Samuel Cameron Against Martin Swan And Another
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Pentland,Lord Menzies |
| Neutral Citation | [2021] CSIH 30 |
| Date | 10 June 2021 |
| Docket Number | PD92/18 |
| Court | Court of Session |
| Published date | 10 June 2021 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 30
PD92/18
Lord President
Lord Menzies
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion by
SAMUEL CAMERON
Pursuer and Reclaimer
against
MARTIN SWAN AND ANOTHER
Defenders and Respondents
______________
Pursuer and Reclaimer: Young QC, L Thomson; Digby Brown LLP
Defenders and Respondents: Shand QC, Bennett; BTO LLP
10 June 2021
Introduction
[1] This ought to have been a relatively straightforward road traffic accident case. It was
not disputed that, at about 5.00am 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
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defender pled guilty to a contravention of section 3 of the Road Traffic Act 1988 (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 9 months later. This is an unacceptable delay, especially
given the limited nature of the factual and legal dispute. The court does not know when the
Lord Ordinary first formulated his thoughts on the evidence, but a delay of this nature does
not provide the reader with confidence that, when he did so, the testimony or the
demeanour of the witnesses would have been fresh in his mind or that, even with the benefit
of his notes, he could recollect the evidence accurately.
[4] In mitigation, the delay may have been materially contributed to by the defenders’
introduction, without objection, of expert evidence from a psychologist which was directed
towards demonstrating what the first defender might or might not have seen before he ran
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over the pursuer. That was a question for the Lord Ordinary to decide on the facts proved.
The legitimate scope of opinion evidence on the matter for decision arises sharply, especially
given the Lord Ordinary’s ultimate reliance upon it.
The Lord Ordinary
Findings
[5] The Lord Ordinary recorded that, on the basis of the averments on record, there was
significant agreement about what had happened. At about 5.00am the pursuer, who had
earlier been recorded on CCTV walking unsteadily in Wellmeadow Street, was lying in the
middle of the road at a point to the west of its junction with Lady Lane. Wellmeadow Street
is a continuation west of the High Street. There is street lighting, which was on at the
material time. The first defender was driving a Mercedes van. He was making bakery
deliveries. As he approached Wellmeadow Street, he was behind a private hire taxi, which
was being driven by Robert Maule. Mr Maule slowed down and pulled over to the nearside
at or about the junction. The first defender overtook him and ran over the pursuer.
[6] The Lord Ordinary narrated Mr Maule’s testimony as being that he was driving
towards Wellmeadow Street when he noticed the first defender’s van. The Lord Ordinary
recorded Mr Maule as saying that he thought was “a bit closer than I would like without
tailgating” (cf Mr Maule’s testimony below). At about the same time, he saw what he
thought were bags of rubbish on the road. He said that: “As I moved in to the side a
delivery van which had been behind me has taken it that I was letting him past and has
continued driving past and drove right over the top of the person”. On appreciating that it
was a person that he had seen, Mr Maule had stopped. The van had not done so until it
reached a set of traffic lights about 100 yards further on. Mr Maule caught up with the first
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Cameron v Swan
... [2021] CSIH 30 First Division Lord Brailsford No 1 Cameron and Swan Cases referred to: 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); 1......