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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> King v. Neilson & Anor [2006] ScotCS CSOH_108 (12 July 2006)
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Cite as: [2006] CSOH 108, [2006] ScotCS CSOH_108
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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 108

 

A1211/03

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LADY SMITH

 

in the cause

 

CHRISTOPHER KING

 

Pursuer;

 

against

 

IAN NEILSON and CAROL NEILSON the partners in the Firm of KINNEIL COACHES and OTHERS

 

Defenders:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuer; McEachran, QC, McDonald; Lefevre Litigation

Second Defenders: Mitchell, QC, Milligan; Ledingham Chalmers

 

12 July 2006

Introduction

[1] The pursuer, whose date of birth was 2 September 1982 and is now aged 23 years, played football with the Linkup Football Club, when he was a child. That club was run by the second defenders. From time to time , they organised outings for football team members. One such outing took place on 10 June 1995, when the pursuer was 12 years old. The boys were taken to Aberdeen to go swimming and to visit a leisure centre known as Codonas. They met in Fraserburgh, at the premises used by the second defenders and were taken to Aberdeen in a 29 seater minibus supplied and driven by an employee of the first defenders (against whom the action is no longer directed). They returned in the early evening. The pursuer lived in Lonmay, a village south of Fraserburgh, and the minibus stopped there to drop him off. He was knocked down when crossing the road after having got off the minibus and sustained injuries. Quantum was agreed at ฃ300,000.

[2] The case came before me for proof at which liability was in issue. In the event of liability being established, it was accepted on behalf of the pursuer that he had been contributorily negligent.

 

Background

[3] Much of the relevant background facts were not a matter of dispute. The following narrative indicates the background evidence that I accepted and which was relevant to the issues between parties. As at June 1995, the pursuer was coming to the end of his first year as a pupil at Fraserburgh Academy. When at school, he was allowed out at lunchtime. He crossed roads in Fraserburgh without supervision. By that stage, he would not have expected to be supervised crossing the road. He had previously attended Crimond Primary School, having lived in Lonmay since he was about 8 years old. Lonmay is a small village situated on and around the A952 road. It is a road which is subject to the national speed limit. There are no speed restrictions in the village. The pursuer's home was and is situated up a side road but it can be seen clearly from one stretch of the main road.

[4] He travelled to school in Fraserburgh by bus. To catch the bus to school, he had to cross the A952 each morning from the junction between it and the side road where his house was. He did so without adult supervision. Although usually in the company of friends and/or his sister when crossing the road, there were occasions when he did so alone. He also regularly travelled to and from football games and practice and to go swimming with friends, by bus, which again involved him crossing the A952 road without adult supervision. This practice which was, by the time of the accident , an established part of the pursuer's daily life, no doubt lay behind his father saying in evidence that he would have been content if, on the evening of the accident, the pursuer had been dropped off at the usual bus stop and left to cross the road there.

[5] The pursuer had been taught the 'Green Cross Code' prior to June 1995 and was clearly well aware of road safety rules by then. He knew he had to watch out crossing the road, he knew to look for traffic in both directions when crossing the road and, regarding crossing the road after getting off a bus, he knew to stop, let the bus go and then walk across the road; 'you don't walk behind the bus because a car could be coming the other way', he said.

[6] Sometimes, the pursuer was given a lift back home to his house after football. Keith Bannerman, one of the adults supervising the boys on the outing, recollected having driven him home on at least one occasion. The pursuer's father remembered him being dropped at home on one or two occasions. On such occasions he had been dropped off by dormobile or car, but there was no evidence that he had ever been dropped at the house by a minibus and Mr Bannerman doubted whether it would have been possible to turn a minibus in the road where the pursuer lived.

[7] The pursuer had, in the past, been dropped off from football, on the main Aberdeen road, and walked home from that point. He had previously been dropped off in Lonmay, on the A957, on the side of the road that meant he had to cross it to get home, although not at the exact point that he was dropped off on 10 June 1995. It was, Mr Bannerman explained, common, on occasions when they had the boys in a minibus, to drop them off if passing their houses or road ends. Sometimes the pursuer's father gave him a lift to/from Fraserburgh for football. The pursuer's father gave evidence that his usual route from home if travelling to Fraserburgh was to turn left out of his drive and use the back road rather than drive to the junction with the A957, near the bus stop. According to Mr Riley, the pursuer's expert, that back road is a narrow, almost single track road.

[8] When at Crimond Primary School, the pursuer had travelled to school on his bike when taking cycling proficiency classes and that involved him having to, at one point, cross the main road, with his bike. Again, he had done so without adult supervision. He was awarded a Cycling Proficiency Certificate when he was in the Primary 7 class at Crimond. His father, Archibald King, doubted that the pursuer had crossed the road alone when at primary school but the pursuer seemed clear that he had done so on those occasions referred to when he had his bike and his father had, at one point, been away working in Australia whilst the family stayed on in Lonmay, which could account for his father's ignorance of the matter. I, accordingly, preferred the evidence of the pursuer regarding this.

 

The Events of 10 June 1995

[9] Again, much of the evidence as to what happened on 10 June 1995 was not in dispute and the following narrative indicates the evidence that I accepted that was relevant to the issues in the case. The evidence as to these events came from David Dunbar (driver of the minibus), Keith Bannerman, Sandra Milne, Norman McLaren (the three adults supervising the outing), David Devine (a contemporary of the pursuer's who was also on the outing), and the pursuer's parents. The pursuer himself could give no evidence as to what happened due to the amnesia he suffered as a result of the head injury he sustained in the accident.

[10] The club members including the pursuer, were collected from the pick up point at Albert Street in Fraserburgh (where there was a hall that the club used for football training with a car park beside it) and driven to Aberdeen where they went swimming and went to Codonas. They were accompanied and supervised by Norman McLaren, Keith Bannerman, and Sandra Milne, who accepted that they were responsible for the safety of the boys on the outing. They were due to be returned back to the pick up point at about 6pm. In the event, they were late leaving Aberdeen, the reasons for which are not material. Prior to their departure, having been told to do so by one of the adults in charge, the pursuer telephoned home to tell his parents that he would be late back. He spoke to his mother and told her that they would be back in Fraserburgh at about 7pm.

[11] At one point in the journey, the pursuer asked Norman McLaren if it would be possible for the minibus to drive through Lonmay so that he could see if his father had left the house and if he had not, be dropped off there. Then, either the pursuer went forward and spoke to the driver or one of the organisers did so and the upshot was that the driver agreed to take the A952 so as to go through Lonmay. The question of who actually asked the driver to go through Lonmay does not, however, appear to be material to the case.

[12] The minibus then took the Lonmay road. It seems clear that the intention was to allow the pursuer to have a look from the minibus to see if his father's car was still at the house, which would indicate that he had not yet left to go to Fraserburgh. If it was, then the pursuer would be dropped off.

[13] The A957 road through Lonmay runs in, broadly speaking, a west/east direction. The minibus was travelling westwards into the village negotiating a sharp right hand bend as it did so. The bus stop from which the pursuer usually caught the bus to school was on the nearside of the minibus as it travelled through the village, opposite the junction with the road on which the pursuer's house was situated and shortly after that right hand bend. The pursuer's house could not be seen from that bus stop. There was a sharp left hand bend almost directly after it and once round that bend, it was possible to look across a field and see the pursuer's house. Both of the pursuer's parents were outside; his mother was at the front door and his father had his hand on the door of his car. There was a straight stretch of road after the bend extending for, it seemed, over 100m.

[14] The pursuer asked to get off the bus when he saw his father. The bus driver, David Dunbar, indicated that he could not safely stop there. He drove on for a short distance and stopped once he was past the bend, on the straight and beside a grass verge on the left hand side. None of the witnesses were able to be precise about where the minibus stopped but what was clear was that it stopped beyond the bend and on the straight, on the right hand side of the area shown in photograph 3 in 26/5 of process and certainly past the first cone on the left hand side in photograph 10.

[15] Whilst a determined effort was made on behalf of the pursuer to present a case that he was in a hurry when he got off the minibus and that that was something that should have been obvious to the three supervisors , the evidence was not to that effect. David Dunbar's evidence regarding the pursuer getting off the minibus was that he "just said cheerio" and got off. He had not said anything to him about needing to get back to catch his father. Thereafter, as he was pulling away, he saw the pursuer in his mirrors, running back down the nearside of the road. Keith Bannerman spoke to the pursuer getting out of the minibus onto the grass verge and seeing the top of the hood of his jacket as he passed the window beside his seat which was near the rear of the minibus. He did not think that he was running and he thought that he probably waved to him as he went past. Sandra Milne saw the pursuer walking down the side of the minibus and waving to them. Norman McLaren saw him walking along the side of minibus; he was not running. David Devine remembered the pursuer saying goodbye to his friends and then walking off the minibus; he also saw him out of its back window. He was just normal and not rushing.

[16] After the pursuer got off the minibus, it pulled away. Thereafter, the pursuer ran or, as David Dunbar put it, "shot" across the road. When he did so, there was a car travelling in the opposite direction, "quite quick", according to David Dunbar's description of it. David Dunbar called out "that car's hitting that loon" according to Norman McLaren's recollection and David Dunbar remembered saying something to that effect, having seen what was happening in his mirrors. The car did, indeed, hit the pursuer and he came to rest partly on the road and partly on the verge on the opposite side of the road from where he began crossing.

[17] The minibus came to a halt and Norman McLaren and Keith Bannerman got off the minibus and went back to assist the pursuer. It was not clear on the evidence just how far back down the road they had to go. David Dunbar spoke to being some 200-300 metres beyond the point of the accident but he was not sure about distances and it seems probable, from the evidence of Norman McLaren and Keith Bannerman, that it was less than that, albeit, as it was put by the former it was a "fair bit" back. In any event, what was plain was that some clear distance had been put between the minibus and the pursuer by the time of the accident. I was readily satisfied that he did not cross from behind the minibus but, rather, ran across the road after it had pulled away.

 

Expert Evidence

[18] The pursuer called Mr P J Riley as an expert witness. He is an accident investigator who was previously a police officer who spent almost eighteen years in the traffic division of Staffordshire Police. He had carried out an examination of the locus in August 2001 and taken a video film of the area both before and after it and in each direction. He had prepared a report, 26/5 of process and gave evidence under reference to it. Surprisingly, he had allowed himself to be accompanied by the pursuer's father who apparently pointed out certain matters to him including where the minibus was at the time the pursuer got off it and where the pursuer had crossed the road notwithstanding that Mr King was not present at that time and, more importantly, notwithstanding that he was not only to be a witness in the case but a witness with a clear interest in the outcome of the pursuer's case. In fairness to Mr Riley, he accepted that it would not be normal to do so as there could be a risk of bias and the situation was not , as he put it "ideal" but he did not provide any satisfactory explanation as to why it had occurred in this case .

[19] A problem arose with Mr Riley's evidence which, it seems, was probably directly caused by the influence on him of information supplied by Mr King. He proceeded on the basis of an assumption that the pursuer began to cross the road from the point indicated by Mr King, before the minibus moved off and that it only moved off once the pursuer had started to cross the road. As I have indicated, the evidence was not to that effect. It seems clear both that the pursuer ran down the verge for some distance (although it is not possible to say how far) and that by the time he began running across the road, the minibus had pulled away and was driving away along the straight and it was not possible, on the evidence, to identify exactly the point at which the pursuer had crossed from. Mr Riley had concluded that the car driver must have been faced with an emergency situation (and, by inference, not at fault) at the time but that conclusion must be open to question given the erroneous assumptions on which it was based.

[20] A further difficulty was that Mr Riley proceeded on the basis of an assumption that the pursuer was driven in a 21 seater minibus whereas Mr Dunbar's evidence unchallenged evidence, which I accepted, was that he was driving a 29 seater minibus at the relevant time. Any view he expressed as to the feasibility of the minibus dropping the pursuer at his house and continuing on along the back road was, accordingly also flawed as being based on an erroneous assumption.

[21] Further, Mr Riley's view was based on an assumption that the "child", as he referred to the pursuer, would have been faced with the prospect of crossing a very busy section of road. However, there was no evidence that the road was busy at the time that the pursuer was dropped off. Indeed, the only two vehicles referred to in evidence at all were the minibus and the car that hit the pursuer. Further, Mr Riley accepted that his own video did not show many vehicles on the road. He had not carried out a traffic survey. In these circumstances, it did not seem to me that he could credibly or reliably insist on his assertion that the pursuer was dropped off on a very busy section of road and it was surprising that he sought to do so. I did not accept his evidence to that effect.

[22] Mr Riley explained that he used to be a driving instructor and gave evidence regarding a driver's duties to be aware of children and elderly pedestrians. It was well known, he said, that children are unpredictable.

[23] He was also critical of the minibus driver's choice of stopping place. He described it as having been stopped on a wholly unacceptable section of road in terms of actual or potential danger of other traffic. However, the pursuer now has no case against the minibus driver and the relevance of that part of his evidence was not readily apparent.

[24] Mr Riley's evidence culminated in a conclusion that the accident could have been avoided by: the minibus continuing to the "the safety of the predetermined drop off point", the minibus moving off into the side road where the pursuer's was situated, or adult assistance and guidance being given to see the pursuer across the road. There was, however, no evidence that Mr Riley had examined the drop off point or informed himself as to whether the pursuer would have had to cross any roads there after being dropped off. Further, it seemed that Mr Riley's view as to the requisite supervision stemmed from an opinion that wherever children have to cross busy roads, they should be supervised by adults. He seemed to go as far as suggesting that wherever there was a bus stop used by schoolchildren in the countryside in a position that meant that any of them had to cross the road for the bus, there should be a crossing patrol. He did not appear to have addressed his mind to questions of reasonableness or to questions of the age and stage at which children could and should be trusted to cross the road alone.

[25] The pursuer did not lead any expert evidence from any person skilled in the care and supervision of children and young persons.

[26] Expert evidence for the second defenders was led from John Alexander, accident investigation specialist. Like Mr Riley, he was retired from the police, having latterly been an inspector, and had worked in traffic related matters for the last 26 years of his police service. He impressed as having been careful and professional in his examination and report. He had examined the locus on a June date in 2003. He did not, having done so and having recorded the numbers and times of cars passing over a period of an hour and quarter between 17.45 and 19.00 (the results of which were unchallenged and I accept) and having been present at the locus for almost three hours, conclude that the road could be described as busy. He also said that the relevant bends could not be described as blind, which appears to be supported by the photographs. Generally, his evidence was supportive of the likelihood being that the minibus was some significant distance away from the pursuer when he crossed the road. It also raised, as a possibility, that the car driver's actions were open to some criticism. Further, he had formed the view, having carried out his examinations that crossing the road at the locus was not an intrinsically difficult manoeuvre. All that was required was that the pedestrian check that the road was clear in both directions before doing so.

 

The Pursuer's Case on Record

[27] In article 4 of Condescendence, the pursuer avers: the adults supervising the outing knew that he was in a hurry to get home, did not offer him any assistance to cross the road and that if they had done, he would have accepted it.

[28] In article 6 of Condescendence, the pursuer avers that his accident was caused through the fault and negligence of the adult supervisors in that (a) they failed to drop him off at the car park in Fraserburgh as arranged, (b) they were in breach of a duty to take reasonable care not to change the arrangements for dropping him off, (c) that they were in breach of a duty to take reasonable care not to drop the pursuer on a busy A category road between two blind bends, (d) that they were in breach of a duty to take reasonable care not to drop a young passenger where he required to cross a busy main road, and (e) that they were in breach of a duty to take reasonable care to assist the pursuer to cross the road.

 

Submissions for the Pursuer

[29] By the time it came to submissions, the pursuer's case was much restricted. It was confined to (i) a case that the second defenders should not have changed the drop off arrangements unless they had put in place a safe alternative such as dropping the pursuer off outside his house, and (ii) they should have given a verbal warning to the pursuer about crossing the road before he got off the bus. The latter envisaged, according to senior counsel for the pursuer, the supervising adults saying something such as "we know you're in a hurry to get to your father - watch how you cross the road." He specifically disavowed seeking to present any case that the adults should have got off the bus and supervised the pursuer crossing the road. The first case was, however , the pursuer's principal case.

[30] Both cases were predicated on a proposition that the pursuer would have been anxious to get off the bus and stop his father making an abortive journey to Fraserburgh and distracted by that fact and also on the basis that he was hurrying at the relevant time. It should be inferred, it was submitted, that the pursuer would have known that his father would take the back road to Fraserburgh and he would have to catch him before he left. That being so, the duties referred to arose.

[31] Regarding the fact that the pursuer had no case on record for the second of the above cases, senior counsel submitted that since this was a case about a road traffic accident, pleadings were hardly required. The lack of notice of that precise case did not, accordingly, matter.

 

Submissions for the Second Defenders

[32] On behalf of the second defenders, it was submitted that the pursuer had failed to establish the allegations of fault that remained. An objection to the verbal warning case that had been made at the appropriate time during the evidence was maintained. It was, it was submitted, clear on the evidence led that the accident was caused through the fault of the pursuer and not through any fault on the part of the supervisors. He was 12 years and 9 months old at the time. He ran into the road and into the path of a car being driven towards him. He had clearly failed to keep a proper lookout and failed to take reasonable care for his own safety. He had full and appropriate knowledge of road safety and was experienced in crossing the road alone. There was an unanswered question as to whether the car driver could have done anything to avoid the accident. There was nothing intrinsically dangerous about the point at which the pursuer crossed. The evidence was not to the effect that the pursuer was in a hurry at the relevant time and there was none from which it could or should be inferred that the supervisors should have thought that he was. Regarding the suggestion that the pursuer should have been dropped off in Fraserburgh, it was submitted that the duty did not arise; there was no causal link between it and the accident other than a causa causans link which was not actionable. Changing the arrangement did not , of itself make it an unsafe one. Decree of absolvitor should be granted.

 

Discussion

[33] As noted above, the pursuer's case had narrowed considerably by the end of the proof. I will deal separately with each aspect of it.

 

Verbal warning

[34] I am satisfied that the second defenders' objection should be sustained. This was not a case of which notice had been given on record and Mr McEachran appeared to accept that that was so. To approach matters on the basis that this was a road traffic case and not much by way of pleading is needed in such a litigation will not do. That is because, firstly, whilst this was a case about a road traffic accident, the case against these defenders was not concerned with the duties of road users but with the duties of persons responsible for supervising other people's children, a matter involving complexities that do not arise in litigations about road traffic accidents. Secondly, the warning case was quite different from anything of which notice had been given on record. Neither Keith Bannerman nor Sandra Milne had been asked any questions about whether warnings were or should have been given to the pursuer. The pursuer had not been asked what he would have done if he had been given such a warning, something which he may have been able to comment on as a generality even although he had no memory of the accident. Mr Riley, the pursuer's expert, had not referred to any such case. It was not until towards the end of the cross examination of Norman McLaren, who was called as a witness for the second defenders and was the last witness at the proof, that an attempt was made to raise the issue in a question. That was the first notice that they had that the pursuer sought to make such a case against them in respect of an accident eleven years ago. In these circumstances, even if the case had been potentially relevant (which I seriously doubt, given the lack of evidence as to what difference such a warning would have made), it would be quite inappropriate to entertain it.

 

Change of drop off point
[35] The second defenders were, at the relevant time, in loco parentis, and owed to the pursuer a duty to take reasonable care of him for his safety and wellbeing. The duty is clear and well known and it was not in dispute between the parties that it existed. The duty is, though, a duty to take reasonable care and an element of judgment is inevitably involved in the course of its fulfilment. The question that arises is what is it that, in the circumstances, the supervisors required to do, to fulfil that duty when the pursuer asked to be dropped off in Lonmay? Should they have refused, and insisted that he be taken on to the drop off point in Fraserburgh? Was there any basis on which a duty to do so arose, on the evidence in the case?

[36] This case was predicated on the basis that the drop off point in Fraserburgh would have been safe but the place that the pursuer was dropped off was not. There seemed to be two elements to the latter aspect. The first was that the road was inherently dangerous at the point that the pursuer crossed. The second was that there were special circumstances in that the supervisors knew or ought to have known that the pursuer was or would be rushing to get back to stop his father leaving. That, in turn, would seem to involve saying that they should have anticipated that if the pursuer's request to be dropped off was acceded to then he would not take reasonable care crossing the road.

[37] The first problem for the pursuer as regards the above propositions is that no evidence was led as to the place where the bus would have dropped him off in Fraserburgh and where he would have to go to meet his father from that point. Would an unsupervised road crossing have been involved there as well?

[38] Secondly, I am readily satisfied on the evidence that the pursuer has failed to prove that the point at which the pursuer was dropped off in Lonmay was at a dangerous stretch of the road. I refer to Mr Alexander's evidence and my acceptance of it , in that regard. Further, there was no evidence to suggest that the supervisors knew or should have anticipated that the pursuer was going to cross the road at the point that he did, rather than going back to his usual crossing point opposite the side road where he lived, the place where his father would have been quite content for him to cross that evening. If the parent would have been content for him to cross the road unsupervised there, it readily follows that those in loco parentis could be regarded as having done what could reasonably have been expected of them if he had gone to cross the road there. The most important point though is that, on the evidence, the stretch of the road where he was dropped was not intrinsically dangerous and the pursuer would, had he thought to make proper use of it, have had a clear view in both directions prior to crossing.

[39] Regarding the part of the case to the effect that the supervisors should have foreseen that the pursuer would be distracted because of his desire to get back to his father, I readily conclude that it does not get off the ground since there was no evidence to the effect that he was rushing or hurrying to do so. The pursuer's case really came to be that the supervisors should have speculated that he might do so and therefore not to take the chance of letting him cross the road in Lonmay. I have no hesitation in dismissing it as unstateable. It comes very close to suggesting that those responsible for boys who are almost thirteen years of age, including their parents (given that the relevant duty is for a supervisor of such a boy to act as would a reasonable parent) should not let them cross an open road in any circumstances where they might be distracted notwithstanding that that boy is in the habit of crossing roads alone and unsupervised by any adult, has had appropriate training in road safety and has said or done nothing at the relevant time to put them on notice that there is such a risk. It is tantamount to requiring of such a supervisor a degree and habit of foresight of the likelihood of injury that verges on paranoia.

[40] In these circumstances, it is not necessary for me to consider whether the supervisors should have decided to drop the pursuer outside his house, a matter which gave rise to the question of whether the minibus could reasonably have done so. However, for completeness, I would add that, on the evidence, I would not have concluded that it could or should. No minibus had done so before, there was evidence that it would been very difficult for it to turn round in the road there and I am not satisfied on Mr Riley's evidence, the only witness who spoke to it, that it would have been feasible for the minibus to carry on along the back road, for the reasons already stated.

[41] The accident in this case was, on the evidence, caused through the fault of the pursuer who ran across the road and into the pathway of an oncoming car. I cannot comment on the part played by the car driver, if any, as the evidence did not point either to fault on his part or to exoneration of him. He did not give evidence. As I have indicated, the pursuer gave evidence. He gave the clear impression of being delightful and responsible young man who seems to have worked hard at coping with his residual injuries which are clearly of some significance. The accident and its sequelae are clearly regrettable and I note that had liability been established, the agreed damages would have been significant. I cannot, however, in all the circumstances, find that the second defenders were at fault and I will, accordingly, sustain their third, fourth and fifth pleas-in-aw and assoilzie them from the conclusions.

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