LESLIE BUCK (AP) AGAINST (FIRST) JANE ANNE AINSLIE AND (SECOND) CIS GENERAL INSURANCE LIMITED
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 73
PD172/16
OPINION OF LADY CARMICHAEL
In the cause
LESLIE BUCK (AP)
Pursuer
against
(FIRST) JANE ANNE AINSLIE; and (SECOND) CIS GENERAL INSURANCE LTD
Defenders
Pursuer: I G Mitchell QC, Davidson; Allan McDougall (for Harold W Joseph Solicitors, Glasgow)
Defenders: McGregor; Anderson Strathern
3 May 2017
Introduction
[1] Shortly after midnight on 5 January 2013 the first defender was driving her Renault Megane on the A9 Bannockburn to Plean road, in the direction of Plean. At a point near to, and north west of, the AA Oils Truck Stop (“the truckstop”) she encountered the pursuer in the roadway and her car collided with him. Her car was in fifth gear, and she was using full beam headlights. Her car sustained damage to the nearside front bumper and nearside front windscreen. The pursuer was wearing dark clothing. None of these matters is disputed.
[2] The first defender, and the second defenders, her motor insurers, dispute liability for the injuries the pursuer suffered as a result of the accident. The diet of Proof which took place between 9 and 13 January 2017 was restricted to liability. During the Proof senior counsel for the pursuer conceded that he could not achieve a finding that the first defender was solely responsible for the accident. The questions for the court were, therefore, whether the defenders were liable at all, and if so, to what extent the pursuer contributed to the occurrence of the collision by his own negligence.
[3] The defenders did not aver in terms that the pursuer had been attempting suicide at the time of the collision, but did aver that after the accident medical staff suspected that he been doing so. They averred that on the afternoon preceding the accident the pursuer was noted to be drowsy and suspected of being under the influence of drugs and that he had attended a hospital that afternoon complaining of leg injuries sustained when he had jumped out in front of and been struck by a car in the previous week.
The Locus
[4] The road is a single carriageway road running approximately southeast (towards Plean) and northwest (towards Bannockburn). The speed limit is 60mph. It is lit by street lighting for a short distance from where it meets the Bannockburn roundabout. It does not benefit from street lighting at the part of the road where the collision took place. The road from Bannockburn rises up a fairly gentle gradient and then levels off for a distance before falling away into a downhill stretch towards Plean.
[5] On the level section is what from an aerial view looks like a staggered junction. First, as one travels southeast, there is a wide mouthed entrance into the truckstop to the left. Beyond the entrance to the truck stop, there is an entrance to the right of the road, leading to Gartclush farm.
[6] There is a footway to the side of the southeast bound carriageway. There is no footway to the side of the northwest bound carriageway. There is a grass verge, the width of which varies, and which is widest at the point immediately northwest of the entrance to Gartclush farm.
[7] Before the southeast bound driver reaches the entrance to the truck stop, there is a bus stop in a layby. For some distance in the approach to the bus stop from the northwest there are trees to the left of the footway. These continue along the footway at the bus stop and beyond the bus stop until the entrance of the truck stop.
Plans, Photographs and Video Evidence
[8] Police investigators prepared a scale plan (7/8 of process) which was accepted by both pursuer and defenders to be reliable and accurate so far as it showed the basic layout of the accident locus and the resting position of the pursuer on the road after the accident. Extracts from that plan are reproduced with markings and annotations at various points in 6/1 of process, a report by Mr John Johnston, a specialist in the reconstruction of road traffic accidents instructed by agents for the pursuer. That report contains also an aerial view taken from Google Earth and photographs in three appendices. Those in the first appendix were taken by Mr Johnston in November 2016. Those in the second are a selection from those taken by police at the scene after the accident and of which the full range is produced as 7/7 of process, and those in the third reproduce 7/11 of process, the photographs taken of the first defender’s vehicle by the second defenders’ assessor after the accident. All of 7/7, 7/8 and 7/11 were the subject a Notice to Admit for the pursuer and no exception was taken to them in terms of the resulting Notice of Non‑Admission.
[9] Mr Johnston also prepared a fourth appendix to his report, namely a DVD of a drive through of the accident locus, driving southeast. It was played and he spoke to it in his oral evidence.
[10] Among the debris photographed at the scene was a dark coloured baseball or “skip” cap, and a white training shoe.
The Pursuer
[11] The pursuer’s evidence was that he had no recollection as to the circumstances of the accident. His first memory was waking up on the Philipshill Ward at the Southern General Hospital in July 2013. He said that he had no recollection of any matter prior to about 2008.
[12] Counsel for the defenders asked the pursuer about various matters. He put to him that he had relapsed into drug use two weeks before the accident. He put to him that he had attended Forth Valley Hospital on the afternoon preceding the accident complaining of injuries to his lower legs and giving an account of having jumped in front of a car to save two young children. The notes referred to the pursuer’s having presented as drowsy and appearing to be under the influence of drugs. The pursuer had no recollection of any of these matters. Counsel asked whether the pursuer was in a position to say whether or not he had been attempting suicide at the time when the defender’s car struck him. The pursuer’s evidence was that he could not have been doing so. His response was, however, based on what he said was he said was his lack of “courage” and inability on that basis to end his life, rather than any positive recollection on his part as to what his state of mind had been at the time of the accident.
[13] The pursuer gave an account of what he said he was told by George Williamson. This was that Mr Williamson had told the pursuer that the pursuer had spent time at Mr Williamson’s home in Plean during the evening immediately preceding the accident, that Mr Williamson had fallen asleep on the sofa, and that the pursuer must have left and started to walk back towards Stirling. Mr Williamson had, on this account, told the pursuer that the two of them had had no alcohol or drugs, and had taken nothing stronger than coffee.
Isabel McIvor
[14] At about midnight, Isabel McIvor was driving from Plean towards Bannockburn taking her daughter, Aimee, and two of Aimee’s friends, to a nightclub in Stirling. She slowed down because she noticed either one or two cars at the side of the road as she approached the truck stop. The car or cars were south of the truck stop and in the southbound carriageway, half on the pavement and half on the road. She was unsure as to whether she saw one or two cars, but the circumstance struck her as unusual, given the time of night. Having slowed down she observed something in the road. This was just across from the truck stop and near to the entrance of Gartclush farm. Her daughter said, “Mum”, and at that point the lights of the car showed something on the road. The four women got out of the car and Mrs McIvor realized that what was in the road was a body. She heard the person grunting. She said, “Stay with us,” and asked her daughter to phone the police or an ambulance. She noticed that the person was badly injured. She could see parts of his scalp.
[15] She could not recall how the person was dressed, but recalled that he was wearing only one shoe.
[16] Mrs McIvor tried to stop cars which were driving past. She was wearing a nightdress and had been using her white cardigan to try to attract attention. The second or third car stopped. The driver was an off duty police inspector. Mrs McIvor had put her car in the centre of the road to try to stop cars approaching. She did not remember whether she did so at the instigation of the off duty inspector, or whether she decided to do so herself. The off duty inspector at some stage asked Mrs McIvor to put the latter’s car in the truck stop, and she did so.
[17] Mrs McIvor spoke to the lady who had apparently been driving the car that Mrs McIvor had passed south of the truck stop. Mrs McIvor asked her if she knew anything about the body and asked why she had not phoned police or ambulance. The woman said she had phoned her boyfriend. Mrs McIvor thought there had been another female present, and possibly a male as well.
[18] One lorry driver at the truck stop said he had heard a terrible bang.
[19] The weather must, she thought, have been nice, as she had gone out wearing her nightdress. She did not think it was wet or raining. She could not remember having given a statement to the police that someone had flagged her down.
Megan Stamper
[20] Megan Stamper was a passenger in the centre of the rear seat of the car driven by Mrs McIvor. She described the road as a dark, country-type road. She had noticed two cars and two people, a man and a woman, standing outside the cars on the right hand side of the road. Because it was so dark, Mrs McIvor had “got a fright” when she saw the cars and slowed down, Ms Stamper thought from about 40mph to 30mph.
[21] Mrs McIvor shouted, “Oh my God”, and Aimee McIvor screamed. Ms Stamper gave evidence that, given it was so dark, it was really lucky that Mrs McIvor had seen the pursuer. She stopped the car close to him to get the light on him. The pursuer was on the Bannockburn-bound carriageway, but close to the middle. His head was towards Plean and his feet towards Bannockburn.
[22] There might have been some light emanating from the truck stop, but the pursuer was closer to the farm entrance, and, she said, the lights from the truck stop “go more in towards the truck stop”, rather than the road.
[23] Ms Stamper thought that the two cars were at a level on the road similar to the car shown in 6/1 of process, appendix 1, photograph 3, showing a headlight, albeit on the other carriageway from that car. She could not see the cars from the position where the pursuer was lying. They were parked up on the footway. They were not in the position of the car shown in 6/1, appendix 1, photograph 5.
[24] Her recollection was that Mrs McIvor had moved her car into the centre of the roadway at the suggestion of a lorry driver who had come out of the truck stop because he had heard a noise. A woman who was an off-duty police officer on her way to the airport stopped and “took over”. Her evidence was that Mrs McIvor spoke to the defender before the off-duty officer arrived. A man and a woman were standing talking and looking “slightly distressed”.
[25] The off-duty officer was on the scene when the police arrived, but then left because she had a flight to catch.
Ailsa Williamson
[26] Ailsa Williamson was a back seat passenger in Mrs McIvor ’s car. I do not recount her evidence in detail here, as it did not advance my determination of liability.
PC John Lang
[27] John Lang is a police constable who attended the scene of the accident in the course of his duties. He spoke to the first defender. She was upset. He asked her who had been the driver of the Megane, in accordance with section 172 of the Road Traffic Act, and she replied that she had been driving. He cautioned her. She gave an account that she had been driving home, that a body had appeared out of nowhere, and that she had screamed and stopped her car. She agreed to provide a sample of breath, which was negative for alcohol. He was unaware of what efforts might have been made to trace the off‑duty officer, although he had been made aware that an off-duty officer had been one of the first persons on the scene.
[28] He had been responsible for the completion of 6/2 of process, an insurance road accident report, and agreed that it did not refer to off-duty officer as a potential witness. He was unable to explain why she was not mentioned.
[29] He thought that the pursuer had been wearing black clothing, and remembered seeing a white trainer and a baseball cap on the roadway.
[30] PC Lang was familiar with the area, and travelled along the road almost every day. In his experience light from the truck stop did not illuminate the road, but almost “drew” one to the truck top, by which I understood him to mean that a driver’s eye would tend to be drawn towards the truck stop by the lighting there. There was not much overspill of light – most of the light went into the truckstop itself.
John Johnston
[31] Mr Johnston’s expertise in the reconstruction of road traffic accidents derives largely from his training and experience as a police officer. He served for 28 years with the traffic division of Hertfordshire Police. When he retired from the police he was a senior collision investigator. Since 1999 he has been a member of the Institute of Traffic Accident Investigators. Since 2005 he has been engaged as a consultant with the Traffic Accident Investigation of Dr JH Burgoyne and Partners, consulting scientists and engineers.
[32] Mr Johnston adopted the terms of his report, while conceding in cross examination that certain parts of his report (for example, paragraphs 38 ‑ 52) were based on statements apparently made by individuals who did not give evidence at the proof.
[33] I set out here the more important aspects of Mr Johnston’s evidence. The Megane sustained damage to the nearside front bumper, bonnet and windscreen. The roof was dented and buckled at the nearside at various points from front to back. Mr Johnston’s opinion was that the pursuer made contact with the nearside of the roof.
[34] The pursuer came to rest near to the centre line of the road, but in the northwest bound carriageway. His head was to the southeast, and his feet to the northwest. Running northwest from the pursuer was a trail of debris extending back some distance along the road, including a baseball cap, a training shoe, body tissue and hair, and debris from the Renault Megane. The positions of these items are set out in more detail in figure 4 in 6/1. Mr Johnston was not challenged as to his view that the smear of tissue and hair depicted in photo and shown as point 3 on figure 4 in 6/1 indicated the point at which the pursuer landed on the ground and that he then continued along the ground until coming to rest. The pursuer covered about 14 metres between landing on the ground and coming to rest.
[35] Mr Johnston worked back from the position at which the pursuer came to rest in order to form an opinion as to the point of impact. Given his view that the pursuer made contact with the roof of the vehicle, and estimating a launch angle of between 5 and 20 degrees, he estimated a projection distance of between 26 and 41 metres, placing the potential collision area 26 to 41 metres northwest of where the pursuer came to rest.
[36] He narrowed this range by reference to where the baseball cap was found, on the basis that it probably became detached from the pursuer at or very soon after the collision. This placed the point of impact to the southeast of the range of possible locations, between 26 and 30 metres from the eventual position of the pursuer. I am satisfied that it can properly be inferred that the cap found at the scene was the cap of the pursuer.
[37] The speed of the Megane at collision could be calculated by reference to the projection distance. If the projection distance were 26 metres, the speed at impact would be about 40mph, and 43mph if the point of collision were a car length further to the northwest. The upper end of the collision speed range was about 51mph. In round terms the range of speeds of the vehicle at the time of the collision was between 40 and 50 mph.
[38] Mr Johnston gave some of his evidence on the premise that the first defender would say, by reference to her vehicle’s speedometer, that she had been travelling at 50mph. In the event, her evidence did not mention her speedometer. In summary, his evidence on this point was that a speedometer adjusted in accordance with the relevant legal requirements might read 50mph when a vehicle was travelling at any speed between 43mph and 50mph.
[39] The pattern of damage to the vehicle, and in particular the damage to the roof, indicated, in Mr Johnston’s opinion, that the pursuer had either been stationary at the moment of impact or had been moving longitudinally towards or away from the vehicle, rather than moving laterally across its front.
[40] On the foregoing matters, there was little by way of specific challenge in cross examination to Mr Johnston’s evidence, and I accepted it. The evidence he gave about perception and response time (“PRT”) in the context of the overall distance needed for a vehicle to stop at various different speeds was, however, the subject of challenge in cross‑examination, and his evidence was not entirely internally consistent on the point.
[41] Mr Johnston’s evidence about PRT was based on research of which an overview is presented in a publication which he had consulted, namely Krauss: Forensic Aspects of Driver Perception and Response, Fourth Edition 2015 (“Krauss”). I quote here from paragraphs 116 and 117 of Mr Johnston’s report, to which he spoke in his oral evidence.
“Krauss sets out an overview of the research in the literature relating to drivers’ PRTs. In brief summary, Krauss states that when considering what he describes as a fairly straightforward situation with minimal time available for response, most drivers will respond by about 1.5 seconds after the first appearance of the object or condition of concern. He is somewhat imprecise with regard to what he means by most people, which he describes as either 85% to 95% or 90% to 95%.
He also presents the results of various studies, and draws an overall conclusion that the available research suggests that most drivers will respond in about 1.5 to 2 seconds, with a likely minimum response time of 0.75 seconds. He adds the caveat that these perception and reaction times are for simple or straightforward situations, and that complex situations must be dealt with as such.”
[42] No further definition of simple or complex was proffered in evidence, save that Mr Johnston said that the appearance of a pedestrian on a roadway was a relatively simple matter, which would present immediately as a hazard requiring that a driver take steps to avoid it.
[43] Using a PRT of 1.5 seconds, the overall stopping distance of a vehicle travelling at 40mph is 49 metres, and that of a vehicle travelling at 50mph is 68 metres.
[44] A significant focus of cross examination was Mr Johnston’s approach to PRT. He appeared to accept in cross‑examination that the PRT began only at the point when someone or something had been perceived as a hazard. Detection of the person or thing and recognition of it as a hazard preceded the start of the PRT. This preceding phase of detection and recognition came to be referred to by counsel for the defender as the “detection phase”. Mr Johnston maintained that the time of 1.5 to 2 seconds for PRT did not vary between night‑time and daytime driving. What differed between the two was when an object became conspicuous. Mr Johnston indicated that some authors recognized a separate detection phase, but that Krauss did not identify a median time for a detection phase.
[45] Mr Johnston’s position as to whether a detection phase required to be added to the figures he had provided for PRT appeared to vary during his oral evidence. He said at one point that the PRT commenced when the driver accepted that something observed was a hazard, that there would be a period of time involved in forming that view, but that it was impossible to clarify what the period was. When asked what was the median time for detection and identification of a hazard at night‑time, he said that it depended on when an object became sufficiently conspicuous, and that it was impossible to put a precise figure on it. He accepted that he was unable to give an opinion as to what the duration of the detection phase might amount to. He went on to say that Krauss did not identify a separate detection phase, and that the component parts of the PRT overlapped with each other.
[46] In relation to night time driving, he accepted that there could be a period when an object was illuminated, but not sufficiently illuminated to be recognized as a hazard.
[47] In re‑examination, he was referred to passages in a report prepared for the defenders (whose author was not led as a witness). It was put to him, on the basis of information in that report, that in a complex situation the PRT might extend to 1.9 seconds; and he was asked what it was, in a complex situation, that took 1.9 or 2 seconds to achieve. He responded that where a person was walking or standing on a rural road and their presence was unexpected, then the perception part of the PRT should be extended. He was not sure whether that meant that a “detection” part should be extended. Some authors had identified periods of time regarding an extended perception time, and research indicated that it extended the PRT by about 0.4 seconds from the 1.5 second PRT which was the time from perception to reaction for something between 85 and 95% of drivers. He came to agree with Mr Mitchell’s suggestion to him that a 1.9 second PRT included a detection phase.
[48] According to Krauss, Mr Johnston said, the median seeing distance to a target with 8% reflectivity was about 87 metres when main beam headlights were used. Main beam headlights, according to Mr Johnston, projected light parallel to the road, rather than downwards towards the road, as did dipped beam. In cross examination he was not sure whether the 87 metre distance would require to be adjusted downwards. Figures ascertained by reference to results obtained under test conditions require to be adjusted downwards for real-life situations, because under test conditions drivers would be looking for a target. He was unsure whether the 87 metre figure was one which derived from test results. He did not know any statistics bearing directly on the function of the headlights of the particular model of car involved in the accident.
[49] In examination in chief Mr Johnston gave evidence that “mid to dark grey” had a reflectivity of about 8%, although he both cautioned in examination in chief and accepted in cross examination that he had no expertise in relation to the reflectivity of any particular object. Insofar as he gave evidence on the matter he was relying on the work of others. Lighter colours would have a higher percentage figure. The pursuer’s face would, he said, have been brighter than his clothing and once illuminated would have contrasted with the background, as would his shoes.
[50] Mr Johnston went on to take into account the distance the vehicle travelled while swerving to the right. Without reproducing here the detail of his calculation, his conclusion was that if the first defender’s PRT commenced when she was between 21 metres from the collision (based on PRT 0.75 seconds and speed 40mph) and 54 metres from it (based on PRT 2 seconds and speed 50mph) she could not have stopped before intersecting the pursuer’s position or his path.
[51] He considered hypotheses based on the pursuer’s crossing the road in either direction. In particular, if the pursuer entered the road from the first defender’s offside, and had stopped close to the centre line, Mr Johnston’s evidence was that the pursuer could have been within the first defender’s median seeing distance, and that she would have sufficient distance in which to stop if her PRT was 1.4 seconds or less. If he had been running or jogging, the first defender would have had to react in a shorter time.
[52] Mr Johnston provided a further opinion, again based on a hypothesis whereby the pursuer was stationary near to the centre line, and the first defender started to steer to the right 15 metres from the point of collision. In his opinion, if the first defender had not swerved, her vehicle might have passed the pursuer.
Dr Adam Burnell
[53] Dr Burnell is a consultant psychiatrist employed by Greater Glasgow and Clyde Health Board. His report is number 6/5 of process. He was asked to see the pursuer while the pursuer was still an inpatient of the Spinal Injuries Unit at the Southern General Hospital in Glasgow. The referral was made on Friday 19 July 2013 and Dr Burnell saw the pursuer the following Monday. Dr Burnell’s recollection was that the pursuer had mentioned to a member of nursing staff that if he did not recover “properly” from his injuries, he might be better off dead. Dr Burnell described reactions of this sort as not uncommon among patients who had suffered serious spinal injuries, and as being “context dependent”.
[54] The pursuer had been clear in his account to Dr Burnell that he was not suicidal at the time of the accident and that there had been nothing happening in his life to provoke such thoughts at that time. Dr Burnell had some recollection, although he could not recall precisely what had been said, to the effect that the pursuer was, as an intravenous drug user, aware of more effective and less painful ways to end his life than placing himself in the path of an oncoming car. He had formed the opinion that the pursuer had not been experiencing suicidal ideation at the time of the accident.
[55] Dr Burnell formed the view that as at July 2013 the pursuer was not suffering from any severe mental illness, but was reacting emotionally to the circumstances in which he found himself. He was confident in his view that the pursuer was not experiencing suicidal ideation as at July 2013, and understandably slightly less confident in the view that he had formed regarding the pursuer’s state of mind at the time of the accident.
The First Defender
[56] The first defender had been working backshift at the Co‑operative in Stirling, and had dropped off a colleague before travelling towards her home in Plean. She was familiar with the road where the accident happened, and drove on it every day. She frequently drove on it during the hours of darkness. She said she had been travelling at about 50mph. She was unable to give a precise speed. She did not make reference in her evidence to having looked at the speedometer. At the time of the accident she had been a driver for 13 years.
[57] She said that the road was clear, and that all of a sudden it was as if someone had just run in front of her car. The first thing she saw was a white shoe in her headlight, and there was very little time to react. The figure came from her right. It was as if they were in a stepping motion; as if they were midstep. The trainer “caught” the headlight as the person stepped in front of the car. She pulled her car to the right. She described that as a split second reaction. Subsequently she had rationalised that had she not done so, the pedestrian would have impacted on the driver, rather than the passenger, side of the vehicle, but that had not been her thought process at the time. There was no time to think; she turned the wheel and braked. She was aware that it was a person. She saw the white trainer in her headlight, the person in black, and there was the impact of his hitting the windscreen of the car. After the impact she stopped the car in the northwest-bound lane. She moved it, as it was vulnerable to being struck by another car. She waved down another motorist and asked him to call for police and an ambulance. She could not initially find her phone, but eventually did so in her handbag in the rear of her car, and telephoned her boyfriend.
[58] The first defender had not noticed anyone in the road before seeing the trainer in her headlights.
[59] She normally slowed down when approaching the truck stop from either direction, because the light that was usually on there tended to catch her eye. Her evidence was that the light usually on there was absent on the evening of the accident, but she had slowed down because she had been expecting it to be on. She described how, usually, the trees at the roadside in the southeast-bound approach to the truck stop would screen the light, and that the light would catch her eye as she drew level with the truck stop. She accepted that even at night, pedestrians would use the footpath. Her evidence was that she had never seen a pedestrian on the grass verge adjacent to the northwest-bound lane. She accepted that a pedestrian might cross from the farm entrance to the footpath, or in the opposite direction. She said that had someone been on the grass verge she would have seen them by virtue of her full beam headlights.
[60] The first defender denied that she was tired. She had not been working on backshift the previous night. She would have expected to be awake for a further hour or two on her return home. The car radio was not on.
[61] She did not recollect being spoken to by Mrs McIvor, and described herself as having been in shock at the time.
Discussion - Liability
[62] Two matters particularly inform my consideration of liability in this case. The first is the lack of direct evidence as to where the pursuer was in the seconds immediately preceding the collision. The second is the extent to which I can form conclusions on the basis of the evidence of Mr Johnston.
[63] The duty incumbent on the first defender was to take reasonable care. I accept as correct and adopt the approach taken by Coulson J in Stewart v Glaze [2009] EWCH 704 (QB) at paragraphs 5-7:
“5. I have to apply to Mr Glaze's actions the standard of the reasonable driver. It is important to ensure that the court does not unwittingly replace that test with the standard of the ideal driver. It is also important to ensure, particularly in a case with accident reconstruction experts, that the court is not guided by what is sometimes referred to as ‘20-20 hindsight’. In Ahanonu v South East London & Kent Bus Company Limited [2008] EWCA Civ 274 , Laws LJ said:
‘There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care.’
6. In that case, the judge at first instance had found the defendant's bus driver negligent, although the damages were reduced by a finding of 50% contributory negligence. The Court of Appeal concluded that the judge's findings could not stand and they held that the bus driver was not negligent at all. In his judgment, Lawrence Collins LJ disagreed with the judge's finding that the bus driver should have carried on keeping an eye in his nearside mirror to look for pedestrians on a particular part of the carriageway at the entrance to Peckham Bus Station. He said that this was a ‘counsel of perfection and it ignores the realities of the situation’. He concluded that an overall evaluation of the circumstances lead inevitably to a finding that there was no negligence. His conclusion of paragraph 20 was in these terms:
‘I accept the submission for the defendants that, taking into account human reaction times for responding, the reality of the situation where the turn takes only seconds is that, given the driver's concentration on the vehicle in front, even if he had by chance looked up and seen the claimant in his nearside mirror after pulling away, it would have been just as the accident was taking place.’
7. By the same token, it is also important to have in mind that a car is ‘potentially a dangerous weapon’ (Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801 ) and that those driving cars owe clear duties of care to those around them. Compliance with speed limits and proper awareness of potential hazards can often be critical in such situations.”
[64] So far as the determination of liability is concerned, the pursuer’s evidence provides no assistance. He gave no evidence as to the circumstances of the accident itself. There was some suggestion that his account to Dr Burnell was inconsistent with the extent of the amnesia that he claimed to have when giving evidence. I do not require to determine whether what he said about the extent of his amnesia was correct. He gave no direct evidence as to what happened on the evening of the accident. I do not require to determine the credibility of his assertions as to his state of mind, for reasons more fully set out below.
[65] The evidence from Mrs McIvor, Ms Stamper, Ms Williamson and PC Lang provides relatively little assistance in determining liability. I regarded them as credible and, for the most part, reliable, witnesses. Their evidence regarding the resting place of the pursuer adds little, given that parties agreed that that 7/8 showed that location. While their evidence differed as to the precise position in which the first defender parked her car, nothing in my view turns on that matter. I regarded the first defender as a credible and reliable witness.
[66] A matter that I regarded as of some significance was the emphasis that Ms Stamper placed on the darkness of the locus. She regarded it as lucky that Mrs McIvor had seen the pursuer, and that after she had already slowed down. She said that Mrs McIvor had stopped the car close to the pursuer to get the light (from the car headlights) on him. There was no evidence as to whether Mrs McIvor was using full beam or dipped headlights.
[67] On the basis of the evidence of Ms Stamper and PC Lang, I came to the view that, even had they been on, the lights from the truckstop would not have illuminated the roadway to any material extent. In any event I accepted the first defender’s account that the lights were not on as she was approaching on the night of the accident.
[68] There were some minor differences among the witnesses as to precisely where the first defender’s car came to be parked after the accident. PC Lang’s evidence was significantly different from that of the other witnesses, and I consider that his recollection was mistaken in this regard. What is clear, however, is that all of them observed it only after she had moved it following the collision, and none can assist as to its position at or immediately after the collision. Nothing turns on where the car came to be parked.
[69] I accept that the first time the first defender saw the pursuer was, as she described, when she saw the shoe in her headlight, and infer that was at a point in time very close indeed to the collision.
[70] The evidence available about the speed at the time of collision comes from the first defender herself, and from Mr Johnston. On the available evidence I have been unable to reach a conclusion more precise than that the speed of the first defender was between 40 and 50 mph.
[71] Mr Johnston was for the most part a careful witness who acknowledged the limitations of his own expertise and of what opinions he could properly express on the basis of the information available to him. I did have some difficulty, however, as I explain more fully below, with his evidence as to PRT and as to the reflectivity of clothing.
[72] I accept the opinion evidence of Mr Johnston, based on the physical evidence at the accident scene and on the body of the car, that the pursuer was near to the centre line of the road when the collision occurred.
[73] I find on the balance of probabilities that when the first defender first saw the pursuer he was at the right hand side of what was within her field of vision.
[74] Mr Mitchell accepted that there was no evidence as to from what direction the pursuer had come immediately before the collision. Mr Mitchell referred to a “probability cloud” in relation to the position of the pursuer when first defender came to be 87 metres from the point of collision. By that I understood him to mean that he was unable to lead evidence as to the precise position of the pursuer at that point in time. On the balance of probabilities, however, the position of the pursuer was such as to permit the first defender to see him and identify him as a hazard at a time when she would, if exercising reasonable care, have been able to take steps to avoid the collision.
[75] That submission is predicated on two propositions. The first is that the pursuer would have been visible when the first defender was 87 metres from the point of impact. The second was that, if he was so visible, a driver exercising reasonable care would have been able to avoid the collision. Whether each of those propositions came to be established depended upon the evidence of Mr Johnston.
[76] A motor car travelling at 40mph takes 22 metres to stop, and one travelling at 50mph takes 34 metres to stop. Before the process of stopping can be undertaken, there is a period known as perception and response time (“PRT”). The evidence as to what this period is, and particularly the evidence which might permit me to form a view as to what is to be expected of the reasonably careful driver, was, unfortunately, confused and confusing.
[77] Mr Johnston’s evidence about PRT was based on research of which an overview is presented in a publication which he had consulted, namely Krauss: Forensic Aspects of Driver Perception and Response, Fourth Edition 2015 (“Krauss”). I do not criticize Mr Johnston for consulting and citing the work of others, and I have no basis for doubting his characterization of Krauss as a significant and useful reference work in the field of accident investigation and reconstruction. It is legitimate for skilled witnesses to draw on the work of others, such as the findings of published research: Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59, paragraph 41.
[78] I was left in doubt as to what his position was as to the time that most drivers will take to react to a hazard, and in particular as to whether it was longer than the times quoted in his report in relation to PRT. While Krauss did not identify a median time for the detection stage, other authors apparently did. There was nothing in Mr Johnston’s evidence to indicate why I should accept the approach of Krauss rather than that of other authors of whose work Mr Johnston was aware.
[79] That difficulty reflects the limitations of Mr Johnston’s own expertise. He provided useful evidence to the court derived from his application of various calculations and assumptions to the physical evidence at the accident scene. When he gave evidence about PRT, however, that was limited to his presenting and recounting a range of times in the literature. When that evidence was challenged, it was apparent that he was not able to explain exactly what was encompassed with the times given as PRTs. He could not explain in detail the sorts of research or other endeavour that had given rise to the figures in the literature that he had consulted, or why different authors took different approaches to the question. While it is legitimate in principle for a skilled witness to draw upon published research, his own evidence about the matters in question may come to carry little weight if he is not able to make clear his own understanding about the nature and value of that research and its results.
[80] I start by looking at matters leaving out of account the parts of Mr Johnston’s evidence which might support a longer PRT than the range quoted in his report. Even on that basis, I have been unable to regard his evidence as a sound basis for a conclusion on the balance of probabilities that the first defender, if exercising reasonable care, could have avoided colliding with the pursuer.
[81] The range for PRT quoted from Krauss for “most drivers” is a time of 1.5 to 2 seconds, notwithstanding the statement in paragraph 116 of Mr Johnston’s report that somewhere between 85% and 95% of drivers will respond by about 1.5 seconds after the first appearance of the object of concern. I proceed for present purposes on the basis that a PRT in the range of 1.5 to 2 seconds may be expected from a driver exercising reasonable care. Mr Mitchell made the point, in submissions, that if 85% or 95% per cent of drivers within 1.5 seconds, there will be drivers, perhaps many, who respond within a shorter period. I was not, however, presented with evidence as to the percentages of drivers who would respond within particular periods of less than 1.5 seconds.
[82] Mr Johnston’s opinion was that the pursuer should have been visible to the first defender when she was 87 metres from the point of collision. 87 metres was described as the median seeing distance to a target with 8% reflectivity where main beam headlights were used. I will return to that aspect of his opinion later, but proceed at this point on the basis that he was correct about that.
[83] Mr Johnston presented a hypothesis at paragraph 156 of his report whereby the pursuer came from the first defender’s offside at a normal walking pace, walking straight across the road. Even on that hypothesis the opportunity available to the first defender to observe him and to stop in time to avoid him was very limited indeed. According to Mr Johnston’s evidence, on that hypothesis, the first defender, with a PRT of 1.4 seconds, could have avoided the collision.
[84] That PRT is less than that selected by Mr Johnston himself – 1.5 to 2 seconds – as representing the PRT of “most drivers”. It is not clear on what basis I am invited to conclude that a PRT of 1.4 seconds is to be expected of a driver exercising reasonable care. For that reason, even if I were to accept that, on the balance of probabilities, the accident actually occurred in the way described in paragraph 156 of Mr Johnston’s report, I would not accept that the pursuer had established that the accident was caused by the negligence of the first defender.
[85] The difficulty for the pursuer’s case with a scenario requiring a PRT of 1.4 seconds is only exacerbated by the unsatisfactory nature of Mr Johnston’s evidence regarding PRT. Parts of his evidence indicated that it is necessary to add to the PRT figures in his report some other undisclosed period of time representing the time taken to recognise that an object is a hazard.
[86] I am conscious also of the passage of Mr Johnston’s evidence in re‑examination where he appeared to accept that the appearance of a pedestrian unexpectedly on a rural road might be the type of complex situation where a PRT in the region of 1.9 or 2 seconds might be expected.
[87] I am not, therefore, satisfied, that if the pursuer had been visible to the first defender when she was 87 metres from the point of collision, she would, if exercising reasonable care have been able to avoid him. The evidence regarding what might reasonably be expected by way of time for her to respond so as to be able to avoid him is unsatisfactory.
[88] There is in any event no factual evidence as to the position of the pursuer at the time when the first defender was 87 metres from the point of collision. There is no evidence as to whether he was standing upright or in some other position, or whether he was on the verge or in the roadway. There is no evidence as to whether he was stationary, walking or running. The only qualification to that is that I accept, on the basis of Mr Johnston’s evidence, that at the point of impact, he would have been stationary, or travelling longitudinally. That does not assist me, however, as to what he was doing or where he was in the seconds before impact. The evidence that he may have been stationary is in relation only to the moment of impact itself. It does not mean that he must have been standing still in the middle of the roadway for a period before impact. As Mr Johnston himself recognized, one possibility was that he had halted in an attempt to avoid the car. I am not prepared to infer from the available evidence that the pursuer must have been visible to the first defender when she was 87 metres from the point of impact.
[89] I disregard the passage in paragraph 153 of Mr Johnston’s report regarding an account available to Mr Johnston as to the pursuer’s manner of walking, and at paragraph 160 regarding accounts available to Mr Johnston regarding places where the pursuer may have been seen at different times before the accident. None of these accounts featured in the evidence led at proof. Even if they had it is far from clear that they could have illuminated the crucial question as to where the pursuer was in the seconds immediately preceding the collision.
[90] I consider that I cannot rely on the limited evidence given by Mr Johnston regarding reflectivity. He was not qualified to give estimates as to reflectiveness for particular colours of clothing, although he said in evidence that dark grey had a reflectiveness of about 8%. I do not accept as reliable his evidence that the dark blue baseball cap left at the scene and depicted in certain of the photographs had a reflectiveness of 8%. That seems to go beyond the range of expertise that Mr Johnston himself professed. I cannot, therefore, infer on the basis of the evidence that I have about the pursuer’s clothing that it had, on the balance of probabilities, a reflectiveness of 8% or more. I do not know on the basis of the evidence what the overall reflective value would be of an adult caucasian male dressed in dark clothing and wearing white trainers. I therefore do not accept on the balance of probabilities that the pursuer would have been visible to the first defender at a distance of 87 metres, even had he been on the roadway at the time.
[91] What does seem reasonably clear is that the shoes of the pursuer were white, and would have been more reflective than the remainder of his clothing as they were white, and the rest was dark. The question of whether full beam lights would have illuminated his shoes was not explored. Mr Johnston gave evidence, which I accept, that full beam lights illuminate points further away than do dipped beams, because the former are projected parallel to the roadway, while the latter are directed downwards towards the roadway.
[92] While it cannot be literally true that the pursuer “came out of nowhere”, I am not prepared to accept that, on the balance of probabilities, the pursuer must have been visible to the first defender at a time such as to permit her to avoid the collision. The accident happened at night and during the hours of darkness. The pursuer was wearing dark clothes. It is not clear on the evidence which way he was facing at any particular time. It is not clear whether a full beam headlight would have illuminated his shoes, or, if it would, where the car would have been when it did so. The presence of a pedestrian on a rural roadway such as that in this case late in the evening would undoubtedly have been unexpected. Even allowing for the relatively open nature of the path to the one side and the verge to the other side of the carriageway, I am not satisfied that the first defender ought to have been able to observe the pursuer in the event that he was in either of those locations.
[93] Mr Johnston gave evidence that if the first defender had started to steer 15 metres or more away from the collision, and if Mr Buck was stationary then, if she had not steered, the Renault might have passed. I do not consider that there is a proper basis in the evidence for finding that she should have started or did start to steer 15 metres or more from the collision. It is not clear, as I have already said, that the pursuer was stationary other than at the point of impact.
[94] I accept in any event that the first time the first defender saw the pursuer was, as she described, when she saw the shoe in her headlight, and infer that was at a point in time very close indeed to the collision. I would not regard a split second decision to swerve rather than to continue straight on when encountering an unexpected hazard in conditions of darkness in the way that the first defender described as a breach of the duty to take reasonable care. To do so would be to impose the standard of an ideal driver, rather than one taking reasonable care.
[95] Finally, I observe that in his written submission Mr Mitchell made some reference to the content of Mr Ward’s report which he said was before the court insofar as Mr Johnston was referred to it. I am not prepared to make any finding on the basis of part of a report whose author was not led in evidence, and the quality of which I have had no opportunity to assess.
Contributory Negligence
[96] In accordance with the guidance in Little v Glen and others [2014] CSIH 99 at paragraph 35, I provide my view as to contributory negligence on an esto basis.
[97] I am satisfied that the pursuer failed to take reasonable care for his own safety. The pursuer placed himself in the roadway, in a rural setting, in dark clothing, during the hours of darkness, on a road where the speed limit was 60mph. The first defender’s vehicle, using as it was full‑beam headlights, would have been much more visible to the pursuer than the pursuer was to the first defender. Mr Mitchell accepted as much in the course of his submissions. Mr Johnston’s evidence was that if the pursuer had looked towards the northwest, the first defender’s vehicle would have been visible for between 8 to 10 seconds.
[98] I have reached that view without requiring to form a conclusion as to the state of mind or state of sobriety of the pursuer at the time.
[99] Mr Mitchell acknowledged that some finding of contributory negligence was inevitable. He submitted, under reference to Eagle v Chambers [2004] RTR 115 that it would be rare for a pedestrian to be found to be more responsible than a motorist, unless the pedestrian had suddenly moved into the path of the oncoming vehicle: Hale LJ at paragraphs 15 and 16. He submitted that an allocation of no more than 50%, citing Malcolm v Fair 1993 SLT 342; Cavin v Kinnaird 1994 SLT 111 and McNab v Bluebird Buses [2007] CSOH 36.
[100] Mr McGregor submitted that the present pursuer was more blameworthy than the pursuer in Smith v Bluebird Buses [2014] CSOH 75, in which Lord Boyd found the pursuer 85% to blame.
[101] In McNab v Bluebird Buses the pursuer was found 50% to blame where he walked along the A92 during the hours of darkness with his back to oncoming traffic. It is notable, however, that Lord Brodie was of the view that to walk on the roadway rather than the verge was not necessarily an unreasonable choice during the hours of darkness in the particular circumstances of that case, and want of reasonable care arose in not having chosen the carriageway where he faced and could avoid oncoming traffic. In the present case there was a footway to one side of the carriageway and no suggestion that the pursuer could not have used it to make his journey.
[102] Malcolm v Fair and Cavin v Kinnaird involved accidents on city streets, in one case Leith Walk in Edinburgh, and in the other Shettleston Road in Glasgow. Neither deals with the presence of a darkly clad pedestrian on a country road during the hours of darkness.
[103] Smith v Bluebird Buses involved a bus driver trying to pass a pedestrian, having seen him. The pedestrian stepped out suddenly. The driver was at fault for having tried to pass, rather than stop, but contributory negligence was assessed at 85%. It turns on its own facts and I do not find it of assistance.
[104] In assessing contributory negligence, I require to assess the relative blameworthiness of pursuer and defender. It is difficult to do that given that there is in my view no adequate foundation for saying that the pursuer was or should have been visible to the first defender at any particular time, or for reaching a view as to precisely what the pursuer did, or why he did it. On the basis of the circumstances set out in paragraph 94 I have formed the view that the pursuer must bear the greater proportion of blame for the accident. He decided to be in the roadway in the face of a visible, well-lit, oncoming vehicle where there was no obvious need to be there. He should have known he would be particularly difficult to see in the dark, dressed as he was in dark clothing. On the information available I would assess the pursuer, on a fairly broad basis, as 70% to blame for the accident.
[105] I do not make any finding as to the state of the pursuer’s mind or sobriety at the time of the accident. I am not satisfied that the way in which the defenders’ averments were drafted necessarily permit me to make factual findings on this matter. The averments are as to circumstances from which inferences might be drawn, but never explicitly invite the inference or state by way of a formula such as “believed and averred” that a particular inference could properly be drawn. Notwithstanding that, however, I set out my view in relation to the evidence that was led without objection on the basis of those averments.
[106] The pursuer’s evidence provided no assistance, as on his own account he could not remember anything about the time of the accident. The extent of the agreement between the parties was only that the entries within the medical records were written on the dates recorded by the medical practitioners who appear to have made the entries. There was no evidence that the entry made in relation to what was apparently an attendance by the pursuer on 4 June 2013 recorded accurately any account given by the pursuer at that time, or that the recorded observations as to his presentation were accurate. Even if the entries were accurate, they would amount to a record of the pursuer’s having given an account of being struck by a car while trying to rescue two children.
[107] Dr Burnell’s evidence did not support the proposition that the pursuer was suicidal at the time of the accident. His principal focus was on the state of mind of the pursuer at the time that he saw him, and his conclusion was that he pursuer was, perhaps not surprisingly, reacting emotionally to the situation in which he then found himself, namely that of someone with a spinal injury facing the prospect of permanent significant disability. It is perhaps curious that the pursuer was able to give an account to Dr Burnell as to his state of mind in the time immediately preceding the accident, whereas he claimed at the time of proof to be unable to remember anything between 2008 and the time of the accident, but nothing turns on that circumstance so far as the resolution of the issues before me is concerned.
[108] There is nothing in the evidence that allows me to infer, as opposed to speculate, that the pursuer was attempting to commit suicide at the time of the collision. There is nothing to allow me to infer that he was intoxicated at the time. As I have already said the extent of the agreement as to the content of the medical records is very limited. Even if there were evidence that the pursuer presented as intoxicated on the afternoon of 4 June, that would not permit me to conclude that he was intoxicated at the time of the collision, many hours later. I place no weight on the pursuer’s evidence as to the account that Mr Williamson gave to him regarding their respective states of intoxication. Mr Williamson was not brought as a witness. Even on the assumption that the pursuer accurately recounted in evidence something that Mr Williamson said to him, I am unable to assess Mr Williamson’s own credibility and reliability.
Disposal
[109] The pursuer has failed to establish that if exercising reasonable care the first defender would have been able to avoid colliding with him. I therefore grant decree of absolvitor in respect of both defenders.