Lesley Heather Jackson V. Andrew George Murray+aviva Insurance Uk Ltd
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Clarke,Lord Drummond Young |
| Neutral Citation | [2012] CSIH 100 |
| Court | Court of Session |
| Published date | 27 December 2012 |
| Year | 2012 |
| Date | 27 December 2012 |
| Docket Number | PD1838/09 |
| 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: _______________ |
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...
To continue reading
Request your trial
-
Jackson v Murray
...UKSC 5 before Lady Hale, Deputy President Lord Wilson Lord Reed Lord Carnwath Lord Hodge THE SUPREME COURT Hilary Term On appeal from: [2012] CSIH 100 Appellant Andrew Smith Gavin Thornley (Instructed by Drummond Miller LLP) Respondents Graham Primrose QC Steve Love (Instructed by BLM Glas......
-
Apportionment of Damages for Contributory Negligence: Appellate Review, Relative Blameworthiness and Causal Potency
...her as “having committed an act of reckless folly”.4 4 Para 47. An Extra Division of the Inner House reduced the discount to 70%,5 5 [2012] CSIH 100, 2013 SLT 153 (henceforth “Jackson (Inner House)”). The court comprised Lord Clarke, Lord Drummond Young and Lord giving four reasons for inte......