Little v Glen & Ors [2014] ScotCS CSIH_99 (21 November 2014) EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 99
PD2874/10
Lady Paton
Lord Bracadale
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY PATON
in the reclaiming motion
by
RICHARD LITTLE
Pursuer and Reclaimer;
against
IAN GLEN AND OTHERS
Defenders and Respondents:
Act: Di Rollo QC, Moll; Digby Brown LLP
Alt: A Smith QC, Smart; Ledingham Chalmers
21 November 2014
Road traffic accident
[1] On 12 April 2008, the pursuer was seriously injured in a road traffic accident. He was then aged 23. He had been out drinking with friends. He was returning home from Paisley in the early hours of the morning, and was walking along the B774 road to Barrhead. At that point, the B774 was a winding country road, dark and without streetlights or pavements. As the pursuer walked south on the road, he was hit by a north-bound taxi driven by the first defender. The first defender was not subsequently charged with a driving offence.
[2] The pursuer raised an action of damages for personal injuries. A proof on liability took place. By interlocutor dated 17 September 2013, Lord Jones assoilzied the defenders. The pursuer reclaimed. Transcripts of certain parts of the evidence were provided in appendices.
Facts found proved by the Lord Ordinary
[3] The Lord Ordinary’s opinion dated 17 September 2013 sets out details of the evidence. The pursuer remembered nothing about the accident, and did not give evidence. The Lord Ordinary heard evidence from the first defender, road traffic accident investigators (Dr Searle and Dr Coley), a reader in psychology (Dr Edgar), and others including police officers, friends in whose company the pursuer had been, and a driver who regularly used the B774.
[4] There were many issues in dispute during the proof, such as the question whether the first defender’s speed was excessive in the circumstances, whether his headlights should have been on main beam, whether and when the first defender first became aware of the pursuer, whether footprints found on the road were the pursuer’s, and whether the pursuer had emerged from the first defender’s off-side or near-side. Those matters are now no longer in dispute: the Lord Ordinary concluded (and his conclusions on those matters are not challenged) that the first defender’s speed was not excessive, that his dipped headlights could not be criticised, that the first defender became aware of the pursuer some 40 to 50 metres away from him, that the footprints on the road were the pursuer’s, and that the pursuer had emerged from the first defender’s off-side. The question raised in this reclaiming motion is whether the Lord Ordinary erred in failing to find that the first defender was negligent in that he did not brake as soon as he became aware of the pursuer.
[5] In that context, the first defender, when giving evidence, said (in contrast to a statement which he had given to the police shortly after the accident) that he had not been aware of the pursuer’s presence until his windscreen smashed. His evidence on that matter was ultimately not accepted by the Lord Ordinary (paragraph [143] of the opinion). However as the first defender had adopted that position in evidence, he (a) stated in examination-in-chief (App vol 1 tab 1 page 15) that he had braked “as soon as the windscreen smashed” – in other words, at the time of contact with the pursuer; and (b) was not asked in cross-examination why he had not immediately braked as soon as he was aware of the pursuer. The Lord Ordinary notes at paragraph [157]:
“… there was no evidence, nor was there any submission by Mr Di Rollo, to the effect that the first defender was at fault for having swerved in an attempt to avoid the pursuer, rather than brake.”
Senior counsel for the pursuer did not accept that summation, and submitted that there had been relevant evidence and a submission (reflected in the Lord Ordinary’s observations in paragraph [154] of the opinion) that the first defender should have braked.
[6] Most of the Lord Ordinary’s findings-in-fact are contained in the Discussion section of the opinion, although some are found elsewhere (see paragraphs [75], [134] et seq of the opinion). In particular the Lord Ordinary found the following facts proved:
•The pursuer was very drunk, and had been vomiting prior to the accident:paragraphs [1], [78] and [118].
•The pursuer’s footprints and other circumstantial evidence established that he had been walking southwards on the B774, initially on the south-bound carriageway, but just before the accident had moved south-south-west into the north-bound carriageway, thus moving from the first defender’s offside towards his nearside into the path of his taxi
aragraphs [139], [142], [146], and [153].
•The first defender was driving northwards on the north-bound carriageway, with dipped headlights, at a speed of about 40 miles per hour:paragraphs [78], [79], [145] and [152].
•The speed limit at that point in the road was 60 miles per hour:paragraph [34].
•The weather was dry;there was no street lighting but (apart from darkness) visibility was good:paragraph [78].
•The road surface was recorded as “wet/damp”:paragraph [148].
•The first defender first became aware of the pursuer when the latter was about 40 to 50 metres away from his taxi
aragraph [153].
•At a speed of 40 miles per hour, and a distance of 40 to 50 metres, the first defender had 2 to 3 seconds within which to do something before colliding with the pursuer:paragraph [153].(In this context, senior counsel for the pursuer submitted that Dr Searle had given evidence that if the first defender had braked immediately, he could have brought his taxi to a halt “just in time to avoid the collision”, or could at least have reduced his speed substantially before making contact with the pursuer:paragraph [155] of the Lord Ordinary’s opinion and Dr Searle’s evidence (App vol 1 tab 3 pages 120, 128, and 132-135).By contrast, senior counsel for the defenders contended that Dr Searle had given evidence (App vol 1 tab 3 page 131) that the emergency braking stopping distance would be “45 to 54 metres”.Thus the first defender might not have been able to stop without colliding with the pursuer.Further it was not accepted that there was reliable evidence that collision at a lower speed would result in lesser injury.On these matters, the Lord Ordinary appears to have made no formal findings-in-fact.)
•The first defender tried to avoid the pursuer by steering to the right (i.e. to his off-side), eventually coming to a halt facing north (i.e. in the wrong direction) in the south-bound carriageway:paragraph [146].
•When steering to the right, the nearside of the first defender’s taxi hit the pursuer, causing injury:paragraphs [146] and [155].
•The point of impact was 1.4 metres west of the centre line of the road, in the north-bound carriageway:paragraph [146]
[7] The Lord Ordinary found in fact and law that it could not be said that the first defender “ought reasonably to have foreseen that, in the circumstances that prevailed, a pedestrian would choose to cross from his offside and walk into the path of his car. The circumstances [being]: the road was straight; visibility was good; and a pedestrian standing at or about the point of impact could see the first defender’s car approaching from a distance of ‘just under about 200 metres’”: paragraph [138]. The Lord Ordinary also found in fact and law that the first defender could not “reasonably have expected a pedestrian to travel from his offside into the path of his car” (paragraph [153]), and that he could not be expected “to be on the lookout for a pedestrian coming from the offside into the path of his car” (paragraph [172]).
Grounds of appeal
[8] The grounds of appeal are as follows:
1. The determination by the Lord Ordinary that the first defender was not negligent is inconsistent with the evidence accepted by him. In particular it is inconsistent with [certain findings-in-fact concerning the first defender’s speed, his dipped headlights, his awareness of the pursuer at a distance of about 40-50 metres, and the lack of braking]. It was submitted … that the first defender failed to keep a proper lookout. It was also submitted that the first defender ought to have braked. On the evidence accepted by the Lord Ordinary, he ought to have so held.
2. In reaching his decision the Lord Ordinary failed to take into account, make a determination concerning or reject the unchallenged evidence that on dipped beam the first defender should have seen the pursuer and could have stopped in time to avoid the collision or in any event achieved a high level of speed reduction before striking the pursuer.
3. The Lord Ordinary failed to take into account, make a determination concerning or reject the evidence that, at the moment of collision, the pursuer was upright and either stationary or travelling very slowly.
4. The Lord Ordinary’s use of words and phrases such as ‘instant’ and ‘right in front of’ when describing the first defender’s awareness of the pursuer are inconsistent with his finding that the pursuer was at least 40-50 metres away and the first defender was travelling at 40 mph when he first saw the pursuer.
5. The Lord Ordinary erred in fact and law in determining that [the first defender] ought not reasonably to have foreseen the presence of pedestrians on the Caplethill Road at the time of the collision. In particular he failed to take into consideration the credible and reliable evidence (accepted by him) of Peter Gibson and Lesley McCall. He further failed to take into consideration that there were bus stops on either side of the road or that Dr Coley [a road traffic expert] had encountered a pedestrian during the hours of darkness on Caplethill Road. Further he failed to consider the foreseeability of potential hazards apart from pedestrians.
6. The Lord Ordinary was wrong to find as well-founded the objection to that part of Dr Searle’s report in which it suggested that the footprints found by Constable Rankine were left by the pursuer. Constable Rankine (who is also a road traffic reconstruction expert) put forward the same proposition. The criticism of Dr Searle that he took on the role of advocate and abandoned the role of expert is unfair as well as unnecessary. The only parts of Dr Searle’s evidence rejected by the Lord Ordinary were his opinion that the first defender should have been using full beam and the specific support taken from the ‘Mortimer’ paper relative to the range given by full beam.
The sixth ground of appeal was no longer insisted upon once this court indicated its view that the Lord Ordinary had not, in paragraph [136] of his opinion, formally sustained the objection to Dr Searle’s evidence about the footprints found on the road, but had merely advocated caution when dealing with Dr Searle’s evidence. In fact the Lord Ordinary fully accepted the evidence of Constable Rankine (and thus indirectly that of Dr Searle) on the question of the footprints, and held that the footprints were those of the pursuer: paragraphs [139], [141] and [142] of the opinion.
Submissions for the pursuer
[9] At the outset, senior counsel confirmed that it was the pursuer’s position that the Lord Ordinary had erred in law in the sense outlined in paragraphs [62] to [67] of Henderson v Foxworth Investments Ltd 2014 SLT 775; [2014] 1 WLR 2600. He invited the court to recall the Lord Ordinary’s interlocutor of 17 September 2013 and to find the defenders jointly and severally liable to make reparation to the pursuer. He presented his submissions in several sections.
1. Introduction
[10] The Lord Ordinary held that it was not negligent for the first defender to be driving with his headlights dipped. That finding was not challenged. The essence of the reclaiming motion was:
•As the Lord Ordinary accepted that the use of dipped beam was not negligent, and the speed was not excessive (paragraph [157]), it followed that the Lord Ordinary accepted that the first defender was driving “within the limits of his lights” – in other words, that the first defender could “stop well within the distance ahead that he could see to be clear” (paragraph [157]).
•The Lord Ordinary accepted that the first defender saw the pursuer as he reached “the first white direction arrow” painted on the roadway (paragraph [145])i.e. a distance of around 50 metres from the point of impact (paragraphs [145] and [153]).
•Given those findings, the Lord Ordinary should have found the first defender liable, because the first defender had seen the pursuer from that distance, but had not braked to a stop.
[11] A further criticism was that the Lord Ordinary had not dealt with the issue of contributory negligence. As there was no cross-appeal on contributory negligence, the pursuer’s motion was simply to find the defenders jointly and severally liable.
2. Pleadings
[12] Senior counsel referred to the pleadings, crucial passages being pages 6D-E and 10A-B, which were in the following terms:
“Condescendence 4: … Had the first defender been paying adequate attention he would have seen the pursuer, even with dipped headlights, and had sufficient time to bring his vehicle to a halt. The first defender did not apply his brakes prior to impact …
Answer 4: … Suddenly, the pursuer appeared in the defender’s field of view then collided almost immediately with the nearside front of the car. The first defender could not take any avoiding action …”
Counsel emphasised the last averment, which was in direct contrast to the first defender’s police statement, quoted in paragraph [13] below.
3. Evidence
[13] The evidence was largely reconstruction evidence based upon inter alia footprints left at the scene; damage to the car; the pursuer’s injuries; and various items found on the roadway. The one eye-witness able to give evidence was the first defender. His evidence was accepted only in part. In particular, the court accepted what the first defender had said to a police officer immediately after the accident, and largely rejected what he said in the witness box during the proof (namely that he had not seen anything before his windscreen smashed). The police statement was set out in paragraphs [13] and [144] of the Lord Ordinary’s opinion, and included the following passage:
“As I passed through the national speed sign I accelerated to 40-50 mph as I was driving towards the first left hand bend on Caplethill Road. I was going uphill. As I reached the first white direction arrow painted on the road, a man appeared on the road. It was instant. I think he appeared from my nearside. He looked as if he was walking towards Barrhead. I didn’t see him until he was right in front of me. I think he was close to the nearside of the car. I didn’t have full beam on. I tried to move my car out of the way. The next thing I had hit him. There was glass all in my car. The windscreen was smashed in. By the time I stopped, I was in the opposite carriageway. I got out and went straight to the male. He was lying across the centre lines.”
[14] Senior counsel drew attention to nine pieces of evidence:
(i) The point of impact was 1.4 metres west of the central line of the carriageway, and the trail of footprints was in a roughly southerly direction, crossing the central line.
(ii) The pursuer was heavily intoxicated. Dr Searle had given evidence that an intoxicated person would walk more slowly than someone who was not intoxicated.
(iii) The pursuer was either stationary, or moving very slowly, and was probably in an upright position (Dr Searle App vol 2 tab 4 pages 162-3).
(iv) There was no braking before impact (as the first defender himself averred in his pleadings; and in Dr Searle’s evidence App vol 1 tab 3 page 77).
(v) The taxi was being driven at 40 miles per hour, as the Lord Ordinary accepted in paragraph [145] of his opinion.
(vi) The Highway Code provided guidance about speeds and braking distances. The B774 road had been damp at the time of the accident.
(vii) The first direction arrow referred to in the first defender’s statement to the police was 53 metres from the corresponding point of the next direction arrow (Dr Searle’s evidence App vol 1 tab 3 page 108). Dr Searle also gave evidence that the distance between the tip of the first arrow and the base of the second arrow was about 46.4 metres.
(viii) On the basis of Dr Searle’s unchallenged evidence, assuming a speed of 40 miles per hour and dipped headlights, there had been sufficient time for the first defender to stop within the distance he could see to be clear in his headlights. Allowing a thinking-distance of 1 to 1.5 seconds, and actual braking at 25 metres, Dr Searle’s evidence was that it was possible (“just”: App vol 1 tab 3 page 128) for a car driven at 40 miles per hour to come to a stop before colliding with the pursuer, or at least to be travelling at a reduced speed such as to make serious injury on impact very unlikely (App vol 1 tab 3 pages 134-5).
(ix) The Lord Ordinary had found that the first defender was “aware” of the pursuer at a distance of some 40 to 50 metres, i.e. the first defender not only “saw” the pursuer, but had consciously processed that information. Thus the evidence of the defenders’ psychologist Dr Edgar about whether or not the first defender had been “consciously aware” did not have any significant bearing in the reclaiming motion.
4. The Lord Ordinary’s opinion
[15] Senior counsel submitted that the Lord Ordinary did not deal with an important point, namely, given what the first defender could see, should he have brought his vehicle to a stop, or close to a stop, before colliding with the pursuer. That did not feature either in the issues focused in paragraph [8] or in the Discussion section. Senior counsel drew attention to parts of the Discussion section and made submissions, including the following:
Reasonable care: There had been evidence from witnesses such as Peter Gibson and Lesley McCall that pedestrians could be expected to use that stretch of road at night: paragraph [88] of the opinion. Also Drs Searle and Coley noted two bus-stops close to the scene of the accident, which provided another reason to expect pedestrians. The Lord Ordinary was therefore wrong to draw the conclusions set out in paragraph [138], [153], and [172] of his opinion (set out in paragraph [7] above).
Circumstances of the accident: The Lord Ordinary had considered the evidence, and had concluded at paragraph [153]:
“Working back from the moment of the collision, the first defender became aware of the pursuer walking there when the latter was about 40 to 50 metres away from the car.”
Standing that finding, phrases used by the Lord Ordinary (such as “it was instant” in paragraph [145], and “the first defender did not become aware of the pursuer until the latter was right in front of him” in paragraph [146]) were inconsistent with that finding, and also with the finding that the first defender had tried to move his car out of the way.
The pursuer’s contention was that, as the Lord Ordinary had found that the first defender had seen the pursuer some 40 to 50 metres ahead, and was able to say where he saw him, what he was doing, and what direction he was walking in when seen, the Lord Ordinary should have found that it was negligent of the first defender not to have applied his brakes and stopped within that distance.
5. The grounds of appeal and notes of argument
[16] Senior counsel submitted that it was foreseeable that a pedestrian might emerge from the first defender’s offside. The first defender had been consciously aware of the pursuer from a distance of 40 to 50 metres, i.e. at a distance that permitted him to stop in time. Accordingly as a matter of law it was negligent of him to have failed to have stopped in time. If he had attempted to brake, he would in all probability have succeeded in stopping without hitting the pursuer, or at least would have reduced his speed to such an extent that it was unlikely that any serious injury would occur. It was appreciated that what a reasonable person would do in the circumstances was fact-sensitive: but ultimately it was a question of law whether, on the facts found, a driver exercising reasonable care should stop, or at least attempt to stop. Just because an event was unexpected did not absolve the driver of the responsibility to expect the unexpected. In any event, Dr Searle had factored in a reaction time, and his stopping distance took into account the fact that a pedestrian was unexpected (App vol 2 tab 4 pages 148-9).
[17] The Lord Ordinary’s findings-in-fact were not challenged. What was challenged was the fact that the proper question had not been put. The question was: given that the pedestrian had been seen from that distance, ought the driver to have braked? In Henderson v Foxworth Investments Ltd cit sup the Lord Ordinary appeared to have asked himself the right question, and the Supreme Court held that, notwithstanding cogent criticisms, he was entitled to answer as he did. But if the relevant question was not put or answered, then the judgment could be opened up. As the Lord Ordinary had not posed the appropriate question in the present case, the ratio in Henderson v Foxworth Investments Ltd cit sup did not apply. Nor did the long-established authorities Thomas v Thomas 1947 SC (HL) 45, Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, or the more recent authority McGraddie v McGraddie 2014 SC (UKSC) 12, [2013] 1 WLR 2477. The submission for the pursuer was that it was negligent on the part of the driver to fail to attempt to brake. There had been a demonstrable failure on the part of the Lord Ordinary to consider the relevant evidence in the context of the right question. The appeal court could not therefore be satisfied that the Lord Ordinary’s decision could be “explained or justified” (Henderson v Foxworth Investments Ltd). The Inner House was therefore entitled to pose the question and to answer the question for itself, on the basis of the material before it. Reference was made to two cases which illustrated the pursuer’s point (albeit they turned on their own facts) namely Morrison v Laidlaw 1994 SLT 359 and McNab v Bluebird Buses Ltd 2007 Rep L R 36 paragraph 10. It was accepted that the circumstances in Eagle v Chambers [2004] RTR 9 were not entirely the same as the circumstances in the present case.
[18] In conclusion, the court was invited to recall the interlocutor of 17 September 2013, and to find the defenders jointly and severally liable to make reparation to the pursuer.
Submissions for the defenders
[19] Senior counsel invited the court to refuse the reclaiming motion. At the outset it was accepted that the Lord Ordinary had not dealt with contributory negligence. If this court were to decide against the defenders, counsel moved the court to remit the case back to the Lord Ordinary to consider that issue. But the defenders’ primary position was that the court should adhere to the Lord Ordinary’s interlocutor. The Lord Ordinary had not erred in the sense referred to in Thomas v Thomas, Thomson v Kvaerner Govan Ltd, Piglowska v Piglowski [1999] 1 WLR 1360, Howsen v Nickoleisen [2002] 2 SCR 235 paragraphs 1-3, 11-14, 29-30, and 36, McGraddie v McGraddie, and Henderson v Foxworth Investments Ltd. A narrow textual analysis was not appropriate. The Lord Ordinary had addressed the correct question, namely whether the first defender exercised reasonable care. The stopping distances referred to in the Highway Code and by expert witnesses provided some guidance: but the Lord Ordinary had to take all the circumstances of the case into account. In any event, Dr Searle had given evidence (App vol 1 tab 3 page 131) that someone driving at 40 miles per hour would have a stopping distance of between 45 and 54 metres. Accordingly contrary to the pursuer’s contention, Dr Searle himself had given evidence that reasonable braking in the emergency might well have resulted in collision with the pursuer. A reasonable driver on the B774 that night would not expect a man to be on the road, and in particular not one who was drunk and incapable. Even if a reasonable driver thought that he might come across such a pedestrian, he would not expect the pedestrian to move into the path of an approaching vehicle. The reference to “instant” could be reconciled with the other evidence. The Lord Ordinary had eventually concluded that the accident was not one which could have been avoided with the exercise of reasonable care. The pursuer had failed to prove that the first defender knew or ought to have known that there was a risk that an adult such as the pursuer would cross in front of his vehicle (contrast with the circumstances in Jackson v Murray 2013 SLT 153). For the pursuer to succeed in his reclaiming motion, he would have to persuade the court that there was no basis in the evidence for the Lord Ordinary to find that the first defender was not at fault, and that the only conclusion open to the Lord Ordinary was that the first defender had been negligent: but if the court took the view that it was open to the Lord Ordinary to reach the view he did, that was the end of the reclaiming motion.
Final reply for the pursuer
[20] Senior counsel submitted that there was no authority for remitting back to the Lord Ordinary on the question of contributory negligence. The Lord Ordinary should have given a view on contributory negligence (cf Hogan v Highland Regional Council 1995 SC 1). If the Inner House felt able to deal with contributory negligence without the existence of a cross-appeal, the matter should be put out for a hearing by order to allow counsel to make submissions.
Discussion
[21] The central issue in this case was whether the first defender took reasonable care when driving on the B774 on the night of 12 April 2008, or whether he failed in his duties of reasonable care as a driver. That issue required the Lord Ordinary to consider and assess a variety of factual matters, including the nature of the road and its surroundings, the lighting, the general environment, the weather and road conditions, the speed limit, the traffic (both vehicular and pedestrian), the car’s headlights (dipped or main beam), the speed of the car, the estimated stopping distance of the car, the movements of the pedestrian just before the collision, and the expectedness or unexpectedness of the pedestrian’s appearance and movements. A test-trialled capability to bring a car travelling at a certain speed to a halt within a particular distance is certainly one of the factors which a Lord Ordinary, faced with such a case, should take into account: but it is only one of many factors, others being as outlined above. Thus we are unable to accept that, as a matter of law, such a stopping capability means that in every case where a driver does not brake immediately in a specified 2 to 3 second time-gap must be negligent, no matter what other circumstances existed.
[22] In the present case, the judge heard several days of evidence, and one day of submissions. Having carefully weighed up and assessed the evidence and submissions, he concluded that the first defender had not failed in his duties of care owed to other road users, and assoilzied the defenders.
[23] In our opinion, this court should be slow to interfere with that conclusion in such a fact-sensitive case. As was explained by Lord Hope in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 at paragraphs [16]-[17]:
“[16] The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. In Clarke v Edinburgh and District Tramways Co (p37), Lord Shaw of Dunfermline said that the duty of the appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong. The words ‘plainly wrong’ were picked up and repeated by Lord Macmillan in Thomas v Thomas, when he said (pp59-60):
‘So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions in fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong..
…If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge.’
[17] As Lord Stott observed in his dissenting opinion in McLaren v Caldwell’s Paper Mill Co Ltd (p168), a Lord Ordinary’s view on the credibility or reliability of a witness is not sacrosanct. But the jurisdiction of the appellate court must be exercised within narrow limits where the only issue is whether it should take a different view from that which the trial judge formed on the facts. Viscount Simon said in Thomas v Thomas (p48), that Lord Greene MR had admirably stated the limitations to be observed in the course of his judgment in Yuill v Yuill. In that case Lord Greene MR said (p19): ‘It can, of course, only be on the rarest of occasions, and in circumstance where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.”
[24] The question of appellate interference was revisited in the Supreme Court in Henderson v Foxworth Investments Ltd 2014 SLT 775, [2014] 1 WLR 2600, where Lord Reed noted at paragraphs [62] et seq:
“[62] … there may be some value in considering the meaning of [the phrase ‘plainly wrong’]. There is a risk that it may be misunderstood. The adverb ‘plainly’ does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached …
[66] … Consistently with the approach adopted by Lord Thankerton [in Thomas v Thomas 1947 SC(HL) 45] in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.
[67] It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
[25] The error of law said (in the course of oral submissions to us) to have occurred in this case was the Lord Ordinary’s failure to find the first defender negligent as a matter of law, when the facts found included the first defender’s having seen the pursuer when he was about 40 to 50 metres away from him, his car’s stopping distance being (according to the pursuer’s interpretation of the evidence of one road traffic accident investigator) such that immediate application of the brakes could have resulted in the car coming to a halt before colliding with the pursuer, or at least moving at a slower speed before impact such that serious injury was unlikely. We are unable to accept that submission. Whether or not it may be negligent not to have braked immediately in this case was, in our opinion, a question of mixed fact and law which was highly sensitive to the particular circumstances of the case. On the facts found established, we are not persuaded that any error of law can be identified.
[26] Against that background, we turn to deal with each of the specific grounds of appeal.
Ground of appeal 1
[27] In our opinion, the Lord Ordinary was entitled, on the evidence accepted by him, to find that the first defender had not been negligent. Such a conclusion is not, in our view, inconsistent with the findings-in-fact relating to speed, dipped headlights, the distance at which the first defender became aware of the pursuer, and the first defender’s actions in trying to avoid a collision with the pursuer by swerving to his offside rather than immediately applying his brakes. We note that the ground of appeal states:
“It was submitted … that the first defender failed to keep a proper lookout. It was also submitted that the first defender ought to have braked. On the evidence accepted by the Lord Ordinary, he ought to have so held.”
We are unable to accept that the Lord Ordinary “ought to have so held”. On the contrary, on the facts held established, it was open to the Lord Ordinary to reach the view that, in all the circumstances, the first defender had not failed to keep a proper lookout, and that he had been entitled, in a situation of emergency thrust upon him without any advance warning in the early hours of the morning in a dark unlit country road, to attempt to take avoiding action as he did by swerving to his offside.
Ground of appeal 2
[28] The first part of this ground (“that on dipped beam the first defender should have seen the pursuer”) is strictly speaking superfluous, as the Lord Ordinary held that the first defender did in fact become aware of the pursuer at a distance of 40 to 50 metres (paragraph [153] of the opinion). The second part of the ground of appeal (“could have stopped in time to avoid the collision or in any event achieved a high level of speed reduction before striking the pursuer”) is relevant in that the Lord Ordinary does not appear to have made a specific finding-in-fact on those matters, all as noted in paragraph [6] above. However we make two observations. First, the Lord Ordinary must be assumed to have taken the whole of the evidence into his consideration (Thomas v Thomas 1947 SC (HL) 45 at page 61). The Lord Ordinary’s judgment, read as a whole, makes it clear that he does not criticise the first defender for attempting to avoid the pursuer by swerving to his offside rather than by braking. In particular, the Lord Ordinary does not form the view that the first defender failed in his duties of reasonable care as a driver by adopting such an emergency avoiding manoeuvre in the circumstances. Secondly, the capability of a car travelling at 40 miles per hour to stop or slow down significantly within certain times and distances was merely one of the factors to be taken into account by the Lord Ordinary, as set out in paragraph [21] above. We adopt all of the observations we have made in that context in paragraph [21] above, and as a result find no merit in this ground of appeal.
Ground of appeal 3
[29] On the evidence available to the Lord Ordinary, it was not an easy matter to reach a conclusion about whether the pursuer was upright and/or stationary or travelling very slowly just before the collision. While submissions on that issue were made (paragraphs [83], [84], [116] and [120]), the most that the Lord Ordinary was prepared to find was that it was “the first defender’s impression of the pursuer … that he looked as if he was walking towards Barrhead” (paragraph [145]). In our opinion, the Lord Ordinary was entitled, on the state of the evidence, to be cautious about making a more specific finding about the position and rate of travel of the pursuer prior to the accident. In any event, we do not consider such a finding critical to the ultimate assessment of the fundamental question whether the first defender fulfilled his duties of care as a driver. We have not therefore been persuaded that any criticism made in this ground of appeal amounts to the sort of error referred to by Lord Reed in paragraphs [62] to [67] of Henderson v Foxworth Investments Ltd cit sup.
Ground of appeal 4
[30] We consider that the Lord Ordinary was, in the circumstances found established, entitled to describe the appearance of the pursuer in a dark country road in the early hours of 12 April 2008 as “instant” and as “right in front of” the first defender. Neither description is, in our view, so manifestly inconsistent with the facts found as to undermine the conclusion reached by the Lord Ordinary.
Ground of appeal 5
[31] The Lord Ordinary must be assumed to have taken the whole of the evidence into his consideration (Thomas v Thomas 1947 SC (HL) 45 at page 61). He heard the evidence of Peter Gibson, a friend of the pursuer, and Lesley McCall, a frequent driver on the B774. He also heard the evidence of Dr Searle and Dr Coley, road traffic accident investigators. While these witnesses’ experiences of pedestrians and bus-stops on the B774 were undoubtedly relevant material for the Lord Ordinary to take into account, their evidence did not, in our opinion, mean that the Lord Ordinary was obliged to determine that the first defender ought reasonably to have foreseen the presence of a pedestrian such as the pursuer (in his condition and behaving as he was) on that road in darkness in the early hours of 12 April 2008. As for the foreseeability of potential hazards other than pedestrians, the Lord Ordinary’s consideration of the issues specifically raised by counsel during the proof (namely the car’s speed, main or dipped beam, and the driver’s ability to stop within a certain distance) were all directed towards the possibility of coming across a hazard on the road (such as an animal or an object). The Lord Ordinary dealt with those issues and came to a view about negligence which, in the circumstances, he was entitled to reach.
Conclusion
[32] In the result therefore we have been unable to find an identifiable error on the part of the Lord Ordinary, such as:
“ … a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence …” (Henderson v Foxworth Investments Ltd paragraph [67]
Nor are we satisfied that the Lord Ordinary’s decision “cannot reasonably be explained or justified” (ibid paragraph [67]).
[33] Esto we are wrong in the above conclusion, and esto the Lord Ordinary erred, as submitted by senior counsel for the pursuer, by failing to put or to answer the proper question (namely, given that the pedestrian was seen from a distance of about 40 to 50 metres, ought the driver to have braked), we are content to accept the invitation of senior counsel to pose and to answer that question ourselves on the basis of the material before us (see paragraph [17] above). On the material available to us, all as referred to in the foregoing opinion, and in answer to the question whether it was negligent of the first defender not to have braked as soon as he was aware of the pursuer on the B774 road, we give our opinion that the first defender did not fail in his duties of reasonable care as a driver and was not negligent. The first defender was put in a position of considerable emergency by the unexpected appearance on a dark country road of a pedestrian who was intoxicated and whose behaviour was affected by his intoxication. The first defender had a very short time in which to take some sort of avoiding action. He was entitled, in our view, to try to avoid colliding with the pursuer in the way he did, namely by swerving away from the pursuer, and we consider that he cannot be criticised for choosing that emergency reaction rather than another, such as braking.
[34] It follows that the reclaiming motion must be refused.
Decision
[35] For the reasons given above, we refuse the reclaiming motion. We continue the question of expenses. We should add that we agree with both counsel that the issue of contributory negligence was before the Lord Ordinary for his decision. As the Lord Ordinary heard the evidence, it was his duty to give his view, on an esto basis, whether and if so to what extent he considered the pursuer to have been contributorily negligent. In the absence of such a view the appeal court may be placed in some difficulty if the decree of absolvitor were to be recalled, liability on the part of the defenders were held to be established, and a finding of contributory negligence were considered necessary: cf the observations of Lord Justice-Clerk Ross in Hogan v Highland Regional Council 1995 SC 1.
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