[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moffat Or Morton v Knaggs & Anor [1999] ScotCS 86 (19 March 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/86.html Cite as: [1999] ScotCS 86

[New search] [Help]

This action concerns a traffic accident which occurred shortly after 8.30 a.m. on the morning of 23 December 1988. The pursuer's child, William Currie Morton, then aged five, was struck by a Vauxhall Carlton motor car driven by the first defender. Damages have been agreed and the only issue at the proof concerned liability.

At the time of the accident the defender's car was travelling along the carriageway of Peel Glen Road, Drumchapel, which ran downhill from a point at which a 30 m.p.h. speed restriction sign was in position. To the north of the sign the road continued uphill over a bridge at which point the roadway narrowed. Thereafter the road widened again and became one of the nature of a country road which continued for some miles. This road formed a route for motorists from the direction of Milngavie proceeding into Drumchapel and beyond.

Peel Glen Road was at the time of the accident bounded on both sides by tenement properties down to its junction with Drummore Road. On the east side of the street and some half way along the row of houses was the close at no.50 in which the pursuer and her family lived. They had moved to the flat some two days before, having previously lived in a house on the opposite side of the street. On the west side of Peel Glen Road, opposite the houses in which the pursuer was living at the time of the accident, the tenement properties were set back from the road with pavement and garden ground in front as shown in a plan produced. It was agreed that the plan was not accurate as to the precise dimensions and profile of the roadway in that it showed calming measures that were put in place some time after the accident. There was a substantial space in front of these houses before the west edge of carriageway of Peel Glen Road. By the same token, photographs which were produced and referred to in evidence at the proof did not show the locus precisely as it was at the time of the accident since they showed the calming measures and other changes to the footpath and roadway that had been made since the accident. However they did show the tenemental property in Peel Glen Road. On each side of the carriageway there was a pavement. On the east side the pavement went along the front of gardens through which the entrances to each close ran. It appeared that the accident was reported and was investigated by the witness, Police Constable McCulloch. He recollected that at the time there had been a car park area separated from the pavement on the west side of the carriageway of Peel Glen Road by a narrow verge of grass. In broad terms I accept the evidence of the pursuer's expert witness, Paul Riley, that at the time of the accident the carriageway of Peel Glen Road was probably about 5.8 metres or some 19 feet in width and that the defender's motor car was 1.76 metres or some 5 feet 8 inches in width. This meant that the carriageway was little over three car widths in extent. In the event that cars were parked by the kerbside on the east side of the carriageway, any car proceeding down the road would be driving out in the centre of the carriageway.

On the morning in question William left his home to go to his primary school which was situated in Drummore Road a little distance east of its junction with Peel Glen Road. Neither the pursuer nor William's sister, Sharon Morton, who gave evidence about the aftermath of the accident, were eye witnesses of the accident. In ordinary course William would not have required to leave the pavement on the east side of Peel Glen Road to teach his school. However there was evidence from the witness Marie McAllister that William was a friend of her son, Stephen. She lived at no. 51 Peel Glen Road almost opposite the pursuer's close. Stephen attended the same school as William and had been accustomed to go with William to school when William had lived on the same side of the road. On the morning in question she had watched her son as he left the close in which her house was situated. Her house was on the third floor. She was standing on the verandah of the house looking out onto the roadway. She saw her son go to the corner where the pavement on Peel Glen Road turned into her cul-de-sac. Stephen was standing at the corner. She then described what happened as being that William came running down the steps at his close, came down the path from his close and ran out onto the roadway. He was heading towards where Stephen was standing, going across diagonally towards the corner where Stephen was. She said that as William ran out, a car came down. William was in the middle of the road. He went up into the air over the bonnet of the car and was then dragged along and thrown into the gutter on her side of the road. She described William as "running fast" and said that "he didn't look at nothing". She described the car as having come down the street and hit William. She could not remember any parked cars on the street. She went on to say in chief that Stephen had already been waiting for William at the corner and that she heard Stephen shouting out "Hurry up, William" as William came hurrying down the path of the close and across the road. She could not say what speed the car was going at other than that it looked to her as if it was going fast. William had been in the middle of the road when he was hit by the car. She had an impression that William went under the car and further that the car looked as if it was trying to brake. William had ended up at the gutter where Stephen was standing. She said that the lady driver had immediately stopped, then moved forward and stopped further along the road just before the junction of Peel Glen Road and Drummore Road. In cross examination she said that she thought that the driver had tried to avoid William. She was asked if the driver had been put in an emergency situation and replied that she thought so. She also agreed that there was someone who regularly parked a Lada car in Peel Glen Road, though she could not remember seeing it that morning. In re-examination she said that there was no car parked in any way to prevent her seeing what William was doing.

Evidence for the pursuer was also given by a witness, Gerald Lough. He had been working as a security guard at premises at the top of Peel Glen Road and was making his way down the pavement on the east side of Peel Glen Road at the conclusion of his shift. He said that he had passed the point where a burn passed underneath the roadway and was past the speed restriction sign. There were children coming out for school. He initially described the accident as being aware of a car passing him going down the hill which ran over a wee boy. He thought the car was going "a wee bit fast" but he himself was not a driver. He did not see where the wee boy came from, but he saw the child going onto the road, stepping off the pavement. He did not recollect any parked cars on his side of the road. The accident had occurred at a point which he pinpointed by reference to the figure of a child shown in a photograph standing in the roadway near the corner at which the pavement on the west side of Peel Glen Road turns into the cul-de-sac. He considered that there was no reason for the driver not to have seen the child since there were no parked cars at that point. In cross examination he estimated that he was about two closes further up the road from the point where the accident took place. Though he was not a driver, he thought the car was going a bit fast and it ran over the child. The car had stopped after the child came out from the back of it. He was asked about a Lada car but said that he had not seen one. He said that there were never any parked cars in Peel Glen Road, but that they were always in the car park in the cul-de-sac. He was not sure if the child had been running on the pavement but he remembered the child stepping out onto the roadway. The child was talking to someone else, a child on the other side of the road. He could hear the revolutions of engine noise as the car passed him and then saw the front of the car hit the child and the car run over the child.

There was no dispute that at the time of the accident the surface of the road was wet though there was no evidence to substantiate an averment for the pursuer that there was snow on the surface of the road left over from a fall of snow the day before. A substantial dispute arose in the course of the evidence concerning the presence of cars parked on the roadway. In the pursuer's pleadings it is stated that the road was narrow with vehicles parked thereon at the material time adjacent to the flow of traffic and that it was usual for vehicles to be parked in such a fashion in said road. However in the course of their evidence, the pursuer and Sharon Morton stated that there were no vehicles parked along the east side of the roadway apart from a Lada car. In her evidence the pursuer initially placed this car at a point south of the pursuer's close between her close and the next close and "just across" from the opening into the cul-de-sac. Later in evidence in chief she placed it further down the street at a point where a chicane was shown in a photograph. It was said to belong to a resident who lived further down on the opposite side of Peel Glen Road, close to its junction with Drummore Road. Sharon Morton in chief said that there was a car parked one close down from No.50 and that she had not noticed any other cars. In cross examination said that the Lada car was parked close to the next close and agreed that people did park their cars in the street now and again. Lough's evidence was to the effect that he did not recollect any parked cars other than cars parked on the right hand side, by which he meant the car park beyond the west pavement of Peel Glen Road. I have no hesitation in preferring the evidence of the defender and the witness, Knox, both of whom were accustomed to drive along Peel Glen Road each weekday morning around the time of the accident. Each of them said that it was normal for parked cars to stand along the length of the east pavement kerb at such times and that such was the case on the day of the accident. I did not find either the pursuer and her daughter reliable in their assertion that the only car which was parked on the east side of the roadway was a Lada car. I have no reason to disbelieve their evidence that there was such a car parked at a point down from their close when they came out from the house after the accident although Mrs. McAllister had no recollection of seeing it on the day of the accident. However my impression of their evidence was that they did not take any notice of what cars were about because for one reason or another they came to associate the Lada car with the accident. It is significant that the presence of a Lada car appears to have been an issue at an early stage in the case. In her pleadings the defender avers that William ran out in front of her vehicle from behind a parked Lada motor car on her nearside. I consider that there must clearly have been a link in the minds of these witnesses between the position of the Lada car and the accident. But I am unable to accept the evidence of the pursuer, Sharon Morton and Lough who suggested that there were no other parked cars on the east side of Peel Glen Road at the time of the accident. Not least do I do so having regard to the passage in the pursuer's pleadings about the parking of vehicles quoted above, which is in accord with the recollection of the defender and the witness, Knox, and one which is the subject of an admission for the defender. In this regard I gained the strong impression throughout the proof that the passage of time since the accident has affected witnesses' recollection of events. A significant feature of the evidence, in my opinion, was that it appeared from the police officer who attended at the locus after the accident, Police Constable McCulloch, that no further proceedings were taken after the initial investigation of the accident. He had little recollection of hi

Likewise the evidence about the speed of the defender's vehicle was uncertain. No estimate was given by either Mrs. McAllister or Lough, neither of whom was a driver, except to suggest that it was fast, as no doubt it was relative to the boy's speed. The defender stated that she was driving at somewhere between 30 and 35 m.p.h. as she made her way over towards Drumchapel because of the state of the road. As she approached Peel Glen Road, her headlights were dipped though she recollected that the street lights were already off. Nonetheless because of the state of the light she thought that she needed headlights. As she came down to the bridge she had slowed down because a milk float was coming up the hill at that point where the roadway narrowed. A car which was a short distance ahead of her had been able to pass the bridge before the milk float reached it. She estimated that she had slowed down to about 10 m.p.h. for that purpose. Once the milk float had passed, she had picked up speed again. She stated that she was travelling at between 25 and 30 m.p.h. though it might not even have been 25 m.p.h. along Peel Glen Road. She was aware of the parked cars. She knew that there would be children around and in particular that there was a crossing manned by a lollipop lady further ahead down the road. Her description of the accident in chief was that a boy "shot" out of parked cars directly into her path. She had braked and swerved to her offside. The boy had hit the centre of the front of the car, had rolled over the bonnet and on to the right hand side of the road. She recollected that she had hit and mounted the kerb and then turned back onto the carriageway. Then because of cars behind her, she had continued on and run into the left hand side of the road and halted. She had then run back to where the boy was. She had seen the boy the moment that he appeared between parked cars at which time he was running very quickly. She had not seen him on the pavement. She herself was very upset. She had seen two men walking along on the right hand side of the road. These men were bending over the boy. She also recollected a lady at a window, who called for an ambulance. There was also a lady who came out with a blanket. The two men had said to her something to the effect that it was not her fault and that the boy had shot out in front of her. Her position was that she could not avoid the boy who had come out directly in front of her.

In cross examination she denied a suggestion that she was travelling quickly because she was going to be late for school. She agreed that she had not seen the boy on the pavement and presumed that was because of cars parked there. She had no recollection of seeing any child about and in particular of seeing a child on the corner of the pavement at the opening into the cul-de-sac on the west side of Peel Glen Road. She was positive that she had jammed on her brakes when she saw the boy. When asked whether she had put her brakes on before she hit the boy, she replied that she thought so. She said that she was past the opening or inshot for the cul-de-sac before the boy was hit. She had swerved and hit the pavement with her front offside wheel. She remembered just hitting it and going back into the road again, having mounted the kerb. When she hit the boy, he had not been dragged along. He had hit the bonnet, rolled over it and off on the right hand side of the car. Even if she had been going at 20 m.p.h. she thought that she could not have avoided the boy or braked in time. There had been several parked cars along the east side of the road. Because of them she had had to move out into the centre of the road as she drove into Peel Glen Road in order to pass them.

The witness Knox was in a car which was following that of the defender as it approached Peel Glen Road. His impression of the defender's speed was that she had been going slower than he had been. He had become aware of the defender stopping "extremely quickly". He had had to stop very quickly also and the car behind him had also stopped immediately. Because of the speed at which the defender had stopped, he had estimated that she had been travelling at about 15 m.p.h. As the defender's car stopped, he had been aware of it turning to its left slightly so that it had left space for him to go past. He had been aware of a small child just coming straight out from parked cars. He had not seen the child until the child come out from the parked cars. He considered that the defender had had no chance of avoiding the child. Following the accident, he had telephoned the police when he reached his office and told them of the circumstances. Subsequently he had spoken to the police officer on duty who indicated that he did not want a statement. In cross-examination he placed the accident as having occurred somewhere downhill of the opening to the cul-de-sac and that the defender's car had come to a stop somewhere past the last parked car and was in to the left as he looked. While he agreed that to some extent his evidence involved a reconstruction of the accident, he was clear that when he was in Peel Glen Road he had caught up on the car ahead and that there were parked cars there. He himself had stopped behind the defender's car and then pulled out and moved past it in order to relieve a traffic jam. He had not himself got out of his vehicle. The defender's car had braked and then swerved slightly to its left. He recalled that it had stopped slightly beyond the parked cars and ahead of a parked car and had created space through which he had driven.

In giving his evidence Mr. Knox admitted that he found difficulty with the passage of time in being precise as to the details of the accident. However his impression that the defender was placed in an emergency situation by the sudden appearance of the child was clear. I regarded him as a witness of credit who was trying to recollect matters as best as he could and that his impression of an emergency was consistent with other evidence such as that given by Mrs. McAllister.

As to the conduct of the child prior to the accident, I found the evidence of Mrs. McAllister much more credible and accurate than that of Lough. She was after all intent on watching her own child while there was no reason for Lough to be paying any particular attention to William's movements up until the accident. In particular I do not accept his evidence that he saw the child stepping into the road and not running over the pavement and onto the road as described by Mrs. McAllister. Likewise I did not find him credible as to where the defender's car was when William left the pavement. My impression of his evidence was that he had become aware of the collision only at the point at which it occurred and that his evidence as to the movements of both William and the defender's car prior to the accident was wholly unreliable and an attempt to reconstruct what might have happened, as was his evidence that he heard "revs" as the defender's car passed him.

There was no clear evidence as to where the child was found following the accident. Both the pursuer and Sharon Morton placed him on the west side of the roadway by a drain beside the kerb. By reference to the photographs produced they identified a position just short of the junction between Peel Glen Road and Drummore Road, beside the entrance to a close which faced the junction. I find it impossible to accept this evidence. It is at odds with other evidence such as that of Mrs. McAllister who could not have seen from her balcony down as far as Peel Glen Road opposite Drummore Road and who said that the boy ended up at the point where her son was standing. Likewise the witness Lough, under reference to a posed photograph, said that the place where the boy ended up was about at a point marked by a child standing on the south side of the opening into the cul-de-sac. This point was consistent with the collision having occurred some little distance up the roadway and with the boy having come out of his own close and then having made his way from behind the Lada parked between his own close and the next close and out across the carriageway towards the corner where Stephen McAllister was standing. According to the pursuer's expert witness, Riley, the point at which Stephen McAllister was standing was some 10 metres south of the boy's close. There was no dispute that it appeared that the boy was then struck by the defender's car as it was driven down the centre of the carriageway and by the centre of the front of the car. In so far as the defender said that having been struck by the centre of the front of her car, the boy then rolled over her bonnet and fell to her right hand side as she was braking, this could well have given the impression that the boy was being dragged as described by Mrs. McAllister. I should add that there was no evidence as to any substantial damage having been sustained by the defender's car or of any relationship between the boy's injuries and the nature of the collision and any related damage to the car to suggest that he had been dragged along the roadway or struck by the car passing over him. In particular there was no evidence which would support Lough's evidence that the child had gone under the car and I cannot accept his evidence to this effect. In this matter moreover there was evidence from the defender's expert witness, Dr. Steel, that he found such evidence difficult to accept because of the shape of the front of the defender's car. Dr. Steel also expressed the opinion that the fact that the boy rolled over the bonnet rather than being thrown up in the air suggested that the defender may have applied the brakes at some part of the collision process, possibly at the moment of impact or a small fraction of a second immediately after. If, as I hold to be the case, William ran out from the pavement from behind a Lada car, that is to say, with the Lada between him and oncoming traffic, it appeared from the dimensions of the Lada given by the witness Riley that the Lada would be some 5 feet or so in height and that a small child such as William would be concealed from such oncoming traffic until he emerged beyond the outer edge of the Lada. At that point the distance from the Lada to the centre of the unobstructed carriageway would be relatively small. The roadway itself was 5.8 metres or 19 feet wide and even taking the width of the Lada as something less than that of the defender's vehicle, say 5 feet, there was ample evidence from the witnesses Riley and Dr.Steel that a small child who was running could cover the remaining distance out to or just beyond the centre of the unobstructed carriageway, in something of the order of a second or so.

As I do not accept the evidence of Lough that the defender's car passed him just as William left the pavement and that at that time he was some 23 metres from the boy, I do not accept the various calculations made by Riley on that assumption and from which he deduced that the defender should have been able to stop in time to avoid the accident even if she had been travelling at a speed of 25 m.p.h. Rather I find that the evidence of Dr. Steel suggesting that the defender had at most only just begun to brake when her car hit the boy, indicates that the defender was much closer to the boy when he emerged from the outside edge of the Lada, as she herself said was the case. I am prepared to hold that the defender was going at a speed greater than that of 20 m.p.h. desiderated by the witness Riley as being an appropriate speed in the circumstances, and more probably about 25 m.p.h. when the child would have come into her view at the outside edge of the Lada. According to Dr. Steel, reaction time for a driver would be about a second and this was accepted by Mr. Riley. According to Mr. Riley, the reaction distance would be some 11.2 metres at 25 m.p.h. before braking began with a further stopping distance of 10.6 metres to give an overall distance of 21.8 metres. If the car had been proceeding at 20 m.p.h., the equivalent reaction distance would be 8.9 metres and stopping distance 6.8 metres to give an overall distance of 15.7 metres. Accordingly on the expert evidence it is clear that even if the defender had been proceeding slightly slower than I hold her to have been proceeding, then even at 20 m.p.h. she would just have begun to brake before covering 11.2 metres.

The case of fault for the pursuer proceeds both upon failure to drive at a reasonable speed in the circumstances and upon failure to keep a good lookout. If the pursuer should have seen the boy before he reached the outside edge of the Lada and should have taken into account the risk that he might move out onto the roadway in front of her, then it would not be sufficient for her to escape liability for the accident that he ran out from behind the Lada. For the pursuer it was urged that the visibility from the carriageway of Peel Glen Road was such that a driver in the position of the defender would have had a view of the child as he emerged from the close towards and onto the pavement. While there were assertions to this effect by both the pursuer and Sharon Morton, their evidence proceeded on the basis that there were no parked cars to obstruct a view of the close. It also ignored the fact that the defender, while she would require to give her attention generally to what was going on ahead of her and on each side as she drove through such a residential area, would be looking ahead in the main. There was a suggestion by counsel for the pursuer that the defender's evidence was not reliable in that she did not apparently observe the child Stephen McAllister on the west pavement of Peel Glen Road and was clearly wrong in her description of the locus with particular regard to the layout of the cul-de-sac and the provision for parking on the west side of the road. Likewise counsel criticised the defender's evidence about having swerved and struck and mounted the west kerb following the collision as being incredible and suggesting an exaggerated attempt to excuse her responsibility for failing to avoid the accident. However while the witness Knox did not speak to any movement of the defender's car to its offside, such a movement of avoidance was observed by Mrs. McAllister. Again she noted that the defender's car then moved back and stopped on the opposite side of the road, as the defender herself described and as did Knox. It appeared to me that the defender was doing her best in the witness box to tell the truth and to the best of her ability to try to recollect and describe events which happened very quickly. She gave me the clear impression that as an experienced primary teacher, she was aware of the need to moderate her speed in circumstances where there were likely to be school children about and that she had moderated her speed with that circumstance in mind but was placed in an emergency situation because of a sudden and unexpected movement of William. I am also satisfied that until William appeared from the outside edge of the Lada, there was no reasonable opportunity for the defender as she proceeded down the carriageway of Peel Glen Road to have become aware of his movement out of his close and over the pavement to a position behind the Lada car because of the presence of other parked cars as well as other obstacles such as fences and hedges outside the houses which would serve to hide the movements of a small child. While the photographs produced did not represent such features as they existed at the time of the accident, they did serve to show how such features as hedges and fences would block views from the roadway into close entrances and where parked cars were concerned, would be bound to restrict any view of movement on the pavement outside the close entrances for a driver proceeding down Peel Glen Road.

For the pursuer it was submitted that having regard to the evidence of Mr. Riley that an appropriate speed in the circumstances was no more that 20 m.p.h., it should be held that the defender had failed to give proper thought to the risk of a child emerging from behind a parked car so that the speed at which she was in fact travelling was too fast for her to stop safely within the distance which could see to be clear ahead of her and that if she had moderated her speed below that at which she was travelling at the moment when William came into her sight, she could have avoided him. In this regard counsel drew attention to the provisions of Rule 57 of the Highway Code which was reproduced in Mr. Riley's report, which pointed out the risk that a young child might not judge speed very well and might step out into the road unexpectedly. At the very least, while it might be that William was in part to blame for the accident, any such contribution was small.

For the defender it was submitted that there was no sufficient evidence to justify holding that the defender had failed to take reasonable care in the circumstances. Reference was made to the case of Barnes v Flucker 1985 S.L.T. 142 in which a passage from the judgment in Moore v Poyner 1975 RTR 127 was quoted. In the latter case it was said that it was not sufficient to suggest that if a driver had slowed further than he had done, he would have been later in reaching the point from which the injured party emerged and the accident might not have taken place. Rather the question which had to be asked was whether, there being an appreciable risk that a child might be masked by the line of parked cars and might run into the path of the defender's car, there was a likelihood of that happening from behind one of the cars at the precise moment that the defender was passing along the line. In Moore it appeared that in order to avoid the accident the defendant would have had to slow down to a speed of some 5 m.p.h. which, it was held, placed an impossible burden on any driver. In the present case as I have indicated above, even at the desiderated speed of 20 m.p.h. taking account of the short distance ahead of the defender at which the boy must have appeared from the side, it is unlikely that defender could have done more than begin to brake before striking the boy having regard to reaction time. Looking at the matter broadly I hold that the defender did have regard to those risks which she ought to have done, namely that in such a residential street children were likely to be around and that having regard to the presence of parked cars and the restrictions which that placed on the width of the carriageway and the view of persons who might move from the pavement onto the roadway, she required to moderate her speed as she drove down the street. It must always be a matter of fine judgment as to whether a particular speed is appropriate. In the present case the defender did moderate her speed below the speed limit and I have reached the view that it cannot be said that in driving as she did at a speed of about 25 m.p.h. she was driving at an excessive speed or that in failing to see William until he emerged from the outside edge of the Lada, she was otherwise negligent. In these circumstances I hold that the pursuer has failed to prove that the accident was caused by fault of the defender. Insofar as it can properly be said that there was fault, that must be attributed to the decision of William, against all his teaching and training as spoken to by his mother and sister, to run out from his close and onto the roadway behind a parked car without pause to look for oncoming traffic and so to precipitate the collision in which he received such grievous injuries and thus an event which must arouse profound sympathy on the part of all for the tragic consequences for him and his family which have followed upon it.

I shall accordingly repel the first plea-in-law for the pursuer, sustain the third plea-in-law for the defender and grant absolvitor.