Schoolboy hit by bus awarded £8000 damages after judge rules driver was ‘negligent’

A judge in the Court of Session ruled that the driver was “negligent” because he had seen the boys as he approached and was “too close” to the kerb as he pulled into the stop.

Lord McEwan heard that the pursuer Ian Whyte, 17, was a schoolboy at the time of the accident in 2008.

He claimed that he was standing on the edge of the pavement in front of the bus shelter when the vehicle operated by the defenders Bluebird Buses approached the stop and the front nearside encroached over the edge of the pavement striking him.

In his police statement he said that he and four other boys were first in the queue and there was “a wee bit of mucking about” as they waited at the bus stop near to the bus shelter.

He told the court that he saw the bus approach from his right and admitted there was some “jostling and pushing”, but added that that the bus did not mount the kerb.

He looked to the left then back again and the back of his head struck the bus, knocking him down.

His “esto” case was that if he “moved into contact with the bus” the bus was so close to the edge of the pavement that it was able to strike him while he remained on the pavement.

The defenders averred that the boys had been “messing about and stepping off the pavement”.

It was claimed that the bus did not encroach over the edge of the pavement, but that the pursuer moved beyond the edge of the pavement and struck the bus after being pushed by one of the other boys, or in trying to get away from him.

Lord McEwan found that before the accident the pursuer was “larking about” with the others boys and may have been on the road – and was seen by the driver as he approached – but at the time of the accident the pursuer was standing on the kerb “albeit very close to the edge”.

The judge accepted the evidence of an eye witness who was clear that at the time of the accident the pursuer was on the kerb, but the top half of the pursuer’s body was “overhanging the kerb” and his head hit the side of the bus towards the front.

He held that the driver was “slowing to less than a walking pace” and that his front nearside was not over the kerb at the point where he hit the pursuer, and that the pursuer struck the side of the bus behind where the driver was sitting and when the bus had passed him.

The judge found that given how the pursuer was standing the collision was “inevitable” but that due to his age at the time he was not blame.

The court granted decree for the agreed sum of £8,000.

In a written opinion, Lord McEwan said: “On these findings I have no hesitation in finding that the defenders’ driver was not at fault in driving the front nearside in such a way as to overhang the kerb. If that was done at all it was well before the accident.

“However the esto case alleges the bus was too close to the kerb. I find that established, and bearing in mind that the driver had seen the boys earlier.

“I consider it was negligence to have driven so close. The bus ought not to have been driven in such a way as to hit someone on the kerb even if he was at the edge.

“The pursuer, wholly on the pavement, is entitled not to be struck by a vehicle. There is no room for any contributory negligence especially in view of his age.”