Scottish Court of Session Decisions

This action concerns a road accident which occurred on 13 December 1996 in which the pursuer was injured and now claims damages against the first defenders as the employers of the second defender who was then driving a van in the course of his employment with the first defenders. The matter came before the Court for debate on the defenders' first plea-in-law directed to the relevancy and specification of the pursuer's averments and seeking dismissal of the action. At the end of the day counsel for the defenders accepted that she could not seek dismissal of the action. Rather her criticisms were directed only to certain averments which appear in the condescendence of fault.

The pursuer's case is that at about 7.30am on the date in question, he was crossing Dens Road in Dundee on foot. It is said that the road surface was dry, the weather was fine and the street lighting was on. The pursuer avers that he made his way from the footway on one side of the road across the north-bound carriageway to the middle of the road remaining on the north-bound carriageway. A van driven by the second defender was travelling south on the south-bound carriageway of the road. It was travelling downhill. The pursuer's averments then proceed as follows:

The particular averments to which objection was taken by counsel for the defenders appear in the condescendence of fault. After an averment of a general duty to take reasonable care for the safety of persons who might foreseeably be on the road such as the pursuer, the pursuer makes the following averment in relation to the duty on the second defender:

Objection was taken to the relevancy of the averment of duty in relation to driving at a speed which was reasonable and that of the duty to refrain from driving at a speed at which the second defender was unable to avoid persons crossing the road. It was argued, as indeed is the case, that in the averments of fact made by the pursuer there is no specific reference to speed. But the general duties of care on the second defender which are the subject of criticism have to be read in the context of the whole of the averments in the condescendence of fault. Immediately following the statement of general duties quoted above the pursuer goes on to say this:

The pursuer's case of fault thus restricts the case based on speed to the actions which he avers that the second defender should have taken "when he saw the pursuer on the road". This refers back to the averments of fact quoted above which describes the second defender's actions after "having seen the pursuer". It is thus clear that no criticism is made of the second defender's actings prior to that point. The matter of speed is raised only in relation to the second defender's actions from the point when he saw the pursuer for the first time. Issues may arise as to the distance apart between the van driven by the second defender and the pursuer at that point and accordingly as to whether the second defender failed to fulfil such duties as were alleged to have been incumbent upon him. Nevertheless, fair notice is given of the pursuer's case that the second defender failed to regulate his speed after seeing the pursuer on the road to the point of slowing down, if not stopping, the van before he came into contact with the pursuer then standing on the north-bound carriageway. The inference that the second defender was still proceeding at some speed when the collision took place appears from the description of the nature of the impact upon the pursuer and the damage to the van arising from the collision.

In these circumstances I do not consider that the pursuer's averments of fault in relation to speed are either irrelevant or inspecific but form a proper part of the pursuer's case of a duty to take reasonable care to avoid striking the pursuer. I shall accordingly hold the averments objected to as being sufficiently relevant and specific to go to proof.

It remains only to say that at the conclusion of the debate, parties were agreed that in such an event the action should proceed to proof before answer. I shall accordingly allow the parties a proof before answer of their respective averments.