Driver not liable after striking pedestrian in late night country road collision

A judge in the Court of Session ruled that the pursuer, who could not remember anything about the time of the accident, failed to establish that the driver would have avoided colliding with him if exercising reasonable care.

Lady Carmichael heard that shortly after midnight on 5 January 2013 the first defender Jane Anne Ainslie was driving her Renault Megane using full-beam headlights on the A9 Bannockburn to Plean road, in the direction of Plean.

At a point near to the AA Oils Truck Stop she encountered the pursuer Leslie Buck in the roadway and her car collided with him.

The pursuer, who was wearing dark clothing at the time, had no recollection as to the circumstances of the accident and said his first memory was waking up at the Southern General Hospital in July 2013.

Ms Ainslie and the second defenders CIS General Insurance, her motor insurers, disputed liability for the injuries the pursuer suffered as a result of the accident.

During the proof senior counsel for the pursuer conceded that he could not achieve a finding that the first defender was solely responsible for the accident.

The questions for the court were, therefore, whether the defenders were liable at all, and if so, to what extent Mr Buck contributed to the accident by his own negligence.

The defenders did not aver that the pursuer had been attempting suicide at the time, but did aver that after the accident medical staff suspected that he been doing so.

It was averred that on the afternoon preceding the accident the pursuer was noted to be “drowsy” and “suspected of being under the influence of drugs” and that he had attended a hospital that afternoon complaining of leg injuries sustained when he had jumped out in front of and been struck by a car in the previous week.

Counsel for the defenders asked whether the pursuer was in a position to say whether or not he had been attempting suicide at the time when the defender’s car struck him, but the pursuer’s evidence was that he could not have been doing so as he lacked the “courage” to end his life.

The judge observed that the pursuer’s evidence provided “no assistance” as he gave no evidence as to the circumstances of the accident itself, while she regarded the first defender as a “credible and reliable witness”.

Lady Carmichael said: “I accept that the first time the first defender saw the pursuer was, as she described, when she saw the shoe in her headlight, and infer that was at a point in time very close indeed to the collision.

“On the available evidence I have been unable to reach a conclusion more precise than that the speed of the first defender was between 40 and 50 mph.

“I find on the balance of probabilities that when the first defender first saw the pursuer he was at the right hand side of what was within her field of vision.”

Counsel for the pursuer argued that, on the balance of probabilities, the position of the pursuer was such as to permit the first defender to see him and identify him as a “hazard” at a time when she would, if exercising reasonable care, have been able to take steps to avoid the collision.

That submission was predicated on two propositions: that the pursuer would have been visible when the first defender was 87 metres from the point of impact; and that a driver exercising reasonable care would have been able to avoid the collision.

However, Lady Carmichael considered the evidence on driver perception and response time (PRT) and what was could be expected of the reasonably careful driver to be “confused and confusing”.

“I am not, therefore, satisfied, that if the pursuer had been visible to the first defender when she was 87 metres from the point of collision, she would, if exercising reasonable care have been able to avoid him,” the judge said, adding: “The evidence regarding what might reasonably be expected by way of time for her to respond so as to be able to avoid him is unsatisfactory.”

The court accordingly granted decree of absolvitor in respect of both defenders.

In a written opinion, Lady Carmichael said: “While it cannot be literally true that the pursuer ‘came out of nowhere’, I am not prepared to accept that, on the balance of probabilities, the pursuer must have been visible to the first defender at a time such as to permit her to avoid the collision.

“The accident happened at night and during the hours of darkness. The pursuer was wearing dark clothes…The presence of a pedestrian on a rural roadway such as that in this case late in the evening would undoubtedly have been unexpected.

“Even allowing for the relatively open nature of the path to the one side and the verge to the other side of the carriageway, I am not satisfied that the first defender ought to have been able to observe the pursuer in the event that he was in either of those locations.”

She said she reached that view without requiring to form a conclusion as to the state of mind or state of sobriety of the pursuer at the time, as there was “nothing in the evidence that allows me to infer, as opposed to speculate, that the pursuer was attempting to commit suicide at the time of the collision”.

But the judge also held that Mr Buck failed to take reasonable care for his own safety.

Lady Carmichael said: “The pursuer placed himself in the roadway, in a rural setting, in dark clothing, during the hours of darkness, on a road where the speed limit was 60mph. The first defender’s vehicle, using as it was full-beam headlights, would have been much more visible to the pursuer than the pursuer was to the first defender.”

Giving her view as to contributory negligence on an esto basis on the limited information available, Lady Carmichael added that she would assess the pursuer as “70% to blame for the accident”.