McEwan was a pedestrian walking on the pavement; he was wearing a bright yellow jacket and was position roughly 2/3rd of the width of the pavement from the wall. He moved towards the edge of the pavement with the intention of crossing the road when he was struck in the face by the nearside wing mirror of a bus owned by Lothian buses.
At first instance, the Sheriff ruled in favour of Lothian Buses on the basis that the driver would not have had time to react as McEwan moved towards the edge of the pavement.
On appeal, it was established that McEwan had proved a case of negligence against Lothian Buses. He was on the pavement where, as a pedestrian, he was entitled to be. The Sheriff ruled it was reasonably foreseeable in the circumstances of this case that a pedestrian walking within about a metre of the edge of the pavement might, at any time, change direction and come to the edge of the pavement.
The duty of care was on the bus driver to take reasonable care by driving at a speed, manner and position to avoid hitting a pedestrian with part of the bus encroaching over the pavement.
The appeal was therefore allowed.