Scottish appeal examines the reverse onus of proof in careless driving case
Samuel Cameron v Martin Swan and Another [10.06.21]
This Scottish appeal decision was the civil case that followed a defender’s previous guilty plea to careless driving. It is a rare instance of the onus of proof shifting to the defender to prove that they were not negligent. Overturning the first instance decision, the court emphasised the need for strong, consistent evidence to discharge the reverse onus of proof. As the defender had not done so, the court found for the pursuer, albeit with a substantial contributory negligence discount applied.
This is a case of negligence by failing to drive with due care and attention. The first defender, who was driving a delivery van in the course of his employment, ran over the pursuer, a pedestrian who was lying on the road while intoxicated. The second defender was the first defender’s employer, and was consequently vicariously liable.
The incident occurred at around 5am, when the first defender was driving behind a taxi. The taxi pulled over to his nearside, and the first defender overtook him and struck the pursuer.
The first defender, prior to this action, had pled guilty to a contravention of Section 3 of the Road Traffic Act 1988 (careless driving). When giving evidence, the first defender stated he had pled guilty as his wife was distraught at the possibility of a jail sentence, but no further evidence was provided to support this. As he had pled guilty in a criminal court, Section 10 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 applied. As such, the onus of proof was on the first defender to prove on the balance of probabilities that he had not driven negligently.
The judge heard evidence from the taxi driver that he had pulled over to avoid something on the road, later identified as the pursuer, and that the first defender was driving “closer than he would have liked”. The first defender’s witness gave expert evidence and concluded that it was impossible to determine if the first defender ever had a sightline of the pursuer, due to the taxi in front of him and his likely slower perception-response time (PRT) due to the pursuer blending in with the road and his unexpected positioning. This evidence formed the basis of the judge’s decision against the pursuer.
The pursuer subsequently appealed to the Inner House of the Court of Session (Scotland’s Court of Appeal) and it was found that the judge at first instance, had failed in giving significant weight to the first defender’s expert evidence. The judge’s decision was deemed to be an over-complication of what should have been a simple question: ought the first defender to have seen the hazard and taken steps to avoid it? The court stated that it was reasonably foreseeable that intoxicated persons would be present in an urban street, whether “vertical or horizontal”.
The reverse onus of proof was therefore found to not be discharged. The first defender’s inconsistencies with the taxi driver’s evidence and his own statement of not seeing the pursuer was wrongly dismissed as irrelevant by the judge. These inconsistencies, considered together with his guilty plea for the criminal charge, without any evidence providing justification, meant that the first defender’s evidence should have been considered with greater caution.
The court concluded that the accident was caused by the fault and negligence of the first defender, with the second defender being vicariously liable for his actions. Unsurprisingly, there was also a finding of contributory negligence at 65%. That is a slight increase on the 60% awarded in Green v Bannister  to reflect the dangerous location the pursuer chose to lie in.
This case is binding on all lower courts and could be further appealed, although it is unlikely to be granted, given the sound application of the law by the Inner House.
It serves an important reminder that cases of negligence, particularly negligent driving, should not be over-complicated, as the decision-maker need only consider what a driver of reasonable skill and care would do. Furthermore, it confirms that a reverse onus of proof, as per Section 10 of the 1968 Act, should be an ‘uphill task’ for the defender to overcome, and strong, consistent evidence will be required in relation to the circumstances but also the justification behind the earlier guilty plea.