Careless Driving - Court of Sessions Examines Reverse Onus of Proof
08/08/2021
In Cameron v Swan [2021] 6 WLUK 131, a civil case following a guilty plea of careless driving, the Court of Sessions held that in cases where the onus of proving they were not negligent shifts to the Defender, they will need to provide strong, consistent evidence to persuade the Court that they were not in fact negligent. In this case, the first Defender, D1, had not achieved this, therefore, he was held to be liable for negligence. However, the Pursuer, P, was found to be substantially contributorily negligent.
Background to the decision
In the early hours of the morning, P, who was intoxicated, lay down in the middle of a street. D1 was a delivery driver and at the time of the accident had been driving behind a taxi and, after the taxi pulled to the nearside of the carriageway, he had continued driving and had driven over P.
D1 was charged with dangerous driving and pled guilty to the lesser charge of careless driving. He stated that his wife was hysterical at the thought of him going to prison, although this claim was not substantiated by any further evidence. As D1 had pled guilty in a Criminal Court, section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 applied in the civil claim1, reversing the onus of proof. It was up to D1 to prove on the balance of probabilities that he had not driven negligently.
The Lord Ordinary found against P. This decision was based on expert evidence from a psychologist specialising in visual perception and situation awareness. The expert report concluded that it was impossible to establish whether D1 was ever able to see P lying on the road, a) due to the fact the taxi was in front of him, and b) because P was lying down and blending into the road, which also resulted in a delay in D1’s perception response time.
Inner House of the Court of Session decision
On appeal, the Court found that the Lord Ordinary had failed to deal with the important matter of why D1 had pled guilty to the lesser charge of careless driving. This amounted to an unequivocal judicial admission that his negligence had been the cause of P’s injuries. The Lord Ordinary had failed to consider D1’s admission and he had not explained what weight he attached to it as an important piece of evidence.
The Court also found the Lord Ordinary had overcomplicated what should be a simple question of should D1 have seen the danger and taken steps to avoid it? It was concluded that it was reasonably foreseeable that intoxicated persons would be on an urban street.
“On the evidence before him, the first defender had (as he himself accepted) an unimpeded view along the off-side of the taxi as he approached the locus where the pursuer was lying. He failed to see him as he lay on the road. That is prima facie evidence that he failed to keep a good lookout. 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. Coming across the intoxicated, whether vertical or horizontal, in the middle of an urban street is something which can and does happen.”
The Court of Sessions ruled that D1’s negligence had caused the accident and his employer was vicariously liable. However, unsurprisingly, there was a finding of contributory negligence by P of 65%.
Comment
This case is a good reminder that negligence cases should not be over-complicated – a judge only has to consider what a driver of ordinary care and skill would do. Furthermore, if the onus of proof is reversed via section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, it should be relatively hard for the Defender to disprove negligence and the presiding judge must consider all relevant evidence, especially any admission of guilt in the Criminal Court.
1 D1’s employer was attached to the civil claim as P argued that it was vicariously liable for D1’s negligence.
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