Paisley man run over by bakery van while intoxicated wins appeal against dismissal of damages claim

Samuel Cameron argued that the reverse onus of proof applied by the Lord Ordinary had been flawed. The first defender, Martin Swan, had previously pled guilty to an offence of careless driving under section 3 of the Road Traffic Act 1988. Another party, the first defender’s employer, also appeared as a defender.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Pentland and Lord Menzies. The pursuer was represented by Young QC and the defenders by Shand QC.

Reverse onus

The accident occurred on Wellmeadow Street in Paisley at around 5am on 23 April 2016. The first defender had been driving a bakery delivery van along the High Street, which continued westward into Wellmeadow Street, in the course of his employment with the second defenders. After overtaking a taxi that had pulled over just before a junction, he ran over the pursuer.

In his evidence, the driver of the taxi stated that he had seen something he thought was bags of rubbish in the middle of the road and had pulled to the left to try and avoid it. The first defender had taken it that the taxi driver was letting him past and gone on to run over the pursuer. He only realised he had run over a person when the taxi driver caught up to him at the traffic lights.

An award of interim damages was made by a Lord Ordinary in September 2018, who scheduled a proof restricted to liability and contributory negligence for May 2019. An opinion following the proof, which commenced before a different Lord Ordinary, was issued 9 months later in February 2020.

The Lord Ordinary who heard the proof found that the first defender’s view had likely been impeded by the taxi and he may never have had a sightline to the locus. Further, the grey clothing that was worn by the pursuer at the time made him a low contrast and unexpected object. Having regard to these factors, the defenders had rebutted the onus upon them to disprove the libel of the criminal charge, and the pursuer had failed to prove a breach of the sole standalone duty in relation to keeping a safe distance between his van and the taxi.

It was submitted for the pursuer that the Lord Ordinary had failed to apply the reverse onus correctly to the facts. It was the quality of the defender’s driving and not its location that was relevant. Further, the Lord Ordinary ought to have treated the first defender’s evidence with more caution, especially where it differed to the evidence of the taxi driver. Contributory negligence on the pursuer’s part was proposed to be between 33 and 40% in light of his intoxication.

Almost impossible task

The opinion of the court was delivered by Lord Carloway, who criticised the delay between the proof and the Lord Ordinary’s opinion, saying: “This is an unacceptable delay, especially given the limited nature of the factual and legal dispute. The court does not know when the Lord Ordinary first formulated his thoughts on the evidence, but a delay of this nature does not provide the reader with confidence that, when he did so, the testimony or the demeanour of the witnesses would have been fresh in his mind or that, even with the benefit of his notes, he could recollect the evidence accurately.”

On the application of the reverse onus, he said: “The Lord Ordinary states specifically that he took notice of the reverse onus, but the content of his opinion demonstrates that he did not apply it. This is illustrated first by the Lord Ordinary’s reference to the possibility of the first defender having a line of sight to the pursuer not being sufficient ‘to satisfy the test of the balance of probabilities’.”

He continued: “It was not for the pursuer to satisfy the court that the first defender had a line of sight to the pursuer, but for the defenders to demonstrate that he did not. Since the first defender did not say that his line of sight, to the point at which the pursuer was lying, was impeded in any way, this was an almost impossible task.”

Addressing the Lord Ordinary’s treatment of the first defender’s evidence, Lord Carloway said: “The picture which the first defender painted was markedly different from that of the taxi driver. The contrast ought to have been analysed and clear findings made.”

He continued: “The first defender said that he had not seen anything on the road before feeling a bump. The Lord Ordinary did expressly accept the first defender’s testimony on this point. If it is correct, it is difficult to see how the first defender could not be at fault if, on his own account: (a) he had an unimpeded view along the off-side of the taxi; and/or (b) the taxi had pulled into the roadside in advance of the junction.”

Lord Carloway concluded: “A driver has a duty to take reasonable care for other persons using the highway; even persons who are lying on it in a drunken stupor. Drivers are not entitled to assume that other users of the road will do so with reasonable care. Common experience is that many do not. The erratic behaviour of intoxicated persons in the early hours of the morning in town centres is something which requires to be guarded against.”

In respect of contributory negligence, citing Green v Bannister (2003) as a comparator, Lord Carloway noted: “There, the pursuer had lain down in a drunken state in a cul-de-sac and was run over by a person who was reversing from a parking space. He was found 60% to blame. The pursuer in this case chose a more dangerous location to lie down.”

For these reasons, the appeal was allowed. Having regard to the pursuer’s state of intoxication and his dark clothing, contributory negligence was assessed at 65%.