Scottish Court of Session Decisions

This is an action for reparation arising out of a road traffic accident suffered by Victoria Doonan on 12 March 1996. Victoria Doonan was born on 4 December 1988 and the pursuer sues on her behalf as her mother and guardian. The sum sued for is £100,000.

The pursuer avers that on the said date the child was on her way to school at about 8.40 am. The weather was wet and windy. She was approaching Gylemuir Primary School, Edinburgh. She required to cross Meadow Place Road and Broomhall Drive in order to reach the school. These roads run parallel to one another. Meadow Place Road is a main road. Cars were parked at the kerb side in Broomhall Drive. Although it is not specifically averred, it was agreed by Counsel that these cars were parked at the far side on Broomhall Drive (in relation to Meadow Place Road). Broomhall Drive is a narrower road than Meadow Place Road. There is a traffic island between Meadow Place Road and Broomhall Drive and on this island is situated a traffic light which controls the traffic crossing across the former road. Victoria had successfully crossed Meadow Place Road to the traffic island with the

assistance of the school crossing patrol man. Thereafter she was struck by a Ford Mondeo motor vehicle being driven southwards along Broomhall Drive by John Hobson, who at the time was acting in the course of his duties as an employee of the defenders. That meant that the passenger side of the vehicle was the side nearest to the traffic island. It is averred that as the vehicle approached there were children on the grass verge nearest to the island. It is further averred that, when she was struck by the vehicle the child, Victoria, was on the pavement at the traffic island. The pursuer avers, as her main case that by allowing his vehicle to strike said child, when she was on the pavement, the said John Hobson was in breach of a number of duties to take care, and the defenders do not attack the relevancy of this part of the pursuer's case. The pursuer also has an averment relating to John Hobson, that it was his duty to drive in a manner which was safe having regard to all the road and weather conditions obtaining at the material time. I mention this because that particular averment was attacked by the defenders on relevancy grounds.

The defenders do not accept the account of events set out by the pursuer. What the defenders aver is:

In response to the defenders' said averments the pursuer set out an "esto" case which was in the following terms:

In their first plea-in-law the defenders have a general plea to the relevancy of the pursuer's case and the case appeared before me on the Procedure Roll because of that plea.

Counsel for the defenders explained that she was seeking to have the pursuer's said "esto" case excluded from probation as irrelevant. She also wanted the said averment which related to the road and weather conditions thus excluded. She was content that the balance of the pursuer's case should proceed to proof before answer. The submission regarding the averment relating to road and weather conditions was based on the suggestion that there was nothing pleaded to show how these conditions had caused the accident. The pursuer's account of events and that of the defenders were completely contradictory. The pursuer had based her case on the allegation that the driver had driven over the kerb onto the pavement. Thus the driver had driven into the child. On the other hand the defenders had averred that the accident had happened because the child had walked directly into the side of the car. The pursuer had failed to aver how the speed of the car could have had any bearing on the accident if it happened as the defenders suggest. No detail is given as to just how the driver could have avoided the accident. Thus in particular no detail was given of the speed which the pursuer claimed would have enabled the driver to avoid colliding with a child who had walked into the car. Nor was there any specification of the distance the driver should have been keeping from the kerb if he were to avoid a child acting as the defenders were claiming Victoria had acted. The defenders complaint was essentially that of a lack of fair notice. Without knowing precisely in what manner the pursuer was asserting that the driver ought to have driven the defenders were unable to instruct the necessary expert evidence. I was referred to Kemp v. The Secretary of State for Scotland and Another, decided in the Outer House on 13 June 1997 (and unreported). I was also referred to another unreported Outer House case namely Hammond v. Brown (decided on 13 November 1998). This was relied on for the support given at page 22 of the Opinion to the very general proposition that material matters require to be pleaded and proved. It is not sufficient for a pursuer to proceed to proof in the hope that he will be able to prove a material fact.

The pursuer's Counsel in reply relied strongly on the case of Adamson v. Roberts 1951 S.C. 681, and in particular the well known observations of Lord President Cooper at page 685. She submitted that her averments relating to driving in the particular road and weather conditions were linked to the averments that the accident took place early on a March morning, and that the weather conditions were wet and windy. The present case was a straightforward pedestrian accident case and the subject of the accident was a young child. The relevancy of all the pursuer's averments should be reserved until the precise facts could be ascertained at proof. The pursuer also asked leave to amend by adding an averment, (in the averments of fault), that: "It was his duty to sound a warning on seeing a child on the traffic island to alert the child from stepping out into the road". This amendment was opposed by defenders' counsel but I allowed it, for the driver's duty to give reasonable warning is a fairly basic ingredient of pedestrian accidents, and I considered that it was in the interests of justice that the pursuer should be able to put in issue what in the circumstances could prove to be an important question. However the defenders' counsel maintained that the particular wording of the amendment proposed was irrelevant in that it was too vague, and did not make clear in precisely what circumstances, if children were nearby, it was necessary to sound the horn.

In my view it is an important consideration in this case that Victoria was only aged 7 years when the accident occurred. In such circumstances I can see no injustice in allowing the pursuer to rely on an alternative view of the accident on an "esto" basis. This is not a case where the pursuer may be expected to commit herself exclusively to a particular view of the case. The pleading considerations derived from Lord President Cooper's dicta in Adamson have, since that case, been regularly acknowledged, and in my view remain apt to cover a case such as the present. This can be regarded as a simple road accident case. A child was injured after coming into contact with a moving car, and the factual issue is whether the car knocked down the child on the pavement, or whether the child walked into the car. In relation to the hypothesis that the car mounted the pavement it is conceded by the defenders that the issue requires probation. In relation to the "esto" case, as in Adamson, criticism can be levelled at some of the pursuer's averments of fault. However, the pursuer's narration of the duties of fault relied upon, clearly indicates dependence on certain well understood duties of care resting on a driver. The duty to keep a good lookout. The duty to take particular care when it might reasonably be anticipated that children, nearby and observed, might act unpredictably and place themselves in danger. The duty to give reasonable warning of approach if children may otherwise expose themselves to danger. A duty not to aggravate the risk by driving too fast, or in a manner which permits less leeway for avoiding action. In this case these responsibilities of the driver must be viewed against the fact that the child may have been distracted and hampered by wet and windy weather, and that the position of the child on a traffic island would suggest an intention to attempt to cross the road at some point. There was a school crossing patrol man and a pedestrian crossing on the other side of the traffic island. In the case of road traffic accidents relatively slight differences in the factual background can have an important bearing on liability. Yet there can be many and elusive variables. It is therefore not in the interests of justice in such cases, nor always practicable, that a party should be expected to commit his case to precise speeds, distances, etc. Provided that an opponent is given a sufficiently clear outline of the general nature of the facts relied upon by the party advancing the case, the sensible way to proceed is often to explore and establish the precise facts before deciding on the applicability of particular legal duties. In my view, it cannot be said in this case at this stage, that on the present pleadings the pursuer would not be able to establish an effective case on the "esto" material. For example, the alleged failure on the part of the driver to sound his horn would certainly appear to raise an important issue. Nor can it be said that the defenders would find themselves at more of a disadvantage in respect of fair notice than the defender who faces an average road traffic case where the claim is based on little more than "rubber stamp" pleadings.

I should perhaps add that I find that the case of Kemp offers me limited guidance. In that case the pursuer was walking parallel to the road and there was no indication that he was seeking to cross it. Moreover drink was alleged to be an issue and there was no reason why the pursuer should not have taken a clear position on the state of his sobriety. It may also be noted that although the Lord Ordinary made some general observations about pleading requirements in relation to reparation and road traffic cases it is not clear that he was referred to Adamson.

In the whole circumstances I consider that it is appropriate to hear Proof before adjudicating on the relevancy issues raised by the defenders and I shall accordingly allow a Proof before Answer on the pleadings as they have been amended.