The Inner House of the Court of Session, in allowing an appeal in Cameron v Swan and Another [2021] CSIH 30, have held that a drunk pursuer run over while lying in the road is entitled to recover damages, albeit subject to a substantial deduction for contributory negligence.

The facts

At around 5 o'clock in the morning, the pursuer was lying in the middle of the road. The first defender, Mr Swan, was a van driver, making bakery deliveries for his employer, the second defenders. Mr Swan overtook a taxi in front of him, after it slowed down and pulled over towards the side of the road. As he overtook the taxi, he ran over the pursuer.

Mr Swan subsequently pled guilty to a contravention of section 3 of the Road Traffic Act 1988 (careless driving).

Proof in the Outer House

At a proof restricted to issues of liability and contributory negligence, the Lord Ordinary held the defenders had successfully rebutted the presumption of liability created by Mr Swan's criminal conviction and found the defenders were not liable to the pursuer.

The defenders successfully argued that the criminal conviction had related to the first defender driving too close to the vehicle in front of him and not to any failure to keep a proper lookout - with the first defender testifying that he had driven with due care and attention.

The Lord Ordinary accepted expert evidence that Mr Swan's view would have been impeded by the taxi in front of him and that the sightlines were such that Mr Swan would not have seen the pursuer, whose grey clothing made him a low contrast and unexpected object.

Having regard to these factors, the Lord Ordinary held the defenders had rebutted the presumption of liability. Consequently, the Lord Ordinary assoilzied the defender.

Appeal to the Inner House

On appeal, the Inner House held that the Lord Ordinary had failed to apply the reverse onus of proof, misunderstood the evidence of witnesses, considered expert evidence which ought to have been excluded as inadmissible, failed to consider relevant evidence, and had resultantly reached a conclusion which could not reasonably be justified.

In relation to onus, the court explained that: “It was not for the pursuer to satisfy the court that the first defender had a line of sight to the pursuer, but for the defenders to demonstrate that he did not. Since the first defender did not say that his line of sight, to the point at which the pursuer was lying, was impeded in any way, this was an almost impossible task.

Expert evidence led by the defenders (without objection) regarding general visibility, conspicuity, and contrast was not of any practical assistance to the court. The expert evidence had distracted the judge in considering whether "in the exercise of reasonable skill and care, the first defender ought to have seen that there was a hazard in his path and taken steps to avoid it."

For the Inner House, this was a "a relatively clear case of negligent driving."

On the evidence led at proof, Mr Swan had accepted that he had an unimpeded view of the road but had failed to see the pursuer: "That is prima facie evidence that he failed to keep a good lookout. A driver has a duty to take reasonable care for other persons using the highway; even persons who are lying on it in a drunken stupor. Drivers are not entitled to assume that other users of the road will do so with reasonable care. Common experience is that many do not. The erratic behaviour of intoxicated persons in the early hours of the morning in town centres is something which requires to be guarded against."

"Even if it is unexpected and unanticipated, it is reasonably foreseeable."

Contributory negligence

The Lord Ordinary had failed to make any finding in relation to contributory negligence, but the Inner House had no difficulty holding that the greater fault lay with the pursuer. There was a significant degree of culpability since the pursuer had chosen to lie down in a dangerous location. The court apportioned 65% fault to the pursuer and 35% to the defenders.


Hannah McMurray

Trainee Solicitor