Things that go bump in the night

The Strange Case of Leslie Buck v Jane Anne Ainslie & CIS General Insurance Limited 2017 CSOH 73,

The recent case of Leslie Buck v Jane Anne Ainsley and CIS General Insurance Limited 2017 CSOH 73 demonstrates the difficulties Pursuers face proving liability against a background where there is little witness evidence.

The case has an interesting and somewhat unusual factual background. The accident occurred shortly after midnight on 5 January 2013. The First Defender was driving her Renault Megane on the A9 Bannockburn to Plean road. The section of the road did not benefit from street lighting and the only light in the vicinity came from a nearby AA Oils Truck Stop. The First Defender was driving in fifth gear using full beam headlights when she encountered the Pursuer in the roadway and her car collided with him.

Liability was disputed, both by the First Defender and by the Second Defenders, her Motor Insurers and the case went to Proof on the question of liability only.

The Pursuer himself had no recollection of the accident. His first memory was waking up in hospital in July 2013, some seven months after the accident and he had no memory of any matter prior to around 2008. He had a history of substance abuse and it was averred that medical staff suspected he had been attempting to commit suicide. During the course of the Proof Senior Counsel for the Pursuer conceded he could not achieve a finding that the First Defender was solely responsible for the accident and so the questions for the Court were therefore whether the Defender were liable at all, and if so to what extent the Pursuer contributed to the occurrence of the collision by his own negligence.

Evidence was led from a number of witnesses including the driver and passengers of vehicles who attended the locus shortly after the collision. None of the witnesses were able to provide any evidence of the Pursuer’s location and movements immediately before the accident.

Much rested on the evidence of the Pursuer’s expert Mr John Johnston, an expert in reconstruction of road traffic accidents who gave evidence regarding the Pursuer’s possible movements, the stopping distance of vehicles and crucially, evidence about the perception and response time (PRT) of drivers. Initially Mr Johnston gave evidence of a PRT time of 1.5 to 2 seconds and stated that the Pursuer would have been visible to the First Defender at a distance of 87 metres. On that basis, and allocating a PRT of 1.4 seconds, he gave evidence that the First Defender would have had sufficient distance to stop.

In her Opinion Lady Carmichael identified principally two issues for her to consider when coming to a decision on liability. Firstly was the lack of any direct evidence as to where the Pursuer had been immediately before the collision and the second was the extent to which she could rely on the conclusions of Mr Johnston.

Whilst Lady Carmichael found Mr Johnston to be a careful witness who acknowledged the limitations of his own expertise, she had some difficulty with his evidence as to PRT and to the reflectivity of clothing. She found that his evidence at times was inconsistent within itself and in particular highlighted the fact that he quoted a PRT for “most drivers” of 1.5 to 2 seconds but without any real explanation came to the conclusion that the First Defender would have had a PRT of 1.4 seconds. She was ultimately left in doubt as to what his position was as to the time most drivers would take to react to a hazard.

Lady Carmichael was careful to stress that the duty on the First Defender was that of reasonable care and not that of the ideal driver. She said that to expect the First Defender to have reacted as suggested by the expert evidence would have been to impose the standard of an ideal driver rather than one taking reasonable care. Ultimately Lady Carmichael was not satisfied that even if the Pursuer had been visible to the First Defender at 87 metres she would, if exercising reasonable care, have been able to avoid him.

Therefore whilst Lady Carmichael stated it could not be literally true that the Pursuer “came out of nowhere” she was not prepared to accept, on the balance of probabilities, that the Pursuer was visible to the First Defender at such a time as to permit her to avoid the collision.

Given the Pursuer had failed to establish that if exercising reasonable care the First Defender would have been able to avoid colliding with him she granted Decree of Absolvitor in respect of both Defenders.

Lady Carmichael also provided esto comments regarding contributory negligence. She considered recent case law involving pedestrians and vehicles. Taking into account the particular circumstances of this case she held that ultimately the Pursuer would have had a better view of the First Defender and must bear the greater proportion of blame for the accident. He decided to be in the roadway in the face of a visible, well lit, oncoming vehicle when there was no obvious need to be there. He would have been particularly difficult to see in the dark dressed in dark clothing and as such she assessed the Pursuer as 70% to blame for the accident.

This case, whilst perhaps a unique set of circumstances, does demonstrate the difficulties a Pursuers may face in proving a case when there were no witnesses to the accident itself and provides some helpful guidance regarding the Courts approach to contributory negligence in such cases.

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