SAMUEL CAMERON AGAINST MARTIN SWAN AND ANOTHER [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SAMUEL CAMERON AGAINST MARTIN SWAN AND ANOTHER [2020] ScotCS CSOH_20 (27 February 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_20.html Cite as: 2020 GWD 36-470, 2021 SLT 133, [2020] CSOH 20, [2020] ScotCS CSOH_20

[1] I heard proof in this case in which the pursuer sought damages from two defenders

as a result of a road traffic accident which occurred in Wellmeadow Street, Paisley in the

early hours of the morning of 23 April 2016. The accident occurred when the pursuer was

lying in the carriageway of the said street. The first defender was the driver of a van which

collided with the pursuer. The second defenders were the employers of the first defender,

[2] By terms of interlocutor dated 21 December 2018 Lord Boyd of Duncansby allowed

parties a proof on liability. In terms of the said interlocutor the defenders were ordained to

lead at proof. The defenders denied liability for the accident but separately stated a case that

the accident was caused or materially contributed to by the pursuer’s own fault and

negligence1. It was not disputed that the proof on liability encompassed the issue of

[3] Joint minutes were tendered either before or during the course of proof2. These

minutes contained significant factual agreement and will be referred to where appropriate

[4] On the basis of averment there was significant agreement in relation to the factual

circumstances surrounding this accident. On 23 April 2016 at or about 0455 hours in the

morning the pursuer, who had been a pedestrian walking in Wellmeadow Street, Paisley,

was lying on the roadway of that street to the west of its junction with Lady Lane.

Wellmeadow Street is a single carriageway extending generally east to west, there is one

lane for vehicular travel in each direction, the street is subject to a 30mph speed limit. There

is provision of street lights which were, at the time of the accident lit. Wellmeadow Street is

a continuation of High Street, Paisley. At the time of the accident the first defender was

driving a Mercedes delivery van registration number SF64 CGV which belonged to the

second defenders. The first defender was driving in the course of his employment as a

delivery driver with the second defenders. He was in the course of making bakery

deliveries to various locations in, amongst other places, the town of Paisley. Immediately

prior to the accident the first defender was driving the said vehicle in a westerly direction on

High Street and thereafter into Wellmeadow Street. As he approached Wellmeadow Street

the first defender was following a private hire taxi vehicle driven by Robert Maule, a witness

at the proof. The vehicle being driven by Mr Maule slowed down and pulled over to the

nearside of the street at or about the junction of Wellmeadow Street and Lady Lane at which

time the first defender overtook that vehicle. Thereafter the vehicle being driven by the first

defender struck the pursuer on the westbound carriageway of Wellmeadow Street.

Immediately after the accident emergency services attended at the locus. The first defender

was convicted of an offence under section 3 of the Road Traffic Act 1998 having pled guilty

[5] The pursuer’s case was based on an alleged breach of duty by the first defender to

take reasonable care to see that the pursuer did not suffer injury. The case was pled in this

general manner having regard to the consideration that this was a personal injuries action.

As developed, the duties were more precisely stated as a failure of a duty to keep a good

lookout and a failure to keep a safe distance between the vehicle he was driving and the taxi

vehicle being driven by the witness Mr Maule. There was no dispute that in the event of the

first defender being found in breach of duty, the second defenders as his employers were

vicariously responsible for his actions. As already noted there was a case of contributory

fault pled by the defenders against the pursuer. That case averred a failure by the pursuer

to take reasonable care for his own safety constituted by a breach of a duty not to lie to

[6] The defenders adduced evidence from four persons, Martin Swan, the first defender,

Robert Maule, the taxi driver already referred to, Professor Graham Edgar, a cognitive

psychologist and psycho-physicist specialising in visual perception and situational

awareness and PC John McKinney, a police officer who attended the locus immediately after

[7] Robert Maule was the driver of the taxi which he was driving in front of the van

being driven by the first defender. He said that he had driven along High Street as it led

onto Wellmeadow Street. He noticed a van being driven behind him. He thought it was “a

bit closer than I would like without tailgating”. He took it that it was a delivery van and

was “letting him pass”. At or about the same time he saw what he thought were bags of

rubbish lying on the road. He stated that “As I moved in to the side a delivery van which

had been behind me has taken it that I was letting him past and has continued driving past

and drove right over the top of the person.” On appreciating that it was a person he

stopped his vehicle to see that the person was “okay”. When he realised that the van had

run over, or collided, with the person lying in the roadway he resumed driving and he

followed the van which had stopped at traffic lights approximately 100 yards beyond the

locus of the accident. He flashed his lights to attract the van driver’s attention. He left his

vehicle and spoke to the van driver who had opened the van window adjacent to him.

Mr Maule thought the van driver appeared to be shocked when informed he had run over a

person lying on the road. Both men then returned to the locus of the accident.

[8] In addition to the foregoing account of the accident Mr Maule described the light

conditions at the time of the accident as being dark with, he thought, the sun just coming up.

He thought that immediately prior to the accident he was travelling at about 30 mph. He

thought that he had stopped “more or less next to the man” who had been involved in the

accident. He accepted that he gave a statement to a police officer which was timed at 0520

on the morning of the accident. On being shown the note, he accepted that it “pretty much

accords with my recollection”.3 The extract from the police constable’s note book which the

“I was driving along the High Street near to the university when I saw something

lying in the middle of the road. At first I couldn’t tell if it was a person or some

rubbish but as I got closer I saw it was someone right in the middle of road. As I got

to the junction with Lady Lane I pulled into the left and slowed down to try to move

around the person lying in the road. As I moved to the side a delivery van which

[9] Martin Swan is the first defender in the action. On the day of the accident he was

working in the course of his employment as a van driver. He had been employed in that

capacity for 17 years at the time of the accident. On the day in question his shift started at

midnight and was due to end at 0930. At the time of the accident he was en route to the

Royal Alexandra Hospital in order to make a bakery delivery at those premises.

[10] In relation to his recollection of the accident he said that he became aware of a taxi in

front of him at traffic lights in Causeyside Street, Paisley. He followed that taxi into High

Street and was approaching Wellmeadow Street. As both vehicles approached the junction

of Lady Lane and Wellmeadow Street the taxi began to pull to the left which Mr Swan took

3 The statement was taken by PC John McKinney, who was a witness. The statement was spoken to

to be the driver of the taxi permitting him to drive past. He drove past and stated “I felt a

bump – I thought it was a pothole or stone on the road – maybe 10 to 15 seconds later I seen

flashing lights and a taxi pulled up beside me. The driver of the taxi said ‘that was a boy

you ran over’”. Mr Swan said he was concerned about this and stated that “I saw nothing

on the road before the bump”. He remembered that the taxi driver dialled 999 and that he,

Mr Swan, spoke to the emergency services operator on the phone. He then parked his van

[11] In relation to the conditions at the time of the accident, his recollection was that it

was dark and he said “I thought that there were no street lights on”. He was asked his

height and answered 5 feet 8 inches. In response to questions in cross-examination he stated

that he did not think he was driving too close to the taxi immediately prior to overtaking

that vehicle. He reiterated that he thought the taxi was pulling to the left in order to allow

him to overtake it. He said that he thought he was driving “pretty carefully”. He was asked

what position the man was in. He stated that when he saw the man, which was after the

[12] PC John McKinney was on duty on the day of the accident. He arrived at the locus

just after 0500 in the company of another constable. He took a statement from the first

defender 4. He confirmed that the first defender was at the locus when he arrived. He was

asked about the position the pursuer was lying in the carriageway. He firstly confirmed that

the pursuer was lying in the road. He said “his head straddled the central reservation, but

mostly in west bound carriageway. His feet were pointing diagonally towards Lady Lane”.

He described the general alignment of the pursuer in the carriageway as being with his head

[13] Professor Graham Edgar was instructed by the defenders “… to evaluate the

psychological and perceptual factors that may have contributed to the road traffic collision

at 0455 on the 23rd April 2016 on Wellmeadow Street Paisley.”5 Professor Edgar stated that

he had “[O]ver 30 years experience working as a cognitive psychologist and

psycho-physicist specialising in visual perception and situation awareness.”6 His

curriculum vitae, material considered and sources used in the preparation of his report were

provided to the court.7 No challenge was made to the witness’s expertise.

[14] Professor Edgar produced a report dated 7 January 20198. This report was the subject

of examination and cross-examination. In addition to speaking to his own report Professor

Edgar was shown a report dated 21 August 2008 by David Loat, a specialist in traffic

accident analysis and reconstruction instructed on behalf of the pursuer. He made certain

[15] Professor Edgar had been provided with information relative to the accident in the

form of statements from the first defender, Mr Maule the taxi driver and PC McKinney. His

narration of the material available to him is stated in his report 9. The information recorded

by Professor Edgar is consistent with the evidence I heard in court. The witness considered

the issues of the visibility of the pursuer in the road to a person such as the first defender. In

addition he considered the different concept of conspicuity, that is the extent to which a

“13.1 Mr Swan may have had a sightline to the prone figure of Mr Cameron by

‘looking across’ the curve as he approached the locus. Research suggests, however,

13.2 In the final approach to the locus, Mr Swan’s view of Mr Cameron would, in

all probability, have been impeded to some extent by Mr Maule’s taxi. Only when

Mr Maule’s taxi pulled to one side, would the figure of Mr Cameron have been

13.3 Mr Cameron is likely to have presented as a relatively low contrast and low

13.4 Mr Cameron is likely to have been relatively less visible if he were laying

13.5 If Mr Cameron was laying, ‘in line’ he would present a more unusual aspect

to an approaching driver than that provided were he laying across the road.

13.6 Mr Cameron may have presented in what could be considered an unexpected

location and an in an unexpected attitude (laying prone in the roadway). This may

have further lowered his conspicuity with respect to Mr Swan, making it more likely

that Mr Swan would allocate attention to other (brighter, bigger, moving) aspects of

13.7 Overall, I believe that there were issues with both the visibility and

conspicuity of Mr Cameron, with respect to Mr Swan, that may have contributed to

the incident of the 23rd April 2016 on Wellmeadow Street, Paisley.”

[17] Mr George Gilfillan was a road traffic incident consultant. He had prepared a report

in relation to the accident in this action. That report was produced 10 and spoken to. He also

spoke to a set of 18 photographs which he had prepared for use in conjunction with his

report.11 Mr Gilfillan stated that he had been between 1977 and 2001 a police officer with

Strathclyde Police. In 1988 he had transferred to the traffic department of Strathclyde Police

and thereafter been involved exclusively in road traffic issues. He had passed certain

certificates in relation to that speciality and had attended the Standard Advanced Accident

Investigation Courses organised by Grampian Police in conjunction with Aberdeen

University. Neither his qualifications nor his ability to give opinion evidence in relation to

the accident in this action were challenged by the defenders. For the purposes of

preparation of his report, Mr Gilfillan was provided with certain documentary material and

a copy of a DVD showing video footage of a pedestrian and police drive through of the

locus of the accident.12 Mr Gilfillan also indicated that he attended the locus initially on

12 March 2017 at which time he conducted an examination, observed the road layout and

obtained measurements thereof. That investigation was carried out during the hours of

daylight. Having regard to the fact that the incident occurred during the hours of darkness

he visited the locus again on 30 March 2017 to ascertain lighting conditions and drivers’

views during the hours of darkness.13 Between paragraphs 15-38 of the report Mr Gilfillan

described the locus and what the photographs he had taken illustrated. In the remainder of

the report Mr Gilfillan offered what were termed “comments” on various aspects involving

the accident. This passage of the report included his opinion under the heading “Driver

Reaction Times”.14 The author defined reaction time as “the time that passes between the

moment the driver observes the need for action and the moment they take action.” It was

stated that this was made up of three elements, perception time, thinking time and action

time. Having considered these matters Mr Gilfillan concluded and expressed the opinion:

“… that there would have been insufficient time or distance available to Martin Swan

to react by taking avoiding action to the pedestrian lying on the road due to the

[18] The pursuer’s mother, Lindsay Cameron, gave brief evidence primarily relating to

items of clothing which the defender had worn at the time of the accident.

[19] PC Gordon McIntyre is a serving police officer based at the time of proof in Glasgow.

He had 13 years experience as a road traffic police officer. His evidence involved a video

drive through which he had, in the company of a police colleague, conducted on the evening

of 19 July 2016 at or about 10.00pm. He explained that using a police car, a BMW 3 Series, he

conducted two passes over the locus of the accident. During these passes a dash cam fitted

to the vehicle recorded what was observable through the front windscreen of the vehicle

during the drive through. He stated that the drive through was conducted at 30mph, that

being the speed limit in force in the relevant roads. He stated that the video would show

what he saw, as a front seat passenger in the vehicle, during the course of the drive through.

He also expressed the view that if a person’s position was higher than his in a saloon car, for

example in the front seat of a van, a greater, or more extensive, view of the road ahead

would be available. He said that he had a clear and unobstructed view of the road ahead.

He accepted that a vehicle of the same sort as the taxi being driven by Mr Maule

immediately ahead of the van being driven by the first defender was not used in the

exercise. He further accepted that he was not aware of the distance which the taxi was

ahead of the van being driven by the first defender. He explained that the exercise was not a

reconstruction of the path of the van being driven by the first defender but that it provided,

and was intended to provide, an overview of what might be seen from a vehicle following

the same path. In cross-examination he accepted that the camera was situated in the middle,

that is broadly equidistant between each side, of the vehicle and rested upon the dash. He

further accepted in cross that the drive through was conducted at a different time of the day

than the time when the accident occurred. Lastly, he accepted that the drive through was

performed in summer at a different season of the year than the accident.

[20] He pursuer’s final witness was Barry Seward, a road traffic investigator. Mr Seward

spoke to a report15 prepared16 in relation to the accident in this case. He was not the author

of the report, that person being unable to attend court. He did however say that he had read

the report and considered all the evidence that the author had had access to. He had also

[21] The purpose of the report was to address the issue of the conspicuity of a person

lying in the roadway in the position of the pursuer to a person driving a vehicle in the

position of the first defender. In relation to the issue of conspicuity Mr Seward accepted that

his knowledge and experience was in “not comparable to that of Professor Edgar”. He

stated that his evidence was based on experience of road traffic reconstructions which he

had acquired whilst a serving police officer and latterly when engaged in the private sector

as a road traffic investigator. He accepted that his scientific knowledge of the issue of

conspicuity was not comparable to that of Professor Edgar. Notwithstanding the limitations

imposed by that concession he expressed views on the efficiency of headlights on vehicles

and their contribution to the issue of conspicuity. In cross-examination he accepted that the

report to which he was speaking was not a reconstruction exercise. It was intended to assist

the court and be illustrative of visibility and the view from the vehicle being driven by the

first defender. The proposition was put in cross-examination to Mr Seward that the

available evidence demonstrated the accuracy of the proposition that in some circumstances

some people would be aware of something while in the same circumstances other people

Relevance of the first defender’s criminal conviction - Law Reform (Miscellaneous

[22] There was no dispute that on 3 July 2017 the first defender pled guilty at Paisley

Sheriff Court to a charge under section 3 of the Road Traffic Act 1988.17 The charge to which

“That on 23 April 2016 on a road or other public place, namely Wellmeadow Street,

Paisley you Martin Swan did cause serious injury to Samuel Cameron, ... by driving

a mechanically propelled vehicle, namely motor vehicle registered number

SF64 CGV without due care and attention and did fail to keep a proper lookout,

overtake a statutory vehicle, fail to observe said Samuel Cameron lying on the

roadway there, cause said motor vehicle to drive over him to his severe injury and

danger of life, contrary to the Road Traffic Act 1988, section 3.”

Both parties were agreed that the provisions of section 10 of the Law Reform (Miscellaneous

Provisions) (Scotland) Act 1968 were relevant to the consideration of that conviction in the

context of the present action. The relevant parts of the provision are as follows:

“10(1) In any civil proceedings the fact that a person has been convicted of an

offence by or before any court in the United Kingdom ... shall ... be admissible in

evidence for the purpose of proving, where to do so is relevant to any issue in those

proceedings, that he committed that offence, whether he was so convicted upon a

plea of guilty or otherwise and whether or not he is a party to the civil proceedings ...

(2) In any civil proceedings in which by virtue of this section a person is proved

to have been convicted of an offence before any court in the United Kingdom ...

(a) he shall be taken to have committed that offence unless the contrary is

Although the submission of both parties in relation to the application of the principles in

section 10 of the said Act of 1968 were expressed somewhat differently the conclusions they

reached were essentially similar. It can be expressed in the following way. The effect of

section 10 is now authoritatively explained, in a decision which is binding upon this court,

“The only effect of section 10 ... is to allow the pursuer to introduce the

conviction into the proof and thereafter rely upon it to reverse the onus of

proof as between themselves and the first defender. The manner in which

this ought to be done is by proving the terms of the libel, as found established

by the jury (usually by production of an extract conviction) and to compare it

with the averments of negligence on record. In so far as there is a coincidence

between the proved libel and the averments, there is no onus of proof on the

pursuer. Thus, if the conviction involved driving at excessive speed or a

failure to heed road signs, in the event of a dispute the onus would be on the

defender to disprove these facts if they were reflected on record. Proof of the

I would note that the law in England and Wales in relation to these matters is based upon a

different statutory provision but one couched in identical terms to section 10 of the

1968 Act19. Moreover the English statute had been construed by the courts in a way

directly comparable to the approach expressed by Lord Carloway in Towers (supra).20 It is

clear from the foregoing that having regard to the relevant terms of the charge already

quoted in the context of the present case a burden of proof lay upon the first defender to

prove that he did not drive without due care and attention and, specifically, did not fail to

keep a proper lookout when overtaking a statutory motor vehicle, did not fail to keep a

proper lookout when failing to observe the pursuer lying on the roadway and did not fail to

keep a proper lookout when causing his motor vehicle to drive over the pursuer to his

20 Hunter v Chief Constable West Midlands Police [1982] AC (HL) 529 per Lord Diplock at page 544D-E.

[23] Senior counsel for the defenders first submitted that there was no evidence that the

first defender did not exercise due care and attention whilst driving his vehicle on the

occasion of the accident. It was submitted that it was no part of the criminal charge of which

the first defender was convicted, the consequences of which as a matter of law have just

been discussed, that he drove too close to the vehicle in front of him. In any event, and

notwithstanding that fact, there was no evidence to that effect. It was further submitted that

the tenor of the pursuer’s evidence as expressed by Mr Seward in oral testimony and by the

author of the report that person adopted and spoke to was to the effect that it would be very

unusual to encounter a pedestrian lying in a roadway.21 There was a further concession in

both the report relied upon and Mr Seward’s oral testimony that it was a matter for the court

to determine why the first defender did not see the pursuer lying in the road and that the

driver of a vehicle would not expect to see a person lying in a road.22 Beyond this reliance

was placed on the evidence of Mr Maule whom it was said gave evidence to the effect that

when he pulled in on seeing the person lying in the roadway and to allow the vehicle being

driven by the first defender to overtake him that vehicle would be almost “on top of the

person” in the roadway. The conclusion counsel for the first defender took from this

evidence was that the pursuer’s claim that the first defender failed to exercise due care and

attention when driving the motor vehicle amounted to no more than a contention that the

first defender did not see the pursuer lying on the roadway whereas Mr Maule in the vehicle

preceding the first defender had noticed the pursuer in that position.

[24] The submission was developed on the basis that it did not follow from the fact that

Mr Maule saw the pursuer lying in the roadway that the first defender should have seen the

pursuer in that position. In relation to that submission it was pointed out that prior to the

accident the pursuer was lying prone in the roadway. It was an agreed fact that his feet

were facing the westbound traffic, that is traffic coming in the direction which the vehicle

being driven by the first defender was proceeding.23 Beyond the terms of the joint minute it

was observed that the evidence of Mr Maule, PC John McKinney and the locus of blood

spots in photographs produced to the court supported the proposition that the pursuer’s

body and the point of impact with the first defender’s vehicle was either completely or

substantially in the westbound carriageway of the road in the proximity of the centre line.

[25] The evidence in relation to the positioning of the pursuer at the time of the accident

was relevant because of the pursuer’s submission that the primary issue in the case was the

view and visibility of the pursuer in the roadway at the time of the accident. Senior counsel

for the first defender noted that in evidence Mr Seward accepted that the issues of view and

visibility were of primary importance in the case. Moreover Mr Seward stated that in

relation to these issues “he definitely did not consider himself a comparable expert to

Professor Edgar” the defender’s expert in relation to those matters.

[26] In relation to view and visibility Professor Edgar gave evidence which was

submitted to be uncontradicted.24 In submission Professor Edgar’s evidence was as follows.

The first defender would require a line of sight to the pursuer. A line of sight is essential

but of itself an insufficient pre-requisite to the pursuer being visible to the first defender.

The Professor expressed the view that as the first defender travelled round the gentle

24 No 7/16 of process, the views are summarised at paragraphs 13.1-13.6.

right-hand bend immediately prior to the locus of the accident there may have been a line of

sight to the pursuer but only if he were to look across the bend to where the pursuer was

lying in the roadway. Whether or not that line of sight would exist would depend on where

the two vehicles, that is the van being driven by the first defender and Mr Maule’s taxi, were

placed laterally to each other and how close to each other they were at that point in time.

This view was not challenged in cross-examination. It followed that whether or not the first

defender had the opportunity to observe the pursuer lying in the road depended upon him

directing his view toward the pursuer across the bend and, at the time he so directed his

gaze, to a sightline being present. These were essentially matters of chance. This evidence

was said to be bolstered by Professor Edgar’s opinion that drivers tend to look at the tangent

point on a curve and where that point is at any given point in time will change depending

on their position on the road.25 Professor Edgar further explained that the reason drivers

look at the tangent point of a curve is to enable them to stay in lane. That view was

apparently accepted by Mr Seward in a letter that he wrote and which was produced in

which he commented upon Professor Edgar’s report26 where he expressed the view,

apparently in conformity with the views of Professor Edgar, that the purpose of a driver

looking to the right of the vehicle ahead would be “to ascertain where the road is going and

the severity of the bend being negotiated”. In the same letter Mr Seward expressed the view

that drivers tended not to fixate on a point but glanced around as they drove.27 In

commenting on these observations by Mr Seward, Professor Edgar explained that human

beings do not have panoramic vision and can only see clearly for a small area directly in

[27] The conclusion and submission made by senior counsel for the defender in relation

to this passage of evidence was therefore to the effect that whether or not the first defender

had a line of sight to where the pursuer was lying amounted to no more than a matter of

[28] The submission continued by accepting that once the taxi moved over to the nearside

there would be no physical impediment blocking the first defender’s view of the road ahead.

It was however submitted further that the fact that the first defender did not see the pursuer

after the taxi moved to the nearside does not mean that the first defender failed to exercise

the standard of skill and care to be expected of a competent and careful driver. It was said

that he may not have looked at the centre line at all, or if he did he may have looked at the

centre line at a point further westwards to the position where the pursuer was located.

Further evidence of Professor Edgar was relied upon in relation to this submission. It was

observed that the Professor’s evidence was that the human brain has a large amount of

information to process in the act of driving and does not have the resources to process it

all.28 Factors which the first defender had to cognitively process as the taxi pulled over were

suggested as being; what the taxi was doing; where it was going; what was happening at

the nearby junction between Wellmeadow Street and Lady Lane; was there any traffic

approaching; were any pedestrians in view. These considerations would require the

pursuer’s vision to be directed, albeit briefly, in different places. There was said to be a

degree of acknowledgement of this factor by Mr Seward who in his evidence accepted that

at the time on the morning of the accident “the primary object in view” to the driver of the

[29] In regard to this chapter a further psychological consideration to which the court’s

consideration was drawn by Professor Edgar was that expectation is a relevant factor in

where a driver will look and whether they will recognise a hazard as such if their eye does

happen to fix on the thing that constitutes the hazard.29 In that regard counsel relied on the

fact that, as already noted, both Mr Loat and Mr Seward acknowledged that it would be

[30] In relation to the issue of what might have been observed by the first defender,

Professor Edgar also expressed views about what “contrast” is and how it affects what can

be seen.30 He referred to an academic study which looked at contrast thresholds for drivers

under similar like adaptation levels to those in the instant case. It was submitted that this

study showed that for a sample of regular drivers that did not report issues with night

driving the maximum estimated contrast of 65% for the pursuer’s clothing surfaces

horizontal to the road referred to in the report would have been above the threshold for

about 75% of the drivers in this study. The implication is that 25% of such drivers would not

have been able to discern the pursuer from the background. Professor Edgar, in considering

this report, made the point that it was a laboratory study and although it tested car drivers

they were not engaged in a driving task at the time of testing and the stimuli used were not

realistic. His conclusion was that the study shows that not all drivers will necessarily

observe targets of even fairly high contrast. His view and evidence was that in real life the

figures for those that did not observe the target would be higher than those in the study.

The conclusion drawn by counsel for the first defender and the submission was that even if

the first defender had chance to look at precisely the spot where the pursuer was lying, he

may not have been able to discern a shape on the road. Furthermore, even if he had

observed a shape lying on the road, he may not have been able to discern that the shape was

[31] On the basis of the foregoing, counsel for the defender submitted that it did not

follow from the fact that Mr Maule saw the pursuer the fact that the first defender did not

see him must mean that the first defender’s driving fell below the standard to be expected of

the ordinary, competent and careful driver. It further followed that there was no evidence

contradicting the unchallenged evidence of the first defender that he exercised due care and

attention as he was driving on High Street and Wellmeadow Street and that he was keeping

[32] As a matter of law it was submitted that it had not been established that the first

defender did not look towards the centre line of the road at all or did not look at it often

enough to constitute failure to keep a good lookout. It was further submitted that even on

the hypothesis that it were to be held established that the first defender did not look towards

the centre line of the road at all or did not look at it with any particular regularity and that

meant that his driving fell below the standard of skill and care to be expected of a competent

and careful driver, that does not mean that the first defender owed the pursuer a duty to

look toward the centre line of the road. Nor, it was submitted, would it mean that the first

defender owed the pursuer a duty to look towards the centre line at a point in time at which

the first defender (a) had a line of sight to the pursuer and (b) was sufficiently close to the

pursuer for the first defender in theory to be able to make out that there was a person where

[33] In support of these propositions, counsel relied upon well-known statements of law

in Bourhill v Young31 and Donoghue v Stevenson.32 I was invited to pronounce decree of

[34] In the event that, notwithstanding her primary submission, a finding of liability was

made by the court it was submitted that the court should find there was a high degree of

contributory negligence on the part of the pursuer. It was said that as between the pursuer

and the defenders the pursuer should bear the heaviest responsibility.

[35] In that regard it was noted to be a matter of agreement the pursuer was intoxicated

as he lay on the roadway.33 There was further evidence that points to the pursuer having

taken the drug MDMA, commonly known as ecstasy.34 Beyond this there was said to be

evidence which points on the balance of probabilities to the pursuer having deliberately lain

[36] In relation to the law on contributory negligence it was submitted that as between a

pursuer and a defender the court must have regard to both the blameworthiness and the

causative potency of each party’s acts.35 Each case must, of course, depend on its own facts.

In the present case the submission for the defender was that contributory negligence should

be assessed at 85%. The factors relied upon were that the pursuer placed himself in the

road, in the dark, wearing dark clothing against a grey road surface.

35 Jackson v Murray [2015] UKSC 5 per Lord Reed at paragraphs [19]-{26}, and per Lord Hodge at

[37] Senior counsel for the pursuer invited the court to accept the evidence of Mr Maule,

who was described as having a good recollection of events. In particular I was invited to

accept Mr Maule’s evidence that “he felt” that the van “was a bit close” as it followed him

towards the locus. My attention was also drawn to the fact that Mr Maul observed

something in the roadway at the locus which he initially thought was rubbish but then

recognised was a person. I was further invited to accept the evidence of PC McKinney in

relation to the positioning of the pursuer on the roadway after the accident and the evidence

of Mrs Cameron, the pursuer’s mother, that the training shoes the pursuer was wearing at

the time of the accident were “probably white” and had Adidas stripes on their side which

were reflective. The evidence of George Gilfillan and Mr Seward were also relied upon.

[38] In relation to other evidence senior counsel for the pursuer contended that the first

defender was “an unsatisfactory witness”, and said to be demonstrably wrong on a number

of matters. He was also said to have given his evidence dogmatically. On the basis of those

factors I was, as I understood it, invited to categorise Mr Swan as an unreliable witness.

[39] In relation to the evidence of Professor Edgar, senior counsel for the pursuer did not

take issue with Professor Edgar’s scientific conclusions. He characterised the criticisms

which he did make of the Professor’s evidence as being “relatively minor ones”. In

characterisation of the minor errors he submitted that the “wording of his report appears, in

places, to strain in favour of the defenders”. He pointed out that various studies referred to

in the text or footnotes were not produced. It was said he did not produce his calculations in

relation to a statistic which was not readily apparent from the relevant study. Lastly, it was

said that the Professor cited one study for a proposition which, when challenged in cross-

[40] Senior counsel for the pursuer founded upon Professor Edgar’s conclusion in

evidence that there could have been a sight line down the offside of the taxi towards the

pursuer given the right-hand bend “especially if there was a reasonable gap between the

vehicles as they proceeded round the bend”. He also founded upon the report in relation to

contrast founding on the fact that the report showed there was a contrast difference

which 75% of individuals could detect. In relation to this my attention was drawn to

contrast differences between various items of the pursuer’s clothing, particularly that the

[41] On the basis of the foregoing the submission on behalf of the pursuer was that there

was a clear contrast between the driving of Mr Maule and Mr Swan. Mr Maule managed to

identify and react to the pursuer’s presence despite being concerned about the close

proximity of the first defender’s vehicle behind him which would have been a distracting

[42] On the basis of that factor it was submitted that the defender should be found liable

[43] In relation to the issue of contributory negligence my attention was drawn to a

number of reported cases involving drunk pedestrians in which judicial comment has been

made as to the relevance of their intoxication.36 The conclusion which I understood to be

drawn from these authorities was the fact that whilst every case must turn on its own facts,

and that intoxication was a fact in a case, it had to be considered as such. The fact that a

person was intoxicated did not axiomatically give rise to a finding of contributory

negligence. The important consideration or fact was how that feature affected and impacted

36 Lunt v Khelifa [2002] EWCA Civ 801, McNab v Bluebird Buses 2007 REP LR 36, Lightfoot v Goahead

upon a person’s behaviour. My attention was further drawn to two cases involving drunk

pedestrians lying in the roadway.37 In regard to more general principles in relation to the

law pertaining to contributory negligence, my attention was drawn to the opinion of

Lady Hale in Eagle v Chambers38 and to the opinion of Lord Reed in Jackson (supra).

[44] Having regard to all the considerations identified in the foregoing authorities I was

invited, if making a finding of contributory negligence, to apportion blame in the

[45] The only challenge to witnesses’ reliability and credibility came from the pursuer

who challenged the evidence of the first defender, Mr Swan and, in some respects, the

evidence of Professor Edgar. It is convenient to deal with these challenges at this stage.

[46] In relation to Mr Swan he was described as an “unsatisfactory witness who was

demonstrably wrong on a number of matters”. He was also said to have given his evidence

“dogmatically”. On the basis of those submissions I was invited to treat him as an

[47] To be dogmatic, or express a view dogmatically, is conventionally understood to

mean expressing a view or opinion in a peremptory or assertive manner in a way that is

intended to convey that what the utterer says is undeniably true. The assessment of whether

a person is speaking in that way is, I would venture, very likely to be a matter of subjective

interpretation. It is, again in my view, apart from in no doubt the most obvious cases,

37 Donogho v Blundell [1986] CLY 2254 and Green v Bannister [2003] EWCA Civ 1819.

something which is difficult to form an entirely objective view about. My impression of the

first defender as a witness would not conform to the description of someone giving evidence

dogmatically. He seemed a little nervous, which I would not regard as unreasonable or

unusual. He did not understand all questions and occasionally required a question to be

repeated. Again I would not consider that unusual. He answered a number of questions in

a manner which could be construed as inconsistent with his best interests, which I would

not regard as a characteristic of dogmatism. It follows that, attempting to be as objective as

possible, I do not accept the characterisation placed upon the first defender’s evidence by

[48] In relation to the other matter relied upon, demonstrable error in a number of

respects, it is correct that there were a number of errors in his evidence, for example in

submission counsel pointed out that the witness said the accident happened at 4.40am when

otherwise reliable evidence placed it 15 minutes later. I would not regard an error of that

nature as being necessarily indicative of unreliability. It appears to me to be no more than a

piece of evidence which given that it was unlikely to be correct the court would be entitled

to disregard without necessarily affecting adversely an overall assessment of the witness’s

reliability. The other matters relied upon by counsel for the pursuer in his challenge to the

reliability of the first defender were, in my view, areas where his evidence was at odds or

varied with the evidence of other witnesses, principally Mr Maule. Again I consider that I

am entitled to be selective in preferring the evidence of witnesses, no doubt influenced by

any other evidence on the matter which was available. Further, I would regard the

variances pointed out by counsel for the pursuer as mainly representing areas of detail

where there was scope for slight differences in the view expressed by different witnesses.

[49] Looked at in the whole my view was that the first defender was a nervous and

concerned witness. At all times he was in my view attempting to answer questions

truthfully and to the best of his ability. Whilst there are aspects of his evidence where I

would prefer the evidence of other witnesses I do not consider that there is any material

which would entitle, or indeed persuade me to conclude, that the totality of his evidence

[50] I would, respectfully, characterise senior counsel for the pursuer’s challenge to the

reliability of the evidence of Professor Edgar as being lukewarm. The first criticism was that

the wording of his report appeared in places to strain in favour of the defender. Despite

couching the proposition in the plural he cited only one example39. The example cited was

where the Professor concluded in one aspect of his report in relation to the conspicuity of the

pursuer on the roadway that he “would not necessarily be registered by all drivers”

whereas, senior counsel submitted, the previous text of the report makes clear that the vast

majority of drivers would register the contrast presented by the pursuer. In my respectful

opinion senior counsel is in error in the conclusion he draws. There is no inconsistency in

my view between the statement that a person would not necessarily be registered by all

drivers where the previous text quite properly on the basis of scientific evidence accepted

that a majority of drivers (75%) would register the person. It follows that I reject that

[51] The criticism that not all studies referred to in Professor Edgar’s report were

produced is factually correct. It is however equally correct that no criticism prior to proof of

this was made by those representing the pursuer. There was no suggestion that the absence

of the reports rendered the text of the report unintelligible nor were the conclusions of the

report challenged on the basis of the absence of the reports. It is, in my experience, a fairly

common feature of practice in the field of personal injuries litigation for reports by expert

witnesses to cite papers and not, unless asked specifically by the opposing party, to produce

the same. I do not consider that this criticism has merit in the context of a challenge to the

reliability of Professor Edgar. I take a similar view in relation to the challenge based upon

the text of the report not producing calculations in relation to a statistic which was said not

to be readily apparent from the relevant study. The last challenge to the reliability of the

Professor’s evidence was the submission that he referred to a passage in a study which, in

cross-examination, he accepted was a “throwaway” line from the study. Again it is factually

correct that Professor Edgar characterised his reference to the line in that way. Rather than

being the subject of criticism I interpreted that as candour on his part accepting that the part

[52] I did not consider that any of the criticisms alleged by senior counsel were,

individually or collectively, of any materiality. More important was the concession made by

senior counsel for the pursuer that he did “not take issue with Professor Edgar’s scientific

conclusions.” I regarded Professor Edgar as a reliable witness.

[53] I should indicate that I regarded all other witnesses in the case as persons who were

attempting to the best of their ability to, in the case of witnesses to fact, recall the events they

spoke to truthfully. In the case of witnesses of opinion I considered that they were doing

their best to be of assistance to the court and express their views within the confines of their

[54] This was a case in which the defender led, there being an onus upon the first

defender, if he were to succeed in rebutting the facts established in the terms of the libel of

the criminal charge to which he had previously pled guilty. The relevant parts of that

charge were that at the time of the accident with which this action is concerned the first

defender drove without due care and attention, failed to keep a proper lookout and failed to

observe the pursuer lying on the roadway. The onus of proof in relation to these matters

plainly rested upon the first defender with the second defender being, derivatively, in the

same position. Beyond that in relation to the case of common law fault pled against the

defenders by the pursuer there was a case that the first defender did not keep a safe distance

between his vehicle and the taxi in front of him, a case that the first defender failed to keep a

good lookout and that he failed to see the pursuer lying on the roadway, essentially

[55] I deal firstly with the case pled by the pursuer that the first defender did not keep a

safe distance between his vehicle and the taxi being driven in front of him. The only direct

witnesses to this matter were the first defender and Mr Maule. The first defender’s evidence

was general in the sense that he said he was driving carefully, observing the speed limit and

at a suitable distance behind the taxi proceeding down the road in front of him. Mr Maule’s

evidence was of a subjective impression that the van being driven by the first defender was

“a bit closer than I would like” but, and not without importance, this was qualified by the

concession that the manner of driving by the first defender at the distance he observed was

“without tailgating”. In the totality of that evidence, objectively judged, I do not find an

evidential basis for an allegation of breach of a duty to keep a safe distance. The content of

the duty to keep a safe distance must include consideration of factors such as road

conditions, visibility and the ability to stop the following vehicle without causing a collision.

None of these features figure in the evidence in the context of the distance between the

vehicle being driven by the first defender and the taxi in the time immediately prior to the

accident. There is the further consideration that as a matter of fact the first defender was

able, apparently without difficulty, to move his vehicle round the taxi when it pulled over to

the nearside of the road. It follows that I do not consider that there is an evidential basis for

[56] The primary case which must be considered arising both from the libel in the

criminal charge and the case of common law fault is that the first defender failed to keep a

proper lookout and failed to observe the pursuer lying in the roadway. Put bluntly if the

first defender does not rebut the factual presumption in relation to these matters created by

the existence of the criminal conviction the pursuer must succeed and the defenders must be

[57] In relation to this matter the first defender, upon whom the onus of rebuttal lies,

relies primarily on the evidence of Professor Edgar whose conclusions in relation to this

issue are set forth in paragraph [16] hereof. Essentially these conclusions were to the effect

that as he approached the locus the first defender may, at certain points, have had a sightline

by looking across the curve in the road he was proceeding upon to the pursuer’s prone

figure on the roadway. Importantly the conclusion was that a sightline might have existed

not that it did exist. The qualification depended upon a number of factors spoken to in

evidence by Professor Edgar. The most important of these qualifications was that the

sightline would as a matter of probability have been impeded by the presence of the taxi in

front of the first defender’s van. Unimpeded visibility would only have been possible after

the taxi pulled to the nearside of the road which occurred a very short distance from the

impact point. The degree of impediment to visibility constituted by the presence of the taxi

until it pulled over was, on the basis of the evidence, unknown. The reason for this lack of

knowledge is because the precise configuration of the taxi and the following van were not

capable of ascertainment on the basis of the evidence. Neither the precise distance at any

given time between taxi and van was a matter of evidence. Likewise the exact placement of

each vehicle in the roadway and in conjunction with each other was, again on the basis of

the evidence, unknown. Without knowledge of these factors Professor Edgar’s evidence,

unchallenged in this respect, was that it was impossible to determine if at any point in time

there was as a matter of fact a sightline available to the driver of the van to the pursuer lying

[58] Beyond these features directly referable to the issue of a sightline there was the

added complication given by the issue of conspicuity of the pursuer lying on the roadway.

This aspect of matters depended, as I understood the evidence, on two distinct areas in the

evidence of Professor Edgar. First, the issue of whether as a matter of contrast the pursuer

would be likely to be visible to the driver of an approaching vehicle. In that regard the

evidence was that with the exception of his trainers, which I accept were white in colour and

had a reflective stripe on them, the pursuer’s clothes were of grey or relatively dark colour.

The evidence of Professor Edgar was that on the balance of probabilities the contrast

between the clothing and the roadway upon which the pursuer was lying was such that not

all drivers would be able to perceive the pursuer as the body of a person lying on the

roadway. In relation to this some assistance is, in my view, obtained from the evidence of

Mr Maule. Mr Maule did observe something lying on the roadway as he approached the

locus. His evidence was that he initially thought it was rubbish but then appreciated that it

had the shape of a body, at which point he began to brake and pull over. On the basis of the

evidence of Professor Edgar it is clear that the first defender would only have had an

uninterrupted view of the pursuer lying prone on the roadway after Mr Maule’s taxi had

pulled to the nearside of the road. This was, clearly on the basis of the evidence, only a short

distance from the place where the pursuer was lying. The first defender’s evidence was that

on going past the taxi he did not see anything on the road and then felt a bump which he

thought was a stone or pothole on the road. My conclusion in relation to this passage of

evidence is that the first defender was truthful and accurate when saying that he did not see

the pursuer before the point of impact and that he cannot be criticised, or more importantly

found at fault, for this. His view was brief and the lack of contrast between the pursuer and

the roadway rendered the impression gained by the first defender as reasonable and

consistent with driving with the appropriate degree of care and attention.

[59] The second aspect of Professor Edgar’s report in relation to the visibility of the

pursuer is essentially one concerning the psychology of drivers. Put simply the evidence of

the Professor, which was in fact supported by evidence from Mr Seward, was that to the

driver of an oncoming vehicle an unexpected thing in a roadway has the psychological effect

on the human brain of lowering the conspicuity in relation to the object. The pursuer was

lying in an unexpected location in an unexpected attitude and therefore his conspicuity to

the first defender would, as a matter of probability, have been lower than had the

obstruction in the roadway been of the sort that might have been expected. Whilst I would

not consider that element of the evidence to be determinative of itself it is in my view

another adminicle of evidence supporting the proposition that not only was the first

defender truthful when saying that he did not observe the pursuer lying on the roadway but

[60] For completeness I should make some consideration of the evidence relied upon by

the pursuer. In that regard I do not consider the characterisation placed on the pursuer’s

position by senior counsel for the defenders to be unfair or inaccurate. Her characterisation

of the pursuer’s case was that essentially because Mr Maule saw the pursuer on the roadway

it followed that the first defender should have been able to see the pursuer and his failure to

do so constituted fault. The error in that proposition is self-evident. Unless two persons are

in exactly the same position at the same time (and, further, have equally acute vision) it

cannot logically be said that what one saw would automatically be visible to the other.

Beyond that simple logical proposition there are also the considerations that I have already

discussed. The highest that Professor Edgar’s evidence could be taken as demonstrating

was that the first defender might have had a sightline to the pursuer. That is insufficient to

satisfy the test of the balance of probabilities. As a matter of conspicuity there was a low

contrast between the pursuer and the road surface upon which he was lying thus reducing

the opportunity or possibility of the defender discerning his presence on the roadway. It

was a matter of agreement that the pursuer was lying in line with the vehicle being driven

by the first defender as it approached him. This orientation again reduced the ability of the

first defender being able to discern the pursuer on the roadway. Psychological evidence was

adduced which suggested that on the balance of probabilities, drivers of motor vehicles are

slower to recognise unexpected objects in their path. The effect of this is that there is a time

lapse between something being visible and the brain of a driver recognising that fact and

taking appropriate action. The fact that Mr Maule initially considered what was in the road

[61] The pursuer produced evidence from two road traffic incident consultants,

Mr Gilfillan and Mr Seward. Both were clear that the exercises they undertook were not

reconstructions of the accident but merely tools designed to assist what might have been

visible at the locus to a person in the position of the driver of the van. Neither of these

persons sought to challenge the evidence of Professor Edgar. Mr Seward accepted that

Professor Edgar had far more knowledge in relation to questions of visibility than he

possessed. Both these persons accepted there were limitations in the information they

produced based upon differences between the time and road conditions prevailing when

they conducted their investigations and when the accident occurred. I am bound to say that

whilst I have no criticism of the content of what was produced by Mr Gilfillan or of that

which Mr Seward spoke to, I did not find that material of particular assistance in reaching a

[62] In conclusion I am satisfied that the first defender was truthful when stating that he

saw nothing in the road ahead of him prior to impact. On his approach to the locus his view

of the position where the pursuer was lying was obstructed or at least impeded by the

presence of Mr Maule’s taxi in front of him. He may never have had a sightline to the

accident locus. Even if he had a theoretical sightline to the locus, he may not actually have

looked at the position where the pursuer was lying. He required as part of his normal

driving to have regard to all other aspects of the road. The evidence was clear that drivers

require to look at a number of locations as they proceed. It follows that if at any time he

happened to look to the position where the pursuer was lying there might have been no

sightline to that point. In any event the pursuer was a low contrast, low conspicuity and

unexpected object on the roadway. Having regard to all these features I consider that the

first defender has rebutted the onus upon him to disprove the libel of the criminal charge to

which he pled guilty and was convicted. The pursuer has not proved breach of the sole

standalone duty at common law, that is a failure to “keep a safe distance between his vehicle

[63] There remains the issue of contributory negligence. Having regard to the views I

have expressed in relation to the issue of fault, this is no longer live. I should however make

some brief observations. I take no issue with the submissions of either party in relation to

the applicable law. The question of contributory negligence is a matter of fact to be

determined by the factfinder. In assessing those facts to apportion blameworthiness the

court requires to have consideration of the causative potency of each party’s acts. The fact

that a person was intoxicated when they were injured as a result of another person’s breach

of duty does not axiomatically give rise to a finding of contributory negligence. The court

requires to have regard to the causative potency of the person’s intoxication in the same way

[64] In the context of the present case, had I determined that the first defender was at

fault for the accident I would, depending upon which breaches of duty had been upheld,

have required to have consideration of his driving without due care and attention, failing to

keep a proper lookout, failing to observe the pursuer lying on the roadway and failing to

keep a safe distance between himself and the taxi in front of him. These are plainly

important features in the causation of a road traffic accident. On the other hand I would

have required to consider the fact that the pursuer of his own volition, whilst he was

intoxicated, lay down on a public road in the centre of a large town. The degree of

intoxication would, as a matter of probability, have at least some bearing on the issue of

causative potency. In that regard there was little evidence but I would have been entitled to

have regard to the fact that the lying down on a road and apparently going to sleep at or

about 5am is, on the balance of probabilities, action redolent of a significant degree of

intoxication. Having regard to all these considerations I would have found that the

pursuer’s action significantly contributed to his accident. I would correspondingly have

[65] In light of the foregoing I will assoilzie the defenders from the conclusion of the

Scottish Court of Session Decisions