Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 100
PD183/09	OPINION OF LORD TYRE in the cause LESLEY JACKSON Pursuer; against ANDREW MURRAY Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Smith Q.C., Thornley; Drummond Miller LLP

Defenders: Hanretty Q.C., Dawson; HBM Sayers

14 June 2012

Introduction

[1] In this action the pursuer seeks reparation for loss and damage which she has sustained as a consequence of a road traffic accident which occurred on 12 January 2004, when she was 13 years of age. The pursuer had alighted from a school minibus and was crossing the A98 Fraserburgh to Banff road when she was struck by a car driven by the defender. The proof which I heard was restricted to issues of liability and contributory negligence.

[2] I have to say at the outset that a feature of this case was the poor quality of the evidence available in relation to matters critical to determination of liability. This was due in large measure to the long delay before this action was raised in July 2009. I was given no satisfactory explanation as to why the action was not commenced more promptly. The inevitable consequence of the delay has been that the memories of witnesses - lay persons and police officers alike - have faded and in some cases have become demonstrably less reliable. One key witness has died. One of the investigating police officers has apparently emigrated and did not give evidence. To compound the difficulty, the police accident investigation was not as thorough as it might have been. Certain important information concerning the locus of the accident was not noted. The absence of this information limited the value of the expert evidence led by the parties at the proof. As a result I have found it difficult to make findings in fact with any confidence on critical matters such as the movements of the pursuer immediately prior to impact and the speed at which the defender was driving.

The locus of the accident

[3] The accident occurred at or near the bellmouth of a private road to Upper Auchnagorth Farm which runs south from the A98 near New Byth. The A98 at this point runs in a generally east-west direction and is a rural two-way undivided road to which the national speed limit of 60 mph for cars is applicable. There is no street lighting. As one travels westward from Fraserburgh towards the farm road entrance, the road curves gradually to the left on a shallow decline. It has a slight camber and is slightly banked up on the north side to facilitate cornering. Approaching the locus, there is a double white line in the centre of the road, indicating that overtaking is prohibited in either direction; closer to the farm road end this changes to a broken white line on the westbound side, indicating that overtaking is no longer prohibited for westbound traffic. A vehicle stationary beside the verge of the eastbound carriageway opposite the farm road end would be visible for over 200 metres to a driver travelling west. After the farm road, travelling west, the road continues to bend gradually to the left towards a quarry road end.

[4] The width of the road at the accident locus was and is 7.6 metres, consisting of two carriageways each 3.8 metres wide. The width of the bellmouth of the farm road end was measured by the pursuer's expert witness, Mr James McCartney, as 15.8 metres.

The circumstances of the accident

[5] At the time of the accident the pursuer lived at home with her parents and her twin sister Lindsay at Upper Auchnagorth Farm. She and her sister travelled to and from school each day by school bus. On the way home they would be brought from school by a feeder bus to a location where they were picked up, along with other children, by a minibus which followed a route in the course of which children were dropped off at or near their various homes. At the time of the accident, the route followed by the minibus brought it to the Upper Auchnagorth Farm road end while travelling eastward. The minibus would therefore stop on the eastbound carriageway opposite the bellmouth entrance, where the pursuer and her sister would alight. They would then require to cross the road to the farm road end, where their mother would normally be waiting for them in a car to drive them home up the farm road. The minibus had followed this route since the previous August. The width of the minibus was 1.974 metres according to manufacturer's information obtained by Mr McCartney.

[6] On the day of the accident, the minibus arrived at the farm road end at about 4.30 pm. It was dusk, approximately 40 minutes after sunset (witnesses used the word "gloaming"), and the light was fading. Vehicles using the road had their lights on. The weather was dry and overcast. The driver of the minibus, Mr George Fraser (who gave evidence), was familiar with the route. He had the headlights of the minibus on. Square yellow and black graphic signs indicating that this was a school bus were displayed on the front windscreen and back door, as required by law. Mr Fraser stopped the minibus with its nearside wheels adjacent to but not on the grass verge. As he stopped, Mr Fraser put on the minibus's hazard lights. At least three vehicles following the minibus eastward stopped behind it. The first of these was an Isuzu Trooper driven by Albert Corbett, then aged 73, who had died before the case came to proof. He was accompanied by his brother, who was the front seat passenger, and by his sister‑in‑law Anne Corbett (who gave evidence), who was seated in the rear. The second vehicle was a Land Rover driven by Kenneth Scroggie (who gave evidence). The driver of the third vehicle gave a statement to police after the accident but apparently could not be traced to give evidence at the proof. All three vehicles waited for the minibus to move off.

[7] The defender, who was travelling home from work, approached the locus driving westward in a blue Ford Fiesta. He was familiar with the road, having driven along it every day for at least three years. His recollection of the circumstances of the accident was poor. As he approached the scene he saw the minibus stationary on the eastbound carriageway. He had seen a school minibus on this road before but could not remember whether on this occasion he identified the minibus as being a school bus.

[8] The pursuer and her sister Lindsay alighted from the minibus through a sliding door on the nearside. The pursuer, who was wearing a long dark jacket with a lighter trim, got out first and walked along the grass verge to the rear of the minibus. Lindsay followed and closed the door behind her. The pursuer turned and passed between the rear of the minibus, which was still stationary, and the front of the car driven by Mr Corbett. The pursuer and Lindsay both stated in evidence that Mr Corbett signalled with his hand to indicate that (so far as he was concerned) they were free to cross. This was denied by Mrs Corbett and also by the late Mr Corbett in a statement given to the police, and I return to it later. The pursuer was still several paces ahead of her sister. As the detail of the pursuer's movements thereafter was a matter of controversy I shall merely say at this stage that she continued across the road and, as she crossed the westbound carriageway, was struck by the defender's car. The defender was unaware of the pursuer's presence until the moment of impact. The force of the impact was sufficient to project the pursuer forward and into the air above the height of the roof of the car. The car passed beneath her and she landed on the carriageway behind it. The defender braked hard and stopped.

[9] Before the arrival of the minibus, the pursuer's mother, Mrs Morag Jackson, had arrived at the road end in her car. According to her evidence, she had been waiting beside her car for the minibus to arrive, but had had to get back into her car to move it in order to allow entry to the farm road to a tractor driven by her husband (who did not give evidence). Having moved her car, she was getting out again when she heard a sound which was in fact the collision. She saw something in the air above the car. She had not seen the pursuer prior to the impact. It was only when she heard Lindsay scream that she realised a member of her family was involved in an accident.

[10] Police officers attended at the scene of the accident and took statements from witnesses, measurements and photographs. Certain factual details are worth noting from the photographs. The pattern of damage caused to the front of the defender's car by the impact of the pursuer's body is diagonal, beginning at or near the offside headlight and the offside half of the number plate, continuing with an indentation in the bonnet to the nearside of its centre line, and finishing with a broken windscreen showing a point of impact towards the nearside (described in the report of a police inspection of the car which took place the following day as "head strike impact centre nearside"). The defender's car is shown stopped with both of its nearside wheels resting on the white line marking the edge of the westbound carriageway. Some 12.1 metres behind the rear of the car (a distance recorded by PC Andrew Merson and apparently measured with a tape measure by PC Steven Reid, who did not give evidence), and close to the edge of the carriageway, there is a patch of blood on the tarmac which, it has been assumed, identifies the spot where the pursuer fell to the ground after the impact. Another police officer, PC Thomson, measured the distance from the blood stain to the rear of the vehicle as 12 metres and the distance from the farm junction to the rear of the car as being 30m. He stated in evidence that he would normally measure from the nearest part of the bellmouth which, arithmetically, would produce a distance of some 18 metres from the west edge of the bellmouth to the blood stain. (I should note here that Mr McCartney measured the distance westward along the north verge from the west edge of the bellmouth to the quarry road end to be 121.2 metres. PC Merson recorded a measurement of the distance westward along the south verge from the bloodstain to a point opposite the quarry road end to be 91.1 metres. Application of these two measurements would produce a distance of 30 rather than 18 metres from the bellmouth to the blood stain, and 42 rather than 30 metres from the bellmouth to the rear of the defender's car. The reason for this discrepancy is unexplained. PC Thomson was sure he could not have made an error of 12 metres in his measurement of 30 metres from bellmouth to car. I agree that this seems unlikely and I consider that his measurement is more likely to be accurate than one produced arithmetically from two very much longer measurements with greater scope in one or other for an error to have occurred.)

[11] There was lodged as a production a document containing various handwritten measurements. It is not clear who took these measurements; they were not spoken to by any witness. They include measurements of the camber, gradient and road width, and in particular an entry "skid mark 18.9 metres". There are further measurements on the document which suggest that accident investigation officers carried out a friction test at the locus using a sled of known weight to enable a coefficient of friction of the road surface to be calculated. Again, however, these were not spoken to in evidence. A further, apparently computer-generated, plan bearing the legend "A98 Fraserburgh to Banff at Upper Auchnagorth Serious Road Accident" and consisting of various unlabelled parallel and non‑parallel lines was lodged but again not spoken to by any witness. In the absence of explanatory evidence I find it impossible to attach any weight to anything contained in either of these documents.

Assessment of evidence relevant to findings of fault

[12] In order to assess whether and, if so, to what extent the accident was caused by a failure by the defender to take reasonable care, it is necessary to assess the evidence and to attempt to make findings in fact with regard to the following matters:

• The defender's speed prior to the accident;
• The defender's reaction to the presence of the minibus;
• The pursuer's movements prior to the accident;
• The visibility of the defender's car as it approached.

I address each of these in turn below.

(i) The defender's speed prior to the accident

[13] The defender gave a statement under caution to PC Brian Dick (who did not give evidence). It appears that the statement was taken on the evening of the accident. In that statement the defender is reported as having estimated his speed at 50 mph. In his evidence to the court the defender, who was called as a witness by the pursuer, considered that that figure was probably correct, and not just because he had been reminded of the estimate which he had given when the statement was taken. He had no reason to think that his speed had been anything other than about 50 mph. He could not remember whether he had slowed down at any time as he approached the minibus. In the course of cross‑examination the defender was referred to various circumstances which might suggest that the estimate of 50 mph was too high. The defender agreed that he could be wrong about this figure as he was agitated at the time when he gave the statement.

[14] None of the eye witnesses to the accident gave an estimate of the defender's speed in their evidence to the court. The view of Mr Fraser, the minibus driver, was that there was "nothing wrong with the man's speed". Mr Scroggie, who by the time of the proof could remember very little about the circumstances of the accident, had given a statement to PC Reid on 17 March 2004, some two months after the date of the accident. He could not remember having given the statement but agreed that he must have done and that it would be more likely to be accurate than anything he could remember now. He is recorded in the statement as having estimated the defender's speed at the moment of impact as about 40 mph, and as expressing the view "one hundred per cent" that the accident was caused by the pursuer running out in front of the defender's car. Mrs Corbett's impression was that the car was not travelling fast. In a statement given to police on 14 January 2004, the late Mr Corbett expressed the belief that the defender's car was not travelling quickly and estimated the speed as 35 to 40 mph; obviously this estimate was not subject to cross-examination. Lindsay Jackson did not see the defender's car before impact because her view was obscured by the minibus. Mrs Morag Jackson did not know what the defender's speed was. She had given a statement to PC Gary Thomson on the evening of the accident in which she stated that she had not been aware of the defender's car before the accident and did not know how fast it was going.

[15] Expert evidence was led at the proof from Mr McCartney on behalf of the pursuer and from Mr Mark Hooghiemstra on behalf of the defenders. Both are former police officers (Mr Hooghiemstra having served with the Dutch police force) with many years of accident investigation experience during their respective police careers. Both now offer specialist evidence regarding accident reconstruction. For reasons which I explain below, I did not find the evidence of either Mr McCartney or Mr Hooghiemstra wholly satisfactory. One of the principal aspects of this case upon which each expressed an opinion was the likely speed of the defender's car at impact. The weight to be placed on these opinions is obviously dependent upon the quality of the primary evidence upon which they were based. That evidence may be categorised as follows.

[16] (a) Skid marks. I have already referred to handwritten measurements apparently taken by police officers of skid marks 18.9m in length. If it is assumed that these marks were made by the defender's car, and that this was the distance for which the car skidded to a halt, it appears to be common ground between the expert witnesses that the speed of the car immediately prior to braking was about 36 mph. (There was some evidence that this estimate should be reduced by 1-2 mph to take account of the fact that when the defender's car was inspected after the accident one of the brake cylinder seals was found to have blown, probably as a result of the emergency braking.) No evidence was, however, led from any witness who measured skid marks or who was concerned in the preparation of a sketch or plan. None of the witnesses spoke to the location of the skid marks on the road. No skid marks can be discerned in the photographs taken at the locus. There is, therefore, in my opinion, nothing to connect the skid marks apparently measured by someone after the accident with the defender's braking manoeuvre. Moreover, it cannot be said with certainty that the defender's car had not been moved after it came to rest but before the photographs were taken. The strong impression which one has from the photographs is that the car had been parked beside the grass verge and that it is not therefore shown at the place where it came to a halt when the defender braked after impact. This accords with PC Merson's recollection of having had an impression while at the locus that the car had been moved. Mr McCartney's alternative explanation, namely that the car came to a halt where it did because prior to impact the defender had been driving more or less along the edge of the grass verge (at around 50 mph) seems to me to be so inherently unlikely as to be unworthy of serious consideration. In these circumstances I am unable to regard either the apparent presence of certain skid marks on the carriageway or the location of the vehicle when photographs were taken and measurements made as affording any reliable basis for estimation of the defender's speed prior to impact.

[17] (b) "Searle throw" calculation. Mr McCartney and Mr Hooghiemstra were agreed that it was possible in principle, using an equation derived by Dr John Searle, to estimate the speed of a vehicle by measuring the distance which a pedestrian struck by the vehicle was thrown forward after impact. Mr Hooghiemstra considered that no such calculation could be carried out in the present case because the primary point of impact was not known. Mr McCartney carried out a calculation based upon an estimate in a precognition taken from the pursuer's father (who did not give evidence) of a distance of 33.8 metres between a piece of debris said to have been found on the road and the bloodstain to which I have referred. On this basis the speed was calculated as being between 39 and 48 mph. I do not regard this calculation as soundly based on reliable evidence (nor, in fairness, did any party rely upon it) and I place no weight upon it. In the course of the proof, Mr Hooghiemstra was asked to perform a Searle throw calculation based upon an assumption that the pursuer was thrown a distance of 25.9m from a point of impact opposite the midpoint of the bellmouth of the farm road to the bloodstain. This calculation produced a speed between 34.56 mph and 42.19 mph. However, it is based upon an unverifiable assumption as to the point of impact. In a statement given to police on the evening of the accident, Lindsay Jackson estimated that she found the pursuer lying about four car lengths from where she crossed the road. In her evidence to the court, she considered, with hindsight, that this estimate was incorrect and that the distance was probably about 7-8 car lengths. She regarded a car length as about 3.5 to 4 metres. It can be calculated that her contemporaneous estimate would produce a throw distance of about 14 to16 metres and her revised estimate about 24.5 to 32 metres. I considered Lindsay Jackson to be a careful and generally reliable witness and I accept that her reconsidered estimate is likely to be more accurate than the one she gave at age 13 shortly after the accident. Again, however, it is not based upon a reliable identification of the point of impact. It is a curious feature of this case that neither Lindsay Jackson, who was following her sister across the road, nor Morag Jackson, who was observing from the opposite side of the road, saw the defender's car strike the pursuer. Morag Jackson's evidence was that from her point of view, looking out from the westmost part of the bellmouth, the minibus stopped to her right and not directly across from her. It is not possible to reach a view with any confidence as to where, in relation to the bellmouth, the pursuer was crossing the road when she was struck. I am unable, therefore, to place weight upon any estimate obtained by use of a Searle throw calculation.

[18] (c) Roof vault. In the course of his oral evidence Mr McCartney stated his view that the fact that the pursuer was projected over the roof of the car was an indication that the car was travelling at a speed least in the low 40s. This was not mentioned in his written reports and was said to be based upon his own practical experience and on test results, reinforced by information which he had received at a recent update course regarding the mechanics of a car under-run. Mr Hooghiemstra was not aware of any generally-accepted speed above which a roof vault would be likely to occur. He suggested in the course of cross-examination that in his personal experience a roof vault could occur at a speed as low as 35 mph but was reluctant when challenged to commit himself to that figure. Again no reference was made to the roof vault in his written report which describes the impact as a "wrap projection" pedestrian vehicle style collision. In view of his reluctance to commit himself to a speed as low as 35 mph I did not regard Mr Hooghiemstra's evidence on this point as reliable. With some hesitation, given the absence of supporting material, I am prepared to place some weight upon Mr McCartney's evidence, to the extent of finding that it supports the proposition that the defender's speed at impact was at least in the low 40s mph.

[19] Effect of impact on the pursuer. In the course of his evidence (though not in his written report), Mr McCartney referred to an estimate, said to be derived from official statistics, that only one in 40 pedestrians survives a collision where the vehicle is travelling at 40 mph or more at impact. It was not clear where this figure is to be found; at one point Mr McCartney referred to television advertisements, presumably to promote road safety. The Highway Code merely states (para 207) that "at 40 mph your vehicle will probably kill any pedestrians it hits". Mr Hooghiemstra was aware of the figure but regarded it as a generalisation, with some people surviving where the speed was far greater and others failing to survive when the speed was lower. Although this figure may afford some support for a speed at impact of less than 40 mph, as its provenance is obscure and it bears to do no more than state a generality, I do not regard it as carrying a great deal of weight.

[20] In addition to the eye witness and expert evidence regarding the defender's speed, Mr Hanretty founded in his submissions on behalf of the defender on the stopping distances set out in the Highway Code. Stopping distances at 30 mph, 40 mph and 50 mph are respectively stated to be 23 metres, 36 metres and 53 metres. The distance from the centre of the bellmouth to the rear of the car (as measured above) was 37.9 metres to which one should add the length of the car (3 metres) to give a total stopping distance of about 41 metres, suggesting a speed at impact in the low 40s. (If one were to add the width of the eastern half of the bellmouth, the stopping distance would become about 49 metres, suggesting a speed at impact nearer 50 mph.) The weight to be attached to this evidence is limited by the absence of reliable identification of the point of impact, uncertainty as to whether the car was moved after coming to a halt, absence of information regarding the defender's personal reaction time and forcefulness of braking, and lack of information regarding any specialties of the road surface at the locus. In my view it adds nothing to what has already been discussed.

[21] In the foregoing state of the evidence, I find very little to cause me to doubt the defender's own estimate of his speed at impact. It seems to me that he was better placed than any of the eye witnesses to know at what speed he was travelling. In the absence of a potential hazard such as the stationary minibus, 50 mph would not appear to be an excessive speed at which to drive along this road at this location; no witness suggested that it was. I can find no evidential basis from which I would be entitled to infer that the defender did in fact slow down as he approached the minibus. Indeed, it was the defender's position in evidence (as I discuss further below) that he regarded the risk of children running out unexpectedly as irrelevant as he did not think at that time that there would be a child crossing the road in front of his car, from which one might infer that it is more likely than not that he did not slow down. A speed of 50 mph is consistent with the occurrence of a roof vault, and for the reasons I have given I am not prepared to place weight on any of the factors referred to in the expert evidence which might suggest a lower speed. I therefore find in fact that at the point of impact the defender's car was travelling at approximately 50 mph.

(ii)              The defender's reaction to the presence of the minibus

[22] As it is a crucial element of the pursuer's case that the defender was negligent in failing to react to the presence of the stationary minibus by slowing down as he approached it, it is important to make findings in this regard. I have already mentioned that in his evidence to the court the defender stated that he could not remember slowing down at any time, and also that he considered the risk of children running out unexpectedly to be irrelevant as he did not think there would be children crossing the road at the time. Such a risk was "not his fault", as he put it. He could not remember whether he had thought at the time that the bus might have stopped to drop children off. From this evidence I consider it reasonable to infer that as he approached the minibus the defender did not address his mind to the risk of a person emerging from behind the stationary minibus and attempting to cross the road in front of his car.

[23] It is also relevant to note here the defender's evidence that he did not see the pursuer until the moment of impact, and that he did not remember seeing her running before she was struck by his car. As discussed below, it seems to me that the pursuer must have been within the defender's line of vision for approximately 11/2 seconds between emerging from behind the back of the minibus and the moment of impact. The fact that he did not see her tends to support the inference that he did not have it in mind that someone might emerge suddenly from behind the minibus and was not keeping a lookout for such an event occurring. To put it another way, whether or not such an occurrence was reasonably foreseeable, it was not being foreseen by the defender prior to the accident.

[24] Mr Hooghiemstra sought in his report to explain the defender's failure to see the pursuer as possibly being attributable to glare from the headlights of the minibus, together with the fading ambient light and the dark clothing worn by the pursuer. It is appropriate to comment here on Mr Hooghiemstra's evidence. In his submission on behalf of the pursuer, Mr Smith criticised Mr Hooghiemstra's evidence as, inter alia, lacking impartiality. I consider that there is some force in this criticism. My impression was that Mr Hooghiemstra was more willing to attribute weight to evidence which exonerated the defender from blame, placing reliance, for example, on excerpts from various police statements but failing to mention the defender's own estimate of his speed of travel. His references to the Highway Code consisted only of references to pedestrians' duties. He did not mention the fact that the minibus was displaying hazard lights. In oral evidence he mentioned certain figures which were favourable to the defender's case but was unable to provide justification for them. Accordingly, although I have referred from time to time in this opinion to calculations carried out by Mr Hooghiemstra, I do not feel able to place confidence in his conclusions. So far as his reference to glare is concerned, I consider that any significance to be attached to this factor in assessing why the defender did not see the pursuer prior to impact is outweighed by the defender's own dismissal of the risk of children running out as not being his responsibility.

(iii)            The pursuer's movements prior to the accident

[25] The pursuer's account was as follows. Having got off the minibus before her sister, she walked along the grass verge to the rear of the bus. While she was still standing on the verge, the driver of the vehicle behind (Mr Corbett) waved his left hand which she interpreted as an indication that she could cross. She walked slowly to the offside rear corner of the minibus. She could not see to her left but was looking to her right and watching Mr Corbett's car to make sure that it was not moving. At the edge of the bus she paused for several seconds to check that the road was clear and looked both ways. She saw nothing coming from her left. She walked briskly forward to the centre line of the road. She had no recollection of anything that happened after she crossed the white line until she woke up in hospital some three weeks later. She described herself as a responsible person who took great care crossing roads and denied that she had previously been warned by the bus driver of the danger of running across the road. She denied that she had run across the road on this occasion. On 12 March 2004 she gave a statement to PC Reid. Much was sought to be made of what were said to be discrepancies between the account in this statement and the pursuer's evidence to the court. I do not regard the discrepancies as material, but I have to observe that I was not impressed by the pursuer's readiness to dismiss any errors in the terms of her signed statement as excusably attributable to being in pain and accordingly being more concerned with getting the taking of the statement finished than with confirming that her account of events had been accurately recorded.

[26] Mr Fraser did not see the collision. The first indication he had of it was seeing a black object in the air in his mirror as he was beginning to move off. His recollection (which must be mistaken) was that the first of the sisters had made it safely across the road and that the second was struck by the car.

[27] Lindsay Jackson's recollection was that she left the verge and started to walk between the rear of the minibus and Mr Corbett's car, because Mr Corbett had signalled with his right hand that he would wait. The pursuer was ahead of her at this point but Lindsay did not see her either looking left or moving forward from the offside corner of the minibus. At about this time the minibus began to move off. Lindsay's attention was focused upon Mr Corbett's car in case he changed his mind and began to move forward. Lindsay assumed that the pursuer was safely across the road until she saw a silhouette in the air above the car which she realised must be the pursuer.

[28] Morag Jackson did not see the pursuer prior to impact.

[29] Mr Scroggie's version of events was that the pursuer stood for a second or so at the rear offside of the minibus and then "shot off", sprinting across the road. He was 99% certain that she had looked to her left but could not say for sure. In the statement which he gave to PC Reid on 12 March 2004, Mr Scroggie is recorded as having said that the pursuer "took a few steps into the opposite side of the road. As she did so she then started to run to towards [sic] the opposite side of the road".

[30] According to Mrs Corbett, the pursuer walked round the back of the minibus and then straight out across the road without hesitating. She had taken two or three steps into the road before impact. In his statement to the police, given two days after the accident, Mr Corbett is reported as having stated that "...one of the girls stopped at the rear corner of the bus. However the other girl didn't and just ran into the opposite carriageway, the west bound carriageway". He said that he knew the girl was going to be knocked down and that "...the girl must have seen the car also and began to run faster".

[31] To this eye witness evidence must be added the opinion of Mr McCartney based upon the pattern of damage to the front of the defender's car. In his opinion the police photographs of the damage to the car clearly showed that the pursuer was running at the moment of impact. The greater the angle of the damage, the greater the speed of the pedestrian at impact was likely to have been.

[32] It is not at all surprising that eye witnesses give differing accounts of an incident which happened very quickly. So far as the pursuer herself is concerned, I do not regard her account of what happened during the critical period after she left the verge as reliable. Her ability to recall the details of the incident is plainly affected by the period of unconsciousness which followed. In the course of examination and cross-examination she repeatedly used the same formulations of words to describe what had happened. My impression was that although she was doing her best to tell the truth, she now has a false memory of events which has become fossilised in her mind. I do not, for example, accept that she has an accurate recollection of Mr Corbett waving her across. Her description of this differed from that of her sister. I consider it likely that Lindsay's account is accurate and that Mr Corbett did wave Lindsay across towards the pursuer, who was ahead of her, and that the pursuer now believes inaccurately that she too saw this happen. The pursuer's assertion that when she looked left from the corner of the minibus the defender's car "was not there" is clearly wrong. I do not therefore feel able to rely upon the pursuer's description of her own movements before reaching the centre line of the road.

[33] On the basis of the evidence of other witnesses, I feel able to conclude that at the point of impact the pursuer was running across the westbound carriageway. This was the contemporaneous impression of Mr Scroggie and the late Mr Corbett, reasserted by Mr Scroggie in his evidence to the court and supported by the opinion of Mr McCartney. Whether the pursuer had begun to run as soon as she moved out from the rear offside corner of the minibus is less clear. The preponderance of reliable evidence appears to me to be to the effect that she paused briefly at the offside rear of the minibus and then took one or two steps before breaking into a run. Given that the distance from the corner of the minibus to the centre line of the road was only about 1.8 metres, it makes little difference, in my opinion, whether those one or two steps were taken at a run or, as the pursuer would have it, at a brisk walk. I return below to the issue of the time which would have elapsed between the pursuer leaving the corner of the minibus and the point of impact.

(iv)            The visibility of the defender's car as it approached

[34] The pursuer was adamant in her evidence that she did not see the defender's car. That being so, and having regard to the fact that the accident happened at a time when the light was fading and drivers had the lights on their vehicles illuminated, it is material to consider whether the defender was displaying lights on his car. The evidence on this was as follows. The defender stated to the police after the accident that he had his lights on. Mr Fraser is recorded in a statement given to PC Thomson shortly after the accident as stating that the defender's car had its headlights on. Mr Scroggie could not remember at proof whether the car had its lights on but is recorded in his police statement as having said that it did. Mrs Corbett stated that the car had its lights on but was not sure if they were headlights or sidelights. In his statement to police Mr Corbett is reported to have said that he believed he saw the car's headlights as that was what had grabbed his attention. Lindsay Jackson did not remember seeing headlights. Morag Jackson was sure the car had no lights on.

[35] On this point I am happy to accept the evidence of almost all eye witnesses that the defender's car had its lights, probably its headlights, illuminated as it approached the stationary minibus. I reject Morag Jackson's evidence to the contrary; her attention appears to have been taken up with getting out of her car again (having moved it to the side of the bellmouth) and waving to a child in the minibus, and she was apparently unaware of the approach of the defender's car until it was opposite or past her.

[36] I should at this point mention one of the conclusions in Mr McCartney's first report that "...[he believed] that the pursuer did not see the defender's vehicle as it was not displaying dipped headlights". I have criticised Mr Hooghiemstra for lack of impartiality and in my opinion the inclusion of this conclusion suggests a similar lack of impartiality on the part of Mr McCartney. Although Mr McCartney was aware that a number of witnesses disputed Mrs Jackson's recollection that the defender's car was not displaying lights, he chose to base his report upon this factual premise. I have already mentioned Mr McCartney's suggestion that prior to the accident the defender had been driving along the westbound verge of the road. Like his conclusion regarding the defender's car lights, this suggestion seemed to me to be an attempt to construe the available evidence in a manner unduly favourable to the pursuer's case. I have accordingly found it necessary to approach his evidence too with caution.

Analysis: failure by the defender to exercise reasonable care

[37] For the reasons discussed below, I consider that the overwhelming responsibility for the occurrence of this accident rests on the pursuer. In the context of this action, however, the question which must be addressed is whether it was caused wholly or partly by the fault and negligence of the defender. It is worth noting that the view expressed shortly after the accident by the disinterested eye witnesses (Mr Scroggie and Mr Corbett) was that the defender bore no share of the blame. That view is worthy of respect but is not conclusive. It appears to have been based at least in part on the witnesses' assessment that once the pursuer emerged from behind the minibus it would not have been possible for the defender to avoid colliding with her. That view was shared by Mr McCartney. It was further supported by Mr Hooghiemstra's evidence that average driver reaction time is around 1.5 seconds. I am satisfied that it is correct. In the time available to the defender after the pursuer became visible to him he could not, in my opinion, reasonably be expected to have reacted to her presence and also braked sufficiently to avoid hitting her. Ultimately that was not, as I understood it, disputed by Mr Smith on behalf of the pursuer. I note in passing that this constitutes a material factual distinction between the present case and the cases of Rooke v Liston (Court of Appeal, 9 February 1999, unreported) and Ehrari v Curry [2007] EWCA Civ 120 to which I was referred in the course of the pursuer's submissions. Mr Smith's contention was rather that the defender's negligence lay in the manner in which he approached the stationary minibus.

[38] Mr Smith also referred to a judgment of the Court of Appeal in Howell‑Williams v Richards Brothers & Anor [2008] EWCA Civ 1108. This case concerned injuries sustained by a five year‑old child who was struck by a car as she ran across a road from behind a school minibus. It is noted by the Court of Appeal (paragraph 13) that the trial judge had described the duty of a driver when approaching a stationary school bus as being

"...first to keep a lookout, to see that it is a school bus; then to modify, if necessary, [his/]her driving; and lastly to be vigilant for any child stepping out into or running into the road".

I respectfully agree with this formulation and propose to adopt it in assessing whether the defender in the present case was negligent. Mr Smith's submission, as I understood it, came to be that in order to fulfil his duty of care, a driver approaching a stationary minibus which might be a school bus was bound to reduce his speed to the extent that he would be able to stop in time to avoid a collision no matter how late a child (or other person) were to emerge from behind the bus and attempt to cross the road in front of him. I regard this submission as placing an unfounded and unrealistic burden on the car driver. I was referred to no authority in support of it and in my opinion it does not accord with common sense or the direction to drivers in the Highway Code (para 206) to "drive carefully and slowly...[inter alia] when driving past bus and tram stops; pedestrians may emerge suddenly into the road". I agree with Mr Hanretty that it would impose an unreasonable duty on drivers to require them to slow to perhaps walking pace every time a potential hazard presented itself and, indeed, would create multiple additional hazards as drivers negotiated their way at intermittent speed along a road, braking almost to a halt every time an obstacle capable of concealing an irresponsible pedestrian presented itself. It appears to me to be inevitable that circumstances may occur in which a child or other pedestrian will emerge into view too late for a driver proceeding even at a reasonable speed to react and brake quickly enough to avoid an accident, in which case the driver would escape liability. An example of a case of this kind is mentioned in Clerk & Lindsell on Torts (20^th ed., 2010) at paragraph 8-183. The duty of the driver, in my opinion, is rather to proceed as set out above, driving sufficiently slowly and carefully to give himself or herself a reasonable opportunity to react and take action to prevent a collision should the foreseeable event occur of a child or other person attempting to cross the road.

[39] Applying the above formulation to the circumstances of the present case, the first issue is whether the defender was keeping a proper lookout and, if so, whether he identified or ought to have identified the minibus as a school bus. I noted earlier that the defender could not recall whether he had realised that the minibus was a school bus. In my opinion, having regard to all of the circumstances, the defender ought, in the exercise of his duty to keep a proper lookout, have identified the minibus as being a school bus or, at least, as a bus from which children were likely to alight. He was familiar with the road and had seen the school minibus on it before. The time of day was 4.30 pm. The minibus was stationary with its hazard lights on. In these circumstances, even if the defender did not see the yellow and black graphic sign on the front windscreen, I consider that in the exercise of his duty to keep a proper lookout the defender ought to have recognised the minibus as being a vehicle from which passengers, including children, were likely to alight. That being so, he ought, in my opinion, reasonably to have foreseen that there was a risk that a person might, however foolishly, attempt to cross the road. On the basis of the defender's own evidence, I find that either he did not identify the minibus as a school bus or, if he did, he did not regard this as relevant to the manner in which he ought to drive towards and past it. In this regard I consider him to have been in breach of the duty that was incumbent upon him.

[40] Turning to the second issue, namely the duty to modify his driving, I have found that it is probable that the defender did not reduce his speed from 50 mph as he approached the minibus. In my opinion this was too high a speed at which to approach the hazard potentially presented by the stationary minibus and, accordingly, I consider that the defender failed to exercise reasonable care in this regard too. There is, however, the difficult question of what the exercise of reasonable care required of him in the particular circumstances of this case. This seems to me to be a matter upon which the court should exercise its judgment without a need for expert evidence (see Clerk & Lindsell (supra) at para 8-178), and the various cases to which I was referred during submissions appear to have proceeded on this basis. I have rejected the contention on the pursuer's behalf that the defender was required to slow to such speed as would avoid colliding with her, no matter how late and how quickly she emerged from behind the minibus. Without being unreasonably prescriptive, and having regard to all of the circumstances which I have described, it seems to me that the speed at which the defender ought to have approached a minibus stationary at this particular location and at this particular time of the evening, consistently with the exercise of reasonable care, was somewhere between 30 and 40 mph. That, as it seems to me, is a range which would have allowed the defender to continue to make progress along the road while affording him a reasonable opportunity to take evasive action if a pedestrian were suddenly to appear. Even at 30 mph, there would come a time when a collision was unavoidable but, as I have said, I do not consider this to be a necessary indication of a failure to exercise reasonable care.

[41] It is not, however, sufficient for me to express a view on the range of reasonable speed without also expressing a view as to when the defender ought to have slowed to the desiderated speed. Clearly it would achieve little by way of opportunity to avoid an accident if the defender were to approach the minibus at 50 mph and then brake sharply to a lesser speed on arrival beside it. It was not disputed that the defender had a view of the stationary minibus for at least 200 metres. In my opinion it is reasonable to expect the defender to have reacted appropriately during the first half of that distance, with the consequence that he ought in my view to have been travelling at no more than 40 mph for at least 100 metres before reaching the minibus.

[42] The third element of the driver's duty identified above is to be vigilant for any child stepping out or running into the road. In the present case it is significant that the defender maintained that he did not see the pursuer before impact. Although as I have said it is not contended that he ought to have been able to avoid colliding with her after she emerged into his view, I do regard it as significant that he did not see her at all. Mr Hanretty suggested various reasons why the defender might not have seen the pursuer, including her dark clothing and the state of the light. It does, however, appear to me that the defender was less than vigilant as he approached the minibus for the possibility of a pedestrian walking or running out from behind it. If he had had it consciously in mind that someone might emerge, I consider it likely that he would have seen the pursuer earlier than he did. I have mentioned paragraph 206 of the Highway Code, which also refers to the risk of children running into the road unexpectedly. Accordingly, and consistently with the approach taken by the Court of Appeal in Ehrari v Curry (supra) at paragraphs 10-12, in this regard too I find the defender to have been in breach of the duty to exercise reasonable care.

Analysis: causation

[43] Having held for the foregoing reasons that the defender failed to exercise reasonable care, it is necessary next to determine whether such failure caused the accident. Or, turning the question round, would the exercise of reasonable care by the defender have prevented the occurrence of the accident? Mr Smith's argument regarding causation was simple and was based upon a calculation in one of Mr McCartney's supplementary reports. The moment in time at which the pursuer attempted to cross the road was unaffected by the speed at which the defender was driving. If, however, the defender had been travelling at a reasonable speed, he would have arrived later at the point on the road where the impact occurred. By then the pursuer would have made it safely past the line of the car's travel and the accident would not have occurred. A similar argument had underlain the decision in Howell‑Williams v Richards Brothers & Anor to which I have referred, and had been accepted by the Court of Appeal. Mr Hanretty submitted that in the absence of evidence as to when the defender's speed ought to have been reduced to the desired level, the pursuer had failed to prove that she would have escaped the collision and that the causative test had not been met. Speculation would be required in order to carry out the necessary calculation; that was impermissible. I do not accept this submission. In my opinion the court can and should make a judgment, based upon the evidence before it, not only as to what would have been a reasonable speed but also as to the distance and time during which the defender ought to have been driving at that speed. I do not for my part regard that as speculation and I consider that I am entitled to carry out the calculation.

[44] A vehicle travelling at 50 mph covers a distance of 100 metres in approximately 4.47 seconds. At 40 mph it covers 100 metres in approximately 5.59 seconds, and at 30 mph in approximately 7.46 seconds. If, as I have found, the defender ought to have been travelling at between 30 and 40 mph instead of 50 mph for at least 100 metres, he would have reached the point at which impact occurred between 1.12 and 2.99 seconds later than he did. Would the collision have been avoided? In order to answer that question it is necessary to make findings regarding the speed of the pursuer across the carriageway.

[45] Mr McCartney's evidence was that research indicated that 85% of 13 year‑olds had a walking speed not exceeding 2.04 metres per second and a running speed not exceeding 4.63 metres per second. Mr Hooghiemstra's figures from research were 2.74 metres per second for a jogger and 1.79 metres per second for a walking adolescent. The width of the defender's car was measured by PC Merson as 1.6 metres. The distance which the pursuer travelled from the offside rear corner of the minibus to the point of impact cannot be calculated precisely because it is not known exactly where the defender's car was in relation to the centre line of the road. Assuming that the defender was driving approximately in the middle of the westbound carriageway, the distance travelled by the pursuer would be 1.826 metres to the centre line plus approximately a further 1.86 metres (a little less than half the lane width, as she was initially struck by the car towards its offside), i.e. 3.686 metres in total. In view of the fact that I have found that it is most likely that the pursuer walked quickly for a couple of paces before breaking into a run, it is impossible to calculate exactly how long she took to cover this distance. Doing the best I can with the figures supplied by both expert witnesses, I estimate that it would have taken the pursuer about 1.5 seconds to cover the distance from minibus to impact. Of more importance, however, is the distance that she could have covered had she had at least another 1.12 seconds available to her before the defender's car arrived. (This part of the calculation does not depend upon any assumption as to the position of the defender's car vis‑à‑vis the centre line.) By now the pursuer was running. She had approximately 1.2 metres to cover in order to be out of the path of the defender's car when it arrived. I am inclined to prefer to use the speed supplied by Mr McCartney for a running 13 year‑old rather than the speed supplied by Mr Hooghiemstra for a jogger, but regardless of which figure is used, it is apparent that the pursuer would have been clear of the nearside of the defender's car even if he had been driving at the top of the range of speeds which I have held to be reasonable. I therefore conclude that if the defender had fulfilled the duties which I have held to have been incumbent upon him in the circumstances of the present case, the collision would not have occurred. The causative test is, in my view, met.

Contributory negligence

[46] It remains, however, to consider the extent to which the accident can be said to have been caused by the fault of the pursuer. In my opinion the principal cause of the accident was the recklessness of the pursuer in attempting to cross the road without taking proper care to check that the road was clear to allow her to do so. Unlike Howell‑Williams, this is not a case about a small child who runs across a road in ignorance of the danger of so doing. At the age of 13 the pursuer was fully aware of the danger of crossing a major road without taking reasonable care to check that no cars were approaching. She was very familiar with the locus of the accident and professed to be aware of the potential dangers of crossing this particular road. There were obvious safe alternatives available to her: she could have remained on the verge until the minibus and the cars queued behind it had driven off and the road was clear in both directions; she could have waited at the back of the minibus until the westbound carriageway was clear; or, having begun to cross, she could have paused at the centre line to allow the defender's car to pass before proceeding further. Why she did none of these things remains unexplained on her behalf. I do not consider that this is a case where, as was suggested by Mr Smith in his submission, a 13 year‑old girl was excusably mistaken as to whether the oncoming lights of the car signalled the presence of danger. At the time when she emerged from behind the minibus the defender's car can only have been about 30‑40 metres away, and I do not accept that her decision to proceed to cross can be characterised as a justifiable misjudgement. Either she did not look to the left before proceeding across the road or, having done so, she failed to identify and react sensibly to the presence of the defender's car in close proximity. On either scenario, the overwhelmingly greater cause of this unhappy accident was the movement of the pursuer into the path of the defender's car at a time when it was impossible for him to avoid a collision.

[47] One has, therefore, in my opinion, a situation in which the pursuer bears responsibility for having committed an act of reckless folly, and the defender bears responsibility for having failed to take reasonable care for the safety of a person such as the pursuer who might commit an act of reckless folly. In that situation, I consider that a very large proportion of the overall responsibility rests upon the perpetrator of the act. In Ehrari v Moses (supra), which also happened to concern a 13 year‑old claimant, a finding of 70% contributory negligence was not challenged on appeal. The circumstances of the accident in that case are described in the judgment of the Court of Appeal. In my view the actions of the pursuer in the present case were even less excusable than those of the claimant in Ehrari. Accordingly, although I have found that the defender was in breach of his duty of reasonable care, I consider it appropriate to make a finding of contributory negligence to the extent of 90%, leaving the balance of 10% attributable to the fault of the defender.

Disposal

[48] As I have found the defender liable to make reparation to the pursuer, the case will now proceed to proof on quantum. If parties wish me to address any question of expenses at this stage of the proceedings, a motion should be enrolled.