Pedestrian struck by van to be awarded damages but liability apportioned on a 50-50 basis

However, the judge also held that the pursuer and defender were equally to blame for the incident.

Lord Bannatyne heard that the pursuer Veronica McCreery sought reparation for loss, injury and damage which she sustained as a result of the accident on 21 October 2011 on the U328 Liff Hospital Road in Dundee.

Shortly before the accident the pursuer had got off a bus which had stopped in a layby on the opposite side of the road from one of the entrances to Liff Hospital.

From behind the bus the pursuer crossed the road towards the hospital entrance when she was struck by a van driven by the first defender Terrence Letson, who at the material time was working in the course of his employment with the second defenders.

It was accepted on behalf of the pursuer - who did not give evidence because she had no memory regarding the circumstances surrounding the accident as a result of the injuries she sustained - that the court should make a finding of “contributory negligence” against her.

It was submitted that the appropriate finding should be a figure of one-third, but the pursuer’s position was that the way that the first defender had driven his vehicle at the relevant time was “negligent” because he knew or ought to have known that there was a risk of pedestrians seeking to cross the road from behind the bus.

It was argued that the the first defender was aware of the dangers ahead having seen a warning sign of disabled persons crossing the road and being aware of the presence of the bus, and therefore “the obvious and clear obligation” would have been to slow down.

The first defender’s evidence was that at that point he was travelling at 40 to 45mph and his position was that that was a “safe speed” having regard to the 60mph speed limit on the road and the presence of the warning sign.

However, the judge found that the driver approached the locus at about 42mph, which was “too fast a speed, given the potential hazards,” and that an “appropriate speed” would have been 20 to 29mph.

“Given these potential hazards it did not comply with the duty to take reasonable care for the safety of other road users to approach the locus at that speed,” Lord Bannatyne said.

He added: “I am persuaded for the foregoing reasons that had the first named defender reduced his speed to the speed which I have found to be a reasonable one in the circumstances then the accident would have been avoided. Accordingly I believe had the defender fulfilled the duties I have held incumbent upon him, then the collision would not have occurred. The causative test is therefore met.

“I am persuaded for the foregoing reasons that the first named defender failed to take reasonable care as he approached the locus of the accident in the following respects: the first defender was aware of the warning sign.

“The first defender should have appreciated the risk of someone, however foolishly, walking out from behind the bus. He failed to appreciate that risk and was accordingly not keeping a lookout for such an event occurring and reducing his speed to take account of it. He did not reduce his speed as he approached the bus.”

Lord Bannatyne therefore ruled that the defenders were liable to make reparation to the pursuer, but that liability should be apportioned equally between the pursuer and defenders.

The judge observed that the factual circumstances of the case appearred “very similar” to those in Jackson v Murray 2015 UKSC 5.

In his written opinion, Lord Bannatyne said: “As in Jackson v Murray this is not a case where the pursuer stepped directly into the path of the first defender who was travelling at a reasonable speed, and the first defender has failed to take action as promptly as he should.

“Equally this is not a case in which the first defender has ploughed into the pursuer who has been in his sight for long enough for him easily to have avoided her. Rather the present case, as in Jackson v Murray, appears to fall between these two extremes.

“The causation of the injury in the present case depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender not having proper regard to the potential dangers facing him and driving at an excessive speed in all the circumstances. If she had waited till he passed she would not have been run down.

“Equally if he had had regard to the potential hazards and slowed down he would not have hit her. Looking at the matter in that way, I believe that a 50-50 apportionment is appropriate.”