Mhairi Stainsby V. Janice Fallon
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Carloway,Lord Bonomy |
| Neutral Citation | [2010] CSIH 64 |
| Court | Court of Session |
| Published date | 06 July 2010 |
| Year | 2010 |
| Date | 06 July 2010 |
| Docket Number | PD1398/06 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Carloway Lord Bonomy | [2010] CSIH 64 PD1398/06 OPINION OF THE COURT delivered by LADY PATON in the cause MHAIRI STAINSBY Pursuer; against JANICE FALLON Defender: _______ |
Alt: MacMillan, Advocate; Andersons LLP (for Golds, Solicitors, Glasgow)
6 July 2010
Introduction[1] At about 9.30 pm on 13 July 2005, two brothers (Dylan aged 9, and Jason aged 13) were walking along the pavement towards an ice-cream van parked in School Quadrant, Airdrie. Dylan missed his footing at the edge of the pavement and fell onto the road. He was trapped under the rear nearside wheel of the defender's passing Freelander vehicle. He suffered injuries including a fractured jaw, the loss of two front teeth, damage to other teeth, fractures of the first and second metatarsals of his right foot, and grazes and bruises. Dylan's mother, the pursuer, raised an action of damages against the defender in the Court of Session under Chapter 43 of the Rules of Court. Two grounds of fault were set out in the pleadings, namely that the defender had driven too close to the pavement; and that she had failed to sound her horn on entering School Quadrant. A civil jury trial took place in October 2008. Having heard the evidence for the pursuer and submissions, the Lord Ordinary withdrew the case from the jury and directed them to find that the accident had not been caused to any extent by the defender's fault. The jury did as directed. The pursuer has enrolled a motion for a new trial, contending that the case should have been left with the jury for their determination.
The pleadings[2] The pursuer avers inter alia:
"On or about 13 July 2005, at or about 9.30pm, the defender was driving a Land Rover Freelander, registration number J9 FAL in School Quadrant, Airdrie. The weather was fine and road conditions were dry. Lighting up time was around 9.09 pm. Street lights were lit. The child, Dylan Lindsay ('Dylan') was walking along the pavement, towards an ice-cream van which was parked at the kerb, several yards ahead. He would have been readily visible to the defender as she approached from behind. Dylan missed his footing at the edge of the pavement and fell into the road, close to the pavement and parallel to it. The defender failed to observe Dylan fall onto the road. She was driving slowly and had opportunity to avoid him. The defender drove her vehicle over Dylan. The defender stopped her vehicle with the rear wheel trapping Dylan. The vehicle was around 40cms from the pavement. As a result of the accident, Dylan sustained the loss, injury and damage hereinafter condescended on. The rear wheel of the defender's car was lifted off Dylan by Jason McCrimmon. With reference to the defender's averments in answer, admitted that police and ambulance attended the scene. Not known and not admitted that the defender was not charged with any offence. Not known and not admitted that a scuff mark was identified on the nearside front wing of the defender's vehicle. Quoad ultra the defender's averments in answer are denied except insofar as coinciding herewith. Dylan was lying face down in the roadway before the defender's car passed over him. He did not fall into the front nearside wing of the defender's car. Any prudent driver would have exercised caution, given the presence of children on the pavement close to an ice-cream van. Any prudent driver would not have driven close to the pavement, or would have sounded the horn on entering School Quadrant. In the circumstances, such a driver would have driven at a speed and a distance from the pavement which permitted evasive action in the event that a child ran or fell onto the road".
[3] The defender avers inter alia:
"Admitted that on or about 13 July 2005 at about 9.30 pm, the defender was driving a Land Rover Freelander registration number J9 FAL in School Quadrant, Airdrie. Admitted that the weather was fine and road conditions were dry. Admitted that lighting up time was around 9.09 pm. Admitted that street lights were lit. Admitted that the child Dylan was walking along the pavement, towards an ice-cream van which was parked at the kerb, several yards ahead. Admitted he was readily visible to the defender as she approached from behind. Admitted that Dylan Lindsay was involved in an accident with the defender's vehicle on said date. Admitted that the defender stopped her vehicle with the rear nearside wheel trapping Dylan by the clothing on his upper body. Not known and not admitted that the vehicle was about 40 cms from the pavement. Quoad ultra denied. Averred that on said date the defender was driving home with her son and his friend. The defender turned into School Quadrant in Airdrie where she has lived for 22 years. She adopted a reasonable road position taking into account that there were other parked vehicles in School Quadrant and, in particular, a white van parked on the opposite side of the road at the entrance to School Quadrant. There was no reason for her to sound her horn. The defender always drives extremely slowly in this area as the road is often busy and congested with vehicles. The defender was aware of an ice-cream van and brought her car to almost a crawl. She saw two boys on her left hand side, one of whom she now knows to be Dylan Lindsay. As she drew level with the boys she saw Dylan trip over his shoe laces and he then fell onto the nearside of her car. The defender immediately brought her vehicle to a halt. Police and ambulance attended the scene. The defender was not charged with any contravention of the Road Traffic Act. Police identified a scuff mark on the defender's vehicle on the nearside which was the point of contact with the defender's vehicle when Dylan fell onto the nearside of the car. The defender's vehicle did not run over Dylan. Dylan's mother attended the defender's house following the accident and said to the defender that the accident was not her fault as Dylan had tripped over his shoe laces and fallen in front of the car. This was also the view of the police officers who attended the scene".
Outline of evidence[4] The following outline of evidence is abbreviated, paraphrased, and selective. Its purpose is to note any evidence led before the jury which might have entitled them to decide that the defender was in breach of a duty of care, resulting in injury to Dylan.
[5] Dylan's mother, the pursuer, was at the ice-cream van. She heard Jason scream, turned round, and saw Dylan lying on the road parallel with the pavement, with his head nearest to her. The Freelander vehicle driven by the defender was moving slowly towards the ice-cream van, and came to a stop with Dylan pinned beneath the rear nearside wheel. The pursuer did not see Dylan fall, and could not say why or how he fell. According to her, Dylan could not remember what happened before his accident.
[6] Jason Stainsby, Dylan's brother, said that he and Dylan had been walking side by side along the pavement towards the ice-cream van. Dylan was walking on the outside of the pavement. They were not larking about, running, jostling, or pushing each other. Jason caught a glimpse out of the side of his eye of Dylan falling straight down. The defender's car was moving slowly at the side of them. Jason did not know what made Dylan fall, did not see the way in which Dylan fell, and could not remember Dylan's position under the Freelander. He acknowledged that he had been in a state of shock.
[7] Police Constable Robert Brown was called to the scene of the accident. He ascertained that the front wheel of the Freelander had not run over Dylan. He thought that there was a "cleaning mark" just before the rear nearside door of the Freelander, which was consistent with Dylan tripping off the pavement and falling into the side of the car. In cross-examination he stated that the car's position was "what you would expect a reasonable driver to be in". However he stated that he, as an advanced driver, would have moved further out because of the children on the pavement.
[8] John Alexander, road traffic accident investigator, estimated that the Freelander had been about 40 cm (or 16 inches) from the edge of the pavement at the relevant time. He noted from photographs that there was blood on the rear nearside tyre of the vehicle, and blood on the road in front of that tyre. He gave his opinion, as an advanced police driver, that the driver of the Freelander, when passing children (described in the Highway Code as particularly vulnerable and unpredictable road-users) should have moved over to her right thus moving away from the potential danger presented by the children on the pavement. The driver was at fault by failing to move more to the right, by about 30 cm or one foot. Had the driver moved about a foot further to the offside, the area involved in injuries to Dylan would have been adequately cleared. If it proved impossible to move further to the right because of traffic or parked cars, the driver should have sounded her horn to warn the children of her approach from their rear. Had the driver sounded the horn, there was a distinct possibility that the injuries would not have been sustained.
[9] Professor Welbury, professor of paediatric...
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