Scottish Court of Session Decisions

The cause called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Murray for a hearing on the summar roll at which the pursuer argued, inter alia, that the Lord Ordinary erred in allowing a case of contributory negligence to have been made out.

At advising, on 14 May 1998, the opinion of the court was delivered by Lord McCluskey.

OPINION OF THE COURT—This is a reclaiming motion against an interlocutor pronounced by the Lord Ordinary (Lord Marnoch) on 17 May 1996 decerning against the defender for payment of damages to the pursuer as guardian of his pupil child, Lucy. The amount of damages was agreed, on a full liability basis, at £110,000. The award contained in the interlocutor reflected the Lord Ordinary's finding that the damages recoverable in respect of the loss, injury and damage sustained should be reduced by 20 per cent in respect of the child's contributory negligence.

Lucy was born on 31 July 1982. Her sister Jodie was born on 10 August 1984.

On 4 August 1992 Lucy was seriously injured in a road accident in Cairngorm Avenue, Aviemore, when she was struck by a motor car driven by the defender. Where the collision occurred Cairngorm Avenue ran east and west. The defender was driving the car in an easterly direction. Lucy and Jodie were on their way home after a visit to a friend's house. Their home at No 19, was on the south side of Cairngorm Avenue. That street, however, curved in a southerly direction some 40 yards or so west of the locus of the accident and then ran north and south, and No 19 was located in the north/south stretch of Cairngorm Avenue. The layout is well illustrated in two plans in No 18/3 of process. Lucy and Jodie approached the north pavement of Cairngorm Avenue by way of a footpath which ran at right angles to the pavement and emerged opposite No 3. The surface of the footpath was made of stone chips and gravel. It may be seen in the photographs Nos 18/2 of process, notably photograph No 4. There was a hedge some five feet high running along the west side of the footpath. The same hedge extended at a right angle westwards from the exit to the footpath and continued about 10 feet in a westerly direction on the north side of that pavement (the north pavement). It then continued at an angle to the north west. Immediately to the west of the continuation of the hedge there was another path and between that path and the western extension of the north pavement there was an open grassed area. There was a telephone box close to the pavement and it was situated in the angle between the path to the north west and the north pavement. (The plans referred to illustrate these features). In the vicinity of the exit to the footpath the pavement was six feet wide. The roadway there was approximately 15 feet 6 inches wide, from kerb to kerb. Lucy who had her bicycle with her and Jodie who had no bicycle both emerged from the footpath onto the north pavement. Shortly thereafter, Lucy, who at the time of impact was on her bicycle, was struck by the front of the car driven by the defender. The nearside of the car was several feet out from the kerb of the pavement when the collision took place. Photograph 21 of 18/2 was taken to illustrate the approximate positions of the bicycle and the front of the car; the positioning shown there being deduced by the investigating police officers from the damage to the two vehicles. The damage to each is illustrated by other photographs. The car came to rest in a position east of the footpath exit. That position was noted by Police Constable Sclater who marked the stop position with yellow chalk marks, as recorded in several photographs in No 18/2 of process. He also made the measurements of the roadway, the pavement and the footpath which have already been mentioned and measured the exact position of the stopped car. The front nearside of the car came to rest approximately in line with the gate to No 10 Cairngorm Avenue, being the gate frequently referred to in the evidence, notably the evidence of Jodie. These measurements and the other matters recorded by the police as to the real evidence were accepted in evidence by the parties and were used by the expert witnesses in preparing their reports. Lucy was badly injured as a result of the collision and was unable to give evidence at the proof. The only eye witnesses to the collision who gave evidence at the proof were Jodie, the defender, and the defender's front seat passenger, Michelle Langham, aged 13 at the time of the accident. The defender himself was 17 at the material time and had only recently acquired a driving licence.

The pursuer's case as pled on record is to the effect that the two girls emerged from the footpath onto the pavement, that Lucy moved with her bicycle eastwards along the pavement to gain a clearer view of the traffic and rode off the pavement on her bike having ascertained that it was safe to cross the road. It is averred that the car came round the corner at the west end of Cairngorm Avenue at high speed and Lucy was unable to get out of the way of the car. Thus she was struck and injured. The defender's averments by contrast describe a wholly different sequence of events; they are to the effect that Lucy cycled out from the footpath directly into the path of the car without stopping to check for the presence of vehicles on the road. It is also averred that the defender had been unable to see the child prior to her emergence from the mouth of the said footpath owing to the presence of the hedge which lined the path and obscured the view of road users driving eastwards, and that although the defender braked and steered his vehicle to the right he was unable to prevent the child's bicycle colliding with the nearside wing of his motor car. The defender's case also included the assertion that the speed of the car was not excessive; as presented to the Lord Ordinary the case was that the car was travelling at about 20 mph when Lucy on her bicycle rode across the pavement and into its path.

It is clear from the presentation of this case, both at the proof and in the reclaiming motion, that the most important disputed issue of fact related to the place in the roadway where the collision took place. If the evidence established that the collision took place immediately opposite the footpath exit, then the account advanced by the defender would be the more probable of the competing accounts and acceptance of that account would negative fault on the part of the defender as a cause for the collision. If, however, the bicycle left the pavement a significant distance to the east of the exit from the footpath, then that circumstance would be irreconcilable with the defender's averment to the effect that Lucy cycled directly, and without stopping, from the footpath and straight into the path of his car. That circumstance would tend to support the view that the defender had sufficient opportunity to observe the children and the bicycle, on and moving across the pavement, from some distance to the west as he drove towards the point where the collision took place. As the evidence clearly shows that the defender did not see either the children or the bicycle on the pavement and did not react to their presence until virtually the moment of impact, that account of matters would point to fault on the part of the defender as causing the accident, the fault lying in his failure to keep a reasonable lookout and to respond properly to the presence and movements of the children. As the Lord Ordinary has noted, the main thrust of the evidence of Jodie was to the effect that Lucy set off to cross the road when she was somewhere in the vicinity of the gate of No 10. The evidence of Michelle Langham, however, was to the effect that the bicycle shot out of the footpath at speed directly into the path of the car; and evidence of the defender, although he claimed he saw and realised very little before the impact, was not inconsistent with that of Michelle Langham. The Lord Ordinary did not find either of these starkly contradicting accounts established in full. He held that the collision must have taken place some way east of the footpath exit but west of the gate to No 10. On that basis, and relying on evidence indicating the failure of the defender to keep a good lookout, he held that the defender was at fault in failing to keep a proper lookout and further that the responsibility for the accident fell to be divided between the defender and Lucy on an 80:20 basis.

The issues raised in this case are issues largely of fact. The parties have throughout been in dispute both as to matters of primary fact which fall to be resolved on the basis of observations by witnesses, including eye witnesses, and inferences of fact made in part with the assistance of expert evidence. However, the underlying criticism of the Lord Ordinary's interlocutor is that his approach to the assessment of the evidence and the inferences to be drawn from it was demonstrably flawed and erroneous in several respects. In particular, and of absolutely crucial importance, the Lord Ordinary's treatment of and reliance upon parts of Jodie's evidence were said to be demonstrably flawed. Only two of the written grounds of appeal were argued in the reclaiming motion, namely numbers 1 and 3. The first ground of appeal is that the Lord Ordinary failed to take advantage of hearing and seeing the witnesses in certain respects which are particularised in the written ground of appeal.

Counsel for the reclaimer drew our attention to a number of authorities bearing upon the duty of an appellate court when reviewing a decision on matters of fact made by a judge who has heard the evidence and made judgments about the credibility and reliability of the witnesses. In particular reference was made to Thomas v Thomas, to the speech of Viscount Simon and to the statements of principle contained in the speech of Lord Thankerton at p 54. The submission was, under reference to para (2) of Lord Thankerton's classification, that the reasons given by the Lord Ordinary for preferring the main thrust of the evidence given by Jodie to the evidence to the contrary were not satisfactory. It was also submitted that it unmistakably appeared from the evidence that the Lord Ordinary had not taken proper advantage of his having seen and heard the witnesses. In particular he had not properly analysed and discussed the evidence in a way that justified his selection of certain evidence and rejection of evidence to the contrary. Thus, in the submission of the reclaimers, the matters of fact became at large for the appellate court. Reference was also made to the speech of Lord Macmillan, at p 59. Counsel for the reclaimer also referred to Duncan v Wilson, to McArthur v Organon and to Morrison v J Kelly & Sons Ltd. When replying, counsel for the respondent referred us to Clarke v Edinburgh and District Tramways Co to emphasise the undesirability of a court's seeking too anxiously to discover reasons adverse to the conclusion come to by the judge who saw and heard the witnesses and determined the case upon a comparison of their evidence. Reference was also made to Millars of Falkirk v Turpie and McCusker v Saveheat Cavity Wall Insulation. It is not in dispute that the approach to be taken by this court in the circumstances of the present case is that indicated in these familiar authorities. Counsel for the parties differed only in the emphasis to be placed upon the terms in which certain of the dicta were couched. We therefore turn to consider the arguments advanced in support of the numbered grounds of appeal. [Their Lordships considered same, analysed the evidence and concluded thereafter:]

In the foregoing circumstances we have not been persuaded that the Lord Ordinary failed to take advantage of hearing and seeing the witnesses or that he plainly fell into significant error. It is unnecessary, in our view, to discuss in any detail the tests formulated in the various cases quoted earlier in this opinion and referred to by the parties. The Lord Ordinary's opinion on what are essentially matters of fact is supportable on the basis of evidence which he took account of and which he was entitled to regard as reliable.

In relation to contributory negligence, the pursuer and respondent took advantage of the reclaiming motion to renew an argument presented to the Lord Ordinary and referred to in the opinion, to the effect that the defender's pleadings were so expressed as to rule out any case of joint fault. The defender's case on record was that the sole cause of the accident was the negligent actings of Lucy. (Indeed it was suggested by counsel for the pursuer and respondent that the pleading point might have been taken as one of relevancy). Reference was made to the averments of fact in ans 2 and of fault in ans 3 on behalf of the defender which, it was submitted, related exclusively to the accident's having been caused by Lucy's cycling directly from the footpath into the road without stopping to check for the presence of vehicles. There was no esto case to enable the defender to found upon fault on the part of the child if the collision took place sufficiently far east of the footpath to yield the conclusion that the defender had caused or contributed to the accident by his failure to keep a proper lookout. In this context, reference was made to the opinion of Lord Macfadyen in Watt v Kerr, where a question arose as to whether or not a case sought to be advanced by the pursuer after the proof was a variation, modification or development of that on record. We would not differ from the approach of Lord Macfadyen in the circumstances of the particular case, but each of these cases must depend upon its own pleadings and circumstances. We have come to the conclusion that the Lord Ordinary dealt with this matter correctly in holding that the matter was one to be judged on the basis of the actual pleadings. We note that the averments in ans 3 contain the familiar expression, ‘that the said accident was caused or at least materially contributed to by fault on the part of the said child’. The words italicised seem to us to give notice that the defender is suggesting that if there was fault on his part, there was also fault on the part of the child. It is not necessary to use a pleading style commencing with the word ‘Esto’. The presence on the record of a plea of contributory negligence also serves to give notice of an intention to make the claim that there was room for a finding of joint fault. In the absence of any plea by the pursuer seeking deletion of the defender's plea under sec 1 of the Law Reform (Contributory Negligence) Act 1945 it appears that there was room for consideration of joint fault. Since at least Adamson v Roberts, the court has been reluctant to read pleadings in road accident cases with undue strictness.

It was further submitted on behalf of the defender and reclaimer that there was no basis for a finding that the liability of the defender should be greater or significantly greater than that of the child. The argument was that, on the basis that the collision had occurred significantly east of the footpath exit in conditions of good visibility, then it followed that each party had moved towards the point in the roadway where the collision occurred without properly noticing the presence and approach of the other. The fault in each case was the same, namely the failure to keep a proper lookout in the circumstances. The risk was equally foreseeable for both parties. There was no reason to depart from a 50/50 apportionment of liability and the Lord Ordinary had not justified any departure from what it was submitted would be the obvious conclusion, that parties were equally to blame. Counsel for the respondent founded upon the fact that, as appeared from the Lord Ordinary's opinion, the failure by Lucy was a failure to take a second look up the street when she decided to cross over the kerb onto the roadway. That fault was not necessarily equal to the fault on the part of the defender who was driving a substantial vehicle at speed in a quiet residential area and without apparently observing two children and a brightly coloured bicycle on the pavement two or three feet from the nearside of the car.

Section 1(1) of the 1945 Act provides that where there is joint fault, ‘the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage’. In understanding how that provision is to be applied in circumstances of this kind we have been guided by the speech of Lord Reid in Baker v Willoughby, at p 490. That was a road accident in which a pedestrian was knocked down by a motorist in the middle of a straight road which was 33 feet wide and with a 40 mph limit in operation. The traffic was light. The trial judge held both parties to blame and apportioned 75 per cent liability to the driver and 25 per cent to the injured pedestrian. The Court of Appeal held each to be 50 per cent liable, upon a basis similar to that advanced on behalf of the reclaimer in the present case. In that context, Lord Reid noted that the trial judge had held that each party had contributed to the accident, the injured plaintiff by negligently failing to look properly to his right towards the approaching traffic and the driver by driving at an excessive speed or failing to keep a proper lookout or both. He re-affirmed what the Court of Appeal had recognised, namely that the trial judge's assessment ‘ought not to be varied unless "some error in the judge's approach is clearly discernible"’. Lord Reid was unable to agree with the Court of Appeal's interference with the trial judge's determination. He stated: ‘there are two elements in an assessment of liability, causation and blameworthiness. I need not consider whether in such circumstances the causative factors must necessarily be equal, because in my view there is not even a presumption to that effect as regards blameworthiness.’ He then went on to discuss in general terms the respective duties of a person such as a pedestrian and a motorist, noting that the pedestrian ‘is rarely a danger to anyone else’, whereas if a motorist fails in his duties while driving a motor car ‘the consequences may be disastrous’. In such circumstances he stated: ‘In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian.’ In our view, both aspects of this approach are applicable in the present case. In the first place, the apportionment of liability, having regard to the terms of the Act itself and to the observations in Baker v Willoughby, is one that should stand unless there is a clearly discernible error on the part of the trial judge. In the second place, it is not merely a question of asking whether or not each contributed causally to the accident. The concept of what Lord Reid describes as blameworthiness is inherent in sec 1(1) itself, and it is appropriate to attach some significance to the fact that a young child on a child's bicycle presents relatively little significant danger to others whereas a person driving a motor car is always a danger to others with which the car might collide at speed.

The Lord Ordinary explains that in the present case Lucy and the defender were within sight of each other for a period of perhaps six seconds prior to the collision and holds that the defender's negligence was very considerable because he failed to appreciate the danger presented by the presence of two children on the pavement. In our opinion he was entitled to reach the conclusion he did on this matter and we reject the reclaimer's criticism of his apportionment.

In the whole circumstances we shall affirm the interlocutor of the Lord Ordinary.