Samuel Cameron Against Martin Swan And Another
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2020] CSOH 20 |
| Docket Number | PD92/18 |
| Date | 27 February 2020 |
| Court | Court of Session |
| Published date | 27 February 2020 |
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 20
PD92/18
OPINION OF LORD BRAILSFORD
In the cause
SAMUEL CAMERON
Pursuer
against
MARTIN SWAN AND ANOTHER
Defenders
Pursuer: Young QC, Thomson; Digby Brown LLP
Defenders: Shand QC, Bennett; BTO Solicitors LLP
27 February 2020
[1] I heard proof in this case in which the pursuer sought damages from two defenders
as a result of a road traffic accident which occurred in Wellmeadow Street, Paisley in the
early hours of the morning of 23 April 2016. The accident occurred when the pursuer was
lying in the carriageway of the said street. The first defender was the driver of a van which
collided with the pursuer. The second defenders were the employers of the first defender,
the van driver.
2
Procedural background
[2] By terms of interlocutor dated 21 December 2018 Lord Boyd of Duncansby allowed
parties a proof on liability. In terms of the said interlocutor the defenders were ordained to
lead at proof. The defenders denied liability for the accident but separately stated a case that
the accident was caused or materially contributed to by the pursuer’s own fault and
negligence
1
. It was not disputed that the proof on liability encompassed the issue of
contributory negligence.
[3] Joint minutes were tendered either before or during the course of proof
2
. These
minutes contained significant factual agreement and will be referred to where appropriate
during the course of this opinion.
Non-contentious factual background
[4] On the basis of averment there was significant agreement in relation to the factual
circumstances surrounding this accident. On 23 April 2016 at or about 0455 hours in the
morning the pursuer, who had been a pedestrian walking in Wellmeadow Street, Paisley,
was lying on the roadway of that street to the west of its junction with Lady Lane.
Wellmeadow Street is a single carriageway extending generally east to west, there is one
lane for vehicular travel in each direction, the street is subject to a 30mph speed limit. There
is provision of street lights which were, at the time of the accident lit. Wellmeadow Street is
a continuation of High Street, Paisley. At the time of the accident the first defender was
driving a Mercedes delivery van registration number SF64 CGV which belonged to the
second defenders. The first defender was driving in the course of his employment as a
1
Answer 6, page 21 of record dated April 2018.
2
Numbers 28, 29 and 30 of process.
3
delivery driver with the second defenders. He was in the course of making bakery
deliveries to various locations in, amongst other places, the town of Paisley. Immediately
prior to the accident the first defender was driving the said vehicle in a westerly direction on
High Street and thereafter into Wellmeadow Street. As he approached Wellmeadow Street
the first defender was following a private hire taxi vehicle driven by Robert Maule, a witness
at the proof. The vehicle being driven by Mr Maule slowed down and pulled over to the
nearside of the street at or about the junction of Wellmeadow Street and Lady Lane at which
time the first defender overtook that vehicle. Thereafter the vehicle being driven by the first
defender struck the pursuer on the westbound carriageway of Wellmeadow Street.
Immediately after the accident emergency services attended at the locus. The first defender
was convicted of an offence under section 3 of the Road Traffic Act 1998 having pled guilty
to that offence.
Duties
[5] The pursuer’s case was based on an alleged breach of duty by the first defender to
take reasonable care to see that the pursuer did not suffer injury. The case was pled in this
general manner having regard to the consideration that this was a personal injuries action.
As developed, the duties were more precisely stated as a failure of a duty to keep a good
lookout and a failure to keep a safe distance between the vehicle he was driving and the taxi
vehicle being driven by the witness Mr Maule. There was no dispute that in the event of the
first defender being found in breach of duty, the second defenders as his employers were
vicariously responsible for his actions. As already noted there was a case of contributory
fault pled by the defenders against the pursuer. That case averred a failure by the pursuer
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2 cases
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Cameron v Swan
...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 ci......
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Samuel Cameron Against Martin Swan And Another
...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 fact......