Lesley Jackson V. Andrew Murray
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2012] CSOH 100 |
| Court | Court of Session |
| Published date | 14 June 2012 |
| Year | 2012 |
| Date | 14 June 2012 |
| Docket Number | PD183/09 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 100 | |
| PD183/09 | OPINION OF LORD TYRE in the cause LESLEY JACKSON Pursuer; against ANDREW MURRAY Defender: ________________ |
Pursuer: Smith Q.C., Thornley; Drummond Miller LLP
Defenders: Hanretty Q.C., Dawson; HBM Sayers
14 June 2012
Introduction
[1] In this action the pursuer seeks reparation for loss and damage which she has sustained as a consequence of a road traffic accident which occurred on 12 January 2004, when she was 13 years of age. The pursuer had alighted from a school minibus and was crossing the A98 Fraserburgh to Banff road when she was struck by a car driven by the defender. The proof which I heard was restricted to issues of liability and contributory negligence.
[2] I have to say at the outset that a feature of this case was the poor quality of the evidence available in relation to matters critical to determination of liability. This was due in large measure to the long delay before this action was raised in July 2009. I was given no satisfactory explanation as to why the action was not commenced more promptly. The inevitable consequence of the delay has been that the memories of witnesses - lay persons and police officers alike - have faded and in some cases have become demonstrably less reliable. One key witness has died. One of the investigating police officers has apparently emigrated and did not give evidence. To compound the difficulty, the police accident investigation was not as thorough as it might have been. Certain important information concerning the locus of the accident was not noted. The absence of this information limited the value of the expert evidence led by the parties at the proof. As a result I have 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.
The locus of the accident
[3] The accident occurred at or near the bellmouth of a private road to Upper Auchnagorth Farm which runs south from the A98 near New Byth. The A98 at this point runs in a generally east-west direction and is a rural two-way undivided road to which the national speed limit of 60 mph for cars is applicable. There is no street lighting. As one travels westward from Fraserburgh towards the farm road entrance, the road curves gradually to the left on a shallow decline. It has a slight camber and is slightly banked up on the north side to facilitate cornering. Approaching the locus, there is a double white line in the centre of the road, indicating that overtaking is prohibited in either direction; closer to the farm road end this changes to a broken white line on the westbound side, indicating that overtaking is no longer prohibited for westbound traffic. A vehicle stationary beside the verge of the eastbound carriageway opposite the farm road end would be visible for over 200 metres to a driver travelling west. After the farm road, travelling west, the road continues to bend gradually to the left towards a quarry road end.
[4] The width of the road at the accident locus was and is 7.6 metres, consisting of two carriageways each 3.8 metres wide. The width of the bellmouth of the farm road end was measured by the pursuer's expert witness, Mr James McCartney, as 15.8 metres.
The circumstances of the accident
[5] At the time of the accident the pursuer lived at home with her parents and her twin sister Lindsay at Upper Auchnagorth Farm. She and her sister travelled to and from school each day by school bus. On the way home they would be brought from school by a feeder bus to a location where they were picked up, along with other children, by a minibus which followed a route in the course of which children were dropped off at or near their various homes. At the time of the accident, the route followed by the minibus brought it to the Upper Auchnagorth Farm road end while travelling eastward. The minibus would therefore stop on the eastbound carriageway opposite the bellmouth entrance, where the pursuer and her sister would alight. They would then require to cross the road to the farm road end, where their mother would normally be waiting for them in a car to drive them home up the farm road. The minibus had followed this route since the previous August. The width of the minibus was 1.974 metres according to manufacturer's information obtained by Mr McCartney.
[6] On the day of the accident, the minibus arrived at the farm road end at about 4.30 pm. It was dusk, approximately 40 minutes after sunset (witnesses used the word "gloaming"), and the light was fading. Vehicles using the road had their lights on. The weather was dry and overcast. The driver of the minibus, Mr George Fraser (who gave evidence), was familiar with the route. He had the headlights of the minibus on. Square yellow and black graphic signs indicating that this was a school bus were displayed on the front windscreen and back door, as required by law. Mr Fraser stopped the minibus with its nearside wheels adjacent to but not on the grass verge. As he stopped, Mr Fraser put on the minibus's hazard lights. At least three vehicles following the minibus eastward stopped behind it. The first of these was an Isuzu Trooper driven by Albert Corbett, then aged 73, who had died before the case came to proof. He was accompanied by his brother, who was the front seat passenger, and by his sister‑in‑law Anne Corbett (who gave evidence), who was seated in the rear. The second vehicle was a Land Rover driven by Kenneth Scroggie (who gave evidence). The driver of the third vehicle gave a statement to police after the accident but apparently could not be traced to give evidence at the proof. All three vehicles waited for the minibus to move off.
[7] The defender, who was travelling home from work, approached the locus driving westward in a blue Ford Fiesta. He was familiar with the road, having driven along it every day for at least three years. His recollection of the circumstances of the accident was poor. As he approached the scene he saw the minibus stationary on the eastbound carriageway. He had seen a school minibus on this road before but could not remember whether on this occasion he identified the minibus as being a school bus.
[8] The pursuer and her sister Lindsay alighted from the minibus through a sliding door on the nearside. The pursuer, who was wearing a long dark jacket with a lighter trim, got out first and walked along the grass verge to the rear of the minibus. Lindsay followed and closed the door behind her. The pursuer turned and passed between the rear of the minibus, which was still stationary, and the front of the car driven by Mr Corbett. The pursuer and Lindsay both stated in evidence that Mr Corbett signalled with his hand to indicate that (so far as he was concerned) they were free to cross. This was denied by Mrs Corbett and also by the late Mr Corbett in a statement given to the police, and I return to it later. The pursuer was still several paces ahead of her sister. As the detail of the pursuer's movements thereafter was a matter of controversy I shall merely say at this stage that she continued across the road and, as she crossed the westbound carriageway, 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 was sufficient to project the pursuer forward and into the air above the height of the roof of the car. The car passed beneath her and she landed on the carriageway behind it. The defender braked hard and stopped.
[9] Before the arrival of the minibus, the pursuer's mother, Mrs Morag Jackson, had arrived at the road end in her car. According to her evidence, she had been waiting beside her car for the minibus to arrive, but had had to get back into her car to move it in order to allow entry to the farm road to a tractor driven by her husband (who did not give evidence). Having moved her car, she was getting out again when she heard a sound which was in fact the collision. She saw something in the air above the car. She had not seen the pursuer prior to the impact. It was only when she heard Lindsay scream that she realised a member of her family was involved in an accident.
[10] Police officers attended at the scene of the accident and took statements from witnesses, measurements and photographs. Certain factual details are worth noting from the photographs. The pattern of damage caused to the front of the defender's car by the impact of the pursuer's body is diagonal, beginning at or near the offside headlight and the offside half of the number plate, continuing with an indentation in the bonnet to the nearside of its centre line, and finishing with a broken windscreen showing a point of impact towards the nearside (described in the report of a police inspection of the car which took place the following day as "head strike impact centre nearside"). The defender's car is shown stopped with both of its nearside wheels resting on the white line marking the edge of the westbound carriageway. Some 12.1 metres behind the rear of the car (a distance recorded by PC Andrew Merson and apparently measured with a tape measure by PC Steven Reid, who did not give evidence), and close to the edge of the carriageway, there is a patch of blood on the tarmac which, it has been assumed, identifies the spot where the pursuer fell to the ground after the impact. Another police officer, PC Thomson, measured the distance from the blood stain to the rear of the vehicle as 12 metres and the distance from the farm junction to the rear of the car as being 30m. He stated in evidence that he would normally measure from the nearest part of the bellmouth which, arithmetically, would produce a distance of some 18 metres from the west edge of the bellmouth to the blood stain. (I should note here that Mr McCartney measured the distance westward along...
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