Scottish Sheriff Court Decisions

1. The parties are as designed in the instance.

2. On Monday 9 April 2001 at approximately 08.05 hours Calum Angus Langa (who was born on 17 September 1996 and so was approximately four years four and a half months old at the time) was standing with his mother, Mrs Sheila MacIsaac and sister, Carmen, at a pedestrian crossing on the west side of Bath Street, Portobello, Edinburgh when he was involved in an accident with a motor vehicle driven by the defender.

3. Bath Street is a two way traffic street running north to south towards Portobello High Street. The pedestrian crossing (hereinafter referred to as "the crossing") where Calum was standing is directly opposite Lower Bank Avenue Primary School. It consists of a triangular shaped pavement extension which extends approximately half way into the street thus only permitting one motor vehicle to pass by at any one time. There are metal railings approximately three feet high on each side of "the crossing" leaving an opening for pedestrians to cross over Bath Street. Traffic coming from the north has priority to pass in front of "the crossing". Such traffic would have to cross over a number of speed bumps" on the roadway designed to reduce the speed of motor vehicles before reaching the crossing. The word "slow" is painted on the roadway immediately to the north of the crossing. Warning signs are positioned along the street advising motorists approaching "the crossing" from the north that a school is located on the street.

4. At that time Calum was on his way to the Blossom Nursery School, which is located on the east side of Bath Street and a short distance to the left of where he was standing, on the other side of the road. There were no parked cars on or near "the crossing" which would have obstructed a motorist's view of the crossing. It was raining and the road surface was wet. The sky was overcast, but the visibility was reasonable.

5. Calum was holding his mother's right hand and his older sister Carmen was holding her mother's left hand. They were waiting to cross the road. Calum was struggling to break free from his mother so that he could be the first across the road and ring the bell at the nursery. He was being restrained by his mother. Mrs MacIsaac saw the defender's motor car approaching the crossing from her left. They were both in eye contact prior to the accident.

6. At the same time as the events described in finding 5 were happening, the defender who is 37 years of age was driving down Bath Street in a southerly direction towards "the crossing". She was travelling at approximately 15/20 miles per hour. As she approached "the crossing" she saw Mrs MacIsaac and her two children, one of whom, Calum, appeared to her to be struggling as if to break free from Mrs MacIsaac who had a hold of him. She slowed down her speed. When she was approximately 6 feet from the opening of the crossing she slowed down even further and continued to watch Mrs MacIsaac and her two children. At that stage Mrs MacIsaac and the two children who up until then had all been standing back from the edge of the pavement approximately 3 or 4 feet, moved forward to the edge of the kerb at the crossing. At that moment Calum moved forward from his mother and collided with the defender's car. His right leg came into contact with the front bumper of the defender's car.

7. Just after the accident a woman police officer attended the locus and took statements from the defender and Mrs MacIsaac. The defender's statement was as follows:

"At about five past eight I was driving up Bath Street towards Portobello High Street in my car, a Peugeot 206. I can't remember the registration number off hand. I got to the crossing bit where the road narrows opposite the bingo. I could see a mother on my right-hand side. She was with a young boy and a young girl on the left side. The wee boy in front of her. The mother was holding the wee boy's hand. There was another car in front of me and I moved to the other side and I suddenly saw the wee boy run out on to the road. He got up after he hit my front bumper. He fell to the ground when he was struck. He ran over to his mum and I stopped the car and got out. I stayed there and made sure he was o'kay."

Mrs MacIsaac's statement was as follows:

"At ten past eight I was in Bath Street with Calum and Carmen. We were going to the Blossom Nursery. We were standing at the roadside where it narrows and we were right next to the cars. I saw two cars coming up and they were going quite slow. Calum then suddenly ran out in front of the car. I tried to keep hold of him but I couldn't because I also had hold of Carmen. He hit the right bumper of the car and I kept hold of him all the time. I dragged him back and lifted him off the ground and carried him to the Nursery as he wanted to lie down. The driver got out of the car. I think she was in shock and I kept telling her that it wasn't her fault. Then the ambulance turned up and had a look at Calum and brought us to the Sick Kids. He has grazing to his right ankle and it's a little bit swollen."

8. As a result of the accident Calum was found to have a transverse metaphyseal fracture with an associated fibula fracture just above the right ankle. On the day after the accident the tibia was manipulated and placed in a long leg cast under a general anaesthetic. Calum was in hospital for 48 hours. He had made a full recovery by July 2001 and has no long-term effects.

9. Prior to said accident on 9 April 2001 Calum had been instructed in road safety and was well aware of the dangers posed by motor traffic on roads.

10. No criminal proceedings were contemplated or initiated against the defender in respect of the accident.

Finds in Fact and Law:

ACCORDINGLY,

1. Repels the pursuer's first and second pleas-in-law.

2. Sustains the defender's first plea-in-law.

3. Repels the defender's second, third and fourth pleas-in-law.

Evidence was given by

1) Mr Malcolm MacNicol, Consultant Orthopaedic Surgeon at the Royal Hospital for Sick Children and the Royal Infirmary, Edinburgh who spoke to the injuries suffered by the child Calum. There was no dispute about the physical nature of the injuries.

2) Mrs Sheila MacIsaac, the mother of Calum, who was present when the accident happened.

3) Mrs Pauline Mills, the defender, who was the driver of the motor car involved in the accident

4) WPC Deborah King who arrived shortly after the accident at the locus and carried out certain investigations.

1. Mr Malcolm MacNicol, the Consultant Orthopaedic Surgeon who had treated the child, Calum and prepared a Report which was lodged in Process (Production No 5/1) went through the report confirming the injuries sustained by Calum and what treatment had been carried out. He was unable to give an estimate of speed. He thought that the defender's car would not have been travelling at more than 15 mph but that assessment of speed depended upon whether Calum's leg had been caught by an obstruction such as a kerb edge or the mudguard of the motor car. If that was the case, then the speed of the car would probably have been much less to cause the injuries sustained. During cross-examination there was an objection by the pursuer's agent in respect of a question put to Mr MacNicol about how high the bumper of the car would need to be from the ground to cause the injuries sustained. This was on the basis that there was nothing in the Record about the height of the bumper from the ground. However the defence agent submitted that the averments in Condescendence 4 suggested a bumper fracture and in any way he was exploring matters that had arisen out of examination in chief. I upheld his submission and overruled the objection. Mr MacNicol was unable to say with any certainty whether the bumper of the car alone could have produced the injuries sustained by Calum. Accordingly the best estimate of speed he could give was one of 15 mph at the point of impact or less if Calum's leg had been caught in some way by the kerb or by the mudguard of the car. I found this witness credible and reliable. There was really no dispute about his evidence.

2. Mrs MacIsaac's evidence was that she was standing with her two children at about 8.00 am on that day. The weather was fine and clear according to her. She was waiting to take Calum to Blossom Nursery across the road. She spoke to the photographs lodged in process confirming the layout of the locus where the accident had occurred. She had seen the defender's car coming up Bath Street. She said that Calum was on the right and Carmen, his sister, was on her left and both were holding her hand. Calum was excited and wanted to cross the road first but she had a tight hold of his hand. She had made eye contact with the defender and Calum had pulled away from her. His right leg went forward and collided with the defender's motor car. She still had a hold of his hand and pulled him back. She confirmed that Calum was well aware of traffic dangers, had never done that sort of thing before and had always been told that traffic was dangerous and was aware of that. She had not expected him to do what he did. In cross-examination she confirmed that Calum was on her right hand side holding her right hand and he wanted to pull away, cross the road and ring the bell of the nursery before his sister. She confirmed that she had eye contact with the defender and remembered Calum pulling away from her prior to the accident. She did not expect him to run out and she felt that if the driver, the defender, was in any doubt about what Calum might do she should have stopped. Then she seemed to agree in cross-examination that as she had not anticipated that Calum would break free and run out she would not expect a driver to so anticipate. She confirmed that Calum knew all about road safety and indeed had been taught about it at nursery school. She was emphatic that she was holding him by his hand and also was not pulling him back because she was so close to the car. She thought that the defender's car had hit him, rather than him colliding with the car. She felt that where she was standing was safe enough. In re-examination she confirmed that she was the holder of a driving licence but had not driven for the last six months. She said that she would have stopped or slowed down if she had been the driver of the defender's car. She felt that children are unpredictable. Her factual evidence was not really challenged to any great extent and I had no difficulty in believing her and finding her a credible and reliable witness.

3. The defender's evidence was that in the early morning of 9 April 2001 she was driving her Peugeot motor car along Bath Street having dropped her daughter off at the nursery. She was going to work, for at that time she worked for Standard Life Investments. Her daughter was eighteen months old at the time. After she had dropped her daughter off and was going down Bath Street she estimated her speed at about 15/20 mph and confirmed the presence of speed bumps and that there were no other vehicles or pedestrians on the road although in her Police Statement she had said there was another car in front of her. She saw Mrs MacIsaac and her two children at the crossing and she slowed down from 15 mph to get through the narrow gap. She confirmed that Calum was jumping up and down as she put it and she thought his mother had a hold of his anorak and she was not holding his sister's hand and she felt that the mother was trying to calm the boy. I was of the view that she was mistaken about that and I preferred the mother's evidence that she had a hold of Calum's hand and his sister's hand. When she was about 6 feet from the crossing she slowed down even further and she kept eye contact with the mother as she edged through the crossing gap. As she was approaching the crossing Mrs MacIsaac moved forward to the kerb and Calum broke free, hit the bumper of her car and dropped to the ground. She said that Calum struggled free as they moved forward. She felt that she was hardly moving at the time of contact and said that after the accident Mrs MacIsaac told her that the accident was not her fault and explained that Calum wanted to cross the road before his sister to ring the nursery bell before her. Whether or not Calum actually broke free from his mother's grip, or was still being held by her did not seem to me to make a lot of difference because what is clear is the boy collided with the car and was injured. She also confirmed that Mrs MacIsaac had told the police that it was not her fault. The police indicated to her that there was no suggestion that she was travelling too fast on the road. In cross-examination she accepted that the purpose of the traffic calming measures was to slow traffic down because a lot of children were about on school days. She did not feel that she had been distracted on that day. When she first saw Mrs MacIsaac and her two children they were at the back of the crossing and there was no indication that they wanted to cross the road. The mother seemed to be speaking to the boy. She thought that at the crossing she was travelling very slowly and estimated her speed at 5 mph and she said that she had slowed down twice, (i) because of the narrow gap and (ii) because of seeing Calum at the crossing, jumping up and down. She did not remember the mother holding his hand and thought that she was holding the back of his collar. She reiterated that Calum appeared to be struggling to break free from his mother as they were moving forward to the edge of the crossing. She felt that Mrs MacIsaac should have stayed back from the crossing, rather than moving forward as she approached the crossing in her car. She agreed that she could have used her horn but did not do so because she was in eye contact with Mrs MacIsaac. In re-examination she said that she was not travelling at 15 mph and was closer to 5 mph and she had made not an emergency stop when the collision occurred. She also said that when she first saw Calum it did not seem as if he wanted to break free and cross the road.

Again I found the defender perfectly credible and reliable except I felt that she was mistaken about what grip the mother had on the child and I preferred the mother's evidence about that. However I preferred the defender's evidence about her slow speed and the fact that she was slowing down as she approached the crossing.

4. WPC Deborah King, aged 29 with seven years police service attended the locus along with another policeman after the accident and made investigations. Nothing was written in her notebook about the speed of the defender's vehicle but she confirmed that a slow speed would be required. She had a note in her notebook that the defender had said that Mrs MacIsaac was holding the boy's hand. She had not given a caution to the defender because there was no inference of guilt from her investigations. She had spoken about this with her experienced colleague who agreed. She also confirmed that Mrs MacIsaac had said that the accident was not the fault of the defender and also that she had said this again at the hospital. Again I found her evidence credible and reliable and there was really no challenge to it.

1. The medical evidence as spoken to by Mr MacNicol supported the pursuer's contention that the defender's speed at the time of impact was at least 15 mph. This was because Mr MacNicol's view was that the fractures were likely to have been caused by a direct blow with impaction being at high speed and consistent with a blow by the car's front bumper. Although he could not estimate the speed of the vehicle he suggested that it would be 15 mph or greater. He estimated this speed from the nature of the injury, but conceded that if the child's foot had been blocked by an obstruction being for example either the kerb at the crossing or the mudguard of the vehicle then a speed of less than 15 mph would have been sufficient to cause the injuries sustained by the child.

2. The child's mother had observed the defender's car approaching the pavement extension. They were both looking at each other. She said that she could see that the car was not going to slow down. Calum continued to tug and pull to get across the road. He put his right leg into the road and the front bumper of the defender's car collided with the leg. She pulled him back. She did not let go of his right hand. He did not run out in front of the car. He was aware of how dangerous traffic could be and she did not expect him to do what he did. The mother was of the opinion that the defender should have stopped her car if she was in any doubt that Calum might break free from her grasp.

3. The mother's statement not only in the Accident and Emergency records but also to DC King that the car was going slowly was consistent with a speed of 15 mph.

4. Whether Calum ran out in front of the car or simply lifted his right leg into the path of the car was really of no significance.

5. If I felt that the pursuer should have stood further back from the edge of the road then that might well be significant so far as contributory negligence was concerned but he disputed any suggestion that the defender could not have foreseen the accident.

6. So far as the defender was concerned, in cross-examination she did not deny that she could have taken additional care when approaching the pavement extension. She could have for instance sounded her horn or she could have stopped her car altogether. The defender had suggested that it wasn't until she was within 6 feet of the crossing that the mother and her two children moved forward and were close enough to the edge of the pavement to constitute a danger, thus it was not foreseeable that an accident might occur until she reached that point by which time it was too late to take avoiding action. In refuting such a suggestion Mr Kinloch raised the following points

7. Accordingly, in summary, he submitted that the defender should have slowed her speed down to below 15 mph or if she did slow down, which was denied, she should have slowed down further. It was submitted that even if I found that the defender was travelling at a slower speed than 15 mph, say 5 mph she was still in breach of her duty to drive with reasonable care and attention and her duty to take reasonable care for the safety of other persons using the road because (a) the place where the accident happened was a crossing near a school; (b) having observed Calum struggling to break free she should have sounded her horn to alert the pursuer and her children that she was approaching and was a danger; (c) she could have stopped her car thus avoiding a collision, notwithstanding the fact that there were no road signs to this effect.

8. Mr Kinloch then referred to various authorities as follows:

The remaining cases referred to all dealt with contributory negligence and were as follows:

3. Sharp -v- Glasgow Corporation, 1952 SLT page 69:

This case involved a six year old child who shuffled backwards on to the roadway just as an approaching bus was about three lengths away. The bus could have stopped in time but although it swerved, it struck the child. The sheriff substitute held that the bus driver was solely to blame. The defender appealed and it was held that the child had contributed to the accident to the extent of one-eighth. On page 74, approximately two-thirds down, in the first column, the Sheriff states:

"In my opinion the first occasion when the driver should have taken avoiding action was when he saw the child shuffling off the pavement. At that moment he was only three omnibus lengths off. While in my opinion he should have slowed down or stopped as he might have done it must be borne in mind that the boy had proceeded about 8' from the edge of the pavement before he was struck. The driver did attempt to swerve at the last moment but he was too late ......"

It was submitted that this case suggests that a driver should take avoiding action when a risk becomes apparent and that in the current case it should have been apparent to the defender that there would be a risk of an accident when she first saw Mrs MacIsaac and her two children. It was also suggested in the Sharp case that a driver should stop or sound their horn to avoid a collision with a pedestrian. Blame was apportioned 7/8 to the driver and 1/8 to the child.

4. Banner's Tutor -v- Kennedy's Trustees, 1978 SLT page 83

This case involved a five year girl who as knocked down and injured by a lorry. The driver of the lorry was not the defender in the case, the defender being the driver of a mini bus that was delivering the child home from school. He drove into a bell mouth on his side of the road and the lorry came past just as the girl opened the rear door of the mini bus from inside and ran across the road towards a lane leading to her house. She ran straight into the path of the lorry and was knocked down. Mr Kinloch suggested that the reason that the driver of the lorry was either not sued or let out of the action was because it could not be said that he could have anticipated or foreseen that the accident would happen. In this case the Court held that the child contributed to 20% of the accident. On the evidence Lord Maxwell held that the driver of the mini bus was negligent in that he knew that sometimes the children in his vehicle would alight from the mini bus without waiting for him to open the door for them but took no steps to ensure that they heeded his warning about the lorry. Further he states,

"In Scotland at least a child of five can be guilty of contributory negligence. Whether she is depends on the whole facts including the child's knowledge and experience and a comparison between the conduct of the child in the particular case and what would reasonably be expected of a child of such age, knowledge and experience."

5. Harvey -v- Cairns, 1989 SLT (Reports) page 107:

In this case a six year old child was killed when she stepped from a pavement into the path of an oncoming vehicle. The vehicle was being driven by an unqualified and unsupervised driver at a speed of 30 mph which was within the speed limit for the stretch of road but still excessive. The child was part of a group of children seen by the defender on the pavement at the entrance to a side road at a distance of about 50 yards ahead of him. At page 109, letter E, Lord Murray says:

"I consider that the defender's speed, accelerating back to 30 mph at the time of the accident was excessive in the circumstances. Had he continued to travel at the lower speed of 25 mph until he passed the children he would clearly have had a better chance of avoiding Fiona or of injuring her less seriously when she ran out from the pavement."

It was suggested in the present case even although there was no evidence to suggest that the defender had accelerated past Calum and his mother she was fully aware of the potential danger having observed Mrs MacIsaac with her two small children, one of whom, Calum, was struggling to break free. She had failed to take appropriate action in the light of her observation of the danger.

6. McKinnell -v- White, 1971 SLT page 61:

In this case a child aged five years was very seriously injured when he was in collision with a motor car on 19 April 1969. The child was held to have been equally responsible for the accident and contributory negligence was assessed at 50%.

Mr Kinloch submitted that in the present case he would accept that a finding of contributory negligence by Calum would be appropriate. However he did not accept that there should be a 50% finding in this case.

7. McCluskey -v- Wallace, 1998 SLT page 1357:

In this case a ten year old child was knocked down by a motor car while crossing the road. She failed to notice the car prior to leaving the pavement and the car driver failed to notice her on the road. If he had been paying proper attention he would have seen her in time to take avoiding action. The driver was found 80% to blame for the accident and the child 20%. The driver appealed arguing that liability should be divided equally but was unsuccessful.

Mr Kinloch submitted that the standard of care on the driver of a motor vehicle is very high and must be considered carefully when apportioning blame. In the present case Mrs MacIsaac and the children were not a danger to the defender but the defender's motor vehicle constituted a very significant danger to them.

In conclusion Mr Kinloch submitted that the case law suggested a pattern, although each case had to be considered on its own facts and circumstances. He submitted that provided a driver was not exceeding the speed limit, nor driving under the influence of drink or drugs and so forth, then he would only escape liability for injury to a child when a child pedestrian is obscured from his view and suddenly emerges into the path of his vehicle.

In the present case he suggested that matters were very different and that this accident was foreseeable by the defender. On the question of apportioning liability, the Court had to consider to what extent the pursuer had materially contributed to the accident. He submitted that the following matters were pertinent:

Taking all these matters into account he would suggest that if there was any question of contributory negligence then the pursuer should be found 20% to blame. He therefore urged me to find in favour of the pursuer but with a 20% finding of contributory negligence. He also asked for the expenses of the action and to have Mr MacNicol certified as an expert witness.

Mr Kelly made the following points:-

1. The child, Calum, was under his mother's control at the time of the accident.

2. Calum knew about road safety.

3. Even if the defender could have done something else and thus avoided the accident, she was not necessarily negligent.

4. The pursuer was maintaining that the defender should have anticipated what the mother of Calum, who had control of him, did not anticipate.

5. There were no markings on the roadway prior to the crossing requiring a vehicle to stop.

6. The defender's vehicle was de-accelerating as it approached the crossing and the pursuer was aware of the moving vehicle.

7. Presumably it could be inferred that the pursuer, being back from the kerb edge, thought the position was safe enough.

8. Only the pursuer knew why Calum wished to cross the road which was to go and ring the bell of the nursery.

9. The pursuer was not exercising enough control over the child, Calum.

10. If the pursuer was negligent she would have had to have considered the likelihood of the child breaking free from his mother and running into the road, which the mother had not.

11. It did not occur to either party that the child would do what he did.

12. To suggest that the defender should have stopped her car was placing an additional unnecessary duty on her.

13. If the defender did not consider that there was any likelihood of the child breaking free from its mother and running on to the road then there could be no duty on her to stop her vehicle.

14. Any doubts that the defender should have had about danger was negated by the mother's control of the child, Calum.

1. To drive with reasonable care and attention.

2. To take reasonable care for the safety of others including pedestrians to avoid exposing them to unnecessary risk and injury.

3. To keep a good lookout.

4. To drive at an appropriate speed to ensure she did not collide with pedestrians such as the child in this case and injure them.