Cameron v Swan
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 10 June 2021 |
| Docket Number | No 1 |
| Court | Court of Session (Inner House) |
First Division
Lord Brailsford
Anderson v Imrie [2018] CSIH 14; 2018 SC 328; 2018 SLT 717
Bourhill v Young 1942 SC (HL) 78; 1943 SLT 105; [1943] AC 92; [1942] 2 All ER 396
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993); 113 S Ct 2786
Donoghoe v Blundell [1985] CLY 2254
Green v Bannister [2003] EWCA Civ 1819
Henderson v Foxworth Investments Ltd sub nom Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd [2014] UKSC 41; 2014 SC (UKSC) 203; 2014 SLT 775; 2014 SCLR 692; [2014] 1 WLR 2600; 158 (27) SJLB 37
Hogan v Highland Regional Council 1995 SC 1; 1995 SLT 466
Hunter v Chief Constable, West Midlands [1982] AC 529; [1981] 3 WLR 906; [1981] 3 All ER 727; 125 SJ 829; The Times, 29 November 1981
Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59; 2016 SLT 209; 2016 SCLR 203; [2016] 1 WLR 597; [2016] ICR 325; [2016] PIQR P9; 149 BMLR 17; The Times, 29 February 2016
Lightfoot v Go-Ahead Group plc [2011] EWHC 89; [2011] RTR 27
Lunt v Khelifa [2002] EWCA Civ 801
McNab v Bluebird Buses Ltd [2007] CSOH 36; 2007 Rep LR 36; 2007 GWD 7-121
R v Bonython (1984) 38 SASR 45
Sam v Atkins [2005] EWCA Civ 1452; [2006] RTR 14
Scott v Gavigan [2016] EWCA Civ 544
Stupple v Royal Insurance Co Ltd [1971] 1 QB 50; [1970] 3 WLR 217; [1970] 3 All ER 230; [1970] 2 Lloyd's Rep 127
Symmers v Lees 2000 JC 149; 2000 SLT 507; 2000 SCCR 66
Towers v Flaws [2015] CSIH 97; 2020 SC 209; 2020 SLT 259; 2020 Rep LR 43
Whittle v Bennett [2006] EWCA Civ 1538
Woodhouse v Lochs and Glens (Transport) Ltd [2020] CSIH 67; 2020 SLT 1203; 2021 SCLR 1; 2021 Rep LR 2
Department for Transport, The Highway Code (TSO, Norwich, June 2015) (Online: https://www.gov.uk/guidance/the-highway-code (5 August 2021))
Evidence — Witnesses — Expert witness — Road traffic accident — Pursuer intoxicated and lying in middle of street run over by first defender driving van in course of employment with second defenders — Proof restricted to liability and contributory negligence — Expert evidence led from psychologist towards demonstrating what first defender might have seen before he ran over pursuer — Whether evidence within legitimate scope of opinion evidence
Evidence — Onus of proof — Road traffic accident — Pursuer intoxicated and lying in middle of street run over by first defender driving van in course of employment with second defenders — Proof restricted to liability and contributory negligence — First defender had pled guilty to criminal charge of careless driving in contravention of sec 3 of the Road Traffic Act 1988 (cap 52) — Whether Lord Ordinary erred in application of reverse onus of proof given existence of conviction of first defender — Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (cap 70), sec 10(2)
Samuel Cameron raised an action for reparation under the Court of Session personal injuries procedure seeking damages in respect of injuries sustained by him as a result of a road traffic accident involving the first defender, Martin Swan, who was driving a van in the course of his employment with the second defenders. The cause called before the Lord Ordinary (Brailsford) for a proof restricted to liability and contributory negligence, on 7 May 2019. At advising, on 27 February 2020, the Lord Ordinary assoilzied the defenders ([2020] CSOH 20). The pursuer reclaimed.
Section 10(2)(a) of the Law Reform (Miscellaneous) Provisions) (Scotland) Act 1968 (cap 70) provides that, in any civil proceedings in which a person is proved to have been convicted of an offence, he shall be taken to have committed that offence unless the contrary is proved.
On 23 April 2016, the pursuer was intoxicated and lying in the middle of a street in central Paisley where, at about 5.00 am, he was run over by the first defender who was driving a van in the course of his employment with the second defenders. The first defender pled guilty to careless driving in contravention of sec 3 of the Road Traffic Act 1988 (cap 52). The pursuer subsequently raised an action for reparation. Given the existence of the conviction, the Lord Ordinary ordained the defenders to lead at the proof.
At proof, the first defender gave evidence that he did not think that he had been guilty of careless driving but that he had nevertheless decided to plead guilty due to the risk of going to prison, and the possibility of losing his job if he were disqualified from driving. The defenders led, without objection, evidence a cognitive psychologist and psychophysicist specialising in visual perception and situation awareness, directed towards demonstrating what the first defender might or might not have seen before he ran over the pursuer.
The Lord Ordinary accepted that the onus was on the defenders but considered that the onus was reversed in relation to facts not contained in the criminal libel. The Lord Ordinary concluded that the defenders had rebutted the onus. While the Lord Ordinary would have found that the pursuer's actions had significantly contributed to the accident, he did not attempt to assess the degrees of culpability.
The pursuer argued that the Lord Ordinary had correctly identified the existence of the reverse onus of proof but had failed to apply it on the facts, had made material errors of fact, failed to record and to consider relevant evidence, and relied upon evidence which had not been led at proof.
The defenders argued that the Lord Ordinary had reached the correct conclusion on the evidence, and the court ought not to interfere with his primary findings in fact unless these were plainly wrong.
Held that: (1) the determination of whether a driver had been negligent was one of law but dependent upon primary findings of fact, and in reviewing the latter, the appellate court required to exercise appropriate caution, and in the present case, the Lord Ordinary had erred in that he failed to apply the reverse onus of proof, failed to consider relevant evidence, misunderstood the evidence of the principal witnesses, taken into account evidence of opinion which ought to have been excluded as inadmissible, and reached a conclusion which could not reasonably be explained or justified (paras 59, 60, 66–68, 69–73, 82); (2) the Lord Ordinary had to decide for himself whether negligence had been made out, and he had erred in so far as he had attached any weight to the psychologist's views on general visibility, conspicuity or contrast of the pursuer (paras 75–81); (3) the first defender's plea of guilty to causing injury by careless driving had reversed the onus of proof, which had included driving too close to the taxi and failing to notice the pursuer, and it was not for the pursuer to satisfy the court that the first defender had a line of sight to the pursuer, but for the defenders to demonstrate that he did not (paras 61–63); (4) the tendering of a guilty plea was a significant formal step amounting to a clear and unequivocal judicial admission that the first defender's negligence had been the cause of the injuries to the pursuer, and the Lord Ordinary had not taken the admission into account (paras 64, 65); (5) the accident had been caused by the fault and negligence of the first defender and the second defenders were vicariously liable therefor, and the court would apportion 65 per cent fault to the pursuer and 35 per cent to the defenders (paras 82–88); and reclaiming motion and proof on quantum allowed.
Observed that a delay of nine months between proof and decision was unacceptable and did not provide the reader with confidence that the testimony or demeanour of the witnesses would have been fresh in the Lord Ordinary's mind or that, even with the benefit of his notes, he could recollect the evidence accurately (para 3).
Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59 and Woodhouse v Lochs and Glens (Transport) Ltd2020 SLT 1203applied and Green v Bannister[2003] EWCA Civ 1819considered.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Pentland, for a hearing on the summar roll, on 29 April 2021.
At advising, on 10 June 2021, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This ought to have been a relatively straightforward road traffic accident case. It was not disputed that, at about 5.00 am on 23 April 2016, the pursuer was lying in the middle of a street in central Paisley. He was intoxicated. The first defender was driving a van in the course of his employment with the second defenders. He ran over the pursuer. The first defender pled guilty to a contravention of sec 3 of the Road Traffic Act 1988 (cap 52) (careless driving).
[2] On 26 September 2018, the Lord Ordinary refused a motion for interim damages. He considered it likely that the defenders would be found liable, but that a substantial element of contributory negligence would follow. Although the Lord Ordinary thought that it was generally undesirable to split proofs, he reasoned that an early finding on liability and contributory negligence would allow the pursuer to seek an award of interim damages in due course and might assist parties in the settlement of the case. On that basis, he allowed a proof restricted to liability and contributory negligence. This was scheduled to take place in the early part of 2019, with a view to a date being fixed for a proof on quantum later. Given the existence of the conviction, the Lord Ordinary subsequently (21 December 2018) ordained the defenders to lead at the proof.
[3] The Lord Ordinary's efforts to secure an early resolution of the litigation were in vain. The proof commenced on 7 May 2019 before a different Lord Ordinary, who made avizandum on 14 May 2019. His decision and relative opinion ([2020] CSOH 20) were only issued on 27 February 2020, some nine months later. This is an...
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