MICHAEL WILLIAM HICKMAN v LONDON CENTRAL BUS CO LTD (2013)
(Queens Bench Division - Sir Robert Nelson- 21/06/2013)
A collision between a pedestrian and a bus at a busy junction had been caused by the negligence of both parties. However, the bus driver's continuing failure to keep a proper lookout and the fact that the pedestrian was already crossing the road when the bus moved off, meant that the bus driver was more culpable than the pedestrian.
The claimant pedestrian (H) sought damages from the defendant bus company (L) for personal injuries suffered after a road traffic accident.
H had been crossing Victoria Street in central London when he was struck by a bus driven by one of L's employees (D). The collision occurred shortly after 07.00, when it was still dark, at a busy junction close to the bus terminus and railway station. D had been waiting at traffic lights in order to turn left into Victoria Street. H crossed the road in a north to south direction in front of the traffic lights, instead of using the designated pedestrian crossing. He believed that the lights were on red and started to walk across the road. When D's bus started to move, H broke into a run. He was struck by the nearside corner of the bus as it turned into the road. Two other pedestrians had crossed the road at the same spot moments before. D stated that she did not see H or the other pedestrians. D was convicted of careless driving but acquitted on appeal. Her employers internal disciplinary proceedings found her to be at fault.
HELD: (1) A failure to see something was not necessarily negligent: if a reasonably careful driver could reasonably not have seen H it could not be negligent for D not to have done so. However, that was not the situation in the instant case. The junction was very well lit. The CCTV showed that H was properly visible when he was crossing the road, and sufficiently conspicuous to be seen by D at a time when she was, or ought to have been, looking in his direction. He would have been within her central or peripheral vision. Prior to and at setting off, it would be reasonable for a driver to check that her nearside was clear so as to avoid motorcyclists and cyclists coming up the nearside. However, drivers also had to look to the front, that is, ahead of them, into the road into which they were turning. The Highway Code rule 170 required the driver to "watch out for pedestrians crossing the road into which you are turning. If they have started to cross they have priority so give way."
D should have been scanning the front as she went, to satisfy herself that it was safe to enter Victoria Street. She spent too much time looking in her nearside mirror without moving her head to take into account what was going on in front of her. The presence of other pedestrians crossing the road whilst D was stationary at the lights demonstrated the need for her to be aware of the chance of pedestrians crossing Victoria Street at that point. The route taken by H was not unusual. As a regular user of the junction, D should have been aware of the potential hazards. H was already in the road when the bus set off. Rule 170 of the Highway Code applied and D should have given priority to him. D had not seen H until after the impact, even though H passed across almost the entire front of D's bus. That was a clear demonstration of a failure of lookout and failure to concentrate properly upon the road ahead of her into which she was turning (see paras 43-61 of judgment). (2) Had D kept a proper lookout she would have seen H crossing the road in sufficient time to slow down, change course or stop so as to avoid a collision (para.62). (3) H had not used a designated crossing and whilst the place where he chose to cross was not unsafe per se, given the presence of buses waiting to move off from the lights, a high degree of vigilance was required of him. He had set off into the carriageway when the lights were red/amber for the buses. This clearly created a potential hazard if the buses did not see him. He should have waited for the buses to move off or the lights to change again before crossing. He was guilty of contributory negligence. However, D's continuing failure of lookout and the fact that the bus moved off when H was already crossing the road made her more culpable. She was 60 per cent to blame for the accident and H was 40 per cent to blame (paras 63-65, 69-71).