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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly (AP) v Mussen & Anor [2000] ScotCS 177 (27 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/177.html Cite as: [2000] ScotCS 177

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[1] While the pursuer was walking southwards downhill in Hilltown, Dundee, on the western pavement south of McDonald Street he was struck by a Ford Fiesta motor car, owned and driven by the defender. That car mounted the western pavement and struck the pursuer from behind. Prior thereto the defender had been driving southwards downhill in Hilltown. The pursuer sustained serious injuries and raised the present action. The defender called the third party into the action alleging that the third party's failure to fulfil an alleged duty to maintain a hoarding on its property caused the defender to drive as he did.

[2] After protracted discussion it was ultimately agreed between the defender and third party that the pursuer would receive an agreed sum of damages irrespective of the outcome of the proof between the defender and third party. Accordingly, it was not necessary for the pursuer to take any further part in the proof which proceeded on the basis that the defender, by his actings, had raised a presumption of negligence which he had to rebut. He sought to do so by maintaining that the cause of the pursuer's injury was the third party's failure to maintain its property.

[3] On the day of the accident the defender left his home in the northern part of Dundee shortly before 6.00am to get to his place of work. His route took him southwards down the steeply sloping street known as Hilltown. He encountered traffic lights about 300 yards north of the point of impact, stopped and drove away from them. After a variously estimated distance, which I conclude was about 200 yards, he passed on his left a building site on the east side of the road. It had been the location of a cinema which had been demolished. In order to prevent persons entering upon the site a wooden barrier had been erected which consisted of upright posts and supports, rails and sections of plywood nailed to those rails. The rails were to the east of the plywood and the plywood was attached to them leaving a smooth face to the pavement. There were small gaps between the sheets of plywood. At the opposite side of the road was a building known as "The Islamic Centre".

[4] A wind was blowing that morning. The defender described it as a "stiff breeze" which he could feel gusting in his face when he left his house. The general direction of the wind was south-westerly but the presence of the various buildings located on Hilltown the gap sites and the irregular location of tall buildings nearby, caused turbulent effects so that there was not a steady south-westerly wind. The defender in his evidence seriously underestimated the force of the wind. The general conditions were exceptional. The agreed meteorological report did not provide data for the precise locus of the accident but at a site, said to be sheltered, 6km west of Hilltown, the wind speeds and gusts that night were the highest recorded over a 24 year period. The speed there recorded was 74 knots. At Leuchars, at the airfield, an exposed site 13km south-east of Hilltown, a gust achieved 62 knots. That came 23^rd in a table of severity of annual maximum gusts at Leuchars in a 46 year period. The meteorological office issued warnings of gales that night. The wind force at Hilltown was extreme and wholly exceptional.

[5] While the defender was passing a point opposite the Islamic Centre which, on the ordnance survey site plan ultimately acquired at the insistence of the court, was just above the figure marked "8" on the roadway, the defender's vehicle collided with one, or perhaps two, pieces of plywood from the barrier enclosing the vacant site. These had broken away from a part of the barrier near to a building, having been forced outwards. According to the constable who attended the accident, there were on the roadway two pieces of the plywood which had formed part of the hoarding, together with barrels, drums and other debris from the building site. The defender's vehicle, the policeman said, was "embedded" in a railing between the pavement and the open ground to the west of Hilltown.

[6] The defender's account of events was that he had been driving at about 28mph, in second gear, when he came into collision with the plywood. It, he said, lodged across his windscreen, breaking it, and only dropped off when the vehicle came to rest by colliding with the upright post of the said railing. The plywood was not, when the constable arrived, close to the defender's vehicle. He tried, he said, to steer left, but was forced across the road onto the pavement. He accepted that the distance he had travelled prior to coming to rest after colliding with the railing was in the range of 371/2 to 40 metres. He said that when his vehicle was struck he attempted to stop, he pumped the brakes but was nonetheless forced to cross the roadway onto the pavement. The typical stopping distance given in the Highway Code is 36 metres at 40mph. The defender stated that his vehicle had passed its MOT test but there was no evidence about the condition of the brakes and the vehicle was so severely damaged by the impact that it was not repaired. The front of the vehicle had been forced out of alignment. The defender's braking had not been sufficient on its own to stop the vehicle.

[7] An unbroken sheet of plywood measured about 7 feet by 31/2 feet.

[8] The barrier had been in place for some time before the third party acquired the site. There was no evidence about the date of its erection. The third party acquired the site in July 1996 and took entry shortly thereafter. The third party engaged the services of Health and Safety Consultants to advise on the safety of the site and its equipment. No defect in the barrier was apparent to or was reported to the third party by those they had engaged to advise them. The Health and Safety Consultants' evidence, however, did not establish that they had paid any particular attention to the barrier if indeed they ever looked at it at all. There were a number of plywood panels, about 22 in all, and of these about 20 appeared to have survived the extreme weather conditions. Criticism of the condition of the barrier was made by Mr Ian Rodger, a building consultant, who examined it in May 1997. The police constable who gave evidence said that he had been concerned about the barrier waving in a wind in October and had taken steps to draw that to the attention of his colleagues at the police station nearby. No report or complaint, however, was made to the third party and the remaining barrier survived until and after Mr Rodger's inspection. Mr Rodger criticised the material and the deterioration he saw in the barrier, but there was no evidence of its state prior to the accident having been such that panels were likely to be blown off in conditions which could be anticipated and were not extreme.

[9] As counsel for the defender accepted, for the defender to escape liability he required to discharge the evidential burden raised against him by the facts of the accident. In the present case this involves his persuading the court that his travelling 371/2 metres from his own side of the road to the opposite pavement and thereafter embedding his car in a railing, consisting of metal posts and a top rail which required to be replaced, was not negligent. I do not accept that he could have been travelling at 28mph in second gear and have been unable to stop before mounting the pavement. If he had been in second gear he would have had the advantage of engine braking. The stopping distance at 30mph is given as 23 metres and even allowing for the gradient and the wet and windy conditions I am unable to accept that he was travelling at the speed he claimed when he collided with the plywood. The inference from the final position of the car and the place at which his emergency arose must be that he was travelling too fast for the conditions and that had he been travelling at an appropriate speed the pursuer would not have been injured. His explanation that his car was forced across the road and could not be corrected from its course when struck by an admittedly large piece of plywood is not credible. The plywood was of insufficient weight to prevent the police constable carrying it back to the site and there was no evidence that impact from such an object could as a matter of mechanics cause a motor vehicle so to be diverted. In the absence of evidence of the relative forces involved and the effect of a piece of flying plywood on a substantial motor vehicle, I cannot hold that the defender was unavoidably diverted from his proper course. I make allowance for the surprise and the agony of the moment but these factors cannot in my view explain the result. I do not believe that the defender tried to turn or steer to his left, but would not necessarily have blamed him for that failure had he been travelling at a speed within which he could stop.

[10] To the question whether the third party contributed to the accident the defender has not provided adequate answers by way of evidence. There is no evidence that the third party knew or ought to have known that the barrier would be likely to be dislodged in weather conditions which might reasonably be anticipated. Indeed there is no evidence that the wind did in fact blow out the panels; the presence of drums and barrels on the roadway might indicate that the barrier had been assaulted by these objects from the inside. The third party did engage appropriate persons to make an inspection on their behalf, albeit that had the case depended upon their evidence about their inspection they would not have been impressive witnesses.

[11] That the third party can discharge their duty, if any, to inspect and maintain by engaging appropriate persons to do so, is vouched by Caminer v Northern and London Investment Trust Ltd 1951 A.C. 88 and in particular per Lord Oaksey at p.104. However, on the evidence before the court, I am unable to hold that the barrier was in fact defective in the sense that it was liable to fail in weather conditions which could reasonably be anticipated.

[12] Accordingly, I find that the pursuer's injuries were caused by the sole fault of the defender and that no contribution to the accident was made by the fault of the third party.

[13] As agreed by all parties the case will be put out By Order so that an appropriate interlocutor can be pronounced.