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Cite as: [2022] CSOH 7, [2022] ScotCS CSOH_7

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OUTER HOUSE, COURT OF SESSION

2022] CSOH 7

PD92/20

OPINION OF LORD TYRE

In the cause

(FIRST) SANDRA CAMERON; (SECOND) STUART FYFE

Pursuers

against

(FIRST) IFEANYI NWANKWO; (SECOND) TRADEX INSURANCE COMPANY LIMITED

Defenders

Pursuers: C Smith QC, McCaffery; Digby Brown LLP

Defenders: A Smith QC, Waugh; Ledingham Chalmers LLP

21 January 2022

[1]

On Saturday 8 April 2017 at approximately 11.50pm, the first pursuer was crossing

North Hanover Street, Glasgow, when she was struck by a car driven by the first defender.

She sustained serious injuries with permanent consequences. In this action she sues the first

defender and his insurers for damages. The second pursuer, who is the first pursuer's

fiancée and long term partner and who witnessed the accident, sues for damages for

emotional distress. The defenders deny liability and contend that the accident was caused

or at least materially contributed to by the fault of the first pursuer. The action came before

me for a proof before answer restricted to liability. For the sake of clarity I shall refer to the

parties by name.

Description of the locus

[2]

The accident occurred just north of the junction of North Hanover Street, which runs

in a generally north/south direction, with the street running in a generally east/west

direction that is called Cathedral Street to the east of the junction and Bath Street to the west

of it. The junction is controlled by traffic lights, including a traffic light controlled

pedestrian crossing.

[3]

North of the junction, North Hanover Street is divided into four lanes. Three of the

four lanes are for southbound traffic: the eastmost lane (lane 1) for traffic turning left into

Cathedral Street, the middle lane (lane 2) for traffic continuing straight ahead, and the

westmost lane (lane 3) for traffic turning right into Bath Street. The eastmost lane has a filter

allowing traffic to turn left while the lights are at green for traffic travelling west from

Cathedral Street. The northbound lane has a small layby just north of the junction.

Cathedral Street has two eastbound and two westbound lanes.

[4]

Some way north of the junction, the configuration of North Hanover Street changes

to two northbound and two southbound lanes. At that point there is a small area of

chevrons in the middle of the road to warn drivers of the change. Continuing along North

Hanover Street in a northbound direction one reaches a junction at which Killermont Street

branches off to the left (west).

[5]

The speed limit for all of the roads in the vicinity of the junction is 20mph, having

been reduced from 30mph in March 2016.

Summary of the circumstances of the accident

[6]

On the evening in question, Ms Cameron and Mr Fyfe had been dining with friends

at a restaurant in the city centre. Ms Cameron had been drinking wine but it is not

contended that this contributed to the occurrence of the accident. They were on their way to

the bus station in Killermont Street to catch a bus home. They had sufficient time to catch

the bus and were not in a hurry. Ms Cameron was wearing black trousers and a black top.

They crossed Cathedral Street and walked along the pavement on the north side to the

traffic lights at the junction, where they turned right on to the pavement on the east side of

North Hanover Street. After about 25-30 metres, Ms Cameron began to cross North

Hanover Street. There were southbound vehicles stopped at the traffic lights. Ms Cameron

was moving quickly at a fast walk or jog.

[7]

At the time of the accident Mr Nwankwo worked part time as a private hire taxi

driver to earn money for himself and his family while he was studying for a masters degree.

That night he was driving a silver Toyota Avensis. He approached the junction along

Cathedral Street, taking two passengers to the bus station in Killermont Street. While the

lights were at green he turned right (north) into North Hanover Street. He did not see

Ms Cameron crossing the road. The first thing he was aware of was an object hitting the

passenger side of his windscreen. He immediately braked and stopped. Ms Cameron was

thrown into the air and landed close to the kerb in the northbound lane. Mr Nwankwo's car

came to a halt in southbound lane 3 with its nearside wheels on the line separating that lane

from the northbound lane. A black cab which had turned into North Hanover Street from

Cathedral Street behind Mr Nwankwo braked and stopped in front of Ms Cameron,

protecting her from further injury while she lay on the road.

Sources of evidence

[8]

As a consequence of the head injuries that she sustained, Ms Cameron has no

recollection of the accident and did not give evidence. Eye witness evidence was given by:

PC Michael Dunlop and PC Rachael Gallagher who, in the course of their

duties, were walking south along the west side of North Hanover Street when

the accident happened;

Mr Ian Hornby who was walking south with his family along the west side of

North Hanover Street, some distance behind the two police officers;

Mr Fyfe;

Mr Nwankwo.

There are significant inconsistencies in the eye witness evidence. I accept that all of the

witnesses were doing their best to provide an accurate account but in view of the

inconsistencies some of their evidence must be rejected as unreliable.

[9]

Evidence of the resultant police investigation was given by PC Angus Patterson, who

took the lead role, and by PC Robert Kelly. In the course of his investigation PC Patterson

took a statement from Mr Bernard Wilson, the driver of the black cab, who has since died.

[10]

PC Patterson made a scale plan of the locus of the accident, noting inter alia the

locations of where Ms Cameron had landed on the road, spectacles and other objects

belonging to Ms Cameron on the road surface, a blood stain, and Mr Nwankwo's car.

[11]

The incident was captured by a CCTV camera mounted on a wall on the west side of

North Hanover Street looking south towards the junction. Unfortunately the quality of the

footage is poor. Recordings were made at the rate of four frames per second which is not

sufficiently fast to produce a fluid motion. The images themselves are not sharp. The

moment of impact cannot be seen due to glare from headlights. Nevertheless the footage is

sufficiently clear to enable me to make certain important findings in fact.

[12]

Expert evidence was given on behalf of the pursuers by Mr Richard Ward, a former

police officer with ten years' experience of collision investigation, a member of the Institute

of Traffic Accident Investigators and managing director of Ai Training Services Ltd. Expert

evidence was given on behalf of the defenders by Mr John Holland, a chartered engineer

with experience in, inter alia, investigation of road traffic accidents. Both produced written

reports although Mr Holland's report was referred to on one specific matter only. I found

Mr Ward to be an impressive witness who amply fulfilled his duty of impartiality. I accept

that he was qualified to provide expert opinion on the matters covered in his report and oral

evidence to the court, and that Mr Holland was qualified to give evidence on the particular

matter to which reference was made.

The issues

[13]

The critical factual issues that fall to be determined are, firstly, whether the collision

happened in southbound lane 3 or in the northbound lane and, secondly, the speed at which

Mr Nwankwo was driving at the moment of impact.

Summary of eye witness evidence

PC Dunlop

[14]

At the time of the accident PC Dunlop was on foot patrol duty and was walking with

PC Gallagher from a police station towards the city centre. On the morning after the

accident he prepared a handwritten statement, in which he stated th at he first became aware

of Ms Cameron and Mr Fyfe when they were walking northwards on the opposite side of

North Hanover Street. He saw Ms Cameron begin to cross the road at a brisk walk/slow jog.

He then observed Mr Nwankwo's car turning right into North Hanover Street. His

statement recorded:

"The Toyota Avensis was in lane 2 and it is my opinion that it was being driven

appropriately and not at excessive speed with headlights in operation".

Ms Cameron continued to cross the road while Mr Fyfe remained on the pavement. PC

Dunlop heard Mr Fyfe shouting to Ms Cameron to stop. He saw Ms Cameron being struck

by the car windscreen and being thrown in the air, landing in "lane 1". The car immediately

stopped in "lane 2". He went to attend to Ms Cameron while PC Gallagher called for an

ambulance.

[15]

In his oral evidence to the court, PC Dunlop stated that after noticing Ms Cameron

and Mr Fyfe walking on the opposite pavement he paid them no further attention until he

heard Mr Fyfe shout "Sandra" in a tone of alarm. He looked round and saw Ms Cameron

running at a jog across the road and being struck by the car. The Toyota had entered the

northbound lane in a normal fashion and at a reasonable speed which he estimated at

about 30mph. At the time he had thought the speed limit was 30mph but was now aware

that it was 20mph. The impact occurred to the north of the layby, about half way to the area

of chevrons in the middle of the road. As far as he could recall, it happened within the

northbound lane, which was quite broad at this point. He did not see the car move between

lanes before stopping. PC Dunlop was then referred to his statement and asked to explain

his reference to "lane 2". He stated that he had been confused at the time about the make up

of the carriageways and thought that the car had been in lane 2 northbound which he now

knew did not exist. It was possible that the car had been in southbound lane 3 and that what

he had thought was a second northbound lane was in fact southbound. His statement was

more likely to be accurate than his recollection now. In cross-examination he thought he

would have noticed if the car was in the wrong lane but stood by his statement that it had

not been in the lane nearest the pavement. He did not think that he had been counting the

layby as lane 1. There were vehicles stopped at the junction but he did not think that

Ms Cameron had run between them. He did not remember the black cab stopping.

PC Gallagher

[16]

PC Gallagher also prepared a handwritten statement on the morning after the

accident. She stated that she observed Ms Cameron and Mr Fyfe walking northwards before

Ms Cameron turned to cross the road at a fast-paced walk. Mr Fyfe remained on the

pavement. She saw the Toyota, which she noted to be a private hire taxi, turning right into

North Hanover Street. It was travelling in "lane 2" and did not appear to be speeding.

Ms Cameron had entered lane 2 and gave the Toyota no chance of stopping. She heard

Mr Fyfe shouting. The car struck Ms Cameron, causing her to land in lane 1. The Toyota

stopped "and remained in lane 2".

[17]

In her oral evidence, she stated that after she saw Ms Cameron begin to cross the

road in a diagonal direction, the next thing she was aware of was the noise of the impact. At

this point she and PC Dunlop had passed the place of impact. She turned round and saw

the car stationary and Ms Cameron on the ground. She could not recall whether there were

vehicles stopped at the lights. Having been referred to her statement, she did not know

whether at the time of the accident there had been two northbound lanes, but "lane 2" must

have referred to the lane to the right of the lane where Ms Cameron landed. She must have

made an error about the lane markings. In cross-examination, however, she thought it was

highly likely that if the car had been in the wrong lane she would have noticed. It had been

her impression at the time that the car was in the correct lane. It was possible that she had

counted the layby as lane 1. It was possible that she had adopted PC Dunlop's terminology

when describing the lanes. She recalled hearing a shout but could not remember if it was

before or immediately after the impact. She did not recall whether there had been any

southbound traffic in the third southbound lane. In re-examination she adhered to her

statement that Ms Cameron was struck in lane 2 and landed in lane 1.

Ian Hornby

[18]

Mr Hornby was approximately 50 yards from the point of impact. He did not see the

accident itself; the first thing he was aware of was the sound of the impact. He had given a

statement to the police two weeks after the accident in response to an appeal for witnesses.

In his statement he described seeing a shadowy form in the air and then two vehicles

coming to a stop very quickly, the second (the black cab) directly behind the first (the silver

Toyota). In his oral evidence he agreed that his recollection would have been better when he

gave his statement. He could not recall which lane the vehicles had stopped in. He had no

impression of their speed other than that they were not racing.

Stuart Fyfe

[19]

Mr Fyfe had not been asked to provide a statement to the police. In his evidence to

the court he stated that he and Ms Cameron had walked about 25-30 metres along North

Hanover Street when she started to cross the road after some vehicles, including a bus, had

passed and stopped at the lights. He could not explain why they had not used the

pedestrian crossing at the lights. He followed her about two steps behind. He noticed a car

turning right into North Hanover Street. He saw Ms Cameron look to her left and stop in

the middle of southbound lane 3. He thought she was in no danger there. The car, which

had been in the correct lane after turning, then accelerated hard out of the corner and moved

to the right so that it was now travelling towards where Ms Cameron was standing.

Ms Cameron started running to get to the far side of the road. The car struck her after she

had taken a few steps. At that point Mr Fyfe was a few paces behind her at about the line

between southbound lanes 2 and 3. Ms Cameron probably landed in the northbound lane.

The black cab stopped in front of her. In cross-examination, Mr Fyfe was sure he had begun

to cross the road; from the pavement he could not have seen the Toyota approaching.

Ms Cameron was moving at a purposeful walk, not jogging. He did not recall shouting a

warning but it was possible that he had.

Ifeanyi Nwankwo

[20]

Mr Nwankwo had not been asked to provide a statement to the police. In his

evidence to the court he stated that he had stopped at the traffic lights in Cathedral Street.

When the lights turned green, he turned right into the single northbound lane. He intended

to remain in the left lane when the road configuration changed because he would be turning

left into Killermont Street. The first thing he was aware of was an image of something

falling down on the left side of his windscreen, which seemed to have come from his right.

There were cars in the southbound lanes but he could not say which lanes. When asked

how it came to be that his car was stopped in southbound lane 3, he thought he might have

moved the car to the right to avoid whatever it was he saw landing on the left side of his

windscreen. It was not possible that he had been driving in the wrong lane because he had

been preparing to turn left. He had been aware that the speed limit was 20mph and had

been driving below the limit despite complaints from one of his passengers that he was

driving too slowly. He was always mindful of his speed and had been watching his satnav

as he turned the corner. It showed a speed of 18mph and would have emitted a warning

sound if he had exceeded the speed limit.

Bernard Wilson

[21]

In the statement taken by PC Patterson shortly after the accident happened,

Mr Wilson, the black cab driver, stated that when he approached the traffic lights in

Cathedral Street they were at green. The Toyota was in front of him. It tur ned right into

North Hanover Street travelling at normal speed. He did not see Ms Cameron crossing the

road. He heard a thump and a man shouting to get an ambulance. According to

PC Patterson's oral evidence, Mr Wilson also told him that the Toyota had been driven

appropriately on the right part of the road and in the way that he would have done.

Other evidence

Police accident investigation

[22]

PC Patterson was one of only two road traffic patrol officers on duty in Glasgow that

night. As it happened, he had received training in and had significant experience of road

traffic accident investigation. On arrival, he confirmed with the officers at the scene that the

Toyota had not been moved from where it had come to a halt. He stated initially that his

interpretation of the CCTV footage was that the car had been proceeding in the northbound

lane and then swerved into southbound lane 3, possibly because of the driver's reaction to

the impact on the left of his windscreen. That was a common reaction. At a later stage in his

evidence, however, he attributed his conclusion that the car had been driving in the

northbound lane to the evidence of Mr Wilson and the position of the objects on the road

surface, and expressed the view that the CCTV footage was inconclusive. PC Patterson

quickly concluded that no fault attached to the driver, who had been on the correct side of

the road and had had no time to react when Ms Cameron ran out from behind cars stopped

at the lights. The damage to the car was consistent with striking a pedestrian moving

quickly from the driver's right to left. Mr Nwankwo was not charged with any offence in

connection with the accident and the inquiry was scaled back.

[23]

In cross-examination, PC Patterson accepted that if the car had moved from the

northbound lane into southbound lane 3, then in order for it to have reached its resting

position facing directly forward (as it was), the driver must have changed direction twice.

The only explanation was that after the initial swerve in reaction to the object striking the

windscreen, the driver had straightened up as he stopped. Although he had not come

across such a scenario before, there was no set way for a driver to stop after an accident. As

regards speed, the level of damage to the car was consistent with a low speed impact, ie a

speed of around 25mph. If the car had been travelling at more than 30mph, PC Patterson

would have expected Ms Cameron to be thrown over the roof of the car. At the time of his

investigation, PC Patterson had mistakenly believed that the speed limit at the location

was 30mph.

[24]

PC Kelly was an officer with the traffic police but was not a trained accident

investigator at the time. He agreed with PC Patterson's conclusion that the Toyota had been

travelling in the northbound lane. He had attempted to obtain a statement from one of the

passengers in Mr Nwankwo's taxi but the passenger had been elusive and uncooperative.

CCTV footage

[25]

The CCTV footage was played during the hearing and has been available to me

while writing this opinion. I have had the benefit of analyses of the footage by PC Patterson

and Mr Ward respectively. Mr Ward's report includes frame-by-frame screen captures as

well as a frame-by-frame analysis of the movements of Ms Cameron and of the Toyota and

other vehicles during the critical period. It was however agreed that interpretation of the

footage is a matter for the court. On the basis of my viewing of the footage and with the

assistance of the foregoing analyses, I find that the following sequence of events can be

identified.

[26]

The footage begins before the first appearance of Ms Cameron and Mr Fyfe on

camera. At this time the traffic lights are at red for vehicles travelling south in North

Hanover Street. A car is stationary at the lights but it is not yet possible to discern whether it

is in southbound lane 2 or 3. A bus travelling south in lane 1 stops at the lights. There are

also vehicles travelling north stopped at the lights. The lights change to green for traffic

travelling west in Cathedral Street and a vehicle crosses the junction travelling west. With

the benefit of the filter the bus turns left into Cathedral Street. A second southbound car

stops behind the one that is still stationary. Ms Cameron and Mr Fyfe are now visible on the

pavement of North Hanover Street. Two cars turn right from Cathedral Street into North

Hanover Street and pass out of camera shot. They are followed, after a gap of about five

seconds, by the Toyota. Ms Cameron can be seen moving quickly across the road behind the

second of the two southbound cars waiting at the lights. Mr Fyfe is not visible. The Toyota

completes its turn into North Hanover Street. What happens next is impossible to see due to

the glare of the Toyota's headlights. As the glare subsides the Toyota appears to make a

small movement to the right, although the glare makes this very uncertain, and stops about

three seconds later. The black cab, which has made its turn into North Hanover Street, also

stops, although not directly behind the Toyota. Ms Cameron can be seen lying on the road

in front of the black cab. About 30 seconds later the lights change and the cars which were

waiting in North Hanover Street set off in a southerly direction. From this I infer that they

had been stopped in southbound lane 2 and that lane 3 was clear of traffic.

Expert evidence

Mr Ward

[27]

Mr Ward agreed with the police analysis, under reference to the damage to the car,

that Ms Cameron was struck while crossing from the driver's right to left. It was not

possible to calculate the speed of the car from emergency braking marks or from the

distance Ms Cameron was thrown. However a reasonable estimate could be made.

Mr Ward agreed that the head strike on the windscreen indicated a speed of less

than 40mph. Based on the minimum distance that Ms Cameron must have been thrown,

Mr Ward considered that the car's speed exceeded 25mph and was probably in the range 30-

35mph. If Mr Nwankwo had been travelling at 20mph it was likely in all but one

circumstance (which assumed that Mr Nwankwo had begun to react before the impact) that

the collision would still have occurred albeit at a lower speed.

[28]

There was no evidence from the CCTV footage that the car made a sudden large

swerve movement prior to impact. However, even moderate changes in lateral position

were unlikely to be noticed given the distance from the camera, the number of screen pixels

that the car occupied, the glare from the headlights and the time between frames. The

Toyota had come to a halt in southbound lane 3. Mr Ward could see no evidence of a

double swerve while the car was braking after the driver's reaction time. If there was no

swerve then it would appear that the car had been travelling in the southbound lane.

Mr Ward found further evidence for this conclusion by overlaying an image of the Toyota

shortly (about two seconds) after the collision on a frame showing the stopped position of

the black cab in the northbound lane after the collision. This exercise showed the Toyota

positioned to the right of the stationary car, suggesting that at the moment of this image it

may have been in the southbound lane but did not conclusively demonstrate it, bearing in

mind that the northbound lane was wider than the others.

[29]

In the course of his oral evidence Mr Ward rejected as improbable the suggestion that

the Toyota had moved after impact from the northbound lane to southbound lane 3.

Assuming a lateral movement of 3 metres from one lane to the other, requiring a turn to the

right followed by a correction to the left, he calculated the minimum time for such a

manoeuvre to be 1.4 seconds if carried out harshly. Such a movement would probably have

been detectable on the CCTV footage. A less harsh manoeuvre would have taken longer but

might not be detectable on the footage. A lateral movement of less than 3 metres would

have required less time. Any such movement could only begin after the period allowed for

the driver's reaction time. The average reaction time was 1.5 seconds.

[30]

Mr Ward also considered the avoidability of the accident from the point of view of

Ms Cameron. It was not possible to calculate the speed of her travel from the CCTV footage

because her longitudinal position (ie how far up North Hanover Street she had come) could

not be ascertained. Mr Ward's report included a diagram (Diagram 8) indicating the likely

area of the last pre-impact view of Ms Cameron, depending upon whether the impact had

occurred at 30mph or at 35mph. In one respect I differ from Mr Ward's conclusion in this

regard. The diagram assumes that the car whose offside light cluster is used as a point of

reference was the only stationary car in southbound lane 2, whereas my interpretation of the

footage is that there were two. The light cluster would therefore have been further to the

right in Mr Ward's diagram, and it seems to me that it is more likely that at this point

Ms Cameron was in the area of Mr Ward's green line than his orange line. That would be

consistent with the fact that she was still moving quickly forward at the moment of impact.

[31]

Mr Ward noted that the Highway Code included the following rules:

"Rule 3

Help other road users to see you. Wear or carry something light-coloured, bright or

fluorescent in poor daylight conditions. When it is dark, use reflective materials (e.g.

armbands, sashes, waistcoats, jackets, footwear), which can be seen by drivers using

headlights up to three times as far away as non-reflective materials.

Rule 8

At a junction. When crossing the road, look out for traffic turning into the road,

especially from behind you. If you have started crossing and traffic wants to turn

into the road, you have priority and they should give way (see Rule 170).

Rule 17

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

Rule 3). If there is no pedestrian crossing nearby, cross the road near a street light so

that traffic can see you more easily."

[32]

Mr Ward accepted that the CCTV footage provided no assistance as to:

whether Mr Nwankwo had been stopped at a red light before turning into

North Hanover Street;

whether Ms Cameron stopped in southbound lane 3 before resuming her

attempt to reach the other side of the road;

the whereabouts of Mr Fyfe at the time of impact.

Mr Holland

[33]

Although Mr Holland had prepared a detailed written report, the evidence elicited

from him concerned only one matter. His report included a series of screen captures from

the CCTV footage during the period immediately after the accident. He had overlaid two

yellow dotted lines on the screen captures. One line followed the edge of the kerb at the

northbound carriageway. The other was said to be a continuation southwards of the centre

line of the two northbound carriageways after the split some way north of the accident

location. As such it ran parallel to the dividing line between the northbound carriageway

and southbound carriageway 3 but was slightly to the west of it. The purpose was to

demonstrate that when the Toyota emerged from headlight glare immediately after the

collision, it appeared to be in the northbound lane, whereas a few frames later it was wholly

in southbound lane 3, where it came to rest. Mr Holland also produced an aerial

photograph showing the location of the two yellow lines from above, including their

relationship to the road markings.

[34]

Mr Ward's view was that it was not possible to be confident that the yellow lines

were correctly positioned with regard to the lanes at the accident location. An offset of

only 2 degrees would produce an error of 2 metres towards the junction, and the dotted

lines would cross the lane markings. There might also be lens distortion in the CCTV

images that would cause a straight line to present as slightly curved and so a straight line

would not accurately represent what it was attempting to demonstrate.

Assessment of evidence

[35]

It was submitted on behalf of the pursuers, and not disputed by the defenders, that

the duty of care incumbent upon Mr Nwankwo was to keep a good lookout; not to drive at

excessive speed; and to adhere to the lane markings regulating the flow of traffic. Breaches

of duty could include driving in the wrong lane or partly in the wrong lane, and/or driving

at a speed too fast for the prevailing circumstances, and/or failing properly to observe his

surroundings.

In which lane did the collision occur?

[36]

I take as a starting point the fact, clearly established, that the car came to a stop in

southbound lane 3, facing directly forward with both of its nearside wheels on the line

separating that lane from the northbound lane. In order to arrive at that position, the car

must, after turning into North Hanover Street, either have been driven along the

southbound lane or have been driven initially wholly or partially within the northbound

lane before moving, either before or after the impact, into the southbound lane. Of these

alternatives, I reject the possibility that the car moved from the northbound to the

southbound lane before the collision. There is no indication of it on the CCTV footage.

Neither of the two police officers, who were fairly close to the car as it turned the corner,

observed such a manoeuvre, which would have to have been completed very quickly in

order to put the car into the southbound lane in time to strike Ms Cameron. It would have

made no sense in relation to the car's intended destination in Killermont Street. The only

evidence supporting this scenario is that of Mr Fyfe.

[37]

I have difficulty accepting a number of features of Mr Fyfe's narrative as accurate. In

many respects it stands alone and conflicts with other evidence. Th e CCTV footage does

not show the car accelerating hard out of the corner and I consider that if it had done so this

would have been noticed by the police officers. Mr Wilson's statement, so far as it goes, is

also to contrary effect. Nor am I satisfied that Mr Fyfe was crossing the road only a few

paces behind Ms Cameron. Although the CCTV images are opaque, Ms Cameron can

clearly be identified moving quickly in front of the lights of stationary cars, and there is no

sign of another figure. PC Dunlop saw only Ms Cameron. I accept that it is possible that

Mr Fyfe had begun to cross the road but if so he was some distance behind Ms Cameron.

From that perspective he would not have been in a position to observe the changes in

direction that he described. I cannot exclude the possibility that Ms Cameron stopped while

crossing the road and then began to move forward again, but if she did so after passing the

cars in lane 2 then it was a very brief pause indeed, without time to look to the left and react

to what she saw, as described by Mr Fyfe. I have to conclude that although he was doing his

best to describe the accident as he recalled it, his memory is not accurate. I make no

criticism whatever of Mr Fyfe for that: it was an extremely traumatic incident which

happened very quickly.

[38]

One is therefore left with the two remaining possibilities that the car came round the

corner wholly or partly in the southbound lane or that it moved to that lane after the

collision had occurred in the northbound lane. In support of the latter alternative, senior

counsel for the defenders founded upon the following:

inherent improbability: there was available a wide northbound lane which

would allow the car to proceed normally in preparation for a left turn into

Killermont Street;

the presence of southbound vehicles which, even if they were in lane 2,

would render a right turn into the wrong lane tricky;

the evidence of Mr Nwankwo who knew the road well and was anxious to

drive correctly to avoid jeopardising his livelihood;

Mr Wilson's statements that the car proceeded "normally" and, orally to

PC Patterson, that the car was in the correct lane;

PC Gallagher's impression that the car was in the correct lane;

PC Dunlop's initial evidence to similar effect;

the CCTV footage which did show a swerve to the right (as supported by

PC Patterson) at about the time of impact; and

the indication afforded by the yellow lines on Mr Holland's screen captures

showing a lateral movement of the car after impact from the northbound lane

into the southbound lane.

[39]

On behalf of the pursuers, senior counsel submitted that the following evidence

should be accepted as demonstrating that the accident had happened in the southbound

lane:

the contemporaneous statements of PC Dunlop and PC Gallagher, in which

the expression "lane 2" was clearly used as a description of the southbound

lane, albeit that they both mistakenly thought that it was a second

northbound lane;

Mr Fyfe's evidence that Ms Cameron had been in the southbound lane;

the absence of reliable CCTV evidence of a swerve;

the position where the car came to a stop;

the improbability of a "double" swerve within the time and distance

available;

the evidence of the police officers that the accident happened in a different

lane from where Ms Cameron landed and the debris was found after the

accident;

the unlikelihood of Ms Cameron having crossed an empty southbound lane

into the northbound lane while the car approached.

[40]

Having considered all of the evidence and the parties' submissions, I find that the

collision happened in the southbound lane. In making that finding I rely upon the

following.

[41]

Firstly, I find the references in the police officers' statements to "lane 2" to be

compelling evidence that the car was being driven in the second lane from the pavement

where they were walking. I found PC Dunlop, who witnessed the impact, to be a credible

and reliable witness. Although in his oral evidence he initially described the car as having

been in the northbound lane, his final position was clear. He accepted that he had been

mistaken about the road configuration when he wrote his statement and that his recollection

at that time was likely to have been accurate. I reject the possibility that he had the layby in

mind as lane 1; the car had passed the layby before the collision occurred and PC Dunlop

was not observing events across the layby. His evidence was also clear that Ms Cameron

had been thrown to the left and landed in a different lane from where she was struck.

[42]

PC Gallagher was a rather less impressive witness because of her readiness to accept

conflicting propositions put to her in examination in chief and in cross-examination.

Nevertheless she too accepted that she had believed at the time that there were two

northbound lanes and that her statement that the collision happened in "lane 2" was likely

to be accurate. Her evidence carries less weight than that of PC Dunlop because she did not

see the accident happen, having been alerted to it by the sound of the impact. Her assertion

that she would have noticed if the car was in the wrong lane carries little weight because of

her erroneous understanding of the road configuration.

[43]

In this regard Mr Fyfe's evidence is consistent with that of the police officers,

although given that he was observing events laterally from several metres' distance, I am

once again unable to place significant weight upon it.

[44]

I find that on balance the CCTV evidence is supportive of the pursuers' analysis. I

am unable to conclude with certainty whether the footage shows the car swerving at or

immediately after the moment of impact. Mr Ward's view was that it was not possible to be

sure. Although PC Patterson initially stated that a swerve could be seen, he subsequently

described the footage as inconclusive. If there was any swerve at all to the right it was a

very slight one, consistent with an instinctive reaction by Mr Nwankwo to the "image"

striking his passenger windscreen but not sufficient to move the vehicle from one lane to

another. I agree with Mr Ward's view that such a manoeuvre would have lasted a

sufficiently long time to be likely to be visible in successive CCTV frames. No correcting

turn to the left can be detected. I find therefore that what the footage demonstrates is that at

the time of the collision Mr Nwankwo was driving either wholly or almost wholly in the

southbound lane, and that after the impact he continued more or less straight ahead to the

point where he stopped.

[45]

Although the pursuers did not place emphasis on it, I find support for this

assessment in the exercise carried out by Mr Ward in which he overlaid the image of the

Toyota immediately after the impact on the CCTV frame showing the stopped position of

the black cab. It is apparent that at this moment, too soon for Mr Nwankwo to have reacted

to the impact and carried out a swerving manoeuvre, the Toyota had been to the right of the

position of the black cab in the northbound lane after the accident. Even allowing for the

extra width of the northbound lane, that seems, in my judgement, to place the Toyota

wholly or mainly in the southbound lane. That conclusion is not consistent with the

inference drawn from Mr Holland's exercise using the yellow dotted lines that the car

moved from one lane to the other. When one compares the same frames used in the two

exercises, for example the second of the four frames timed at 23.44.27, it is apparent that

both representations cannot be correct because the black cab in Mr Ward's image is

occupying largely the same space as the Toyota in Mr Holland's image. I conclude that the

methodology adopted by Mr Ward is the more reliable, depending as it does only on the

overlaying of two images from the footage, and that for whatever reason, be it lens

distortion or an offset in the direction of the lines on the road, Mr Holland's yellow lines are

not drawn in precisely the correct place.

[46]

Three further factors support my conclusion that the car was in the southbound lane

at the time of impact. Firstly, it is a matter of agreement that the effect of the car striking

Ms Cameron as she was moving across the road in front of it would be to project her

forwards in the direction of travel of the car and to the side in her own direction of travel.

The fact that she, and the objects that she was carrying, came to rest in the southbound lane

is more consistent with the impact having occurred in the adjacent lane than in the lane

where she landed. Secondly, I agree with the pursuers' submission that it is inherently

improbable that Ms Cameron would have crossed an empty southbound lane into the path

of a car approaching in the northbound lane. It is more likely that she would have moved

into the path of a car that was obscured from her view by the stationary cars in lane 2.

Thirdly, if she had had to cross an empty lane it is more likely that Mr Nwankwo would

have seen her crossing the lane before the impact, even though it might still have been too

late for him to react and brake in time to avoid the collision.

[47]

It follows from what I have said that I must reject the evidence of Mr Nwankwo that

he turned into the northbound lane. The fact that that lane was the appropriate one for a

subsequent left turn into Killermont Street does not preclude the possibility that he cut the

corner in the absence of any traffic in lane 3. There would have been plenty of time for him

to move into the left hand lane to make his next turn. Although he claimed to be familiar

with the road configuration it may have slipped his mind that there were, for a short stretch

of North Hanover Street, three southbound lanes. As the CCTV footage showed, he was not

following directly behind a vehicle in front. I also have to reject the view of Mr Wilson, as

reported by PC Patterson, that Mr Nwankwo was in the correct lane: there was of course no

opportunity for that view to be challenged.

[48]

For these reasons I hold that Mr Nwankwo was driving in the wrong lane at the time

of the accident and was in breach of his duty to take reasonable care for the safety of other

road users, including Ms Cameron.

What was the car's speed?

[49]

The issue of the speed of the car assumes less importance than it would have had if I

had found that the accident happened in the northbound lane. Questions of causation do

not arise because the evidence is insufficient to enable a calculation to be made as to whether

the collision would have been avoided if the car had been travelling at a lower speed.

Nevertheless I require to express a view, as the pursuers submitted that Mr Nwankwo had

been driving at an excessive speed which was itself a breach of his duty of care.

[50]

It is a curious feature of the case that the only witnesses who gave evidence that they

knew that the speed limit at the locus of the accident was 20mph were Mr Nwankwo and

PC Gallagher. The other police officers, including the road patrol officers Patterson and

Kelly (who prepared the road crash report), erroneously thought that it was 30mph

although the lower limit had come into effect more than a year previously and was indicated

by roundels along the adjacent roads. Mr Wilson's understanding is not known.

Contemporaneous observations regarding the reasonableness of Mr Nwankwo's speed must

be assessed accordingly.

[51]

In summary the evidence regarding Mr Nwankwo's speed was as follows:

PC Dunlop estimated that Mr Nwankwo was driving at about 30mph; he

was of the view that the speed was not excessive.

PC Gallagher's impression was that the car was not speeding, but she did not

give an estimate of its speed.

PC Patterson's estimate, based on the pattern of damage to the car,

was 20-30mph.

Mr Nwankwo stated that he was driving at 18-20mph, being aware of the

speed limit and having seen the digits "18" on his satnav before the accident

happened.

Mr Wilson is recorded as having stated that the Toyota was being driven "at

normal speed".

Mr Ward's estimate, based on the damage to the car and the distance

Ms Cameron was thrown, was 30-35mph.

[52]

I find no reason to reject the consensus view, based partly on eye witness observation

and partly on experience and expert calculation, that the car was travelling at about 30mph

at the time of the impact. I reject Mr Nwankwo's evidence that he was travelling at 18-

20mph because it is inconsistent with the expert and other evidence which I have accepted. I

have no reason to doubt that his satnav displayed a speed of 18mph at some point as he

drove from the traffic lights in Cathedral Street round the corner into North Hanover Street,

but it would be somewhat odd if he executed the turn while watching the satnav rather than

focusing his attention on the road ahead. I therefore do not regard his evidence as affording

a reliable indication of his speed at the point of impact.

[53]

The question therefore arises of whether by driving in excess of the speed limit h e

was in breach of his duty of care. Senior counsel for the pursuers did not submit that

exceeding the speed limit was necessarily indicative of negligence, but did submit that

exceeding the speed limit was negligent in the circumstances which subsisted h ere. It was

dark, a Saturday night, and a time when bars were emptying. The locus was close to a bus

station and a railway station and it was to be anticipated that there might be pedestrians

attempting to cross the road. In such circumstances it was the duty of drivers including

Mr Nwankwo not to exceed the speed limit.

[54]

On behalf of the defenders it was submitted that no general danger arose from the

fact that the locus was in a city centre late at night. There had to be evidence of a particular

danger other than the fact that the accident happened. There was no absolute duty to drive

within the speed limit. The eye witness evidence of PCs Dunlop and Gallagher and

Mr Wilson was all to the effect that Mr Nwankwo was driving at a reasonable speed.

[55]

I accept the proposition that from the point of view of duty of care (as opposed to

traffic regulation) there is no absolute duty to drive within the speed limit, and that

exceeding the limit is not of itself evidence of negligence. On balance I am not persuaded

that if Mr Nwankwo had been in the correct lane, driving along North Hanover Street at

about 30mph would have been a breach of his duty of care. It can be seen from the CCTV

footage that vehicle and pedestrian traffic along the street was sparse. There are no bars

spilling customers on to the street. Although there is a bus station and a railway station in

the area they are both some distance away. Respect ought in my view to be accorded to the

impressions of the eye witnesses, even though (or perhaps especially because) at least some

of them had an erroneous understanding of the speed limit in force. In all the circumstances

I do not consider that driving at about 30mph constitutes an additional ground of negligence

on the part of Mr Nwankwo. Nor, as I have already noted, does the evidence establish that

the accident would not have occurred if he had been driving 10mph more slowly.

Contributory negligence

[56]

Ms Cameron chose to cross a four lane carriageway at a place where there was no

traffic light control or central pedestrian refuge. There was a nearby pedestrian crossing at

the junction of North Hanover Street and Cathedral Street. A little further north, the

chevrons in the centre of the road diverted traffic to one side or the other and could have

provided a degree of pedestrian protection. It was dark and Ms Cameron was wearing

black clothing. She moved at a fast walk or slow jog behind vehicles that were stationary at

the traffic lights. It was common ground that in these circumstances some degree of blame

for the accident attached to her.

[57]

In Jackson v Murray 2015 SC (UKSC) 105, Lord Reed explained that when assessing

contributory negligence it was necessary to take account both of the blameworthiness of the

parties and the causative potency of their acts. He regarded the potentially dangerous

nature of a car being driven at speed as an element of blameworthiness rather than causative

potency; the same would apply to a car being driven in the wrong lane. As regards

causative potency, Lord Reed contrasted the case of a pedestrian who steps directly into the

path of a car being driven at a reasonable speed (as in Ehrari v Curry [2007] EWCA Civ 120),

where the more direct and immediate cause is the conduct of the pedestrian, with a case

such as Eagle v Chambers [2004] RTR 115 in which a driver strikes a pedestrian who has been

careless of her own safety but has been in his line of vision for long enough for him easily to

have avoided her.

[58]

The facts of Snow v Giddins (1969) 113 SJ 229 (CA) bear some resemblance to the

present case. The report narrates that the plaintiff decided to cross a busy road near a

pedestrian crossing with a central refuge and not far from a road junction. He chose a time

when northbound traffic was stationary at a red light and, having safely weaved his way

through two lanes of traffic, was standing in the centre of the road looking to his left for

traffic moving south when he was struck by the defendant on a motor scooter travelling

north on the wrong side of the white lines in the centre of the road. The plaintiff was found

to have been 25% to blame for the accident. Delivering a judgment with which the others

concurred, Widgery LJ considered that it was dangerous to say that a pedestrian was

negligent in not using a pedestrian crossing: it was preferable to say that a pedestrian who

elected not to use a crossing took on himself a higher standard of care. The plaintiff was not

negligent in weaving between stationary traffic instead of using a crossing which was itself

clogged with cars, but he was negligent in taking on himself the hazard of being marooned

in the centre of the road instead of crossing where there was a central refuge, thereby

placing himself in an unnecessarily hazardous position.

[59]

In the present case the actions of both parties were of causative significance. Mr

Nwankwo was driving in the wrong lane. Ms Cameron placed herself in a hazardous

position by choosing to cross the road at a point where there was no protection from

oncoming traffic, in circumstances where she should reasonably have been aware that she

would be difficult to see by approaching drivers. She ought, as senior counsel for the

pursuers observed, to have been safe in an empty southbound lane 3, but that point has been

addressed in the finding of liability against Mr Nwankwo. In my opinion the degree of her

blameworthiness is greater than that of the plaintiff in Snow v Giddins but less than that of

the pursuer in Jackson v Murray who ran out from behind a stationary bus into the path of a

car that was being driven in the correct carriageway but at an excessive speed. In the whole

circumstances I hold that Mr Nwankwo was more blameworthy than Ms Cameron and I

assess contributory negligence at one-third.

Disposal

[60]

As this is a personal injuries action there are no pleas in law to be sustained or

repelled. The case will now require to proceed to a proof on quantum but before

pronouncing an interlocutor I shall put it out by order to be addressed on any matters

arising at this stage.