Scotland: Extent of reverse onus of proof confirmed in careless driving claim

The Court of Session Inner House has granted a pursuer’s appeal as the Lord Ordinary had failed to apply the reverse onus of proof given the circumstances of the claim.

Cameron v Swan [2021] CSIH 30

Prior to the claim for damages, the first defender had pled guilty to careless driving after running over a drunk individual lying down unseen in the middle of the road. The first defender had been driving in the course of his employment for the second defender and had been overtaking another vehicle at the time of the collision. However, the pursuer’s claim against the driver had failed at first instance, as the defenders had “rebutted the onus upon them to disprove the libel of the criminal charge.”

Lord Carloway, delivering the opinion of the Court, ruled the Lord Ordinary failed to apply the reverse onus of proof to the defender’s negligent driving as a whole rather than at a specific location.

A full copy of the judgment can be found here.

Background

The first defender was making bakery deliveries around 5am one morning in April 2016. At one point he was following behind a taxi who pulled over, which the defender assumed was in order to allow him to overtake. However, the taxi had pulled over in response to an unmoving figure lying in the middle of the lane before him. The defender drove around and past the taxi, straddling the central reservation, running over the sleeping pursuer.

The taxi driver said the first defender had been driving “a bit closer than I would like without tailgating” whereas the defender denied following the taxi too closely and asserted that he had been “keeping a proper lookout”.

Due to inconsistencies between both of their testimonies, as well as the lack of knowledge as to how far back the first defender was behind the taxi, it was unclear to the court how visible the pursuer would have been to the first defender.

The court heard evidence from the two main witnesses and several experts: a psychologist, two PCs, a road traffic incident consultant and a road traffic investigator.

The Lord Ordinary ruled that the claim failed on the basis that the defender was far enough away from the taxi driver to manoeuvre around the vehicle. It was concluded that “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”.

Relying on the psychologist expert’s evidence of the defender’s potential line of sight, the Lord Ordinary determined that:

“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 … it was impossible to determine if at any point time there was as a matter of fact a sightline available to the driver of the van to the pursuer lying on the roadway.”

The pursuer appealed the judgment on the grounds that:

1. The reverse onus of proof was flawed; the charge in fact focused on the quality of the defender’s driving rather than the driving at the location of the incident.
2. The Lord Ordinary had made material errors of fact; failed to record and to consider relevant evidence; and set out evidence which had not been led at the proof.

Judgment

The appeal was allowed. The Court held that the “the accident was caused by the fault and negligence of the first defender and that the second defenders are vicariously liable therefor.”

Through a misunderstanding of evidence and failure to consider relevant witness evidence, the Lord Ordinary had “reached a conclusion which cannot reasonably be explained or justified”.

There had been a failure to pay enough attention to the guilty plea and account coming from the first defender himself. “The tendering of a plea of guilty… amounted to a clear and unequivocal judicial admission that his negligence had been the cause of the injuries to the pursuer.”

Lord Carloway found that “the locus of the libel was the place at which the pursuer was injured. It is wide enough to encompass the nature of the first defender's driving as he approached that point”. Driving too close to the taxi “was one aspect falling within the general libel of driving without due care and attention and failing to notice the pursuer”.

Driving so close behind another vehicle in the early hours of the morning, in an area of town and at a time when drunk pedestrians may be using the road was not reasonable behaviour when such hazards might be harder to spot and therefore need more time to react to. To that end, “drivers are not entitled to assume that other users of the road will do so with reasonable care”.

Lord Carloway criticised the lack of comparison between the two key witness’ accounts as well as the lack of consideration for the defender’s driving behaviour while following the taxi as part of his duty of care as a driver.

Concluding, Lord Carloway discussed the issue contributory negligence, which had not been addressed previously by the Lord Ordinary. The Court apportioned 65% fault to the pursuer and 35% to the defenders, as there was “no difficulty in holding that the greater fault lay with the pursuer”.

What can we learn?

• Facing a reverse onus of proof remains “an uphill task”, the court will address inconsistencies in key witness testimonies and require defenders to provide for missing information.
• The duty of care of a driver is broad and involves their driving behaviour before an incident. Drivers must consider the circumstances and location in anticipating unreasonable behaviour from others as part of their duty to drive with due care and attention.
• Ultimately, whilst drivers do owe a duty of care to those who can be reasonably anticipated to misuse public highways, the nature of unreasonable behaviour will be prominent in deciding contributory negligence. The Court considered the decision of Green v Bannister as a comparator to these circumstances. In Green, a pursuer who had been run over by a person reversing from a parking in a cul de sac was 60% responsible for their misfortune. In this instance, the pursuer was held to have chosen a more dangerous location to lie down.