Dilemma zone driver not negligent

Afouzar v First CentreWest Buses (2nd, 3rd & 23rd October 2014) – RCJ

C attempted to cross a busy intersection via pedestrian crossings when he was struck by D’s bus, and sustained a severe brain injury; quantum was said to be very considerable but liability was tried as a preliminary issue.

The lights for traffic turned to amber as the bus driver approached and was 33 metres from the crossing. It was agreed expert evidence that the bus driver could have braked in response to the amber light and stopped before reaching the normal stop line, and had he done so the accident would have been avoided. There was an issue as to whether the lights were red when the bus had crossed the advanced stop line.

There was a possibility of the driver seeing C for up to 5 seconds before impact. At 2.5 seconds before impact, C started to jog towards the crossing and at 1.2 seconds before impact C crossed the kerb and jogged into the path of the bus. C’s expert evidence was that the driver did not react to C’s presence until 0.48 seconds pre-impact and the driver’s oral evidence was that his first sight of C was a ‘blur’ in the nearside windscreen almost simultaneous with impact.

The driver was not negligent in failing to see the amber light illuminate. There were other hazards, potential hazards and things for the driver to be paying attention to both on and around this bus intersection and on-board his bus. Even if it had been negligent for the driver to fail to see the lights change or C on the pavement, it was not causative and he would have proceeded through the crossing in any event. If the driver had not seen the lights change, but became aware of the change later, he was already within ‘a dilemma zone’, facing a choice as to attempt to stop or drive through. There were numerous passengers onboard and the ‘Stopping’ light was illuminated for a stop just up the road; accordingly, there were likely to be passengers moving about the bus and / or standing up.

“Canned numbers’ for reaction times, deceleration rates and stopping distances are not necessarily appropriate here. The experts were not aware of any PRT studies for bus drivers. However, attention had to be paid to data on deceleration rates for PSVs, particularly that deceleration rates above 0.34g are ‘undesirable’ and higher rates are likely to result in serious injury to passengers.

In the circumstances, a failure to brake, attempt emergency braking or swerve was not negligent, particularly so as attempt to do so could have caused a real risk of injury to passengers and other road users. There is no reason to prefer the safety of a careless pedestrian to that of numerous passengers.

Claim dismissed with costs.

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