‘NOWHERE FAST’ – In what circumstances might a bus driver be held liable to a passenger injured as a result of a fall on a bus?

 By Andrew Wilson

Most personal injury practitioners will have had experience of dealing with a claim made by a passenger, injured as a result of falling whilst on a bus. Many such incidents result in relatively modest injuries. However, in some cases, particular those involving more elderly Claimants, quite significant and long-lasting injuries can be involved, and with associated ongoing claims for care and assistance. Given the multitude of CCTV cameras onboard such vehicles these days, Courts are often uncommonly well served in having before them good quality evidence of the occurrence and cause of the accident itself. Typically the cause is alleged to be the driver accelerating or braking more sharply than usual. In the latter case, the blame for emergency braking is often placed upon a third party vehicle; for example as a result of pulling out into the bus’ path.

It is important to bear in mind when assessing and pleading such claims, the nature and extent of a bus driver’s duty of care to unseated passengers.  The leading case for some time has been the Court of Appeal decision in Fletcher v United Counties Omnibus Co. Ltd. [1998] P.I.Q.R P154.

The Claimant in Fletcher was 22 year-old woman. Having boarded the Defendant’s bus, and as she was making her way along the aisle, the bus pulled away from the stop at a reasonable speed. However, shortly thereafter, and before the Claimant was seated, the bus performed an emergency stop to avoid colliding with a car which had pulled out into its path. This caused the Claimant to fall to the floor and sustain a serious injury to her spine. There was no criticism of the bus driver for having braked as he did, and it seems that the other vehicle was never traced.

The trial Judge found against the Defendant on primary liability, on the basis the driver should have waited for the Claimant to be seated before he pulled away. He also made a finding of 30% contributory negligence against the Claimant, for failing to utilise the available hand supports as she made her way along the aisle.

The Court of Appeal allowed the Defendant bus company’s appeal on primary liability, and the judgment of LJ Simon Brown contains a useful summary of the relevant caselaw. The important points from the Courts judgment were these:

• Bus drivers would not normally be expected to wait for all passengers to have taken their seats before they could properly pull away.

• Whilst bus companies and drivers owed a duty to take reasonable steps to ensure the safety of their passengers, that was normally satisfied by the provision of safety supports for unseated passengers to hold on to.

• However, if elderly or infirm passengers, children, or those encumbered by luggage came on board, special steps may need to be taken on their account.

What are the practical consequences of the decision?

• If a fit, adult, unseated Claimant, unencumbered by luggage, falls as a result of a bus braking sharply, unless the driver was at fault for braking sharply, any claim as against the bus company is likely to fail.

• However, if another vehicle can be identified as being the cause of the bus braking sharply then a claim may succeed as against that driver.

• If the cause of the fall is the bus accelerating more sharply than usual, then there may be a claim against the bus driver on behalf of an unseated Claimant. However, there may be practical difficulties in proving that the extent of acceleration was excessive in the absence of evidence of other passengers being inconvenienced.

• If the Claimant is elderly, visibly infirm, encumbered by luggage or a child, there may be a sustainable claim, perhaps in the alternative, that the bus driver should have waited until they were seated before they pulled away. However, be aware that the devil may be in the detail. Were one or both the Claimant’s hands full with luggage? Even if the Claimant is elderly, did they appear to be making their way along the bus without any obvious difficulty before the accident? If a child, of what age?

• As ever, a careful examination of the CCTV footage is important. Normally there are cameras both internal and external to the bus. Look carefully as to what effect the breaking or acceleration has upon other passengers, both seated and unseated.

• Be aware of the potential for a finding of contributory negligence, most obviously on the basis of failing to utilise any available hand supports as the unseated Claimant makes their way along, or stands in the aisle, and as the bus is in motion.

• If acting on behalf of a Claimant, depending upon the nature of the allegations raised, be aware of the possibility of having to bring proceedings as against both the bus company and the driver of another vehicle.

ANDREW WILSON

17/8/14

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Tags: Andrew Wilson, bus, duty of care, fall, passenger, Personal Injury