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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McNicol v Strathclyde Buses Ltd & Anor [1999] ScotCS 125 (26 May 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/125.html Cite as: [1999] ScotCS 125

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In this action the pursuer concludes for damages in respect of personal injuries which she claims to have suffered in a road accident on 10 October 1994. She was the passenger in a taxi which was in collision with a bus in Kilbowie Road, Clydebank, at or just south of the roundabout which forms the junction of Kilbowie Road with Great Western Road. The pursuer called as defenders Strathclyde Buses Limited, the employers of the bus driver, James Murray, averring that the accident was caused by negligence on his part. The defenders deny that Mr Murray was negligent. They convened as third party James Sweeney, the driver of the taxi, and plead that the accident was wholly caused by his fault. They also plead that if the accident was caused to any extent by Mr Murray's fault, it was also caused by fault on the part of the third party, and on that basis seek apportionment of liability between the defenders and the third party. The pursuer has not adopted the case of fault made by the defenders against the third party, and has not directed her conclusion for damages against him.

Although the collision between the taxi and the bus was not very violent, the pursuer avers that she suffered a neck injury which has disabled her severely. On 11 May 1999, however, there was pronounced, of consent, an order under Rule of Court 36.1(1) that the proof on liability should be heard separately from the proof on the other issues in the case, and on 13 May I heard the proof on liability. The issues with which that proof was concerned were thus (1) whether the defenders were liable in damages to the pursuer, and (2) if so, whether the third party was also at fault, and thus liable to relieve the defenders of a portion of their liability to the pursuer. Since the pursuer did not direct her conclusion against the third party, a finding that the accident was wholly due to his fault would result in neither the defenders nor the third party having any liability to the pursuer. The issues which were reserved for consideration, if necessary, at a later proof are (1) contributory negligence (pled on the basis that the pursuer's injuries were contributed to by her failure to wear a seat belt), and (2) all aspects of quantification of the pursuer's claim.

The accident occurred in the vicinity of a roundabout which forms the junction of Kilbowie Road and Great Western Road. Great Western Road runs approximately east and west, and Kilbowie Road runs approximately north and south. A short distance to the south of the roundabout, Duntocher Road joins Kilbowie Road from the west. The accident happened at about 5 p.m. The taxi was transporting the pursuer home from her place of work. The route which it followed prior to the collision was eastwards along Duntocher Road to its junction with Kilbowie Road. It then entered Kilbowie Road, the third party's intention being to negotiate the roundabout and proceed northwards on the northern section of Kilbowie Road. The bus approached the roundabout from the south, and it too was to continue northwards on the northern section of Kilbowie Road. The layout of the roads in the vicinity of the roundabout (as it was at the time of the accident) was illustrated in evidence in an Ordnance Survey sheet (No. 41/2 of process) and an aerial photograph (No. 45/1 of process).

The pursuer's averments about the accident are in the following terms:

The defenders deny that account and give the following alternative account:

The third party admits the pursuer's averments (with the exception of the averment that the taxi was in the nearside lane), and denies the defenders' averments.

The specific averment of fault made by the pursuer against the defenders' driver is as follows:

The defenders' specific averment of fault against the third party is as follows:

The third party has adopted the pursuer's averments of fault against the defenders.

I heard the evidence of four witnesses. The witnesses led for the pursuer were the third party and the pursuer. The witnesses led for the defenders were James Murray, and Peter McFadyen, the driver of another bus which was travelling a short distance behind the one involved in the accident.

The accident happened during the evening rush hour. The volume of traffic travelling westwards on Great Western Road was such that traffic entering the roundabout from the south had to wait for a gap in the flow. As a result, there was a queue of slow-moving or stationary traffic in Kilbowie Road which stretched back from the roundabout past the mouth of Duntocher Road. When the taxi reached the junction of Duntocher Road with Kilbowie Road, the third party's intention was to cross to the offside lane of Kilbowie Road, and from there enter the roundabout.

The third party's evidence was that, when the traffic in Kilbowie Road permitted him to do so, he emerged from Duntocher Road onto Kilbowie Road. He sought to drive round the rear of a car which was stationary in the nearside lane, but did not have room to complete that manoeuvre without risking contact between the near side of his taxi and the offside rear corner of the stationary car. He therefore stopped in a position in which the taxi was at an angle to the line of Kilbowie Road, with its rear in the nearside lane behind the stationary car, but its front projecting into the offside lane. The third party's evidence was that he waited in that position for some twenty or thirty seconds. Looking over his right shoulder along Kilbowie Road, he saw the bus approaching in the offside lane. He realised that it was not going to stop. To his offside there was, he thought, perhaps room enough for a car to go past, but not enough for the bus. The bus "nicked" the taxi's bumper as it passed. The impact caused the taxi to shudder. The bus carried on round the roundabout into the northern part of Kilbowie Road, where it stopped. The third party followed, and also stopped. He and Mr Murray then exchanged particulars. The third party expressed certainty that he was stationary at the moment of impact. In cross examination the third party estimated that the point of impact was some fifteen or twenty yards south of the 'give way' line at the roundabout. There was some discussion about which part of the bus struck the taxi. Although the third party began by saying that it was the side of the bus that came into contact with the taxi (although he could not say which part of the side), he later withdrew that, and said that it must have been the front of the bus, because if the front had got through the available space, the whole bus would have done so. He said that he first saw the bus when it was three or four car lengths away, and estimated its speed at between 20 and 25 mph. The damage to his taxi was to the offside end cap of the front bumper, which was pushed in and cracked. He eventually replaced it for £25, but did not consider it worth the 'hassle' to make a claim against the defenders. When the defenders' version of the accident was put to him, he rejected it with some vehemence.

The pursuer's evidence was broadly in accordance with that of the third party. She described the taxi emerging from Duntocher Road and steering round the stationary car in the nearside lane. The taxi, according to her estimate, was projecting from the nearside lane into the next lane, but (on her view that there were three lanes) not into the offside lane. The evidence of the other witnesses satisfies me that there was space for only two lanes of traffic, although it is not clear whether there were any lane markings. I do not, however, consider that the pursuer's misapprehension about the number of lanes has any impact on the substance of her evidence about where the taxi stopped. I understand her evidence to be to the same effect as the third party's, namely that the taxi came to rest angled outwards, with its rear in the nearside lane and its front projecting into the next lane. The pursuer estimated that the taxi was stationary for fifteen to twenty seconds. She had seen the bus moving away from a bus stop further south in Kilbowie Road as the taxi emerged from Duntocher Road, but when the taxi stopped, the bus was out of her sight behind her. She heard the third party shout what she took to be a warning, and the bus came past the taxi and struck it on the front offside. She had an impression that its speed was 'quite fast'. She was sitting behind the driver, and was thrown to her left and forward by the impact. She thought that it was the front of the bus that struck the taxi. She said she was positive that the taxi was stationary at the point of impact. She estimated its position as a car's length or slightly more from the roundabout. When the defenders' version of the accident was put to her, she replied "Definitely not".

In the evidence which was led for the defenders, there was nothing to support the assertion on record that the third party attempted to cut in front of the bus. James Murray said that he left the bus stop some 70 yards to the south of the roundabout, pulled out into the offside lane, and joined a line of traffic proceeding towards the roundabout. In due course he reached the 'give way' line at the roundabout, and paused there waiting for an opportunity to enter the roundabout. Just before reaching the 'give way' line he had seen the taxi in his nearside rear view mirror. He described its position as "sort of between lanes". Its front was angled slightly outwards. He could not remember if the taxi was alongside the rear of the bus at that stage, or further back. In answer to a question from me he said that it was south of the junction with Duntocher Road, but in saying that he was clearly attempting to work out, rather than recollect, its position, and later restated its position as "about the centre line of Duntocher Road". When the opportunity to do so presented, he drove forward onto the roundabout. When about one third of the length of the bus was onto the roundabout, the taxi collided with the rear of the near side of the bus. He stated that when the collision occurred, he stopped there and then, and got out. He indicated to the third party that they should stop beyond the roundabout to exchange details. They both did so. When he examined the bus he found a scrape on the rear nearside wheel arch. He said that the front bumper of the taxi looked as if it was "twisted round a bit".

According to James Murray, he was angry when he spoke to the third party in Kilbowie Road north of the roundabout. He asked, "What were you playing at?" or words to that effect, and the third party replied, "Sorry pal, it was my fault." He said that he could not be sure of the precise words used by the third party, but that he had written a report for the defenders on the day of the accident, and mentioned in it what the third party had said. No such report was produced by the defenders. The third party, when cross-examined about the alleged admission, denied that he had said any such thing. The pursuer, although she saw the drivers speaking together, heard nothing of what was said.

Peter McFadyen was the driver of a small single decker bus which was approaching the roundabout some distance behind the bus driven by James Murray. There were, according to him, two or three cars between the two buses. The taxi was not one of these. When he first saw it, the taxi was to the left of the bus driven by Mr Murray and trying to nudge its way forward. He described it as squeezing to get inside next to the bus. He described the bus reaching the 'give way' line at the roundabout, then moving off. He then said: "He collided with [the] taxi. The two of them sort of hit each other." He went on to describe the movements of the two vehicles in more detail. The bus and the taxi both moved off, and the taxi moved to its right. He said that the offside rear wheel arch of the taxi clipped the bus near its back wheel. His explanation of how it came about that the taxi's rear offside corner was the part that came in contact with the bus was obscure. According to him, the bus was wholly across the 'give way' line, with its rear three or four feet onto the roundabout, when the collision occurred. He said that James Murray did not get out of the bus while it was stopped on the roundabout at the point of impact.

In their submissions, Mr Hajducki for the pursuer and Mr Caldwell for the third party invited me to prefer the evidence of the third party and the pursuer about the circumstances of the accident, and to hold that James Murray was wholly to blame for its occurrence. Mr Smith for the defenders, on the other hand, invited me to prefer the evidence of Mr Murray and Mr McFadyen. Although his primary submission was that the accident was wholly caused by the fault of the third party, he sought to leave open the possibility of a finding that both Mr Murray and the third party were at fault. He accepted, however, that if I preferred the evidence of the pursuer and the third party as to the way in which the collision occurred, a finding of fault against Mr Murray would follow.

I found the evidence of the third party and the pursuer clear and readily understandable. I did not regard such differences as there were between their respective accounts as material. I have already set out my understanding of the pursuer's evidence about the position of the taxi, and (understood as I think it should be) it coincides with the third party's evidence on the point. I think the taxi was closer to the give way line than the third party thought, and I prefer the pursuer's estimate of that distance. Despite these minor, and in my view insignificant, differences, the pursuer and the third party together paint a clear picture of the taxi stopped for an appreciable period with its front projecting into the offside lane, and the bus driving down the offside lane and striking the taxi a glancing blow as it passed. Mr Smith accepted that the pursuer was a careful witness. He criticised some of the detail of the third party's evidence, such as his estimate of the speed of the bus, but I saw nothing in that to cast doubt on the credibility or reliability of his description of the accident. The third party was, I think, wrong in his inference that it was the front of the bus that struck the taxi. That inference was an understandable one, drawn on the basis that if the front of the bus had had room to avoid striking the taxi the whole bus should have avoided striking it. But it seems to me that it was possible for the rear wheel arch of the bus to be the part which came into contact with the front bumper of the taxi if the bus veered very slightly to the left while it was passing the taxi. Both the need to avoid the small traffic island at the edge of the roundabout to the right of the mouth of Kilbowie Road, and the course which the bus would require to follow to negotiate the roundabout would, it seems to me, tend to cause the bus driver to veer very slightly to the left at that point. I therefore accept James Murray's evidence that it was the rear wheel arch of the bus that came in contact with the taxi. The fact that the third party drew an inference about which part of the bus struck the taxi with which I am inclined to disagree does not, however, lead me to reject the main thrust of his evidence about the circumstances of the accident.

James Murray and Peter McFadyen both gave evidence that the collision occurred on the roundabout while both vehicles were moving. Neither of them, however, supported the defenders' averment that the taxi attempted to cut in front of the bus. I did not find Peter McFadyen's evidence easy to understand. If he had been right that the bus came in contact with the offside rear wheel arch of the taxi, that would have suggested that it was some manoeuvre on the part of the bus rather than on the part of the taxi that brought the two into contact. But he was clearly wrong on that point. James Murray confirmed the evidence of the third party that the front bumper of the taxi was damaged, and the pursuer also spoke to the point of contact being towards the front of the taxi. James Murray's evidence about the collision was not as difficult to understand as Peter McFadyen's, but it too left it unclear why the taxi should have driven into collision with the side of the bus. If the impact had been at the front of the side of the bus, and there had been evidence supporting the type of cutting-in manoeuvre referred to in the defenders' pleadings, the movement described would have been understandable, albeit risky. Mr Murray's evidence, however, left it wholly unexplained why the third party should have veered to his right into collision with the side of the bus at the rear wheel arch. I therefore regard his evidence as lacking inherent plausibility. Although Mr Hajducki founded on the discrepancy between the evidence of James Murray and that of Peter McFadyen as to how far the bus had progressed onto the roundabout when the collision happened, I would not have regarded that as reason to reject James Murray's account of the accident had a found it otherwise acceptable. Similarly, the discrepancy between their evidence as to whether James Murray got out of the bus while it was stopped on the roundabout might have cast doubt on the reliability of James Murray's evidence had I found Peter McFadyen a reliable witness, but in the event I do not rely on that as a basis for doubting the reliability of James Murray's evidence.

If there had been produced the de recenti report which James Murray said that he made to the defenders, and if it had borne out his account of an admission of fault made by the third party, that might well have had a material impact on my assessment of the competing accounts of the accident. As it is, James Murray's evidence stands unvouched, and in face of the third party's firm, and in my impression convincing, denial that he made an admission of fault, I am unable to accept it as proved that he did make such an admission.

In the result, I prefer the evidence of the pursuer and the third party as to the circumstances of the accident to that of James Murray and Peter McFadyen. I hold it proved that the third party's taxi was stationary for upwards of fifteen seconds with the front of the taxi projecting into the offside lane of Kilbowie Road, and that James Murray, driving his bus down that lane, brought it into collision with the taxi. I reject the competing account that the collision occurred on the roundabout when the taxi drove into the side of the bus.

Mr Smith for the defenders did not dispute that, if such were my findings in fact, the accident was caused solely by the fault of James Murray. I so hold. It seems to me that James Murray negligently misjudged the space available to him, and by so doing caused the collision. On that view of the circumstances, no question of contribution on the part of the third party arises.

In the course of his submissions Mr Smith indicated that, although the quantification of the pursuer's loss remained for determination, it was not disputed that the pursuer had suffered some injury in the accident. That concession having been made, I am able to give effect to my decision as to responsibility for the accident by sustaining the pursuer's first plea-in-law, repelling the defenders' third, fourth and fifth pleas-in-law, sustaining the third party's third, fourth and fifth pleas-in-law, and granting decree of absolvitor in favour of the third party. The pursuer's case against the defenders will proceed to proof before answer on the remaining issues of contributory negligence and quantification of damages.