28 February 2020
The Court of Session issued its opinion this week in the case of Samuel Cameron v Martin Swan and Another [2020] CSOH 20 in which BTO acted for the defenders.
We successfully defended the case on liability after three days of evidence. The case proceeded to a proof on liability and contributory negligence in May 2019, although the court’s decision has only just been handed down.
This was an interesting and at times complex case which required us to go back to the basic principles of negligence. It was perhaps fitting that the accident locus was metres from the Donoghue v Stevenson memorial bench which commemorates the famous case of the snail in the bottle, from which the modern law of negligence was born.
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Catherine Currie |
The pursuer was a 20 year old man who, after a night out in Paisley, found himself lying face down in Wellmeadow Street in the centre of Paisley at around 4.30am. He was wearing dark grey clothing. The precise circumstances surrounding how the pursuer came to be in the road were not known, but it was accepted that the pursuer was intoxicated and that there had been no foul play which might have placed him there.
The first defender was Mr Martin Swan who was a delivery driver employed by a bakery. The second defenders were his employers, who were vicariously liable for Mr Swan’s actions. The first defender was driving his delivery van along Wellmeadow Street. The first defender did not see the pursuer lying in the road and struck the pursuer with his vehicle. The pursuer sustained catastrophic, life-changing injuries.
The first defender was charged with driving offences and ultimately pled guilty to a breach of section 3 of the Road Traffic Act 1988. The pursuer raised a claim for personal injury. The pursuer sought to rely upon the conviction in the course of the civil proceedings. The pursuer relied upon the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, Section 10. This provision has the effect of reversing the onus of proof in relation to the facts set out in the criminal charge. This meant that the first defender required to prove that he did not drive without due care and attention.
At proof the key witnesses for the defenders were a taxi driver who was travelling in front of the first defender immediately before the collision; the first defender himself; and Professor Graham Edgar, cognitive psychologist and psycho-physicist. With their evidence, we were able to convince the court that the first defender was not negligent in failing to observe the pursuer in the road way.
His vision would have been blocked by the taxi driver until seconds before the collision, when the taxi driver pulled over to the side of the road. The expert evidence of Professor Edgar showed that the first defender might theoretically have been able to see the pursuer, but the contrast between the pursuer’s grey clothing and the road would mean not all drivers would have seen the pursuer. The pursuer lying in the roadway was an unexpected hazard and the human brain was less likely to be able to recognise it as a hazard.
The court was satisfied that the first defender had proved that he did not drive without due care and attention. The court held that the pursuer had failed to establish liability and decree of absolvitor was granted. As liability was not established, the court did not require to make a finding on the level of contributory negligence. If it had, the court held that it would have made a significant finding.
For further information, please do not hesitate to contact either:
Catherine Currie, Partner & Solicitor Advocate, E: ccr@bto.co.uk / T: 0141 221 8012