Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 153
PD2874/10	OPINION OF LORD JONES in the cause RICHARD LITTLE Pursuer; against (FIRST) IAN GLEN AND (SECOND) TRADEX INSURANCE LIMITED Defender: ________________

Pursuer: Di Rollo QC, Moll; Digby Brown LLP

Defender: Smith QC, Smart; Ledingham Chalmers LLP

17 September 2013

Introduction

[1] This is a tragic case. According to his averments, which were not the subject of any material dispute, the pursuer spent the evening of 11 April 2008 socialising with friends at the University of Paisley student union (although all of them had left university). By the end of the evening (which was, in fact, in the early hours of the next morning) the pursuer had consumed a significant amount of alcohol. His friends paid for a taxi to take him from Paisley to his home in Barrhead. During the journey, the pursuer felt unwell, the driver stopped the taxi and the pursuer got out to be sick. Whilst he was outside the taxi, the driver turned his vehicle back towards Paisley and left the pursuer on the B774 Caplethill Road. The B774 road runs in a generally north to south direction from Paisley to Barrhead. At the point where the pursuer got out of the taxi, the B774 road runs through rural surroundings of agricultural fields. There is no road lighting and there are no pavements. The speed limit for that section of road is 60 mph. The pursuer started to walk in a southerly direction, towards Barrhead. The details of that part of his journey are controversial, and I will come to them in due course. For the purposes of this introduction, it is sufficient to say that, as the pursuer made his way south, he was struck by a Vauxhall Vectra taxi, which was being driven by the first defender in a northerly direction. As a result of that collision, the pursuer sustained very serious injuries.

The pursuer's case on record

[2] In blaming the first defender for the accident, the pursuer avers that the first defender had driven northwards out of Barrhead and that, as he passed a national speed limit sign, he accelerated. It is averred that the first defender failed to pay adequate attention to the road as he proceeded out of Barrhead, and that he failed to switch his dipped headlights to full beam before accelerating. The pursuer further avers that the first defender did not switch his dipped headlights to full beam at any point, and that the use of dipped headlights was not appropriate in the circumstances. It is averred that the first defender's vehicle had two electronic displays above the dashboard, and that these displays created a glare on the windscreen, impairing the first defender's view ahead and creating a distraction.

[3] According to the pursuer's averments, the Vauxhall Vectra struck the pursuer as he walked on the northbound carriageway. Reference is made to rule 126 of the Highway Code which provides, "Drive at a speed that will allow you to stop well within the distance you can see to be clear." The pursuer avers that, had the first defender switched his dipped headlights to full beam before he accelerated or thereafter, he would have had sufficient time to see the pursuer walking on the road ahead of him and brought his vehicle to a halt. Had the first defender been paying adequate attention he would have seen the pursuer, even with dipped headlights, and had sufficient time to bring his vehicle to a halt. The first defender did not apply his brakes prior to impact.

[4] The second defenders are convened as the first defender's motor vehicle insurers, in terms of section 143 of the Road Traffic Act 1988. It is averred that, in terms of regulation 3 of the European Communities (Rights against Insurers) Regulations 2002, "the second defenders are directly liable to the pursuer for the loss, injury and damage he sustained as a result of the fault on the part of their insured."

The defenders' case on record

[5] The defenders aver that, as he was being driven home in the taxi which had been hired by his friends, the pursuer was drunk and incapable. He vomited in the back of the car, and asked the driver to stop when the taxi was on Caplethill Road. The driver could not do so immediately, it is averred, on account of the topography of the road. He stopped as soon as he could and put on his hazard lights. The pursuer got out of the car, leant over a fence and vomited again. According to the defender's averments, the driver drove off home to clean his car, leaving the pursuer where he was.

[6] The defenders go on to aver that Caplethill Road is an unlit, winding country road, and that it has no pavement or segregated area for pedestrians. No driver would reasonably expect any pedestrian to be walking on or next to such a road, especially at night. The pursuer was wearing a light coloured tee shirt, but dark coloured trousers. The first defender was an experienced taxi driver, lived locally and knew the area well. Approximately fifteen minutes prior to the accident, the first defender had driven along Caplethill Road. As was usual, it is averred, there was no pedestrian on the road at that time. The first defender had never seen any pedestrian on that road previously. The defenders believe and aver that pedestrians do not walk on that road at night on account of the lack of pavement and lighting. The defenders aver that, after leaving the 30 mph zone, the first defender accelerated to approximately 40-50 mph. The national speed limit of 60 mph applies, but the first defender limited his speed to account for the road conditions. He was alert and his headlights were on dipped beam, as was appropriate in the circumstances, given the layout of the road, the first defender's knowledge of the road and the likelihood of meeting a car approaching from the opposite direction. It is averred that, suddenly, the pursuer appeared in the defender's field of view and collided almost immediately with the nearside front of the car. The first defender could not take any avoiding action. With reference to the pursuer's averments about instruments causing glare from the windscreen, the defenders explain and aver that the instruments were on "night" settings. They are designed for use in vehicles and at the material time were positioned to the offside of the dashboard. Glare was minimal and did not obstruct or obscure the first defender's view of the road, especially to the nearside. The circumstances of the accident were fully investigated by Strathclyde Police Road Policing Department Crash Investigation Unit. No charges were brought against the first defender following their investigation.

[7] The defenders aver that, if the pursuer had walked across the carriageway and was facing the first defender's car prior to the collision, a matter which is not known and not admitted, the lights of the first defender's vehicle would have been visible to the pursuer for a considerable distance prior to the accident. It was his duty not to walk into the path of an approaching vehicle. It was his duty not to consume such amounts of alcohol that he was unable to take care for his own safety at the material time.

The proof

[8] The action came before me for a proof on liability on 4 December 2012, and six subsequent days. As the case developed in evidence, the following issues emerged as being central to the dispute between the parties:

(i) whether the first defender was at fault for driving on dipped beam at the material time;

(ii) whether he was at fault for not having seen the pursuer in sufficient time to avoid a collision;

(iii) whether he was at fault for driving at a speed that was too fast for the prevailing conditions;

(iv) whether the pursuer was at fault for being in the roadway at the time of the collision; and

(v) whether he was at fault for not moving out of the path of the first defender's taxi, before it collided with him.

The evidence

[9] Eleven witnesses were called on behalf of the pursuer and two on behalf of the defenders. The pursuer did not give evidence for reasons which are given in the joint minute which is number 24 of process. It is an agreed fact that the pursuer has no recollection whatsoever of events in the hours immediately before the accident referred to on record and for a period of several days thereafter, and that his last memory before the accident is driving home from work in England on 11 April. (Joint minute, paragraphs 7 and 8)

[10] The first witness to be called was Peter Gibson, a friend of the pursuer. They had met at university in 2006. He was with the pursuer and others during the evening of 11 April and the early hours of 12 April and he described their activities. Towards the end of the evening, they were drinking in the bar of the University of Paisley student union. They left there at about 2:15 am, and stood outside. The pursuer was "drunk". Mr Gibson phoned for a taxi for him. It duly arrived, Mr Gibson gave the driver the pursuer's address and £5, and the taxi left with the pursuer on board. From Mr Gibson's responses to questions about the pursuer's state of inebriation, both in examination in chief and cross‑examination, it became clear to me that the pursuer was very heavily intoxicated by the time he entered the taxi.

[11] The second witness was Jonathan Bastit, another friend of the pursuer, who also knew him from university days. He was one of the group of friends who had spent the evening and the early hours of the morning together. He described the pursuer as being "a little more drunk than he would normally be."

[12] Witness number three was Shona McDonald, a scenes of crime officer who was on call on 12 April 2008. She was called out to the scene of the accident, and arrived at about 4:30 am. She took a series of photographs, which formed number 6/4 of process, under the direction of the police accident investigator Gregor Rankin. When she arrived, it was just starting to rain and she remembered very heavy rain when she was there. She was taken through her photographs in examination in chief and asked to describe what they showed. It is unnecessary to give a detailed account of her description, but, in general terms, the photographs showed: the first defender's car parked in the southbound carriageway of the B774, pointing north; a series of yellow numbered markers in both carriageways, indicating the position of various items which had been brought to the attention of the witness and which were to the south of the car; what appears to be mud on the road; both verges of the road; debris on the road on both carriageways, to the south of the car; the car from a number of different viewpoints, showing damage; and a pair of Adidas trainers from a number of different viewpoints. During cross‑examination, Ms McDonald was asked questions, in particular, about the position of two socks that she had photographed in the roadway to the south of where the first defender's car was parked. (It later emerged in evidence that, when first seen by the defender as he lay in the road after the accident, the pursuer was wearing neither shoes nor socks.) The sock further to the south of the two was on the westmost edge of the northbound carriageway, and the one further north was in the northbound carriageway, to the west of the centreline of the road. The socks were "some distance, considerably away" to the south of where the ambulance crew appeared to have been working on the pursuer, as demonstrated by the presence on the southbound carriageway of debris associated with medical equipment. In answer to questions from Mr Smith QC, Ms McDonald agreed that, where the southmost sock lay at the edge of the northbound carriageway, the embankment to the side of the road was slightly raised, to about twice the height of the shorter side of an A4 sheet of paper, and it was a place where a person could sit down, next to where the sock was. It was "fair to say" that it was a muddy bank. Ms McDonald was then asked about a "brown discolouration" that could be seen in photograph 37, which showed the front of the Vauxhall Vectra. The witness had said in examination in chief that she thought that the discolouration might be mud. The mark was just above the nearside edge of the radiator grill.

[13] The next person to give evidence was Stephen McBride, a police constable who was called out to the scene of the accident at 2:53 am, and arrived at 3:10 on 12 April. An ambulance was already there, and he noted the presence of the Vauxhall Vectra. He and his colleague, Police Constable John Lawson, coned off the road at both ends, to make sure that no further traffic or pedestrians passed. Constable McBride cautioned the first defender and took a statement, which is recorded within number 6/29 of process. The statement is in the following terms:

"I am a private hire driver for Paisley Cabs. I have been a taxi driver for 13 - 14 months. This is my full time occupation. I live at home with my mum and dad. I generally only drive from Thursday until Sunday. I have my own car. My car is a red Vauxhall Vectra, registration SE04 DYN. I started work tonight (or last night) about the back of 6. I generally work until 4 am or 5 am. At about 2:20am, I was parked in a bus stop on Wotherspoon Street, Paisley. I was waiting for a fare. A guy approached my car and asked me to take him to Neilston. He got in the car and I drove towards Neilston. I drove up Causeyside Street on to Neilston Road and then on to Caplethill Road and through Barrhead. As I drove down Caplethill Road, I did not notice anyone on the road. I travelled through Barrhead and on to Neilston. The journey took about 20 to 25 minutes. I can't remember where I dropped the male. I think it was in Lisa Place, but I don't know Neilston. The man I dropped off was very drunk. The fare cost £9.20.

After dropping the male, I decided to go back to Paisley to get another fare. I went through Neilston towards Barrhead and I was heading to Paisley. I passed Tesco in Barrhead. This is terrible. I am a taxi driver and I don't know street names. I passed the Cross Stobs Pub in Barrhead and I then passed through the national speed limit sign. It was not raining but the road was wet. As I passed through the national speed sign I accelerated to 40 - 50 mph as I was driving towards the first left hand bend on Caplethill Road. I was going uphill. As I reached the first white direction arrow painted on the road, a man appeared on the road. It was instant. I think he appeared from my nearside. He looked as if he was walking towards Barrhead. I didn't see him until he was right in front of me. I think he was close to the nearside of the car. I didn't have full beam on. I tried to move my car out of the way. The next thing I had hit him. There was glass all in my car. The windscreen was smashed in. By the time I stopped, I was in the opposite carriageway. I got out and went straight to the male. He was lying across the centre lines. He appeared unconscious but was still breathing. I phoned 999 and got directions. They told me not to move him. He appeared young. There was blood on his face. He had a light top and jeans on. Another car turned up and a guy stopped to help. I don't think the guy I knocked down was with anyone. I then provided this statement to you and I gave a breath test. I have been driving since 2005. I didn't see the male I knocked down and didn't see where he came from. I can't remember anything else. When I got out the car, the male's trousers were in the middle of the road and I noticed he did not have his socks on."

As the evidence developed, it became clear that reference to "the male's trousers" was an error and that the statement should read "the male's trainers".

[14] In cross‑examination, Constable McBride assented to the proposition that the first defender was perfectly open and frank, and when asked whether it appeared that the first defender was concealing things, Constable McBride replied "absolutely not". He said that the first defender was very worried about the pursuer and that it would not surprise him if the first defender had made enquiries about the pursuer's progress (as the first defender later said in evidence had been the case).

[15] Constable McBride said that he was familiar with the section of the road where the accident happened, having driven on it on a large number of occasions during the day and at night. He was asked questions about his use of headlights at night. He said that, when travelling north out of Barrhead, he would always use dipped beams because of the topography of the road. He explained that there is a downward slope and then an upward slope and there is then a left hand bend which then veers into a right hand bend. If a vehicle was coming in the opposite direction before it had reached the bend you would be unable to see it.

[16] In re-examination by Mr Di Rollo QC, Constable McBride was asked to look at number 7/3 of process, a report by Dr Gary Coley, a road traffic accident investigator, in which Dr Coley says this:

"7.5.13 When driving through the scene, I was able to identify southbound vehicles approaching before they reached the bend in the road (right bend for southbound traffic) as their headlights reflected off the road and hedges. In my opinion, this would provide ample warning to a northbound driver using full beam headlights to dip their headlights before causing any dazzle to southbound drivers."

Constable McBride said that he did not agree with that view. He said that while travelling northwards, you can see the left-hand bend but you cannot see other vehicles which are beyond the bend.

[17] Constable McBride was then shown number 6/21 of process, an extract from a Driving Standards Agency publication in which advice is given about driving at night. He said that he agreed with a passage, under the heading "Speed at night", which reads: "Never drive so fast you can't stop well within the distance you can see to be clear. That is, within the range of your lights." He was then asked to look at the whole passage within which that text appears and which is in the following terms:

"You need to be more alert and aware that you can't safely drive as fast in the dark as you can in the daylight. This includes driving at dusk or dawn, even in good weather.

Never drive so fast you can't stop well within the distance you can see to be clear. That is, within the range of your lights.

To enable you to see the greatest distance, you should normally use main beam headlights on unlit roads unless

·      you're following another vehicle

·      you're meeting oncoming traffic

On lit roads you should normally use dipped headlights.

If you can't stop safely within the range of your lights, you're going too fast."

Constable McBride was asked by Mr Di Rollo whether he agreed with these views and he responded that it depends on the road. He expressed the view that what is contained in these passages is guidance.

[18] When asked what he would do if he saw a pedestrian when he was driving on that road in the dark, he said that he would stop and if they had got off a bus he would pick them up. He was again shown number 7/3 of process, and the following passage was read to him:

"3.2 Whilst at the scene at night (between about 8:30 pm and 9:30 pm), I observed one person walking/jogging along the rural part of Caplethill Road. This male was travelling south, facing traffic, with a head mounted light, but was not wearing any high visibility clothing."

Constable McBride was asked to comment on that passage and replied that he had never seen anybody travelling on foot on that road at night.

[19] Mr Di Rollo's next witness was the first defender, Ian Glen. He testified that he was 28 years old and employed as a labourer for a construction company. In April 2008, he worked as a taxi driver. He gave up his employment as a taxi driver when the accident happened. He worked for the Paisley Cab Company, but was self‑employed. The Vauxhall Vectra was his, and he had owned it for about six months before the accident. He had held a full driving licence for about two years, and had been working as a taxi driver for about a year.

[20] The first defender testified that, on 11 April 2008, he had started work at about six o'clock in the evening and he gave an account of how his time was spent, up until the time of the accident. He dropped his last fare off in Neilston, which was, he said, beyond Barrhead, travelling from Paisley. It took about 10 minutes to travel from Barrhead to Neilston. As he drove back towards Paisley, the weather was "okay". He thought that it had rained earlier that evening, but it was not raining at the time, and he had no wipers on. Asked about visibility, he said that he "could see fine". The first thing that he remembered about the accident was driving along the road, and the passenger's side of his windscreen smashed. He stopped his car and got out as soon as he could. It was dark and his headlights were on dipped beam. He said that the only thing he remembered was that the windscreen smashed. He could not remember if he braked before the windscreen smashed. He did not think that he saw anything before his windscreen smashed. When he got out of his car, he turned round and saw someone lying in the middle of the road. He phoned for an ambulance. He was shown number 6/17 process, a Scottish Ambulance Service patient report, which records that the call was received at 02:46:00 hours on 12 April 2008 and that the ambulance crew arrived at the scene at 02:55:00.

[21] The person lying on the road was a male, wearing a light top and dark trousers. The first defender thought that he had called for an ambulance when he was on his way to the man and that "they told me what to do". The first defender said in evidence that he was told to talk to the man, which he did. About five or ten minutes after the accident, another man came to the scene. He was in a car, and came from the direction of Paisley. He drove his car round the first defender's car, got out and came back to where the first defender was, and asked him what had happened. Then the ambulance arrived from the Paisley direction. It drove up to where the man was lying, and the first defender spoke to paramedics. Other cars arrived, "they were all piled up" behind the second man's car, and then the police arrived. According to the patient report, the ambulance and crew left the scene at 03:14:00. The first defender said that he then spoke to the police and gave them a statement. He was shown number 6/29 of process and read it. Asked about the reference to "trousers" lying in the road he said that he had most likely told the police that he had seen trainers. He said that he did not remember where they were. When asked again when he first saw the man that his car had struck, the first defender said that he could not remember seeing him before the impact.

[22] The first defender was asked some further questions about the use of his headlights. In particular, he was asked whether he sometimes would use full beam on that road. He said that he would, "further up the road", but not at that part of the road. The matter was not explored further in examination in chief.

[23] In cross‑examination, the first defender was asked a number of questions about the detail of events immediately following the collision. A particular matter which emerged in his evidence at that time and which was, apparently, contentious, was his testifying that, shortly after the accident, there was a "young boy walking along the road from Paisley to Barrhead". (I shall refer to this person as "the young boy".) Objection was taken by Mr Di Rollo to any further evidence about the young boy, by reference to the following averments at pages 8 to 9 of the record:

"Approximately fifteen minutes prior to the accident that befell the pursuer, the first defender had driven along Caplethill Road. As was usual, there was no pedestrian on the road at that time. The first defender had never seen any pedestrian on that road previously. It is believed and averred that pedestrians do not walk on that road at night on account of the lack of pavement and lighting."

I allowed the line of questioning to continue, subject to competency and relevancy.

[24] The first defender was shown the book of photographs, number 6/4 of process, and asked to indicate where the boy was walking. On the east side of the road can be seen an apparently soft grass verge. The first defender's evidence was that the boy was probably walking on the soft verge and had come off it and walked towards him. There were other people who had got out of cars and others who had not got out of cars. The battery of the first defender's mobile phone was dead and he had borrowed the young boy's phone to call the police.

[25] Asked again about why he had his headlights on dipped beam, the first defender replied: "because of the way the road is". He explained that, for a car coming from Paisley, there is a dip in the road before the corner. If another car came towards him from the other side of the bend ahead, the first defender said that he would dazzle the driver so he would choose not to put his headlights on full beam. Finally, in cross‑examination, the first defender said that he was concerned to find out what had happened to the pursuer and telephoned the police, who told him that the pursuer was very seriously injured.

[26] In re‑examination, Mr Di Rollo suggested to the first defender that, as he drove northwards along Caplethill Road towards the left hand bend, he could quite easily put full beam on and switch it back to dipped beam in advance of the bend if any car was coming round the bend. The first defender replied: "Yes, but would you see the car coming?" Mr Di Rollo said that his suggestion was that you would see the headlights of the car coming. The first defender responded: "But there's a hill on the other side of it so you wouldn't see it." Mr Di Rollo put it to the first defender that he was wrong and that you would see the lights, to which the reply was: "I don't think that's right, you wouldn't see the lights." He was asked whether, if driving on dipped headlights, "you'd have to slow down a bit". That line of questioning was objected to by Mr Smith on the ground that it did not arise out of cross‑examination, and I allowed it subject to competency and relevancy. The first defender assented to the proposition, but explained that he was only doing 40 or 50 mph. He was then asked questions about when he first mentioned the young boy and, in particular, whether he had mentioned him when he had given certain statements to his solicitors. Mr Smith objected to the line, on the basis that such statements were precognitions and that evidence about them was inadmissible, under the provisions of section 3 and 9 of the Civil Evidence (Scotland) Act 1988. Once again, I allowed the line, subject to competency and relevancy.

[27] Police Constable John Lawson was called on the morning of the second day of the proof. In April 2008, he was based at Greenock. He and Constable McBride received a call to go to Caplethill Road at approximately 02:50 hours on the morning of 12 April, and they travelled there together. His account of their activities while at the scene was similar to that given by Constable McBride. Constable Lawson spoke to having filled out a road crash report, which is number 6/16 of process. During the course of investigations into the circumstances of the accident, he took a statement from Alexander Paul, who had been the driver of the taxi which had conveyed the pursuer from Paisley to the place on the B744 where he had alighted. According to Mr Paul, he had picked up the pursuer from the students' union and, on route to Barrhead, the pursuer opened the taxi door while the vehicle was moving. Mr Paul brought the taxi to a halt, whereupon the pursuer got out and ran across the road. The taxi was facing in the direction of Barrhead, at a point which was on the Paisley side of the bend that has been the subject of discussion in this opinion. In other words, in relation to the where the Vauxhall Vectra struck the pursuer, Mr Paul's taxi was stopped to the north, and round the bend. Mr Paul said that he thought that the pursuer was being sick when he reached the other side of the road. Mr Paul did not get out of his taxi but could smell and see sick in the rear passenger footwell. He then turned his taxi round, logged off and ended his working evening. Constable Lawson had gone back to the scene with Mr Paul later on the day of or on the day after the accident, and was able to indicate where various things had happened by reference to the photographs and on a plan which had been lodged. (Number 7/3 of process, page 4)

[28] In cross-examination, Constable Lawson gave a little more detail about the account provided to him by Mr Paul. He was then asked about whether he had seen socks on the carriageway when he had arrived at the scene of the accident. The first defender had mentioned in his statement that the pursuer was not wearing socks when he went over to him, and socks could be seen in the photographs, number 6/4 of process. Constable Lawson said that he saw socks, not far from what he had taken to be the point of impact.

[29] Constable Lawson said he had undergone advanced police driver training in pursuit techniques and that this stretch of road was well known to him. He was aware that the first defender had said that, at the time of the collision, he was driving on dipped headlights. He was asked whether, knowing about the conditions at that time, he was concerned about the use of dipped beam. He said that he was not. He explained that, when he is driving out of Barrhead at night, he is on dipped beam because, if he were on full beam, he would not see someone coming round the corner ahead. He testified that he had driven on that road since the accident and that the corner is sharper than it looks in the photographs. The road drops away at the other side and a car approaching from the opposite direction comes up the hill. A driver travelling towards Paisley would not see the headlights of a car coming the other way.

[30] Finally, in cross‑examination, Constable Lawson said that he had never seen anyone walking on that road at night. If he were to see someone, and he was on duty, he would pick them up. It was an extremely dangerous road to walk on at night. If he was off duty, he would call control.

[31] In re-examination, Constable Lawson was asked about certain entries in "Roadcraft: The Police Driver's Handbook", number 6/31 of process. The following passages were put to him:

"Lights

On unlit roads put your headlights on main beam and only dip them for other road users.

Use dipped headlights:

·      in built-up areas

·      in situations when dipped headlights are more effective than the main beam, for example when going round a left-hand bend or at a hump back bridge in heavy rain, snow and fog when the failing droplets reflect glare from headlights on full beam.

·      Dip your headlights to avoid dazzling oncoming drivers, the driver in front or other road users. When you overtake another vehicle, return to full beam when you are parallel with it.

...

Always drive so that you can stop safely within the distance you can see to be clear; at night this is the area lit by your headlights unless there is full street lighting. Even in the best conditions your ability to assess the speed and position of oncoming vehicles is reduced at night, so you need to allow an extra safety margin."

Constable Lawson described these passages as advice for advanced drivers, with which he agreed. He said that this was the only pedestrian accident in which he had been involved on this road.

[32] Constable Lawson was asked to look at paragraph 7.5.13 of Mr Coley's report, the terms of which are set out at paragraph [16] of this opinion. He said that he did not agree with the view expressed there and explained that he would far rather have his dipped beam on. He accepted a suggestion that if he was driving on dipped beam he would reduce his speed.

[33] Police Constable Gregor Rankin, who was the next witness, is the author of a "Strathclyde Police Crash Investigation Report", which is number 6/8 of process. He is an advanced police driver, holds a Scotvec certificate in motor vehicle examination for police traffic patrol officers and has attended the standard road accident investigation course and the police forensic collision investigation course, held at the Scottish Police College in conjunction with Grampian Police and Aberdeen University. He holds a certificate from the Scottish Police College in the discipline of road traffic investigation for police officers and a City and Guilds of London Institute certificate in police forensic collision investigation. He was called out to the scene of the accident at 03:50 hours on 12 April 2008, and arrived at 04:40. In examination in chief, Constable Rankin was taken through the text of his report. He noted that the accident happened in the northbound lane of the B774 Caplethill Road Paisley, approximately 160 metres north of its junction with Brownside Avenue, Barrhead. The east and west sides of the road are bounded by narrow grass verges leading to a line of broken hedging incorporating a post and wire fence, beyond which is agricultural land. The roadway has a gradient which rises gently at the locus and thereafter becomes a pronounced uphill gradient beyond the locus toward a left-hand bend for northbound drivers. He recorded that there is no street lighting at the locus, the nearest being near the junction with Burnside Avenue, approximately 150 yards south.

[34] Constable Rankin noted that the road surface consisted of a macadam/bitumen compound inlaid with stone chips and was in a good state of repair with no apparent defects. At the time of his arrival, it was dark and dry. A short time after his arrival, it began to rain. The road at the locus was subject to the national speed limit which, for the Vauxhall Vectra, was 60 mph. Constable Rankin records in his report that, on exiting Barrhead, for a driver travelling northwards "a view of the full extent of the roadway from west to east verge including the approaching bus stop and junction on the east and the oncoming up gradient can be had by dipped beam headlamp illumination". His report contains no note of the forward extent of such illumination ahead, and the matter was not explored in evidence. So far as is relevant, his report continues:

"At the time of the incident I examined the interior of the witness Glen's vehicle and observed that he had a windscreen mounted satellite navigation device and a dash mounted taxi message/status device both placed at what would be the 12 o'clock and 1 o'clock positions from his seated position. Although they did not cause a physical obstruction to a driver's view I found that when driving a similar vehicle with these items placed in a similar position from the built up area into the same unlit stretch of roadway at night, the light emitted from these devices caused a glare on the windscreen. The effect was not such that I could not see the road ahead but was enough in my opinion to give cause for concern for any future road safety issues.

Although no physical obstruction was being caused, it may be that the repositioning of such devices would be beneficial to maintain a clear view ahead at all times.

8.2. Pedestrian's view

A southbound pedestrian, as in this case, walking on the east verge at locus and having cleared the right hand bend situated north of the locus, has a view of Caplethill Road right through the locus and up to the junction with Brownside Avenue, in the built up area. At the time of the incident a pedestrian's view could be further aided by the headlamps of oncoming vehicles."

When Constable Rankin reached that part of the foregoing text where he mentions glare, Mr Di Rollo asked him to confirm that he was concerned about the glare from the devices. Mr Smith took an objection to that line, on the ground that the matter of glare was not put to the first defender when he gave evidence, and I allowed the line subject to competency and relevancy. In the event, as will be seen, Mr Di Rollo did not advance any case of fault based on the presence of glare. In these circumstances, I need not rule on the objection.

[35] Constable Rankin reports that he prepared a scale plan drawing, and inspected the Vauxhall Vectra. The observations which he made during that inspection are narrated, after which he expresses this view:

"This damage to the Vauxhall Vectra motorcar was consistent with the front of the vehicle striking a pedestrian crossing from the driver's offside to nearside. Thereafter the pedestrian has travelled over the bonnet of the vehicle, struck the windscreen of the vehicle travelled over the roof of the vehicle and come into contact with rear nearside ("sic") of the roof and the rear nearside of the vehicle before landing on the roadway as the vehicle has run under the pedestrian."

Thereafter, the report continues in the following terms:

"9.3. Marks on the carriageway

9.3.1. Scuff marks

Along the centre of the roadway and into the southbound lane I found scuff marks which were consistent with the victim sliding across the road surface at this point. I have labelled these scuff marks accordingly on the scale plan drawing.

9.3.2. Debris

I located an area of vehicle related debris primarily on the northbound lane of the B774, Caplethill Road, Paisley. This consisted of various pieces of plastic trim and an area of broken glass. The plastic trim and the area of broken glass are labelled accordingly on the scale plan drawing.

9.3.3. Additional items of Debris
At the locus I also observed items of clothing and jewellery which I have recorded and labelled on the scale plan drawing. These were two socks labelled "S", a metal chain labelled "C" and a metal "T' bar, labelled "M", which may have broken from the chain. It has not been confirmed whether these items belonged to the victim, but due to their proximity to this incident I have retained them on the scale plan drawing. It should be noted however that their inclusion or omission would not have any effect on the reconstruction of this incident

9.4. Point of impact

The point of impact in relation to this incident is on the northbound lane of the B774, Caplethill Road, Paisley at the point labelled "Fp" on the scale plan drawing. This was the last of the footprints left by the victim as he crossed the carriageway. This footprint was distinct in that it showed signs of the shoe being pushed across the road surface. In this case in a northbound direction. This is consistent with the victim crossing the carriageway from east to west and being struck by the northbound Vauxhall Vectra motor vehicle at this point. The position of "Fp" and the damage pattern to the vehicle are also consistent with the driver of the vehicle steering towards the centre of the road just prior to impact. This suggests that the driver has seen the pedestrian at the last minute and tried to take evasive action.

9.5. Movement of victim

The movement of the victim Little can be followed by the footprints left by his shoes (labelled "F" on the scale plan drawing) as he walked along the east verge of the southbound lane before crossing the southbound lane into the northbound lane where he has been struck by the front of the Vauxhall Vectra motor vehicle, at the point labelled "Fp" on the scale plan drawing. As the vehicle continued northbound and the victim passed over the top of the vehicle he has then come into contact with the road surface where he has continued travelling northbound across the road surface leaving the scuff marks labelled on the scale plan drawing."

[36] At paragraphs 9.6 and 10, Constable Rankin reports that he was unable to calculate the speed of the Vauxhall Vectra and that, on examination, no mechanical defect was found which may have contributed to the accident. Under the heading "11. Reconstruction", Constable Rankin says this:

"I have examined the locus, the vehicle and the witness statements and I reconstruct this incident as follows:-

About 0245 hours on Saturday 12th April 2008, the victim Richard Little was walking southbound on the east verge of the B774, Caplethill Road, Paisley towards the built up area of Barrhead. At this time he was outwith the built up area where there was no street lighting or footpaths. The victim was walking on the verge at the east side of the carriageway. The verge was covered in soft earth and the imprint of the victim's shoes could be seen in the earth as he walked southbound on the east side of the road. At a point approximately 170 metres north of the built up area the victim has began (sic) to cross the road from east to west. This can be seen by the footprints left on the carriageway by the soles of the victim's shoes. At this time the witness Ian Glen has been driving his Vauxhall Vectra motor vehicle registration mark SC04 DYN northbound on the B774, Caplethill Road travelling out of the built up area and onto the unlit section of road which now carried a higher speed limit, which in this case was 60mph. As he accelerated his vehicle along the northbound lane, the victim has reached the centre of the northbound lane. The witness Ian Glen has steered his vehicle towards the centre of the carriageway in an attempt to avoid the victim but however the front nearside of his vehicle has struck the victim who has then landed on the bonnet, then struck the windscreen before travelling over the roof of the vehicle as he has been run under by the Vauxhall Vectra motor vehicle. As the vehicle continued to travel northbound it has entered the southbound lane where it stopped on the southbound lane approximately 48 metres north of the point of impact The victim, who has landed on the centre of the road, has then slid to his post impact position leaving the scuff marks shown on the scale plan drawing. Various items of debris have been left on the roadway after the impact and their positions are shown on the scale plan drawing."

[37] Under the final heading "12. Conclusions", Constable Rankin expresses the following views:

"Having examined all the evidence available to me it is my conclusion that the blame for this incident lies with the victim Richard Little.

A good view of the witness Glen's vehicle should have been available to the victim for some distance, yet he apparently crossed the road into the path of the oncoming vehicle. It may be that the victim was under the influence of alcohol that coupled with the low temperatures and his lack of warm clothing may have affected his judgement of the witness Glen's vehicle speed and distance or it may be simply that the victim did not make a proper check for approaching vehicles before attempting to cross the carriageway.

Had the victim paid proper attention to the witness Glen's approaching vehicle he should not have attempted to cross the carriageway.

The Highway Code,

Rule 17

At night. Wear something reflective to make it easier for others to see you.

The deceased (sic) was wearing a white t-shirt and dark trousers, which coupled with the lack of lighting at the locus, would not assist drivers in locating him at night

The reasons why the victim crossed the carriageway into the path of the witness Glen's vehicle are open to speculation. Having considered all the evidence available, it is my opinion that the blame for this incident rests with the victim Richard Little. It is my opinion that he has heedlessly crossed the road into the path of the witness Glen's vehicle."

[38] Constable Rankin was asked to comment on the first defender's assertion, in the statement taken by Constable McBride, that the pursuer had appeared on his nearside shortly before the collision. He replied that that was inconsistent with the damage that he had seen. He explained in evidence that the footprints to which he referred in his report were a number of patches of mud, each in the shape of a shoe. When he arrived, he was led to believe that the pursuer's trainers had gone to the hospital with him and he asked for them to be brought back. That was done, and he examined the soles of the trainers and saw that they had a herringbone pattern, similar to the prints that had been left on the road surface. He was able to tell which prints were made by the left trainer and which by the right. He explained that the last print was not a full print. It was a mark similar to the others, but it was not a full mark. It was as if it had been "wiped" or "scrubbed" along the carriageway across the road surface in a northbound direction. When asked to explain what he meant, he said that "smeared" would be a better word.

[39] The witness was unable to say whether the pursuer was moving or stationary at the moment of impact. As to the speed of the vehicle, he said that nothing in the evidence pointed in a direction different from a speed of 40 to 50 mph. By reference to his scale plan, Constable Rankin was asked to measure the distance from the point of impact to the centre line of the road, and he said that it was 1.4 metres into the northbound carriageway.

[40] In cross‑examination, Constable Rankin agreed that, as the first defender's vehicle approached from the direction of Barrhead, a person crossing the road would have a very clear view of approaching vehicles, and could remain on the grass verge. Asked about the footprints, he said that he had compared the shoe size as well as the pattern. There was no full complete pattern and he could not say that the trainers fitted the prints precisely. He accepted that whether or not the footprints were caused by the pursuer's trainers would depend on how popular the pattern on the soles of the pursuer's trainers was, and whether someone other than the pursuer had walked down the muddy verge and across the road from east to west. He accepted that the smear could have been consistent with a cause other than someone standing in the carriageway being struck by the first defender's car. He did not accept, however, that it was consistent with someone trying to wipe mud off their foot. He explained that the footprints prior to that had a clear pattern, but that the last one did not. It was as if the person had put his foot down and it was smudged across the surface. He was asked whether a vehicle driving on the mark may have changed its structure, and he responded that, if it had been a vehicle, he would have expected there to be a more distinct type of tread mark. He also accepted that he could not say with any degree of accuracy what the pursuer was doing before the collision. In particular, he may have been bent over, or moving in an erratic fashion, and he could not know how easy the pursuer was to see.

[41] The next witness was Mrs Lesley McCall. She said that she was a staff nurse at the Royal Alexandra Hospital in Paisley. She had lived in Barrhead since she was three or four years old, and travelled to and from work by car using the Caplethill Road at all hours. Mrs McCall testified that she had seen pedestrians on either side of the road outside Barrhead "at strange times", two, three, four or five o'clock in the morning. When travelling from Barrhead northwards during the hours of darkness, it was her practice to put on full beam and put it off at the corner. In cross‑examination, she agreed with Mr Smith that the use of full and dipped headlights was "each individual's choice". She said that she would not feel comfortable driving on dipped beams out of Barrhead, but accepted that it was a matter of opinion.

[42] The next witness to be called was Colin MacMaster. He is now retired, but was the police officer in charge at the scene of the accident. His evidence did not add to that of the other officers who had attended at the scene, and he was not cross‑examined.

[43] Dr John Searle was then called on behalf of the pursuer. He is a Chartered Engineer, a Fellow of the Institution of Mechanical Engineers, Automobile Division, and a Fellow of the Institution of Highways and Transportation. He describes himself as a road traffic reconstruction expert. He graduated from University College London with an honours degree in mechanical engineering, and was awarded a Ph.D. there in 1973, after which he followed a career at the Motor Industry Research Association, a research institute set up jointly by the motor industry and the UK Government to research into all matters relating to vehicles. He worked there for 25 years. He began by taking charge of "human factors" work, which encompassed reaction time, distraction, field of view and other topics related to driving. He was the head of the safety department for many years, carrying out crash testing and similar work. His department carried out "thousands" of crash tests of all kinds, in which cars, motorcycles and lorries either collided with another vehicle, a barrier or a pedestrian, or else rolled over. In due course, he became scientific director, in charge of about 200 engineers, physicists, mathematicians, technicians and others, and had responsibility for the entire programme of scientific and engineering work. Dr Searle left the Motor Industry Research Association in 1989 to work on his own account, and has been doing so ever since. He regularly gives evidence in court, in cases such as this. For the purposes of this litigation, Dr Searle prepared a report, number 6/28 of process, and a number of photographs of the locus, which were produced as number 6/23 of process. I regarded him, in general terms, as appropriately qualified to give expert evidence relevant to this case.

[44] Dr Searle testified that he had visited the locus on two occasions, the first on 20 January 2010, and the second on the evening of 6 December 2012, the day before he was called to give evidence. He had read the statement given by the first defender to Constable McBride, as noted in number 6/29 process, and Constable Rankin's report, number 6/8 of process. He had also read the report by Dr Coley, number 7/3 of process, and one by Dr Edgar, number 7/1 of process, both of whom had been instructed on behalf of the defenders. Dr Searle had been provided with a report, which is number 6/18 of process, entitled "Medical Opinion on Richard Little" by Mr Rudy Crawford, a consultant in accident and emergency medicine and surgery at Glasgow Royal Infirmary, in which Mr Crawford gave an opinion on whether the pursuer was struck by the first defender's vehicle on the right or left side of his body. Dr Searle had sat through the evidence given so far.

[45] Having been asked about his qualifications and experience, Dr Searle was shown a video recording which he had made, number 6/24 of process, showing the route taken by the first defender on the night of the accident. He was then asked about his views on the circumstances of the accident. In essence, Dr Searle agreed with the views that had been expressed in evidence by Constable Rankin about the footprints having been left by the pursuer, the point of impact, and the sequence of events after impact. Dr Searle was asked about the significance of what Constable Rankin had described in his report as signs of the shoe being pushed across the road surface in a northbound direction in the position of the last of the footprints. Dr Searle said that it was a "classic feature of accident reconstruction". He explained that what he described as a shoe scuff mark and where it occurs locate very specifically the point of impact. He was then asked to consider the terms of the statement which Constable McBride took from the first defender, and to give his views as to the pursuer's direction of travel between the point of impact and his coming to rest on the road surface. Dr Searle said that the damage to the car, as recorded by Constable Rankin, suggested that the pursuer was either stationary or travelling slowly from the car's offside towards its nearside. He said that the pattern of damage was not consistent with the pursuer's running nor with his having come out from the nearside and walking from nearside to offside. The early damage to the car, he said, was slightly further to the offside than the late damage.

[46] Dr Searle was asked whether he could calculate the speed of the first defender's car at impact, and he said that he would be fairly confident in doing so. In this report, Dr Searle suggested a range of speeds from 37 to 45 mph and, in evidence, narrowed the range to "40 mph or a little over".

[47] Dr Searle was then taken to that part of his report in which he deals with the actions of the pursuer. (Section 10) At paragraph 10.2, Dr Searle expresses the following view:

"It seems that the line of muddy footprints must have been made by Mr Little. They have been made not long before, since traffic would obliterate them. It would be a coincidence if another pedestrian had been in the area at all and an especial coincidence if one had happened recently to cross the road, just where this accident occurred, and it had not been Mr Little. It would be even more of a coincidence if, immediately before crossing, this other pedestrian had got his feet muddy by going onto the verge, as Mr Little is known to have done. Furthermore the footprints are slightly irregular, as if made by someone having difficulty in walking a straight line."

At that point, Mr Smith took objection to the line which was being developed, on the basis that the views expressed by Dr Searle in this section of his report were matters for the court, and not for the witness. I allowed the line subject to competency and relevancy, and I shall say more about the matter later in this opinion.

[48] At paragraph 10.3(d) of his report, Dr Searle says this:

"When Mr Little was struck by the front bumper of the car, both his legs were bent in a direction towards his left. The left leg sustained a rupture of the medial ligament whilst the right leg sustained outward bowed fractures of the tibia and fibula. The injury which occurred before the pedestrian was rotated or lifted by the impact, suggests that the pedestrian was facing towards the car's nearside."

Dr Searle explained that the injuries which are the most reliable in telling in which direction the pursuer was facing, rather than in which direction he was going, are those to the legs. That is because, after the initial impact on the legs, the pedestrian then tips towards the car and somersaults over the car, causing his legs to go much higher than his head, and he strikes the windscreen before going over the top of the car. As he strikes the windscreen he can effectively be the other way round, because his legs are up over his head. Because of that possibility, Dr Searle explained, he was not enthusiastic about trying to interpret the direction in which the pursuer was facing from injuries sustained late in the sequence. If we go to the injuries sustained early in the sequence, he said, there was a rupture of the medial ligament on the left leg so that on the left leg, it is the ligament on the inward side of the leg that was broken and that occurs when the left leg is struck on the outside bowing it in a direction inward relative to the person. On the right leg, there were breaks of the tibia and fibula. They created wounds on the outside, where the broken bones had come through the surface and again this suggests that the direction of the blow on the person was from left to right. It is for this reason that Dr Searle came to the same conclusion as did Mr Crawford, that the pattern of injuries sustained were consistent with the pursuer having been struck from the left side. At that point in his evidence, Dr Searle referred to number 6/18 of process, at page 3, and to the following passage:

"7. In my opinion, on the balance of probabilities, this would be consistent with the claimant being struck with the car bumper on the left side of the lower limbs while he was crossing the road from the southbound to the northbound carriageway (i .e. from east to west).

8. Overall, on the balance of probabilities, the pattern of injuries sustained was consistent with the claimant being struck from the left side by the vehicle as he crossed the road from east to west."

[49] At section 12 of his report, Dr Searle discusses the issue of visibility. At paragraph 12.2 and 12.3, he says this:

"12.2 It is important, when driving on unlit rural roads at night, to use main beam when possible. If one drives on dipped beam, a lower speed must be adopted in order to be able to stop within the distance seen to be clear, because the range of visibility is less.

12.3 Dipped beam was particularly restricted here by the change of road gradient as the accident site was approached. When the driver was 50 metres from the scene of the accident, he was on a down slope of 0.6%, whereas the pedestrian was on an up slope of some 3.0%. As a result the pedestrian was raised by nearly a metre, relative to the aim of the headlamps, In other words, even the lower parts of the pedestrian were above the beam cut-off. When going through a dip, it is more than ever important to use main beam."

[50] Dr Searle was reminded that Constables McBride and Lawson had said in evidence that they would have been driving on dipped beams at and shortly before the point of impact, and he said that his advice would be the same as that given in the official guidance. Main beam is much more effective, he said, in showing pedestrians on the road. If using dipped headlights, "you must keep your speed down."

[51] A little later in his evidence, Dr Searle was asked about the passage in his report concerning glare on the windscreen, caused by the dashboard mounted instruments. He said that, given the existence of glare, it "would always be better to use full beam."

[52] Towards the end of his examination in chief, Dr Searle was taken, once again, to section 12 of his report, and he confirmed the opinion which he expressed in that section, namely that, if the first defender had been driving on full beam, he would have had "no difficulty" in seeing the pursuer and stopping before colliding with him, and that, even on dipped beam, he should have been able to stop in time to avoid the collision.

[53] Mr Smith opened his cross-examination of Dr Searle with what was plainly intended to be an attack on his reliability. I shall say more about that when I come to discuss the evidence, but there is a passage in Dr Searle's testimony which I wish to notice at this stage. Counsel reminded him of the case of Stewart v Glaze [2009] EWHC 704 (QB) ("Stewart"), in which he had given expert evidence. At paragraph 48 of his judgment, the presiding judge, Coulson J, said this:

"Much of the rest of Dr Searle's evidence was taken up with his contention that, if the collision had occurred at a lower speed, say 20 mph, it was very probable that the catastrophic injuries would have been avoided. Beyond some general statistics taken from the 'Speed Kills' booklet, Dr Searle was unable to be specific as to the medical or statistical basis of this opinion. He said that he did not know that the booklet had been withdrawn. He was adamant that the nature and extent of Mr Stewart's particular injuries in this case were irrelevant to this question. I am bound to say that, in this passage of his evidence at least, I considered that Dr Searle was advocating a line of argument which had little or no connection with his engineering expertise as an accident reconstruction expert. "

At paragraph 89, Coulson J returned to the same theme these words:

"I felt that there was some force in Mr Turner's closing submissions to the effect that, on this part of the secondary case, Dr Searle had become an advocate rather than an expert."

[54] Mr Smith asked Dr Searle to agree that what the judge had said "was a pretty devastating criticism." Dr Searle's response was that he "wouldn't say that". He continued:

"Those of us that give evidence in court on a regular basis ... it must inevitably happen that our evidence is rejected by the judge on numerous occasions. Generally, on an average I suppose, 50% - something of that kind. I will say that when I count back over my past cases, and I look at cases where the judge has decided 100% one way or 100% the other ... it's plain whose evidence has been accepted or rejected ... I have given evidence on the side that won the case something - in something like 75 or 80% of the time, in other words judges accept my evidence far more often than they reject it. But if you trawl through the internet, of course you can find cases where it's the other way round."

Dr Searle was then asked whether his evidence had been rejected in any other case by the judge commenting that he had become an advocate for the party concerned. His reply was that, over the years, this does happen. It is one of the grounds, he continued, on which an expert's evidence can be rejected and, so, it does happen to him on occasion. Experts can either be rejected on the grounds that they have got it wrong, or in the grounds that they are acting as an advocate and if the judge does not accept his evidence, one other of those will be the reason. Asked again by Mr Smith whether it is a devastating criticism of an expert to say that he is acting as an advocate, Dr Searle replied that he did not accept that. He thought that most experts who have practised for many years giving evidence in courts will have similar comments directed at them because, if the expert's evidence is going to be rejected, then that is one of two principal grounds on which it can be done.

[55] There then followed a discussion about work which had been carried out by Rudolph G Mortimer of the Department of Health and Safety Education at the University of Illinois. A paper entitled "Motor Vehicle Exterior Lighting", of which he was the author, was produced as number 6/27 of process. Dr Searle had referenced that paper in his report, and his reliance on it was the subject of challenge by Mr Smith. I say more about Dr Searle's evidence on the Mortimer paper, later in this opinion.

[56] Later in cross‑examination, Dr Searle said that he had no knowledge of any accident in which a pedestrian had been struck by a motor car and, as a result of which, both of the pedestrian's shoes and both of his or her socks had come off. He could not recall any such accident which he personally had investigated in which one sock had come off. He had investigated a total of 3,000 to 4,000 accidents, of which about 1/5 had involved pedestrians. He agreed with Mr Smith that it is possible that the pursuer had taken his socks off, and that he did so because they were "soaked in vomit". There was then some discussion about the possibility that he may have put his shoes back on again, or that he may not have done so. Dr Searle agreed that, if the muddy footprints on the carriageway were made by the pursuer, and if he had then removed his shoes and socks, a period of time must have elapsed between his leaving the last footprint and taking his socks off. The suggestion was that, at about the last footprint, the pursuer sat down, took his shoes and socks off, stood up again on hearing a car coming, faced once more in the direction of the footprints and was stationary in that position when struck by the first defender's car. Dr Searle's response was: "I suppose it's a possibility". It was further suggested to Dr Searle that it is "equally possible that that scenario happened as opposed to him having his shoes and his socks whipped off in an accident". Dr Searle accepted that that was "the only alternative".

[57] Dr Searle was then asked to look at number 33 in the book of photographs number 6/4 of process, and to notice that there was what appeared to be a muddy deposit on the bonnet of the first defender's car, which had been spoken to by the photographer, Shona McDonald, and by Constable Rankin. Dr Searle agreed with a suggestion put by Mr Smith that, if the muddy deposit was left there during the accident, it would have had to have come from the pursuer; that, if the pursuer was standing upright and the car collided with him, the point of contact was most likely to be his hip; and that, therefore, if he had mud on his bottom, he would have had to have had his bottom in contact with mud at some stage prior to the point of impact. Mr Smith then put it to Dr Searle that, if the pursuer had been sitting on mud at some stage, and had taken his socks off at some stage, it did not take a great deal of imagination to conclude that it was probable that he was sitting down because he was taking his socks off. Dr Searle accepted that that would be a reasonable explanation but, whether it was the only one, he did not know. Mr Smith reminded Dr Searle that there had been evidence from the photographer that there was a muddy embankment at the side of the road "right next to where a sock was found" and that it was about twice the height of the short side of an A4 sheet of paper. Counsel suggested that, if the pursuer had sat on that bit of the embankment, that would explain how he had got mud on his trousers that ended up being transferred to the car. Dr Searle responded that there were a number of problems with that suggestion. He explained that, if the pursuer had come from there, he would be moving and facing in the wrong direction when struck by the car. Dr Searle went on to say that, although Mr Smith had asked the photographer about that area in particular, there were raised verges "all over the place" and that it is quite possible that, if indeed the pursuer sat down, he did so on a raised verge on the other side of the road. Then, if he took his socks off, for whatever reason, he then slipped his shoes back on and set off at a diagonal angle across the road. Mr Smith invited Dr Searle to agree that, if the pursuer had come from the nearside of the car approaching, there is nothing in the evidence to tell us that he could not have turned at the last moment just before impact. Dr Searle expressed the view that it seemed very unlikely that he turned suddenly around and started heading back towards the nearside again. He characterised the hypotheses on which Mr Smith has asked him to comment as not being "natural explanations of what we see".

[58] Mr Smith then asked Dr Searle about the navigation equipment on the dashboard of the first defender's car. Since Mr Di Rollo did not ask me to make any finding of fault on the part of the first defender in which the dashboard instruments might have played a part, I need say no more about them.

[59] The last chapter of Mr Smith's cross‑examination of Dr Searle was concerned with the "question of driving in the visible field of view on lights". Dr Searle was asked to look at number 7/8 of process, a book entitled "Forensic aspects of driver perception and response" by Olsen and Farber (2003). Dr Searle was asked to confirm that the book is based on a considerable amount of research, both by the authors and by others. In response, he said that Olsen is an expert in the field, and that the book summarises a great deal of work. (The book was published in the United States of America and, in the passages which I quote from it, I have retained the American spelling, as I have done with other American texts.) At page 155, the authors say this:

"7.5 Nighttime Driving Speeds

If visibility at night using motor vehicle headlamps is so limited it would seem reasonable that people would drive slower and speed limits would be lower at night. Yet this is not generally the case. The question is why?

There is evidence that people overestimate the visibility provided by vehicle lighting systems. For example, Allen et al. (1970) had subjects stand along the side of the road and estimate the distance at which an approaching driver could see them. At the same time the driver indicated the distance at which he or she could see each pedestrian. On average, the pedestrians' estimates were about twice the distance at which they actually could be seen. Of course, given the expectancies of the drivers in the test, they probably detected the pedestrians at an average of about twice the distance they would under real-world conditions. This investigation was extended and confirmed by Shinar (1984). There are no comparable data for drivers, but the behavior of most of them while operating a vehicle at night suggests that they think they can see a good deal better than they really can. If this is true, we have an unfortunate combination of errors, with both drivers and pedestrians thinking visibility is better than it is.

Leibowitz et al. (1982) have advanced a theory to account for the fact that people often drive at night at speeds well in excess of those that would allow them to stop short of an unexpected, low-contrast object. The theory is based on the fact that there are two independent modes of processing visual information. One of these is called the "focal" mode, which is concerned with object discrimination and identification. Focal functions are optimal in central vision, and are much affected by a level of illumination and diminished visual acuity. The other mode is called "ambient", which is concerned with spatial orientation. Spatial orientation can be accomplished in central vision, but, unlike the focal functions, it is adequate in the periphery as well. In addition, ambient functions are much less sensitive to illumination and refractive error than focal functions. At night there is a selective degradation of these two modes, with focal vision being much more affected. This means that there is relatively little loss of ambient vision, which is useful for functions such as maintaining lateral position on the road. The fact that focal vision is greatly reduced is less appreciated because the demands on it are intermittent.

...

7.6 When Drivers "Overdrive" Their Headlamps
Common sense says that the safe operation of a vehicle is the responsibility of the driver, and laws concerning vehicle operation generally follow this lead. Clearly, willfully negligent behavior that endangers other persons should not be tolerated. One manifestation of this point of view is what is sometimes called the assured clear distance ahead (ACDA) rule. Most states have some version of the ACDA rule in their statutes.

The ACDA rule essentially says that the operator must be aware of the characteristics of the vehicle, and its operating environment, and always drive at a speed that will allow the vehicle to be brought to a stop short of any unexpected hazards that may appear in its path. Certainly it would be proper for drivers to slow when operating on a slippery surface or under conditions of fog or heavy precipitation. The rule has some flexibility. Courts have held that there are limits to the ability of an operator to deal with certain types of hazards, the classic pedestrian-dart-out collision being one common example.

...

The expression "overdriving one's headlamps" can be taken to imply that the driver is operating at such a speed as to be unable to cope with any hazard that may happen to be in the roadway. That is hardly the case. Whether one is overdriving the headlamps is very much dependent on the contrast characteristics of the object that is encountered. Recall the data presented in Table 7.4. It is clear from that analysis that a dark-clad pedestrian is at some risk from a car going as slowly as 25 mph (40 km/h). Smaller objects, the presence of glare, and other factors can still further reduce the maximum "safe" speed. For some types of targets and driving conditions, the fact is that we begin to "overdrive" our headlamps almost from the moment the car starts to move forward.

In considering the ACDA argument it is important to bear in mind that the limitations of vehicle lighting systems and human vision make it impossible to reliably reveal all possible, significant objects at anything other than very low speeds. The price we would pay for literally conforming to the ACDA rule is severely limiting nighttime speeds, perhaps to something in the range of 20 mph (32 km/h). It's highly unlikely that the public would accept such restrictions, even if legislators could be induced to enact them. Individuals who took it upon themselves to drive at such speeds would pose a threat to their own well being as well as that of other roadway users by creating large speed differentials, and numerous conflicts with others driving at or near posted limits."

[60] Mr Smith suggested to Dr Searle that these passages are saying that, in practical terms, it would be necessary to travel at a very low speed if driving with dipped beam in the countryside, and he asked him whether he disagreed with the author's comments on that. Dr Searle replied that he did disagree. Asked why, Dr Searle responded that the authors were considering difficult driving situations, pedestrians in dark clothing and that they were considering not young drivers, but particularly older drivers whose range of vision at night was reduced severely. He continued that the authors were considering glare from vehicles coming the other way. These factors, particularly when considered in combination, can give rise to difficult situations where driving within the limitation of your headlamps is a "fairly harsh rule", because all the factors are against you. Your range of vision does become very low but, even then, usually only a temporary reduction in speed is required, while the oncoming vehicle goes by. The application of the text to a young driver with an average good range of vision, no glare and the fairly high contrast of a man in a white T‑shirt, overdriving the headlights should not be a problem. When asked again whether Dr Searle agreed that it was possible to overdrive the headlights, he replied that it was possible with an older driver, glare from an oncoming car and a dark or black clad pedestrian.

[61] Mr Smith pressed Dr Searle to make it clear whether or not he was saying that, if an individual was driving on full beam and encountered a car coming in the opposite direction, he should slow down before dipping his headlights. Dr Searle's position, as I understood it, was that, whilst on full beam, the driver had a good view of the road ahead and could see that it was clear and should then slow down at the same time as dipping his headlights. Visibility, he said, will be reduced as you pass the oncoming vehicle, and you can either remain at that speed, or, if the gaps in traffic allow it, you can go to full beam and speed up.

[62] Mr Smith closed his cross-examination of Dr Searle by putting to him that he simply did not know enough about the facts of what the pursuer was doing, where he was, his posture, etc. to express a view with any degree of confidence as to what he was doing during the moments up to the moment of impact. Dr Searle disagreed. In his view, the pursuer was upright at the moment of impact and before. If he was not upright in the moments before impact, it was necessary to conclude that the footprints were not caused by him, because it would be difficult to imagine him bending down, taking off his socks or whatever and then standing up again and nevertheless leave a reasonable line of footprints. Also, Dr Searle pointed out, if the pursuer did crouch down it would have had the effect of bringing his white T‑shirt better into the first defender's dipped beam, and so it would make him more visible, not less.

[63] In re‑examination, Dr Searle was asked again to consider the terms of the "Roadcraft" advice on the use of main beam and agreed with Mr Di Rollo that, in his view, there was no reason for the first defender not to have been using full beam as he approached the point of impact. Dr Searle repeated his view that, if the first defender had been using full beam it would have provided a clear view and that he ought to have seen the pursuer well within a distance sufficient to allow him to stop in time. In answer to questions from me, Dr Searle said that it is a matter of choice whether to drive on full beam or on dipped beam, provided that the speed of the car is appropriate to the beam setting. More specifically, in answer to a question from Mr Di Rollo, Dr Searle said that, on dipped beam, in order to allow a sufficient margin for stopping, it would be necessary to drive at a lower speed than the speed that was being driven by the first defender.

[64] In re‑examination, Dr Searle was asked to look at number 7/3 of process, the report which had been prepared by Dr Coley, on the instructions of the defenders, and he was asked whether he agreed with Dr Coley's summary and conclusions which are to be found at paragraph 8. For ease of reference, I record in italics Dr Searle's response to each of the points in paragraph 8.2 about which he was asked:

"From my analysis of the information which is available to me, it is my opinion that:

i. If Constable Rankin's assessment of the footprints is correct then the car was either fully in the northbound lane, or partially into the southbound Lane at impact, they indicate Mr Little crossed east to west.

Dr Searle agreed with the view expressed in sub-paragraph i.

ii. There are gaps between some of the muddy prints that are inconsistent with the length of a normal step pattern, even if the prints were made by only one shoe.

He also agreed with what was said in sub-paragraph ii, commenting that it was likely that sometimes the foot went down without leaving a print.

iii. If Mr Little continued to move without leaving prints, it is not possible to establish where the collision was, although there would be some limit to how much further south it could have been to be consistent with the debris.

Of sub-paragraph iii, Dr Searle said that it was true, but commented that the last print was smeared, and expressed the view that the smear showed that the collision occurred at that point. He volunteered, also, that Dr Coley was correct to say that the position of the debris shows that the collision must have occurred approximately where the footprints ended. The fact that the debris started shortly after the footprints ended 'all fits in with the point of impact being very near the footprints.'

iv. All methods to calculate an impact speed of the car have inherent problems, but the speed at impact was probably at least 40 mph and could have been the 40 to 50 mph speed noted by Mr Glen.

v. The pattern of damage to the car indicates Mr Little was not crossing the road at a speed more than walking speed and he could have been stationery. He would probably, however, have been upright at impact.

vi. I have seen no evidence to indicate whether or not Mr Little crossed the road at a continuous speed and remain fully upright throughout.

Dr Searle also expressed agreement with points iv and v. He was not asked to express a view on point vi, because, as Mr Di Rollo put it, it was a view formed on the basis of whatever evidence was available to Dr Coley.

vii. Mr Glen was either moving to his right just before or just after the collision.

Dr Searle's view on point vii was that Mr Glen was moving to his right just before the collision because, said Dr Searle, Mr Glen moved his car 'fairly significantly' by which I took him to mean from the northbound carriageway into the southbound carriageway, where his car came to a halt.

viii. The ambient lighting and clothing worn by Mr Little would probably have limited the distance away that driver could have seen him. His position and posture would probably affect this distance. The adaptation of Mr Glen's eyes to the darkness could have further affected his ability to see Mr Little.

Mr Di Rollo asked Dr Searle no question about sub-paragraph viii of paragraph 8.2, explaining that he had been asked no question in cross‑examination about the matters which it addressed.

ix. A vehicle's headlights would allow the driver to see objects to the nearside at further distances than objects to their offside.

x. The speed at which Mr Glen would have needed to travel in order to stop before the collision would depend on the first point he could reasonably have seen Mr Little (depending on contrast and dark adaptation), his speed, his reaction time, his braking rate, whether he was using dipped or full beam lights and Mr Little's position and posture.

Dr Searle said he agreed with the terms of sub-paragraphs ix and x, with a qualification in respect of each, which it is unnecessary to record here. On the latter sub-paragraph, Dr Searle expressed the view that, with normal and average eyesight, with the lights set as they should be and, assuming the usual reaction time, and if emergency braking was used by the first defender, and if the speed was a little more than 40 mph, the first defender could "just have stopped" without colliding with the pursuer, even on dipped beam.

xi. On the assumption that Mr Little was upright as Mr Glen approached and he (was) crossing in a continuous walking manner:

o  Dipped beam lights would have limited the extent to which Mr Glen would have been able to see Mr Little. Discounting dark adaptation, on balance, Mr Glen could probably have braked before impact. However, to have stopped before impact, his speed may have had to have been as low as 18 mph.

o  If Mr Glen used full beam lights he would probably have been able to see Mr Little sooner, but the effects of dark adaptation could have been more of an issue (he would have been closer to the street lighting when a view may have been possible). If Mr Little crossed from the offside and his headlight (sic) began to illuminate him when about 89 metres away, then if he braked 3.5 or 2.0 seconds later, he could have stopped from 40 or 50 mph before reaching the point of impact."

Dr Searle was asked only about the second bullet point in this sub‑paragraph. He said that he agreed with it, subject to two comments. The first was that, in Dr Searle's view, the reaction times of 3.5 or 2.0 seconds were 'very long', and still Mr Glen would have been able to stop. The second point that Dr Searle made was that 89 metres back from the point of impact, Mr Glen was not travelling at 40 or 50 mph, because he was only just coming out of the built up area, so his speed was more like 30 mph. Consequently, if Mr Glen had been using full beam lights, he would have been able to stop 'easily'.

("Dark adaptation" is the process whereby, when leaving an area which is illuminated by street lights and entering an area which is unlit, a person's eyes adjust to the lack of overhead illumination. It was a topic addressed by Dr Coley in his report. When Mr Smith began to ask Dr Coley questions about it, however, Mr Di Rollo objected, on the ground that the subject had not been raised in the cross-examination of Dr Searle. Mr Smith did not press the matter.)

[65] The first witness to be called on behalf of the defenders was Dr Graham Edgar, a reader in psychology at the University of Gloucestershire. According to his CV, which was produced with his report, dated 17 October 2012, number 7/1 of process, he has a B.Sc. with honours in psychology, obtained in 1984, and a Ph.D. in visual psychophysics, which was awarded in 1989. Dr Edgar explained to the court that psychophysics is the psychological experience of physical stimuli, such as brightness threshold, being able to detect light. He is a full member and Associate Fellow of the British Psychological Society, and a full member of the Applied Vision Association, which comprises psychophysicists, physicists, psychologists, people with an interest in the application of science to an understanding of how vision works in the real world. He has 28 years' experience, working as a cognitive psychologist specialising in visual perception and situation awareness.

[66] Dr Edgar worked as a principal scientist for British Aerospace (now BAE SYSTEMS) for eleven years where he led the BAE SYSTEMS work programme: "Adaptive human-machine interfaces and functional state assessment". His work involved research, and application of that research, across a wide range of areas, including aircraft and motor car cockpit displays and driving. His research was also concerned with the development of a new technique to assess situational awareness in terms of an individual's awareness and use of information - learning how people measure what is going on around them. This research is continuing.

[67] Since joining the University of Gloucestershire, Dr Edgar has conducted projects for the Highways Agency and Transport Research Laboratories to study optimisation of warning lighting for emergency vehicles and he is principal investigator on projects studying situation awareness in a number of contexts. He has worked with the Gloucestershire Police Service on issues of driver distraction and Gloucestershire Fire and Rescue Service on issues of vehicle conspicuity and situation awareness. Dr Edgar has over forty refereed scientific publications in the area of perception and situation awareness. I considered that he was suitably qualified to give expert evidence on the matters covered in his report.

[68] Dr Edgar explained that he was asked to evaluate the psychological and psychophysical factors that may have contributed to the accident, with particular reference to: (i) the effect on the visibility and detection of a pedestrian by a driver when using dipped or full‑beam headlights; the possible effects on hazard detection arising from the placement of the taxi and satellite navigation displays in this case; and (iii) psychological factors that may lead to the driver in this case to not responding to a hazard that may have been detectable at a sensory level.

[69] At paragraph 2.5 of his report, Dr Edgar records that, according to Dr Coley, there were at least three possible theories to explain the pursuer's movements prior to the collision. They are: (i) that the pursuer crossed from the east side to the west side of the road, in front of the first defender's car, which hit him just before he reached the west side of the road; (ii) that the pursuer crossed to the west side verge and subsequently stepped from the verge into the path of the first defender's car; and (iii) that the pursuer crossed towards the west side of the road, but did not move onto the verge, so that he was positioned in the road when the first defender's car approached.

[70] At paragraph 3, under the heading, "General points from the literature and my own research", Dr Edgar's report contains the following passage, which was read out to him by Mr Smith:

"Hazard perception while driving requires both the (usually visual) detection and recognition of hazards. Thus a hazard has to both be detected at a sensory level and discriminated from the background. These are necessary, but not sufficient, conditions for an effective response to that hazard. Once a hazard has been detected at a sensory level it is then necessary for the driver to become aware of that hazard and respond to it. There are two key characteristics of a hazard that must be considered when assessing a driver's response. I wish to emphasise, however, that my comments about ability to detect a hazard offer no opinion on whether a reasonable driver ought to have been able to see a hazard. That is a matter for the court. My comments below should be seen as being on a scientific footing and not on a legal basis. Therefore, when I say that a hazard is 'there to be seen', I am not suggesting that a failure to see it is in some way negligent (a matter for the court) or even that most or all drivers would see it.

3.1.1. Visibility. Determining whether the hazard is, 'There to be seen'. The hazard must be at least theoretically detectable by the driver at a sensory level (of sufficient size, contrast, etc.). My comments above about the 'reasonableness' of registering the hazard should be noted.

3.1.2. Conspicuity. This reflects the extent to which the hazard 'stands out' from its background. For example, a single match in a box full of matches may be highly visible, but not conspicuous. Conspicuity may be influenced by the cognitive factors affecting the observer. If an observer is not expecting a hazard to be present, they may not 'register' and become aware of it, no matter how visible it is."

[71] In response to questions from the court, Dr Edgar explained that, once a hazard has been detected at a sensory level, the individual may not be aware of that hazard and respond to it if, for example, the individual's attention was drawn to something else. In amplification of the view expressed at paragraph 3.1.2, Dr Edgar explained that, whilst it is usually obvious if someone is standing in front of a car, that person's presence can be masked if the driver's attention is directed elsewhere. I say more about Dr Edgar's evidence in the discussion section later in this opinion.

[72] The second witness called on behalf of the defenders was Dr Gary Coley. He is the leading consultant in pedestrian safety and the mathematical modelling of the kinematics and injuries of pedestrians and car occupants for a private organisation called the Transport Research Laboratory ("TRL"). He holds a bachelor's degree with honours and a Ph.D. in pedestrian injury modelling from the University of Birmingham Automotive Safety Centre. The latter involved the investigation and reconstruction of real‑world accidents using mathematical modelling software to determine the accuracy of pedestrian models and their ability to be used in reconstructions to determine injury. He is a Chartered Engineer, a Member of the Institution of Mechanical Engineers and a Member of the Institute of Traffic Accident Investigators. Since joining TRL in 2004, he has provided expert advice in the field of accident investigation and reconstruction. His expert witness services are supported by his continuing research into the assessment of experimental data collection techniques at live accident scenes, which has involved conducting side by side trials with the police. He also works with the police in analysing crash data to help validate traditional and advanced reconstruction techniques. He has published numerous papers relating to accident investigation and reconstruction, and has reconstructed collisions for cars, motorcycles, and large goods vehicles, including pedestrian and cyclist impacts, low speed vehicle impacts, and single and multi‑vehicle collisions. He has also conducted research for TRL on vehicle handling and stability, both for cars and large goods vehicles. I was told Dr Coley has experience in presenting evidence for court in both civil and criminal cases, and has produced around 110 reports in connection with such cases. I took the view that Dr Coley was appropriately qualified to give evidence along the lines of and in support of his report.

[73] Dr Coley attended at the scene of the accident on 3 September 2012, when he took a number of measurements and photographs, and thereafter produced a report, number 7/3 of process. In answer to questions put by Mr Smith, Dr Coley said that he was unable to tell what the pursuer's orientation was relative to the first defender's car at the moment of impact. It was his view that the pursuer was not running or jogging when the collision occurred, but he could not say whether he was walking or stationary. Dr Coley was asked to note that, at paragraph 7.5.13 of his report, he had recorded that, when driving through the scene, he was able to identify southbound vehicles approaching before they reached the bend in the road, as their headlights reflected off the road and hedges. It was his opinion that that would provide ample warning to a northbound driver using full beam headlights to dip their headlights before causing any dazzle to southbound drivers. He noted, however, that very few drivers used their full beam headlights whilst he was at the scene at night, even when no vehicle was approaching from the opposite direction. Dr Coley agreed with Mr Smith that it was a "fair summary" of his report to say that, unless we know a lot about various hypotheses, where the pursuer was, whether he was upright, whether he was bent over, lying down, sitting down, what position he was in relative to the car, etc., it is very difficult to come to any assessment about what might have been seen and what difference full beam would have made compared with dipped beam. At that point in examination in chief, Mr Smith lodged the introductory pages of the Highway Code, as number 7/9 process, and invited Dr Coley to notice that in the second paragraph of the introduction, the text reads as follows:

"Many of the rules in the Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison. Such rules are identified by the use of the words 'MUST/MUST NOT'. In addition, the rule includes an abbreviated reference to the legislation which creates the offence. ...

Although failure to comply with the other rules of The Highway Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see page 124) to establish liability. This includes rules which use advisory wording such as 'should/should not' or 'do/do not'."

Dr Coley said that he had looked through the Highway Code for any provisions that were relevant to using dipped beam or main beam lights, and could find nothing that used the words "must" or "should" relating to full beam or dipped beam lights. He said that the only reference was to dipping headlights when overtaking or when a car was approaching.

[74] In cross‑examination, Dr Coley was asked to agree that, in the text which describes what is depicted in the photographs which are appended to his report, references to "north" should be to "south" and vice versa. He said that, when driving through the scene, he had no difficulty in detecting cars coming in the opposite direction and could dip his headlights in advance of the bend to the north, without any problem. Dr Coley acknowledged that, in his report, he expressed the view that, if the first defender had been using full beam, he would have begun to illuminate the pursuer when he was about 89 metres away.

Submissions

[75] I turn now to outline the submissions advanced on behalf of the parties to this action. For the avoidance of doubt, all of the assertions which appear in these sections are those of the parties, except where I say in terms that I have made a finding: apart from that, all findings in fact appear in the discussion section. The section headings are those of or are adapted from those of counsel.

Submissions on behalf of the pursuer
1. Fault

[76] Mr Di Rollo moved me to grant decree in favour of the pursuer, finding the defenders liable in reparation to the pursuer, submitting that the first defender was at fault in the following respects:

1. He failed in his duty to take reasonable care to keep a good lookout, to drive at a reasonable speed and to be able to stop within the distance he could see to be clear;

2. He failed in the duties which were incumbent upon him while driving at night, namely to keep a good lookout, and not to drive so fast that he could not stop well within the distance he could see to be clear i.e. within the range of his lights. If he could not stop safely within the range of his lights, he was going too fast;

3. He failed to drive on full beam; if using dipped headlights, he was required to drive at a slower speed; and

4. He failed to keep a proper lookout.

[77] In support of point (i), counsel referred me to rules 126 and 113 of the Highway Code, to be found in numbers 6/20 and 6/37 of process. With reference to points (ii) and (iii), my attention was directed to pages 260 and 266-271 of the official Driving Standards Agency guide to driving, which is number 6/22 of process, and to page 31 of "Roadcraft: The Police Driver's Handbook" which is number 6/31 of process.

2. The circumstances of the accident

[78] Mr Di Rollo invited me to make the following findings in fact:

1. At the time of the accident it was dark and dry. Apart from darkness, visibility was good;

2. The road surface may have been damp at the time of the accident;

3. It was dark, the road was unlit, and there was no street lighting in the immediate vicinity of the accident;

4. The first defender's car had no mechanical defect;

5. The pursuer was under the influence of alcohol, but was able to walk and to talk;

6. The first defender's speed was somewhere around 40 mph;

7. The car did not brake before the collision; and

8. The pursuer was wearing a white top and jeans.

None of these proposed findings was controversial, they were all consistent with the evidence, and I hold these matters proved.

3. The footprints

[79] Mr Di Rollo further contended that I should find it proved that the pursuer crossed from the east edge of the road to a point which is 1.4 metres to the west of the centre line of the road, and that the collision occurred at the latter point. He submitted that I should hold that the footprints described by Constable Rankin were made by the pursuer because:

1. Constable Rankin matched the shoes worn by the pursuer with the footprints. He said:

"I examined the pattern on the sole of the shoe. It was herringbone. Similar to the print on the road surface. I compared the herringbone pattern with most of the footprints. I was trying to work out left foot or right foot, running gait or walking gait. It would have been all of them that I compared."

He was shown photograph 48 of number 6/4 of process, which depicts the sole of both of the pursuer's trainers, and continued:

"It was the same pattern on the road surface. If you put dirt on the shoe it would have made the same pattern. They were consistent in length, the same size. I put the shoes down to see what was left and right. All matched except the last footprint which was kind of disturbed. There was dirt on the front toe, heel, rear outer edge and instep. It was a similar type of dirt."

In cross-examination, and when shown number 49 of 6/4 of process, a photograph of the sole of the right trainer, he said:

"I compared the size and pattern. It was herringbone and the shape was skewed. The heel pattern was more pronounced in the footprints. They matched the skewed 'S' on the heel. If these were his shoes, he was crossing the carriageway to the point of impact."

2. The trail of footprints was diagonal from east to west to the point of impact. The injuries sustained by the pursuer were consistent with being struck as he was facing the west verge at an angle. According to the report by Rudy Crawford and the evidence given by John Searle, the pursuer was struck on the left side as he crossed from east to west;

3. The irregularity of the prints was consistent with having been made by someone under the influence of alcohol; it was an irregularity consistent with someone under the influence of alcohol;

4. The prints must have been made not long before the accident, otherwise they would have been removed by traffic;

5. It is possible, but very unlikely, that there had been another pedestrian in that precise area. It is more unlikely again that another pedestrian crossed the road and stopped at that very point. It is unlikely that such a pedestrian would have muddy feet at that very point only - there was no evidence of any other footprints. It is even more unlikely again such that a person was wearing shoes of the same length with the same tread;

6. The footprints come to an end at the scuff mark (which I took to mean at "Fp" on Constable Rankin's plan, attached to number 6/8 of process);

7. There was evidence of damage to the left trainer. The following exchange took place during the cross-examination of Constable Rankin:

"Q. Is there anything indicative of the shoe being dragged on the tarmac?

A. Yes. The heel of the left shoe - the band is rubbed - it is darker in colour- and the rest of the shoes are in better condition."

4. The point of impact

[80] It was submitted on behalf of the pursuer that it is clear that the impact occurred at the point where the last of the footprints could be seen because:

1. As described by Constable Rankin in his evidence, the scuff was made of mud. He said that the last print was not a full print. It was on the same lines as the others like it, but had been wiped or scrubbed across the road surface. It was smeared. The prints were full prints. The final print was scrubbed or smeared in a northbound direction. It was an incomplete footprint, and was consistent with the pursuer's being hit by the Vectra at this point. In cross‑examination, Constable Rankin declined to accept that the smeared print was either wiped off mud or that it could have been caused by a vehicle being driven over it. It was, therefore, clear that the last footprint was at the point of impact;

2. The scatter of debris and pattern of damage showed the pursuer moving from offside to nearside, and was, therefore, consistent with his moving slowly from east to west;

3. The point of impact identified by Constable Rankin ties in with the throw distance and final position of the car, in keeping with the speed at which the first defender says in his statement to the police, number 6/29 process, that he was travelling;

4. Constable Rankin's evidence of damage to the trainer taken together with the smear on the road is evidence that the point of impact was at the last of the footprints.

5. The evidence of the first defender

[81] Mr Di Rollo invited me to reject the first defender's evidence about "another boy walking on the road from Paisley to Barrhead". His reasons given in support of that submission were as follows:

1. The first defender made no mention of such a person in any of the three statements given to his solicitor on 3 September 2010, 28 September 2010 and 14 May 2012, nor is there any mention of him in the expert reports of Dr Coley or Dr Edgar, numbers 7/3 and 7/1 of process, respectively. Constable Rankin said in cross-examination, on 5 December 2012, that he had just heard of such a person for the first time that day. Dr Coley had never heard of him before the first defender gave his evidence.

2. Although pedestrians could be anticipated to be on that road at night from time to time, it is unlikely that another pedestrian would have happened to be walking by. In any event, that possibility is inconsistent with the defender's case on record which is in the following terms:

"As was usual, there was no pedestrian on the road at that time. The first defender had never seen any pedestrian on that road previously. It is believed and averred that pedestrians do not walk on that road at night on account of the lack of pavement and lighting". (Record, page 8)

3. The place where the first defender described this encounter as occurring is the wrong place to account for the footprints marked by Constable Rankin. The first defender describes "the boy" as being between the ambulance and where the pursuer was on the roadway, which is a significant distance further north from the diagonal footprints, and nowhere near the point of impact.

4. The police officers who gave evidence did not see anyone else at the scene apart from the first defender. It was never suggested to them on behalf of the defenders that there was anyone else at the scene apart from the first defender and the ambulance crew. The police witnesses were on the scene by 0310, before the ambulance left. It is pertinent to ask where the individual mentioned by the first defender went to between the time of the accident and 0310. No one other than Constable McBride and Constable Lawson are noted as witnesses in the Strathclyde Police Road Crash Report, number 6/16 of process.

6. The gap in the footprints

[82] Constable Rankin recorded that there was an apparent gap between the eastmost footprint and the next one to the west of it. Mr Di Rollo submitted that the gap can be explained by the possibility of no footprint being made or being lost due to drainage from the road.

7. The visibility of the pursuer

[83] The next topic which Mr Di Rollo addressed was what he described as "the visibility of the pursuer". He contended that the first defender made no attempt in evidence to explain why he had not seen the pursuer. His evidence was that he was unaware of anything until the windscreen of his car was smashed. He did not see the male before impact. He stated that that was "all he could remember" about the incident but that whatever he said to the police at the time was true. Mr Di Rollo invited my attention to the statement which the first defender gave to Constable McBride, number 6/29 process. I was reminded that the first defender told Constable McBride that he saw the pursuer from a point "as I reached the first white direction arrow" (which, on the evidence, was some 40 to 50 metres away from the point of impact), and that he was able to determine that the pursuer was walking towards Barrhead. The latter point, argued Mr Di Rollo, supports the view that the pursuer was walking upright. The first defender did not brake, but swerved (before impact) to the offside, to avoid the collision. Mr Di Rollo submitted that the first defender's evidence that he did not see the pursuer at all before the collision should be rejected as inconsistent with this statement, and was "another example of his selective memory".

[84] Under reference to Dr Searle's evidence, Mr Di Rollo contended that the pursuer ought to have been seen by the first defender from a distance of 100 metres or more. The pursuer would have taken at least six seconds to cross from the east verge. On dipped beam, the pursuer would still have been capable of being seen somewhere between 56 and 60 metres away. Mr Di Rollo submitted that the evidence was that the pursuer was upright when struck. There were two footprints on the northbound carriageway, before the final footprint, as well as two footprints close to the centre line of the road on the southbound carriageway. There was no reason not to assume that the pursuer was upright throughout. The pursuer was probably moving slowly. If he was stationary at the point of impact when struck, then that was all the more reason for him to be seen.

[85] The evidence of Dr Edgar, Mr Di Rollo continued, was that on full beam the first defender would see the pursuer more easily at 90 metres. He was unwilling to apply his mind to the most likely sequence of events, which is that the pursuer was moving from east to west and was struck while in an upright position. His approach was illustrated by his attitude to the cleanliness of the headlights. He had said in evidence that the cleanliness of the headlights on the first defender's car was an unknown factor that could have affected how far the first defender could see as he drove northwards. Notwithstanding that it is plain from the photographs that the headlights were clean, Dr Edgar was unwilling to accept that fact. (I took the view at the time that Dr Edgar was simply being careful in his answers. I do not accept this criticism of him.)

8. Full beam or dipped beam?

[86] Mr Di Rollo then turned to the debate about whether the first defender ought to have been driving on full beam as he approached the point of impact. On any view, he submitted, if you drive on dipped beam then you have to slow down. I was invited to reject the evidence of the first defender, Constable McBride and Constable Lawson said that it was appropriate to drive on dipped beam. Their evidence should be rejected. In a statement given on 3 September 2010 the first defender had said that he would have driven on full beam. In his evidence, the first defender claimed not to remember saying that. That is difficult to accept, argued Mr Di Rollo, and is indicative of someone trying not to remember. The position, he said, was plain from Dr Coley's report, number 7/3 of process, at paragraph 4.3, which is in the following terms:

"In his statements Mr Glen also said that he drives along Caplethill Road quite often although he had never seen anyone walking on the road before. With regards to his headlights while he was not certain he believed he would have turned on his full beam headlights as he entered into the national speed limit area, but in a later statement, having seen the statement he gave to Constable McBride, he agreed that he was probably using his dipped beam headlights. He said there were no other cars on the road."

There was no acceptable reason given by him in evidence for not using full beam. He attempted to suggest that it was necessary to use dipped beam because of the left hand (to drivers travelling north) bend. This is simply not true for the portion of the road up to and including the location of the accident. The evidence of Constables McBride and Lawson should also be rejected. Notwithstanding their stated training and experience, neither was able to give a cogent reason for not using full beam in the circumstances. The extract from the Highway Code, number 6/37 of process, as well as the extract from the official DSA guide to driving, number 6/21 of process, and the extract from the official driving manual, number 6/22 of process, make it clear that full beam should have been used. Reliance has been placed upon the Driving Standards Agency publication in, among other things, Woodham v M Turner T/A Turners of Great Barton and Peterborough City Council [2012] EWCA Civ 375 at para. 20 and Lightfoot v Go-Ahead Group PLC [2011] R.T.R. 343 (Lightfoot), at paragraphs [32] and [34].

[87] Mr Di Rollo submitted that the evidence of Lesley McCall, who lives locally and who is used to driving on Caplethill Road at night, was that she always uses full beam and could not understand why anyone would not use full beam. No reason was suggested to her as to why full beam would not be used. During his evidence, the first defender would not accept that if you drive on dipped beam you have to drive at a slower speed. He was wrong not to accept that proposition. (As will be seen in my discussion of the evidence, I noted that the first defender did accept the proposition.)

9. Pedestrians using the B774 at night
[88] As I have noted in paragraph [6] of this opinion, the first defender avers on record that he had never seen any pedestrian on that road previously and that it is believed and averred that pedestrians do not walk on that road at night on account of the lack of pavement and lighting. Mr Di Rollo addressed that by reminding me that, in evidence, Peter Gibson testified that people do on occasion walk home. The evidence of Lesley McCall was that she has seen pedestrians at strange times - coming home from socialising at two, three, four and five am. It is reasonable to anticipate, contended Mr Di Rollo, that pedestrians may be using the road. Dr Coley encountered a person walking/jogging along the rural part of the road during the hours of darkness. (Paragraph 3.20 of number 7/3 of process) People regularly drink to excess and sometimes walk home. There are student halls of residence on the outer edge of Paisley. There are bus stops on either side of the road, about 50 metres south of the point of impact. Dr Searle confirmed the presence of buses using the section of the road during the hours of darkness. Mr Di Rollo submitted that, on the evidence, encountering a pedestrian should have been within the contemplation of the reasonably prudent driver.

10. The first defender was not charged with an offence

[89] In answer 4 for the defenders, at page 9 of the record, it is averred that no charges were brought against the first defender following the police investigation into the accident. Mr Di Rollo submitted that "there is a world of difference between a decision not to proceed with a criminal prosecution and a civil claim for damages." He pointed out that the matter was not in fact referred to the procurator fiscal by Sergeant MacMaster, although that should have occurred, according to Constable Lawson. Mr Di Rollo contended that the police took a certain view of this accident but their view was partial and wrong. He argued that Constables McBride and Lawson attempted, unsuccessfully, to justify their view, and that the reference to the Highway Code in the reconstruction report, number 6/8 of process, at page 12, is highly selective. Constable Rankin quotes from rule 17 which reads: "At night. Wear something reflective to make it easier for others to see you." In fact, said Mr Di Rollo, the pursuer was wearing a light coloured top. There are other significant aspects of the Highway Code omitted - most importantly the requirement to stop comfortably within the distance a driver can see to be clear.

11. Criticisms of Dr Searle

[90] At this point in his submissions, Mr Di Rollo recalled that, during the cross‑examination of Dr Searle, Mr Smith had suggested to him that he lacked impartiality. Mr Di Rollo characterised that criticism as "unjustified". He sought to counter it by contending that there had been a very large measure of agreement among the experts. He also referred me to Robertson Chartered Accountant (McKernon's Curator Bonis) v J Sidney Smith OH Lord Osborne 18 December 1998, in which the Lord Ordinary said that he had not encountered a more impressive witness than Dr Searle in his area of expertise. Mr Di Rollo submitted that the court should consider the expert evidence on its merits and upon the impression in this case and not under reference to an internet trawl of other cases. The criticisms of Dr Searle, he said, are wholly unjustified and unwarranted.

12. Liability

[91] In renewing his motion that I should find the first defender liable to make reparation to the pursuer, Mr Di Rollo quoted the following passage from the opinion of Lord Prosser in Morrison v Laidlaw 1994 SLT 359 ("Morrison"), at page 359 letters I to J:

"I am in no doubt that the defender was at fault. Visibility was no doubt restricted, by darkness and rain, but he had a plain duty to drive within the limits of his vision, and if the weather was bad, that would call for more caution. Upon the facts as I have found them to be, the Vauxhall was intruding onto the carriageway ahead of him, and was unlit. But it had been in that carriageway all the time as he approached: this is not a case of a vehicle suddenly emerging from a side road, or coming across from the other carriageway. If he had been keeping a careful lookout on the road ahead of him, I can see no reason why he should fail to see even an unlit car in time either to drive round it or stop short of it."

13. Contributory negligence

[92] Mr Di Rollo accepted that, if I were to find the first defender liable, it would be necessary for me to consider the question of contributory negligence, given that the defenders make the following case on record:

"Esto as averred by the pursuer he had walked across the carriageway and was facing the first defender's car prior to the collision (which is not known and not admitted) the lights of the first defender's vehicle would have been visible to him for a considerable distance prior to the accident. It was his duty not to walk into the path of an approaching vehicle. It was his duty not to consume such amounts of alcohol that he was unable to take care for his own safety." (Answer 4, page 9C of the Record)

The Law Reform (Contributory Negligence) Act 1945 provides, among other things, as follows:

"1. - Apportionment of liability in case of contributory negligence.

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:"

At section 4, "damage" is defined as including "loss of life and personal injury", and "fault" as meaning "negligence, breach of statutory duty or other act or omission which gives rise to liability in damages, or would apart from this Act give rise to the defence of contributory negligence".

[93] Mr Di Rollo submitted (i) that the onus is on the defenders to establish contributory negligence and (ii) that the 1945 Act did not alter the scope but modified the consequences of contributory negligence. He contended that the defenders must establish that: the pursuer was at fault, meaning that they must demonstrate what the pursuer did or did not do as opposed to why he did or did not do it; that the fault was causative of the injury suffered; and that it is just and equitable for the damages to be reduced. In short, the technical meaning of "contributory negligence" is negligence on the part of a pursuer which is itself jointly causative of the accident, along with the negligence of the defender. Thus, if the first defender could have prevented the accident using ordinary care, the pursuer's antecedent want of care is not "contributory negligence." I was referred to the opinion of Lord President Clyde in Robinson v Hamilton Motors 1923 SC 838 at 841 in that regard, and to the following cases more generally:

Lightfoot

Morrison

Eagle v Chambers [2004] RTR 9

Malcolm v Fair 1993 SLT 342

Smith v Chief Constable of Nottinghamshire Police [2012] RTR 23

McNab v Bluebird Buses Ltd 2007 Rep LR 36

[94] Mr Di Rollo accepted that the pursuer ought to have seen the first defender's car and was crossing the carriageway in front of it. If the pursuer thought that the first defender had seen him then he was mistaken and that would be a basis for saying that he was at fault. But, said Mr Di Rollo, the first defender could and should have seen the pursuer and stopped in time. If he had not been at fault then the accident would not have occurred. On dipped beam he should have been driving at a slower speed.

[95] On the question of what would constitute a "just and equitable" reduction of damages, Mr Di Rollo pointed out that it is a matter of admission that the pursuer was left by Alexander Paul on the road. He had no alternative in the circumstances but to make his way home along Caplethill Road. The court can take into account in assessing the amount of the deduction that a pedestrian may think he can be seen by an oncoming driver. There was no warning of the kind that occurred in Eagle v Chambers. (Paragraph 18) If it were appropriate to make a finding of contributory negligence, the deduction should be no more than 20%.

Submissions on behalf of the defenders
1. Formal motion to the court

[96] Mr Smith moved the court to find that the first defender is not liable to make reparation to the pursuer; and that both defenders should be assoilzied. He suggested that the case be put out by order, to hear parties on expenses, certification of experts and any other matters that may arise following judgment. Mr Smith submitted that, if the court is against the principal submission, and finds that there was negligence on the part of the first defender, there should be a finding of "very substantial contributory negligence" on the part of the pursuer.

2. General comments regarding reasonable care

[97] Mr Smith opened the substantive part of his submissions with a reminder of some general propositions of law. The first was taken from Stewart, in which of Coulson J said this:

"2.1. The Reasonable Driver

5 I have to apply to Mr Glaze's actions the standard of the reasonable driver. It is important to ensure that the court does not unwittingly replace that test with the standard of the ideal driver. It is also important to ensure, particularly in a case with accident reconstruction experts, that the court is not guided by what is sometimes referred to as '20-20 hindsight'. In Ahanonu v South East London & Kent Bus Company Limited [2008] EWCA Civ 274 , Laws LJ said:

'There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant's safety than a duty to take reasonable care.'

6 In that case, the judge at first instance had found the defendant's bus driver negligent, although the damages were reduced by a finding of 50% contributory negligence. The Court of Appeal concluded that the judge's findings could not stand and they held that the bus driver was not negligent at all. In his judgment, Lawrence Collins LJ disagreed with the judge's finding that the bus driver should have carried on keeping an eye in his nearside mirror to look for pedestrians on a particular part of the carriageway at the entrance to Peckham Bus Station. He said that this was a "counsel of perfection and it ignores the realities of the situation". He concluded that an overall evaluation of the circumstances lead inevitably to a finding that there was no negligence. His conclusion of paragraph 20 was in these terms:

'I accept the submission for the defendants that, taking into account human reaction times for responding, the reality of the situation where the turn takes only seconds is that, given the driver's concentration on the vehicle in front, even if he had by chance looked up and seen the claimant in his nearside mirror after pulling away, it would have been just as the accident was taking place.'"

Mr Smith acknowledged, however, that Coulson J continued:

"7 By the same token, it is also important to have in mind that a car is 'potentially a dangerous weapon' (Latham LJ in Lunt v Khelifa [2002] EWCA Civ 801) and that those driving cars owe clear duties of care to those around them. Compliance with speed limits and proper awareness of potential hazards can often be critical in such situations."

[98] Mr Smith went on to advance a number of contentions about the role of the expert in cases such as this, again by reference to Stewart, beginning at paragraph 9:

"9 In Liddell v Middleton [1996] P.I.Q.R P36 , Stuart Smith LJ said:

'In such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage or whatever it may be. What he is not entitled to do is to say in effect 'I have considered the statements and/or evidence of the eye-witnesses in this case and I conclude from there (sic) evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point'. These are facts for the trial judge to find based on the evidence that he accepts and such inferences that he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the court, on which the expert's opinion is wholly irrelevant and therefore inadmissible... We do not have trial by expert in this country; we have trial by Judge. In my judgment, the expert witnesses contributed nothing to the trial in this case except expense. For the reasons that I have indicated, their evidence was largely if not wholly irrelevant and inadmissible. Counsel on each side at the trial succumbed to the temptation of cross-examining them on their opinions, thereby lengthening and complicating a simple case... In road traffic accidents it is the exception rather than the rule that expert witnesses are required.'"

[99] Mr Smith contended that those points are pertinent and important to bear in mind in this case. Generally speaking, he submitted, the defenders' experts did not cross that line, but Dr Searle did.

3. Two critical questions to be answered

[100] In this action, said Mr Smith, there are two critical questions to be answered. They are: (i) in the exercise of reasonable care, should the first defender have been using full beam lights as he approached the point of impact?; and, if so, (ii) if he had done so, would he have seen the pursuer, and had sufficient time to react before the collision?

3a. Ought the first defender to have used full beam lights?

[101] In tackling the first question, Mr Smith submitted that a number of items of evidence were apparently relied on, on the pursuer's behalf, to support the proposition that the exercise of reasonable care was such that the first defender ought to have been using full (or "main") beam. They would appear to be the following:

(i) The Highway Code, number 6/20 of process, referring to stopping within distances that can be seen; and number 6/37 of process, which concerns vehicle lighting;

(ii) The Driving Standards Agency information, number 6/21 of process;

(iii) "Roadcraft" extracts, number 6/31 of process.

Mr Smith submitted that the court has to establish both the status and context of each of these items.

[102] Beginning with the Highway Code, he submitted that, to a great extent, it has statutory effect. He referred to section 38 of the Road Traffic Act 1988. What should be noted about the Act, he argued, is that its content is strictly controlled. He referred me to sub section (3), which requires that alterations to the Code can only be made after the proposed alterations are laid before both Houses of Parliament, and to sub section (5) which requires that, before an alteration can be made, there must be consultation with "such representative organisations as [the Secretary of State] thinks fit". Accordingly, he argued, the content of the Code is of "immense importance". It should not be assumed that it is simply a driving manual that is drafted on some ad hoc basis. It is an informed document that commands considerable respect.

[103] Mr Smith invited my attention to sub section (7) which provides:

"A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the Public Passenger Vehicles Act 1981 or sections 18 to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."

In this case, he submitted, what is important is not what is stated in the Highway Code, but what is not stated. He cited the passage which is quoted at paragraph 73 of this opinion, and concerns the use of the words such as "must not" and "should not", which he characterised as "directory" and "advisory" respectively.

[104] Against that background, Mr Smith noticed that the two extracts from the Code that are relied on by the pursuer are what he describes as the "stopping within vision" extract; and the "use of lighting of vehicles" extract, being numbers 6/20 and 6/37 of process, respectively. Of the first of these, Mr Smith made two points. The first is that the advice given is "you should leave enough space between you and vehicle in front so that you can pull up safely if it suddenly slows down or stops" and he points out that the word used is "should" rather than "must". Further, he argues, the context in which the advice is given is not in circumstances that we are dealing with in this case: it appears to be directed to the distance between vehicles where it is to be presumed that the obstruction (the lead vehicle) is actually visible. Moreover, as with the other reference to lighting of vehicles, what is not said is what appears to be in the "Roadcraft" book: that you should use full beam lights unless there is reason to use dipped beam lights. Mr Smith founded on the absence of such a direction in the Highway Code, under reference to section 38 of the Act. On one view, he submitted, the exclusio unius rule applies. The fact that there is no such direction is significant, and no doubt if the Highway Code was intending to advise that such conduct should be followed, it would have said so after the necessary consultation with advisory groups.

[105] For all we know, he continued, consultation to change the Code would provoke a response along the lines of the Olsen & Farber text (number 7/8 of process) at pages 157 to 158 which is in the following terms:

"In considering the ACDA argument it is important to bear in mind that the limitations of vehicle lighting systems and human vision make it impossible to reliably reveal all possible, significant objects at anything other than very low speeds. The price we would pay for literally conforming to the ACDA rule is severely limiting nighttime speeds perhaps to something in the range of 20 mph (32 km/h)."

Mr Smith submitted that, on the basis of the Highway Code, there is no reason to assume that the circumstances that subsisted at the time of this accident were such that full beam lights should have been used.

[106] It was contended on behalf of the defenders that breach of the Highway Code does not automatically give rise to a finding of negligence. In that regard, Mr Smith relied on Powell v Phillips
[1972] 3 All ER 864;
[1973] RTR 19 which concerned the legislative predecessor of section 38 of the 1988 Act. Stevenson LJ, with whom Davies and Buckley LJJ agreed, said this:

"What then was the effect of those breaches in law and in fact? In law a breach of the Highway Code has a limited effect, as the wording of subsection (5) of section 74 shows. Mr Black admits that the defendant was negligent and 75 per cent liable for the plaintiff's injuries, so he does not rely on her breaches as 'tending to negative liability' altogether. Indeed, those words are more appropriate to the time when this provision was first enacted and any contributory negligence by a plaintiff negatived a defendant's civil liability. On the other side, implicit in Mr Gibbens' argument for the plaintiff is an admission that the subsection provides that a breach of the code may tend to reduce liability or to establish partial responsibility. It is, however, clear that a breach creates no presumption of negligence calling for an explanation, still less a presumption of negligence making a real contribution to causing an accident or injury. The breach is just one of the circumstances on which one party is entitled to rely in establishing the negligence of the other and its contribution to causing the accident or injury. Here it must be considered with all the other circumstances including the explanation given by Mr Wakeman. It must not be elevated into a breach of statutory duty which gives a right of action to anyone who can prove that his injury resulted from it." (Page 22K)

[107] Turning to the Driving Standards Agency publication, Mr Smith submitted that the first problem for the pursuer concerned the status of such a document. He observed that the full content of the publication was not in court, nor was the version current at the time of the accident. In these circumstances, there is a question as to what is to be made of the document. In that regard, Mr Smith cited two cases, which he described as being "of some interest regarding the Driving Standards Agency publication". The first is Lightfoot. That case, a decision at first instance of McCombe J, concerned the issue of the contributory fault of a claimant who was very drunk in a roadway. It should be noted that, after the evidence was led, a "limited" admission of negligence was made, but the defendant's employee, the bus driver, had been convicted of careless driving (having been charged with dangerous driving). The incident was recorded on CCTV on the bus, one camera facing the driver and watching what he was doing; and the other filming forwards. The claimant was walking next to and sometimes staggering on to a long, straight and unlit road. He was seen by a number of witnesses of whom one called the police to indicate her concern. The bus proceeded on dipped beam, and there were no cars ahead. There was a footpath along one side of the road. Notably, in the seconds before the collision, the driver of the bus picked up a "bus board" - a laminated timetable - and read it. Just after then, the collision occurred. Paragraph 26 of the report confirms that it was that failure that led to the concession on liability. Mr Smith submitted that, against that background, the question of liability was "beyond praying for". Paragraph 33 is relevant, he argued, in stating that the real problem was that it was the distraction by reading on the move, without making an assessment of whether the main beam should have been selected, that caused the accident. But the judge does, however, make reference to the Driving Standards Agency publication relating to buses. He said this:

"32 On the facts of this case, I also consider that it was negligent of Mr Kent not to engage his main beam headlights. I accept entirely that it must always be a question of fine judgment as to precisely when a careful driver should engage main beam and that he had only just pulled away from the previous bus stop. However, this was a very dark, straight country road with no oncoming traffic and Mr Kent had had ample opportunity to assess that fact. While not determinative of this aspect of the case the Driving Standards Agency's guidance on the driving of buses and coaches specifically recommends the use of main beam in rural areas where possible.

33 There was ample time, had Mr Kent not been distracted, for him to assess whether or not it was desirable to switch to main beam. It cannot have assisted his assessment in this particular respect that his concentration was diverted by taking hold of the board and then by holding it in his right hand in an illuminated cab, with the board thereby obstructing the stalk switch on the right of the steering column which operated the lights. Had he wanted to alter the beam, he would have had to shift the board to his left hand, take his right hand off the wheel and switch the beam. Taking both hands off the wheel to do this would obviously have been even more inadvisable.

34 It is worth noting also in this respect that in his police interview, Mr Kent said he could think of no reason why he did not use full beam; he said that "unless you have a reason to put your headlights on [in context, main beam]...I think generally speaking you would drive on dipped headlights" (1/27e/143). That is to say, Mr Kent's "default setting" in this respect was to act contrary to the DSA guidance."

Mr Smith submitted that Lightfoot "is really of not much use at all and it is cited for completeness." He invited me to note that the judge does recognise that the beam setting was a matter of "fine judgment". Mr Smith commended that view to the court, quarrelling, however, with the word "fine". It is indeed a matter of judgment, he argued, and it is simply not correct to judge matters with the benefit of hindsight.

[108] In Woodham v J M Turner
[2012] EWCA Civ 375 at paragraph 20 and 21, the provisions of the Driving Standards Agency guide are narrated relative to the accident in that case. At paragraph 22, the Highway Code is referred to. Mr Smith suggested that it is, perhaps, of note that counsel did not, according to the judgment, rely upon the former but did rely upon the latter, and that the former is described as a "guide" and the latter as a "code". The decision is one of the Court of Appeal, and the decision at first instance was not the subject of appeal on the issue of liability. The only matter being discussed was that of contributory fault, the decision being interfered with in the claimant's favour. Mr Smith explained that the case was cited to me simply as the only other example to be found of reference to the Driving Standards Agency Guide being made, but establishes no principle of law regarding it.

[109] On the issue of the "Roadcraft" manual, the court was invited to take the view that what it says cannot be relevant to the standard of reasonable care. Mr Smith made two points about it. First, the opening caveat is such that it is not prescriptive, a matter, he said, which was echoed in evidence. It depends on the circumstances applicable on the road at the relevant time. Second, the manual is not generally known to ordinary drivers. It is aimed at the police and, on one view, he argued, that very fact places other publications in context.

[110] Mr Smith made a number of comments that he said are applicable to all three publications. He submitted that none was put to the first defender when he gave his evidence and argued that, in fairness to him, they should have been put for his comments. The first defender may have explained (justifiably), for example, that he was unaware of the ""Roadcraft" manual; or had an answer about his position on the Highway Code. That may be as simple as saying "I have read it, I know what is in it, but I consider that on this road at this time in my judgment it was reasonable to use dipped beam."

[111] In any event, contended Mr Smith, the court heard evidence relevant to the issue of dipped beam as opposed to full beam. He submitted that there was a body of acceptable evidence to the effect that dipped beam is adopted on that road. That came from both police officers (Constables Lawson and McBride), who are not only familiar with the road, but were there shortly after the accident. Their position, as experienced drivers and as police officers, was that they considered that the use of dipped beam was perfectly acceptable and indeed is their own practice. Mr Smith submitted that, for the court to find that the first defender should have used his main beam, it will have to find that each and every time these officers drove along that road, they were also negligent. Further, he contended, there is "an interesting synergy" between the evidence of Constable Lawson, who described the "topography" of the road as justifying that approach, and the first defender, who was not in court to hear that evidence, but who described the same thing without using the word "topography". There was also the evidence of Dr Coley. He commented that a number of drivers were driving on the road with dipped beam when he visited the scene at night. That demonstrates, argued Mr Smith that, whether someone uses dipped or full beam, is a matter of judgment and the court ought not to find that those who take a position that has a body of evidence to support it as being common, and a considered position by the police officers, is negligent.

[112] On this topic, Mr Smith recognised that the evidence led from Mrs Lesley McCall must be put into the balance. She testified that she and those whom she knows and had asked use full beam. Mr Smith did not suggest that they are wrong in doing so, but argued that the question at issue is not a vote on who does what. He submitted that it falls to the pursuer to prove that the first defender failed to take reasonable care, and that the court would have to reject the considerable body of evidence in support of the first defender's position to justify that decision.

[113] Mr Smith also recognised that, in his report at paragraphs 13.7 and 13.8, Dr Searle comments on what Mr Smith described as the folly of not using full beam lights. He submitted, however, that, in that regard, Dr Searle overstepped his expertise, and he contended that it is not for an expert to say whether dipped or full beam should have been used. That is for the court, considering all the evidence, and applying the standard of the reasonable driver. Mr Smith suggested that Dr Searle may have reverse engineered the matter, by starting from a position of asking if it would have been better for the first defender to be using full beam; and then saying that it would have been better. That, it is submitted, cannot be how negligence is tested, because it employs hindsight.

[114] Anticipating that it would be suggested that the problem was not the dipped beam, but the speed at which the first defender's car was travelling on dipped beam, Mr Smith submitted that, if the Olsen and Farber analysis is correct, then that is a complete answer to the question. "Under‑driving" one's lights, he argued, is simply an ideal that cannot be achieved in practice. Equally, he contended, the evidence was that the police officers who were advised of the speed and the fact of dipped beam still concluded that there was nothing that could have been done.

[115] Further, the first defender plainly felt that he was driving at a speed that was appropriate for dipped beam. It was not suggested to him in evidence that he should have moderated his speed, or that he should have known that he was "going too fast". Mr Smith submitted that, if the pursuer was making such a case, it was necessary for him to set up the circumstances, and identify some speed that would have been appropriate to those circumstances. One of the circumstances, he contended, was that the first defender would have been entitled to assume that, if there was someone on the road, they would be unlikely to be incapable of looking after themselves. It would be assumed that someone who has managed to reach that point on the road has sufficient command of their senses to watch out for others. The curiosity in this case, he contended, is that the first defender ended up there by the unexpected actions of another. Mr Smith invited me to conclude that there is no proper basis for deciding that the first defender ought, in the exercise of reasonable care, to have been using full as opposed to dipped beam.

3b. Would full beam have made any difference?

[116] Turning to the second question - whether the use of full beam would have made any difference - Mr Smith submitted that the difficulty in this case is that the evidence tells us very little about the circumstances in time leading up to the accident. What we do know with reasonable certainty, he argued, is that the pursuer was either standing still, or moving slowly from offside to nearside at the moment of impact. He accepted that the pursuer was probably upright, but, argued Mr Smith, beyond that there is no satisfactory evidence about where he was, what he was doing, and what his posture was. All of these are critical to the matter of what difference it would have made to the outcome, if full as opposed to dipped beam was used. In that regard, Mr Smith cited the following passage from Walker and Walker: Evidence (third edition) which reads as follows:

"Basis of fact

(i) Since the opinion is based on a certain state of facts, it is valueless unless the facts are averred and proved."

[117] Mr Smith submitted that there is no satisfactory evidence that the footprints which were noted by Constable Rankin were made by the pursuer. He noted that reliance was placed on the similarity of the footprints to the tread pattern of the pursuer's shoes. Looking to see if the pattern matched was an obvious thing to do. No doubt if the pattern was different, argued Mr Smith, that would have been important, but, he submitted, there is a problem with "flipping" the result to say that as the pattern matched, the pursuer left the print. As was accepted by Mr Bastit, Adidas shoes, and the pattern, are far from unique. It is clear that Constable Rankin assumed that there was no other candidate for leaving the marks. He was very careful in his evidence to describe the pattern as "similar" to the shoes brought to him.

[118] Mr Smith contended that there is a further problem. We are to assume, he said, that the shoes had gathered sufficient mud to deposit thick enough clods for several steps across the road. If that is so, he submitted, it might be expected that the shoes in the photographs would be significantly muddy above the sole line. In fact, they are remarkably clean, even on the soles. It is true that one has some mud on the sole, but limited to one small portion and we have heard that the pursuer ran up a verge to vomit. There is no surprise that he was gathering mud, but the surprise is the lack of large quantities. The evidence chain is very poor here, but the sequence appears to be that Constable Rankin arrived before it had rained, by which time the shoes had been put in the ambulance and removed. Therefore, unless they were washed by someone, it is unlikely that they are other than in the condition that they were in when found by whoever found them.

[119] Mr Smith accepted that there was what he characterised as "the fly in the ointment", the evidence of Constable Rankin that there was a "smear" of the print indicative of impact. It is plain, submitted Mr Smith, that he was assuming that the prints were left by the pursuer. It is not hard to then conclude that the last one, with the disturbance, was made by the impact. That said, Constable Rankin accepted that it could have been made by another mechanism, and I was invited to take the view that it was. Mr Smith argued that there is circularity in the submissions of the pursuer. It is said that the smear shows the point of impact; and the impact tells us that the smeared footprint was left by the pursuer.

[120] Mr Smith submitted that it cannot be assumed that the steps were continuous, or left in a steady movement, or even that they were left shortly prior to the accident. That would be, he said, "utter speculation" and ignores the evidence that the shoes and socks were not on the pursuer after the accident.

[121] It was further contended on behalf of the defenders that the person who appeared to come from Paisley may have left the footprints. The indication was that he was in the vicinity of and followed the approximate track of the footprints. The first defender said that the individual appeared to come down the side of the cars where the muddy bank was, and crossed over. Mr Smith posed the question why the pursuer would have used the muddy bank when he had tarmac to walk on. By contrast, there was a reason for the other person being on the muddy bank.

[122] I was then invited to consider the evidence of the first defender, and to find him "a wholly credible and reliable witness insofar as an accident like this can have any eye witness reliability". Mr Smith asked me to note that it was suggested in the submissions for the pursuer that the first defender's evidence should be rejected in some way, and remarked that it is "a pity" that there was no suggestion to the first defender that he was lying or mistaken. Although part of the defender's police statement is produced in the written submissions for the pursuer, Mr Smith contended that the whole of the statement should be looked at. What the first defender communicated to the police was that the whole matter was instantaneous. Any assumption that he saw the pursuer from 50 metres away is not what he said and not what can be assumed against that background. It is plain, argued Mr Smith that the actual impact must have taken place in a fraction of a second. That was the first of two important pieces of evidence, neither of which was challenged as being either incredible or unreliable. The second important piece of evidence concerned the pursuer not having shoes or socks on and his shoes lying in the road. It can be seen in the photographs that the socks were also in the road. I was invited to exclude the possibility that they came off in the accident "as totally unsupported by the evidence". Accordingly, argued Mr Smith, "there is some corroboration for a position that the pursuer did not have his socks on when the collision happened."

[123] It was submitted that some "further leverage was sought to be obtained (by Mr Di Rollo) from what the first defender has said previously". That, argued Mr Smith, was unfair. First, the prior so called inconsistent statements were precognitions and ought not to be referred to. Reference was made to the terms of section 3 of the Civil Evidence (Scotland) Act 1988. In any event, on the evidence we simply do not know if, for example, he was asked about others leaving the footprints. Whilst that was important for the pursuer's case, it was not important to the first defender himself. The court is simply not allowed to speculate about what the first defender was asked, by whom, and when. That is totally improper, submitted Mr Smith. He contended that the same point applies to all other suggestions of inconsistency.

[124] I was invited to conclude that the pursuer did not have his shoes on at the moment of impact, on the basis of the first defender's evidence, with the corroboration of the socks being off. Mr Smith asked me to note that Dr Searle was prepared to say that "shoes can come off" in accidents, but on questioning by the court he admitted that in the thousands of cases he dealt with he had not seen both shoes coming off. Not even he suggested that socks can come off.

[125] The important point to be made, said Mr Smith, is that if the pursuer did not have his shoes and socks on at the time of impact, either the footsteps were not made by him or, if they were, they were made at a time that was not continuous with a steady walk across the roadway to the point of impact. "If either of these scenarios subsists", he argued, "the entire thesis of Dr Searle about where the pursuer was at any time disintegrates." Consequently, ran the argument, without knowing where he was at any time, we cannot know if he would have been seen by the first defender.

[126] Mr Smith submitted that we do not know what the pursuer's posture was in the moments prior to impact. He contended that that is critical. If the pursuer was sitting on the verge trying to put his shoes back on, or about to, and stood up at the very last moment, turning to his right, that could explain everything - the lack of shoes, the lack of socks, the fact that the first defender did not see him, and his impression that the pursuer came from the nearside. There is support for that possibility from the mud on the bonnet, and the likelihood then of mud on the seat of his trousers. He submitted that it was not, however, for the defenders to postulate what actually happened. It is for the pursuer to prove what he was doing at the time and it is submitted that there are too many doubts to allow the court to make findings in fact.

4. Visibility and awareness

[127] I was invited to accept the evidence of Dr Edgar. It was submitted that the ability to see someone "is only part of the picture". In considering the exercise of reasonable care it was necessary to know much, much more. Critically, the actual position of the pedestrian relative to the car, the angles of vision, the background and so on are all of vital importance. The comments in Olson and Farber are pertinent: the issue is not whether someone could have been seen if you are looking for him, but whether the person ought to have been seen. That is especially so, argued Mr Smith, if the pedestrian is entirely unexpected.

[128] It was Mr Smith's contention that the importance of Dr Edgar's evidence is that he described a number of variables, all of which will influence the issue of whether someone can be seen and, critically, whether the driver will be "aware" of that person. His position was that, without knowing what these variables are, it was not possible to adjudicate upon the "avoidability" of the person. It was Mr Smith's submission that the problem that arises, according to Dr Edgar, is that the driver is human, and the problems that exist are because of human response. What the court cannot do, he argued, is to decide that the first defender should have been acting in a way that is beyond the reasonable response of an ordinary human being. On that topic, in Stewart v Glaze at paragraph 76, Coulson J said this:

"Of course, I accept that it was possible that Mr Glaze might have seen Mr Stewart at that particular split-second. That is the tragedy of this case. But the court must be careful not to elevate the possible into the standard of the reasonable driver. For the reasons which I have noted, the evidence demonstrates that Mr Glaze did not fall below that standard."

[129] In conclusion, Mr Smith submitted that here is no proper basis for deciding that the first defender was negligent in not using his full beam, and no evidence that suggests that if he had used full beam, he would have seen the pursuer and been able to react to his presence. We simply do not know what he was doing, Mr Smith argued, but the balance of the evidence is that the factual assumptions on which Dr Searle based his opinion have not been established.

5. The instruments: was the use negligent?

[130] In his written submissions, Mr Smith addressed the question whether the first defender's use of the instruments on his dashboard was negligent. Mr Di Rollo did seek to advance such a case in his submissions, and I need not, therefore, deal with Mr Smith's contentions on the matter.

6. Contributory negligence

[131] Mr Smith submitted that, in the event that I held the defenders liable to make reparation to the pursuer, I should find that there was "a very high degree of contributory fault". The difficulty that the defenders have, he argued, is the same difficulty that the pursuer has: we simply do not know what the pursuer was doing and where, at the time of the lead up to the accident. Nonetheless, he contended, we can say that the pursuer would probably have had a clear view of the approach of the defender, and thus ought not to have ended up in his path. In these circumstances, Mr Smith moved for "a very significant finding of contributory fault" on the part of the pursuer.

7. The witnesses

[132] It was submitted on behalf of the defenders that there are no issues arising of credibility. In particular, it was submitted that the first defender presented as an honest and careful witness who was clearly more concerned for the pursuer than anything else.

[133] Mr Smith contended, however, that, before taking anything from Dr Searle's evidence that is in dispute and within his expertise, I should treat what he says with extreme caution. It was argued that he displayed clear bias, overstepping the mark in the same way that he did in Stewart. Dr Searle seemed to see being labelled as an "advocate" for a cause as being an occupational hazard. Mr Smith submitted that Dr Searle made statements that were ill‑researched, irrelevant and designed to support the pursuer's case at all costs. Acknowledging that it may have been the way that the questions were asked, Mr Smith contended that Dr Searle appeared to be able to provide concise answers to questions put by counsel for the pursuer but gave lengthy and sometimes unfocussed answers to counsel for the defenders.

Discussion
1. Credibility and reliability of witnesses
The first defender

[134] As I watched and listened to the first defender as he gave evidence, I gained the impression that he was doing his best to tell the truth. He gave his answers in a straightforward way. I reject Mr Di Rollo's suggestion that he was fabricating the evidence that he gave about the young boy who came over to him as he sought to tend the pursuer. For the reasons given by Mr Smith, I sustain his objection to the admissibility of evidence about what the first defender may or may not have said in precognition. What is recorded in the statement given to Constable McBride is likely to be largely dependent on the questions asked of the first defender and what he considered relevant enough to record in writing. That is equally true of any precognition taken from him. Even if I had held the evidence of what was said by the first defender in precognition admissible, therefore, it would not have caused me to doubt what the first defender said in evidence about the young boy. In any event, I can think of no reason why the first defender would believe that it was in his interest to lie about this person. For reasons that I shall give in due course, his account cannot be taken as intended to suggest that the footprints found by Constable Rankin were made by the young boy rather than by the pursuer.

[135] This is a convenient point to note that Mr Di Rollo appeared to be quite exercised by what he seemed to think was a suggestion by the first defender that the young boy had walked from Paisley. I understood that the first defender was saying no more than that the young boy was walking from the direction of Paisley. By the time he arrived at the scene, cars coming from Paisley had stopped to the north of the first defender's car. It seemed to me quite possible that the young boy had come from one of those cars. Indeed, towards the end of re‑examination, Mr Di Rollo asked: "had he been in a car" and the first defender replied: "I'm not a hundred per cent on that".

Dr Searle

[136] In my view, Mr Smith's objection to that part of Dr Searle's report in which he argues that the footprints found by Constable Rankin were left by the pursuer was well-founded. It is clear from its terms that, in that section at least, Dr Searle took on the role of advocate and abandoned the role of expert. It reflected on him badly that, when cross‑examined by Mr Smith on the adverse comments made about him by Coulson J, he seemed to shrug them off as an occupational hazard. There is force in Mr Smith's suggestion that, during cross‑examination, Dr Searle seemed at pains to avoid any concession that might be thought to undermine the pursuer's case. Consequently, I have approached my assessment of Dr Searle's evidence with caution.

The other witnesses
[137] I regarded all of the other witnesses, generally, as credible and reliable. It can be taken that I accepted their evidence, unless I indicate to the contrary.

2. Reasonable care

[138] As the first defender drove out of Barrhead onto Caplethill Road, it was his duty to take reasonable care to avoid acts or omissions which he could reasonably foresee would be likely to injure those whom he ought reasonably to have in contemplation as being affected by such acts or omissions. Persons that he ought to have had in contemplation included, for example, the occupants of any vehicle travelling northwards immediately ahead of him, the drivers of cars coming in the opposite direction who were likely to be affected by the glare from his headlights, and the occupants of a vehicle, lit or unlit, that may have been stationary in the northbound carriageway ahead. When making decisions about his driving and, in particular, choosing to remain on dipped beam as he drove out of Barrhead, I do not consider that the first defender ought reasonably to have foreseen that, in the circumstances that prevailed, a pedestrian would choose to cross from his offside and walk into the path of his car. The circumstances that I have in mind are: the road was straight; visibility was good; and a pedestrian standing at or about the point of impact could see the first defender's car approaching from a distance of "just under about 200 metres." (Dr Coley)

3. The circumstances of the accident

[139] I have no difficulty in holding that the footprints recorded by Constable Rankin in his report, number 6/8 of process, were made by the pursuer as he crossed the road from east to west. As noted by Constable Rankin, his path had a southerly component, so that, rather than crossing at 90 degrees to the line of the carriageway, he was crossing at an angle of about 35 degrees, that is, to the south of south west. (Dr Coley's report, number 7/3 of process, paragraph 7.4.9) The collision occurred at what Constable Rankin concluded, correctly in my opinion, was the point of impact. I reach that view having regard to Constable Rankin's reconstruction, and for the reasons put forward by Mr Di Rollo, which I have recorded in paragraph [80] of this opinion.

[140] In my view, the contentions advanced by Mr Smith for the proposition that the footprints were not or might not have been left by the pursuer are misconceived. He suggested that, if the pursuer's shoes had picked up mud on the muddy bank, and had then deposited it, they would have been significantly muddy above the sole line, whereas they were "remarkably clean - even on the soles." There was no evidence, however, that there was a "muddy bank" on the east side of the road as Mr Smith contended. The bank that Ms McDonald was asked about was on the west side. Constable Rankin does not use the words "mud" or "bank" in his report. He describes the east and west extremities of the road in this way:

"There are no kerbs, the rolled bitumen of the carriageway simply ends and the soft ground of the verges begins. A thin covering of dirt has built up at the union of the road and verge on both sides."

In the "Reconstruction" section of his report, he says this:

"The victim was walking on the verge at the east side of the carriageway. The verge was covered in soft earth and the imprint of the victim's shoes could be seen in the earth as he walked southbound on the east side of the road."

For the trainers to leave the footprints, it was necessary only that there was sufficient mud on the soles. It was unnecessary for there to be any mud on the uppers, although the relevant police photographs show some mud on the uppers. If mud had been collected in the pattern of the soles as the pursuer walked on the east verge of the road, and was then deposited on the road as he walked across it, it is unsurprising, in my opinion, that there came a point when the mud on the soles was depleted.

[141] Further, although Constable Rankin accepted the general proposition that the "smear" could have been caused by some mechanism other than the impact, he rejected the specific examples put to him by Mr Smith: that it could have been caused by someone trying to wipe the mud off on the road or the passage of a vehicle. I accept Dr Searle's evidence, which came from his undoubtedly considerable experience of investigating road traffic accidents, that it is "a classic feature of accident reconstruction" that a "shoe scuff mark and where it occurs locate very specifically the point of impact".

[142] There was no evidence that might be said to negative the possibility that, for some reason, the pursuer took his socks off at some point, but, equally, there was no evidence that might be said to negative the possibility that he put his shoes back on again afterwards. It was the unchallenged evidence of Dr Searle that a pedestrian's shoe has been known to come off during or after impact in an accident such as this. I find that unsurprising, and I can think of no reason in principle why a pedestrian's shoes may not both come off. In any event, since I have held that the footprints leading to the point of impact were those of the pursuer, it follows that his shoes came off as a result of the collision. Finally, I reject the suggestion that the evidence raises the possibility that the footprints were left by the young boy. The evidence of the first defender was quite unequivocal: that person crossed from the verge opposite the point where the pursuer lay, and he came from there to where the pursuer was. That is some considerable distance north of the point where, on any view, the pursuer was struck by the car.

[143] The only direct evidence about the circumstances of this accident came from the first defender. The account given by the first defender to Constable McBride, which is contained in Constable McBride's precognition, number 6/29 of process, is, in several respects, different from the account which the first defender gave in evidence. Further, the account which he gave in the earlier part of his evidence differed, in some respects, from the account which gave in the later part of his evidence. Where the statement given to Constable McBride differs from the first defender's evidence given in court, I place more weight on the former, because of its close proximity in time to the accident. A little over four and a half years had passed between the date of the accident and the pursuer's giving evidence. It was clear to me that, when giving evidence, he had forgotten a number of important details about the circumstances of what had happened. Mr Di Rollo asked him, for example, whether he saw the pursuer before the impact, and he replied: "No, no, I can't remember seeing him." Further, I accept the first defender's evidence that, when he gave his statement to Constable McBride, he was trying to tell the truth.

[144] It is convenient at this point to set out, once again, what the first defender told Constable McBride:

"As I passed through the national speed sign I accelerated to 40 - 50 mph as I was driving towards the first left hand bend on Caplethill Road. I was going uphill. As I reached the first white direction arrow painted on the road, a man appeared on the road. It was instant. I think he appeared from my nearside. He looked as if he was walking towards Barrhead. I didn't see him until he was right in front of me. I think he was close to the nearside of the car. I didn't have full beam on. I tried to move my car out of the way. The next thing I had hit him. There was glass all in my car. The windscreen was smashed in. By the time I stopped, I was in the opposite carriageway. I got out and went straight to the male. He was lying across the centre lines."

[145] Relying on Dr Searle's evidence, Mr Di Rollo contended that, as the first defender approached the point of impact, he was travelling at about 40 mph, or a little over. That was not the subject of dispute, it is consistent with the first defender's account and I hold it to be the case. I also accept that, as the first defender reached the first white direction arrow, the pursuer appeared on the road, by which I take the first defender to have meant that, as he reached the first white direction arrow, he became aware of the pursuer on the road. That interpretation is consistent with the first defender's recollection that "it was instant". I accept, too, that the first defender's impression of the pursuer was that he looked as if he was walking towards Barrhead, which is consistent with the direction of the footprints. I accept that the first defender was driving on dipped beam when he became aware of the pursuer.

[146] I am not satisfied, however, that the pursuer appeared from the first defender's nearside, nor that he was "close to the nearside of the car" when the first defender became aware of him. Mr Crawford's opinion, based on the pattern of the pursuer's injuries, was that he was walking across the car from the offside to the nearside when he was struck. The pattern of damage to the Vauxhall Vectra and the footprints noted by Constable Rankin indicate that the pursuer was travelling from offside to nearside, and I so hold. I accept that the first defender did not become aware of the pursuer until the latter was right in front of him. I accept that, when he saw the pursuer, the first defender tried to move his car "out of the way", and it is clear that he did so by steering to his offside. I accept Dr Searle's evidence that the point of impact was 1.4 metres to the west of the centreline of the road. According to Dr Coley, the northbound lane measured about 3.35 metres in width between the inner edge of the carriageway edge line and the centre of the centre white line. (Number 7/3 of process, paragraph 7.2.6) The pursuer was, therefore, in the eastmost half of the northbound carriageway when he was struck. The first defender's car crossed the centre line, and came to rest in the southbound carriageway. I conclude that, when the car struck the pursuer, it was moving towards the southbound lane. Constable Rankin noted a scuff mark across the letter "N" on the registration plate, from bottom to top. Dr Coley expresses the view that the damage to the number plate is likely to have been caused by the impact with the pursuer. Given the progression of damage to the car, that appears to me to be correct. The damage to the number plate was between the nearside and centre of the car, but nearer the centre. Since the Vectra was travelling towards its offside when it struck the pursuer, it follows that, when the first defender became aware of him, the pursuer was farther to the offside of the car than the scuff mark on the number plate.

4. Was it negligent to drive on dipped beam?

[147] At paragraph 12.2 of his report, Dr Searle expresses the view that, when driving on unlit rural roads at night, it is important to use main beam when possible. If one drives on dipped beam, he says, a lower speed must be adopted in order to be able to stop within the distance seen to be clear, because the range of visibility is less. In my opinion, in general terms these views are correct and accord with common sense. As I have noted in paragraph 26 of this opinion, however, the reason given by the first defender for driving on dipped beam immediately prior to impact was that, if driving on main beam, he did not think that one would see a car approaching the bend from the opposite direction, because there is a hill on the other side. Constable MacBride's evidence was that he was familiar with the section of the road where the accident happened, having driven on it on a large number of occasions during the day and at night. He was asked questions about his use of headlights at night. He said that, when travelling north out of Barrhead, he would always use dipped beams because of the topography of the road. He explained that there is a downward slope and then an upward slope and there is then a left hand bend which then veers into a right hand bend. If a vehicle was coming in the opposite direction before it had reached the bend you would be unable to see it. Constable Lawson said that this stretch of the road was well known to him, and that he was not concerned about the first defender's use of dipped beam, as opposed to main beam. He explained why in the following passage:

"... if I am exiting Barrhead travelling towards Paisley, I will be on dipped beams. On approaching the left hand bend, as an advanced driver, I'm looking for as much information from the road as possible, I'm looking for something coming round that corner towards me. If I'm on full beam, I'm not going to see that, and it is a very short space, and you still have some ambient light from the street lights as you enter (that road?), so my personal opinion is I would use dipped beam on that road".

In answer to questions from me, Constable Lawson said that the corner is sharper than it looks in the photographs. He would use dipped beam because he would get an earlier indication of something coming the other way. The road drops away at the other side and a car approaching from the opposite direction comes up the hill.

[148] As I have noted, Mr Di Rollo relies on the passage at paragraph 7.5.13 of Dr Coley's report, quoted at paragraph [15] of this opinion, in seeking to persuade me that, notwithstanding the evidence given by the first defender, and Constables McBride and Lawson, the use of dipped beam by the first defender on the approach to the left hand bend was negligent. A number of observations fall to be made about the context in which paragraph 7.5.13 should be understood. Dr Coley visited the scene on one occasion only. He notes: "the foliage was different at the time of my site visit, compared to that shown in the Police photographs". (Report, number 7/3 of process, paragraph 1.9) That is to be expected, because the accident happened on 12 April 2008, before the trees and hedges had come into leaf, as can be seen in the photographs, number 6/4 of process, and his visit was on 3 September 2012, before they had shed. Further, it was raining at the time of Dr Coley's visit and the roads were wet. (Paragraph 7.5.12) As I have held, it was not raining at the time of the accident, and all we know about the condition of the road surface is that Constable Lawson recorded that it was "wet/damp". (Strathclyde Police Road Crash Report, number 6/16 of process) It is at least possible that the road surface was materially more reflective when Dr Coley visited than it was at the time of the accident. Further, there was no evidence about the headlight setting (whether full or dipped beam) of the southbound vehicles that Dr Coley identified and whether or not that setting affected the visibility of the lights of these vehicles to northbound drivers.

[149] Dr Searle said that there was no need to use dipped headlights when travelling north towards the left hand bend. He said that it was possible to see the projection of the headlights of cars approaching from the north which light up the hedge "and similar things in that area". You can see for about three seconds that a vehicle is going to appear, he said, so there is ample time to dip. He was asked whether he agreed with the views expressed by Dr Coley at paragraph 7.5.13 of his report, and Dr Searle said that he did. He explained that he drove through the scene on numerous occasions, and saw that oncoming vehicles were detected because of the reflection of their headlights on the road and hedges. Dr Searle visited the scene twice, once in January 2010, and again in December 2012. It appears that, on the first occasion, he was there only during the hours of daylight. My comments about the circumstances in which Dr Coley made his observations largely apply to those in which Dr Searle made his, with the exception of the foliage point. In summary, there was no evidence about the conditions which might affect the reflectivity of the road and hedges at the time of Dr Searle's second visit, nor was there evidence about the headlight setting of the southbound vehicles that Dr Searle observed.

[150] By contrast with Dr Coley's and Dr Searle's very limited experience of driving at the scene, the first defender, Constable McBride and Constable Lawson were familiar with the road. I believed all three when they said that they drove on dipped headlights on Caplethill Road when coming out of Barrhead, and, in my opinion, they had a good reason for doing so. Their intention was to avoid dazzling oncoming motorists. That was an exercise of taking reasonable care for other road users. In my view, whether or not to switch to full beam at that point was a matter for individual judgment. I hold that it was the first defender's honest belief that, if travelling northwards towards the bend on full beam, one may not see the lights of a car approaching the bend from the opposite direction, and that he drove on dipped beam for that reason. On the evidence which I heard, I am unable to conclude that the first defender was wrong in his judgment that, as a general rule, it was prudent to drive towards the corner on dipped beam rather than full beam.

[151] Rule 113 of the Highway Code, to which Mr Di Rollo referred in support of his submissions on the need to drive on full beam, says nothing about the circumstances in which drivers should use full beam rather than dipped. Rule 114, however, provides: "You MUST NOT use any lights in a way which would dazzle or cause discomfort to other road users ... " Dazzling other road users is what, as I have held, the first defender was attempting to avoid. On the matter of the "Roadcraft" publication, there was no evidence that the first defender knew or ought to have known of its terms and the fact of non‑compliance with its terms would not, in my view, assist Mr Di Rollo in seeking to establish negligence on his part. In any event, as he drove northwards on Caplethill Road, the first defender was doing what was recommended - he was using dipped headlights "for other road users". He was concerned not to dazzle southbound drivers as they came round what was, for them, a right hand bend. He judged that he would not be aware of their approach if he was on full beam, and he remained, therefore, on dipped beam. The text of the publication advises that headlights be dipped "to avoid dazzling oncoming drivers". The section of the Driving Standards Agency publication on which Mr Di Rollo founded advises drivers to use main beam headlights on unlit roads unless they are following another vehicle or they are meeting oncoming traffic. (Number 6/21 of process) In the latter case, it is explained that headlights should be dipped "in good time to avoid dazzling" oncoming drivers. As in the case of "Roadcraft", there was no evidence that the first defender knew or ought to have known of the terms of the Driving Standards Agency publication, with the same consequences as for "Roadcraft" in respect of establishing negligence. I note, however, that the first defender's purpose was to avoid dazzling oncoming drives, as the Driving Standards Agency advises.

5. Was the first defender's speed excessive for driving on dipped beam?

[152] For the purpose of determining whether it is established on the evidence that the first defender's speed was excessive for driving on dipped beam, I proceed on the basis that he may have been travelling at 40 mph, the lowest of the range of speeds at which I have held that he was travelling. I do so because, on the evidence, I am not entitled to hold it proved that he was travelling faster than that. I note at this point that, in my view, the fact that the first defender's car struck the pursuer does not, by itself, demonstrate non-compliance with the provision of the Highway Code on which Mr Di Rollo founded, rule 126, nor, indeed, with any other text on which he relied. It is convenient to repeat the relevant part of rule 126 here: "Drive at a speed that will allow you to stop well within the distance you can see to be clear." In my opinion, rule 126 is concerned with the need to drive at a speed which will allow the driver to stop safely within the distance that he can see to be clear along his line of travel, in order to avoid colliding with, for example, a vehicle ahead which slows or stops suddenly. It covers also the need to be able to stop in time to avoid a stationary obstacle ahead, during the day or at night. Whilst, for the reasons already give, non-compliance with the "Roadcraft" advice would not necessarily amount to negligence on the part of a civilian driver, I note that the advice on distance reads:

"Always drive so that you can stop safely within the distance you can see to be clear; at night this is the area lit by your headlights unless there is full street lighting."

[153] That advice is consistent with the research quoted in Dr Edgar's report that, at night, drivers look in the lane that they are driving in for about 80% of the time, that they tend to look in the areas best illuminated by their headlights, and they tend to look less in the offside lane at night, than during the day. Although the impact occurred 1.4 metres into the northbound carriageway, on the evidence which I accept, the pursuer moved into the path of the first defender's car from the offside lane. In my judgment, the first defender cannot be faulted for concentrating on the road ahead of him, i.e. the northbound carriageway, and not being aware of the pursuer while he was in the southbound carriageway. In my judgment, he cannot reasonably have expected a pedestrian to travel from his offside into the path of his car. It is not possible to say for how long the pursuer was in the northbound carriageway, before impact. Working back from the moment of the collision, the first defender became aware of the pursuer walking there when the latter was about 40 to 50 metres away from the car. At 40 mph, the car would have travelled that distance in between a little over two and a little under three seconds. Constable Rankin's plan shows that there were two footprints in the northbound carriageway and two just to the east of the centreline. As Mr Smith observed, there is no evidence which would allow me to determine whether the pursuer's travel to the point of impact was continuous, or whether he stopped at any point, nor is it known, in my view, at what speed he was travelling before the first defender became aware of him, notwithstanding that he appeared to be walking when first seen by the first defender in the northbound carriageway.

[154] Mr Di Rollo's submissions on this matter appear to me to be self‑contradictory, as was Dr Searle's evidence on the topic. At one point, Mr Di Rollo invited me to hold that the experts were agreed that "even on dipped beam (the first defender) ought to have seen (the pursuer) and should have been able to brake", whilst apparently maintaining that the first defender was at fault for not driving at a speed that would enable him to stop within a distance that he could see to be clear.

[155] Dr Searle expresses the following opinion in his report:

"... the speed Mr Glen was adopting was too great for the distance at which he could manage to see the pedestrian. Mr Glen did not see the pedestrian in his path until too late for any braking, He did manage to swerve, towards the offside, but struck the pedestrian with the nearside part of his vehicle."

Towards the end of his examination in chief, however, Dr Searle confirmed that, in his view, "on dipped beam (the first defender) should have been able to stop just in time to avoid the collision". That is consistent with the terms of paragraph 13.5 of his report, in which he says that, at 40 mph, the stopping distance would be 33 metres.

[156] In re‑examination of the first defender, Mr Di Rollo suggested to him that, if driving on dipped beam, "you should drive at such a speed so that you can stop within the distance that you can see", and asked him if he agreed. Mr Smith objected to the question as not arising out of cross‑examination. I allowed the question subject to competency and relevancy. The first defender replied that he was not "a hundred per cent" that he did agree. Mr Di Rollo sought to clarify the answer by asking: "You don't think that you should drive at a lower speed if you're on dipped headlights? You wouldn't modify your speed if you were on dipped headlights?", to which the first defender replied: "Well yes I would, but I'm pretty sure that it says I was only doing up to 40 or 50 miles per hour." It seemed to me at the time that the first defender was referring to the terms of the statement that he gave to Constable McBride, and, when he said that he was "only doing up to 40 or 50 mph", he regarded that as a "lower speed", appropriate for driving on dipped headlights. It was not put to him that 40 or 50 mph was a speed at which he could not safely stop within the distance ahead that he could see to be clear.

[157] On the whole evidence, I am not persuaded that 40 mph was too great a speed to enable the first defender to stop well within the distance ahead that he could see to be clear. It is appropriate to record that there was no evidence, nor was there any submission by Mr Di Rollo, to the effect that the first defender was at fault for having swerved in an attempt to avoid the pursuer, rather than brake.

6. Would the accident have been avoided if the first defender had been driving on full beam?

[158] Even if I had concluded that the first defender ought to have driven on full beam headlights as he travelled north, I am not persuaded on the evidence that, had he done so, the collision with the pursuer would have been avoided.

[159] The evidence led on behalf of the pursuer in support of that proposition came from Dr Searle. At paragraph 12.5 of his report, he refers to a study published in 1976 (wrongly referenced as having been published in 1978), and says this:

"Mortimer measured the normal range of visibility of a pedestrian at night, when driving on main beam. He found that the pedestrian could be seen at 121 metres. Such a distance would easily sufficient (sic) to stop from the speed at which Mr Glen was travelling and no difficulty would have been experienced in stopping for this pedestrian. ... Mr Little and what he was doing would, on main beam, have been seen in time to respond appropriately."

[160] On a consideration of the Mortimer paper itself, and of certain answers given by Dr Searle in cross‑examination, it emerges that paragraph 12.5 is inaccurate in a number of important respects. Firstly, the study was not original research, but a review of previous studies. Nowhere in the paper does Mortimer claim to have carried out any measurement of the normal range of visibility of a pedestrian at night, nor does he claim to have found that the pedestrian could be seen at 121 metres.

[161] The figure of 121 metres was derived by Dr Searle from a graph, figure 5, in the Mortimer paper. The section of the review in which figure 5 is introduced is entitled "Beam Evaluation by Field Tests", where it is explained that the "evaluation of the effectiveness of vehicle headlamps must rest on human factors testing". Mortimer goes on to note, however, that uniform testing procedures had not yet been developed, which, he comments "poses problems in interpreting the results of different test programs". He continues:

"A major stumbling block has been the selection of a suitable test target, a variety of which have been used. One study (Mortimer and Olson, I974a) evaluated a number of alternative visibility test targets and indicated that the type shown in Figure 4 was most useful. Night tests, using two vehicles approaching each other with various headlamp beams, confirmed that the overall procedure, including the use of this target, provided high test-retest reliability and discriminability among different meeting beams. By using about 10 of these targets positioned, for example, at the right side of the lane, it is possible to obtain results such as shown in Figure 5 of the visibility distance of that target as a function of the distance separating the two vehicles."

Figure 5, therefore, from which Dr Searle derived his figure of 121 metres as being "the normal range of visibility of a pedestrian at night, when driving on main beam", was not intended to and, indeed, does not show that. It shows the result of tests to establish the visibility distance of the target shown at figure 4. Figure 4 in the paper depicts a rectangular block of material, mounted vertically on a base. No dimension is given. The vertical face of the block appears to comprise a dark coloured background, on which are mounted a light coloured square and an adjacent light coloured rectangle. The light coloured shapes appear to occupy less than half of the area of the dark coloured background, and are mounted towards the foot of the dark coloured background.

[162] Figure 5 is a graph in which the y-axis records "visibility distance" in feet and the x‑axis depicts "distance between cars" in feet, before and after meeting. It can be seen that, when the cars are 3,500 feet apart and travelling towards each other, the targets are visible to a car on low beam at a little less than 200 feet and at 300 feet to a car on high beam. As the cars converge:

"Typically, visibility is reduced up to a separation distance of about 70 m before the meeting point and then begins to rise again, stabilizing at a maximum when the effects of glare are dissipated and the driver readapts to the prevailing illumination level."

Figure 5 shows that visibility approaches its maximum for both low and high beam when the cars have diverged to a distance of about 1,000 feet after passing each other. At that point, the graph shows that the relevant target is visible at a distance of a little under 400 feet when the headlights are on high beam, and about 200 feet when they are selected to low beam. Dr Searle's figure of 121 metres was derived, he said, from the 400 feet distance shown in the graph.

[163] In summary, it is clear that the tests carried out by Olson and Mortimer, the results of which are recorded in figure 5, were part of a series designed to identify, among other things, the "most useful" target. It is equally clear that figure 5 does not seek to demonstrate "the normal range of visibility of a pedestrian at night, when driving on main beam". The only mention of a pedestrian target to be found in the Mortimer paper is in a reference to "tests (which) have been done in static conditions where the visibility of various objects, such as pedestrian dummies, positioned in various places about the roadway was evaluated." These tests are different from the tests from which figure 5 was derived, and the targets that produced the "figure 5" results were not "pedestrian dummies", but the figure 4 targets.

[164] When Mr Smith began his questions about the Mortimer paper during cross‑examination, he asked Dr Searle to confirm that he had, to some extent, relied on figure 5 in the Mortimer study report. Curiously, Dr Searle replied: "Yes, only to show that there's a large difference between main beam and dipped beam". Mr Smith suggested that Dr Searle went a bit further than that, because he relied on the figure 5 distance of about 400 feet or thereby to give an indication of the distance at which a pedestrian could be seen on main beam. Again curiously, Dr Searle replied, "Yes, but then we don't really know what target Mortimer was using and so on but it is, in general terms, the kind of figure that you might expect from main beam."

[165] It is clear, in my opinion, that the reference to the Mortimer paper in paragraph 12.5 of Dr Searle's report was not intended by Dr Searle to demonstrate that there is "a large difference between main beam and dipped beam". Nowhere in his report does Dr Searle refer to the Mortimer paper as vouching such a proposition. Further, Dr Searle's evidence that "we don't really know what target he was using", contradicts his text in paragraph 12.5, where the target is described as "a pedestrian" and is contradicted by the text of the Mortimer paper, in which there is a photograph of the target at figure 4.

[166] Dr Searle is correct about not knowing what target was used, in one sense. As I have already observed, the dimensions of the target are not disclosed in the Mortimer paper. There is no note in the paper of the height, if any, at which the targets were mounted above the road. The reader is not told what was the reflectivity of the dark background nor of the light coloured shapes on the target. It is not possible to know what the drivers were tasked to look for, if anything, as they passed the targets. We know nothing about the headlights that were used in the tests, whether, for example, they were internally mounted in production vehicles, or externally mounted, bearing in mind that the purpose of the 1974 Mortimer and Olson paper that was being reviewed by Mortimer in 1976 was to evaluate the tests, not the headlights. That became clear during the course of Mr Smith's cross‑examination of Dr Searle, when I allowed several papers to be lodged, including the 1974 Mortimer and Olson paper referenced by Mortimer in his 1976 paper. The 1974 paper is entitled "Development and Use of Driving Tests to Evaluate Headlamp Beams". Although the 1974 paper explains the methodology employed in the studies which it reports, and gives the sort of detail that is missing from the 1976 paper, Dr Searle said in evidence that he had not read it.

[167] In light of the foregoing analysis of the 1976 Mortimer paper on which Dr Searle purports to rely for the views which he expresses in paragraph 12.5 of his report, I am not satisfied on the basis of Dr Searle's evidence that, had he been driving on full beam, the first defender would have been able to see the pursuer "at the limit of visibility leaving the verge on the far side of the road, and been able to easily stop in time." (Number 6/28 of process, paragraph 12.6) All that remains in Dr Searle's evidence is his comment that 121 metres is "in general terms, the kind of figure that you might expect from main beam." Without support for that proposition in the form of research papers or empirical evidence, suggesting that it applies when the target is unexpected, I am unable to accord it any weight.

[168] During cross‑examination, it emerged that Dr Searle was aware of and had read reports of research work that has been undertaken into the reaction times of drivers who encounter a pedestrian in the highway at night without prior warning. I am conscious that there may well be differences between the methodology employed in such research and the circumstances of this accident, but I may have found it helpful to have been given an insight into that work and its results.

[169] Dr Coley carried out his own investigations to determine the distance at which a pedestrian might be visible to a driver coming out of Barrhead at night, using full beam. He said that he had positioned a white towel on a hedge to the east side of the road, adjacent to the location of the footprint closest to the eastern verge on the offside of the road. As he drove northwards from Barrhead, it "came into view ... probably when at least 100 metres away". (Number 7/3 of process, paragraph 7.5.11) Of the distances which he measured, however, Dr Coley makes the general comment:

"The above distances do not necessarily reflect the distance at which I would expect Mr Glen to have seen Mr Little. I was fully aware of the location of the target and I was actively looking for it. A driver not expecting to see a pedestrian at that point is unlikely to see them when so far away. Furthermore, if the position and posture of the pedestrian was not a typical upright posture, the time taken to recognise the pedestrian could be greater."

[170] On the assumption that the pursuer crossed the road into the path of the first defender's car at a continuous speed, and on an analysis of the respective speeds of the pursuer and the first defender's car, Dr Coley calculated that the pursuer would have begun to cross when the first defender was 89 to 132 metres away. He expresses the view that the first defender "may or may not" have been able to recognise the pursuer with full beam lights.

[168] In his report, Dr Edgar explains that a number of unknowns in this case might have affected the detectability of the pursuer when viewed with dipped versus full beam lights. These include: the precise illuminance and beam patterns of the dipped and full beam headlights of the first defender's car; the adjustment and condition of the headlights; and the background against which the pursuer presented. Dr Edgar defines "illuminance" as:

"the amount of light falling on a surface per unit area. The resulting luminance of that surface will depend on the reflectivity of the surface."

"Luminance" is defined as:

"a photometric term used to describe the amount of light returned from a surface or light source per unit area",

Dr Edgar's definition of "reflectivity" is:

"the fraction of incident light reflected by a surface. A white surface has high reflectivity, a black surface low."

[171] Referencing research carried out in 1990, Dr Edgar's opinion is that the driver's search of the road using headlights at night:

"is appropriate in terms of when and where to look, but inappropriate in terms of what to look for. In essence, drivers are allocating their finite attentional resources to expected and high priority hazards. Therefore, the drivers are taking account of hazards that they expect, reasonably, to arise. If a hazard is totally unexpected, then they are generally far less likely to see them and respond to them. The issue is one of drivers allocating attention to things they most expect to see, where they most expect to see them.

...

Furthermore, drivers (particularly experienced drivers) will tend to concentrate their attentional resources in certain areas of the road, which they consider to be most important to the task in hand (keeping the car on the road and avoiding reasonably expected hazards) (Summala, Pasanen, Räsänen, & Sievänen, 1996). As discussed previously, drivers tend to look for a greater part of the time within the lane in which they are driving, and towards the nearside edge of that lane. This would seem to be a sensible approach, consistent with maintaining position within the lane (and so not running off the road) and avoiding hazards in the line of travel. There is, as far as the driver is concerned, much less 'useful' information to be gained from looking outside of the lane in which they are driving. If a driver maintains position within their own lane (in the absence of junctions or similar), anything that remains in another lane (or off the road), is not deemed likely to present a hazard, as one would reasonably expect it to continue in that lane. Problems arise when, as in this case, a hazard moves into the lane. In this case Mr LITTLE, as a pedestrian, was probably neither what a driver such as Mr GLEN would have expected to see on the road, nor where one would have expected to see him.

In this case, the cognitive factors may have interacted with the sensory ones. If, for example, Mr LITTLE was on the offside of the road, he would have been in Mr GLEN's peripheral vision if Mr GLEN was looking mostly to the nearside - which would decrease the likelihood that Mr LITTLE would be detected at all." (Number 7/1 of process, paragraphs 6.9 to 6.11)

Against that background, Dr Edgar's offers no view on the question of what difference it might have made to the accident if the first defender had been driving on full beam rather than dipped beam headlights. (Paragraphs 7.5 and 7.6)

[172] In my opinion, as he progressed northwards, there was no need for the first defender to scan the offside carriageway for oncoming vehicles, because he would be alerted to them by their headlights. In the exercise of reasonable care, I would expect him to be concentrating on his own carriageway, ensuring that it continued to be clear ahead as he travelled progressively forward. I would not expect him to be on the lookout for a pedestrian coming from the offside into the path of his car. (An important difference between the circumstances in Morrison and those obtaining here, is that, in Morrison, the defender's car collided with a vehicle that was stationary on his side of the road, and the defender's fault lay in not keeping a careful lookout for hazards that might lie ahead of him.) In the absence of reliable evidence in support of the proposition that the first defender would have seen the pursuer in time to avoid a collision if the headlights of the Vauxhall had been on full beam, I am unable to find that matter proved.

7. Objections

[173] In this opinion, I have recorded a number of objections that were taken during the proof, to questions, or lines of evidence. I have found it unnecessary to rule on those that I have not specifically mentioned in this discussion, on the view that none of the evidence that was elicited has operated to the disadvantage of the party on whose behalf objection was taken.

Decision

[174] In the whole circumstances, I shall grant decree of absolvitor. I shall also put the case out by order, for the reasons suggested by Mr Smith.