The Court of Session has decided that a man who was hit by a car on a dark country road at night has failed to establish the driver of the car would have been able to avoid colliding with him if exercising reasonable care.
The accident occurred at around midnight on 5th June 2013 when the pursuer was hit by the first defender (the driver of the car) who was driving home on a dark country road between Bannockburn and Plean. The first defender was driving in 5th gear, between 40 to 50 mph with full beam headlights on while the pursuer was on the roadway in dark clothing with the exception of white trainers. The pursuer’s evidence was that he had no recollection as to the circumstances of the accident (or any matter prior to 2008). As a result of the accident the pursuer suffered severe spinal injuries and is wheelchair dependant.
At the proof on liability, the pursuer conceded that the first defender was not solely responsible for the accident, therefore the Court had to determine whether the defenders (the second defender was the first defender’s insurer) were liable at all, and if so what extent the pursuer contributed to the occurrence of the collision by his own negligence.
In reaching the decision on liability, Lady Carmichael placed particular emphasis on the lack of direct evidence as to the pursuer’s location immediately before the collision, and the evidence of the road traffic accident expert. Lady Carmichael found the pursuer’s evidence of little assistance due to the pursuer’s lack of recollection of events. The evidence of the other road users and police constable was also considered of little use in that respect. Lady Carmichael did however, consider the first defender to be a credible and reliable witness and accepted her evidence that she first saw the pursuer when she saw his shoe in her headlight, which was very close to the point of collision.
As to the evidence around the speed of the vehicle and reaction time, evidence was heard by the expert witness on road traffic accidents. The pursuer sought to argue that on the balance of probabilities, the pursuer’s positioning in the road was such as to permit the first defender to see and identify him as a hazard in time to avoid the collision. This was predicated on two propositions. Firstly, that the pursuer would have been visible 87 metres from the point of impact, and secondly that a driver exercising reasonable care would have been able to avoid the collision. In terms of the first proposition, the expert witness provided evidence on perception and response time (‘PRT’) in the context of overall distance needed for a vehicle to stop at different speeds. The evidence provided was based on an external publication.
However, Lady Carmichael found the evidence presented to be ‘confused and confusing’. She stated that whilst it was, in principle, legitimate for an expert witness to refer to published research, his own evidence may carry little weight if he is not able to make clear his own understanding about the nature and value of that research and results. The expert witness’s conclusion in his report was that the pursuer could have been visible 87 metres from the point of contact, and she would have sufficient distance in which to stop if her PRT was 1.4 seconds or less. However, in his evidence at court, he led evidence on one hand that a PRT of 1.5 -2 seconds represented ‘most drivers’, but on the other hand that a PRT of 1.4 seconds is to be expected of a driver exercising reasonable care. Furthermore, in cross-examination the expert witness appeared to suggest that an unexpected hazard on a rural road may constitute a ‘complex situation' and thus a PRT of 1.9-2 seconds may be expected. In any event, the judge based on the expert witness’s evidence that on the balance of probabilities, the pursuer would have been visible at a distance of 87 metres.
The expert witness provided evidence that if the pursuer was stationary on the road at the time of the accident (which was not clear from evidence) and the first defender had not steered away from her path then she may have missed the pursuer. However, Lady Carmichael held that a split second decision to swerve rather than continue straight on when encountering an unexpected hazard in darkness, could not be described as a breach of a duty to take reasonable care. To do so would impose the standard of an ideal driver, rather than one taking reasonable care.
Lady Carmichael opined, that had the Court found the first defender to be liable for the accident, the pursuer would be 70% contributory negligent. This was based on the fact that the pursuer placed himself in the roadway in the face of a visible, well-lit, oncoming vehicle when there was no obvious reason to be there, and he should have known he would have been particularly difficult to see at night dressed in dark clothing.
While all road traffic cases are fact sensitive, this case is a good example that although a vehicle is “potentially a dangerous weapon” there will be circumstances where drivers will be absolved of blame entirely.