junior counsel.  I am satisfied that it would be entirely reasonable to grant sanction for junior counsel as proposed.  Both counsel conducted the proof with skill and care, for which I am grateful.