SHEILA MacISAAC qua guardian for CALUM ANGUS LANGA v. PAULINE MILLS
Case Reference No: A331/03
JUDGMENT OF SHERIFF D W McINTYRE
in the cause
SHEILA MacISAAC, qua guardian for CALUM ANGUS LANGA, residing together at 86C Albert Place, Wallyford, East Lothian, (AP),
PURSUER
against
PAULINE MILLS, residing at 10 Ferguson Drive, Musselburgh, East Lothian,
DEFENDER
Act: Kinloch
Alt: Kelly
EDINBURGH, 2004
The Sheriff, having resumed consideration of the cause, finds in fact:-
1.The parties are as designed in the instance.
2.On Monday 9 April 2001 at approximately 08.05 hours Calum Angus Langa (who was born on 17 September 1996 and so was approximately four years four and a half months old at the time) was standing with his mother, Mrs Sheila MacIsaac and sister, Carmen, at a pedestrian crossing on the west side of Bath Street, Portobello, Edinburgh when he was involved in an accident with a motor vehicle driven by the defender.
3.Bath Street is a two way traffic street running north to south towards Portobello High Street. The pedestrian crossing (hereinafter referred to as "the crossing") where Calum was standing is directly opposite Lower Bank Avenue Primary School. It consists of a triangular shaped pavement extension which extends approximately half way into the street thus only permitting one motor vehicle to pass by at any one time. There are metal railings approximately three feet high on each side of "the crossing" leaving an opening for pedestrians to cross over Bath Street. Traffic coming from the north has priority to pass in front of "the crossing". Such traffic would have to cross over a number of speed bumps" on the roadway designed to reduce the speed of motor vehicles before reaching the crossing. The word "slow" is painted on the roadway immediately to the north of the crossing. Warning signs are positioned along the street advising motorists approaching "the crossing" from the north that a school is located on the street.
4.At that time Calum was on his way to the Blossom Nursery School, which is located on the east side of Bath Street and a short distance to the left of where he was standing, on the other side of the road. There were no parked cars on or near "the crossing" which would have obstructed a motorist's view of the crossing. It was raining and the road surface was wet. The sky was overcast, but the visibility was reasonable.
5.Calum was holding his mother's right hand and his older sister Carmen was holding her mother's left hand. They were waiting to cross the road. Calum was struggling to break free from his mother so that he could be the first across the road and ring the bell at the nursery. He was being restrained by his mother. Mrs MacIsaac saw the defender's motor car approaching the crossing from her left. They were both in eye contact prior to the accident.
6.At the same time as the events described in finding 5 were happening, the defender who is 37 years of age was driving down Bath Street in a southerly direction towards "the crossing". She was travelling at approximately 15/20 miles per hour. As she approached "the crossing" she saw Mrs MacIsaac and her two children, one of whom, Calum, appeared to her to be struggling as if to break free from Mrs MacIsaac who had a hold of him. She slowed down her speed. When she was approximately 6 feet from the opening of the crossing she slowed down even further and continued to watch Mrs MacIsaac and her two children. At that stage Mrs MacIsaac and the two children who up until then had all been standing back from the edge of the pavement approximately 3 or 4 feet, moved forward to the edge of the kerb at the crossing. At that moment Calum moved forward from his mother and collided with the defender's car. His right leg came into contact with the front bumper of the defender's car.
7.Just after the accident a woman police officer attended the locus and took statements from the defender and Mrs MacIsaac. The defender's statement was as follows:
"At about five past eight I was driving up Bath Street towards Portobello High Street in my car, a Peugeot 206. I can't remember the registration number off hand. I got to the crossing bit where the road narrows opposite the bingo. I could see a mother on my right-hand side. She was with a young boy and a young girl on the left side. The wee boy in front of her. The mother was holding the wee boy's hand. There was another car in front of me and I moved to the other side and I suddenly saw the wee boy run out on to the road. He got up after he hit my front bumper. He fell to the ground when he was struck. He ran over to his mum and I stopped the car and got out. I stayed there and made sure he was o'kay."
Mrs MacIsaac's statement was as follows:
"At ten past eight I was in Bath Street with Calum and Carmen. We were going to the Blossom Nursery. We were standing at the roadside where it narrows and we were right next to the cars. I saw two cars coming up and they were going quite slow. Calum then suddenly ran out in front of the car. I tried to keep hold of him but I couldn't because I also had hold of Carmen. He hit the right bumper of the car and I kept hold of him all the time. I dragged him back and lifted him off the ground and carried him to the Nursery as he wanted to lie down. The driver got out of the car. I think she was in shock and I kept telling her that it wasn't her fault. Then the ambulance turned up and had a look at Calum and brought us to the Sick Kids. He has grazing to his right ankle and it's a little bit swollen."
8.As a result of the accident Calum was found to have a transverse metaphyseal fracture with an associated fibula fracture just above the right ankle. On the day after the accident the tibia was manipulated and placed in a long leg cast under a general anaesthetic. Calum was in hospital for 48 hours. He had made a full recovery by July 2001 and has no long-term effects.
9.Prior to said accident on 9 April 2001 Calum had been instructed in road safety and was well aware of the dangers posed by motor traffic on roads.
10.No criminal proceedings were contemplated or initiated against the defender in respect of the accident.
Finds in Fact and Law:
That the pursuer has not suffered loss, injury and damage through the fault and negligence of the defender and
ACCORDINGLY,
1.Repels the pursuer's first and second pleas-in-law.
2.Sustains the defender's first plea-in-law.
3.Repels the defender's second, third and fourth pleas-in-law.
AND Grants decree of absolvitor in favour of the defender together with the expenses of the action as the same shall be taxed by the Auditor of Court.
NOTE:
This was an action of reparation raised by Sheila MacIsaac as guardian for her son, Calum Angus Langa who when he was four years four and a half months old was injured as a result of a road traffic accident. Parties were agreed on quantum at a figure of £5,500.00 so the proof that took place was to deal only with the question of liability and any question of contributory negligence.
Evidence was heard on 20 April with further evidence on 25 May and submissions on 21 July 2004 when I took the matter to avizandum.
Evidence was given by
1)Mr Malcolm MacNicol, Consultant Orthopaedic Surgeon at the Royal Hospital for Sick Children and the Royal Infirmary, Edinburgh who spoke to the injuries suffered by the child Calum. There was no dispute about the physical nature of the injuries.
2)Mrs Sheila MacIsaac, the mother of Calum, who was present when the accident happened.
3)Mrs Pauline Mills, the defender, who was the driver of the motor car involved in the accident
4)WPC Deborah King who arrived shortly after the accident at the locus and carried out certain investigations.
There was little dispute between the parties as to what had happened or the mechanics and location of the accident.
What was in dispute was the speed of the defender's motor car when the accident took place, and what it was claimed by the pursuer that the defender should have done to have prevented the accident.
However a brief summary of the evidence as follows would be helpful.
1.Mr Malcolm MacNicol, the Consultant Orthopaedic Surgeon who had treated the child, Calum and prepared a Report which was lodged in Process (Production No 5/1) went through the report confirming the injuries sustained by Calum and what treatment had been carried out. He was unable to give an estimate of speed. He thought that the defender's car would not have been travelling at more than 15 mph but that assessment of speed depended upon whether Calum's leg had been caught by an obstruction such as a kerb edge or the mudguard of the motor car. If that was the case, then the speed of the car would probably have been much less to cause the injuries sustained. During cross-examination there was an objection by the pursuer's agent in respect of a question put to Mr MacNicol about how high the bumper of the car would need to be from the ground to cause the injuries sustained. This was on the basis that there was nothing in the Record about the height of the bumper from the ground. However the defence agent submitted that the averments in Condescendence 4 suggested a bumper fracture and in any way he was exploring matters that had arisen out of examination in chief. I upheld his submission and overruled the objection. Mr MacNicol was unable to say with any certainty whether the bumper of the car alone could have produced the injuries sustained by Calum. Accordingly the best estimate of speed he could give was one of 15 mph at the point of impact or less if Calum's leg had been caught in some way by the kerb or by the mudguard of the car. I found this witness credible and reliable. There was really no dispute about his evidence.
2.Mrs MacIsaac's evidence was that she was standing with her two children at about 8.00 am on that day. The weather was fine and clear according to her. She was waiting to take Calum to Blossom Nursery across the road. She spoke to the photographs lodged in process confirming the layout of the locus where the accident had occurred. She had seen the defender's car coming up Bath Street. She said that Calum was on the right and Carmen, his sister, was on her left and both were holding her hand. Calum was excited and wanted to cross the road first but she had a tight hold of his hand. She had made eye contact with the defender and Calum had pulled away from her. His right leg went forward and collided with the defender's motor car. She still had a hold of his hand and pulled him back. She confirmed that Calum was well aware of traffic dangers, had never done that sort of thing before and had always been told that traffic was dangerous and was aware of that. She had not expected him to do what he did. In cross-examination she confirmed that Calum was on her right hand side holding her right hand and he wanted to pull away, cross the road and ring the bell of the nursery before his sister. She confirmed that she had eye contact with the defender and remembered Calum pulling away from her prior to the accident. She did not expect him to run out and she felt that if the driver, the defender, was in any doubt about what Calum might do she should have stopped. Then she seemed to agree in cross-examination that as she had not anticipated that Calum would break free and run out she would not expect a driver to so anticipate. She confirmed that Calum knew all about road safety and indeed had been taught about it at nursery school. She was emphatic that she was holding him by his hand and also was not pulling him back because she was so close to the car. She thought that the defender's car had hit him, rather than him colliding with the car. She felt that where she was standing was safe enough. In re-examination she confirmed that she was the holder of a driving licence but had not driven for the last six months. She said that she would have stopped or slowed down if she had been the driver of the defender's car. She felt that children are unpredictable. Her factual evidence was not really challenged to any great extent and I had no difficulty in believing her and finding her a credible and reliable witness.
3.The defender's evidence was that in the early morning of 9 April 2001 she was driving her Peugeot motor car along Bath Street having dropped her daughter off at the nursery. She was going to work, for at that time she worked for Standard Life Investments. Her daughter was eighteen months old at the time. After she had dropped her daughter off and was going down Bath Street she estimated her speed at about 15/20 mph and confirmed the presence of speed bumps and that there were no other vehicles or pedestrians on the road although in her Police Statement she had said there was another car in front of her. She saw Mrs MacIsaac and her two children at the crossing and she slowed down from 15 mph to get through the narrow gap. She confirmed that Calum was jumping up and down as she put it and she thought his mother had a hold of his anorak and she was not holding his sister's hand and she felt that the mother was trying to calm the boy. I was of the view that she was mistaken about that and I preferred the mother's evidence that she had a hold of Calum's hand and his sister's hand. When she was about 6 feet from the crossing she slowed down even further and she kept eye contact with the mother as she edged through the crossing gap. As she was approaching the crossing Mrs MacIsaac moved forward to the kerb and Calum broke free, hit the bumper of her car and dropped to the ground. She said that Calum struggled free as they moved forward. She felt that she was hardly moving at the time of contact and said that after the accident Mrs MacIsaac told her that the accident was not her fault and explained that Calum wanted to cross the road before his sister to ring the nursery bell before her. Whether or not Calum actually broke free from his mother's grip, or was still being held by her did not seem to me to make a lot of difference because what is clear is the boy collided with the car and was injured. She also confirmed that Mrs MacIsaac had told the police that it was not her fault. The police indicated to her that there was no suggestion that she was travelling too fast on the road. In cross-examination she accepted that the purpose of the traffic calming measures was to slow traffic down because a lot of children were about on school days. She did not feel that she had been distracted on that day. When she first saw Mrs MacIsaac and her two children they were at the back of the crossing and there was no indication that they wanted to cross the road. The mother seemed to be speaking to the boy. She thought that at the crossing she was travelling very slowly and estimated her speed at 5 mph and she said that she had slowed down twice, (i) because of the narrow gap and (ii) because of seeing Calum at the crossing, jumping up and down. She did not remember the mother holding his hand and thought that she was holding the back of his collar. She reiterated that Calum appeared to be struggling to break free from his mother as they were moving forward to the edge of the crossing. She felt that Mrs MacIsaac should have stayed back from the crossing, rather than moving forward as she approached the crossing in her car. She agreed that she could have used her horn but did not do so because she was in eye contact with Mrs MacIsaac. In re-examination she said that she was not travelling at 15 mph and was closer to 5 mph and she had made not an emergency stop when the collision occurred. She also said that when she first saw Calum it did not seem as if he wanted to break free and cross the road.
Again I found the defender perfectly credible and reliable except I felt that she was mistaken about what grip the mother had on the child and I preferred the mother's evidence about that. However I preferred the defender's evidence about her slow speed and the fact that she was slowing down as she approached the crossing.
4.WPC Deborah King, aged 29 with seven years police service attended the locus along with another policeman after the accident and made investigations. Nothing was written in her notebook about the speed of the defender's vehicle but she confirmed that a slow speed would be required. She had a note in her notebook that the defender had said that Mrs MacIsaac was holding the boy's hand. She had not given a caution to the defender because there was no inference of guilt from her investigations. She had spoken about this with her experienced colleague who agreed. She also confirmed that Mrs MacIsaac had said that the accident was not the fault of the defender and also that she had said this again at the hospital. Again I found her evidence credible and reliable and there was really no challenge to it.
PURSUERS' SUBMISSIONS
Mr Kinloch acting on my previous suggestion lodged written submissions for the pursuer which were indeed helpful, and were as follows:-
1.The medical evidence as spoken to by Mr MacNicol supported the pursuer's contention that the defender's speed at the time of impact was at least 15 mph. This was because Mr MacNicol's view was that the fractures were likely to have been caused by a direct blow with impaction being at high speed and consistent with a blow by the car's front bumper. Although he could not estimate the speed of the vehicle he suggested that it would be 15 mph or greater. He estimated this speed from the nature of the injury, but conceded that if the child's foot had been blocked by an obstruction being for example either the kerb at the crossing or the mudguard of the vehicle then a speed of less than 15 mph would have been sufficient to cause the injuries sustained by the child.
2.The child's mother had observed the defender's car approaching the pavement extension. They were both looking at each other. She said that she could see that the car was not going to slow down. Calum continued to tug and pull to get across the road. He put his right leg into the road and the front bumper of the defender's car collided with the leg. She pulled him back. She did not let go of his right hand. He did not run out in front of the car. He was aware of how dangerous traffic could be and she did not expect him to do what he did. The mother was of the opinion that the defender should have stopped her car if she was in any doubt that Calum might break free from her grasp.
3.The mother's statement not only in the Accident and Emergency records but also to DC King that the car was going slowly was consistent with a speed of 15 mph.
4.Whether Calum ran out in front of the car or simply lifted his right leg into the path of the car was really of no significance.
5.If I felt that the pursuer should have stood further back from the edge of the road then that might well be significant so far as contributory negligence was concerned but he disputed any suggestion that the defender could not have foreseen the accident.
6.So far as the defender was concerned, in cross-examination she did not deny that she could have taken additional care when approaching the pavement extension. She could have for instance sounded her horn or she could have stopped her car altogether. The defender had suggested that it wasn't until she was within 6 feet of the crossing that the mother and her two children moved forward and were close enough to the edge of the pavement to constitute a danger, thus it was not foreseeable that an accident might occur until she reached that point by which time it was too late to take avoiding action. In refuting such a suggestion Mr Kinloch raised the following points
(1)The photographs lodged in process showed that there was nothing to impede the visibility of the mother and her children to the defender whilst she was travelling along the road and was near to the crossing. He suggested that she knew or ought to have known that they were going to attempt to cross the road, otherwise why would they be on the crossing? Why would they be moving towards its outer edge? This was not the usual case where a child had suddenly emerged unseen from behind a parked car.
(2)The evidence had suggested that the pursuer had been waiting to cross the road at the outer edge of the crossing for some time. Accordingly this was not a case where the defender had had but a fleeting glimpse of the mother and her children: He referred to the defender's averment in Answer 2 of the Record where approximately halfway down the page it is averred "The defender noticed that Sheila MacIsaac was standing at the edge of one of these extension pavements with two children, one of the children being Calum Angus Langa who was standing to the pursuer's left-hand side and appeared to be struggling to break free and was being restrained by the pursuer holding the back of his coat at his shoulder level. Accordingly he submitted that if the pursuer had so observed the child then it was foreseeable that he could break free. However the defender had advised DC King that the pursuer was holding the "wee boy's hand". This apparent inconsistency suggested that the defender was a not particularly reliable witness.
(3)In her evidence the defender said that there was a car travelling in front of her but she did not suggest that it had the effect of obscuring her view of the pavement extension:
(4)DC King's evidence was not challenged in cross-examination and the pursuer accepted her evidence.
7.Accordingly, in summary, he submitted that the defender should have slowed her speed down to below 15 mph or if she did slow down, which was denied, she should have slowed down further. It was submitted that even if I found that the defender was travelling at a slower speed than 15 mph, say 5 mph she was still in breach of her duty to drive with reasonable care and attention and her duty to take reasonable care for the safety of other persons using the road because (a) the place where the accident happened was a crossing near a school; (b) having observed Calum struggling to break free she should have sounded her horn to alert the pursuer and her children that she was approaching and was a danger; (c) she could have stopped her car thus avoiding a collision, notwithstanding the fact that there were no road signs to this effect.
8.Mr Kinloch then referred to various authorities as follows:
1.Barnes -v- Flucker and Thomson -v- Flucker, 1985 SLT at p 142. Two five year old girls were struck by a car whilst attempting to cross a road. One of the girls was killed and the other was injured. In this case the defender believed that her speed was between 20 and 25 mph and the police officer who investigated the accident did not consider that the car was travelling at an excessive speed. It was certainly not exceeding the speed limit. The speed was held not to be excessive because the defender had not seen the children until they had emerged in front of her car as they had been obscured behind parked cars. So far as the defender's failure to keep a proper lookout was concerned, the Judge, Lord Brand, was of the view that there was no evidence to suggest that she had failed to keep a proper lookout as the children had been concealed behind parked vehicles until they emerged in front of her car by which time it was too late to avoid colliding with them. Mr Kinloch suggested that in this case matters were different. There was no question that the defender had not seen Calum with his mother and sister for indeed she had observed him struggling to break free. Accordingly it was reasonably foreseeable that an accident might occur if she continued to drive past the family and struggling child. She failed to sound her horn and she failed to stop.
2.Maltman -v- Knaggs, 1999 GWD 13-624. This was a case produced by the defence but adopted by him and concerned a five year old boy who was seriously injured when struck by a car. The road had a 30 mph speed limit. The boy crossed the road to meet a school friend on the opposite pavement. His mother said that the road was narrow with cars parked adjacent to the traffic flow. Only one car was parked between the point from which the child ran and the defender's oncoming car. A passer by said that the defender was going too fast but could remember no parked car. A school friend's mother gave evidence that the boy ran out on to the road without looking. She had no recollection of seeing the parked car. Decree of absolvitor was granted, the defender's evidence being preferred. The Court held as significant that no criminal proceedings were taken. Again it was accepted that the child had run out suddenly from behind a parked car. Accordingly this was a case similar to the last.
The remaining cases referred to all dealt with contributory negligence and were as follows:
3.Sharp -v- Glasgow Corporation, 1952 SLT page 69:
This case involved a six year old child who shuffled backwards on to the roadway just as an approaching bus was about three lengths away. The bus could have stopped in time but although it swerved, it struck the child. The sheriff substitute held that the bus driver was solely to blame. The defender appealed and it was held that the child had contributed to the accident to the extent of one-eighth. On page 74, approximately two-thirds down, in the first column, the Sheriff states:
"In my opinion the first occasion when the driver should have taken avoiding action was when he saw the child shuffling off the pavement. At that moment he was only three omnibus lengths off. While in my opinion he should have slowed down or stopped as he might have done it must be borne in mind that the boy had proceeded about 8' from the edge of the pavement before he was struck. The driver did attempt to swerve at the last moment but he was too late ......"
It was submitted that this case suggests that a driver should take avoiding action when a risk becomes apparent and that in the current case it should have been apparent to the defender that there would be a risk of an accident when she first saw Mrs MacIsaac and her two children. It was also suggested in the Sharp case that a driver should stop or sound their horn to avoid a collision with a pedestrian. Blame was apportioned 7/8 to the driver and 1/8 to the child.
4.Banner's Tutor -v- Kennedy's Trustees, 1978 SLT page 83
This case involved a five year girl who as knocked down and injured by a lorry. The driver of the lorry was not the defender in the case, the defender being the driver of a mini bus that was delivering the child home from school. He drove into a bell mouth on his side of the road and the lorry came past just as the girl opened the rear door of the mini bus from inside and ran across the road towards a lane leading to her house. She ran straight into the path of the lorry and was knocked down. Mr Kinloch suggested that the reason that the driver of the lorry was either not sued or let out of the action was because it could not be said that he could have anticipated or foreseen that the accident would happen. In this case the Court held that the child contributed to 20% of the accident. On the evidence Lord Maxwell held that the driver of the mini bus was negligent in that he knew that sometimes the children in his vehicle would alight from the mini bus without waiting for him to open the door for them but took no steps to ensure that they heeded his warning about the lorry. Further he states,
"In Scotland at least a child of five can be guilty of contributory negligence. Whether she is depends on the whole facts including the child's knowledge and experience and a comparison between the conduct of the child in the particular case and what would reasonably be expected of a child of such age, knowledge and experience."
5.Harvey -v- Cairns, 1989 SLT (Reports) page 107:
In this case a six year old child was killed when she stepped from a pavement into the path of an oncoming vehicle. The vehicle was being driven by an unqualified and unsupervised driver at a speed of 30 mph which was within the speed limit for the stretch of road but still excessive. The child was part of a group of children seen by the defender on the pavement at the entrance to a side road at a distance of about 50 yards ahead of him. At page 109, letter E, Lord Murray says:
"I consider that the defender's speed, accelerating back to 30 mph at the time of the accident was excessive in the circumstances. Had he continued to travel at the lower speed of 25 mph until he passed the children he would clearly have had a better chance of avoiding Fiona or of injuring her less seriously when she ran out from the pavement."
It was suggested in the present case even although there was no evidence to suggest that the defender had accelerated past Calum and his mother she was fully aware of the potential danger having observed Mrs MacIsaac with her two small children, one of whom, Calum, was struggling to break free. She had failed to take appropriate action in the light of her observation of the danger.
6.McKinnell -v- White, 1971 SLT page 61:
In this case a child aged five years was very seriously injured when he was in collision with a motor car on 19 April 1969. The child was held to have been equally responsible for the accident and contributory negligence was assessed at 50%.
Mr Kinloch submitted that in the present case he would accept that a finding of contributory negligence by Calum would be appropriate. However he did not accept that there should be a 50% finding in this case.
7.McCluskey -v- Wallace, 1998 SLT page 1357:
In this case a ten year old child was knocked down by a motor car while crossing the road. She failed to notice the car prior to leaving the pavement and the car driver failed to notice her on the road. If he had been paying proper attention he would have seen her in time to take avoiding action. The driver was found 80% to blame for the accident and the child 20%. The driver appealed arguing that liability should be divided equally but was unsuccessful.
Mr Kinloch submitted that the standard of care on the driver of a motor vehicle is very high and must be considered carefully when apportioning blame. In the present case Mrs MacIsaac and the children were not a danger to the defender but the defender's motor vehicle constituted a very significant danger to them.
In conclusion Mr Kinloch submitted that the case law suggested a pattern, although each case had to be considered on its own facts and circumstances. He submitted that provided a driver was not exceeding the speed limit, nor driving under the influence of drink or drugs and so forth, then he would only escape liability for injury to a child when a child pedestrian is obscured from his view and suddenly emerges into the path of his vehicle.
In the present case he suggested that matters were very different and that this accident was foreseeable by the defender. On the question of apportioning liability, the Court had to consider to what extent the pursuer had materially contributed to the accident. He submitted that the following matters were pertinent:
1.The defender had seen Mrs MacIsaac and her two children in time to take appropriate action.
2.Where the accident happened the road was very narrow.
3.Any vehicle driving past the crossing would have to drive close to any pedestrian who was standing at the edge waiting to cross.
4.The minimal distance between a pedestrian standing at the edge of the crossing and a passing vehicle.
5.The fact that Mrs MacIsaac was required to control two young children and watch the traffic at the same time.
6.The speed at which the defender was travelling which he submitted was 15 mph.
7.The defender's failure to stop, slow down or sound her horn.
8.The defender's familiarity with the road, the traffic calming measures and warning signs that were present, all of which should have alerted her.
9.The fact that there was a serious risk of injury if a collision occurred.
10.The ease with which the defender could have taken precautions to prevent the accident.
11.The likelihood that a child of Calum's age would have very limited road sense.
Taking all these matters into account he would suggest that if there was any question of contributory negligence then the pursuer should be found 20% to blame. He therefore urged me to find in favour of the pursuer but with a 20% finding of contributory negligence. He also asked for the expenses of the action and to have Mr MacNicol certified as an expert witness.
DEFENDER'S SUBMISSIONS
Mr Kelly made the following points:-
1.The child, Calum, was under his mother's control at the time of the accident.
2.Calum knew about road safety.
3.Even if the defender could have done something else and thus avoided the accident, she was not necessarily negligent.
4.The pursuer was maintaining that the defender should have anticipated what the mother of Calum, who had control of him, did not anticipate.
5.There were no markings on the roadway prior to the crossing requiring a vehicle to stop.
6.The defender's vehicle was de-accelerating as it approached the crossing and the pursuer was aware of the moving vehicle.
7.Presumably it could be inferred that the pursuer, being back from the kerb edge, thought the position was safe enough.
8.Only the pursuer knew why Calum wished to cross the road which was to go and ring the bell of the nursery.
9.The pursuer was not exercising enough control over the child, Calum.
10.If the pursuer was negligent she would have had to have considered the likelihood of the child breaking free from his mother and running into the road, which the mother had not.
11.It did not occur to either party that the child would do what he did.
12.To suggest that the defender should have stopped her car was placing an additional unnecessary duty on her.
13.If the defender did not consider that there was any likelihood of the child breaking free from its mother and running on to the road then there could be no duty on her to stop her vehicle.
14.Any doubts that the defender should have had about danger was negated by the mother's control of the child, Calum.
Mr Kelly then dealt with Mr McNichol's evidence and made the point that Mr McNichol could only estimate a speed of 15 mph at the time of impact, whereas the defender said that she was decelerating from that speed. In respect of the defender's evidence he suggested that it pointed to her taking care and anticipating matters and therefore she was not negligent. Her clear recollection was that the child, Calum was being held.
In respect of PC King's evidence it was clear that no criminal proceedings were considered in the case.
In respect of the pursuer's written submisisons in paragraph 3.6 where it is stated: "If the defender observed the child struggling to break free at the edge of the pavement and being held (not by his hand but) by his clothing then it follows that it was foreseeable that he could break free." He contended it was not foreseeable that a child could break free in such circumstances. Furthermore there were no absolute duties placed on a motorist.
Turning to the cases referred to he submitted that the cases of Barnes -v- Flucker and Morton -v- Knaggs tended to support the defender's position on the basis that the standards required of a careful motorist were set out in the cases. In this case the defender was driving at a slow speed and de-accelerating to an even slower speed prior to the accident.
In the Barnes/Flucker case he referred to page 144 where the question of duty of care is discussed. In this current case the defender, Mrs Mills, would have required to stop to avoid an accident.
So far as contributory negligence was concerned his position was that the actings of the mother and the child contributed to the accident to a much greater degree than the actions of the defender and at the very most the defender should be found 10% liable, but his primary position was that she should be absolved from any blame.
DECISION
The claim is based on the accident having been caused by the fault and negligence of the defender. Four duties are alleged viz
1.To drive with reasonable care and attention.
2.To take reasonable care for the safety of others including pedestrians to avoid exposing them to unnecessary risk and injury.
3.To keep a good lookout.
4.To drive at an appropriate speed to ensure she did not collide with pedestrians such as the child in this case and injure them.
Only three of these duties need to be considered because it was conceded and indeed quite apparent from the evidence that the defender had kept a good lookout because both parties confirmed in evidence that they had eye to eye contact before and up to the accident.
It was contended on behalf of the pursuer that the defender when she saw the child Calum struggling with his mother, should have either stopped her motor vehicle or reduced her speed to something like 5 mph. I was satisfied from the evidence that the defender was travelling at a speed of at least 15 mph along Bath Street which speed was decreasing as she approached the crossing because she was aware of the child Calum struggling with and trying to break free from his mother. What I am not clear about is whether Calum actually broke free from his mother. His mother said that she still had a grip of his hand and that he pulled away from her forward and his right leg was struck by the defender's car. The defender says that Calum broke free from his mother's grip and he struck her offside bumper and fell down. Whether the child broke free from his mother's grip and went forward still being gripped by his mother or not does not seem to me to make a significant difference to the fact that his right leg was injured in the manner detailed in finding 9. Mr MacNicol, the Consultant Orthopaedic Surgeon who gave evidence, felt that the fractures were likely to have been caused by a direct blow from the car's front bumper but he was unable to be specific about speed other than to say that he would estimate the car would have been moving at more than 15 mph but much would depend on whether the right leg was caught under the near-side wing or bumper of the car or obstructed by the kerb, and there was no evidence of either. In effect what he was saying was that if the child's foot had been held by being trapped then less force and hence less speed would be required to cause the injuries. He thought that 15 mph for the speed of the car at impact was about right.
In my view the question of whether the defender should have stopped her vehicle when she saw the child, Calum, struggling with his mother I think can be answered in the negative. The child was clearly in the charge and physical control of his mother, and the defender was aware of that. The defender thought that the child was being held by his clothing but I preferred his mother's evidence that she was holding his hand. Should the defender have anticipated that the child would either break free from his mother and run into the road or collide with her car whilst still being held by his mother? Again I think the answer to that must be no. Had the child not been in the physical control of his mother then that might be a different matter and I think in those circumstances one would expect the driver to anticipate that the child might well run across the road and perhaps stop but this is not the case here.
Should the defender have slowed her speed right down to something like 5 mph? Again I think the answer to that must be no. The defender had taken steps before the accident to reduce her speed from 15 mph although she was not able to say what speed she was doing at the time of impact. Accordingly in the circumstances of this case I cannot believe it is reasonable that there would be a duty on a driver to do anything more than what the defender did, that is when she saw the child struggling with his mother to reduce her speed down to less than 15 mph which is a very slow speed, whilst keeping the mother and child under observation. She was well within the theoretical speed limit of 30 mph and was travelling at half that speed and de-accelerating. I do not see what more she could reasonably have been expected to do. Naturally if she had stopped the accident would not have happened but that seems to me to be placing far too high a duty of care on a driver in such circumstances. The fact that an accident happened does not mean that someone is to blame.
Accordingly, in my view, the defender fulfilled the four duties of care averred and has not been negligent.
Therefore I grant absolvitor with expenses in her favour.
CONTRIBURY NEGLIGENCE
If I am wrong then the question arises whether there should be any finding of contributory negligence. The relevant case appears to be the one of Flucker -v- Barnes already referred to. Although I was not addressed in detail on this matter, the pursuer's agent conceded that there might be some question of contributory negligence with the pursuer being found 20% to blame. He did not elaborate whether he meant the mother, child of both. It is clear from the authorities cited that a child of 5 years or more can be found to be contributorily negligent. The question in this case is whether a child of 4 years and 41/2 months could be held to be contributorily negligent. In my view in the particular circumstances of this case, Calum could be held to have so contributed to the accident because (1) his mother had physical control of him at the time, and (2) Calum had been told about road safety and despite his tender years was well aware according to his mother of the dangers and risks posed by traffic on roads.
However there is a problem in this case in that the defender's second plea-in-law as amended at the bar refers to "the accident having been caused or materially contributed to by the fault and negligence of Calum Angus Langa or Sheila MacIsaac.
This cannot be right. Mrs MacIsaac sues as guardian on behalf of her child; she is not a third party in the action. Accordingly in my view only her son Calum can be held to be contributorily negligent and I find that he has contributed to the extent of 60%.