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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Vincent Kemp (AP) v Secretary Of State For Scotland [1999] ScotCS 80 (18 March 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/80.html
Cite as: [1999] ScotCS 80, 2000 SCLR 10
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0527/5/94
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OPINION OF LORD OSBORNE
in the cause
VINCENT KEMP (AP)
Pursuer;
against
THE SECRETARY OF STATE FOR SCOTLAND
Defender:
________________
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Pursuer; Sutherland, QC, Dunlop, Drummond Miller
Defender; Moynihan, QC, R Henderson
18 March 1999
In this action, the pursuer claims damages from the defender in respect of loss, injury and damage, which he sustained on or about 15 April 1991 in an accident which occurred on the south side of Admiralty Road, Rosyth, Fife. The defender is sued as having been, at all material times, responsible for the management and maintenance of Admiralty Road, Rosyth, including its footpaths, as Roads Authority for that road in terms of section 2 of the Roads (Scotland) Act 1984. There is no dispute that the road in question was at all material times a trunk road within the meaning of section 151 of the Act of 1984.
Details of the circumstances in which the pursuer sustained his accident are set forth in condescendence and answer 2. In summary, the pursuer claims that, as he was proceeding along the footpath on the south side of Admiralty Road on the date in question at or shortly after 8.30pm, his foot came into contact with a raised kerb, which had been constructed at the edge of it. The pursuer claims that when this happened, he tripped and fell into the carriageway and, in particular, into the path of a Ford Escort motor van, registration number A669 DCC, being driven in a westerly direction in the road in question by Jason Fletcher Williams. The pursuer claims that the raised kerb concerned presented a hazard to the safe passage of pedestrians walking along the footpath. It is averred that they could inadvertently come into contact with it causing them to trip and fall into the carriageway into the path of oncoming vehicles. Furthermore, it is claimed that the raised kerb presented a hazard to the safe passage of pedestrians walking along the footpath in the lighting conditions which existed at or about the time of the accident.
In condescendence 3, the pursuer avers his case of fault, which is brought at common law. I refer to that condescendence for the details of the case made. The defender's position in relation to the accident itself is that it is accepted that on the date in question, the pursuer was walking in an easterly direction along the south side of Admiralty Road. It is also accepted that the pursuer came into the path of and was struck by a Ford Escort motor van, as averred. However, it is not accepted by the defender that his foot came into contact with the raised kerb and that he tripped on it. The defender's position is that both the pursuer and his brother David Kemp had been drinking and were very drunk. As they made their way along Admiralty Road they were noisy and stumbling. The defender believes and avers that the pursuer lost his balance and stumbled into the roadway. The defender claims that the presence of the kerb was obvious to pedestrians and ought to have been obvious to the pursuer. It is averred that it did not present a foreseeable risk of injury to pedestrians exercising reasonable care for their own safety. In answer 3, the defender also makes a case of contributory negligence against the pursuer, which is founded upon the extent and effect of the pursuer's drinking and also upon his alleged failure to keep a good look out. I refer to answer 3 for its detailed terms.
When this case came before me for proof, it was indicated that the scope of the proof was limited to matters affecting liability and contributory negligence. Subsequently, in a Joint Minute, 42 of process, it was agreed that, in the event of the defender being found liable to make reparation to the pursuer in respect of the accident referred to on Record, the amount of the pursuer's loss, injury and damage was £750,000 inclusive of interest to the date of decree. Furthermore, it was also agreed that, in terms of the Practice Note No.3 of 1997 and for the purposes of the Social Security (Recovery of Benefits) Act 1997, the said sum of £750,000 contained the elements set forth in paragraphs (a), (b) and (c) of paragraph 2 of the Joint Minute.
It is apparent from the pleadings in this case and also from the way in which matters were handled at the proof that there were three controversial issues between the parties. In the first place, controversy surrounded the issue of what exactly happened at the time of the accident and why. In the second place, upon the assumption that the pursuer had proved an accident such as he avers, whether there was a fault on the part of the defender. In the third place, assuming that fault against the defender had been proved, the issue of contributory negligence required to be addressed. I propose therefore now to examine each of these controversial areas of the case.
Turning then to the first area of controversy, it appeared to me that there were certain particular aspects of the situation which were in dispute. The first of these was the matter of the extent to which the pursuer was affected by the consumption of alcohol at the time of the accident. The second was the timing of the accident itself and the conditions existing at the time when it occurred. The third controversial area related to the reason why the pursuer fell into the path of the oncoming vehicle thus sustaining injury.
As regards the state of the pursuer as to alcohol at the time of the accident, evidence came from a number of sources. The pursuer himself gave evidence about this matter. He could remember very little of the day of the accident and nothing at all about it itself. He said that he could recall having been to the bank to get some money at an early stage in the day, but could not recall drinking with his brother or how much he drank. He explained that, at that time, he did drink alcohol from time to time. An amount of five or six pints of beer was not then out of the ordinary for him. Such an amount of alcohol would have had some effect on his behaviour.
David Kemp, the pursuer's brother, who was in his company during the course of the day on 15 April 1991 and at the time of the accident, gave evidence about what had happened before the accident. He said that he and his brother had gone out at about lunchtime, with a view to having something to drink and enjoying themselves. He mentioned the various licensed premises which he and his brother had visited and described how much they had had to drink. He thought that the amount was five pints of beer each in all. The last licensed premises visited by the two brothers was the Rosyth Recreational Centre, commonly known as the Dockyard Club. It was situated in Admiralty Road to the west of the locus of the accident. It can be seen on the plan 31/7 of process. David Kemp said that, so far as his condition was concerned, he was "under the influence, but not staggering or anything". He considered that his brother, the pursuer, had had the same amount to drink as he had; they had been drinking round for round. David Kemp, in cross examination, agreed that he and his brother been to four licensed premises in all, two public houses, a licensed bowling alley and the Dockyard Club. He agreed that it was possible that they had had six pints of beer each, but certainly not more than that. They only had so much money with them. There was raised with David Kemp the issue of whether he and his brother had been refused drink in the Dockyard Club. His position was that he did not remember if that had occurred. He agreed that, by the time they reached the Dockyard Club, they might have been in a boisterous mood. They had certainly had something to drink in the Dockyard Club.
Jason Williams, who was the driver of the Ford Escort van involved in the accident, described what he saw immediately before it. He indicated that he had seen two men on the footpath to the south side of the road staggering, as if under the influence of drink. Following that the accident occurred. He agreed that he had made a statement to a police officer, after being cautioned in which he said:
"I was driving along this road. I saw these two guys stumbling along. As I drove past, he seemed to trip and stumble into the side of the van just like he was under the influence. I heard a bang on the side of the van and I jammed the brakes on. I ran back to see what was going on".
Mr Williams went on to say that, while he had described the men as staggering, before the accident, they had appeared to be holding themselves up. They were swaying or stumbling as they walked along. He said he considered that they were obviously under the influence of drink.
Mrs Linda Dargie was a woman police constable in April 1991. She had retired from the police force in 1997. She was shown her notebook applicable to 15 April 1991. She agreed that, on the basis of what it contained, she had noted a statement from David Ralph Kemp, the pursuer's brother at 10.15pm on the date in question. She said that she was now unable to remember the taking of the statement or where it had been taken. She said that, on the basis of the notes which she had taken, she appeared to have received a coherent statement from Mr Kemp. She expressed the view that, if a person from whom she had been taking a statement was drunk, she would have been likely to report that, since that might be a relevant circumstance. She had not made any note in her notebook to the effect that David Kemp was drunk when she met him.
Evidence was also led from Josephine Martin, who on 15 April 1991 had been a bar steward at the Dockyard Club in Rosyth. She stated that she knew both David and Vincent Kemp; their father had been Chairman of the Club. They did not come there very often, but sometimes did so at weekends. She remembered that in April 1991 Vincent Kemp had sustained severe injuries in a road traffic accident. She remembered that David and Vincent Kemp had been in the Dockyard Club on the evening of the day on which the accident occurred, 15 April 1991. She said that they had been drinking before they came into the Dockyard Club. In the Club itself they each had one pint of beer. This witness said that, because they were getting "a bit boisterous" she asked them to leave. She described them as being "drunk" when they came into the Club. She did not know how long they had been drinking. When the witness was asked how drunk were they, she said that they were boisterous but "not falling about".
Finally, on this aspect of the case, evidence was led from Mr Thomas Russell, a consultant neuro-surgeon. He gave evidence based upon the medical records relating to the pursuer's treatment following the accident, 28/1 of process. He expressed the view that the pursuer, who had sustained a serious head injury had made a fast recovery from the comatose state in which he had been following upon the accident. Such a recovery could show that the causation of the comatose state was, in part, alcohol. He considered that an amount of five or six pints of beer consumed from the middle of the day until the evening could be consistent with the evidence disclosed in the medical records.
On the basis of the foregoing evidence, it appears to be quite clear that both the pursuer and his brother David Kemp were materially affected by alcohol immediately before the accident. It is always difficult to arrive at any precise conclusion as to the extent to which a person is so affected; it appears from the evidence of Josephine Martin, which I can readily accept, that David and Vincent Kemp were in a boisterous state in the Dockyard Club, but were not so drunk as to be falling about, as she put it. Nevertheless, I accept that their gait was visibly affected by the alcohol which they had ingested, since I accept the evidence given by Jason Williams as to what he observed immediately before the accident. The picture he painted was of the two men swaying about as they proceeded along the footpath. However, I do not consider that the two men were in an extreme state of drunkenness at the material time. That would have been inconsistent with the evidence which I have narrated and in particular inconsistent with the fact that Mrs Linda Dargie took what she considered to be a coherent statement from David Kemp at 10.15pm on the date in question without finding it necessary to record that the person from whom she was taking the statement was drunk.
I turn now to the second controversial area in relation to the circumstances of the accident itself, namely the time at which the accident occurred and the conditions existing then, particularly as regards lighting and visibility. As regards timing, the evidence varied. Jason Williams, the driver of the van involved in the accident, said that, following the collision, he stopped the van and saw an injured man lying in the road. He said that he stayed with the injured man for a few minutes, but then went to a house nearby to telephone for an ambulance. He said that the police came first, then the ambulance, about twenty to thirty minutes after his telephone call. He stated that he had given a statement to the police at about 9.40pm. He thought that the accident had occurred about twenty or thirty minutes before that time.
Sgt Robert Baker attended at the locus of the accident shortly after it had occurred. He said that he had arrived there about 9.30pm. At that stage the injured person was in an ambulance. The brother of the injured man was not at the scene. Sgt Baker said that he had cautioned Jason Williams at about 9.40pm and had thereafter taken a statement from him.
David Kemp said in evidence that he thought that he and his brother had left the Dockyard Club at about 7.00pm, when he thought that it was twilight. He thought that the ambulance had arrived within about ten minutes of having been called, although he was not sure about that. He accepted that he might have indicated to Mr Brian Foot, a consulting engineer engaged on behalf of the pursuer, that the accident occurred around 7.30pm. In evidence, David Kemp accepted that he might have been wrong regarding the time when he and his brother left the Club and when the accident occurred. What he was sure about was that it was getting dark at the time.
Turning to the matter of conditions and visibility at the time, as I have already narrated, Mr David Kemp stated that it had been twilight when the accident occurred. It was put to David Kemp that sunset on Monday 15 April 1991 at Edinburgh Airport occurred at 19.19 hours G.M.T., or 20.19 hours B.S.T., as appeared from the records 30/3 of process. He said that he might well have been wrong about the timing and that the accident might have occurred after 9.00pm. So far as he was concerned, when the accident occurred, it was getting dark, although it was not pitch black. The street lights in the road in question were just coming on.
The only other witness who was able to speak directly to the conditions existing at the time of the accident was Jason Williams. When asked about the lighting conditions, he said that it had not been particularly dark, although it was getting dark. He would have been using his side lights at the time in question. He was unable to remember whether the street lights were on or whether they had started to come on. He described the conditions as regards illumination as twilight or dusk.
In the light of the foregoing material, which, apart from David Kemp's estimate of the time of the accident, I accept, the conclusion which I have reached is that the accident probably occurred around or shortly after 9.00pm, B.S.T., on the day in question. David Kemp's estimate of time must be wrong, a possibility which he himself recognised. As regards the lighting conditions at the time, there appeared to be unanimity that they could be described as twilight, perhaps tending towards dusk. It appears to me that that is consistent with the agreed time of sunset at Edinburgh Airport on the day in question, that is to say 8.19pm, B.S.T.. If I am correct in relation to these matters, it is likely that street lighting would have been beginning to come on at about the time of the accident.
I turn now to a consideration of the occurrence of the accident itself and the reason for it. There is no doubt whatsoever that the pursuer's injuries were caused by his having come into contact with the nearside of the van driven by Jason Williams when that van was proceeding westwards in the carriageway of Admiralty Road. That matter was spoken to by Jason Williams himself and also by David Kemp. Furthermore, I do not consider that there is really any doubt about the location where the collision between the van and the pursuer occurred. A plan of the features of the locus and of the occurrence was prepared by Police Sgt Robert Baker and Constable Howe, who was accompanying him. That plan is 38/1 of process. The locus of the collision is also to be seen in the photograph, 25/1(3), taken by the police. The police officers attending the locus observed a broken piece of wheel trim in the carriageway and also a pool of blood. The location of these features is marked on the plan which was prepared. The photograph 25/1(1) shows the van concerned, with damage to the nearside front wheel trim. The piece of trim was found 1.6 metres out into the carriageway from the kerb. It was 4 metres east of a line drawn at right angles to the road through the point where the raised kerb recommenced after a dip in it in the vicinity of the drainage cover shown in photograph 25/1(3) on the east side of that dip. The pool of blood was situated 6.4 metres east of the same line. It was situated about 1 metre north of the raised kerb on the south side of the carriageway. In photograph 25/1(2) there is depicted the rear nearside wheel of the van in question. The photograph was said to show skin, blood and hair. On the basis of those findings, Sgt Baker considered that the head of the pursuer must have come into contact with that wheel. Sgt Baker considered that the pool of blood, to which I have referred, represented the place where the pursuer's head came to rest. The collision itself, he thought, would have occurred there or maybe some short distance east of that point.
The controversial issue which has to be addressed is what it was that caused the pursuer to fall into the path of the van concerned in the way that he did. David Kemp, with whom, of course, the pursuer was in company at the material time, gave evidence about this matter. He explained that he and his brother had been walking along the southern footpath of Admiralty Road with a view to crossing the road at the roundabout east of the location of the accident, with a view to going to a fast food retail outlet close to the roundabout. There was a crossing place in Admiralty Road immediately west of the roundabout. There was no question of his brother and himself crossing the road anywhere other than there. As regards the reason for the pursuer's accident, David Kemp was perfectly clear in his evidence. He stated that the pursuer tripped over the kerb and that the accident occurred because, unfortunately for him, a vehicle was passing at that moment. David Kemp said that, when this occurred, he and his brother had been chatting. It was as if the pursuer had stubbed his toe on the raised kerb. It appeared to be the left side of the front of his foot that caught on the kerb. The result was that the pursuer lost his balance and fell into the road. In the photograph 25/2(3), David Kemp was demonstrating the position of the foot for the benefit of Mr Brian Foot, the expert witness who gave evidence on behalf of the pursuer. David Kemp said that his brother had fallen head first into the road, swivelling round as he did so. He said that his brother had been about to hit the ground just as the vehicle hit him. This witness considered that the accident had occurred some little distance west of the features referred to in the plan 38/1 of process, but he accepted that he might have been wrong about that, in view of the presence of the piece of trim and the pool of blood in the positions described in the police evidence. David Kemp was cross examined to the effect that he had been so drunk that he did not have any clear recollection of what had occurred, but he rejected that suggestion. The witness agreed that he had given a statement to Woman Police Constable Linda Dargie, which was narrated in 31/1 of process. David Kemp was closely questioned about the contents of this statement. He agreed that he had not said that his brother had tripped over the kerb. He agreed that he must have said that the pursuer "stumbled onto the road and was hit by a car". David Kemp explained that following the accident he himself was in a state of shock because of what had happened to his brother. He had been extremely worried as to whether the pursuer would live or die. David Kemp said that he had not noticed the raised kerb in this location before. He had not known it was there. He had not noticed the raised kerb stones until after the accident had occurred. When pressed as to what exactly he did see at the moment of the accident, the witness said that he was very close to his brother and that he had seen his foot catch on the kerb with the result that he fell in the manner described. David Kemp said that, while he and his brother were under the influence of drink, they were not staggering. He disagreed with the suggestion that they had been stumbling along.
Jason Williams, the driver of the van concerned, also gave evidence about the accident. He explained that he had been driving west in Admiralty Road. He said that he had observed two men staggering as if under the influence of drink on the footpath. Then he heard a bang, after which he stopped his van. He then observed an injured man lying in the road. He confirmed that he had made a statement to the police which had been recorded, the terms of which I have already quoted. On being further questioned about the apparent condition of the two men before the accident, this witness said that they seemed to be holding themselves up, although there were swaying as they walked along the footpath towards the witness's van. The witness saw the man who "seemed to fall". Although the condition of the two men had indicated to the witness that they were under the influence of drink, they were not so bad in that respect as to have caused him to drive out and away from the footpath in anticipation that something untoward might occur. The witness had been driving some little distance out from it, certainly not absolutely next to the kerb. He said that the pursuer fell, or was projected, out from the footpath into contact with the van.
The precise cause of the pursuer's falling into the roadway was the subject of quite elaborate argument. Counsel for the pursuer submitted that the evidence of David Kemp should be accepted and that it was corroborated in its essentials by the evidence of Jason Williams, the driver of the van. There was no doubt that the pursuer had been projected into the roadway somehow in a lateral direction. There had been no question of the brothers attempting to cross the road at the location of the accident. The pursuer had been projected some distance into the roadway. That had occurred at a point where the raised kerb existed, which possessed the capacity to do just that, as Sgt Baker had considered. Counsel for the pursuer accepted that some reasons had been advanced as to why the Court should hesitate to accept the evidence of David Kemp. Among these was the matter of the effect of drink. However, he submitted that, while the two brothers were under the influence of drink, they were not falling about. Until the accident had occurred, they had been making progress along the southern footpath of the road. It was accepted that there had been certain inaccuracies in David Kemp's evidence relating to the precise location of the accident and also in relation to the time at which it had occurred. However, these matters did not cast a doubt on the reliability or credibility of the essentials of his evidence. He had been quite frank about recognising that he might have been wrong about those matters. Furthermore, it was submitted that no particular significance attached to the precise wording of the statement made to Woman Police Constable Linda Dargie, recorded in 31/1 of process. While the word "trip" did not appear in that statement, the word "stumble" did. That was of no significance. A person could properly be said to stumble over something. In any event, it was notable that Jason Williams, in his statement to the police had used the word "trip".
Counsel for the defender submitted that I should not accept the evidence of David Kemp as to the manner in which the accident occurred. He was uncorroborated and there were reasons why his evidence should not be regarded as either credible, or reliable. In this connection reference was made to McLaren v Caldwell's Paper Mill Co Ltd 1973 S.L.T.158. In that case it had been recognised that, where a pursuer's evidence was not corroborated on crucial facts, the evaluation and assessment of that evidence required special care and attention. The legitimacy of that approach had been recognised in L. v L. 1997 S.C.L.R.866. It was submitted that it was evident that David Kemp's evidence was defective in a number of matters of detail and could not be relied upon. There were four particular aspects of the case which should cause the Court to reject the evidence of David Kemp as incredible. These were firstly, the issue of the amount of drink consumed, secondly, the circumstances in which the brothers left the Dockyard Club, thirdly, the manner of their proceeding in Admiralty Road before the accident, and fourthly, the statement made to the police by him, 31/1 of process.
The conclusion which I have reached is that I feel able to accept the evidence of David Kemp as to the circumstances which caused the pursuer to fall into the road and come into collision with the van concerned. My own assessment of this important witness was that there were certain parts of his evidence where he appeared to be in conflict with other evidence which I feel bound to accept. In particular, I have in mind in that respect his evidence about the time of the accident and the precise location of it. However, that having been said, in the course of his evidence he was prepared to recognise that he might have been wrong on those particular matters. As regards the issue of the amount of drink consumed, while he, like his brother, was plainly under the influence of drink, as I have already indicated, I do not consider that he was in the extremes of drunkenness. Josephine Martin, the bar steward at the Dockyard Club, who was the last person to have had contact with the brothers before the accident, so far as one knows, simply said that they were getting a bit boisterous and accordingly she asked them to leave. However when they had arrived at the Club she had been prepared to see them served with a pint of beer each. When she was asked how drunk they were, she stated that they were not falling about. I regard that evidence as of some importance. In particular, it appears to me to confirm David Kemp's own evidence as to the amount of drink consumed and his own assessment of his condition as regards drink and that of his brother. I do not consider there is any real reason to think that the brothers had drunk more than David Kemp accepted that they had drunk. Accordingly, I cannot accept the contention made on behalf of the defender that, in the evidence relating to drink, there was a basis for holding that David Kemp was incredible. Furthermore, I should also say that I do not consider that the level of intoxication of David Kemp revealed by the evidence renders his evidence as to the accident unreliable, by virtue of having materially affected his powers of observation.
As regards the matter of the circumstances in which David Kemp and the pursuer left the Dockyard Club, Josephine Martin was quite clear that she asked them to leave after they had had one drink, because they were becoming a bit boisterous. It was argued that there was no reason whatever to reject the evidence of Josephine Martin, a proposition with which I agree. Further, it was suggested that the evidence of David Kemp was in serious conflict with her evidence. With that contention I do not agree. What David Kemp said was that he did not remember being refused drink in the Club. However, at a later stage of his evidence he accepted that there might have been a refusal of further service in the Club, if Josephine Martin said that that had occurred. Essentially, as I read the evidence, the conflict between what Josephine Martin had to say and what David Kemp had to say on this point was not a sharp one. Thus I do not regard that circumstance, either alone or in combination with others, as an adequate basis on which to disbelieve his evidence.
As regards the manner of proceeding of the brothers in Admiralty Road immediately before the accident, there was indeed a conflict of evidence between David Kemp and Jason Williams as to the manner of walking of the brothers. However, as against that, Josephine Martin's evidence was to the effect that the brothers were not so drunk as to be falling about. Once again I cannot regard this particular feature of David Kemp's evidence as an adequate basis for disbelieving what he had to say.
The fourth factor founded upon by the defender to support the contention that David Kemp was incredible was the statement which he made to the police at around 10.15pm on the evening in question, set forth in 31/1 of process. In the statement, David Kemp spoke of his brother having "stumbled on to the road". I do not regard that language as necessarily inconsistent with what David Kemp said in the witness box. It is clear that, at a later stage of the statement, David Kemp made the erroneous statement that the vehicle involved did not stop after the accident. In evidence David Kemp agreed that that was incorrect. In his own defence, he stated that he was profoundly shocked by what had occurred. It is also to be recognised that he had had a significant amount to drink. These circumstances do not persuade me that he was an incredible witness. Finally on this aspect of the case, I should say that my own impression of David Kemp as a witness was that, while his testimony proved to be inaccurate on certain matters and while he was indignant at what had happened to his brother, I had no reason to believe that he was deliberately attempting to mislead the Court.
On the question of his reliability, counsel for the defender advanced a criticism of his evidence based upon firstly what he had had to say about the time of the accident and secondly what he had had to say about the location of the accident. It does seem reasonably clear that the evidence of David Kemp was wrong as regards the time of the accident, although his evidence as to the state of the light at the time of it appears to be confirmed by other evidence in the case. As regards the location of the accident, his evidence pointed to it as having occurred some few metres away from the location where debris and blood was found. However, in relation to both of those matters, the witness himself recognised that he might have been wrong. On this whole aspect of the case, I am not persuaded that the evidence of David Kemp is open to serious criticism and I am therefore able to accept what he had to say regarding the causation of the accident. In any event, it appears to me that that evidence is, in some degree supported by inferences which may be drawn from the general background to the matter. The fact was that the two brothers had proceeded some little distance from the Dockyard Club along the footpath in Admiralty Road without mishap. While they may have been somewhat unsteady on their feet, it is quite clear that they were not falling about. However, shortly after they arrived at the section of the footpath where the raised kerb was in position, the accident occurred. Something plainly caused the pursuer to be projected laterally into the roadway. I consider that the probabilities suggest that it was because he tripped over the raised kerb. In all these circumstances, I find that the pursuer was precipitated into the path of the van with which he came into contact because his left foot came into contact with the raised kerb over which he then tripped, falling into the carriageway of the road. In the light of the reliance placed by counsel for the defender on McLaren v Caldwell's Paper Mill Co Ltd and L. v L., it is appropriate that I should make clear that I do not regard David Kemp's evidence as to the cause of his brother's fall as being uncorroborated. I accept the contention of counsel for the pursuer to the effect that, as regards the important point, it was corroborated by that of Jason Williams.
The next issue with which I have to be concerned is that of fault. Evidence in relation to that issue came from a number of sources. In the first place, Sgt Robert Baker gave evidence which I considered to be relevant to this issue. He said that the raised kerb shown in the photographs 25/1(3), (4) and (5) was a road feature which he had not seen before the occasion of the accident. He had worked in the Police Traffic Department in Fife for a period of six years before that time. A combination of the statements made to him after the accident had caused him to ensure that the dimensions of the kerb were taken. In regard to this type of kerb, the witness expressed the opinion that the design was not good; if someone hit it with their feet or tripped over it, they could fall into the carriageway and the oncoming traffic. He said he had formed that view soon after the accident to the pursuer. He said that he had felt sufficiently strongly about the matter to have prepared what he called a "plain paper report" on the subject for the Fife Regional Council, on the subject of the possible involvement of the kerb in the causation of this accident. The gravamen of that report was that the design of the kerb ought to be reconsidered, in the light of the accident. This witness considered that the pursuer might have tripped on the kerb and, for that reason, thought that it was a potential hazard. Finally this witness indicated that, since the accident, he had observed this kind of kerb elsewhere in Fife.
In the second place, evidence came from Mr Brian Foot, an expert witness called on behalf of the pursuer. He was the principal of Brian Foot & Associates, Consulting Traffic, Highway and Transportation Engineers. He possessed a range of qualifications, including the degrees of BSc. and MSc.. He had been in practice as an engineer since his graduation in 1967. After graduation, he was employed by a firm of civil engineering contractors in the north of England and North Wales for two years. He then worked for two years for a firm of consulting engineers on the design of roads, including motorways. At that stage in his career he returned to University to obtain the MSc. degree from Imperial College, London, where he worked under Professor Sir Colin Buchanan. Following that course, he had been invited to join the practice of that engineer. Thereafter he worked with them in Manchester and Edinburgh, where the firm was involved in a transport study. In 1975, he had left that firm to start his own practice of consulting engineers, in which he had worked ever since. He had experience in issues of road safety and had analysed road traffic accidents in relation to the planning of road systems.
He explained that he had been instructed to look at the locus of the pursuer's accident in September 1995. He had in addition examined the productions in the present action including the document recovered, 37/1 of process, the photographs, 25/1 and 2 of process, the Meteorological Office report, 30/3 of process and the maps or plans 31/7 and 8 of process.
Having explained the nature of the locus of the accident, Mr Foot spoke in evidence to the contents of his report, 36/4 of process, to which I refer. The witness had been informed by David Kemp that the accident had occurred at dusk when the street lights were just coming on. He considered that that implied that the accident must have happened at some time between about 8.15 and 9.15pm B.S.T. on the date in question, having regard to the fact that sunset at Edinburgh Airport was at 8.19pm B.S.T. on that date.
In his evidence, Mr Foot elaborated the views expressed in paragraph 2.1 of his report to the effect that the raised kerb clearly presented an obstacle and a potential hazard to any pedestrian walking along the footway or attempting to cross over the carriageway of Admiralty Road without reasonable care and attention. He found it easy to envisage that a pedestrian who had not noticed the raised kerb and who was walking along the footway or attempting to cross over the road could catch the toe of their foot against the kerb, could trip, and, given the direction of the momentum of their body as they were moving forward, could overbalance and fall into the roadway and into the path of oncoming traffic. He considered that in good light conditions, however, a person ought to notice the presence of the raised kerb. He concluded, as explained in paragraph 2.3 of his report, that in his opinion the raised kerb did not present a hazard to the safe passage of pedestrians generally, whether walking along the footway or attempting to cross over the road, provided that the pedestrians were walking with reasonable care and attention. However, even in such light conditions, he believed that the raised kerb was a potential hazard for poorly-sighted people, for certain blind persons, for persons with corrected eyesight which did not enable them accurately to judge the height of obstacles in their path, for elderly persons who might have difficulty in stepping over obstacles or judging accurately their height, and for unaccompanied young children who might be walking alongside or playing in close proximity to the raised kerb.
On Mr Foot's second visit to the accident locus, which occurred in conditions of twilight which replicated those which he believed subsisted at the time of the accident, he explained that he was confronted by a visual impression which was radically different from that just mentioned. It was impossible, whilst walking along the footway, to distinguish that the level of the raised kerb was different from that of the footway. The two appeared to be at the same level and each to be a continuation of the same surface. This was partly because of the absence of any shadow or reflection which could help to define the presence and depth of the difference in level between the raised kerb and the footway, and partly because of the similarity in tone and absence of difference in colour in twilight, between the weathered concrete kerb stones and the asphalt surfaced footway. In the light of these observations, the witness had concluded that, in the light conditions existing at that time, the raised kerb presented a potentially serious hazard to the safe passage of all pedestrians, even when walking with reasonable care and attention, because the difference in level between the raised kerb and the footway simply could not be seen.
In paragraphs 2.5 and 2.6 of his report, Mr Foot expressed certain views relating to the period of construction of the raised kerb deduced from the appearance of the kerb in the police photographs 25/1 of process. He considered that, at the time of the accident, there would have been less contrast in tone and colour between the raised kerb and the footway than could be seen at the locus at the present time. That rendered it less likely that a pedestrian walking along the footway in twilight would be able to identify the existence of the raised kerb. He therefore concluded that the potential hazard to the safe passage of pedestrians walking along the footway would have been greater at the time of the accident than is apparent when visiting the locus now, and that in absolute terms the potential hazard must have been serious indeed. In this connection, Mr Foot was referred to the Report of the Commission, No.11 of process. The haver cited to attend that Commission had expressed the view that his "best guess" was that the kerb had been constructed around 1983, a conclusion apparently deduced from a Scottish Office lack of records relating to the construction. Mr Foot expressed astonishment at that view, which he considered to be inconsistent with appearances.
Under reference to paragraph 2.7 of his Report, Mr Foot said that the visual impression of the raised kerb and footway at the accident locus changed little when the sodium street lighting was automatically switched on. The lamp on the column on the south side of Admiralty Road west of the junction with Norval Place was too far west of the western extremity of the raised kerb for its light to be able to produce a strong shadow on the vertical face of the kerb adjacent to the footway, so the appearance of the western end of the raised kerb changed little from its appearance in twilight, though it did become slightly more distinguishable. The same change in appearance applied throughout most of the length of the accident locus, with the lamp on the column on the north side of Admiralty Road being too far away to be able to produce a strong shadow of the vertical face of the raised kerb adjacent to the footway. Only at the east end of the length of the area of raised kerb was there any marked improvement when the street lighting was illuminated.
In section 3 of his report, Mr Foot considered the possible purpose of the raised kerb at the locus of the accident. In the absence of any direct information as to the purpose which the raised kerb had been intended to serve, Mr Foot concluded that its purpose where it existed on the north side of Admiralty Road seemed to be to prevent residents of the houses on that side from parking their cards wholly or partly on the footway. However, as he pointed out in paragraph 3.3 of his report, the houses along the south side of Admiralty Road were set back from the main road and appeared to be provided with adequate off-street parking facilities. It was of course on the south side of the road that the accident had occurred. There was therefore no apparent need for the raised kerb at the accident locus.
Mr Foot explained, under reference to paragraph 3.5 of his report, that he had never before seen the construction of a raised kerb alongside the carriageway of a trunk road and he was not aware of any other location on a trunk road where this form of construction had been used. However, he had seen this form of construction used in narrow residential streets in council housing estates, in order to prevent parking on footways. In addition, he had seen the provision of different forms of raised kerbing alongside other types of road at locations where the level of the existing carriageway had had to be raised, in order either to improve the effectiveness of the carriageway drainage, or to introduce a greater degree of super-elevation on a tight bend, or to increase the load-bearing strength of the carriageway by increasing its depth of construction without raising the level of the adjacent footway or verge. As far as he could ascertain, none of these circumstances appeared to apply in the case of Admiralty Road.
Mr Foot went on to explain that he was not aware of any design manual, or set of standards, or Code of Practice for any type of road in urban or rural areas which recommended the provision of raised kerbs of the type found at the accident locus, or which proposed or described a suitable form of design for them. Furthermore, he was not aware of any similar manual, or set of standards, or Code of Practice which recommended the provision of any type of raised kerb, or which proposed or described a suitable form of design. According to his experience, this type of kerb was very rarely to be seen.
In cross examination, Mr Foot accepted that nowhere in his report did he refer to the influence of alcohol. However, in paragraph 5.1.18, he had recommended that the pursuer's blood alcohol level on admission to hospital should be checked. He had been aware of the drinking background to the accident.
As regards the timing of the accident, he accepted that he had been told that it had occurred at 7.30pm, as appeared from his report. However, he had understood that the accident had occurred in conditions of fading light. He had assumed a gap of time from sunset to the accident of half an hour. On Friday 18 September 1998, when sunset occurred at 7.23pm, the witness had visited the locus. Twenty minutes after sunset there were conditions of twilight, although not total darkness. The effect of street lights depended upon the position of the observer. Plainly the effect of a street light varied according to the distance from it.
Cross examined about the contents of paragraph 2.3 of his Report, the witness disagreed with the suggestion that a footway with a raised kerb was no more hazardous than one with a conventional kerb. He made the point that all that one could do with a conventional kerb was to fall off it, whereas with the raised kerb a pedestrian could trip over it.
Under reference to the photograph 25/1(3), which showed the start of the length of raised kerb on the south side of Admiralty Road, the witness agreed that it could be seen that the pavement level had changed at the start of the raised kerb. When it was suggested to him that the dip in the pavement level might be the reason for the existence of the raised kerb, the witness testified that he did not see the logic of that. It would have been much cheaper to resurface a pavement than to build a new raised kerb to make a contrast between the road surface and the pavement. The averment at page 11C-D of the Closed Record (as further amended), 35 of process, was put to the witness. He disagreed with that averment. So far as he was concerned, raised kerbs of the kind under discussion were not commonly used throughout Fife. He had not seen such a thing anywhere else in Fife than at the locus of the accident.
The third source of evidence which I considered to be relevant to the issue of fault was the expert witness led on behalf of the defender, Mr John Edgar. He was a member of the firm of Hunter & Edgar, Consulting Engineers. He had had a career as a civil engineer in local government for a period of 35 years, from which he retired at age 60. Thereafter, he had practiced for two years as a consulting engineer. He had had extensive experience in local government with Argyll County Council, Kirkcudbright County Council, Dumfries & Galloway Region and Lothian Region. Latterly he had had particular responsibility for roads, although earlier he had had responsibility for water and coastal protection. He had been involved in the design, construction and maintenance of roads.
Mr Edgar said that he had had occasion in the past to inspect arrangements of kerbing of the kind under discussion here. He explained that he had seen this form of construction used where a footway was at or below the level of the carriageway of a road and where adjacent properties made it difficult to raise the level of the footway. Questioned about the circumstances in Admiralty Road, Rosyth, he pointed out that there was such a kerb on the north side of the road in the vicinity of the accident location. On that side of the road, the pavement level was above that of the houses and gardens. He assumed that the installation of a raised or double kerb there might have been explained on grounds of cost and on account of the fact that, with the existing level of pavement, it was necessary to step down into the properties adjacent to the footpath.
The witness agreed that he had read Mr Brian Foot's report. He disagreed with the theory advanced by him that the reason for the installation of a raised kerb on the north side of Admiralty Road was to prevent the parking of motor cars in part on the footpath.
Questioned as to the circumstances on the south side of Admiralty Road, the witness said that there the pavement in the vicinity of the location of the accident was at the same level as the carriageway of the road. On being asked why there might be a raised double kerb there, he said that there was no physical reason to have it. It would have been possible to raise the footway had that been thought desirable. The only reason for not taking that course might have been a financial one. This witness considered that it would have been more costly to raise the level of the footway than to install a raised kerb. He agreed that there were no problems relating to the need to step down into adjoining properties from the footpath on the south side of the road. In relation to this aspect of the matter, the witness said that he guessed that the reason for the existence of the raised kerb on the south side of the road was a financial one. It might have been the case that the road had been resurfaced, bringing it up to the level of the pavement. He affirmed that the construction of a raised kerb would be less costly than the raising of the height of the footpath, although there was no engineering reason that he could see for not raising the level of the footpath on the south side of the road. On being asked how common he considered that raised or double kerbs were, the witness said that, in his experience, they were occasionally used rather than commonly used.
Mr Edgar's attention was directed to the averments made at page 7B-C of the Closed Record, 35 of process, concerning the alleged hazard presented by the raised kerb. He said that, prior to his involvement in this case, he would not have agreed with the proposition contained in it, principally because he was not aware of any previous accidents of the kind in question caused by such a kerb. That answer was given speaking generally in relation to any conditions of lighting. He said that lighting conditions would only come into the reckoning, if the raised kerb concerned could not be seen. Asked specifically about the situation at the locus of the accident at sunset, Mr Edgar said that, before he had heard of the accident, he would not have supposed that there would have been a hazard. He said that he had in fact been asked to look at the road in question in twilight and did so on Friday 18 September 1998 when sunset was to occur at 7.23pm. He said that he had spent over an hour at the location from the time of sunset to darkness. He said that he was able to see the kerb through all the conditions of light which he observed. Asked about street lighting, he said that he was not an expert on that matter. He understood that it did not set out to illuminate all the details of a street location, but was intended to show silhouettes and shadows of objects. He agreed that the sodium vapour type of street light took an appreciable period of time to reach the full level of illumination which it produced after being switched on. He said that he had been able to see the kerb in question at ten and twenty minutes after sunset; that was also the position thirty minutes after sunset.
Mr Edgar was asked about the apparent age of the kerb at the locus of the accident. He explained that he had had no involvement in the installation of the raised kerb shown on the photographs 25/1(4) and (5). He expressed the opinion, based on its appearance, that it was not new at the date of the photographs; his estimate was that it was several years old at the time of being photographed. He considered that, had it been relatively new, it would have been lighter in colour than it appeared to be; such objects became discoloured through time with dust and dirt. In relation to the photograph (5), there appeared to be some weathering on the top of the concrete kerb itself. He also considered that the concrete central filling was darker than it would have been, had it been new. Mr Edgar said that records ought to be kept of the construction of such road features as kerbs for a period of six years by a local authority, in a situation in which they had been acting as agents in connection with work on a trunk road on behalf of the Secretary of State for Scotland.
Questioned once more about the reasons for the creation of a raised kerb on the south side of Admiralty Road, Mr Edgar admitted that he had no factual basis for knowing why that kerb was established. He was simply assuming that, following a resurfacing of the carriageway of the road, a decision had been taken on grounds of cost not to raise the level of footpath to bring it above the level of the new carriageway.
Mr Edgar recognised that pedestrians on a footpath might trip over a raised lateral object. He agreed that people did not always look at the pavement when they were walking along it; nevertheless he did not think that the kerb in question was dangerous. He thought that if a person did trip over it, the likelihood would have been that they would have fallen forward in the direction in which they had been walking. He agreed that if a person were to fall into the carriageway of the road, the consequences were potentially fatal, on account of the presence of motor vehicles there. However, he regarded the risk of falling in that direction, having tripped over the kerb, as slight.
Mr Edgar was questioned about the comparative costs of resurfacing the length of footpath in question as opposed to establishing a double kerb along the edge of it. He considered that the resurfacing of the pavement would be more expensive by about £5,000 or £6,000 than the creation of a double kerb running 450 metres or thereby. However, much would depend on the treatment concerned.
Mr Edgar agreed that to find such a kerb alongside a trunk road was very unusual. However, he did not think that it was self-evidently dangerous. He accepted that there existed no guidelines for this particular kind of road detail nationally, so far as he was aware. Having said that, however, he explained that national standards related to the construction of new roads. What was done on existing roads had to take account of local circumstances. In relation to the issue of whether the kerb concerned might be seen in fading light, he agreed that he had known what he was looking for, whereas another person might not have done. He did not think that a member of the public would miss the kerb, even in such conditions, if they were behaving with reasonable care.
Against the foregoing background of evidence on the issue of fault, the submissions of the parties were made. For the pursuer it was argued that the issue was whether the defender ought reasonably to have foreseen that an accident of the kind suffered by the pursuer might happen if a kerb such as that under consideration were constructed. It was submitted that all of the evidence was to the effect that he should. It appeared that the defender had replaced a normal and conventional kerb with what was described as a unique construction on a trunk road for reasons which were unclear, but which might have been related to the costs of different treatments. That had been a positive decision by the defender. What was perfectly clear was that the averment made by the defender at page 11C of the Closed Record, 35 of process, had not been proved. On the basis of the evidence of Mr Brian Foot, an obstacle had been created on the footpath, which had the capacity to thrust a pedestrian into the roadway. It was noteworthy that Sgt Robert Baker had been sufficiently concerned about the significance of the kerb to communicate with the Regional Council concerning it. That was convincing evidence as to what the reaction of the reasonable man might be to the feature in question.
Counsel for the pursuer submitted that, in applying the appropriate test to the circumstances to decide whether the defender had been at fault, it should be borne in mind that the defender was not entitled to assume that pedestrians using the footpath concerned would behave with reasonable care at all times. What the defender had to foresee was that, from time to time, pedestrians might behave in a foolish or careless manner. In that connection reference was made to London Passenger Transport Board v Upson [1949] A.C.155, per Lord Uthwatt, at page 173. That approach was adopted in Berrill v Road Haulage Executive [1952] 2 Ll.L.L.R.490, at page 492. The reasonable man was not bound to foresee every extremity of folly, but was bound to anticipate normal folly on the part of users of the highway.
Consideration of the evidence of Sgt Robert Baker, Mr Brian Foot and Mr John Edgar indicated that, in truth, all these witnesses were at one on essential matters. In particular, Mr Edgar had said that, with the type of construction involved here, there was a small risk of tripping. However, he had been prepared to accept that, if that risk materialised, the consequences could readily be fatal. What it all amounted to was that the defender had created a hazard which had foreseeably fatal consequences. However, there was one respect in which Mr Edgar's evidence was plainly open to criticism. He had said that he would not have appreciated that the raised kerb constituted a hazard prior to the accident, but it transpired from what he had said that he was applying the proposition that pedestrians using the footpath would always exercise reasonable care. That was a wrong approach in law. The carelessness or folly of pedestrians should reasonably be foreseen.
An important feature of the evidence was that it was a matter of agreement that this particular road feature, the raised kerb, did not appear in any manual of guidance for road construction. One had to ask why that was. The answer could well be that it was not recommended because of the hazards associated with it. On behalf of the pursuer counsel argued that the hazard existed in any conditions. However, on the basis of Mr Foot's evidence, the hazard was especially present in conditions of fading light.
It was submitted on behalf of the pursuer that where, as here, the defender had installed a virtually unique feature at the edge of a trunk road, which presented certain hazards, that called for an explanation. It was remarkable that no explanation had been advanced on behalf of the defender in this case. Mr Foot had proffered his thoughts on what the justification might be thought to be, as had Mr Edgar. However, that part of the evidence was little more than speculation. One might have expected that an authoritative explanation would have been advanced by the defender, but that had not happened. Had there been some powerful justification for the construction concerned, that might have made the pursuer's position difficult. However, there was nothing of that kind in the case.
Counsel for the defender submitted that fault had not been established against his client. Two distinct arguments had been advanced against the defender. The first was to the effect that the design of the raised kerb was a general hazard; the second was to the effect that it was a hazard in the particular lighting conditions said to have existed at the time of the accident. The defender's position was that this feature of the road was not a reasonably foreseeable hazard in any conditions.
Dealing first with what he described as the general case, counsel for the defender said that it had been argued that the raised kerb was a unique detail. For this case to succeed, it had to be said that a reasonable road authority would not use this detail. That case was undermined by the evidence of Mr Brian Foot. In paragraph 3.5 of his Report, he disclosed that he had seen this form of construction used in narrow residential streets in council housing estates. Sgt Robert Baker had said that he had not seen such a feature before, in his evidence in chief; however in cross examination, he said that he had seen it since the accident. Mr Edgar had said that the feature was used, though not commonly, in a particular engineering context, namely where the pavement was at or below the level of the carriageway of the road. He considered that it was not economic to raise the level of a footpath. However, it was accepted on behalf of the defender that the purpose of the installation of the raised kerb in the location of the accident was unknown. When he was asked about the matter, Mr Edgar had said that the feature was not dangerous, in his opinion; he was not aware of previous accidents caused by such a feature. Mr Foot had sought to explore that aspect of the matter by asking the questions set out at paragraphs 5.1.8 and 5.1.9 of his Report. However, there were no responses to those questions. Both Sgt Robert Baker and Mr Foot were using hindsight when expressing the view that the feature was hazardous. Paragraphs 2.1 and 2.2 of Mr Foot's Report made that reasonably clear.
Counsel for the defender next turned his attention to the length of time that the raised kerb feature might have been present in Admiralty Road. David Kemp appeared to accept in evidence that the feature might have been present there for some years. However, Mr Foot expressed the view, based on the photographs, that the feature had been present for only a matter of weeks or months before the accident. If the raised kerb had been in situ for a number of years, then the absence of any record of accidents was of increased importance. Mr Edgar indicated that records were normally kept for a period of six years following the modification of road features. He thought that the fact that such records were not available in relation to the raised kerb in question indicated that it had been present for a period in excess of that time. Counsel for the defender accepted that the reasons for the presence of the raised kerb on the south side of Admiralty Road were obscure. In particular it was accepted that there was no engineering reason for not increasing the height of the pavement, as opposed to building a raised kerb. However, if the feature was a hazard on the south side of Admiralty Road, equally, it was a hazard on the north side of the road and should not have been used there. No particular significance was to be attached to the fact that this feature did not appear in design manuals for road purposes. Those manuals were, in general, concerned with the building of new roads. To summarise the defender's position, the evidence showed that this kind of feature was used in certain situations where pedestrians and vehicles intermingled. There was no record of previous accidents and it was therefore reasonable to conclude that no significant hazards were involved. In this respect there was no difference between a trunk road and any other kind of road. There was some evidence that the kerb had been in use in Admiralty Road without accident for a number of years.
Turning to what he described as the twilight case, it was to be observed that it had been added to the pleadings by Minute of Amendment. The defender's submission was that there was no evidence of a reasonably foreseeable hazard presented by the kerb feature in twilight conditions. Mr Foot had been to the locus twice, firstly on 9 September 1995 in light conditions, and secondly, on 11 September 1995 in twilight conditions. On the first occasion the kerb feature was clearly visible, as appeared from paragraph 2.3 of his Report. On the second occasion he said that it was not clearly visible, as appeared from paragraph 2.4 thereof. However, it had to be observed that, even in twilight conditions, the kerb could be seen where the street lighting was particularly strong. Looking at the evidence of Mr Edgar, he had attended at the locus on an occasion at 7.23pm and had remained there until full darkness. He said that he could see the kerb throughout the period of observation. Even if there were difficulties in seeing the kerb in certain conditions, it was not reasonably foreseeable that it presented a hazard. In conclusion, it was submitted on behalf of the defender that the pursuer's accident was unique, on the assumption that it had been proved to have been related to the kerb feature. There was no basis for concluding that a reasonable road authority ought reasonably to have foreseen that feature would be a hazard in any foreseeable conditions.
Before I come to explain my decision in relation to the issue of fault, it is appropriate that I should now record my assessment of the two expert witnesses who gave evidence relevant to that matter. I found the evidence of Mr Brian Foot impressive. As I have narrated, he possesses extensive qualifications and experience in relation to traffic and highway matters. Furthermore, he has been in practice as a consultant engineer in this area since 1975. In addition, I was impressed by the manner in which he gave his evidence, which appeared to be lucid and thoughtful. The results of his factual inquiries and his opinions based upon them were set forth in an attractive manner in his report at 36/4 of process. Mr John Edgar's background was somewhat different. It appeared to be of a more practical nature. His career up to the age of 60 had been spent in local government as a civil engineer, in relation to the areas of activity which I have mentioned, which were not exclusively related to highways and traffic matters. He had entered consultancy only on retirement from his career in local government two years ago. It appeared to me, listening to his evidence, that from time to time, he appeared to be prepared to engage in conjecture relating to a number of matters. In general, I found his evidence less coherent and impressive than that of Mr Foot. For these reasons, where the evidence of these two witnesses varies, and I agree with the submission made by counsel for the pursuer that the variations are not extensive, I would prefer the evidence of Mr Foot.
Proceeding next to address the issue of fault, I consider that the question which arises in relation to the pursuer's case of fault at common law, the basis of his action, is whether the kerb over which I have held that he tripped was a reasonably foreseeable cause of injury to persons using the footpath of Admiralty Road in a manner in which pedestrians may reasonably be expected to behave, in circumstances which may reasonably be expected to occur. In relation to the consideration of this question in the context of this case, I accept the submission of counsel for the pursuer, based upon the observations in London Passenger Transport Board v Upson and Berriel v Road Haulage Executive, to the effect that the reasonable roads authority should not assume that pedestrians using a footpath would, at all times, exercise reasonable care. On the contrary, in my opinion, such an authority requires to foresee that such pedestrians may, from time to time, proceed in a manner which is lacking in that degree of care, although they would not be bound to foresee "every extremity of folly". In this particular respect, I consider that the basis of Mr Edgar's opinion relating to the kerb was flawed; he appeared to me to take as a premise that pedestrians would, at all times, proceed with reasonable care. Accordingly, for these reasons, I consider that the reasonable roads authority ought reasonably to foresee that pedestrians, who may be to some extent under the influence of alcohol, may walk along a footpath without paying close attention to the form of the footpath. Furthermore, in my opinion, the reasonable roads authority ought reasonably to foresee that such pedestrians may proceed in the manner which I have described at a time when the conditions of light are poor, in particular, at twilight or dusk, when street lighting may have only just been switched on and not be possessed of its full effectiveness, since such conditions come into being every twenty four hours. In such circumstances, where the raised kerb in question was hard or impossible to see, I conclude that that kerb was a reasonably foreseeable cause of injury to such pedestrians; in my opinion, it was reasonably foreseeable that they might fail to observe the kerb, trip over it and thus be injured in one way or another, either simply on account of a fall, or by virtue of being thus precipitated into the carriageway of the road, where they would be exposed to the obvious and potentially very serious dangers presented by vehicular traffic. I should explain that I consider that my conclusions in relation to these matters are amply supported by the evidence of Mr Foot and the contents of his Report. In this connection I refer particularly to the contents of paragraph 2.4 thereof. My view in this regard is also confirmed by the approach which Sgt Robert Baker took to the matter. He, although not an expert in highway matters to the same extent as was Mr Foot, was nevertheless sufficiently concerned about the risks apparently presented by the raised kerb to communicate with Fife Regional Council concerning the matter, as he explained in his evidence. Even Mr Edgar appeared to recognise that there was some risk that a pedestrian might trip over the kerb in question, with potentially fatal consequences.
In considering the issue of fault, in my opinion, it would certainly be relevant for the Court to take into account what might be the purpose of some feature of road construction which had come under criticism. If there were substantial justifications for such a feature, then any risks inherent in it might require to be seen as a price to be paid for some evident and substantial benefit. However, no such factor emerges from the evidence in this case. Both Mr Foot and Mr Edgar stated that they could discern no engineering reason for the existence of the raised kerb on the south side of Admiralty Road. Having recognised that, both witnesses then engaged in speculation as to what the reason for its construction might have been. Mr Edgar expressed the opinion that the construction of such a kerb might have been an inexpensive solution to the problem of the need to create a boundary between the carriageway of the road and the footpath, less expensive than the raising of the level of the footpath itself. However, Mr Foot gave evidence to the effect that it would in fact have been cheaper to raise the level of the footpath. Neither of these witnesses was in a position to give definitive evidence about that matter. In that situation, I find myself quite unable to reach a conclusion on the point one way or the other. It therefore follows that I am not prepared to conclude that the interests of economy were seen as the justification for the creation of the raised kerb. I feel bound to observe that I was somewhat surprised that the defender was not in a position to lead authoritative evidence from any witness as to the reasons which had resulted in the construction of the raised kerb in the area of the locus of the accident.
Both expert witnesses agreed in saying that the relevant design manuals for highway features did not include a feature such as the raised kerb under consideration. That circumstance, along with the other evidence in the case, suggests to me that such features are, to say the least of it, a rarity, not possessed of any recognised merit in road construction. While I would not go so far as to say that a reasonable roads authority would never construct a feature which did not appear in a design manual, I do consider that the absence of any recognised design for such a feature militates against the wisdom of constructing it.
A prominent feature of the defender's case was that, so far as the evidence revealed, a feature such as that under consideration had not been shown to have given rise to any accident similar to the present one. It was argued that that circumstance indicated that such an accident was not reasonably foreseeable. In relation to that aspect of the case, I would say two things. Firstly, preferring the evidence of Mr Foot, I conclude that the feature in question on the south side of Admiralty Road had in all probability not been in place for more than a matter of months at most. If that is correct, then that would tend to detract from the force of the argument relied upon by the defender, which I have mentioned, so far as it related to that particular kerb. Secondly, while there was some evidence of the occurrence of such features in certain other locations, although not commonly, in my opinion, the evidence was simply not of such a nature as to inform the Court as to whether those features elsewhere had or had not been productive of accidents in the past of a similar kind to that under consideration here. I do not consider that any witness was in a position, or purported, to give authoritative evidence on that matter. All that any witness could say was that he knew of no such accident. In all of these circumstances, I therefore cannot conclude that the absence of any evidence about previous accidents infers that no such accidents have occurred and so is destructive of the pursuer's case. Furthermore, it is necessary to recognise that the history of the law of reparation demonstrates that a claim, based upon fault, may succeed even though the claimant is unable to show that a previous accident, similar to that upon which the claim is founded, has occurred. In the whole circumstances, therefore, in my judgment the defender was at fault in respect of the construction of the raised kerb in question. I consider that, in the exercise of reasonable care, he had a duty not to construct such a feature in the location in which it was constructed.
The remaining issue which I require to consider is that of contributory negligence. Counsel for the pursuer accepted that there had to be a finding of contributory negligence for two reasons. The first was the state of intoxication of the pursuer. The second was the fact that the pursuer had had a duty to keep a good look out, as alleged by the defender. In connection with the assessment of the level of contributory negligence, counsel for the pursuer referred me to Hendry v Glasgow Corporation 1977 S.L.T.(Notes) 74. It was a case involving a fall on a defective pavement. In that case a finding of 30% contributory negligence against the pedestrian who was the pursuer was made. I was also referred to Ferguson v Strathclyde Regional Council 1981 S.L.T.(Notes) 103. Once again this case was concerned with a fall on account of a defective pavement. The pursuer was found 20% to blame for the accident. In McClafferty v British Telecommunications plc 1987 S.L.T.327, a pedestrian who fell on a pavement on account of a projection therefrom would have been found 50% to blame for the accident, had the defenders been found liable. Counsel for the pursuer also referred, in this connection to Kilminster v Rule (1983) 32 S.A.S.R.39, a case decided in the Supreme Court of South Australia. It concerned the fate of an intoxicated pedestrian who had stepped in front of a car at night and was killed in the ensuing collision. A finding of 35% of the responsibility for blame was made against the deceased. Against this background of authority, counsel for the pursuer submitted that the finding which would be appropriate here would be 331/3%.
Counsel for the defender, in his submissions stated that he accepted that level of contributory negligence, if liability were to be found against the defender. Accordingly, I consider it appropriate to make such a finding.
In the whole circumstances, accordingly, I shall sustain plea-in-law 1 for the pursuer, repel pleas-in-law 1-4 inclusive of the defender, sustain plea-in-law 5 for the defender to the extent of contributory negligence of one-third, and grant decree for the sum of £500,000, being two-thirds of the agreed damages, inclusive of interest to the date of decree. In conformity with paragraph 2 of the Joint Minute and for the purposes of the Social Security (Recovery of Benefits) Act 1997, I find that the agreed sum of damages of £750,000 contains the following: (a) compensation for earnings lost during the relevant period 15 January 1991 to 15 January 1996 of £25,000 inclusive of interest; (b) compensation for the cost of care incurred during that period of £50,000 inclusive of interest; and (c) compensation for loss of mobility during that period of £15,000, inclusive of interest.