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Cite as: [2003] Scotcs 191

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Fraser v. MacIver & Anor [2003] Scotcs 191 (04 July 2003)

OUTER HOUSE, COURT OF SESSION

A1688/01

OPINION OF T.G. COUTTS, Q.C.

Sitting as a Temporary Judge

in the cause

RORY FRASER

Pursuer;

against

ALEXANDER MACIVER AND ANOTHER

Defenders:

________________

Pursuer: McEachran, Q.C., Macdonald; Drummond Miller, W.S.

Defenders: Stacey, Q.C., Drummond; Dundas & Wilson, C.S.

4 July 2003

[1] On 25 January 1995, shortly after 6.00pm, in a collision between the pursuer, a pedestrian, and a vehicle driven by the first defender on the A9 Inverness to Wick road at a point just south of the Cromarty Bridge, the pursuer sustained serious injuries. Damages were agreed, on full liability, at £850,000. It was also agreed that all the injuries sustained by the pursuer were caused by the collision between the pursuer and the first defender's vehicle. I accordingly assoilzied the second defender and awarded taxed expenses against the pursuer in relation to the second defender. It was conceded by Mr McEachran for the pursuer that the pursuer was more than 50% to blame for the accident. The issue accordingly on the facts was whether the defender was to any extent to blame for the accident and if so, what percentage of fault was attributable to him.

[2] The evidence was sparse and in short compass. The pursuer's case concluded at lunchtime on the first day, which caused the defender to be taken by surprise. The defender's evidence, with an early luncheon adjournment, occupied all the second day. Submissions were concluded within two hours on day three. The delay caused by the pursuer's proof finishing early was the subject of some questioning of the defender by counsel who sought an explanation for his absence from attendance, "at his own case". No blame attaches to the first defender personally for that delay. He had been advised by those instructed by his insurers that he would not be required on day one. That was a reasonable view to take on the understanding that the pursuer's proof would take longer than it did. Nonetheless, the defender could well have been in attendance, he being a retired gentleman.

[3] The evidence available to the court some eight years four months from the date of the accident under consideration was scanty. The pursuer who knew nothing of the events, having suffered from post traumatic amnesia from the severe head injury he sustained. It was also plain that the recollection of witnesses, had been to a greater or lesser extent affected by the passage of time. The only eye-witness to the accident was the defender. The defender and the second defender had made statements to the police the day after the events and the giving of these statements was admitted. The defender was a nervous witness. This nervousness was enhanced by his being assailed about his absence from the first day of the proof. The reliability of the recollection of another witness, Mrs Fiona McCaskill, had to be carefully considered as narrated below.

[4] The pursuer returned from his work off-shore on the day of the accident. Prior to his taking the train to Inverness he occupied much time in Aberdeen in consuming a considerable quantity of alcohol. He was met at Inverness station by Gillian Ness with whom he was living at the time, the mother of his son, and her mother, Mrs Ness. They came in Mrs Ness's vehicle. The three adults and the child set off on the journey north with the pursuer in the back seat with his infant son. Disputes occurred on the journey about the location of the child and the pursuer's attempts to remove him from his car seat.

[5] Ultimately the mother stopped at the lay-by just south of Cromarty Bridge where some further altercation ensued. The pursuer lowered the rear window, child locks being in operation, opened the rear near-side door and left the vehicle. The child's mother and grandmother were much concerned over the child's safety and first attended to him. In the meantime the pursuer, in an obvious temper, went round to the back of the car, kicked at it and damaged a rear light. He left the scene heading southwards. Gillian Ness then went to look for him, and after her shouting that she could not see or find him, Mrs Ness decided to go for assistance and, as she put it, "took off" in her vehicle.

[6] A lorry being driven northwards swerved and braked crossing onto the southbound carriageway. That lorry was being followed by the witness Mrs MacAskill in her vehicle. She noticed the lorry breaking and swerving. She then saw a man, the pursuer, in the middle of the northbound carriageway carrying a bag on his back. She said she saw a shape and reacted. There was nothing coming so she swerved across to the southbound carriageway. The man was striding purposefully and as if in a temper; he was marching up the road in the middle of the northbound lane, approaching her vehicle. Her evidence was that if she had not seen the lorry moving she would have hit the man.

[7] Barbara Christopher had also been driving northwards. Having heard about the accident next day she said she contacted the police because she was sympathetic to the driver. Her evidence was that a lorry and two cars had been in front of her at the locus, then herself. She was driving on dipped headlamps. She noticed a car parked on her left, and cars and lorries moving out to overtake. She saw a car in the lay-by. The driver's door was open because she saw the dashboard. She then said that just at her driver's wing a man appeared in the middle of the road moving south carrying a holdall across the back of his neck. She said that by the grace of God she missed the man. In cross-examination she accepted that she had made a statement to the police the next day. She said she could not recall it. She was adamant that she had not swerved, initially. The statement contained in No.32 of process which bore to be an extract from a police notebook, was put to her. In No.32 of process it was recorded that she stated that she swerved right. She said she could not remember doing that, but did say that she probably followed the line of traffic and so did move to the right. She did not recall giving anyone a wide berth, and did not remember saying that she had swerved to the right to the police. She noted that the document 32 of process contained some infelicities of transcription and, it appeared that she had not seen that statement prior to giving evidence.

[8] The defender in court stated that he was travelling at about 55 mph with dipped headlights because of southbound traffic, when he thought that an object came down from the air just above his windscreen. He then put on his brakes. The first and only vision of the pursuer was above the bonnet. He said that he had no opportunity at all to avoid the man and had no chance to think of swerving. There were, he said, people behind him and traffic coming southwards. He drew into the lay-by where Miss Ness came to the near-side of his vehicle screaming that he had killed her boyfriend. He had been in the middle of his own lane in the roadway. He saw the pursuer in between the wheels of a Toyota four wheel drive vehicle which had been behind him, and he pushed that back off the pursuer. The police came to see him the next day and he gave a statement. Collision damage was at the front of his vehicle, a dent in the middle of the front bumper, the windscreen broken towards the near-side and a dent in the front of his roof at that side. In cross-examination he said that he was wearing his glasses for driving. It was a cold night. He did not have the radio on. He had no idea where the pursuer had been on the roadway and he did not see the tail lights of vehicles ahead of him.

[9] His statement, under caution, to the police was noted and admitted to have been:

"At about 6.20pm I was driving my Golf registration number E346 GST from Inverness to Evanton on the A9. I was coming down towards the Cromarty Bridge. I think there was something in front. The road was busy. I couldn't see what was in front - there were cars behind. My headlights were on, I think probably on dip. I was driving with the flow. I'm not a speedster. I was doing about 50 to 55 miles per hour. I didn't notice anything happening in front until about two yards in front as I realised that there was a person. Immediately there was a bang. My windscreen went in. I didn't manage to break (sic) before hitting him. My foot was going from one pedal to another. I don't know if he came from the left or the right. I came to a stop. I was conscious of traffic coming past and from behind. I moved my car into a lay-by on the left. I heard a woman screaming at me. I got out of the car. She was asking where he is 'Where is he?' I went back and saw him well under the pick-up."

[10] The driver of the following Toyota vehicle also gave a statement to the police, the relevant parts of which were:

"About 6pm today I left Inverness driving my boyfriend's Toyota Hi Lux, a K reg, but I don't know the number. I was travelling by myself and heading towards Ardgay on the A9. I was travelling in a line of vehicles with two cars in front of me and many more behind me. As I approached the Cromarty Bridge, we were all travelling between 50 and 60 miles per hour. There was no-one in the line going fast. As I drove onto the bridge, there were several on-coming cars. None of the on-coming cars dazzled me at all. I remember approaching the lay-by on my left. The car in front of me was spaced out so that any car overtaking me would be able to pull in without me braking. I saw something above the car in front. I thought that they had thrown something out of the car. I remember thinking 'My God, what are they doing?' The object came over the passenger side of the car and it came down. I saw something going flying off to my left. I thought it was rubbish or something. I thought that there was a bag on the road in front of me. I braked and as I approached the object on the road I braked harder as I seemed to realise that it was a person lying on the road. I think he was lying with his feet towards me to the left and his head out towards the centre line. I know I stopped but I think my wheels touched the person on the road. The car in front stopped as well. The driver came out of the other car and he came over and said to me that he was going to 'phone the police'. He had a mobile phone. He was in his late fifties. I would know him again. A couple in the car behind stopped and came over to me. They told me that they hadn't seen anything. I saw a woman come walking along the lay-by from my left from the front of the other car ahead of me. I don't know what she had been doing there. I had been driving along in dipped headlights. I remember the pedestrian had blue grey colours but I can't describe him any further. I don't recall seeing anything at all to give me concern as I approached the bridge and I don't remember the vehicle in front swerving or driving erratically. We were just driving normally. The other driver didn't react at all and didn't slow down until the point after I had started braking."

[11] The attending police constable, Alistair Stewart, gave evidence and spoke to the police having taken various photographs. He spoke to statements being taken from the drivers. The procurator fiscal arrived at the scene of the accident and according to Constable Stewart decided not prosecute. The defender's Volkswagen motor vehicle was taken to the garage at Dingwall Police Station and two photographs of its condition were produced. The constable described the damage, but not from recollection, merely from looking at the photographs, confirming that the windscreen had been pushed in onto the near-side passenger seat and that the whole front edge of the roof on the near-side had been pushed in. Probably as a result of the attitude of the fiscal, as above noted, very little evidence was taken and, in particular, the court was not favoured with any evidence, any sketch plan, nor any account of damage to the defender's vehicle from observation made at the time. No blame for that state of affairs could be attached to any party since the fiscal had no interest in acquiring detailed information.

[12] Many hours after the pursuer's departure from Aberdeen when he was being treated in hospital, it was noted that his blood alcohol content was measured at 220 which can be assessed against the statutory limit for driving a vehicle in the Road Traffic Act of 80.

[13] The only expert evidence in relation to the whole matter was led by the defender from Dr Hugh Barron, a physicist and engineer, who gave a report dated 4 August 2000, No.26/10 of process. His conclusion on examining the photograph of the damage to the Volkswagen was that the pursuer had struck the front of the vehicle a glancing blow. The pursuer having come to rest behind the Volkswagen indicated that the Volkswagen had not braked and was not braking at the time of impact. The fact that the pursuer had come to rest just at the wheels of the following car was not inconsistent with this glancing blow. He thought however, that at the speed spoken to the defender would be unlikely, taking into account reaction time, to have been able to bring his vehicle to a halt if he had seen the pursuer at the limit of his headlights. In order to swerve he would require about 21/2 seconds including 1 second reaction time. At 50mph 22 metres are covered in 1 second and he thought that the limit of visibility of dipped headlights would be about 45 to 55 metres. There was no other evidence about the efficiency of the defender's dipped headlights. Dipped headlights, although illuminating the whole of the carriageway on the driver's side, are concentrated towards the verge and an object in the middle of the road would come into view against a dark background fractionally later than one at the verge. He agreed in cross-examination that driving at 55mph with dipped headlights the defender would have been unable to stop within the limits of his vision given his estimate of 45 - 55 metres. The limits of his vision, however, would have allowed for a swerve.

[14] Mr McEachran for the pursuer founded upon various statements and estimates of stopping distances at various speeds in the Highway Code in support of the proposition that the defender was in fact driving too fast or else not keeping a proper lookout.

[15] Mrs Stacey for the defender contended that there was no sufficiency of evidence to indicate that the defender had had an opportunity to see and avoid this drunk man moving either towards him or across his path. If that were so the defender could not be held to be negligent.

[16] Various examples of similar factual situations determined by judges in the Outer House were cited and placed before the court, but since each of these depends on its particular facts, no assistance can be derived from them other than the truism that it is for the pursuer to establish on the balance of probabilities that the defender was negligent.

[17] I have noted that the evidence available to the court was sparse and in some aspects unreliable. On anxious consideration I find that there is present just sufficient evidence on which the court can rely to establish that some fault, by way of failure to keep a proper lookout in the circumstances, was present. As a matter of fact, although by no means intentionally, the defender was probably driving at a speed at which he probably could not stop within the limits of the vision given by his dipped headlamps. No doubt everyone else was travelling at about that speed or even faster than he was, since the defender's vehicle had been overtaken prior to the accident, but a reasonable estimate of his speed can be found from the statement of the second defender who had been travelling at about the same speed as the first defender. She did have enough time, having seen the collision, to halt just prior to causing any further injury to the pursuer. The night was dark. The recollection of the defender of the events has clearly become affected by the passage of time in that his statement to the court differed in one material respect from his contemporaneous statement tot he police. To the police he indicated that he had seen the pursuer, albeit only two yards ahead of him. In court he did not concede even so much.

[18] The question was raised as to where the pursuer had come from given the evidence, which I accept, that he struck the defender's car a glancing blow above the middle of the front bumper. I do not find it possible in the light of her later evidence to rely upon Ms Christopher's evidence in chief about the location of the pursuer at her offside and accordingly I am unable to find any acceptable evidence that the pursuer was other than on the northbound carriageway. If that was so, the defender should have seen the pursuer even if he was very close to the centre of the road and had decided to make for the verge in front of the defender's vehicle. On balance, but only just, I find that the defender failed to keep a proper lookout and drove at a speed which was excessive in the circumstances given the limits of his vision. He disabled himself not only from stopping in time, but also from swerving to avoid the pursuer in the middle of the roadway. Other drivers driving at a similar speed had avoided the pursuer.

[19] That said, the actions of the defender cannot be said to indicate any substantial responsibility for the actual accident, and it was for consideration whether the pursuer himself was not at sole fault in relation to the events.

[20] The pursuer, aggressive under the influence of a substantial quantity of drink, was on any view, proceeding along the middle of the northbound carriageway and probably towards the centre line of it. On a pitch dark night that was crass stupidity explained perhaps by his being drunk. However he was not so drunk as to be incapable of proceeding in a determined manner along the roadway and the fact that he was in a considerable temper is not only spoken to by the eye-witness but also corroborated by his kicking at Mrs Ness's vehicle and breaking a lamp. For some reason he was in a rage contributed to, or exacerbated by, drink. He had absolutely no business or necessity to march along the middle of the roadway and was not so incapable as to make him unable to control his movements. His contribution to the accident was more than that of a man lying incapable in the roadway.

[21] Mr McEachran conceded that the pursuer might be two-thirds to blame for the event. I consider that to be an underestimate. Blame I think can be truly apportioned in a situation just short of sole fault at 90% to the pursuer and 10% to the defender.

[22] I shall accordingly sustain the pursuer's first plea-in-law and grant decree for £85,000 with interest thereon at 8 per centum per annum from the date of decree until payment.