Mhairi Stainsby v. Janice Fallon [2010] CSIH 64

In July 2005, two sons of the pursuer were walking along a pavement towards an ice-cream van, when one fell into the road and was trapped under the nearside rear wheel of the defender's vehicle. He sustained numerous serious injuries, including a fractured jaw, the loss of two front teeth, and fractured metatarsals in his right foot.

The pursuer raised an action for damages against the defender in the Court of Session under Chapter 43 of the Rules of Court, alleging that the defender had driven too close to the pavement and had failed to sound her horn on approach. A civil jury trial took place in October 2008, but having heard the pursuer's evidence and submissions, the Lord Ordinary withdrew the case from the jury, on the basis that the evidence heard set up an essentially different case from that stated on record and that it did not constitute a relevant case in relation to the current proceedings.

The pursuer enrolled a motion for a new trial, contending that the case should have been left with the jury for their own determination, as only if there was no evidence upon which a jury properly directed could find in favour of the pursuer could the case be withdrawn from them. Alternatively, there had to be a major departure from the pleadings resulting in material prejudice to the defender: a mere discrepancy between the pleadings and the evidence was not enough.

The court noted that only in rare and exceptional circumstances will a case in which evidence has been led before a civil jury be withdrawn from that jury before they give their verdict. The court was not persuaded that there was such a discrepancy between the pursuer's averments and the evidence led at trial, that the case should have been withdrawn.
The court further noted that the Lord Ordinary appeared to have assessed the evidence and to have given his own view that no negligence had been established; yet the court noted that even if he was correct on this point, that assessment properly remained one for the jury. Pursuer's motion for a new civil jury trial granted.