SAMUEL CAMERON AGAINST MARTIN SWAN AND ANOTHER

Factual and Procedural Background

This opinion concerns a road traffic accident occurring at approximately 5:00 am on 23 April 2016 in central Paisley. The Plaintiff was intoxicated and lying in the middle of a street when the first Defendant, driving a van in the course of employment with the second Defendant, ran over him. The first Defendant pled guilty to careless driving under section 3 of the Road Traffic Act 1988. The Lord Ordinary initially refused interim damages but allowed a proof limited to liability and contributory negligence, scheduled for early 2019, with quantum to be fixed later. The proof commenced in May 2019 before a different Lord Ordinary, who issued his decision in February 2020, after an unacceptable delay of approximately nine months.

Legal Issues Presented

1. Whether the first Defendant was negligent in failing to keep a proper lookout and driving without due care and attention, causing injury to the Plaintiff.
2. Whether the reversal of the onus of proof under section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 applied and was correctly applied.
3. The extent to which contributory negligence should be apportioned to the Plaintiff given his intoxication and conduct.
4. The admissibility and weight of expert evidence, particularly from a psychologist, in establishing visibility and conspicuity of the Plaintiff at the time of the accident.
5. Whether the Lord Ordinary erred in fact-finding, assessment of credibility, and application of legal principles in his decision.

Arguments of the Parties

Appellant's Arguments

• The Lord Ordinary failed properly to apply the reverse onus of proof, which required the Defenders to prove that the first Defendant did not have a sightline to the Plaintiff.
• The Lord Ordinary made material factual errors, failed to consider relevant evidence, and included evidence not led at proof.
• The first Defendant’s evidence should have been treated with caution due to his guilty plea and inconsistencies with the taxi driver’s testimony.
• The Lord Ordinary failed to address conflicts in evidence regarding the position of the taxi and the first Defendant’s line of sight.
• The expert evidence of Professor Edgar was improperly relied upon, as much of it was irrelevant or inadmissible opinion rather than fact.
• The Lord Ordinary did not properly assess the Plaintiff’s visibility and the time available for the first Defendant to react.
• The Lord Ordinary erred in not assessing contributory negligence adequately.

Respondents' Arguments

• The Lord Ordinary reached the correct conclusion and discharged the onus of proof placed on the Defenders.
• The reverse onus did not apply to the first Defendant’s driving on the High Street, which was not part of the libel.
• The Lord Ordinary did not overlook evidence simply because it was not expressly mentioned; findings of fact should not be disturbed absent plain error.
• The first Defendant owed no duty to look through the bend without knowledge or reasonable expectation of the Plaintiff’s presence.
• Professor Edgar’s expert evidence was relevant and supported the conclusion that the Plaintiff was a low conspicuity hazard and that the first Defendant may not have had sufficient time or opportunity to avoid the accident.
• The first Defender’s guilty plea carried no probative weight in civil proceedings and was not a reason to discredit his evidence.
• The Lord Ordinary’s assessment of contributory negligence was acknowledged as erroneous, and the Defenders accepted a higher apportionment of fault to the Plaintiff.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the evidence and the Lord Ordinary’s findings. It noted that the first Defendant had pled guilty to careless driving, which reversed the onus of proof under the 1968 Act, requiring the Defenders to demonstrate that the first Defendant did not have a sightline to the Plaintiff. The Lord Ordinary failed to apply this correctly, instead placing the burden on the Plaintiff.

The court found that the Lord Ordinary did not adequately address conflicts in testimony, particularly regarding the position of the taxi and the first Defendant’s line of sight. The first Defendant’s account, if accepted, suggested he had a view along the off-side of the taxi to the Plaintiff, which should have led to a finding of negligence given the failure to see the Plaintiff.

The court criticized the reliance on expert opinion from Professor Edgar, concluding much of it was inadmissible or unhelpful as it did not assist in the practical determination of negligence. The court emphasized that the fundamental question was whether the first Defendant, exercising reasonable care, ought to have seen the hazard and taken avoiding action.

The court also found that the Lord Ordinary failed to give appropriate weight to the first Defendant’s guilty plea, which was a clear judicial admission of negligence. The explanation for the plea was unsupported by independent evidence and was not properly considered.

On contributory negligence, the court noted the Lord Ordinary’s failure to assess this properly. The court found that the Plaintiff’s intoxication and decision to lie in the middle of the road significantly contributed to the accident, warranting a substantial apportionment of fault.

Applying established principles of appellate review, the court found the Lord Ordinary’s decision to be one which no reasonable judge could have reached, due to errors in law, fact, and failure to consider relevant evidence.

Holding and Implications

The court ALLOWED the reclaiming motion, recalling the interlocutor and associated expenses interlocutor. It found that the accident was caused by the negligence and fault of the first Defendant, for which the second Defendant is vicariously liable. The court permitted a proof on quantum to proceed.

The court apportioned contributory negligence at 65% to the Plaintiff and 35% to the Defenders, reflecting the Plaintiff’s intoxication and conduct in lying in the road.

This decision directly affects the parties by establishing liability and fault apportionment but does not establish new precedent beyond the application of existing principles to the facts.