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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 108
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A1211/03
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OPINION OF LADY
SMITH
in the cause
CHRISTOPHER KING
Pursuer;
against
IAN NEILSON and
CAROL NEILSON the partners in the Firm of KINNEIL COACHES and OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer; McEachran, QC, McDonald; Lefevre Litigation
Second Defenders: Mitchell, QC, Milligan; Ledingham Chalmers
12 July 2006
Introduction
[1] The pursuer,
whose date of birth was 2 September 1982 and is now aged 23 years, played
football with the Linkup Football Club, when he was a child. That club was run by the second defenders. From time to time ,
they organised outings for football team members. One such outing took place on 10 June 1995,
when the pursuer was 12 years old. The
boys were taken to Aberdeen to go
swimming and to visit a leisure centre known as Codonas. They met in Fraserburgh, at the premises used
by the second defenders and were taken to Aberdeen
in a 29 seater minibus supplied and driven by an employee of the first
defenders (against whom the action is no longer directed). They returned in the early evening. The pursuer lived in Lonmay, a village south
of Fraserburgh, and the minibus stopped there to drop him off. He was knocked down when crossing the road
after having got off the minibus and sustained injuries. Quantum was agreed at
ฃ300,000.
[2] The case
came before me for proof at which liability was in issue. In the event of liability being established,
it was accepted on behalf of the pursuer that he had been contributorily
negligent.
Background
[3] Much of
the relevant background facts were not a matter of dispute. The following narrative indicates the
background evidence that I accepted and which was relevant to the issues
between parties. As at June 1995, the
pursuer was coming to the end of his first year as a pupil at Fraserburgh
Academy. When at school, he was allowed out at
lunchtime. He crossed roads in Fraserburgh
without supervision. By that stage, he
would not have expected to be supervised crossing the
road. He had previously attended Crimond
Primary School, having lived in Lonmay since he was about 8 years old. Lonmay is a small village situated on and
around the A952 road. It is a road which
is subject to the national speed limit.
There are no speed restrictions in the village. The pursuer's home was and is situated up a
side road but it can be seen clearly from one stretch of the main road.
[4] He
travelled to school in Fraserburgh by bus.
To catch the bus to school, he had to cross the A952 each morning from
the junction between it and the side road where his house was. He did so without adult supervision. Although usually in the company of friends
and/or his sister when crossing the road, there were occasions when he did so
alone. He also regularly travelled to
and from football games and practice and to go swimming with friends, by bus,
which again involved him crossing the A952 road without adult supervision. This practice which was, by the time of the accident , an established part of the pursuer's daily life,
no doubt lay behind his father saying in evidence that he would have been
content if, on the evening of the accident, the pursuer had been dropped off at
the usual bus stop and left to cross the road there.
[5] The
pursuer had been taught the 'Green Cross Code' prior to June 1995 and was
clearly well aware of road safety rules by then. He knew he had to watch out crossing the road,
he knew to look for traffic in both directions when crossing the road and,
regarding crossing the road after getting off a bus, he knew to stop, let the
bus go and then walk across the road; 'you don't walk behind the bus because a
car could be coming the other way', he said.
[6] Sometimes,
the pursuer was given a lift back home to his house after football. Keith Bannerman, one of the adults
supervising the boys on the outing, recollected having driven him home on at
least one occasion. The pursuer's father
remembered him being dropped at home on one or two occasions. On such occasions he had been dropped off by
dormobile or car, but there was no evidence that he had ever been dropped at
the house by a minibus and Mr Bannerman doubted whether it would have been
possible to turn a minibus in the road where the pursuer lived.
[7] The
pursuer had, in the past, been dropped off from football, on the main Aberdeen
road, and walked home from that point. He
had previously been dropped off in Lonmay, on the A957, on the side of the road
that meant he had to cross it to get home, although not at the exact point that
he was dropped off on 10 June 1995.
It was, Mr Bannerman explained, common,
on occasions when they had the boys in a minibus, to drop them off if passing
their houses or road ends. Sometimes the
pursuer's father gave him a lift to/from Fraserburgh for football. The pursuer's father gave evidence that his
usual route from home if travelling to Fraserburgh was to turn left out of his
drive and use the back road rather than drive to the junction with the A957,
near the bus stop. According to Mr
Riley, the pursuer's expert, that back road is a narrow, almost single track
road.
[8] When at Crimond
Primary School, the pursuer had travelled
to school on his bike when taking cycling proficiency classes and that involved
him having to, at one point, cross the main road, with his bike. Again, he had done so without adult
supervision. He was awarded a Cycling
Proficiency Certificate when he was in the Primary 7 class at Crimond. His father, Archibald King, doubted that the
pursuer had crossed the road alone when at primary school but the pursuer
seemed clear that he had done so on those occasions referred to when he had his
bike and his father had, at one point, been away working in Australia whilst
the family stayed on in Lonmay, which could account for his father's ignorance
of the matter. I, accordingly, preferred
the evidence of the pursuer regarding this.
The Events of 10 June
1995
[9] Again,
much of the evidence as to what happened on 10 June 1995 was not in dispute and the following
narrative indicates the evidence that I accepted that was relevant to the
issues in the case. The evidence as to
these events came from David Dunbar (driver of the minibus), Keith Bannerman,
Sandra Milne, Norman McLaren (the three adults supervising the outing), David
Devine (a contemporary of the pursuer's who was also on the outing), and the
pursuer's parents. The pursuer himself
could give no evidence as to what happened due to the amnesia he suffered as a result
of the head injury he sustained in the accident.
[10] The club
members including the pursuer, were collected from the
pick up point at Albert Street
in Fraserburgh (where there was a hall that the club used for football training
with a car park beside it) and driven to Aberdeen
where they went swimming and went to Codonas. They
were accompanied and supervised by Norman McLaren, Keith Bannerman, and Sandra
Milne, who accepted that they were responsible for the safety of the boys on
the outing. They were due to be returned
back to the pick up point at about 6pm.
In the event, they were late leaving Aberdeen,
the reasons for which are not material. Prior
to their departure, having been told to do so by one of the adults in charge,
the pursuer telephoned home to tell his parents that he would be late back. He spoke to his mother and told her that they
would be back in Fraserburgh at about 7pm.
[11] At one
point in the journey, the pursuer asked Norman McLaren if it would be possible
for the minibus to drive through Lonmay so that he could see if his father had
left the house and if he had not, be dropped off there. Then, either the pursuer went forward and
spoke to the driver or one of the organisers did so and the upshot was that the
driver agreed to take the A952 so as to go through Lonmay. The question of who actually asked the driver
to go through Lonmay does not, however, appear to be
material to the case.
[12] The minibus
then took the Lonmay road. It seems
clear that the intention was to allow the pursuer to have a look from the
minibus to see if his father's car was still at the house, which would indicate
that he had not yet left to go to Fraserburgh. If it was, then the pursuer would be dropped off.
[13] The A957
road through Lonmay runs in, broadly speaking, a west/east direction. The minibus was travelling westwards into the
village negotiating a sharp right hand bend as it did so. The bus stop from which the pursuer usually
caught the bus to school was on the nearside of the minibus as it travelled
through the village, opposite the junction with the road on which the pursuer's
house was situated and shortly after that right hand bend. The pursuer's house could not be seen from
that bus stop. There was a sharp left
hand bend almost directly after it and once round that bend, it was possible to
look across a field and see the pursuer's house. Both of the pursuer's parents were outside; his mother was at
the front door and his father had his hand on the door of his car. There was a straight stretch of road after the
bend extending for, it seemed, over 100m.
[14] The pursuer
asked to get off the bus when he saw his father. The bus driver, David Dunbar, indicated that
he could not safely stop there. He drove
on for a short distance and stopped once he was past the bend, on the straight
and beside a grass verge on the left hand side. None of the witnesses were able to be precise
about where the minibus stopped but what was clear was that it stopped beyond
the bend and on the straight, on the right hand side of the area shown in
photograph 3 in 26/5 of process and certainly past the first cone on the left
hand side in photograph 10.
[15] Whilst a
determined effort was made on behalf of the pursuer to present a case that he
was in a hurry when he got off the minibus and that that was something that
should have been obvious to the three supervisors ,
the evidence was not to that effect. David Dunbar's evidence regarding the
pursuer getting off the minibus was that he "just said cheerio" and got off. He had not said anything to him about needing
to get back to catch his father. Thereafter,
as he was pulling away, he saw the pursuer in his mirrors, running back down
the nearside of the road. Keith
Bannerman spoke to the pursuer getting out of the minibus onto the grass verge
and seeing the top of the hood of his jacket as he passed the window beside his
seat which was near the rear of the minibus. He did not think that he was running and he
thought that he probably waved to him as he went past. Sandra Milne saw the pursuer walking down the
side of the minibus and waving to them. Norman McLaren saw him walking along
the side of minibus; he was not running. David Devine remembered the pursuer saying
goodbye to his friends and then walking off the minibus; he also saw him out of
its back
window. He was just normal and not
rushing.
[16] After the
pursuer got off the minibus, it pulled away. Thereafter, the pursuer ran or, as David
Dunbar put it, "shot" across the road. When he did so, there was a car travelling in
the opposite direction, "quite quick", according to David Dunbar's description
of it. David Dunbar called out "that
car's hitting that loon" according to Norman McLaren's recollection and David
Dunbar remembered saying something to that effect, having seen what was
happening in his mirrors. The car did,
indeed, hit the pursuer and he came to rest partly on the road and partly on
the verge on the opposite side of the road from where he began crossing.
[17] The minibus
came to a halt and Norman McLaren and Keith Bannerman got off the minibus and
went back to assist the pursuer. It was
not clear on the evidence just how far back down the road they had to go. David Dunbar spoke to being some 200-300
metres beyond the point of the accident but he was not sure about distances and
it seems probable, from the evidence of Norman McLaren and Keith Bannerman,
that it was less than that, albeit, as it was put by the former it was a "fair
bit" back. In any event, what was plain
was that some clear distance had been put between the minibus and the pursuer
by the time of the accident. I was
readily satisfied that he did not cross from behind the minibus but, rather,
ran across the road after it had pulled away.
Expert Evidence
[18] The pursuer called Mr P J Riley as an
expert witness. He is an accident
investigator who was previously a police officer who spent almost eighteen
years in the traffic division of Staffordshire Police. He had carried out an examination of the locus in August 2001 and taken a video
film of the area both before and after it and in each direction. He had prepared a report, 26/5 of process and
gave evidence under reference to it. Surprisingly, he had allowed himself to be
accompanied by the pursuer's father who apparently pointed out certain matters
to him including where the minibus was at the time the pursuer got off it and
where the pursuer had crossed the road notwithstanding that Mr King was not
present at that time and, more importantly, notwithstanding that he was not
only to be a witness in the case but a witness with a clear interest in the
outcome of the pursuer's case. In
fairness to Mr Riley, he accepted that it would not be normal to do so as
there could be a risk of bias and the situation was not , as he put it "ideal"
but he did not provide any satisfactory explanation as to why it had occurred
in this case .
[19] A problem
arose with Mr Riley's evidence which, it seems, was probably directly caused by
the influence on him of information supplied by Mr King. He proceeded on the basis of an assumption
that the pursuer began to cross the road from the point indicated by Mr King,
before the minibus moved off and that it only moved off once the pursuer had
started to cross the road. As I have
indicated, the evidence was not to that effect. It seems clear both that the pursuer ran down
the verge for some distance (although it is not possible to say how far) and
that by the time he began running across the road, the minibus had pulled away
and was driving away along the straight and it was not possible, on the
evidence, to identify exactly the point at which the pursuer had crossed from. Mr Riley had concluded that the car driver
must have been faced with an emergency situation (and, by inference, not at
fault) at the time but that conclusion must be open to question given the
erroneous assumptions on which it was based.
[20] A further
difficulty was that Mr Riley proceeded on the basis of an assumption that the
pursuer was driven in a 21 seater minibus whereas Mr Dunbar's evidence
unchallenged evidence, which I accepted, was that he was driving a 29 seater
minibus at the relevant time. Any view
he expressed as to the feasibility of the minibus dropping the pursuer at his
house and continuing on along the back road was, accordingly also flawed as
being based on an erroneous assumption.
[21] Further, Mr
Riley's view was based on an assumption that the "child", as he referred to the
pursuer, would have been faced with the prospect of crossing a very busy
section of road. However, there was no
evidence that the road was busy at the time that the pursuer was dropped off. Indeed, the only two vehicles referred to in
evidence at all were the minibus and the car that hit the pursuer. Further, Mr Riley accepted that his own video
did not show many vehicles on the road. He
had not carried out a traffic survey. In
these circumstances, it did not seem to me that he could credibly or reliably
insist on his assertion that the pursuer was dropped off on a very busy section
of road and it was surprising that he sought to do so. I did not accept his evidence to that effect.
[22] Mr Riley
explained that he used to be a driving instructor and gave evidence regarding a
driver's duties to be aware of children and elderly pedestrians. It was well known, he said, that children are
unpredictable.
[23] He was also
critical of the minibus driver's choice of stopping place. He described it as having been stopped on a
wholly unacceptable section of road in terms of actual or potential danger of
other traffic. However, the pursuer now
has no case against the minibus driver and the relevance of that part of his
evidence was not readily apparent.
[24] Mr Riley's
evidence culminated in a conclusion that the accident could have been avoided
by: the minibus continuing to the "the
safety of the predetermined drop off point", the minibus moving off into the
side road where the pursuer's was situated, or adult assistance and guidance
being given to see the pursuer across the road.
There was, however, no evidence that Mr Riley had examined the drop off
point or informed himself as to whether the pursuer would have had to cross any
roads there after being dropped off. Further,
it seemed that Mr Riley's view as to the requisite supervision stemmed from an
opinion that wherever children have to cross busy roads, they should be
supervised by adults. He seemed to go as
far as suggesting that wherever there was a bus stop used by schoolchildren in
the countryside in a position that meant that any of them had to cross the road
for the bus, there should be a crossing patrol. He did not appear to have addressed his mind
to questions of reasonableness or to questions of the age and stage at which children
could and should be trusted to cross the road alone.
[25] The pursuer
did not lead any expert evidence from any person skilled in the care and
supervision of children and young persons.
[26] Expert
evidence for the second defenders was led from John Alexander,
accident investigation specialist. Like
Mr Riley, he was retired from the police, having latterly been an inspector,
and had worked in traffic related matters for the last 26 years of his police
service. He impressed as having been
careful and professional in his examination and report. He had examined the locus on a June date in 2003. He did not, having done so and having recorded
the numbers and times of cars passing over a period of an hour and quarter
between 17.45 and 19.00 (the results of which were unchallenged and I accept)
and having been present at the locus
for almost three hours, conclude that the road could be described as busy. He also said that the relevant bends could not
be described as blind, which appears to be supported by the photographs. Generally, his evidence was supportive of the
likelihood being that the minibus was some significant distance away from the
pursuer when he crossed the road. It
also raised, as a possibility, that the car driver's
actions were open to some criticism.
Further, he had formed the view, having carried out his examinations
that crossing the road at the locus
was not an intrinsically difficult manoeuvre. All that was required was that the pedestrian
check that the road was clear in both directions before doing so.
The Pursuer's Case
on Record
[27] In article
4 of Condescendence, the pursuer avers: the adults supervising the outing knew that he
was in a hurry to get home, did not offer him any assistance to cross the road
and that if they had done, he would have accepted it.
[28] In article
6 of Condescendence, the pursuer avers that his accident was caused through the
fault and negligence of the adult supervisors in that (a) they failed to drop him off at the car park in Fraserburgh as
arranged, (b) they were in breach of a
duty to take reasonable care not to change the arrangements for dropping him
off, (c) that they were in breach of a
duty to take reasonable care not to drop the pursuer on a busy A category road
between two blind bends, (d) that they
were in breach of a duty to take reasonable care not to drop a young passenger
where he required to cross a busy main road, and (e) that they were in breach of a duty to take
reasonable care to assist the pursuer to cross the road.
Submissions for the
Pursuer
[29] By the time
it came to submissions, the pursuer's case was much restricted. It was confined to (i) a case that the second
defenders should not have changed the drop off arrangements unless they had put
in place a safe alternative such as dropping the pursuer off outside his house,
and (ii) they should have given a verbal warning to the pursuer about crossing
the road before he got off the bus. The
latter envisaged, according to senior counsel for the pursuer, the supervising
adults saying something such as "we know you're in a hurry to get to your
father - watch how you cross the road."
He specifically disavowed seeking to present any case that the adults
should have got off the bus and supervised the pursuer crossing the road. The first case was, however
, the pursuer's principal case.
[30] Both cases
were predicated on a proposition that the pursuer would have been anxious to
get off the bus and stop his father making an abortive journey to Fraserburgh
and distracted by that fact and also on the basis that he was hurrying at the
relevant time. It should be inferred, it
was submitted, that the pursuer would have known that his father would take the
back road to Fraserburgh and he would have to catch him before he left. That being so, the duties referred to arose.
[31] Regarding
the fact that the pursuer had no case on record for the second of the above
cases, senior counsel submitted that since this was a case about a road traffic
accident, pleadings were hardly required. The lack of notice of that precise case did
not, accordingly, matter.
Submissions for the
Second Defenders
[32] On behalf
of the second defenders, it was submitted that the pursuer had failed to
establish the allegations of fault that remained. An objection to the verbal warning case that
had been made at the appropriate time during the evidence was maintained. It was, it was submitted, clear on the
evidence led that the accident was caused through the fault of the pursuer and
not through any fault on the part of the supervisors. He was 12 years and 9 months old at the time. He ran into the road and into the path of a
car being driven towards him. He had
clearly failed to keep a proper lookout and failed to take reasonable care for
his own safety. He had full and
appropriate knowledge of road safety and was experienced in crossing the road
alone. There was an unanswered question
as to whether the car driver could have done anything to avoid the
accident. There was nothing
intrinsically dangerous about the point at which the pursuer crossed. The evidence was not to the effect that the
pursuer was in a hurry at the relevant time and there was none from which it
could or should be inferred that the supervisors should have thought that he
was. Regarding the suggestion that the
pursuer should have been dropped off in Fraserburgh, it was submitted that the
duty did not arise; there was no causal link between it and the accident other
than a causa causans link which was
not actionable. Changing the arrangement
did not , of itself make it an unsafe one. Decree of absolvitor should be granted.
Discussion
[33] As noted
above, the pursuer's case had narrowed considerably by the end of the proof. I will deal separately with each aspect of it.
Verbal warning
[34] I am
satisfied that the second defenders' objection should be sustained. This was not a case of which notice had been
given on record and Mr McEachran appeared to accept that that was so. To approach matters on the basis that this was
a road traffic case and not much by way of pleading is needed in such a litigation will not do. That is because, firstly, whilst this was a
case about a road traffic accident, the case against these defenders was not
concerned with the duties of road users but with the duties of persons
responsible for supervising other people's children, a matter involving
complexities that do not arise in litigations about road traffic accidents. Secondly, the warning case was quite different
from anything of which notice had been given on record. Neither Keith Bannerman nor Sandra Milne had
been asked any questions about whether warnings were or should have been given
to the pursuer. The pursuer had not been
asked what he would have done if he had been given such a warning, something
which he may have been able to comment on as a generality even although he had
no memory of the accident. Mr Riley, the
pursuer's expert, had not referred to any such case. It was not until towards the end of the cross
examination of Norman McLaren, who was called as a witness for the second defenders
and was the last witness at the proof, that an attempt was made to raise the
issue in a question. That was the first
notice that they had that the pursuer sought to make such a case against them in
respect of an accident eleven years ago.
In these circumstances, even if the case had been potentially relevant
(which I seriously doubt, given the lack of evidence as to what difference such
a warning would have made), it would be quite inappropriate to entertain it.
Change of drop off point
[35] The second defenders were,
at the relevant time, in loco parentis,
and owed to the pursuer a duty to take reasonable care of him for his safety
and wellbeing. The duty is clear and
well known and it was not in dispute between the parties that it existed. The duty is, though, a duty to take reasonable care and an element of
judgment is inevitably involved in the course of its fulfilment. The question that arises is what is it that,
in the circumstances, the supervisors required to do, to fulfil that duty when
the pursuer asked to be dropped off in Lonmay? Should they have refused, and insisted that he
be taken on to the drop off point in Fraserburgh? Was there any basis on which a duty to do so
arose, on the evidence in the case?
[36] This case
was predicated on the basis that the drop off point in Fraserburgh would have
been safe but the place that the pursuer was dropped off was not. There seemed to be two elements to the latter
aspect. The first was that the road was
inherently dangerous at the point that the pursuer crossed. The second was that there were special
circumstances in that the supervisors knew or ought to have known that the
pursuer was or would be rushing to get back to stop his father leaving. That, in turn, would seem to involve saying
that they should have
anticipated that if the pursuer's request to be dropped off was acceded to then
he would not take reasonable care crossing the road.
[37] The first
problem for the pursuer as regards the above propositions is that no evidence
was led as to the place where the bus would have dropped him off in Fraserburgh
and where he would have to go to meet his father from that point. Would an unsupervised road crossing have been
involved there as well?
[38] Secondly, I
am readily satisfied on the evidence that the pursuer has failed to prove that
the point at which the pursuer was dropped off in Lonmay was at a dangerous
stretch of the road. I refer to Mr
Alexander's evidence and my acceptance of it , in that
regard. Further, there was no evidence
to suggest that the supervisors knew or should have anticipated that the
pursuer was going to cross the road at the point that he did, rather than going
back to his usual crossing point opposite the side road where he lived, the
place where his father would have been quite content for him to cross that
evening. If the parent would have been
content for him to cross the road unsupervised there, it readily follows that
those in loco parentis could be regarded
as having done what could reasonably have been expected of them if he had gone
to cross the road there. The most
important point though is that, on the evidence, the stretch of the road where
he was dropped was not intrinsically dangerous and the pursuer would, had he
thought to make proper use of it, have had a clear view in both directions
prior to crossing.
[39] Regarding
the part of the case to the effect that the supervisors should have foreseen
that the pursuer would be distracted because of his desire to get back to his
father, I readily conclude that it does not get off the ground since there was
no evidence to the effect that he was rushing or hurrying to do so. The pursuer's case really came to be that the
supervisors should have speculated that he might do so and therefore not to
take the chance of letting him cross the road in Lonmay. I have no hesitation in dismissing it as
unstateable. It comes very close to
suggesting that those responsible for boys who are almost thirteen years of
age, including their parents (given that the relevant duty is for a supervisor
of such a boy to act as would a reasonable parent) should not let them cross an
open road in any circumstances where they might be distracted notwithstanding
that that boy is in the habit of crossing roads alone and unsupervised by any
adult, has had appropriate training in road safety and has said or done nothing
at the relevant time to put them on notice that there is such a risk. It is tantamount to requiring of such a supervisor
a degree and habit of foresight of the likelihood of injury that verges on
paranoia.
[40] In these
circumstances, it is not necessary for me to consider whether the supervisors
should have decided to drop the pursuer outside his house, a matter which gave
rise to the question of whether the minibus could reasonably have done so. However, for completeness, I would add that,
on the evidence, I would not have concluded that it could or should. No minibus had done so before, there was
evidence that it would been very difficult for it to turn round in the road
there and I am not satisfied on Mr Riley's evidence, the only witness who spoke
to it, that it would have been feasible for the minibus to carry on along the
back road, for the reasons already stated.
[41] The
accident in this case was, on the evidence, caused through the fault of the
pursuer who ran across the road and into the pathway of an oncoming car. I cannot comment on the part played by the car
driver, if any, as the evidence did not point either to fault on his part or to
exoneration of him. He did not give
evidence. As I have indicated, the
pursuer gave evidence. He gave the clear impression of being delightful and
responsible young man who seems to have worked hard at coping with his residual
injuries which are clearly of some significance. The accident and its sequelae are clearly regrettable and I note that had liability been
established, the agreed damages would have been significant. I cannot, however, in all the circumstances,
find that the second defenders were at fault and I will, accordingly, sustain
their third, fourth and fifth pleas-in-aw and assoilzie them from the conclusions.
