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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bollito v Arriva London [2008] EWHC 48 (QB) (18 January 2008) URL: http://www.bailii.org/ew/cases/EWHC/QB/2008/48.html Cite as: [2008] EWHC 48 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2008

Mr Justice Nelson :

1. On 15 July 2005 at about 11.30 p.m. the Claimant fell or jumped from a number 159 Night Bus owned and operated by the Defendant and driven by Michael Montero south on Haymarket, London. The Claimant, together with his sister, Ida Bollito, her boyfriend Davide Damiano and her friend Michelina Caputo, were on their way back to Streatham, when the accident happened. Michelina Caputo was on holiday in England, but the other three worked and lived in London. As a result of the accident the Claimant sustained very severe head injuries and his claim is brought by his wife as Litigation friend.
2. There is a substantial dispute as to how the accident happened. The group of four wanted to catch the bus in question at the stop half way down The Haymarket, but failed to do so. The Claimant and Mr Damiano set off after the bus and caught up with it a short distance down the road approaching the traffic lights before The Haymarket Theatre. They knocked on the front door of the bus, the door opened and they both entered the bus. How the door was opened for them to enter is an issue between the parties. The bus driver, Mr Montero, says that he did not open the doors; he was travelling very slowly towards the traffic lights when the doors opened and the men got in. One of them must therefore have opened the doors from the outside. Such an action would involve lifting a flap marked 'Emergency,' below which it is written 'DOOR' then in smaller capital letters 'Emergency Only', and pressed the button in order to open the doors. Mr Damiano says that he did not operate the emergency button, indeed he did not even know that the door could be so opened and Ida Bollito says that the door simply opened and neither her brother nor Mr Damiano operated any button from the outside. An independent witness, Mr Boyd, who was a passenger in the bus, noted that the doors opened after the men had knocked on the door; he assumed that the driver had opened the door for them but did not himself see how the door was in fact opened or by whom.
3. The bus driver and Mr Boyd both told me in evidence that the bus was moving when the two men boarded it, either creeping or crawling along though neither had been sure as to whether it was moving or stationary in earlier statements. Mr Damiano said that the bus was stationary when he and the Claimant boarded it. Ida Bollito said in evidence, and in her statement to the police that the bus had stopped at the red traffic lights, but she did not remember whether the bus was stationary when the men boarded it.
4. Mr Damiano entered the bus first, showed his pass to the driver and moved into the bus a little, either staying beside the driver or moving along the bus a short way so that he was just behind the point where Mr Boyd was sitting in the first passenger seats on the nearside behind the luggage rack. The Claimant on boarding the bus searched for his pass or change for his fare, whilst remaining close to the open door. He either stayed in that position, or moved somewhat towards the driver in order to show his pass and then moved back again towards the door. His purpose in remaining at the doors or moving back towards them was either to look out for the two women who had not yet caught up with the bus and encouraged them to 'come on,' or to block, or prepare to block, the doors to ensure that they could get on when they arrived, or both.
5. What is clear is that the driver closed the doors when the Claimant was on the platform at their threshold, and they closed upon him. The Claimant sought to keep the doors open, either to ensure that the women could get on board, or taken by surprise at the fact that they were closed upon him, sought to prevent himself being trapped by them.
6. The driver, having started to pull away as soon as the men boarded the bus and having closed the door very shortly after they had boarded it, either continued forwards, or set off. He increased his speed from stationary or a crawling speed to 10 – 15 mile per hour in spite of the fact that the Claimant was still on the threshold of the doors either holding them open or trapped by them. When the bus was travelling, in Mr Boyd's estimate at a speed of about 15 mph or of that order, the Claimant either lost his balance and fell from it, landing momentarily on his feet before going backwards and striking his head hard upon the road, or jumped off the bus intentionally in what Mr Boyd described as a peculiar manner, and in what the driver described as the worst possible way, in that his back was against the direction of travel. The consequence was the same; he landed on his feet and then fell backwards striking his head on the road.
7. The position of the doors in relation to the Claimant's body, his position on the step, and whether he lost his balance and effectively fell from the bus, and if so from what cause, or chose to jump, are all issues substantially in dispute. Mr Damiano and Miss Bollito describe him being trapped with his back against the front door and his chest against the rear door. Mr Damiano said he was more outside than inside the bus, with his arms on either side struggling to get free with a panicked look upon his face. Miss Bollito said he looked scared, he did not know what to do, he was losing his balance. The bus driver only saw what happened out of the corner of his eye as he also had to concentrate upon driving forwards, but Mr Boyd said that the Claimant was not panicked by the situation, was not in peril when wedged by the door, and that his impression still was of more a hop than a fall. He didn't believe the Claimant was trapped and thought that he could have stepped away from the doors at any time though he also described the gap left by the doors as being very tight or fairly tight to the Claimant's body width. He also accepted that from the position from which he was sitting he was unable to see the Claimant's feet because of the luggage rack but only his upper half, and was not therefore able to say where his feet were in relation to the edge of the step or whether the Claimant was balanced or unbalanced.
8. Mr Damiano said that the cause of the Claimant falling was because he was trapped between the doors and lost balance when the driver stamped on his brakes and also released the doors. Miss Bollito said that the Claimant fell shortly after the doors had closed on him and she did not remember whether the driver had braked. Mr Boyd said that there was no harsh braking and the driver said in his statement to the police that he did not brake at all because he was fearful that if he did, the Claimant would fall from the bus into the road. In his evidence the driver said that if he had braked the Claimant could have fallen off, and added that he did not know what condition the Claimant was in or the state of other traffic; he couldn't see in his wing mirror. The inability to see the wing mirror had not been mentioned in any earlier statements and it is to be noted that in paragraph 17 of his witness statement the driver referred to the Claimant gesturing to a woman whilst he was holding the doors open in order to let a female companion on to the bus. There is no evidence that the Claimant was in any way affected by alcohol and no such allegation was pursued by the Defendant.
9. There was no evidence that there was any other vehicle behind the bus seeking to pass it on its nearside at any time, and the configuration of the road, with the kerb of its bus lay-by projecting into the road, would have prevented this in any event or made it difficult and unlikely for any motorist to achieve, or even attempt.
10. Mr Boyd said that there was no reason why the driver should not have slowed down and brought the bus to a gradual stop. In fact he chose to accelerate from either a stationary position or crawling, to a speed up to about 15 mph.
11. In his contemporaneous statement made to the police within about 1¼ hours after the accident the driver said-

"Whilst in motion I became aware of three men boarding my bus by the front door….This man (the Claimant) was still stood by the doors and I believe the rear front door was closed but the man was forcing open the front door. He was facing out towards the street with his back towards me, using his right arm to hold the open door. Due to where he was stood I did not want to brake as I feared that he would fall from the bus in the road. The next set of traffic lights in front of me were red, but as I approached they changed to green and I made a judgment to carry on ahead as I still feared that if I braked my vehicle he would fall into the road. At this point I believe I was travelling at 10 – 15 miles per hour. I believe that I was maintaining my speed, hoping that the man in the doorway would completely board my bus and let the door shut behind him. I could see the man out of the corner of my eye although I was maintaining my vision on the road. Then suddenly without warning I saw the man jump from the doorway into the road, as he did so I turned to see what was going on. I saw the man turn as he jumped, which meant his back was facing towards my direction of travel. I saw him land on his feet in the road and as he did so he fell backwards, hitting the back of his head in the road. I had traffic behind me and I did not want to stop immediately in case a vehicle behind tried overtaking me on the nearside of my vehicle, further endangering the man, also I had about 20 – 30 passengers on my bus, and if I braked sharply one of them may have got injured or I may have got hit by a vehicle from behind."

He therefore drove off into Cockspur Street over 100 metres from the point of the accident.

12. The only criticism which Mr Boyd made of Mr Montero's driving was the fact that he had travelled so far after the accident. Other than that he said that he was driving normally and he did not consider that the driver did anything wrong.
13. Rule 33 of the Drivers Rule Book states as follows:-

"Passengers boarding and alighting

You must be vigilant at bus stops and other authorised stopping places to ensure that passengers board and alight safely…

For buses with a separate centre exit, the sequence of operation to be followed is as under:-

..

5 When all the passengers have boarded, close the entrance doors.

..

7 Before pulling away, make a final check in the nearside, exterior and interior mirrors, to ensure that all passengers have boarded and alighted safely.

..

In no circumstances should a bus with passenger doors be moved in service with any door open."

14. The driver accepted in evidence a driver should close the doors before moving off and should not move with the doors open. He said that he was in breach of these rules on that night. In re-examination he said that in giving that evidence he was only accepting that it is contrary to the rules but was not saying that he was wrong in this particular situation. He formed the view that as the bus was already moving anyway, rule 33 did not apply.
15. There are documents within the papers which recall the various descriptions of how the Claimant left the bus. Thus a witness on the bus from whom no statement was taken said that she saw a man jump off the bus (Natasha Waggon); another is reported to have said 'he had seen a man jumping from a moving bus'; a report to the NHS describes the Claimant as jumping off the bus whereas another describes him as trying to get off the bus and hitting a lamp post; other NHS documents describe the incident as a fall? jumped or hit by a bus, or jumped through doors hitting head on lamp post, or seen to fall/jump from slow moving bus, or came off bus in motion hitting lamp post or jumped/stepped off slow moving bus. Perhaps of more value than these very brief mixed descriptions is that which is recorded as being reported by the driver shortly after the accident had occurred. When such an event happens the 'Code red' system comes into play and the driver has to make an incident report back to base. The record of this report from the driver made shortly after the accident is that "Passenger fell from front doors in The Haymarket".

The expert evidence.

16. There is an agreed joint report from the two experts instructed in this case, Mr D W G Harris on behalf of the Claimant and Mr A J Alford on behalf of the Defendant. The experts agreed that when the 'door close' button is operated by the driver there is an audible hiss from the doors pneumatics which can be heard by a person standing by the driver's cab and would alert that person to the fact that the doors are about to close. The hiss can be heard for one – two seconds before the doors commence their closing action. When unimpeded the doors close in about four seconds overall.
17. A person can become trapped in the closing doors of the bus provided he is standing on the threshold of the doorway at or close to the centre of doorway. He can free himself by pushing on the leading edges of both doors so that one door remains in the fully closed position while the other is forced open. Once freed from entrapment in the doors a person could then jump or fall from the bus.
18. Unless a person is standing on the threshold of the doorway at or close to its centre the movement of the doors would miss the passenger or tend to sweep him back into the bus.
19. The distance between the bus stop where the group of four tried to board the bus and the traffic lights is some 43.4 metres and the distance from the stop line at the traffic lights near to The Haymarket Theatre to the position of the fall is 23.8 metres on Mr Alford's revised measurements. The time taken for the bus setting off with the Claimant on board and the Claimant leaving the bus was 6 – 8 seconds in duration.
20. A video of the tests carried out by the experts in order to demonstrate the various descriptions of the witnesses as to how the doors closed, how they could be blocked and opened was before the Court. I have watched that video on more than one occasion.

Submissions.

21. I was greatly assisted by the oral and written submissions of each party. I do not propose to rehearse each of them here but I have taken them fully into account.

The Defendant's submissions.

22. The evidence of the only independent witness Mr Boyd, is consistent and coherent and was given in a measured and reasonable way. His evidence fits with that of the driver and the engineering evidence. The opposite is the case with the dramatic account of Mr Damiano and Miss Bollito. The event was shocking and tragic to them and inevitably they told and retold their story before it was reduced to writing. They wrote their accounts for the police together. Miss Bollito's evidence is inaccurate because of the distance she was from the rapidly occurring events, the fact that it was dark and she was running for the bus and could not see inside. Mr Damiano's evidence however is, in the Defendant's submission, unreliable and incredible. The account given is hostile to the driver, being almost tantamount to an allegation of assault, yet no such impression was given to anyone either at the scene or elsewhere before the statements to the police were made by them much later in September 2005.
23. Mr Matthews on behalf of the Defendant relies in particular upon three matters to support his proposition that Mr Damiano was not telling the Court the truth. Firstly his detail about people boarding the bus was inconsistent with his earlier evidence and contrary to all the other evidence in the case. He maintained that a black man in whose face the doors shut at the bus stop was very angry and attempted to kick the bus and shouted before walking off. Secondly Mr Damiano's evidence about seeing the Claimant being caught between the doors, when in his statement he suggested he had not seen this actually happen is unsatisfactory particularly when his own evidence of his position was contradicted by the independent witness. Thirdly his evidence as to heavy braking causing the Claimant to fall was most unlikely; nobody else remembered it including Miss Bollito and the evidence was only given in order to get over the difficulty that the doors could not be opened, which Mr Damiano also said happened, if the bus was travelling in excess of 3 mph. This evidence was simply a recreation rather than proper evidence. Mr Matthews also relied upon the evidence which Mr Damiano gave about the bus approaching the stop fast with the doors open, which he submitted was false or exaggerated.
24. The Court should, Mr Matthews submitted, reject Mr Damiano's evidence on the grounds that it is unsatisfactory and not credible and accept that the doors were opened, not by Mr Montero, but by either Mr Damiano, or perhaps more likely the Claimant as he got on second. Indeed Mr Boyd's evidence should be preferred and as that substantially supports Mr Montero's evidence that should also be credited.
25. As the bus was still some distance, whichever account is accepted, from the traffic lights and not far from the bus stop it is probable that the bus was still moving rather than stationary.
26. Mr Matthews submitted that the driver was not to know that the CCTV camera in his bus was not operating when he spoke to the police. He would therefore think or know that any discrepancies between his account and the CCTV film would be seized upon. His account to the police was therefore likely to be accurate.
27. Given the situation that he was faced with the driver cannot be criticised Mr Matthews submitted. On a busy Saturday evening he needed to be aware of many things including cars, other vehicles and milling crowds. As he was boarded when he was still moving, continuing to move slowly cannot be regarded as culpable even if it was in strict breach of rule 33. He had to keep his mind on the dangers, namely that if he braked the man might be destabilised and fall, whereas at a steady pace the man could have moved back into the bus as Mr Boyd considered, and become entirely safe. Furthermore if he had braked vehicles might have tried to undertake him on his nearside further endangering the man on the platform. It was not foreseeable that anybody would jump off at the speed of the bus. Any criticism of Mr Montero was a counsel of perfection.
28. This was a case like Marshal v Lincolnshire Road Car Company (2000) CA Civ 712 [2000] where the answer to the question, 'whose fault is it?' was 'the passenger's fault'.
29. In any event contributory negligence should be 100% if the Claimant jumped off as he put himself in a position of danger and the driver could do nothing to make him safe. Even if he toppled off unbalanced having forced open the doors he created the danger to himself and the driver did not contribute to it. Again it would be 100% contributory negligence. However if he fell off unbalanced he must have been on the edge of the platform and had put himself in a position of danger. Even in those circumstances he would be guilty of 85 – 90% contributory negligence.

The Claimant's submissions.

30. Mr Levy submitted that the probabilities support the main thrust of the Claimant's case, that he was on the edge of the platform looking out for the women when the doors were closed on him, trapping him and causing him to struggle and become unbalanced. This was the case even in the absence of any braking. Braking is a matter of perception and the fact that Mr Damiano raised it did not in any way diminish the main thrust of his evidence as to the position of the Claimant, the doors closing on him and him losing balance. This was also the evidence of Miss Bollito. The evidence of both of the Claimant's witnesses that there was a look of panic on the Claimant's face as he struggled to free himself is compelling.
31. It is probable that the Claimant, anxious that the girls should arrive in order to be able to get on the bus, would be and remain close to the edge of the platform looking out for them. Mr Boyd's evidence demonstrated that Mr Damiano was in a good position to see what happened, indeed better than Mr Boyd as Mr Damiano's view was not restricted by the luggage rack. Miss Bollito must have been close to the bus as the doors were closed on the Claimant shortly after it moved away and just before that she was seen by Mr Boyd to be level with the centre door of the bus. She was therefore in a good position to see what was happening and the look of panic on her brother's face as the doors closed on him.
32. There must be doubt about Mr Boyd's evidence as to seeing the Claimant's trousers and shoes as he got the colour of the trousers wrong Mr Levy submitted. His evidence that there was nothing to stop the driver from slowing down the vehicle and coming to a gradual halt was important. The driver should not have accelerated given the position of the Claimant and the rules forbidding him to do so in such circumstances. The evidence that it was Mr Montero who opened the door was more compelling. The fact that Mr Damiano knocked on the door and it was then opened supports this and there is no reason to doubt Mr Damiano's evidence that he did not know of the emergency button. The evidence that the bus was stationary when the Claimant and Mr Damiano boarded it is also more compelling. The traffic lights before The Haymarket Theatre were red, Mr Montero was not sure in his witness statement whether he was stationary or slow moving but there was traffic which could have led to congestion causing the bus to be stationary some little way back from the traffic lights.
33. Whether the bus was stationary or crawling the driver could have opened the doors, but whichever he was doing he should not, Mr Levy submitted, have continued to move forward after he had closed the doors on to the Claimant. There was no basis for the Claimant knowing that the driver would continue to accelerate in such circumstances. What he should have done was to have slowed down and avoided the danger that he himself had recognised to someone in the Claimant's position.
34. Mr Levy submitted that even if the Claimant did in fact deliberately block the doors the Defendant was still to blame for closing the doors on the Claimant and then driving away with the doors effectively trapping him when he knew that there was a risk of injury. Although Mr Boyd said that the Claimant could have released himself from the door Mr Boyd did not know where the Claimant's feet were or whether he was balanced or unbalanced.
35. Upon any basis therefore the Defendant was guilty of negligence though, Mr Levy said that if the Claimant was responsible for deliberately blocking the doors and then fell off he would be 50% liable in contributory negligence; if he jumped off having blocked the doors he would be between two-thirds and 75% contributory negligent, but if he fell off without having blocked the doors he would not be guilty of contributory negligence at all. This latter position was accepted by the Defendant.
36. Mr Levy therefore invited the Court to find that the Claimant boarded a stationary or near stationary bus after the driver had opened the doors for him and Mr Damiano. The Claimant stayed on the threshold of the doors looking towards the approaching girls; the doors were closed upon him catching him at the front and back; the bus then started to gain speed and accelerate; the Claimant became unbalanced and fell so that the fall was involuntary and not a jump.

Findings of fact.

37. In reaching my conclusions as to the facts I have taken into account the fact that both Mr Damiano and Ida Bollito were deeply shocked by the events of 16 July 2005. The seriousness of the injuries sustained by Miss Bollito's brother and Mr Damiano's friend and the wholly unexpected circumstances in which they arose will inevitably have heightened their perception of the actions of the person they undoubtedly regard as being at fault. They are hardly impartial witnesses even if they may be fundamentally honest ones. The driver, Mr Montero, however, also has an interest to defend; not merely his reputation as a driver but the natural reluctance to be responsible for causing such serious injuries. I have taken into account the fact that the Defendant's case goes much further than this; it is alleged against Mr Damiano in particular that he is a dishonest witness who has given inaccurate and untruthful evidence to the Court.
38. It was a reasonably busy night as the new Harry Potter book had been published that evening and the bus was 25 minutes late. I accept the Defendant's evidence that this did not cause him difficulties with his employers. When the bus arrived at the bus stop it was not going slowly but nor was it travelling at an excessive speed. I accept Mr Damiano's evidence that the doors were opened as the bus came to halt and before it had stopped. I considered the evidence given by all the witnesses with care, and I observed their demeanour. I am quite satisfied that all the witnesses were seeking to tell the truth and give me the best of their recollections.
39. I am satisfied that the bus remained a short while at the bus stop at which the group of four were seeking to board the bus. Some people got off though there is doubt as to whether anyone entered the bus. Certainly there was a substantial number of people, maybe 20 or 30, milling about on the pavement in the area of the bus stop in question, not just at the bar, Tiger Tiger where several witnesses had mistakenly thought that the bus had stopped. I accept Mr Damiano's and Miss Bollito's evidence that they had just arrived at the bus stop when the bus pulled away. They both clearly felt that the driver would have been aware of them and should have waited for them, hence the comment made by Mr Damiano as he got on to the bus 'Didn't you see us waiting at the bus stop' and muttering as he walked past Mr Boyd.
40. The Defendant submits that the evidence of Mr Damiano that a black man angrily attempted to punch and kick at the door of the bus after the doors had been closed in front of him was effectively an invention. This assertion is based upon the fact that no mention was made of this fact in the statement to the police and indeed that it was inconsistent with such a statement. I do not accept that that is correct. In his statement to the police at TB251 Mr Damiano said "There were other people at the bus stop but he did not give anyone a chance to get on". I regard this as a statement which is entirely consistent with the greater detail which Mr Damiano provided in his witness statement and in evidence. I accept the account he gave me that when he made his statement to the police he did not record every single detail in it but those which struck him at the time as being necessary and appropriate. I reject the assertion that this part of Mr Damiano's evidence was an indication of the fact that he was exaggerating his account or lying.
41. The proximity of the Claimant and Mr Damiano to the bus stop when the bus pulled away is also confirmed by the fact that he and the Claimant were able to board the bus not very far away from the bus stop, namely at a point just after the bollard before the telephone kiosk and before the traffic lights near The Haymarket Theatre marked as traffic lights 3 by Mr Alford.
42. The traffic lights were some 40 metres from bus stop 2 whereas the bollard was only about 10 metres. There was some traffic about and although no-one else can recall a vehicle in front of the bus at the traffic lights I see no reason to doubt Mr Damiano's evidence as to this and find that there was another car at the traffic lights ahead of the bus. These lights were initially at red as the Defendant said in his statement to the police and as Miss Bollito said.
43. The bus was either stationary or very slow moving when the Claimant and Mr Damiano boarded it. Mr Damiano said that the bus was stationary and Miss Bollito in her evidence was not sure. The driver said that the bus was in motion in his police statement but in his witness statement said that he was not 100% certain whether he came to a complete halt because of the traffic lights or build up of traffic or whether he was moving at a walking pace. Mr Boyd said in evidence that he thought the bus was crawling along when the men approached and could not recall that it was stationary at that point. When he spoke to Miss McClure one of the claims handling agents for Arriva however in 2005, Mr Boyd is recorded as saying:-

"Driver opened doors – let two on – both guys showed passes.. driver pulled off at crawling speed."

This gives the impression that the bus had in fact been stationary and then moved away or pulled off at crawling speed.

44. I find on the balance of probabilities that the bus was stationary behind another vehicle at the traffic lights before The Haymarket Theatre when the Claimant and Mr Damiano boarded it. If I am wrong in this finding and the bus was not stationary it was travelling as Mr Boyd said, at crawling speed, or as Mr Montero described it, creeping along towards the lights.
45. I find on the evidence that it was the driver, Mr Montero, who opened the door after the Claimant and Mr Damiano had banged or knocked upon it seeking entry. The driver said he did not, but no direct mention of that is made in his police statement although he does say that he was in motion when they entered the bus. Mr Boyd thought that the 'driver opened doors-let two on' but did not really know who had opened the door as he said in evidence. Mr Damiano said that he did not open the door from the outside and didn't even know then that he could. He was not aware of the emergency button under the flap. Miss Bollito saw no-one press any button on the outside of the bus and was not aware of its existence. There is no evidence of where the Claimant was either left or right or behind Mr Damiano, or what his knowledge was of the existence of the emergency button. I do not accept the Defendant's submission that it was probably the Claimant who pressed the emergency button.
46. There is no evidence that the Claimant knew of the button nor any evidence that the passengers opened the doors from the outside by that means, in contrast to the evidence that passengers not infrequently ran along the road for the bus trying to persuade the driver to stop, or sought to block the doors when on the platform and let someone else on.
47. The evidence that Mr Damiano had knocked or banged on the doors was confirmed by Mr Boyd. It seems more probable to me that the intention of Mr Damiano and the Claimant in going to the doors and knocking on them was to persuade the driver to let them in and that he responded by doing so. I accept Mr Damiano's evidence that he did not operate the emergency button from the outside and that he did not know of its existence or of that method of opening the door at that time. I also accept Miss Bollito's evidence that none of them to her knowledge knew of the presence of the emergency button and her evidence in cross-examination that no-one pressed it.
48. If the bus was either stationary or moving very slowly or creeping along it is probable that the driver was capable of opening the door on the agreed expert evidence. In other words the bus was either stationary or travelling at 3 mph or less.
49. I find that this is what happened. I reject the driver's evidence that he did not open the door. Any admission by him that he had so acted would amount to a breach of the rules. In his police statement he is silent as to who operated the button and merely refers to the bus 'being in motion' without saying at what speed. I do not accept his evidence given in further examination that he did not know that when the doors were closed they could be opened whilst the bus was moving.
50. I am further satisfied on the evidence that Mr Damiano showed his pass to the driver and moved into the bus. He said he was still by the driver but Miss Bollito said that he went inside the bus and Mr Boyd said that he was near him but behind him. I consider that Mr Damiano was a little further into the bus than he remembers but certainly in a good position to see what happened, including the lower half of the Claimant's body. Indeed, as Mr Boyd himself suggested, he was in a position in which he could see more than Mr Boyd.
51. The Claimant got on to the platform and looked for his pass or money to pay his fare and according to Miss Bollito found it. In doing so he may well have taken a step towards the driver to show his pass which enabled Mr Boyd to see his trousers (albeit the wrong colour) and black shoes. He was however anxious about the girls catching up with the bus and as a consequence never moved far from the threshold of the doors because of that concern. I have no doubt on the evidence that when the driver operated the switch to close the doors the Claimant was already between them, not clear of them as was at one time suggested by the driver. I am satisfied that Mr Montero was right when he said in re-examination that the Claimant was not clear of the doors but already there blocking them when he operated the button to close them. In other words before the two seconds hiss, whilst the doors were still fully open and the Claimant was standing between the doors.
52. When the Claimant was standing there there was no reason why he should know that the driver would seek to close the doors upon him in such circumstances. Indeed it seems to me probable that he would assume that the driver would not so act.
53. The driver did in fact close the doors upon him. He did so without warning to the Claimant who was paying attention to the arrival of the girls, who by this time were by the back of the central doors of the bus. They shouted 'Oi' and could clearly be seen alongside the bus as Mr Boyd said. This is confirmed by the Defendant's own witness statement paragraph 17 in which he refers to the Claimant gesturing to a woman, giving him the impression that he was holding the doors open to let her on to the bus. This is further confirmed by the fact that Claimant was looking out of the bus saying words to the effect of 'come on' to the girls.
54. It is to be noted that the driver had not said that his view of the wing mirrors had been blocked to the police nor in his witness statement and I doubt that this part of his evidence was accurate.
55. I find that the doors closed towards the Claimant whilst he was looking at the approaching girls encouraging them to move or come on. At this time he was looking towards them and standing on the threshold of the platform. There is little doubt that however his position between the doors is variously described by the witnesses, the doors effectively closed tight to him. Mr Boyd had said in cross-examination that the rear panel of the front door was blocked by the Claimant with 70% of it open and the other door closed but clarified this in re-examination in stating that the gap left was tight or fairly tight to the Claimant's body width. This evidence is entirely consistent with that of Mr Damiano and Miss Bollito. Their impression that the Claimant was trapped by the doors is another way of expressing that they were tight or fairly tight to his body.
56. I accept the evidence of Mr Damiano and Miss Bollito that there was a look of panic on the Claimant's face; he looked scared. This is not the way a man would look if he were totally in control and able to move away from the doors as Mr Boyd thought to be the case. Mr Boyd's evidence that he did not believe the Claimant was trapped, that the doors did not close on him, and that he was not in peril when between them, is inconsistent with the evidence of Mr Damiano and Miss Bollito of the look of panic or fright on the Claimant's face. Mr Boyd accepted in evidence that from his position he could not see the lower half of the Claimant's body nor where his feet were in relation to the edge of the platform, and didn't know if his feet were balanced or unbalanced. This made it very difficult for Mr Boyd to assess how free the Claimant was and what capacity he had to move or to free himself and indeed whether he was unbalanced and fell or whether he intentionally jumped or hopped from the bus.
57. I am quite satisfied that Mr Damiano and Miss Bollito are correct in their description of the Claimant with a panicked look on his face, effectively trapped by the doors. It has to be borne in mind that standing calmly on the platform on a stationary bus and testing the ease with which a person can resist the doors, or stop them closing upon them as the experts did, is very different from the situation faced by a man upon whom the doors have closed whilst he is looking towards the approaching women and with the bus accelerating or picking up speed. This can only be described as an alarming situation to be in.
58. The evidence of the Defendant's driver is not in my judgment of much assistance on this point. Having decided to close the doors when the Claimant was blocking them in the hope that he would completely board the bus, he then continued to drive down the road accelerating to 10-15 mph with the Claimant still there between the doors. He only saw the Claimant out of the corner of his eye as he said in both his police statement and in evidence as he was concentrating on his driving as well. Although he said in evidence that he could clearly see the Claimant I do not consider that his evidence as to how the Claimant was standing or what he was doing can be given much weight. The driver had, by his own actions in picking up speed, created the need to concentrate on the road as well as the safety of the Claimant and it is inevitable in such circumstances that only part of his attention could have been upon the Claimant.
59. When the Claimant was looking towards the approaching women and encouraging them to 'come on' he may well have had his back and part of his left side towards the driver. It is difficult to determine the Claimant's precise position when the doors closed tight or fairly tight against him but it is probable from what he was doing immediately beforehand that his right leg would have been towards the edge of the platform, and the front of the doors probably closed against his back. This would put him in the position substantially as described by Mr Damiano with his right arm and right leg outside the door and his left arm and leg inside the doors but more outside than in.
60. Mr Montero and Mr Boyd both described the Claimant seeking to keep the doors open but in different ways. Mr Montero says that he was keeping the front panel open with his right shoulder to it and the rear panel with his left leg. Mr Boyd said he was using his left forearm. In his police questionnaire Mr Montero said that the rear front door was closed whereas Mr Boyd says it was the front panel which was closed and the rear panel nearest the luggage rack which was partially open. The fact that the Defendant was concentrating on moving away, as well as on the position of the Claimant, and the fact that Mr Boyd could only see the upper half of his body reinforces my view that the evidence of Mr Damiano and Miss Bollito is to be preferred on this issue. Mr Damiano was in a position to see where the Claimant was trapped between the doors even if he did not see the doors starting to close. Miss Bollito was also in a good position to see this as when the bus drew away from her she was close to the centre doors, and the driver closed the doors on the Claimant very shortly after he had got on to the bus and it pulled away. At the time that the doors closed on her brother therefore, Miss Bollito would have been close to the bus, even if when he fell off she would have been some 30 or so metres away depending on how far away from the traffic lights the bus was when the Claimant and Mr Damiano boarded it and Miss Bollito narrowly missed catching it.
61. The actions of a man who is trying to stop the doors closing upon him and those of a man seeking to block the doors to allow a passenger in may not look significantly different to the casual observer but I am satisfied on all the evidence and in particular on that of Mr Damiano and Miss Bollito which I accept, that the door was closed on the Claimant as he was standing on the edge of the platform looking out, and that his subsequent actions were an attempt to release the doors from himself rather than hold them open for the approaching girls. Had he been standing at the edge of the platform with that clear intention in mind he would have been able to achieve it without ending up in the position he did with the doors tight or fairly tight against his body. That appears to be clear from the expert's tests. The picture I have is one of a man taken by surprise rather than one who was simply holding open doors for someone to get on.
62. Mr Montero's own evidence that when he operated the button the Claimant was not clear of the doors but standing between them rules out Mr Boyd's suggestion that the Claimant, on hearing the hiss of the doors starting to close, deliberately moved into their path in order to block them; he was already on the edge of the platform between the doors when the button was operated. I have no reason to suppose that the Claimant was doing anything other than concentrating upon the approach of the women urging them to 'come on' and that is the reason why the doors were able to close tight or fairly tight against him without him successfully keeping them open. I therefore conclude that the Claimant did not intentionally block the doors, and did not have that intention, but when finding the doors closing against him sought to prevent that and release himself.
63. The final question to be determined is whether the Claimant jumped or hopped from the bus as some people have described or whether he fell as others have described it. The evidence painted a very clear picture in my mind. Mr Montero and Mr Boyd both said the Claimant exited from the bus in a peculiar way. Indeed Mr Montero said that he chose the worst time, that is when the bus was at a higher speed, and in the worst possible way by jumping off against the direction of travel. It is highly implausible that anyone would deliberately jump out of a bus in this manner, and when the bus was travelling at such a speed that injury was virtually inevitable. When the struggling Claimant managed to free himself from the doors he lost his balance and fell. The fact that he initially landed on his feet before going backwards on to his head is not in any way inconsistent with this.
64. Furthermore there would have been no purpose in the Claimant jumping off the bus as Mr Damiano was still on it and he did not have to take such a foolhardy action when he could simply have waited until the next traffic lights or the next stop to be let out. Mr Damiano was in fact let out at the next traffic lights.
65. When considering the evidence as a whole and having regard to the probabilities I am satisfied that the Claimant fell from the bus and did not intentionally jump or hop from it.
66. Mr Montero did not stop until the lights at the bottom of Haymarket some 78 metres from the point where the Claimant fell from the bus and eventually went over into Cockspur Street before stopping and letting his passengers out. There is no reason why he couldn't have stopped immediately after the accident happened.

Conclusions.

Negligence.

67. I have no doubt in concluding that the driver Mr Montero was negligent. He knew that the Claimant, having boarded the bus, was gesturing to the women approaching alongside the bus so that they could get on too. The Claimant would have been on the threshold of the platform in order to gesture to the women. The driver knew that the Claimant was between the doors when he operated the button in order to close them. In spite of that the driver either set off or continued forward and indeed picked up speed. He thereby made it more difficult for himself to be able to consider the safety of the Claimant as he also had to concentrate upon traffic upon the road. It was his choice to move off or continue to move forward as he said in evidence. He could have allowed the bus to come to a halt until the Claimant was clear of the doors before setting off again. He had no need whatever to accelerate up to a speed of about 15 mph. The fear that he had of the Claimant falling was caused by his accelerating away with the knowledge that the Claimant was between the doors. He was thereby taking a risk in that he was potentially endangering the Claimant's safety. The need to brake, which is what he said he feared, would not have arisen had he not so acted.
68. Mr Montero was right to accept that there had been a breach of rule 33 and his attempts to say that there had merely been an apparent breach of the rule and no actual breach in re-examination was incorrect. The rule relates to the safety of passengers boarding and alighting and also places a general prohibition on the bus being moved in service with any door open. The driver was in breach of rule 33 and negligent in setting off and accelerating when, as he knew, the Claimant was between the partially closed doors in a position of potential danger.
69. The danger was created by the driver setting off or continuing to move, and then accelerating with the Claimant still between the partially closed doors. The argument that the driver had many things to concentrate upon such as the road and other traffic, is unsustainable as he brought about the situation in which that additional care was necessary by continuing and accelerating. In any event the point is without merit as there was, as Mr Boyd said, no reason why he should not simply have slowed the vehicle down and brought it to a halt. This would have avoided any of the driver's fears about braking and enabled the Claimant to be made safe by moving away from the doors when the bus stopped. The configuration of the road seen for example in photos 192 and 193 makes it almost impossible for any vehicle to pass the bus on its nearside. The projection of the end of the bus lay by does not permit such an action until the bus has passed the end of the projecting kerb. If the bus driver had thought that this was a possibility he could, in slowing down and bringing the bus to a halt simply have moved in slightly to his left closer to The Haymarket Theatre to ensure the Claimant's safety.
70. Bus drivers no doubt have to put up with difficult and on occasions unsafe behaviour by passengers. I do not underestimate the difficulties that their job sometimes entails. Nevertheless here, however impatient the driver may have been at the Claimant's conduct in boarding the bus and standing on the edge of the platform and gesturing towards his women companions, he had neither need nor cause to close the doors on the Claimant or set off or continue moving and accelerate. It must be borne in mind that the driver is in charge of a vehicle capable of travelling at speeds at which a fall by a passenger could be fatal or lead to very serious injuries. The driver failed to take the level of risk that he had created into account here.
71. I have found that the driver closed the doors when he knew that the Claimant was between them, that the Claimant was trapped or partially trapped by the doors and did not deliberately obstruct them and that he became unbalanced as the driver accelerated down the road in his struggle to get free and as a consequence lost his balance and fell. He did not voluntarily jump or hop from the bus. Nevertheless, even if I had found that the Claimant had attempted to block the doors and had jumped from the bus I would still have found the driver guilty of negligence. It was his moving off and accelerating which created an unnecessary danger for the passenger. If, as Mr Boyd suggested, the Claimant had jumped off the bus because he was unaware of the situation around him and, in particular that the bus was going far too fast for him to jump out of at the time, it was the Defendant's actions in moving off and accelerating which exposed the Claimant to the very severe consequences of a misjudgement of the speed of the bus. There may well have been substantial contributory negligence in such circumstances but that does not alter the fact that the bus driver owed a duty of care to the passenger and was clearly in breach of it by driving along and accelerating with the doors open and the Claimant forcing the doors open.

Contributory Negligence.

72. On the basis of my findings of fact, and in particular that the Claimant did not deliberately seek to block the doors but only sought to prevent himself being trapped by them, and that he did not jump from the bus intentionally but lost his balance and fell from it, there is, as is agreed between the parties no scope for any finding of contributory negligence.
73. The case has been argued before me in considerable detail and in the circumstances I consider it appropriate to express my views upon the levels of contributory negligence had my findings been more favourable to the Defendant's case. If I had found that the Claimant sought to block the doors but nevertheless fell from the bus rather than jumped from it I would have found him 25% to blame. If however he sought to block the doors and jumped from the bus I would have found him 50% to blame. I regard the culpability of the driver in moving off and accelerating with the Claimant on the edge of the platform as high even in these circumstances. Driving at approaching 15 mph with a passenger on the edge of the platform having left his women companions behind was to create wholly unnecessary danger. I do not consider that the Claimant's misjudgement even on this assumed set of facts would amount to contributory negligence higher than 50%.
74. On the facts as I have found them however there is negligence by the Defendant's driver but no contributory negligence by the Claimant and accordingly I give judgment for the Claimant for the full value of his claim.