EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Drummond Young Lord Wheatley	[2012] CSIH 100 PD1838/09 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the cause LESLEY HEATHER JACKSON Pursuer and Reclaimer; against ANDREW GEORGE MURRAY First Defender and Respondent; And AVIVA INSURANCE UK LTD Second Defenders: _______________

Pursuer and Reclaimer: Smith QC, Thornley; Drummond Miller LLP

First Defender and Respondent: Young QC, Dawson; HBM Sayers

27 December 2012

[1] The pursuer was seriously injured in a road accident which occurred on 12 January 2004, when she was 13 years old. In summary, she had alighted from a school minibus which had stopped on the eastbound carriageway of the A98 Fraserburgh to Banff Road and required to cross the road to the private road leading to the farm where she lived. She proceeded round the back of the minibus and then began to cross the westbound carriageway. As she did so she was struck by a car driven by the first defender and severely injured. The present proceedings were subsequently raised against the first defender and his insurers, who are the second defenders. The action proceeded to proof on the issues of liability and contributory negligence before the Lord Ordinary, Lord Tyre, who issued an opinion on 14 June 2012. The Lord Ordinary found that the first defender (who is hereafter referred to as "the defender") was liable to make reparation to the pursuer, but subject to a finding of contributory negligence to the extent of 90%. The pursuer has reclaimed against the decision on contributory negligence, and the defender has lodged a cross-reclaiming motion in respect of the finding on liability.

Summary of the facts

[2] The Lord Ordinary prepared a careful and detailed opinion, which discusses the factual evidence at length. The following summary is largely taken from his opinion. He observed at the outset that a feature of the case was the poor quality of the evidence available. This was attributable largely to the significant delay before the action was raised in July 2009; the result of that was that the memories of witnesses had faded and in some cases had become demonstrably less reliable. One witness had died, and one of the investigating police officers had emigrated. There were also deficiencies in the police accident investigation. Important information on the locus of the accident was not noted, and this limited the value of expert evidence at the proof. The Lord Ordinary observed that as a result of these deficiencies he had found it difficult to make findings in fact with any confidence on critical matters such as the movements of the pursuer immediately prior to impact and the speed at which the defender was driving.

[3] The accident occurred on the A98 Road at or near the bellmouth of a private road to Upper Auchnagorth Farm, where the pursuer lived with her family. The A98 runs in an east-west direction at this point and is a rural two-way undivided road, with a speed limit of 60 mph for cars. The private road runs south. Immediately to the east of the locus the road curves gradually towards the left as one moves westwards from Fraserburgh, on a shallow decline. It has a slight camber and is slightly banked to facilitate cornering. The pursuer and her twin sister Lindsay travelled to and from school each day by school bus. Their journey home was in two buses, the second of which was a minibus which dropped them off close to the Upper Auchnagorth Farm Road end. The pursuer and her sister would then require to cross the road to the end of the farm road, where their mother would normally meet them.

[4] On the day of the accident the minibus arrived at the end of the farm road at about 4:30 pm. It was dusk, approximately 40 minutes after sunset, and the light was fading. Vehicles using the road had their lights on. The minibus displayed square yellow and black graphic signs indicating on the front windscreen and back door that it was a school bus. The driver, Mr. George Fraser, who gave evidence, stopped it with its nearside wheels adjacent to but not on the grass verge. As he stopped, Mr. Fraser put on the hazard lights of the minibus. At least three vehicles following it in an easterly direction stopped behind it. The defender, who was travelling home from work, approached the locus driving westwards in a Ford Fiesta car. He was familiar with the road, and had driven along it every working day for at least three years. As he approached the locus he saw the minibus stationary on the eastbound carriageway. He had seen a school minibus on the road before but could not recall whether on this occasion he identified the minibus as a school bus. The pursuer and her sister alighted from the minibus through a sliding door on the nearside. The pursuer walked along the grass verge to the rear of the minibus, followed by her sister. The pursuer then passed between the rear of the minibus, which was still stationary, and the front of an Isuzu Trooper car driven by a Mr. Albert Corbett, who died before the case came to proof. There was some controversy about the pursuer's precise movements at this point, but in summary she continued across the road and as she crossed the westbound carriageway she was struck by the defender's car. The defender was unaware of the pursuer's presence until the moment of impact. The force of the impact projected the pursuer forward and into the air above the height of the roof of the car, which passed beneath her. She landed on the carriageway behind it. The defender braked hard and stopped.

[5] The Lord Ordinary noted factual details from the photographs that were available. These included the pattern of damage to the defender's car and a patch of blood discovered on the road surface, which was assumed to be the point where the pursuer fell to the ground after the impact. Evidence relating to the relationship of the patch of blood to features on the road is recorded; this is discussed further at paragraph [19].

The Lord Ordinary's assessment of the evidence relevant to findings of fault

[6] The Lord Ordinary analysed in detail the evidence relating to four specific matters: the defender's speed prior to the accident, the defender's reaction to the presence of the minibus, the pursuer's movements prior to the accident, and the visibility of the defender's car as it approached. The evidence relating to the defender's speed was the subject of the cross-reclaiming motion by the defender, and is discussed in detail below at paragraphs [15]-[19]. In summary, the Lord Ordinary concluded that the defender was travelling at approximately 50 mph at the time of the collision.

[7] In relation to the defender's reaction to the presence of the minibus, the Lord Ordinary noted that in evidence the defender had stated that he could not remember slowing down at any time, and that he considered the risk of children running out unexpectedly to be irrelevant as he did not think that there would be children crossing the road at that time. He could not remember whether he had thought at the time that the bus might have stopped to drop children off. On the basis of this evidence, the Lord Ordinary inferred that, as he approached the minibus, the defender did not address his mind to the risk that a person might emerge from behind the stationary minibus and attempt to cross the road in front of his car. The Lord Ordinary further recorded that the defender gave evidence that he did not see the pursuer until the moment of impact, and did not remember seeing her running before she was struck by his car. He had concluded separately that the pursuer must have been within the defender's line of vision for approximately one and a half seconds between emerging from behind the back of the minibus and the moment of impact. He observed that the fact that the defender did not see the pursuer tended to support the inference that he did not have it in mind that someone might emerge suddenly from behind the minibus and was not keeping a lookout for such an event. Thus, whether or not such an occurrence was reasonably foreseeable, it had not been foreseen. He discounted evidence on this matter given by the expert for the defender, Mr. Mark Hooghiemstra, on the basis that Mr. Hooghiemstra's evidence was lacking impartiality.

[8] As to the pursuer's movements prior to the accident, the Lord Ordinary recorded the evidence given by the various eyewitnesses. These accounts differed. He did not feel able to rely upon the pursuer's description of her own movements before she reached the centre line of the road. On the basis of the evidence of other witnesses, he concluded that at the point of impact the pursuer was running across the westbound carriageway; this was the contemporaneous impression of Mr. Kenneth Scroggie and the late Mr. Albert Corbett, who were the drivers of the two vehicles behind the minibus. Their evidence was further supported by the evidence of Mr. James McCartney, the pursuer's expert witness. On the basis of that evidence the Lord Ordinary concluded that the pursuer paused briefly at the offside rear of the minibus and then took one or two steps before breaking into a run. The distance from the corner of the minibus to the centre line of the road was only about 1.8 m, and it accordingly made little difference whether those one or two steps were taken as a run or, as the pursuer contended, at a brisk walk. The fourth matter considered by the Lord Ordinary was the visibility of the defender's car as it approached. This point was material because the pursuer gave evidence that she did not see the defender's car. The Lord Ordinary assessed the evidence and concluded that the car had its lights on, probably its headlights.

The Lord Ordinary's legal analysis

(i) Failure by the defender to exercise reasonable care

[9] The Lord Ordinary began his analysis by observing that the overwhelming responsibility for the occurrence of the accident rested on the pursuer. First, however, it was necessary to consider whether the accident was caused wholly or partly by the fault and negligence of the defender. He noted that two eyewitnesses, Mr. Scroggie and Mr. Corbett, thought that the defender bore no share of the blame; he described that view as worthy of respect but not conclusive. That view was based at least partly on the witnesses' assessment, which was supported to some extent by the expert evidence, to the effect that once the pursuer emerged from behind the minibus it would not have been possible for the defender to avoid colliding with her. The Lord Ordinary accepted that the latter proposition was correct. As to the duty of a driver approaching a stationary school bus, the Lord Ordinary adopted the formulation suggested by the Court of Appeal in Howell-Williams v Richards Brothers, [2008] EWCA Civ 1108:

"... first to keep a lookout, to see that it is a school bus; then to modify, if necessary, [his/]her driving; and lastly to be vigilant for any child stepping out into or running into the road".

He rejected a contention for the pursuer that a driver approaching a stationary minibus which might be a school bus was bound to reduce speed to the extent that he could stop in time to avoid a collision no matter how late a child were to emerge from behind the bus and attempt to cross the road; he considered that approach to be unrealistic.

[10] The first question was accordingly whether the defender was keeping a proper lookout and, if so, whether he identified or ought to have identified the minibus as a school bus. The Lord Ordinary was of opinion that the defender ought, in the exercise of his duty to keep a proper lookout, to have identified the minibus as a school bus or at least a bus from which children were likely to alight. Moreover the minibus had its hazard lights on. That being so, the defender ought to have foreseen that there was a risk that a person might, however foolishly, attempt to cross the road. On the basis of the defender's evidence, either he failed to identify the minibus as a school bus or, if he did, he did not regard this as relevant to the manner in which he should drive towards and past it. That amounted to a breach of the duty incumbent upon him. The second question was whether the defender modified his driving to deal with the hazard. On this matter, the Lord Ordinary found it probable that the defender did not reduce his speed from 50 mph as he approached the minibus. That was too high a speed at which to approach the potential hazard presented by the stationary minibus. Consequently the defender failed to exercise reasonable care in that regard too. The third question was what the exercise of reasonable care required of the defender in the particular circumstances of the case. That was a matter upon which the court should exercise its judgment without the need for expert evidence. On this matter, the Lord Ordinary was of opinion that, without being unreasonably prescriptive, the speed at which the defender ought to have approached a minibus stationary at this particular location and at this time in the evening was somewhere between 30 and 40 mph. That would allow the defender to continue to make progress while affording a reasonable opportunity to take evasive action if a pedestrian were suddenly to appear.

[11] The fourth issue was to determine when the defender ought to have slowed to that speed. He had had a view of the stationary minibus for at least 200m, and the Lord Ordinary thought it reasonable to expect him to have slowed to no more than 40 mph for at least 100 m before reaching the minibus. The fifth issue, reflecting the last element of the duty identified in Howell-Williams, was whether the pursuer had been vigilant for any child moving into the road. It was significant that the defender maintained that he did not see the pursuer before impact. On that basis, the Lord Ordinary concluded that the defender was less than vigilant as he approached the minibus for the possibility of a person coming out from behind it. If he had had that consciously in mind, it was likely that he would have seen the pursuer earlier than he did. This too was therefore a breach of the duty to exercise reasonable care.

(ii) Causation

[12] The Lord Ordinary then considered whether the exercise of reasonable care by the defender would have prevented the occurrence of the accident. He considered that the court could and should make a judgment, based on the evidence, not only as to what would have been a reasonable speed but also as to the distance and time during which the defender ought to have been driving at that speed. That did not amount to speculation. On that basis, the Lord Ordinary made certain calculations, based in part on the expert evidence, and concluded that the pursuer would have been clear of the near side of the defender's car even if he had been driving at the top of the range of speeds that were held to be reasonable (40 mph). On that basis causation was established.

(iii) Contributory negligence

[13] The Lord Ordinary stated that in his opinion the principal cause of the accident was the "recklessness" of the pursuer in attempting to cross the road without taking proper care to check that the road was clear to allow her to do so. This was not a case of a small child who runs across the road in ignorance of the danger; at the age of 13 the pursuer was fully aware of the danger of crossing a major road without taking reasonable care to check for cars. She was familiar with the locus and aware of the potential dangers. There were obvious alternatives, such as remaining on the verge or waiting at the back of the minibus until the westbound carriageway was clear or pausing at the centre line of the road. At the time when she emerged from behind the minibus the defender's car was only about 30-40 m away, and the Lord Ordinary did not accept that her decision to proceed to cross could be characterised as a justifiable misjudgement. Either she failed to look to the left before proceeding across the road or, having done so, failed to identify and react sensibly to the presence of the defender's car. On either view, the overwhelmingly greater cause of the accident was the movement of the pursuer into the path of the defender's car at a time when it was impossible for him to avoid a collision.

[14] On that basis, the pursuer bore responsibility for having committed an act of "reckless folly", and the defender bore responsibility for having failed to take reasonable care for the safety of a person who might commit such an act of reckless folly. In that situation, a large proportion of the overall responsibility rested upon the pursuer. The Lord Ordinary compared the present case with Ehrari v Curry, [2007] EWCA Civ 120, where a finding of 70% contributory negligence was not challenged on appeal. He considered that the actions of the pursuer in the present case were even less excusable than those of the plaintiff in Ehrari. Consequently a finding of 90% contributory negligence was appropriate.

The defender's cross-reclaiming motion

[15] It is convenient to begin by considering the defender's cross-reclaiming motion against the Lord Ordinary's finding of fault on the part of the defender. Counsel for the defender submitted that the Lord Ordinary had been in error in finding the defender at fault. His submission focused on the Lord Ordinary's finding that the defender had been driving at approximately 50 mph at the time of the accident. Three criticisms were made of the Lord Ordinary's analysis. First, the Lord Ordinary had relied on the defender's oral evidence to the effect that he was travelling at 50 mph. That evidence, however, was essentially dependent upon a statement that he had made to the police shortly after the accident. Moreover, in his evidence the defender had on a number of occasions questioned whether 50 mph was the correct figure. Secondly, the Lord Ordinary had given insufficient weight to other eyewitnesses who had given evidence that the defender was not driving particularly fast, and not at an excessive speed. Thirdly, the Lord Ordinary had given no weight to what is known as a "Searle Throw" calculation performed by the parties' expert. This is a calculation of the approximate speed of a car based on the distance a person hit by it is thrown by the impact. The Lord Ordinary had rejected such a calculation on the basis that it was impossible to know where the pursuer had been when she was struck by the defender's car. It was, however, possible to determine that the pursuer had been no further east than the centre of the bellmouth of the farm road, and it was possible to perform a calculation on that basis. If the pursuer had been further west, the result of the calculation would be an even lower speed.

[16] In developing this submission counsel referred to a substantial number of passages in the evidence. Nevertheless, in reviewing the assessment of the evidence made by the Lord Ordinary it is important to bear in mind the well-known principle, laid down in Thomas v Thomas, 947 SC (HL) 45, at 55 per Lord Thankerton and 59 per Lord Macmillan, and many other cases, that the judge at first instance has the enormous advantage of having seen and heard the witnesses, and to overturn his decision on any issue of primary fact an appellate court must come to the conclusion that he was plainly wrong. By "primary fact" we mean the basic facts of the case, as against inferences drawn from those facts, although even there the views of the judge at first instance should be treated with great respect. The importance of this principle was well illustrated in the present case, in a manner referred to in the following paragraph.

[17] The Lord Ordinary based his finding that the defender was travelling at approximately 50 mph at the time of impact on the evidence of the defender. In a statement made to a police officer on the evening of the accident the defender estimated his speed of 50 mph. In his evidence to the court the defender, in the words of the Lord Ordinary, "considered that that figure was probably correct, and not just because he had been reminded of the estimate which he had given when the statement was taken. He had no reason to think that his speed had been anything other than about 50 mph". Counsel for the defender referred to the defender's evidence at some length, and pointed out that he frequently stated that he had no recollection of the accident, which had occurred eight years previously. So far as the evidence that the defender gave about his speed was concerned, counsel submitted that when the evidence was examined carefully it could be seen that it was derived entirely from the police statement, and not from his recollection at the time of the proof. In our opinion that submission is not correct. In his evidence in chief the defender (who was called as a witness for the pursuer) was referred to the police statement, where his speed was estimated at 50 mph. Counsel then asked (page 29D) "Do you recall what speed approximately you were travelling at, at the time of the collision?" The defender replied "Yeah, that's probably right enough". Counsel then asked "I mean, can you remember at the time of the collision you were travelling about 50 miles an hour or is it because you've seen it in the notebook?" The defender is noted as replying "No, no. No". Now on paper that reply is ambiguous; a double question is asked, and it is not clear to which part of the question the negative answer relates. (A similar ambiguity may also apply to negative questions). It is clearly quite impossible for an appellate court, which did not hear the evidence, to know whether the defender was denying that he could remember or denying that he was only saying 50 mph because he had seen in the notebook. It is quite clear, however, that the Lord Ordinary interpreted the answer as having the latter sense. It is difficult to imagine a clearer example of the importance of the principle in Thomas. Shortly after that answer the defender was asked "... what you remember is you were probably travelling about 50 miles an hour?" His reply is noted as "Mhm hm" That was clearly construed by the Lord Ordinary as an affirmative reply, and once again it would be quite wrong of an appellate court to imagine that the answer was capable of any other construction. We should add that at later passages in his evidence the defender assented to the proposition that he was probably travelling at about 50 mph, and further that that was probably not a reasonable speed (page 40).

[18] Counsel for the defender further submitted that the Lord Ordinary had failed to give sufficient weight to the other eyewitnesses. In particular, Mr. George Fraser, the driver of the minibus, could not provide an estimate of the defender's speed but stated that it caused him no anxiety, even bearing in mind that the defender was approaching a school bus. Mr. Kenneth Scroggie, who was in a Land Rover two cars behind the minibus, had estimated a speed of 40 mph in a police statement given two months after the accident, and had suggested that the accident was caused "100%" by the pursuer. The late Mr. Albert Corbett, the driver of the vehicle immediately behind the minibus, had estimated the defender's speed at 35-40 mph in a statement to the police made two days after the accident. Mrs Corbett, his wife, had given evidence that the defender was not going fast. None of the eyewitnesses criticized the defender's speed. The Lord Ordinary's opinion, however, makes it clear that he considered all this evidence. He pointed out that none of the eyewitnesses gave an estimate of the defender's speed in their evidence to the court. Most importantly, he states that it seemed to him that the defender was better placed than any of the eyewitnesses to know at what speed he was travelling. That seems to us to be a sensible approach. It is, we think, within judicial knowledge that it is extremely difficult to estimate the speed of another vehicle, whereas the driver of a vehicle has a much better idea of how fast he is travelling, not merely because he has a speedometer in front of him but because the speed affects matters such as the handling of the vehicle and the gear that is being used. In addition, the eyewitnesses were looking into the defender's headlights, which must make the estimation of speed particularly difficult. The Lord Ordinary further pointed out that the speed of 50 mph was consistent with the occurrence of a roof vault: the fact that the pursuer was projected over the roof of the car was, on the evidence of the pursuer's expert, Mr. McCartney, an indication that the car was travelling at a speed at least in the low 40s. In these circumstances, we consider that the Lord Ordinary's decision to prefer the defender's evidence to that of the eyewitnesses falls squarely within the Thomas principle.

[19] The third attack made by counsel for the defender on the Lord Ordinary's assessment of speed related to the "Searle Throw" calculation. The parties' experts agreed that it was possible in principle, using an equation derived by Dr. John Searle, to estimate the speed of a vehicle by measuring the distance which a pedestrian struck by the vehicle was thrown forward after impact. The pursuer's expert, Mr. McCartney, attempted to carry out such a calculation. The Lord Ordinary, however, considered that this calculation was not soundly based on reliable evidence, and indeed neither party had attempted to rely upon it. The problem was that it was impossible on the evidence to determine where the point of impact was. Counsel for the defenders submitted that, even if it was impossible to know where the precise point of impact was, it could on the evidence be said that it was no further east than the centre of the bellmouth of the farm road, and the calculation could be performed on that basis to give a figure for the defender's speed of between 30 and 40 mph. In the event of an impact further to the west, the speed would be lower. As we have remarked, the Lord Ordinary rejected any "Searle Throw" calculation because of the lack of certainty in the measurements that were available. In particular, the calculation was based on the distance from the point of impact to a point where a blood stain was found on the road, which was assumed to be the point where the pursuer landed after the accident. Different figures for this distance were available from different sources, however; one was 30 m and the other 18 m. Moreover, it was clear that the police evidence was of poor quality, and as the Lord Ordinary noted at the start of his opinion certain important information concerning the locus of the accident was not noted, which limited the value of the expert evidence. It is clear that the "Searle Throw" calculation was entirely dependent on these measurements. In all the circumstances, it appears to us to be quite impossible for an appellate court to interfere with the Lord Ordinary's findings on this issue, which appear to us to have been careful and well considered.

[20] For the foregoing reasons we refuse the cross-reclaiming motion.

The pursuer's reclaiming motion: contributory negligence

[21] We have summarized the Lord Ordinary's findings on contributory negligence at paragraphs [13]-[14] above; he apportioned 90% of the responsibility for the accident to the pursuer and 10% to the defender. The circumstances in which an appellate court can interfere with a Lord Ordinary's decision on contributory negligence are indicated in Porter v Strathclyde Regional Council, 1991 SLT 446, at 449 where it is said that

"the Inner House will not interfere with the Lord Ordinary's apportionment of negligence except in exceptional circumstances which must demonstrate that 'he has manifestly and to a substantial degree gone wrong'".

[22] The Lord Ordinary's apportionment was challenged by counsel for the pursuer. He submitted that the facts found by the Lord Ordinary gave a clear impression of a driver who was driving at a significant speed towards a known hazard, namely that a child might emerge on to the road; that the defender was driving at a speed considerably more than was reasonable; that the hazard manifested itself; and that if the defender had moderated his speed on seeing the hazard to any significant degree the pursuer would not have been struck. Counsel placed considerable importance on the lack of reaction to the hazard lights. He also submitted that the defender's pleadings did not disclose any averments to justify the plea of contributory negligence, and that there was a substantial lack of evidence in that connection. It was wrong to describe the pursuer as "reckless", as the Lord Ordinary did; her blameworthiness was considerably less than that of the defender, who ignored a known hazard. Counsel further submitted that the Lord Ordinary had relied on the existence of safe alternatives, such as remaining on the verge, although none of these was put to the pursuer during her evidence. Because that was not done it was not possible to hold that these were in fact safe alternatives, because there might have been good reasons for not adopting them. Finally, counsel submitted that in attempting to cross a busy road the pursuer would have more on her mind than only to look out for the defender approaching at an unreasonably high speed. That reduced or eliminated the pursuer's share of the blame for the accident.

[23] Counsel for the defender submitted that on the question of contributory negligence the court should not interfere with the Lord Ordinary's apportionment. He had heard the evidence and reached a decision, and the authorities were clear that an appellate court should be slow to interfere with a decision at first instance in this area. He further drew attention to the Lord Ordinary's finding that the pursuer had failed to look to her left before crossing the road in front of the defender's car.

[24] Counsel for both parties made reference to a number of decided cases in this area of law. In Eagle v Chambers, [2003] EWCA Civ 1107, a 17-year-old had been walking along the carriageway of a road despite the entreaties of bystanders and other drivers. She was struck by the offside of the defendant's car. The trial judge held that she should bear a greater share of responsibility for the accident than the driver and apportioned that share at 60%. In the Court of Appeal this decision was reversed and it was held that the plaintiff's contributory negligence should be restricted to 40%. The court's reasoning is set out at paragraph 16:

"But a finding as to which, if either, of the parties was the more responsible for the damage is different from a finding as to the precise extent of a less than 50% contribution. There is a qualitative difference between a finding of 60% contribution and a finding of 40% which is not so apparent in the quantitative difference between 40% and 20%. It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court 'has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon'".

Thus a distinction exists between cases where a pedestrian is visible in the roadway and cases where a pedestrian suddenly moves in front of an oncoming vehicle. It is in the latter class of case that the pedestrian may have a greater share of blame apportioned than the driver. In some cases of this nature the court may hold that there is no liability on the driver because he could not have anticipated the sudden movement of the pedestrian: Stewart v Glaze, [2009] EWHC 704 (QB), where a pedestrian who had been sitting in a bus shelter suddenly ran out in front of the defendant's car; it was held that was no fault on the part of the defendant because there was no obligation to look out for the plaintiff's "inexplicable charge" into the road. That case is different from the present case in that it was held that the driver was driving at a reasonable speed and with due attention to potential hazards; those hazards did not include the sudden movement of the plaintiff into the road. Clearly a spectrum of possible scenarios exists between a case where a sudden darting out into the road is the sole cause of the accident and others where it is merely one factor, albeit an important one. If the driver is held to have been negligent, the relevance of darting out is confined to contributory negligence.

[25] In Smith v Chief Constable Nottinghamshire Police, [2012] EWCA Civ 161, a 17‑year-old girl moved into the path of a police car travelling at speed; the car was taking evasive action to avoid other pedestrians. At first instance the plaintiff's fault was apportioned at 75%, but on appeal this was reduced to one third. The Recorder who heard the case at first instance had found that the plaintiff showed "reckless disregard" for her own safety. The Court of Appeal took a different view (per Ward LJ at paragraph 54):

"She was more to blame for her misfortune than a pedestrian crossing the road in front of an ordinary car because she failed to heed the flashing lights and the siren but the major responsibility for the damage and therefore the more positively potent factor was the negligent driving of what was and what unfortunately became a dangerous weapon".

Finally, reference was made to Ehrari v Carry, [2007] EWCA Civ 120, where a 13-year-old girl who had just come out of school walked across the road to catch a bus and was struck by the wing mirror of a truck driven by the first defendant. In that case the judge of first instance held that the plaintiff was 70% responsible for the accident and the defendants 30%. That finding was not challenged on appeal. The Lord Ordinary relied on this case in deciding that the share of responsibility apportioned to the present pursuer should be greater than that of the plaintiff in Ehrari.

[26] In our opinion the Lord Ordinary was clearly entitled to hold that contributory negligence existed in this case. As he points out, at the age of 13 the pursuer must have been fully aware of the danger of crossing a major road from behind a bus without taking reasonable care to check for approaching cars. She was familiar with the locus and accepted that she was aware of the potential dangers of crossing this particular road. The Lord Ordinary indicated that there were obviously safe alternatives available to the pursuer. While this was challenged by her counsel in his submissions to us, we are of opinion that the Lord Ordinary was clearly correct on this matter. The pursuer was aware of the risk of traffic on what was a relatively major road. In these circumstances it is difficult to imagine any reason that she might have for not checking properly for approaching cars and, if a car was approaching, not crossing the road. On that basis, the obvious course for her to take was to remain on the verge or at least to remain behind the minibus until it moved off and she had a clear view of other traffic and drivers had a clear view of her; at the very most she could have stopped between the minibus and the centre line of the road. We do not think that cross-examination on these points was necessary; it is too obvious.

[27] There remains the question of the apportionment exercise carried out by the Lord Ordinary. In our opinion his apportionment of 90% of the responsibility for the accident to the pursuer was too high. We propose to reduce this to 70%, with the remaining 30% of responsibility being attributed to the defender. We do this for four reasons. In the first place, we are of opinion that insufficient regard was had to the circumstances of the pursuer. The pursuer was only 13 at the time of the accident. While at 13 she was old enough to understand the dangers of traffic, a 13-year-old will not necessarily have the same level of judgment and self-control as an adult. Moreover, in assessing whether it was safe to cross, she was required to take account of the defender's car approaching at a fair speed, 50 mph, in very poor light conditions with its headlights on. The assessment of speed in those circumstances is far from easy even for an adult, and even more so for a 13-year-old. In the second place, we are of opinion that greater stress should have been placed on the actings of the defender. He was found to have been driving at excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus. The danger was obvious because the minibus had its hazard lights on. The Lord Ordinary inferred that as he approached the minibus the defender did not address his mind to the risk that a person might emerge from behind it and attempt to cross the road. In all the circumstances we consider that the defender's behaviour was culpable to a substantial degree, and that that is a factor which should be taken into account.

[28] In the third place, we are of opinion that the Lord Ordinary was wrong to describe the actings of the pursuer as "an act of reckless folly". Those actings were clearly negligent, but recklessness implies that the pursuer acted without caring about the consequences. We do not think that such a description of the pursuer's conduct is justified on the facts found by the Lord Ordinary. In the fourth place, the causative potency of the parties' actings must be taken into account. Two factors are relevant in this connection. First, in apportioning responsibility account must be taken not only of the relative blameworthiness of the parties but also the causative potency of their acts. As is pointed out in Eagle and Smith, a car is potentially a dangerous weapon, and accordingly the attribution of causative potency to the driver must be greater than that to the pedestrian. Secondly, the Lord Ordinary held that the pursuer would have escaped the accident had she had an additional 1.12 seconds available. That suggests that the defender's excessive speed was causally significant. When all of these factors are taken together, we are of opinion that they clearly support an apportionment that is more favourable to the pursuer than the Lord Ordinary's apportionment. We nevertheless recognize that the major share of responsibility must be attributed to the pursuer, because her negligence was both seriously blameworthy and of major causative significance.

[29] Counsel for the pursuer submitted that this was not a "darting out" case, as referred to in Eagle and Stewart. As we have indicated, we think that "darting out" cases are not so much a distinct category as part of a spectrum of situations where a pedestrian moves in front of the vehicle with greater or lesser abruptness. In this case the pursuer's movement into the road was sudden, and to that extent this is a "darting out" case. It is not, however, a case such as Stewart where the pedestrian's actings are the sole cause of the accident, because in this case the defender was driving at excessive speed and without regard to the obvious hazard facing him, and these were important causative factors.

[30] While a number of cases on apportionment were cited to us, we are of opinion that these are only of very general assistance in performing the apportionment exercise. What is required is a judgment as to the relative blameworthiness of the parties and the relative causative potency of their actings in the circumstances of the particular case. For that reason it will only be in cases of very close similarity that another case can be regarded as a reliable guide. The Lord Ordinary relied on a comparison with Ehrari, but it does not appear to us that that case provides a particularly helpful guide to the present case. Overall, we do not see any obvious reason for distinguishing the culpability of the plaintiff in that case and the present pursuer.

Conclusion

[31] For the foregoing reasons we will allow the pursuer's reclaiming motion to the extent of modifying the Lord Ordinary's apportionment of responsibility to 70% on the part of pursuer and 30% on the part of the defender. We will refuse the defender's cross-reclaiming motion. The cause will be remitted to the Lord Ordinary to proceed as accords.