Scottish Court of Session Decisions

At advising on 20th December 1946,—

LORD MACKAY .—To introduce this question, no more is necessary than to say that a young man, a vanboy, lost his life by being caught during hours of "dim-out" and comparative darkness between an unlit and stationary van which he was unloading and an omnibus approaching it, on its own, the south, side of a high road. The present is one of these cases in which it is possible and right to say that (subject to agreed damages) the pursuer is beyond doubt entitled, against some one or more present in the cause, to an award of damages. The unhappy bakers' van boy, if he had survived, was clearly (and in the end admittedly) entitled to claim exemplary damages from the owners of two vehicles, which during night hours, and on an open and main road, crushed him between them, with effects, at the lowest, sure to be disastrous. No plea of negligence on his part contributory to the fatal occurrence ever arose; and there was no such plea in law for either defender. The father is therefore entitled at least to a formal sum as solatium; and the sum has been found and agreed. Now, the father sued jointly and severally (and I place them in what is assuredly the logical order) (First) the owners of the bakeries van (a bakeries company doing daily business inter alia of delivering bread by van). This van on this occasion was, he says (and fully proves), present on this frequented road as an obstruction, and was displaying to the rear no red light, contrary to statute passed for the safety of all road users; he sues along with them, (Second) the owners (as responsible for the driver on that night) of an omnibus which was running empty into a garage or depot at Ardrossan, and which, it was said at too high a speed for the visibility available, and without due out-look (although actual diversion of attention from his job of driving is not averred or proved), drove against the back end of the stationary van. I here anticipate my clear ultimate conclusion. I think the father was well entitled to sue both defenders, and I think he should beyond doubt have a finding of joint and several liability for the sum agreed. A further result of these proposals, if they become decisions, is that, as a very early instance in Scotland, the law must apply the third section of the Act of 1940; and allocate inter se the blame and hence the damages between the joint wrongdoers. A further consequence is that it is rather useless to refuse to look into the whole evidence at this stage, but that, attention of counsel having been duly called, any analysis made should from the first have the shares of responsibility in clear view.

Now the learned Sheriff-substitute has, after proof, held, taking each defender in turn, that the second-named defenders, the bakeries company, "were negligent in allowing a vehicle constructed as the said van was to be on the road during hours of darkness or partial darkness, when they knew or ought to have known that its rear light would be obscured." (Incidentally it was conceded throughout by counsel for all three parties that "obscured" falls to be read everywhere in this cause, as "totally invisible at any distance to the rear." I so read it throughout). The Sheriff-substitute has also held (these being described as findings in fact and law) that the first-named defenders' servant "was negligent in that he failed to maintain a proper look-out prior to the said accident." In the long run, I have come (although with considerably more difficulty in the case which I have placed second) to agree with both these findings in fact and law. As to the first case alone, for reasons to be given out anon, I can discover no grounds whatever, whether on the facts or on authority, for displacing it.

The learned Judge, however, reached his conclusion as to sole liability at law resting upon the omnibus by way of another finding, which bears to apply a doctrine of "last-chance to avoid," thus:

"Despite the aforesaid negligence of the second-named defenders, the said accident could have been avoided, if the first-named defenders' driver had maintained a proper look-out,"

and he held "his failure to do so was the approximate cause of the said accident." I dislike being technically critical, but, alas, the word "approximate" means "near" or "almost." There can be no doubt this is a slip, and what is meant is "proximate" in the strictly legal sense which (as used in early, rather than in later, authorities) is intended to exclude other "causes" consisting in negligence from being causœ causantes, as being shown to be "too remote." So much explained, then, it is enough to say by preliminary that I cannot find any grounds whatever in fact or in law for giving the benefit of "remoteness," whether that be treated as remoteness in time or remoteness in logic, to the maintenance, contrary to a safety statute, of an unlit obstacle in the full and public path likely to be taken by approaching traffic from behind.

I will here state shortly the measurements relevant, as they immediately throw up the problem. The roadway was 21 feet broad. The bakery van was drawn up 2 to 3 feet from the kerb. It was nearly 8 feet broad. All therefore except perhaps half a foot of that half of the road in which a west-going vehicle (at night) is safest to ride, and in which it certainly has a right to ride, was blocked by an unprotected vehicle. Moreover, it had just immediately before been the duty, and the right, of the empty omnibus to pass on the same side of the highway a properly lighted vehicle (the lorry of Connell, a witness whom I regard as fit to be well received, subject, of course, to ordinary probabilities of error). M'Innes, the omnibus driver, did so on his own side, and rightly gave the said lorry ample clearance. This took him also to one and a half feet from the south kerb. He also, in doing so, "dipped" his headlights, as it was called in the proof. But no attack whether on record or by the Sheriff is made upon this manœuvre as adopted for making the said passage, which two witnesses describe as usual and "prescribed." There were special war restrictions in force but they were not fully explored. And the practice at that time in passing consisted of shutting off one head lamp and slightly swivelling the other, but as to what extent this angle from the axis of the vehicle proceeded in the present case the proof is silent. Another distance is very important. It was little understood. After passing and after hearing a crash, Connell brought himself to rest. He looked back and saw the lights of the omnibus (which had a red light behind) at an estimated distance of 52 feet. This was taken, with error, as the distance of passing. Not so, obviously. Both vehicles I think were travelling in passing at about 15 miles per hour. If no braking be allowed for, the distance would be halved, say 52 feet divided by 2: that is 26 feet. As to braking, Connell did not draw up except slowly (no emergency stop in this case) and he did not begin so to do till the crash occurred. M'Innes in the end clapped on brakes for 3–4 yards. The result is that the point of passage was considerably nearer to the van's position than 26 feet. I shall take it between 20 and 25 feet. To escape hitting the van, then, M'Innes had to achieve either a swing out of say 8 plus 1½ feet or 9½ feet, on to the offside of the road, or to pull up completely in a number of yards which remains to this moment unspecified. These measurements which are, within a margin, undisputed appear to me vital to justice.

First, then, in my judgment, must be taken the case of the bakery van. I agree absolutely with the Sheriff-substitute in all he says, in finding it to blame. And indeed I go further. There was on this question a curious distortion of vision. The talk was of "war restrictions" and their variation. I refer humbly to my opinion in the recent case of Connachan v. Scottish Motor Traction Co. as to the history of compulsory lighting. In the case of the van it has nothing to do, either positively or restrictively, with the war, but the obligations go back to the Road Transport Lighting Act of 1927. Ever since then an unlighted vehicle, i.e., one not showing a red light capable of being seen from "a reasonable distance" away, is "illegal" in the words of several English judgments. Its owners and managers are in dangerous breach of a safety statute. Such is the true position of the second-named defenders.

Two points only arise as possible retorts here. One, it is said that owners are only attacked on "construction," not on actual negligence. Esto that they may have any relief against builders, that is not in point here. But I do not regard it so. I prefer and adopt the Sheriff-substitute's view. The obligation is not to have a vehicle "constructed" in any way. It is to provide adequately that at all times when on the high road a red light shall be showing for all traffic to that number of yards away which is held reasonable. Next, it was attempted to say that there is a "half-light" time between the hours of "daylight" and the hours of "pitch-dark," in which period (of how many hours long ?) the obligation to show red is only pro forma, or is limited or restricted in its power to produce actionable lack of diligence. It is supposed to be somehow relaxed. This argument was pushed by Mr Wheatley to this length, that there is a "set of principles" for daylight regulation of obligations; and a second "set of principles" for complete black-out (night, or pitch-black nights) and that one or other must rule. In the present case, it was deliberately argued to us that there was no code applicable except that of "the daylight principles." I reject, and do so with great emphasis, this alleged duality, and call attention to the high danger of letting such reasoning in in the slightest degree. The provision of lighting during hours, specified by reference to the rising and setting of the sun, must be taken as a reasonable average struck by Parliament twenty years ago. The provision of a time, at the very least and lowest, raises a strong presumption against those who subject other traffic for a considerable and material time before such limit expires to the risks of coming against something invisible or grey and hard to make out, while such other person has a reasonable right to expect compliance with "obligatory lights," as they are called in the Act. Here, the actual invasion of prescribed lighting time was at least (on the Sheriff-substitute's showing) 20 minutes, and, as we are really aware by reference to further documents, was nearer 42 minutes, and I cannot regard the proof as adequate, or even as approaching adequacy, to show that the state of natural lighting that morning exempted Beatties Bakeries Limited in any degree. The proof upon termination of lighting-up time is poor, but the Sheriff-substitute takes it at "about 9 o'clock," and it is enough for my present reasoning if I accept it that it was certainly not earlier than that hour.

On the very contrary to this exculpatory view of the evidence, I think the testimony of every witness on both sides (only two sides led evidence) was that the night towards morning was one exceptionally dark and stormy, that a "Scotch drizzle" had only just gone off, so that the van had (having no wiper) to keep its windscreen open, and the omnibus still had its wiper going. Three witnesses in all testified, or agreed, that it was a case of "just breaking daylight." And all agreed to "greyish" or "very grey." That is not the state of affairs that lets in any relaxation of the duty to warn oncomers behind. Lastly on this head, I think it right to point out that this was not the first call that morning (and I infer every morning) that the bakeries company made. They had made one country call already, and it is to be presumed they took 20 minutes to deliver at each. And this must be understood to be the usual routine. Hence the van proprietors are held to a practice (undisputed by them) of stopping their vans during dark, with the flaps completely obscuring the only warning light for following traffic. In my opinion, then, the palpable and inexcusable breach of the 1927 and later statutes was one direct cause at least of this deplorable accident. Did it actually materially contribute ? I should say "Yes; certainly." If anything, I should have slightly leaned to thinking that it alone caused the result. For (a) if there had been a red light it would have warned M'Innes at the statutory number of yards away. What equity is there in ascribing to M'Innes hypothetically such an extreme degree of want of look-out that he would have ignored the statutory light ?(b) If the illegal obstacle had not been on the road at all, or drawn up partly off the road, M'Innes' course was open and plain to carry on till he came to his turn at Gladstone Street.

As to the trend of authority on this part, Mr Wheatley, rather strangely, seemed to rely triumphantly on two English judgments, Tart v. Chitty & Co. and Baker v. E. Longhurst & Sons, Limited . Properly and fully read, these opinions are completely against him. These and other English cases had to deal with motor cycles, a class of road user which Scrutton, L.J., said were notoriously exceeding all bounds in speed. In each case they encountered unlighted obstructions. In every case juries or Judges had found fault on the part of the unlit obstacle; the only result in the Court of Appeal was to sustain "contributory negligence" of the cycle, by its excessive speed. Thus in Baker, Scrutton, L.J., referred to Sharpe v. Southern Railway; the argument did not attempt to avoid the jury finding of negligence by the defendants: the result, however, was taken to be that all the evidence for contributory negligence was one way. And the leading judgment said (at p. 464):

"There is no dispute that the owners of the cart were negligent, because they were driving after lighting up timewithout a light. The question is…contributory negligence."

In so doing (and I might if necessary quote other passages) the Courts took occasion to point out that there was no cross appeal against the lighting liability, and expressly affirmed that they began consideration with the fixed starting point that the unlit vehicle could not displace that onus. Such at least is my view of the law.

I turn, then, to the omnibus and the driving of M'Innes. Here the appeal is against a finding of negligence founded entirely upon a finding of imperfect look-out. Although with more hesitation, I am not able to say that, on the evidence as led, I can let M'Innes out. The Sheriff-substitute, it is true, was shown in a few particulars to have piled up small scraps of evidence, as it were, against him. I notice the following:—(a) as to the lighting, in addition to the amount of daylight available, the Sheriff-substitute adds that "a certain light" was supplied by two street lamps, and the half-open door of the "cabin." It seems unfair to talk vaguely of "certain" light. I am of opinion that the positioning of the two street lights, one well to the right hand side, and one far behind, did not supply any help whatever; and this supplement was in fact given up at our bar. Further, I think the concept that vision to the rear of an almost square 8 feet by 8 feet back of a delivery van was better afforded during the gloaming hours by the rays, delivered as they necessarily were at right angles from the half-door of a shop—the nature and position even of whose inner source of light is unproved—seems to me more than far fetched. The Sheriff-substitute however is judge of this, and it was persevered with. All I can say is that it did not impress my mind, on the evidence read, as a material supplement.

I should ignore, for my part, the first supplement, and give very little weight to the second. (b) There is a little more, perhaps, in the "white loaf" theory of light. Undoubtedly, the surface from which refracted rays are to reach a driver at (say) 8 to 10 yards distance, being such a surface as described, is to some degree better than the "black tarpaulin" of the case of Scott v. M'Intosh, where the running-into vehicle was acquitted of blame. I do not however subscribe at all to the view that such results can only be reached when other traffic is impeded by the existence of "pitch-black" conditions, or when the stationary object, without lights, "camouflages" itself as it was put by the Sheriff-substitute. Loaves do not shine, and I feel that such an inferential result (without experiment made) is a difficult and even dangerous element, or at least one liable to be over-pressed, For what it is worth, however, I consider it along with the "breaking daylight." Further, differing but little from what I have said I note that the Sheriff-substitute as regards M'Innes "could not regard his negligence as of a very high order."

To me, therefore, in blaming one who, perhaps 26 feet after getting exactly abreast a passing vehicle, fails in time to see a number of white loaves at some portion of the open cave of an unlit van, one must come to depend on the idea of increasing approach of daylight almost alone. Here, the evidence is that there was, not a reflected surface of light, but a silhouette of darker shape against what, by all accounts, was at best a dark grey ("stormy") and a western sky. From the angle of vision of an omnibus driver, 5 feet 6 inches up, not more than half of such outline would be silhouetted. The rest would be against a background of dark road. Naturally, the growing source of daylight was from the east, behind, not before, the omnibus.

I confess I do not feel confident that the Sheriff-substitute, or the arguments on both sides before us, did full justice to the peculiar difficulties of the "twilight" period, when lights of a driver's vehicle must still be "on" but when there is a perplexing conflict of two sources of light—in many cases more fully developed before me proved to result normally in, not assistance each of other, but rather in cancellation.

I make very little of the suggestions of a few witnesses that, shortly before, they had been able to see stray foot passengers, or cycles, most of which must have carried lights. Giving what weight I can to this, however, I think it plain that, if it had not been for the change of focus, or of open pupil-area, necessitated by the passing of the lorry, he, this driver, could and probably would have seen this silhouetted shape a little sooner. I am however not prepared, as your Lordships both think the Sheriff-substitute's view of bad look out should be affirmed, to reject on these slender grounds the verdict of the Sheriff-substitute, limited as it undoubtedly is. To me, the worst thing for M'Innes is of another complexion. His own testimony is that with his one headlamp dipped he could pick up objects "about 5 yards" away; that further he did not see anything even "looming up" till he was 3 or 4 yards away, and that he did not put on his brakes to stop till he was about 2½ yards off. That, he says, "was too short." Now this is the only testimony to these three matters in the case, and I think (however unsatisfactory such forced admissions are) the relative distances fall to be given effect to as facts, as I propose we do. Further it is true that the proved fact of the intention which he had of continuing on, under one dipped light only, as far as Gladstone Street is doubtless enough to infer some contributing element of blame. I would therefore hold M'Innes contributorily to blame; but my suggestion is strong that the "original," the direct, and the "essential," and also if one must continue a rather discredited word the "proximate," blame is that of the other defenders. Yet I do not assent, as may hereinafter be seen, to the view that, as soon as two defenders' faults together contributed to the emergence of a danger, you can ask which is "nearest," most "proximate," and off-hand reject the other. Hence I concur in finding joint blame on the omnibus owners also.

I must now turn to say something about the Sheriff-substitute's sole ground of judgment in letting out one of the wrong-doers. It is certain that I cannot concur in his use of authority, or in the reasoning, which seems to depend on a strained use of the word "proximate."

In doing so, I desire to emphasise: (1) that, in my judgment, the facts as I have expounded them from the proof are so strong as to render this refinement of reasoning unnecessary. To me the directness and essential quality to any collision of the admitted statutory breach and deception of other traffic is such that the conception of pushing it out into the category of being "too remote," although a causa sine qua non, has no persuasive force: (2) that, as I read the Sheriff, he would agree with me and Lord Stevenson in full on every point, had he not imagined himself constrained by the principal authorities (all on "contributory negligence") which he cites. It appears that both presenters of the arguments below were content to submit authority (but a good deal of it) all drawn from decisions between two parties only, A pursuer and B defender of the issue, in which after proof of B's initial negligence B sought to and did (in some of the cases successfully) set up A's negligence. To prevent his being "barred," as the later cases put it, by this negligence (which necessarily occurred at a material interval of time previously) A retorted that B's negligence—not be it noted, even his original act of negligence but a faulty action or failure to act later in date (cf. what was said in Swadling)—was such as to affect B again, and prevent his claiming that A was "barred" by his own contributory negligence. Now a pursuer may be "barred" from a claim, but one of two independent defenders cannot be "barred." I give the cases referred to here as well as before the Sheriff-substitute;Davies, Radley, Tart, Baker, Scott v. M'Intosh, Swadling, M'Lean, Muir v. London and North Eastern Railway Co. —Add Owners of "Boy Andrew" v. Owners of "St Rognvald ." I have had occasion since M'Lean v. Bell was decided, in 1932, to consider its bearing in charging many juries. And I have restudied the whole group afresh. I may add, and Outer House Judges will agree, that I have never at any time been asked to give such a charge as between two defenders each individually claiming freedom from all blame. It is to be noted at any rate that each and all of the cited decisions occurred in complete circumstances such as I have stated; and that counsel made open confession that never yet has the doctrine of Davies or of Radley or of M'Lean been applied where, as here is the case, two defenders are blamed and sued jointly, and stand side by side before the pursuer and the tribunal. I am not necessarily to be held down to saying that such an extension of M'Lean is utterly impossible or ultimately illogical. Such decision would require much more compelling circumstances, and, I think, a fuller argument. But I do say that any Court should be extremely slow to start such a fresh course of decisions. I refer to and adopt the words of Lord Dunedin in considering Radley in Mitchell v. Caledonian Railway Co. :

"The negligence of the defender there referred to must be a second negligence following upon the pursuer's contributory negligence; it cannot be the original act of negligence, or there would never be such a plea as contributory negligence at all. In order to bring a case under the rule in Radley there must be (1) negligence; (2) contributory negligence; (3) an ensuing act of negligence, without which the accident would not have happened."

I further adopt the words of Lord Moncrieff as to the origin and bearing of the doctrine, given in Muir; "Your Lordship has explained the ratio upon which that case may be assumed to have been decided and it is, I think, abundantly clear that if (as stated by Lord Wright) there was evidence before the jury affirming that the defender could have avoided the accident whereas the pursuer could not, a finding by the jury of liability on the part of the defender was one which could not have been set aside by a Court of review."

Now, if that be so, and I think it is so for us, after Muir's so recent case, then I think the present application of this special run of cases by the present Judge will not do. He is certainly shown to approach his problem wrongly when he asks himself "did their respective acts of negligence equally contribute to the accident, or can the negligence of one…be treated as the causa causans of the occurrence ?" The alternative to causa causans is not an equality. Mr Wheatley wished simply to amend this faulty reasoning, and proceed as if it did not exist. Such a proposal would protect any original judgment which erred in its logic. The Judge, next, after referring to M'Lean says "When an accident arises out of the fault of two parties but (is) capable of being avoided timeously by one of them, liability attaches onlyto the party whose fault is the proximate cause." Here he must be using proximate as "latest in time"; nor is the proposition either directly quoted from, or a safe extension of, a much more intricate reasoning than that.

Mr Wheatley at this stage (a) claimed that the Sheriff-substitute did not (like the Judges in Tart and Baker)hold the maintaining of an unlit obstacle to be an active causa; he said the chain of causation was held not to exist. (b) He maintained separatim that the present is a typical, or exact, Davies v. Mann case.

As regards the first point it is not maintainable on the Sheriff-substitute's note. For not only does the Sheriff-substitute say that the pursuer "has proved negligence on the part of these defenders also"; but he says "The effectof the second defenders' negligence continued in my view up to the moment of the accident, because the absence of the rear light rendered the vehicle more difficult to observe and on-coming traffic did not receive as early warning of its presence as it should have done." He also in the passage cited just above said "When…an accident arises out of the fault of two parties."

I reject this point; and I agree with the Sheriff-substitute. The fault is one occurring at every moment up to the very last moment, when it consists in maintaining on a road an unlit obstruction and in deceiving the other traffic which is entitled by the Act of 1927 to protection.

The other point, about "a Davies v. Mann case" was hard pressed to the end. I think it completely fallacious. It was sought to make the unlit van into the equiparent of the "fettered donkey," the fault of leaving that ass on the margins of the road over night, without person to see that it did not stray into the path off carriages, an equivalent to the presence under the control of a "driver" of an unlighted van, so long as the defenders' business requires, and the driver is present; and lastly, the driven omnibus passing duly by a meeting lorry into the "same thing" as a cart with three horses charging down hill in full daylight and the man in charge being (not at the reins but) at "some distance behind." In my opinion, this argument breaks down at every point. This is not a fettered donkey case, whatever support otherwise the judgment may obtain from a generalisation of the view of "last chance" or "effective cause" or the like.

Having, as I say, restudied all the cases, I do not perhaps require to say more than that the "principle" which, in the cases so common now of two conducted vehicles meeting or colliding, has become the ordinary source of a claim of damage, with retort of joint blame, might well be left to stand on two instances alone—Swadling v. Cooper and M'Lean v. Bell . It seems to me certain that the part sentence from Swadling which alone the Sheriff-substitute cites is, standing alone, misleading. Nor is it only the following sentence that should be read. The law is not in that sentence at all, but in the tripartite statement by Viscount Hailsham at p. 8 foot and 9 top; and no one can divorce the three heads of law there stated from one another, and no one can cut out the words "plaintiff" and "defendant" there without mis-stating the law. Further, after referring to the cases of Bridge and Butterfield, Viscount Hailsham says (p. 10 top) "in both these cases there was a substantial interval of time between the initial negligence of the defendant or of the plaintiff respectively, and the negligence which was the proximate cause of the injury; and the crucial question…was whether either party could by the exercise of reasonable care have avoided the consequences of the others' negligence; if he could not…" and so on. It was then added, "But there are other cases in which the negligence of the parties is contemporaneous or so nearly contemporaneous as to make it impossible to say that either could have avoided the consequences of the other's negligence."

In my opinion, often given to juries, and never taken to appeal, it is improper to cite any isolated passage or even single sentence from M'Lean v. Bell, or indeed the decision as a whole, without associating it or them with these clearer and equally authoritative pronouncements by the same Court in the preceding year.

In my opinion then, the case of two defenders standing side by side as accused, such as we have here, is not a case where the effective or true cause of an accident, in question with the third party pursuer, can be justly judged by any such nice scales of contemporaneousness, or any other criterion employed. To do so will involve every one who tries in an effort to make one of two defenders into the pursuer of an issue against the other defender, not, as he is, a defender to a claim of fault by a faultless person, and, having so erred, then to consider the second defender as a retorter of "bar by contributory negligence" against the upholder of the issue. These assumptions are all unjustified.

But in the present case, the effect of the entire innovation is its own condemnation. It will, if adopted, amount to this, that, where failure to warn by red rear-light is concerned, there may be a fightable case if that vehicle is going; but per contra, if it be stationary in a blocking position, then never in any such case can the infringer be liable if any fault of however "low an order" is found in the trapped vehicle. In short, you cannot on that basis have two liable defenders. It becomes the exact application of Lord Dunedin's said criticism. I am not for that law; and I do not think that law derives from the decision of M'Lean v. Bell still found somewhat puzzling in application. Another (second) deplorable result might be (although not here present) that a defender in fault well able to pay might on this strange basis escape, leaving the burden of a decree to a mere man of straw. These are two (and to the number I think more could be added) of the necessary consequences of the proposed application of M'Lean v. Bell to the consideration of the real causation and the relative liabilities of two defenders equally situated and equally accused of fault.

What I have been forced to say on the law can be condensed in one sentence. This rapid reciprocation of duties can have place between the Western Company and the boy, the sufferer, but cannot have such with the boy's employers, brought into Court by him; and claiming exemption.

Here, however, as I have said, the strength of the facts is enough. I can find no room for doubt in my own mind that both the faults affirmed by the Sheriff-substitute were active and were effective and material at every stage and right up to the end; the unlighted vehicle was a direct and effective cause that there was no such appreciable period afforded to the omnibus driver as in cases like Swadling to amend, by a definite subsequent act of diligence, the consequences of the other's fault. In short, that neither defender can escape paying the pursuer jointly and severally, whatever it be, for fault effectively producing the boy's death.

The Statute of 1940, which I have quoted makes us allocate inter se the responsibility, but does not affect the pursuer's right to a joint and several decree. If a Court cannot allocate with precision, I think equality of burden is indicated; and I accordingly propose that we should so find. Both defenders will undergo a joint and several decree. Inter se the responsibility will be half and half.

LORD STEVENSON .—The pursuer in this action seeks reparation for the loss of his son who was killed when an omnibus belonging to the first-named defenders ran into a bread van belonging to the second-named defenders.

The accident occurred before day-break on the morning of 22nd December 1944. The pursuer's son was one of two boys attached to a bread van. This van was drawn up on the south side of Parkhouse Road, Ardrossan. It was facing east. The regulation lights were lit but, owing to the fact that bread was being withdrawn from the back of the van, the lower half of the rear door was open and completely obscured the rear red light. Thus the van did not exhibit any rear light indicating its position on the roadway to traffic coming from the east. The two front side lights were lit. When in this position, an omnibus belonging to the first-named defenders, which was coming from the east, ran into the rear of the van, and, in so doing, hit the pursuer's son and inflicted injuries from which he died.

This omnibus exhibited the regulation lights. These lights conformed to the black-out regulations in force at the time. Immediately before the collision the omnibus had passed a lorry proceeding east and had "dipped" its headlights, with the result that, when approaching the van, the off-front headlight was extinguished and the near headlight was directed on to the surface of the roadway. The driver of the omnibus, M'Innes, states that this light would show up a vehicle about five yards ahead of him. He states that he was going at a speed of about 12 miles per hour and that at this rate he could stop within 3 or 4 yards. No detailed evidence was led of the extent of the damage done to the van or omnibus, but the damage to the former is said to have been extensive.

The principal contention of the parties centred on the time when the accident occurred, the light at the time, and the weather conditions. This evidence is conflicting. The testimony of the omnibus driver, when read, did not impress me. He appears to have had a long unbroken record of careful driving, and I think he tended to colour most of his evidence in his own favour. However that may be, one important fact is clearly established, viz., that all vehicles, the omnibus, the van and the passing lorry, exhibited the regulation lights, the only exception being that the van did not exhibit a red light from the rear.

There is no conflict as to the position of the vehicles. The van was drawn up opposite premises known as "The Cabin" in the outskirts of Ardrossan. The omnibus was being driven on the south side of the road. Immediately before the collision, it was confined to the south side of the road by a lorry passing in the opposite direction, the driver of which heard the impact of the vehicles and proceeded for a distance of about 15 feet. He drew into the entrance of certain works which he estimated at 50 feet's distance from the omnibus after the collision. If these measurements are correct, and, on the assumption that the omnibus and lorry were proceeding at the same speed, they would pass at a distance of about 17 feet from the point of impact. This distance did not give the omnibus driver much opportunity of passing the stationary van or drawing up to avoid it. I have no doubt that a careful omnibus driver would redue his speed before passing the lorry, had he known of the stationary vehicle in his path. The omnibus driver was not asked what action he would have taken had he known of the presence of the van. He however states that he did not see the red light indicating the presence of the van when in that position.

The lorry driver also states that, after passing the van, he heard the crash of the accident, looked in his driving mirror, and saw the rear light of the omnibus and the outline of its body and assesses its distance from him at that time to be about 40–50 feet. This would make the distance of the passing of the vehicles slightly further from the point of impact. The said measurements must, of course, be taken with caution. It is, however, important to note that the lorry driver (a witness for the pursuer) gave no evidence of the speed either of his vehicle or of the omnibus, but he says the latter was being driven carefully and his description neither suggests speed nor lack of attention on the part of the omnibus driver.

I note the description which the lorry driver gives of the weather conditions and of the distance one could see. This is, I think, important. He is asked if he could see an omnibus at a distance of 50 feet and answers "Yes." At that time he was on the road walking towards the omnibus which exhibited a red light and had a side light burning. He is then asked "Was the visibility such that if there had been a pedestrian on the road at anything like that same distance you would have been able to pick him out and stop all right ?" and answers "You could have picked out a pedestrian, I believe." He states that it was not pitch dark—"It was breaking daylight…I would describe it as greyish or gloaming, pretty near dark, and it was sort of raining that morning."

Bryson, the constable, was informed of the accident as he was going home for breakfast and proceeded to the locus, where he arrived between ten and five minutes to nine. He is asked if he could see objects or persons on the street up to 100 feet and answers "Maybe not so far." Later he states that at 100 feet you could not distinguish whether a pedestrian was man or woman. When this witness arrived at the scene of the accident, he describes the weather conditions as follows:

"The visibility was poor. It was very poor. Daylight was just beginning."

This description is given from ten to twenty minutes after the time of the collision and therefore nearer the time of full daylight. I emphasise this evidence because, in my opinion, the learned Sheriff-substitute has somewhat minimised the difficulty of a driver passing unlighted vehicles on the road during the hours of black-out and in particular during a period of mist and of changing light. It is also, I think, common knowledge that in a damp atmosphere, even if not raining, one invariably gets a better view when on the roadway than when looking through the windscreen of a motor vehicle. The omnibus driver was also presented with the difficulty of seeing an unlighted vehicle on the roadway when meeting and passing another vehicle with lights, even if these were only side lights.

Accepting, as I do, that the accident took place at the time found by the Sheriff-substitute, namely 8.35 A.M. (20–30 minutes before daybreak) on the shortest day of the year, it is obvious that the driver of the omnibus would require to exercise extreme care if he were to avoid the van. The absence of the red light would, in any event, have prevented the omnibus driver receiving as much warning as he should have had of the presence of the bakers' van. Had the light been exhibited, he would have seen it at, at least, 50 feet distant, i.e., before meeting the oncoming lorry. He would therefore have had a better opportunity of reducing his speed and of deciding whether he was going to stop or cross to the nearside of the roadway. As it was, I see no reason for disbelieving him when he says he did not see the van. I think he was about four or five yards distant, i.e., approximately the distance that separated him from the van, when he passed the lorry. It is difficult to accept these distances as accurate, but, assuming them to be approximate, and assuming the speed of the omnibus at 20 miles per hour, I think the omnibus driver was put in a position of difficulty, although he admits that he could have drawn up in a shorter distance. It is not for a person who puts a man in difficulty to expect from him a very high standard of efficiency, but whether or not this driver might have drawn up and avoided the accident, I am satisfied that he should have been able to minimise the effect of it. I think, therefore, that the first-named defenders must be held in part responsible for the accident. The second-named defenders argued that we should apply the law as laid down by the House of Lords in the case of M'Lean v. Bell to the facts of this case and hold that, even if the van was negligent in not showing a light, the omnibus driver had an opportunity of drawing up and avoiding the accident. On the facts of this case, I am not prepared to hold that a driver exercising reasonable care could have drawn up without coming into contact with the van. In considering the conduct of the driver of the omnibus, I have referred to the opportunity he had of seeing the van on the roadway, because I do not think it reasonable to suggest that he could have seen the deceased standing on the roadway at the rear of the van. It was suggested that the colour and surface of the bread would tend to show up the position of the van, but I have difficulty in accepting that suggestion. I should, however, point out that the boy was at the rear of the van and that every foot he was distant from it must be subtracted from the distance within which the omnibus required to pull up. I think the absence of a rear light placed the omnibus driver in a position of difficulty and directly contributed to the accident. In these circumstances, I am of opinion that both parties must be held to be liable and that they should be held equally to blame for the damage caused by the unfortunate accident.

LORD JUSTICE-CLERK (Cooper).—I have the misfortune to take a different view.

The first submission of the appellant omnibus company was that their driver was blameless; but this submission was virtually abandoned by their senior counsel and rightly so, for it would be impossible for me in view of the driver's own evidence to interfere with the conclusion of the Sheriff-substitute on this point. I shall revert later to this matter.

The issue around which the main argument revolved was whether the bakery company ought not also to have been held liable for some proportion of the damages. In exonerating the bakery company, the Sheriff-substitute did not flinch from the rigorous logic of his method of approach, for he has held that they were negligent, (continuously up to the last moment), in allowing the faultily constructed van to be on a public road during hours of darkness. His conclusion that they are nevertheless not liable rests upon the view that this negligence was only a causa sine qua non and not a causa causans of the accident. I use the expression causa causans as a compendious equivalent for what has been described in different decisions as the direct, immediate, decisive, proximate, real, dominant, efficient, effective or substantial cause, and I willingly accept recent injunctions to apply commonsense standards of causation and to ignore all metaphysical implications.

An overriding criticism of the judgment appealed against was that the Sheriff-substitute erred in approaching the question of the alleged joint fault of two defenders by citing from certain classical decisions on contributory negligence, (properly so called), beginning with Davies v. Mann . In England, at any rate, different theories have been deduced from the decisions as to the principle upon which the contributory negligence of a pursuer is based—Winfield on Torts (3rd ed.), p. 404; Salmond on Torts (10th ed.), p. 451—and it may well be that from a strictly scientific point of view such contributory negligence may in some circumstances involve slightly different considerations from those which apply in a case of alleged joint fault by two defenders. But in the reaction against the extremer refinements introduced by later decisions the modern tendency evidently is to treat causation, in the broad jury sense of responsibility, as the only true basis of contributory negligence. I refer to the speeches of Lord Wright in M'Lean v. Bell and in Yorkshire Dale S.S. Co.; and of Lord Atkin in Caswell.Upon this view this criticism of the Sheriff-substitute fails, because "causation" is the basis on which responsibility for an accident must be assigned as between two defenders, and "causation" is the issue to which the Sheriff-substitute has plainly applied his mind, and he has done so by applying the broad general principle which was formulated in Scots law long before the later refinements had emerged, in the brocard that causa proxima non remota spectatur. I reject the suggestion that the Sheriff-substitute misdirected himself in law.

Who then "caused" this accident ? What would a "properly instructed and reasonable jury, considering the facts on commonsense principles" decide ? ("The Boy Andrew," per Lord President Normand at p. 234).

Taking the omnibus driver's evidence at its most favourable reading for him—and that is to make a large assumption—I find that the range of his headlight (deflected to his near side) was about 5 yards, that his speed was 8 to 12 m.p.h., that he could stop "quite readily" in 2 to 3 yards, that he saw the van when he was 3 or 4 yards away from it, that he never saw the two boys who were standing at the back of the van, and that, though there was ample room to pass in safety, and time to stop, he struck the van squarely with sufficient violence to cause extensive damage to it and to injure one boy and to kill the other. Add to that the fact that the interior of the open van was light in colour and was filled with "white" bread, and it becomes easy to understand why it was eventually not pressed upon us that the driver of the omnibus was blameless. My view of the evidence (agreeing with the Sheriff-substitute) is that the speed of the omnibus was considerably more than the driver will admit, and I feel that the Sheriff-substitute was unduly tender to the driver in describing his negligence as not of a high order. Even on the footing that the conditions were those of complete darkness, but remembering that the accident occurred on a "fairly busy" road in a built-up area in front of a shop open for business and at a time when children were on their way to school, it seems to me that the averments on record against the omnibus driver are amply proved.

So far, I have assumed that the conditions were those of complete darkness. They were not. The street lamps near the locus may be ignored, and, though some light was coming from the open door of the shop beside which the van was standing, little significance can be placed upon it. But the accident happened within some 20 or 25 minutes of official daylight, and there is an impressive body of evidence to the effect that in the grey dawn of that morning there was already sufficient daylight to enable any reasonably vigilant driver on the omnibus to have seen the van in time to avoid running into it, with and even without the aid of his own restricted headlight. It is superfluous to rehearse this evidence, which is given by the driver of the van and the surviving boy, by a policeman, and by the driver of a lorry that passed the spot just before the fatality, and from which a picture is given of the extent of visibility available shortly before and at the time of the accident and of the distances from which buildings, cyclists, pedestrians and vehicles could be seen. Suffice it to say that this evidence is destructive of the case of "camouflage effect" sought to be made by the omnibus company on record, and flatly contradictory of the evidence of the omnibus driver who, in the charitable words of the Sheriff-substitute, pitched his case "far too high." I attach special significance to the evidence of the lorry driver, who, when looking back in his driving mirror from a distance of 50 feet, a moment after the crash, could see the outline of the omnibus, and of the policeman who depones that to an approaching driver in the position of the omnibus driver the greater part of the van was "silhouetted" against a background of sky.

Now it is not disputed that, as the omnibus approached, the van owing to its defective construction was in breach of the lighting regulations owing to the temporary invisibility of its rear light. How long it had been standing there in that condition and how many previous calls it had made are matters which have no relevance to a case of negligence based solely on its construction and not on its user by its driver. It is further unquestionable that, if the light had not been obstructed, it would have been visible for a considerable distance to warn approaching traffic of the presence of the obstacle, and that the omnibus driver would thus have been given longer time to take avoiding action. It follows that the negligence of the bakery company introduced into the situation a static element which made things more difficult for the omnibus driver than they need have been and should have been. Nevertheless the Sheriff-substitute was, in my view, justified in holding as he did that, notwithstanding the absence of a visible rear light, the van was capable of being seen by approaching traffic in ample time to allow such traffic to avoid it, and that the omnibus driver failed to exercise the reasonable care and skill which would have prevented the accident. Upon this view the negligence of the bakery company becomes an inoperative condition of the accident but not its "cause," and the sole responsibility rests with the omnibus company whose driver by the exercise of ordinary reasonable care could have nullified the effects of the absence of a visible rear light. The case thus falls into a well recognised category of which illustrations abound from Butterfield v. Forrester to the "Boy Andrew," in all of which the essence of the matter was that, notwithstanding the continuous negligence of A up to the moment of the accident, B was held solely responsible because of his negligent failure to exercise the care and skill which the situation, as it should have been appreciated by him, required. Such failure is in a practical sense "subsequent" in effect though not in strict chronological sequence.

I have repeatedly considered the argument that the bakery company must be held liable for a proportion of the loss, however small; but on my understanding of the legal principles and of the facts of this case I have come to the conclusion that this is not the correct result. As between the two defenders I place on the bakery company the onus of showing from the evidence that their breach of the lighting regulations was not part of the cause of the collision. Upon this issue of fact the answer of the Sheriff-substitute is in effect that in the proved circumstances of the case the absence of a visible rear light on the van called for greater vigilance on the part of the omnibus driver than would otherwise have been required, but not for more vigilance than was reasonably to be expected from a driver of ordinary care and skill and therefore that the onus on the bakery company has been discharged. The judgment of the Sheriff-substitute on such a point is not entitled to the sanctity of a jury's verdict, but it should not be displaced unless it is shown to be wrong. It is enough for the refusal of this appeal that this has not been shown.