OPINION FROM THE HIGH COURT OF JUSTICIARY WORKSHEET
Date of Hearing: _________29 March 2000______ |
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Appellant: WILSON CARDNO |
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Appeal No.: 1572-99 |
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Judges (1) Lord Kirkwood (2) Lord Kingarth (3) Lord Mackay of Drumadoon
Counsel Act: A. Smith Alt: G.C. Bell, Q.C.
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Local Agents:
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Edinburgh Agents: Simpson & Marwick
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Lord Kirkwood Lord Kingarth Lord Mackay of Drumadoon
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1572-99
OPINION OF THE COURT delivered by THE HONOURABLE LORD KIRKWOOD in STATED CASE by WILSON CARDNO Appellant against PROCURATOR FISCAL, PETERHEAD Respondent _____________ |
Appellant: A. Smith; Simpson & Marwick, W.S.
Respondent: G.C. Bell, Q.C.; Crown Agent
29 March 2000
In this appeal by Stated Case the appellant is Wilson Cardno. In April 1999 he was convicted after trial of a contravention of section 3 of the Road Traffic Act 1988. The charge narrated inter alia that on 14 June 1998 on the B9033 Fraserburgh to St Combs Road he drove a motor car without due care and attention and without reasonable consideration for other persons using the road and it collided with Andrew John May, now deceased, but then a pedestrian on the road, and Mr May was severely injured.
The sheriff found that shortly after 1.00am the appellant was driving southwards on the Fraserburgh to Inverallochy road. There was no footpath and no road lighting. There were broken line markings to indicate the centre of the road and solid white lines marking the edge of the road. Mr May (hereinafter referred to as "the deceased") had been walking southwards along the road and he was wearing black trousers and an orange top. The appellant had been driving in a normal driving position to the left of centre of the southbound carriageway and he was driving at about 50mph. He did not see the deceased until he was about 20 yards away from him. He then began to swerve to his right, but could not avoid hitting the deceased from behind and causing fatal injuries. The accident took place on a straight stretch of road and the appellant's headlights were dipped due to the presence some distance away of oncoming traffic. The sheriff made findings in relation to the evidence of other drivers who were travelling along that stretch of road shortly before the accident took place. Eric Watt was driving southwards when he saw a car coming towards him moving unusually slowly. He was thus alerted to the possibility that there existed some reason for that slow speed which might require him to modify his speed. He slowed and saw a man in front of him heading from approximately the centre of the southbound lane to the east verge. He brought his car to a halt to allow the man, whose gait was unsteady, to regain the left side of the road and then drove past. Ruth Torrance was driving southwards with her headlights on full beam and she observed a person wearing a rusty coloured top walking southwards in about the middle of the southbound carriageway. The person was indicating as if he wished to hitch a lift. She braked and swerved to her right in order to pass the pedestrian and as she did so the pedestrian swerved towards the centre line. Shortly thereafter Elizabeth Strachan was driving southwards along the same stretch of road at about 50mph with her headlights on full beam when she saw a man in front of her walking southwards, more towards the white line than the verge. She braked and overtook him on his right side.
A Joint Minute of Agreement had been lodged and it narrated that Lesley Raby had been driving southwards at 60mph when she was suddenly confronted by a man walking on her side of the road. He was in the middle of the side of the road on which she was driving and he was dressed in a dark red shirt and dark trousers. He had his hands out by his side and he was seen to stagger. Mrs Raby, who had her headlights on full beam, had to swerve onto the other side of the road to avoid striking him. She thought that he was fairly drunk. She was only a matter of yards away from the deceased when she saw him on the roadway and she considered that it had been difficult to see him because of his dark clothing. Lee Watt had been driving northwards and had observed a person walking southwards on the opposite carriageway about three feet from the east verge. As the appellant was driving southwards he was being followed at about 70 yards distance by a taxi driver, Robert Reid. Mr Reid simply saw the appellant's car swerve to the right and then saw something appear to roll from beneath the car.
In his Note the sheriff observed that the accident had happened on a clear but dark mid-summer night. The appellant had given evidence and admitted that he did not see the deceased until he was about 20 yards away from him. The sheriff took the view that the fact that a driver fails to see a pedestrian right in front of him until it is too late to take any effective avoiding action raised a prima facie case that the driver had failed to exercise due care and attention. Putting it another way, the sheriff stated that a reasonably competent and prudent driver exercising reasonable care does not fail to see another road user until he is only 20 yards from him. The deceased had been wearing a red/orange top. The appellant's vision had not been obstructed and there was no other traffic nearby on the road. In the circumstances the sheriff concluded that the only reasonable inference was that the appellant's attention and observation were not of the standard expected of a reasonably competent and prudent driver.
Counsel for the appellant submitted that while the sheriff had stated the correct test to be applied, he had in fact applied a higher standard and had accordingly misdirected himself. Secondly, even if he had applied the correct test, there had been no proper evidence entitling him to convict. In particular, the sheriff had not indicated at any stage in what respect the appellant had been at fault in failing to see the deceased before it was too late. In reply, the advocate-depute described the case as a very narrow one. He submitted that the sheriff had been entitled to found on the fact that other drivers had seen the deceased walking on the road and had been able to avoid him, although he very frankly conceded that he had some difficulty in seeing the basis for the conviction bearing in mind that finding 14 stated that the accused had simply not seen the deceased until he was 20 yards away, but there was no finding that the appellant ought to have seen the deceased earlier.
The sheriff accepted that the appellant had been driving within the speed limit and that there had been nothing untoward in the manner of his driving prior to the accident. The sheriff appeared to found on the fact that other southbound drivers had managed to see and avoid hitting the deceased. However, Ruth Torrance and Elizabeth Strachan had their headlights on full beam, whereas the appellant's headlights were dipped. The sheriff did not criticise the appellant for having his headlights dipped, although that meant of course that he could see less of the road ahead than those other drivers. There was no evidence of the extent of the forward illumination provided by the headlights on the appellant's car. It was not suggested at any stage that the appellant had been driving at a speed which was excessive in the circumstances. Eric Watt had been alerted by the behaviour of a car coming in the opposite direction. Mrs Raby had been driving with her headlights on full beam, but she had only seen the deceased when she was a matter of yards away from him and she indicated that it was difficult to see him because of his dark clothing, and of course he was on an unlit road at night. There was also evidence that he had been under the influence of drink and had been staggering.
The case is, as the advocate-depute rightly said, a narrow one, but having regard to the findings made by the sheriff, and in particular the absence of any finding that the appellant ought to have seen the deceased sooner, we have reached the conclusion that the sheriff was not entitled to infer that the appellant had not been exercising due care and attention simply because he failed to see him until he was 20 yards away. That being so, we will answer the question in the Stated Case in the negative and quash the conviction.
DL