Scottish Court of Session Decisions

In this action the pursuer seeks damages in respect of personal injuries which he suffered in a road accident which took place near to the junction of Spittal Road and Mossgiel Avenue, Rutherglen, on 6 March 1995, when he was struck by a Ford Fiesta car driven by the defender. By agreement between the parties the proof before answer which I heard was concerned only with whether the accident was caused by fault on the part of the defender and, if so, whether the pursuer had also contributed to its occurrence by his own fault. The quantification of the pursuer's loss will fall to be determined later, in the event that I find that the accident was caused to some extent by the fault of the defender.

Spittal Road is a service road which runs parallel to Croftfoot Road, separated from it by a grass verge some four metres wide. At the locus Spittal Road and Croftfoot Road are both aligned approximately south-west to north-east. The carriageway of Spittal Road is some six metres wide. Mossgiel Avenue is aligned approximately north and south, but curves towards the south-east as it joins Spittal Road on its north-west side in a bell mouth which is approximately 20 metres wide. There is a footpath on the north-west side of Spittal Road, but none on the south-east side. Spittal Road is straight for well over 100 metres to the south-west of its junction with Mossgiel Avenue. Over that distance it slopes downward towards the junction, levelling out from a slope of 9% at the top of the hill to one of 3.3% at the junction. Spittal Road is now subject to an advisory speed limit of 20 m.p.h., denoted by white roundels containing the numeral "20" marked on the surface of the road at intervals along its length, but those markings were not present at the time of the accident. The locus is illustrated in a series of ten photographs (No. 18/1 of process) taken by the pursuer's expert witness, Dr Searle, in November 1998 and a set of eleven photographs (No. 24/5 of process) taken by the defender's expert witness, Mr Shellshear, in August 1999, as well as in a scale drawing prepared on an Ordnance Survey base supplemented by a survey undertaken by Dr Searle (No. 18/3 of process) and in Plans A and B appended to Mr Shellshear's report (No. 24/4 of process). The junction of Spittal Road and Mossgiel Avenue, viewed from the south-west, is shown in the foreground of photograph 3 of No. 18/1 of process. For the purpose of providing a scale for his photographs, Dr Searle took as his datum a line drawn at right angles to the kerb of Spittal Road through the trunk of the tree closest to the right hand margin of his photograph 3, placed the red and white traffic cone marked "4" on the verge at that point, and set the other cones seen in his photographs at successive intervals of 30 metres from the datum line. As it happens, the datum line is also close to (albeit not precisely through) the centre of the bell mouth of Mossgiel Avenue. The small footpath that can be seen crossing the grass verge in photograph 4 of No. 18/1 is approximately 19 to 20 metres from the base line.

It is common ground that at about 8.45 or 8.50 p.m. on the day of the accident the defender was driving her Ford Fiesta car north-east in Spittal Road. She was driving from her home in nearby Lochlea Road, and had joined Spittal Road at its junction with Kyle Square some distance to the south-west of the locus. She was driving to her place of work, which was a factory situated just south of the River Clyde at Dalmarnock Bridge. She was due to start work at 9.00 p.m. Snow had been falling for about an hour, and was lying on the surface of the roadway to a depth which was variously estimated in the evidence at between one and three inches. The pursuer, who was then aged fifteen years and three months, and some six other boys were playing in the snow in the vicinity of Mossgiel Avenue. The pursuer ran from the mouth of Mossgiel Avenue across Spittal Road, and was struck by the defender's car. As a result, he suffered injuries which were agreed, for the purposes of this stage of the case, as including a small right frontal extradural haematoma with an underlying contusion of the right frontal lobe of the brain, a possible fracture of the acromion bone in his right shoulder, a laceration of the right forehead, bruising around the right eye and swelling of both cheeks.

The case of fault made by the pursuer against the defender is that she was travelling at a speed which was excessive in the circumstances, and failed to keep a proper look out. A case of contributory negligence is made against the defender on the basis that he ran out into the roadway without looking to see if it was safe to do so.

The pursuer himself has no recollection of the accident or the period immediately before it occurred. Eye witness evidence was given by five of the other six boys who were present at the time, namely Federico Martone (now aged 19), his cousin Craig Douglas (now 20), Ross McDermott (now 17), John Paul McInarlin (now 16), and David McInarlin (also now 16). The sixth other boy was Federico Martone's younger brother, but he did not give evidence. Evidence was also given by the pursuer's father, who said he had been clearing snow from around his car a little further down Spittal Road, and was called to the scene of the accident after it happened, and P.C. Martin Adams, who was one of the two police officers who attended at the scene. The defender, too, was called as a witness for the pursuer, and gave her account of what happened. Expert evidence designed to reconstruct the accident from such factual evidence as was available was given by Dr Searle for the pursuer, and by Mr Lawrence and Mr Shellshear for the defender.

Considering the period of time that has elapsed since the accident, and the fact that some of them were as young as eleven at the time, the accounts given by the five boys impressed me as remarkably coherent. They all appeared to me to be truthful witnesses, doing their best to give an accurate account of what they did and saw. Understandably, some had a clearer recollection of detail than others, but it did not seem to me that any of them was guilty of speculation or rationalisation. Where they had difficulty in recalling a detail, they said so. They did not make any attempt to minimise the pursuer's own share of responsibility for the accident. Nor, for that matter, did those of them who had run blindly across the road attempt to conceal that they had done so, or that they had acted foolishly. It appears that at the time of the accident Craig Douglas (who lived in Mossgiel Avenue) and his cousins, the Martone brothers (who did not live in the vicinity but were visiting him), formed one group and the pursuer, Ross McDermott and the two McInarlin boys (all of whom lived in the vicinity) formed another group. They had all been throwing snowballs, and there was some evidence, which I see no reason to reject, that the former group had been chasing the pursuer's group immediately before the accident happened. It is clear that they all ran down Mossgiel Avenue towards Spittal Road. It is clear that none of Craig Douglas's group left Mossgiel Avenue, but that all of the pursuer's group set off across Spittal Road. It is also, in my view, clear that Ross McDermot was in the lead, followed by the McInarlin boys and with the pursuer bringing up the rear. There was no real dispute among the boys who gave evidence about that order. Federico Martone was particularly well placed to observe the movements of the members of the pursuer's group. He described that group running across Spittal Road towards the grass verge and the last boy (the pursuer) being struck by the car, the others having reached the verge and indeed gone on to the other side of Croftfoot Road. He was himself about five or six metres behind the pursuer, with Craig Douglas, and his brother was behind him. In cross examination he confirmed that the pursuer was behind the other members of his group. Craig Douglas observed the accident from a similar position. He too described the group running out into Spittal Road, Ross McDermott and the McInarlin boys being ahead of the pursuer. He put the pursuer about two metres behind the others. The other three reached the grass verge but the pursuer was struck by the car. He had himself been following the pursuer quite closely - he estimated that he had been only about a metre away. Ross McDermott described the pursuer's group being chased down Mossgiel Avenue by the other group. He was at the front, and ran straight across Spittal Road without looking, crossed the grass verge then continued across Croftfoot Road to a position just to the right of the gate of his house (the white bungalow shown in photograph 5 of No. 18/1 of process). He had reached the pavement by that gate before he looked back, and when he did so he saw the pursuer "coming off the car onto the road". He could not recall whether he looked round because of the sound of the collision, or simply to see where the others were. He was sure that he did not look round until he reached the far footpath of Croftfoot Road. He did not look round while he was running. At that stage John Paul McInarlin was on the grass verge, and he could not remember where David McInarlin was. John Paul McInarlin spoke of the pursuer's group being chased in Mossgiel Avenue by Craig Douglas and his cousins. Ross McDermott and David McInarlin were ahead of him and the pursuer. At Spittal Road, he turned towards his right and the pursuer "went the other way" (by which I understood him to mean that the pursuer veered somewha

The defender's evidence about the order and manner in which the boys ran across Spittal Road was different. She said that a group of boys ran straight out in front of her. There were about six in the group. The boy who was struck was at the front of the group. They were clustered together. She saw no boys crossing Spittal Road ahead of the cluster. P.C. Adams gave evidence that when he spoke to the defender after the accident the account which she gave to him was that the boy whom she hit was at the rear of the group. When that evidence was put to her, the defenders denied saying that to the police officer, and maintained that she had told him that she struck the boy at the front of the group. Although I am inclined to think that it is likely that P.C. Adams is correct about what the defender said to him, since he said that he noted it at the time, I do not rely principally on that point in rejecting the defenders' description of the way in which the group of boys ran out and the position of the pursuer in the group. I reject that part of the defender's evidence because it is impossible to reconcile it with the coherent body of evidence given by the five boys who were called as witnesses, which I accept.

None of the boys offered any direct evidence about the speed at which the defender's car was travelling at or immediately before the impact. On Record it is averred on the defender's behalf that she was travelling at approximately 15 m.p.h. In her evidence the defender said that her speed, before she braked, was between ten and 15 m.p.h. She said that she had noticed as she got into the car that the snow was loose and slippery on the ground. She was being particularly careful because of the weather conditions. She was driving in second gear, so that the car would not gather speed on the slope in Spittal Road. She accepted that a speed of more than 15 m.p.h. would probably have been too fast at the locus in the prevailing weather conditions. It was suggested to her, by reference to the summary of her statements set out in Appendix 1 to Mr Shellshear's report (No. 24/4 of process) that she had previously mentioned "travelling at around 25 m.p.h but on reflection doubted if it was more than 20 m.p.h.". She said that she did not recall mentioning 25 m.p.h., but remembered saying that it was definitely not more than 20 m.p.h. It was suggested to her that she had left home too late to have sufficient time in the weather conditions to reach her workplace (a journey which normally took ten minutes) in time for the start of her shift at 9 p.m. She accepted that she did not know if she would have got to work in time, but denied that she was travelling too fast on that account. She said that she braked as soon as she first saw the boys, and was braking before she hit the pursuer. That was consistent with evidence given by Federico Martone that the car started to brake just before it hit the pursuer, and by Craig Douglas that it began to skid before it hit the pursuer. I accept the defender's evidence that she was not hurrying because she was late for work. I do not consider, however, that I can treat her estimate of her speed before she began to brake as reliable. Whether or not it be right (as Mr Shellshear understood from the material made available to him and summarised in Appendix 1 to his report) that she at one stage estimated her speed at about 25 m.p.h., she acknowledged that she had mentioned 20 m.p.h., her pleadings mention 15 m.p.h. and in evidence she brought her estimate down to between ten and 15 m.p.h. That seems to me to reflect a process of rationalisation which is entirely understandable, but undermines the reliability of the latest estimate. On the other hand, I do accept the defender's evidence (supported by Federico Martone and Craig Douglas, the two eye witnesses who were in a position to observe the car immediately before the collision) that she was braking before the impact took place. That yields the inference that, whatever her speed before she saw the boys, her speed at impact was less.

A body of expert evidence was presented which was designed to enable an inference to be drawn about the speed of the defender's car at impact from the position of the impact damage on the windscreen of the car. That evidence proceeded on the assumption (which both Dr Searle and Mr Lawrence accepted, and which I therefore consider it appropriate likewise to accept) that the damage to the windscreen of the car was caused by its being struck by the pursuer's head. Before turning to the expert evidence about the inferences that may be drawn about the car's speed according to the position of the impact, it is necessary to consider what the evidence establishes about the damage done to car in the accident. It is clear that the windscreen was broken, but there was some variation in the evidence about the position of the centre of the damage. The police report (No. 24/1 of process) simply records: "Damage - Extensive to windscreen". P.C. Adams said in evidence that there was an indentation in the shattered area of the windscreen, slightly to the left of the driver's position and in the lower part of the windscreen. The defender put the damage on the driver's side of the car but towards the centre. She said that there was a hole about 2-21/2 inches in diameter, where some pieces of glass had fallen into the car. The centre of the damage was just above half way up the windscreen. I am inclined to think that the defender may, from her point of view, have placed the damage somewhat higher than it actually was. I have no difficulty in accepting that the point of impact was on the face of the windscreen to the driver's left, but prefer P.C. Adams' evidence that it was in the lower half. The defender said that there was no other damage to the car. The pursuer's father described a dent running across the bonnet at an angle of 45° and damage to the bodywork surrounding the windscreen at the top on the driver's side, but neither counsel suggested that I should regard that evidence as reliable, and I do not do so. Although there was no reference to other damage in the police report, P.C. Adams said that there was a dent on the front of the bonnet just beside the offside headlight, which he took to be a point of impact, but I find it difficult to reconcile that evidence with the position of the windscreen damage. For the purpose of the expert evidence it is sufficient for me to make a finding that the damage to the windscreen was centred just to the driver's left and probably in the lower half of the windscreen.

Dr Searle expressed the opinion that it was unlikely, given the damage to the windscreen, that the defender's car was travelling at 15 m.p.h. He based his opinion on research done by a Dr Ashton, who was the author of the chapter in "Pedestrian Accidents" (Chapman et al, Wiley, 1982) an extract of which formed No. 19/3 of process. In paragraph 8.2 of his report (No. 21/1 of process) Dr Searle put the point in the following terms:

Dr Searle then reproduces figure 6.14 from No. 19/3 of process, which does indeed show diagramatically the routes followed by the head of a pedestrian struck at 20 and 50 k.p.h. respectively, leading in the first case to the middle of the bonnet and in the second to the bottom of the windscreen. He then continues, in paragraph 8.3:

Before giving evidence, Dr Searle measured the pursuer and found that he was 5 feet 81/2 inches in height. He estimated that at 15 he would have been about 2 inches less. The height assumed in the passage which I have quoted from his report therefore appears unlikely to be far wrong. Dr Searle, drawing on the sources mentioned, explained that at a speed of 15 m.p.h. there would be "negative slip". By that he meant that the pedestrian's head would strike the bonnet at a point nearer the front of the car than the point which was the same distance up the bonnet (measuring from the ground, up the front and then along the top of the bonnet) as the part of the pedestrian's head that struck the car would be above the ground when he was standing upright. At higher speeds, there would be "positive slip", and the pedestrian's head would strike the bonnet or windscreen further up than the point corresponding to his height. He confirmed that his conclusion from the location of the impact on the windscreen was that the speed of the defender's car had been at least 25 m.p.h., and probably as much as 30 m.p.h.

Mr Lawrence of the Transport Research Laboratory, who gave evidence on this aspect of the case for the defender, measured the "wrap around" distance (i.e. the distance from the ground in front of the vehicle, up the front and along the top of the bonnet, to the bottom edge of the windscreen) of a Ford Fiesta of the type driven by the defender at 1.73m, measuring at the centre line of the car, or 1.76m, measuring in line with the centre of the offside headlamp. He indicated that he had not seen any research quantifying slip distances, but suggested that, given the pursuer's height of about 1.7m and the Fiesta's wrap around distance, only minimal slip was necessary to bring the pursuer's head into contact with the windscreen. In his report (no. 24/3 of process) he expressed the opinion that the Fiesta need not have been travelling at more than 15 m.p.h. at impact to bring the pursuer's head into contact with the windscreen. In evidence he went so far as to say that at 15 m.p.h. it was very likely that the pursuer's head would have damaged the windscreen. In cross examination he pointed out that in such an impact there were unquantifiable elements, which meant that the estimation of speed from point of impact could not be precise. He said that the damage which had occurred was, in his view, consistent with a speed of 15 m.p.h. ± 7. He also said, however, that he had carried out a large number of tests at 25 m.p.h. with cars similar to the Fiesta, and in these cases the damage had on the whole been near the middle of the windscreen. In such circumstances, however, he would expect to see distinct damage to the leading edge of the bonnet, although he accepted that a lightly built person like the pursuer would be less likely to cause such damage than the 75kg dummies used in the tests.

In my opinion the material relied upon by Dr Searle does not fully bear out the conclusions he sought to draw from it. In the first place, it seems to me that what he said in paragraph 8.2 of his report drew more from figure 6.14 in No. 19/3 of process than from anything said in the text of that work. In my view, however, the purpose of that figure is merely to illustrate graphically that the head will strike the bonnet further forward at 20 k.p.h. than at 50 k.p.h. - as the caption puts it "Change in location of head impact on vehicle with impact speed". There appears to me to be nothing to justify the conclusion that it is meant to illustrate actual positions of impact for actual speeds. The text in 19/3 of process puts the point in general terms as follows:

The first sentence of paragraph 8.3 of Dr Searle's report seems to divorce the figures given from the fact (which can be seen from No. 19/4 of process at page 68) that they relate to a very much larger car (a 1985 Chevrolet Celebrity with a bumper to bottom of windscreen length of 52 inches) and a pedestrian who was 66 inches tall. Dr Searle goes on to acknowledge that the relationship between head impact point and speed depends on the relative sizes of the pedestrian and the car. He notes that the Fiesta is a compact car. He appears, however, to fail to appreciate that the pursuer, at say 5 feet 61/2 inches at the time, was in fact fractionally taller than the pedestrian referred to in No. 19/4 of process. It is therefore wrong to conclude (as Dr Searle does) that the fact that the Fiesta is smaller is cancelled out by the pursuer also being smaller. These points do not seem to me to undermine Dr Searle's thesis, with which Mr Lawrence did not disagree, that the impact point will be higher up the bonnet or windscreen of the car the higher the impact speed, but they do in my view render unreliable the precise inference about speed which Dr Searle sought to draw. I am prepared to accept Mr Lawrence's conclusion that the impact position does not rule out a speed as low as 15 m.p.h. In light of what Mr Lawrence said about his test experience of mid-windscreen damage resulting at 25 m.p.h., however, I am of opinion that the balance of probabilities favours an impact speed of more than 15 m.p.h. Given the evidence which I have accepted that the defender had begun to brake before impact, I am of opinion that the position of the impact point weighs heavily against the acceptability of her evidence that before braking she was travelling at only between ten and 15 m.p.h.

Dr Searle and Mr Shellshear both gave evidence about the distance that a pedestrian would be likely to be thrown by an impact at various speeds. On the basis of that evidence it is possible to draw an inference about the speed of the car at impact, provided there is evidence to show the point at which the car struck the pedestrian and the position to which the pedestrian was thrown in the accident. The experts also gave evidence about the distance taken by a car to stop at various speeds. On that basis an inference may be drawn about the speed of the car, provided there is evidence to show where the car came to a halt and where it was either when the defender first perceived a need to stop or when the defender began to apply the brakes.

Mr Futter described where he found the pursuer lying by reference to photograph 4 in No. 18/1. He said that the pursuer was beside the verge at about where the cone (cone 5) is in the photograph. That did not, however, fit with where Mr Futter said he had himself been before the accident and the direction in which he ran to reach the pursuer. In cross examination he said that he was not very sure about the pursuer's position. I am of opinion that Mr Futter was, understandably, unreliable on this point. His concern at the time cannot have been to note accurately where the pursuer was lying. P.C. Adam was able to give an account of where he found the pursuer when he arrived on the scene. He identified the pursuer's position by reference to photograph 8 of No. 18/1 of process. He pointed to the footpath across the verge (signified by the line of kerbstones crossing the grass) and placed the pursuer about an inch (on the photograph) above the footpath. He estimated the actual distance of the point where the pursuer was lying from the path at about six feet. He was lying with his head towards the kerb and the rest of his body in the roadway. Although it was at least ten minutes after the accident before P.C. Adam arrived, and although both he and Mr Futter spoke of the pursuer trying to move, I am inclined to accept P.C. Adam's evidence about the pursuer's position as indicative of the position in which he landed after the collision. P.C. Adam's evidence on that point was supported by the evidence of David McInarlin. He said that the pursuer was near the footpath in photograph 4, to the right side of it. He confirmed that his head was closest to the verge. No other witness identified the position in which the pursuer came to rest. My view is that the evidence shows that the pursuer came to rest lying with his head towards the verge at a point about two metres to the south west of the point where the footpath crosses the grass verge, i.e. at about the point where the darker and lighter patches of road surface meet in photographs 4 and 8.

The point of impact between the car and the pursuer was described in a number of ways. According to Mr Shellshear, the defender at his request placed her car at the point of impact as she recalled it, and that position is shown in photograph 11 of No. 24/5 of process and in Plan A attached to his report (No. 24/4 of process). That position had the front of the car approximately in line with the extension of the pavement on the west side of Mossgiel Avenue. In evidence, however, the defender said that that was not accurate. She put the point of impact half way into the junction with Mossgiel Avenue, or one car's length further on than shown in Plan A. Federico Martone put the point of impact between the 20 m.p.h. roundel immediately to the south west of the junction and cone 4, i.e. somewhere into the junction but before its mid point. According to Craig Douglas, the pursuer ran out from the middle of the carriageway of Mossgiel Avenue and was struck by the car level with cone 4. The car had passed the start of the junction before the collision. My conclusion is that the impact probably took place when the bonnet of the car was at the most half way across the junction.

From these findings, and the measurements provided by Dr Searle, it is in my view possible to conclude that the pursuer's final position was of the order of at least 16 or 17 metres beyond the point of impact. According to both Dr Searle and Mr Shellshear, a pedestrian struck at 15 m.p.h. would be thrown approximately ten metres. Dr Searle calculated that for a speed of 25 m.p.h. the pedestrian would be thrown 20 metres. Mr Shellshear calculated that if the pursuer was thrown 16 metres, the car's speed at impact would be about 18.5 m.p.h. The inference that these figures yield is that if the impact point and the resultant position have been correctly identified, the car's speed at impact was in excess of 15 m.p.h. If allowance is then made for the finding that the defender began to brake before impact, the inference is that before braking the defender was probably travelling at a speed in the region of at least 20 m.p.h.

Turning to the resulting position of the car, the evidence is in my view less clear. Mr Futter put the stopped position of the defender's car to the right of the 20 m.p.h. roundel in photograph 4 pointing outwards slightly, but he said that the car was subsequently moved by the police. P.C. Adam, however, had the car parked at the kerb with its rear end past the 20 m.p.h. roundel, and he denied that the police moved the car. Federico Martone said that the car stopped with its mid point level with cone 4. According to the defender the car came to a halt a little past the 20 m.p.h roundel in photograph 4. On that material I do not consider that a reliable finding can be made about the resulting position of the car. The matter is rendered even more difficult by the need to adjust the estimated stopping distance for any given speed to allow for a reduced retardation rate on account of the presence of snow on the road surface. Dr Searle made calculations based on a retardation rate of 0.25g, while Mr Shellshear set out in Appendix 2 to his report tables for retardation rates of 0.20g and 0.30g. It seems to me, however, that the uncertainties as to the position of the car and the effect of the snow on stopping distances are such that it would be quite misleading to regard any calculation of speed based on the resulting position of the car as reliable.

The defender maintained in evidence that her view of the mouth of Mossgiel Avenue was materially restricted by a parked car and by some bushes growing in the garden in the south-west angle of the junction (see for example photograph 8 in No. 24/5 of process). Leaving aside for the moment the effect of the bushes, the extent to which the defender's field of vision was limited depends on the precise position in which the car closest to the junction was parked at the time of the accident. Mr Shellshear gave evidence that when he inspected the locus there was a car parked in the position shown to the left of photograph 4 of No. 24/5 of process, and the defender told him that there was a car similarly parked at the time of the accident. That photograph shows the effect of a car parked in that position on the view of the mouth of Mossgiel Avenue available to a driver travelling north-east in Spittal Road. The effect is also shown in Plan B appended to No. 24/4 of process. What that plan shows, as explained by Mr Shellshear, is based on the assumption that the impact happened at the place indicated, i.e. with a pedestrian who ran into Spittal Road from the south-west pavement of Mossgiel Avenue. On that basis the pedestrian would emerge into the clear sight of the driver at about the extended line of the north-west kerb of Spittal Road, if the car was about 16 metres before Mr Shellshear's notional point of impact. In evidence P.C. Adam said that the nearest car to the junction was about 20 yards away, which would have put it approximately where the nearest car is in photograph 6 of 18/1 of process. If that was so, the effect on the defender's field of vision would have been much less, but I do not consider that it would be appropriate to treat P.C. Adam's estimate (he did not make any measurement at the time) as reliable enough to form the basis of a calculation. In the event, I do not consider that an assessment of whether the defender was keeping a good lookout need be periled on the extent to which her field of vision was impaired by the parked car. A fortiori, I do not consider that the matter turns at all on the effect of the presence of the bushes in the garden to the west of the junction.

It seems to me that the matter which casts clearer light on whether the defender was keeping a proper lookout is the position occupied by the pursuer in the group of boys who ran across Spittal Road. Her evidence that she had no time to avoid the pursuer was given in the context of his being at the head of a tight cluster of boys which emerged suddenly into her path. But if, as I have found proved, the pursuer was last of a group of four, the other three crossed the road ahead of him, and Ross McDermott reached, or almost reached, the far footpath of Croftfoot Road before the car struck the pursuer, the position is rather different. Evidence was led about the time that Ross McDermott must have taken to reach the position from which he turned and saw the pursuer "coming off the car". Measuring from the middle of the bell mouth of the junction, he had run some 42 metres. Mr Shellshear gave evidence (in paragraph 11.4 of No. 24/4 of process) based on research by Jerry Eubanks (No. 24/2 of process) that the average speed of a boy of fifteen running as fast as he could would be about 4.4 m/sec. Dr Searle criticised that on the basis that in the circumstances, particularly the weather conditions, he would not be running as fast as under test conditions. Mr Shellshear readily accepted that, and gave in evidence alternative figures based on a speed of 3.5 m/sec. At the former speed, Ross McDermott would have taken about 9.5 seconds to run the distance mentioned. At the latter speed the time would have been 12.5 seconds. In that time, a car travelling at 15 m.p.h. would cover between 63 and 84 metres, and one travelling at 25 m.p.h. would cover between 106 and 140 metres. On the figures given in Appendix 2 to No. 24/4 of process, the stopping distance (including reaction distance) for a car travelling at 15 m.p.h. would be between 14.3 and 18.2 metres, and for a car travelling at 25 m.p.h. would be between 32.4 and 43 metres. On these figures it seems clear to me that if the defender had seen Ross McDermott crossing Spittal Road, she would have had more than enough time, even assuming that her field of vision was impaired by a parked car in the way assumed in Mr Shellshear's evidence, to see and react to his presence in time to avoid coming into collision with the pursuer.

One other aspect of the defender's ability to keep a good lookout was touched upon in evidence. It was suggested that her view might have been impaired by the presence of snow on that part of her windscreen not cleared by her windscreen wipers. In my view, however, it is clear that there is no significance in that suggestion. As was pointed out by Dr Searle by reference to photograph 10 in No. 18/1 of process, she would have had no occasion to need to see through the part of the windscreen that might have been obscured by snow.

For the reasons which I have already discussed, I reject the defender's evidence that she was travelling at between ten and fifteen m.p.h. before she braked. My conclusion, based partly on the inference which I consider it appropriate to draw from the evidence of the location of the damage to the windscreen and partly on the inference which I consider it appropriate to draw from my finding as to the distance that the pursuer was thrown on impact, is that the defender was probably travelling at 20 m.p.h. or more before she began braking.

Dr Searle was at some pains to avoid trespassing on the province of the court by expressing a view about what would have been a safe speed for the defender in the circumstances. He drew attention, however, to the fact that the Local Authority had subsequently seen fit to impose the advisory speed of 20 m.p.h., and to the additional consideration of the weather conditions at the time of the accident. As he pointed out, it was from the defender's left hand side, where there were cars parked along the side of the road, that the greater risk of a sudden emergency presented itself. Mr Shellshear, in my view realistically, recognised that the imposition of the advisory speed limit did not necessarily yield the inference that it would be negligent in all circumstances to drive at more than 20 m.p.h. at the locus. But in my view the snowy conditions had a material bearing on the speed at which it was safe for the defender to drive. I do not attach very much weight to the defender's concession in evidence that it was probably unsafe to drive at more than 15 m.p.h., because that concession was made in the context of her evidence that she was driving at less than that speed. It is, however, in my view impossible wholly to divorce the question of speed from the question of lookout. Given the time for which, if she had been keeping a good lookout, the presence of boys running about on the road would have been obvious to her, i.e. from when Ross McDermott first ran into Spittal Road from Mossgiel Avenue, I am of opinion that it was negligent on the part of the defender to be travelling at a speed in the region of 20 m.p.h. immediately before she braked in an attempt to avoid hitting the pursuer. In other words, I am of opinion that the combination of (i) the nature of Spittal Street, which was no different at the time of the accident from when the advisory speed limit was subsequently imposed, (ii) the snowy conditions, and (iii) the presence of Ross McDermott and the others who followed him across the road, ought to have led the defender, if she had been driving with reasonable care, to be travelling more slowly than she was when she braked to avoid the pursuer.

The matter can, in my view, be addressed separately as a question of the maintenance of a proper lookout. Even if she was travelling at a speed of 25 m.p.h., the sight of Ross McDermott running across Spittal Road ought, in my view, to have alerted the defender to the possibility that others would follow him in time to enable her, if she was keeping a proper lookout, to avoid striking the fourth boy to run out. There was not a clear gap between Ross McDermott and the pursuer. The McInarlin boys ran across Spittal Road between Ross McDermott and the pursuer. The conclusion that the defender struck the pursuer because she was not keeping a proper lookout is, in my view, inescapable on the findings in fact which I have made.

I am therefore of opinion that both aspects of the case of fault alleged against the defender have been made out in evidence.

It is in my view clear beyond dispute that the pursuer contributed materially to the occurrence of the accident by running out into the road, without looking to see whether it was safe to do so, and when it was in fact not safe to do so.

Miss O'Brien, for the pursuer, did not dispute that there was some fault on the pursuer's behalf, but argued that his share of the blame was small. She reminded me that in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945 the question is the extent to which the court thinks it just and equitable to reduce the pursuer's damages having regard to his share in the responsibility for the damage which he suffered. She cited Gough v Thorne [1966] 3 All ER 398 and Andrews v Freeborough [1967] 1 QB 1, but both of those cases were concerned with younger children and very different circumstances. Miss O'Brien sought to rely on the approach adopted by Lord Denning MR in Gough v Thorne at 399I when he asked the question: "What more could you expect the child to do ...?" I do not consider that it is helpful to divorce that question from the factual context in which Lord Denning asked it. If, however, it is the appropriate question to ask, the answer in the case of a fifteen year old boy is, in my view, that you could expect him to know that it was dangerous to run into the roadway without looking to see if it was safe to do so, particularly in weather conditions which made it less easy than usual for a car to stop in response to a sudden emergency. Miss O'Brien suggested, as points in the pursuer's favour, that many boys of fifteen would have done the same, that he was caught up in the excitement of the game, that the game had begun in a quiet residential cul-de-sac and the road into which he emerged was also a quiet residential street, that the police evidence showed that the effect of the weather conditions had been to slow traffic down in general, and that he had seen Ross McDermott run across both Spittal Road and the main road in front of him. I am content to take all of these considerations into account. Miss O'Brien's submission was that the pursuer's contributory negligence should be assessed at between 30% and 50%.

Mr Thomson, for the defender, submitted that the pursuer's share of responsibility for the accident should be assessed at between 75% and 90%. As an illustration he cited Foskett v Mistry [1984] RTR 1 (albeit with some diffidence, since it contains a dictum by Sir John Donaldson MR (at 4A-B) deprecating the use of authorities in such cases). In that case the plaintiff, aged 161/2, ran down sloping parkland, across a footpath, and out into the road where he collided with the side of the defendant's car. The defendant was held to have been negligent in failing to see the plaintiff running down the slope and failing to appreciate that he was a potential danger to traffic. The plaintiff's contributory negligence was assessed at 75%.

In my view the pursuer's failure to take care for his own safety was quite blatant. Even taking into account the considerations founded upon by Miss O'Brien, I am of opinion that at his age he must be held to be capable of taking proper care for his own safety in a matter so elementary as not running into the roadway without looking. If I had held that the defender's only failure in reasonable care had been to drive a little too fast for the nature of the road and the weather conditions, I would have put the pursuer's share of responsibility at a very high proportion. Having held, however, that she failed in her duty to keep a proper lookout to the extent of either failing to see Ross McDermott at all or alternatively failing to appreciate that his passage across the road might signal the presence of others disposed to behave similarly, I take the view that the balance tilts somewhat against her. In all the circumstances, I consider that the pursuer's share of responsibility should be assessed at 60%.

In these circumstances I shall sustain the pursuer's first plea-in-law, repel the defender's third and fourth pleas-in-law, sustain the defender's fifth plea-in-law and find that any damages awarded to the pursuer should be reduced by 60% in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945, and continue the cause for further proof before answer in respect of quantum of the pursuer's claim for damages. I shall in the meantime reserve any question of expenses.