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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 29
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PD1929/04
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OPINION OF LORD UIST
in the cause
MARK EASDON
Pursuer
against
A CLARKE & COMPANY (SMETHWICK) LIMITED
Defenders
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
D I Mackay QC, Christine;
Andersons Solicitors
LLP
Defenders: Stacey QC, Marney; HBM Sayers
15 February 2008
Introduction
[1] The
pursuer, who was born on 13 June 1971, sustained serious injuries
in a road traffic accident on 4 July 2003. He was riding his motorcycle registered
number T267 CGB on an access road to an industrial estate off
Netherton Road, Wishaw near to the premises of his employers J Danskin
& Company Limited ("Danskin") when a head-on collision occurred between it
and a Heavy Goods Vehicle (HGV) cab unit registered number SAO2 JBU
owned by the defenders and driven by their employee Brian Conner acting in
the course of his employment with them. As
a result of the accident the pursuer was rendered tetraplegic.
[2] The
case went to proof on the question of liability only. The following witnesses were led for the
pursuer: the pursuer himself; Sergeant David Mitchell of Strathclyde
Police Road Policing Department Crash Investigation Unit; Sergeant Stewart Hunter of Strathclyde
Police, based at Motherwell Police Office;
Keith Lloyd of Siemens VDO Training Limited, Birmingham; Brian Conner, the driver of the cab
unit, and Dr John Searle, an expert in road traffic accident
reconstruction.. The defenders led
Constable Hazel Scott of Strathclyde Police and Steven Parkin and
Douglas Bolton, both experts in road traffic accident reconstruction.
The scene of the accident
[3] The
scene of the accident was within an industrial estate and is not easy to
describe. I therefore append as Appendix 1
hereto a photograph (6/38 of process, photograph 18) showing it
from the point of view of the pursuer shortly before the accident.
The factual evidence
(i) The pursuer
[4] The
pursuer, who lives in Bothwell, explained that in 2003 he worked as a
sales representative for Danskin at 1 Netherton Road, Wishaw. He was due to be promoted to sales manager on
21 July 2003. The defenders had premises across the road
from his employers' offices. He had the
use of a company car, which he used predominantly for going to and coming from
work. He also had his own private
motorcycle, a Kawasaki 750 cc registered
number T267 CGB, which he also sometimes used to go to and come from
work. He had passed the driving test to
allow him to drive the motor cycle about 13 months before the accident. He thought he was a competent and diligent (sic) driver. He had undergone instruction in how to apply
the brakes on his motor cycle. He had
been taught how to brake and bring the motor cycle to a halt in a controlled
manner.
[5] On 4 July 2003 the weather was warm, dry and very sunny. In the course of the morning he had left the
office in his company car, driven to Glasgow to deliver samples to a
client and then driven to his then home in Cambuslang for lunch. After lunch he left the company car at home
and took his motor cycle back to the office because it was a nice day.
[6] The
office of Danskin to which the pursuer was going is shown on the left in photograph 18. The premises of the defenders, who ran a
haulage business, are shown on the right in photograph 18. The entrance and exit gate for lorries going
to and coming from the defenders' premises was round the bend and out of view
to the right. The pursuer had worked for
Danskin for seven and a half years before July 2003 and had previously
seen trucks entering and exiting the defenders' premises.
[7] The
pursuer went on to relate that just before the accident he was driving his
motor cycle towards Danskin's building as shown in photograph 18. As he approached the corner of the building shown
on the left side of the photograph he saw the corner of a truck travelling
towards him on the wrong side of the road.
He braked. He remembered seeing
the truck move towards him. He had
braked heavily and collided with the truck.
When he saw the truck he felt the situation was so dangerous he
immediately braked heavily. He did not
remember if he was still on his motor cycle at the time of the collision. His recollection is that he was travelling in
"the mid 20s" mph when he approached the bend. He did not accept the allegation made by the
defenders in their pleadings that he was travelling at at least 30 mph
as he approached the bend. When he
braked it was two wheel braking. When a
speed of 27 mph was suggested to him as being his speed on approach
to the corner, he said that he would accept that. He understood that the Highway Code laid down
that he should travel at such a speed that he could stop in time if presented
with an emergency. He could certainly
have stopped if he had been presented with a stationary emergency round the
corner. It was his intention at the
time, had the accident not occurred, to have travelled up to Danskin's car park
at the end of the access road.
[8] When the
averment by the defenders at p 9A of the Closed Record that shortly
after the accident he told a police officer that he had hit his brakes, that
his back wheel had locked up and that he had "high sided" was put to him, the
pursuer replied that he had no recollection of saying that: it was possible, but he did not remember that
happening. He did not remember losing
control of the motor cycle as a result of heavy braking. It was definitely not the case that he had
braked heavily for no reason at all. He
was aware that on a regular basis lorries turned out of the defenders' premises
and then drove down the access road onto Netherton Road. He had in the past seen them turn onto the
wrong side of the road, but only when they had a trailer unit attached. He had never before seen a cab unit on its
own turn onto the wrong side of the road.
The vehicle involved in the accident was just a cab unit on its own. The same situation as occurred on the day of
the accident would not have occurred if the cab unit had had a trailer attached
as it would have been possible to see the trailer from a greater distance back,
he would have known that there was a trailer coming out and he would have
braked earlier in anticipation of the cab of the truck being on the wrong side
of the road. On the day of the accident
he saw only the corner of the cab unit before the collision. He did not think it was correct to say that
he should have anticipated that a vehicle would be on the wrong side of the
road as he had only previously seen this when there was a cab unit with trailer
attached. He had not been charged with
any offence arising out of the accident.
[9] In
cross-examination the pursuer stated that Danskin manufactured a range of
acoustic equipment, some of which was manufactured to customers and delivered
to customers. They had two trucks which
were loaded at the side entrance. (At
this stage Mr Mackay QC for the pursuer took objection to the line of
evidence, which I allowed subject to competency and relevancy). On his way back from his home that afternoon
he had driven along Netherton Road, stopped to allow a line of cars on the
opposite carriageway to pass and then turned right into the industrial estate
from a standing start. The entrance was
quite wide.
[10] He
accepted that the Highway Code stated that you had to drive so as to be able to
stop within your range of vision. He had
frequently seen vehicles exiting the defenders' yard. He knew that other vehicles parked in
Danskin's car park and that members of the public went to the textile shop at
the end of the road. He thought that
Danskin's loading bay just round the corner on the left was used fairly
infrequently. It was not possible that
there could have been all sorts of things round the corner that he could not
see. He accepted that the corner could
be described as a blind corner: it would
not be possible, on approaching the corner from the entrance gate, to see
someone walking close to Danskin's building or traffic round the corner. He had thought he was travelling in the
mid 20s but had no reason to dispute the speed of 27 mph
with which he had been provided. He
would not accept that he was doing as much as 30 mph or even more
than that. He could not accurately
estimate the speed which the cab unit was doing at the time of the collision. "High-siding" meant that a wheel lost
traction and then grabbed traction. The
rear wheel caught and then threw you off.
He knew of the term before the accident but did not know how he had
found out about it. The advice which he
had received about braking was to brake as quickly as you can and in a manner
that you retain as much control as possible over the motor cycle. You moderate your braking. You try not to lock your brakes. If you do lock your brakes you are liable to
skid because the wheels lose traction. If
you put on your brakes too hard you might "high-side". Speed mattered when you were braking: the higher your speed the longer your
stopping distance. If the brakes were
applied with moderation the distance which the motor cycle travelled was
dependent on its speed. This had
consequences for riding within your range of vision. If there was no moderation in braking, the
danger was that you would lose control and possibly come off your motor cycle
and hit the road or any obstacle.
[11] Reverting
to the day of the accident, the pursuer remembered stopping for the traffic in Netherton Road, turning right into the industrial
estate, getting up to 27 mph at the blind corner and seeing the
corner of the cab unit. He was unable to
say with any accuracy where he was when he saw the corner of the cab unit. He accepted that if he had been travelling
more slowly he would have been able to stop his motor cycle in a shorter
distance. He did not think that his
losing control of the motor cycle was necessarily linked to his speed. He put the brakes on hard because of the
large cab unit travelling towards him on his side of the road: he had to do everything in his power to stop
himself hitting it. He thought that
speed was a factor, but not the main factor, in braking. He disagreed that if he had been doing 10-15 mph
or 15-20 mph he would not have suffered the accident that befell him. He did not recall making a statement to a
female constable in Wishaw General Hospital after the accident in the course of
which he said, among other things, that he took the corner, saw a huge "artic"
on his side of the road, hit the brakes and the back wheel locked up, the motor
cycle "high-sided", he put it down and did not remember anything else after
that.
[12] The
pursuer accepted that it was possible that there were all sorts of things round
the corner, but he had never seen people walking there, only vehicular traffic. If a cab unit with a trailer attached had
come out of the defenders' yard he would have been able to see the trailer through
the fence of the defenders' yard. Whether
he was on a motor cycle or in a car he would have been looking for vehicles in
the defenders' yard just the same. He
thought that was the safest way of travelling round that corner. He agreed that the slower you go the easier
it is to stop. He felt on the day his
speed was safe enough for the conditions.
He felt he had been travelling at a safe speed, but he was just not
prepared for a truck to be on the wrong side of the road for no apparent reason. He was prepared to accept that he had been
travelling at 27 mph because of the information he had received from Dr Searle,
but his own impression was that his speed was in the mid 20s.
[13] In
re-examination the pursuer stated that he would not have driven into Danskin's
car park at a speed of 27 mph.
He thought that at the time he was driving at a speed that would have
enabled him to stop in an emergency. He
did not agree with the proposition in 6/23 of process, para 12.5 that
he would not have been able to stop for a pedestrian or stationary vehicle
round the corner. He had no reason to
suspect that there might be traffic coming from the textile shop on the wrong
side of the road. As he was approaching
the corner he would have been looking ahead and could not have avoided seeing a
cab unit and trailer exiting from the defenders' premises. He was looking ahead at the time and saw
nothing to alert a suspicion that there was something on the wrong side of the
road. A warning sign was put up by
Danskin's production director the day after the accident.
(ii) Sgt David Mitchell
[14] Sergeant
David Mitchell of Strathclyde Police Road Policing Department Crash
Investigation Unit was 41 years old with 23 years' police service,
18 of which had been in the Traffic Department. He was authorised to test vehicles. He was a class 1 Advanced Driver and had
passed the police motor cycle examination.
He had attended the course at Aberdeen University in reconstruction of road
traffic accidents. He had attended the
basic course about five or six years previously, the advanced course about four
years previously and he had obtained his licentiate two years previously.
[15] He had
arrived, along with Constable Stewart Bell, at the scene of the accident
at about 4.40 pm on 4 July 2003. He there met Constable Hazel Scott, who
informed him of the circumstances of the accident. He examined the scene of the accident, took
measurements and examined both vehicles.
He described the damage to the cab unit as light. The front offside auxiliary light was
damaged, the number plate was cracked and the offside front bumper had scuff
marks. The motor cycle had damage
primarily to its offside. The upper and
middle faring was cracked and had scuffing consistent with its having slid
along the road surface on its side. He
took photographs which showed, among other things, a locked wheel tyre mark on
the road surface (6/38/7 of process) and the rear wheel of the motor cycle
(6/38/24 of process) which had damage consistent with a locked wheel tyre
mark due to the wheel having locked up and skidded along the surface. He made a sketch (6/40 of process, a
reduced version of which forms Appendix 2 hereto) which showed two
separate tyre marks which had originally been only one mark. There were also scratch marks on the road
surface caused by the offside of the motor cycle as it slid along the ground
and locked wheel tyre marks made by the front tyres of the cab unit.
[16] Sgt Mitchell
attempted to calculate the pre-braking speed of the motor cycle. At the beginning of point A in the sketch it
was no less than 23 mph. He
believed that for the cab unit the tachograph gave a speed of just under
20 kilometres per hour. The cab
unit had been mostly on its wrong side of the road. He did not find any debris. The motor cycle had been removed as it had
been spilling fuel. His conclusion was
that the motor cycle had been travelling north on the access road, as it
approached the bend the driver's view was masked by the gable end of Danskin's
building, the cab unit had turned left from the defenders' yard onto the right
side of the road, the driver of the motor cycle saw the cab unit as he
approached the bend, he braked, the rear wheel of his motor cycle locked and he
lost control of his motor cycle, which fell onto its offside and slid along the
road surface, the cab unit braked making tyre marks on the road surface and the
motor cycle collided with the cab unit north of the gouge marks and south of
the tyre marks made by the lorry.
[17] In
cross-examination Sgt Mitchell explained that he had been called to the
scene as an expert in accident reconstruction.
Other officers had put the motor cycle in Danskin's premises and the cab
unit had been moved into the defenders' yard.
From memory he thought the cab unit's tyre marks were under two metres
long. The tyre mark made by the motor
cycle was in the region of 3.4 metres long. He was confident that it had been made by the
rear wheel of the motor cycle. He
explained that what happened was that the callipers stopped the disc rotating
and heat built up between the tyre and the road surface, causing heat marks to
be left on the road. The motor cycle had
been travelling at not less than 23 mph at the start of tyre mark A. He could not say how much faster it had been
going before that point.
[18] The
scratch marks had been caused by the side of the motor cycle going along the
ground. The same principle would have
applied had a pedal cycle been involved.
The scratch marks on the road surface were consistent with the marks on
the motor cycle itself. The motor cycle
would have ended up at the end of the scratch marks. When you applied the brakes on a motor cycle
it began to "yawn". The motor cycle
would have been slightly banked to its left.
The banking did not go hand in hand with speed. He had taken into account the fact that the
motor cycle was going along on its side.
His calculation of speed assumed that the motor cycle had slid to a halt. He did not know the speed, if any, of the
motor cycle at the time of impact and he could not tell if the motor cycle had
just slid to a halt. He had travelled
along with a colleague in a police car the route taken by the motor cycle and
explained that before the corner you could not see round it because of the
building line.
(iii) Sgt Stewart Hunter
[19] Sgt Stewart
Hunter of Strathclyde Police based at Motherwell was aged 43 with 23 years'
police service. He had attended the
accident scene on 4 July 2003 as a supervisor. He thought that he had arrived shortly after 3 pm. He was told the accident had happened
at 2.35 pm. The motor
cycle had been moved and was upright at Danskin's premises. The cab unit was still in the position it had
been in at the time of the accident. He
observed tyre marks in the road after the cab unit was moved. A tyre mark and gouges in the road left by
the motor cycle were also pointed out to him.
He looked at the cab unit's tachograph chart: its speed at the time of the accident was
around 20 kph. The photograph 6/38/18 of
process (Appendix 1 hereto) showed the scene as he remembered it on the
day. He requested that officers of the
Traffic Department attend due to the nature of the accident and they in turn
requested accident investigators to attend.
He initially charged the driver of the cab unit and later submitted a
report to the Procurator Fiscal. He
believed that no proceedings were taken by the Procurator Fiscal against the
driver of the cab unit.
[20] In
cross-examination Sgt Hunter stated that the information he had received
from the accident investigators was that the speed of the motor cycle was 23 mph. He included that information in his report to
the Procurator Fiscal. On the day
Constable Hazel Scott had arrived before him along with Constable Mackay. He himself had charged the driver of the cab
unit and was of the opinion that he should be reported to the Procurator Fiscal
for a contravention of section 3 of the Road Traffic Act 1988. There was no discussion about the matter and
he was in a minority among police officers in taking the view that that was the
appropriate course of action to take. As
the senior officer his view prevailed. The
officers initially on the scene, including PC Hazel Scott, and the
accident investigators agreed with him. He
thought that the fact that the speed of the motor cycle was 23 mph
was partly relevant. If the motor
cyclist had been travelling at an excessive speed he would have said that he
was more to blame along with the driver of the cab unit. The area where the accident occurred was a
cul-de-sac in an industrial estate. There
were various businesses situated there and an element of traffic coming and
going during the day. There were no road
markings. There was no absolutely safe
speed for the motor cycle. When he was
asked whether 23 mph was all right or not objection was taken to the
question on the ground that this was a matter for the court and I allowed the
evidence subject to competency and relevancy.
His reply was that 23 mph did not appear excessive to him, but
"it was down to the Procurator Fiscal". He
knew the speed had been not less than 23 mph, but not how much more
it might have been. He did not know how
the accident investigators did their calculations. The speed of the cab unit was around 12 mph. He had seen the sketch drawn up by
Sgt Mitchell and used that to assist him.
He did not think you could see round the blind corner as you entered the
industrial estate as it was blind on the eastbound side of the road.
(iv) Keith Lloyd
[21] Keith Lloyd
was a tachograph analyst aged 50 who worked for Siemens VDO Training
Limited in Birmingham. He was a graduate metallurgist and held a
certificate in accident investigation. He
produced a report 6/35 of process. He
had examined the cab unit's tachograph chart 6/34 of process. Recordings on it commenced at about 07:21 hours chart time and
ended at about 15:20 hours chart time. During that time several periods of driving
and short movements, covering a total recorded distance of approximately
214.5 kilometres (about 133.5 miles) had been recorded. He was led to believe that the time of the
collision was 14:35. The chart showed a short movement
between 14:31 and 14:32 hours, which seemed
most likely to be the period during which the collision occurred. It further indicated that the cab unit had
accelerated to a maximum speed of about 22 kph (14 mph), which
it maintained only momentarily before slowing to a halt. In his opinion the duration of the movement
could have been as little as about 18 seconds or as long as about 65 seconds,
during which time the cab unit could have travelled as little as 50-60 metres
or as much as 140-150 metres, but he thought that the duration of the
movement and the distance travelled were towards the lower end of the ranges
quoted, although he could not say precisely where within the range. There was nothing in the chart to identify
the precise moment of impact and consequently it was not possible to determine
the cab unit's precise speed at the moment of impact. Speeds below 4 to 6 mph would
not be recorded on the chart. There was
no indication on the chart that the cab unit had stopped at the yard gate: it simply showed a baseline to 22 kph,
then it stopped. The chart in question
was an electronically driven one.
[22] In
cross-examination Mr Lloyd explained that his analysis was done on a
specialised chart with the aid of a microscope.
He rounded up or down to the nearest kilometre. The speed of the cab unit was rounded up
to 22 kph and to 14 mph from just over 13.5 mph. He had to accept that the speed of the cab
unit could have been 13 mph if rounding down were done. The yard gate was 30 to 40 metres
from the point at which the cab unit had halted. The minimum distance for movement being
indicated was 50 to 60 metres, so the cab unit could not have
stopped 30 to 40 metres away from its final stopping position. When the cab unit was out of the gate it was
almost certainly accelerating up to 22 kph before it came to a halt.
(v) Brian Conner
[23] Mr Conner,
aged 54, was employed as an HGV driver by the defenders and was driving
the cab unit in the course of his employment with them at the time of the
accident. He was familiar with their
premises at Netherton Road, Wishaw. About 14:35 hours that day he
drove the cab unit into their yard. He
later drove it out of the yard into the access road. There was a blind spot at Danskin's corner as
a result of which he could not see oncoming traffic when he emerged from the
gate. He was not doing any faster
than 15 or 20 mph. He
was 4 or 5 feet away from the kerb.
As far as he was aware he did not cross over to the other side of the
road when he came out of the gate. He
did not think that he did. He supposed
he could have. He did not really
remember. He did not think so. It could have been that he did do so. He said that the (parallel) tyre marks were
from his putting on his footbrake and handbrake. He might have crossed over to the other side
of the road. He could not remember. It happened that fast. There was no reason for him to cross over to
the other side of the road. He supposed
he could have strayed on his own side of the road "if you put it that way". He asked the question: how far over was I meant to be? It must have been six inches on his offside,
if it was that. He could not remember. A motor bike came flying in and an accident
happened. He was maybe just off-centre: the centre of the truck would have been in
the centre of the road. It was true that
there was no necessity whatsoever for him to straddle the mid-line. He supposed he could have stayed on his own
side of the road. He supposed his
driving showed a complete disregard for oncoming traffic. He actually thought he was driving safely. (He had been driving for 33 years). He was past the blind spot and he saw the
motor cycle coming in the opposite direction.
The motor cyclist braked, the back wheel of the motor cycle came off the
ground and his left handlebar went under the bike, trapping him under the motor
cycle. He then came sliding along
towards the cab unit and collided with the front of it. When the motor cyclist came in the entrance
to the industrial estate he was on his own side of the road and when he braked
and lost control of his bike he was in the centre of the road. He did not know if the motor cyclist had been
distracted by people working on his (the motor cyclist's) left side. He braked the cab unit when he saw the motor
cyclist was off his cycle: all he did
was to stop the cab unit. The cab unit
was stopped when the motor cyclist came sliding into it.
[24] In
cross-examination Mr Conner explained that at the time of the accident he
was heading for Livingston to pick up a trailer.
This was not a manoeuvre which he had ever done before. He had previously driven a cab unit, but not for
the defenders. He usually drove a cab
unit with a trailer attached. When there
was a trailer attached to the cab unit you had to straddle the centre of the
road on coming out of the yard. It
seemed that he came out of the yard that day driving the cab unit as though it
had a trailer attached. He did not know
why he went over to the other side of the road - if he did. Possibly he thought he had a trailer. The risky side for an HGV driver coming out
of the yard gate was the near side. The
hardest part with a trailer was to take a left turn as you could not see the
trailer. It was not the same if there
was no trailer attached. The tachograph
chart should show his speed correctly. If
it showed 13 mph he would accept that as being his speed. To him the motor cycle was doing just over 30 mph
when it entered the industrial estate and travelled up the drive towards the
Danskin building. He was just coming out
the blind spot when he saw the motor cycle.
The driver's helmet was "sidey-ways" looking to his left, as if he was
not concentrating. When he saw the motor
cyclist he said to himself "He's going too fast to see me." The next minute the motor
cyclist looked up, saw him, braked, the back wheel of the motor cycle went up
and the motor cyclist went between the left handlebar and the bike itself and
slid towards him. He first realised an
accident was on the cards as soon as he saw the motor cyclist losing control of
the motor cycle. His (Mr Conner's)
emergency stop was successful as he brought the cab unit to a halt. He was at a stop at the time of impact. He got out of the cab unit and asked the
motor cyclist if he was all right. The
motor cyclist, who was jammed between the motor cycle and the cab unit, dead
centre touching the mid-bumper of the cab unit, answered "yes". The motor cycle was four inches back from the
motor cycle. He agreed that it had not
been necessary for him to swing out in the cab unit the way he did. When there was a trailer attached to the cab
unit you always had to watch out for cars and pedestrians.
[25] In
re-examination Mr Conner denied that he was making his evidence up and
asserted that he was telling the truth. The
motor cycle was doing 30 mph when it first came onto the forecourt. It could have been faster, he did not know. He had always said the motor cyclist was
doing just over 30 mph. On
being shown the sketch attached to 6/23 of process, which plotted a course
described as "actual path" for the cab unit, he first said it was hard to say
if that showed his actual path. Next he
said that would have been his actual path if he had been towing a trailer. He then said yes, that was his actual path on
the day of the accident, but thereafter went on to say that it was hard to say
and he could not say for sure. He would
say no, he did not know. He would say
yes. It was hard to say. He was trying to fathom it out again. On looking at the sketch he said he was not
sure. He would say yes, that was the
actual path on the day. He could not
remember speaking to the police after the accident or having to take a breath
test: he could remember only an
inspector taking his tachograph chart out.
On being referred to a statement alleged to have been made by him which
was noted in Constable Hazel Scott's notebook (6/53 of process) he
accepted that he had said to her that the motor cyclist was travelling
at 40 mph. He accepted that
there was no mention in his police statement of the motor cyclist looking to
his left and said that he had told that to his lawyer. He denied the suggestion put to him that he
was "just making all this up". He would
say the motor cyclist was going faster than 27 mph, between 30
and 40 mph. That was what he
said in his police statement. He did not
know.
(vi) Sgt Hazel Scott
[26] Sgt Hazel Scott
(then a Constable) aged 38 with 13 years' police service and based at
Strathclyde Police Headquarters, attended the scene of the accident on 4 July 2003 with Constable Scott Mackay. They were the first police officers in
attendance. The motor cycle and the cab
unit were just around the corner at the Danskin building. The motor cycle had been moved before their
arrival and was later moved again inside the premises. The cab unit had also been moved. The motor cyclist, who was badly injured, was
removed to hospital by ambulance. She
took a brief statement from Mr Conner and obtained a negative breath test
from him. Sgt Hunter arrived later.
[27] She and
her colleague attended at the hospital, where she took a brief statement from
the pursuer. She asked him what had
happened. He replied that he cut off the
main road to his office and that when he took the corner there was a huge
"artic" on his side of the road. He went
on to say that he hit the brake, his back wheel locked up, the bike
"high-sided", he put it down and he did not remember anything else. When she asked him what speed he was doing he
told her 20 mph.
[28] Sgt Scott
accepted that there was a difference of opinion on whether Mr Conner
should be prosecuted. She differed from
Sgt Hunter as she thought that Mr Conner should not be prosecuted. A report went to the Procurator Fiscal but no
criminal proceedings were taken against Mr Conner.
[29] In
cross-examination Sgt Scott explained that at Wishaw General Hospital she was unable to obtain a
proper statement from the pursuer because of his injuries. She had obtained permission from the hospital
staff to speak to the pursuer when he was on a trolley in the Casualty
Department. At 15:00 hours on the day of
the accident she saw Mr Conner and obtained a brief statement from him in
the following terms:
"I work for Clarke, North
Pickering Works. About twenty five to
three this afternoon I left my works and was driving my Scania
lorry SA02 JBU. As I came out
the yard and got to the corner I saw a motor cycle coming towards me. He was going very fast, about 40 mph. He braked and locked the front wheel of his
motor cycle. I saw him going over the
handlebars and then he put the bike on its side, its offside. He slid for about 15 or 20 feet
towards my lorry. I heard the bike hit
my lorry and come to a stop to the offside of my lorry. The cyclist was lying on the road in front of
my lorry. I came out the cab. The motor cyclist couldn't move. He could talk but not move. Workers came out from the various works and
someone phoned an ambulance. The motor
cyclist stayed on the ground until the ambulance came. I am not injured, just a bit shaky. I do not know the motor cyclist. I would not be able to identify him as he
never took off his helmet until he got in the ambulance."
The expert
evidence
(i) Dr John Searle
[30] Dr Searle (68)
was led as a witness for the pursuer. He
is a Chartered Engineer, a Fellow of the Institute of Mechanical Engineers, Automobile Division, and a
Fellow of the Institution of Highways and Transportation. He was awarded his doctorate in 1973. For 25 years he followed a career at the
Motor Industry Research Association, a research institute set up jointly by the
motor industry and the UK Government. He
began by taking charge of human factors work, which encompassed reaction time,
distraction, field of view and other topics related to driving. His work on crash injury began in the human
factors area, which soon grew to be a separate crash research group. He headed that group, as well as the human
factors group and was responsible for the Accident Investigation Team and
Biomechanics studies. The group which he
headed carried out thousands of crash tests of all kinds, including tests with
cars, motorcycles and lorries either rolling over or colliding with other
vehicles, barriers or pedestrians. He had
been involved in about 5000 tests. Changes
of responsibility gave him experience of vehicle handling, component failures
and other topics. He eventually became
Scientific Director, in charge of about 200 engineers, physicists,
mathematicians, technicians and others. He
had responsibility for the entire programme of scientific and engineering work
and all reports or papers required his approval. After leaving the Motor Industry Research
Association he remained chairman of the BSI Committee on occupant safety and
continued his professional development by attending training courses and
conferences. He also continued his
personal input of scientific papers, which numbered about 50.
[31] Dr Searle
spoke to his report 6/23 of process.
In it he stated that before the motor cycle fell onto its side it left a
tyre mark, which he thought was made by both wheels and on that basis he
obtained a speed for the motor cycle at the start of its tyre mark of some 27 mph. He accepted that the initial speed of the cab
unit, before braking, was around 13 mph. According to Dr Searle, the cab unit was
travelling at some 13 mph on the wrong side of the road when the
motor cycle came round the corner on its correct side of the road travelling at
a speed in the upper twenties. At the
site articulated lorries routinely went onto the wrong side of the road when
emerging from the defenders' gateway: the
driver had to do that, because if he turned more sharply the rear of the long
trailer would contact the gatepost. Such
a manoeuvre was carried out at a slow speed, perhaps some 6 mph or so. As Mr Conner had no trailer on the day
of the accident, going onto the wrong side of the road was not a necessity for
him. The turning circle of the cab unit
was some 12.4 or 13.5 metres, depending on the type of front
suspension. It was not at all difficult
to drive a cab unit out of the gateway while remaining at all times on the
correct side of the road, as illustrated on a plan which was an appendix to his
report and a DVD recording which he had subsequently taken of a similar cab
unit exiting the defenders' premises. The
turning circle was 32 metres, so the cab unit would not be on full lock on
anywhere near it. Mr Conner did not
take such a path and he also adopted a speed far higher than an articulated
lorry would normally adopt. It seemed
that Mr Conner swung wide onto the wrong side of the road, not of
necessity to keep his trailer from striking the gatepost, but in order to make
the turn at a relatively fast speed. When
the turn out of the gateway was made by a cab unit with trailer attached, a
driver (such as the pursuer) coming along the access road could see what was
going on because the rear of the trailer, when the cab unit was on the wrong
side of the road, was still in the gateway and could be seen by the approaching
driver. In this instance Mr Conner
had gone onto the wrong side of the road in the cab unit, which was a short
vehicle with no trailer, so that there was not the usual warning. An approaching driver could no more have
expected to see Mr Conner's cab unit on the wrong side of the road than he
could have expected to find a private car emerging in that way. The fact that Mr Conner was not pulling
a trailer was therefore not some inconsequential feature of the accident, but
the reason why the pursuer rode around the corner completely unsuspecting of
the situation he would find. Mr Conner's
view was, due to his position, particularly limited, more so than that of the
pursuer. Mr Conner's driving
position was on the offside of his cab unit, while it was the nearside of the
cab unit which first came into the pursuer's view. As a result, Mr Conner was not able to
start braking when the pursuer did. For
a period, Mr Conner continued to maintain his speed of 13 mph,
using up the braking distance available to the pursuer. Mr Conner managed to apply his own
brakes only a fraction of a second before impact. As the pursuer worked at Danskin and was
familiar with the stretch of road, he would know that cab units with their
trailers attached had to use the offside of the road as they emerged from the
defenders' yard and that, when that was being done, the trailer could be seen
in the gateway. Believing that no
vehicle would be coming towards him on his side of the road, the pursuer
appeared to have ridden round the corner at Danskin at a speed in the upper
twenties, a speed at which he could have stopped in the distance he could see
to be clear. Had the pursuer encountered
some stationary obstruction around the corner, he would have been able to brake
to a stop. Indeed, had he encountered a
cab unit with trailer attached manoeuvring out at the usual speed of
around 6 or 7 mph, again he would have been able to stop. He would have been able to do that even if he
had not seen the trailer in the gateway because, due to its slow speed, it
would not have taken so much of his braking distance. The relatively fast speed of Mr Conner's
cab unit increased the closing speed between the cab unit and the motor cycle. The pursuer met the cab unit at a closing
speed of 40 mph instead of a closing speed in the lower thirties,
which would have been the speed with a cab unit with trailer attached manoeuvring
out slowly. That extra closing speed,
with its implications for braking distance, resulted in the pursuer being
unable to stop.
[32] At the
scene there was no form of warning to warn drivers entering the access road of
the danger of heavy lorries driving on the wrong side of the road round the
corner at the Danskin building. An
informal warning was available in that, if the length of the vehicle caused it
to go onto the wrong side of the road, the rear of the vehicle would still be
in the gateway and visible to an approaching driver. On the day of the accident Mr Conner was
driving only a cab unit and had no need to go onto the wrong side of the road
but chose to do so. His speed was faster
than the normal exit speed for a long vehicle and he perhaps swung wide in the
cab unit so that he could maintain a fast speed. As a result the pursuer had no warning as he
approached the corner that there was an oncoming vehicle on his side of the
road. Furthermore, when he encountered
that vehicle, it was travelling at a relatively fast speed. To make matters still worse, that speed
continued, because although the pursuer had seen the nearside of the cab unit, Mr Conner
had not then seen the pursuer's motor cycle.
Had the pursuer encountered a stationary obstruction, or even a slowly
manoeuvring cab unit with trailer attached, he would have been able to stop. As it was, the pursuer applied emergency
braking and slid into a collision. His
speed at impact appeared to be relatively modest, about 7 mph. Mr Conner had by then started braking
and his truck was travelling at a similar speed. The speed at which the pursuer was travelling
appeared to have been somewhat below the 30 mph limit applicable in
built-up areas. Had the pursuer seen the
back end of a cab unit and trailer in the gateway, he would no doubt have
adopted a slower speed, but even if he did not he would still have been able to
stop. What the pursuer did not expect
was a short vehicle travelling at a relatively fast speed on his side of the
road.
[33] Dr Searle
illustrated all the above points in his evidence by reference to photographs
and sketches. In Appendix 1 to his
report he drew a diagram of the collision in which the cab unit was about a
metre from coming to a stop. The diagram
showed that the impact took place on the motor cycle's side of the road. If the cab unit had been wholly on its side
of the road the motor cycle would not have struck it. The motor cycle skewed 90 degrees to the
left and made a gouge mark on the road surface on impact. The scratch mark preceding it, which also
occurred on impact, went transversely across the road. He put the speed at impact at around 15 mph. The motor cycle and the cab unit had each
contributed something like seven and a half mph. The cab unit was going to come out better off
in any collision, unless it collided with a similar vehicle. Conversely, when a motor cycle collides with
another vehicle, the motor cyclist comes off worse as he is the vulnerable road
user, not surrounded by a steel box.
[34] Dr Searle
calculated the speed of the motor cycle when it fell onto its side at 20
and a half mph. Assuming
100% breaking, the pursuer's speed at the start of the tyre mark was 27 mph. If the pursuer had not lost control in the
emergency, he would probably have been able to stop just short of the cab unit. As it was, he stopped just beyond the cab
unit. He would, as above stated, have
easily been able to stop before a stationary object without anything like
emergency braking, but the cab unit did not appear until half way down his line
of vision and the fact that it was moving reduced his stopping distance. He was confronted with a moving cab unit
coming from his near side partly along his line of vision. That made it an emergency and in reacting he
lost control of his motor cycle. He was
not to know the cab unit was about to stop.
He could see the corner of the cab unit before its driver could see him,
the cab unit was advancing and he would not know its driver would see him and
stop. Not only was the cab unit coming
towards him, it was coming across his path.
It advanced until its driver brought it to a stop. Essentially the pursuer braked too hard in an
emergency and his wheels locked. Had the
pursuer remained upright on his motor cycle both he and the cab unit could have
stopped in time. This was not a rare
situation. A motor cyclist should in
theory never lock a wheel on his motor cycle but skids in motor cycle accidents
were extremely common. Dr Searle
stated that he himself did not drive in the expectation that around the corner
there would be somebody coming towards him on the wrong side of the road. He agreed that the collision would not have
happened had the pursuer been driving a car.
The further away you were from Danskin's building the less you could see: the closer you were, the more you could see,
but that meant that you had a shorter stopping distance. The pursuer had sight along the bend for a
relatively long distance.
[35] In
cross-examination Dr Searle stated that the correct date for his report
should be 30 June 2006 and not 30 June 2005 as stated on the report. He had visited the scene on 2 and 3 March 2006. Further
photographs and the DVD recording were taken by him on 2 February 2007 but there was no report for
that. He saw the reports from the
defenders' experts after he wrote his report.
When he wrote his report he did not have the statement of Sgt Hazel Scott
dated 8 December 2006. The evidence "developed" after he had written
his report. He had not altered his
report or written a supplementary report after seeing the reports from the
defenders' two experts as he felt that there was a large measure of agreement
between all three experts.
[36] One of
the photographs which he had taken (6/48/37 of process) showed a 10 mph
speed limit within the premises of Bone Steel in the industrial estate. Netherton Road itself had a 30 mph
speed limit. It was an industrial,
rather than a residential, area. The
average driver would think that there was a 30 mph speed limit within
the industrial estate: Mr Parkin,
one of the defenders' experts, thought that there was a 30 mph speed
limit there. Had the industrial estate
been owned by a local authority the speed limit would have been 30 mph. A 20 mph speed limit was for a
residential area with children. The
proper speed at which to drive was a matter for the court, but industrial
estates were not nearly as hazardous as high density residential areas with
parked cars and pedestrians. Although
there were no road markings in the industrial estate, people would expect
vehicles on the access road to have priority.
If you were driving on the access road you would see a vehicle coming
from your left and expect it to give way.
[37] Under
reference to certain photographs and the plan Dr Searle pointed out that
the skid marks of the motor cycle all ended before the inshot of Danskin's
loading bay on its left. The cab unit
offside skid mark was on the other side of the mid line of the loading bay. A reasonable reaction time for the motor
cyclist in the circumstances was one to one and a half seconds. Both wheels of the cab unit were on the wrong
side of the road before it made its marks with its tyres. The rear end of the motor cycle was first to
collide with the cab unit. PC Mitchell
had explained why the motor cycle had slid round 180 degrees. An abrupt 90 degrees turn could be
produced only by abrupt impact forces. It
was his belief that the motor cycle went down on its offside, slid on the road
and rotated as it did so. The fact that
the damage was to the rear of the motor cycle indicated that it had turned
round. He did not subscribe to the
theory that the cab unit had stopped and the motor cycle slid under it. The impact on the cab unit was at a fairly
high level, about 0.3 or 0.4 metres.
The rear of the motor cycle had struck the lights of the cab unit and
broken them. There was not the slightest
evidence that the motor cycle had wedged itself under the cab unit. There were no scratch marks under the cab
unit and there was no evidence that the motor cycle had to be pulled out from
under it. Had the motor cycle wedged
itself under the cab unit you would not see the 90 degrees change of
direction of the motor cycle: it would
have left straight line marks. The motor
cycle turned relatively gradually as it slid into contact with the cab unit and
the marks became 90 degrees. It was
his belief that the cab unit was moving at impact and continued for a metre or
so over its scratch marks. So far as the
speed of the motor cycle was concerned, he had allowed 2 mph for the
effect of emergency braking. To get a
maximum conceivable speed for the motor cycle you would have to add 1
or 2 mph, probably less than that.
He felt 27 mph was a fair estimate based on maximum possible
front braking, which might not have happened.
The pursuer had not locked the front wheel of the motor cycle, so there
must have been somewhat less than full braking on the front wheel, although the
calculations assumed nothing less than full braking. It was fair to say that it was not known
precisely where within the gateposts Mr Conner had come out of the yard,
but it did not matter, because to produce the skid marks it would have been
necessary for him to go wholly onto the wrong side of the road. It was known that Mr Conner had built up
continuously to the speed at which he had braked.
[38] The
distance from which the pursuer would have been able to see a trailer provided
him with ample distance to stop in time at 30 mph or below. All he would have required to do would have
been to slow up very gently as the trailer would have been seen at a
comfortable distance. If a cab unit had
no trailer it had no need to come out onto the wrong side of the road. The pursuer was aware that cab units with
trailers came out of the yard, but if the cab unit had no trailer it had no
need to go onto the wrong side of the road.
The pursuer would have been able to stop for a cab unit with a trailer,
which would have been moving much more slowly.
He would have been able to stop with no problem at all for a packing
case left in the middle of the road. It
was known where the pursuer was when he braked because his motor cycle had left
a mark: he was taking a path along the
crown of the road. He was able to check
that his path was clear for a long way ahead but the cab unit came from his
near side. A hidden parked vehicle near
Danskin's corner would have been to the nearside of his path but he would have
had enough sight to stop in time. If it
had been on his path he would have seen it a long way ahead. He could have stopped if something had come
out from his nearside to the middle of the road as it would not have been using
his distance. In this instance the
object (the cab unit) came from his nearside and was moving and using his space. The speed of the motor cycle was that the
pursuer could have stopped for any stationary obstruction. Had he been travelling at only 15 mph
he would have had extra opportunity to stop.
It could be said of almost any accident that it would not have happened
if a vehicle had been travelling more slowly.
The first question that had to be asked was whether the speed of the
vehicle was excessive. Any reduction in
speed would be beneficial.
[39] Dr Searle
had not measured the distance from the entrance to the industrial estate at Netherton Road to the accident scene but
he estimated that it was about 200 metres.
A car driver would be able to accelerate to 30 mph in 40
or 50 metres. The motor cycle speed
in this case was hardly "showing off". The
pursuer would have to have slowed down in Netherton Road to turn into the access
road. Dr Searle gave the length of
the motor cycle skid as 4.3 metres, the motor cycle slide as 7.4 metres
and the gap between them as 3.5 metres, making a total of 15.2 metres. If the motor cycle had been travelling at 27 mph
and stopped with a braking co-efficient of friction of 0.7g, he calculated
that it would stop in 10.5 metres, 4.7 metres short of the total
distance. At 27 mph with 0.6g braking,
stopping would take place in 12.15 metres, 2.8 metres short of the
total distance. These were distances in
which the motor cycle would have stopped if there had been no loss of control,
but once it went down it slid further and collided with the cab unit. The pursuer lost control because he did not
know what the cab unit was going to do. If
he had not lost control in the agony of the moment seeing a large cab unit
coming towards him at 13-14 mph he would not have collided with it. No motor cyclist should ever lock either
wheel but in reality this was something motor cyclists did. Dr Searle thought that the reaction
times were possibly one to one and a half seconds for both the pursuer and Mr Conner. The actual reaction times for each were not
known. For the pursuer it would have
taken of the order of two seconds to cover the 15.2 metres mentioned above
plus one second for reaction. Drivers
reacted at different times and one might have reacted more quickly than the
other. There was nothing to suggest
either was slow to react. The accident
was not one which had been caused by slow reactions.
[40] In
re-examination Dr Searle stated that if the cab unit stopped at impact it
would have put up the pursuer's speed but not a lot. Sgt Mitchell had not taken account of the
fact that the motor cycle was still travelling at the end of all the marks it
had made. He thought that a cab unit
drawing a trailer was always there to be seen.
The time when an approaching driver would really look would be when he
came to the corner and had to make a decision about it all. He thought that it was a bit unfair to the
motor cyclist to assume full front braking right up to the collision.
(ii) Steven Parkin
[41] Mr Parkin (43)
had been engaged in the reconstruction of road accidents since about 1987. He held the qualifications of BSc (Hons) in
Mechanical Engineering, Chartered Engineer, Member of the Institute of Mechanical Engineers and Member of the Institute of Traffic Accident
Investigators. He had
previously been manager of the Accident Research Centre at Birmingham University for a period of ten years,
studying how people were injured in road traffic accidents. He practised from Worcester and undertook accident
reconstruction work nationwide. He had
listened to the evidence of fact in court and read Dr Searle's report and
also that of Mr Lloyd. He had
considered on paper the causes of the accident and visited the scene.
[42] It
appeared to Mr Parkin that the speed of the cab unit was 13 mph
and that of the motor cycle 27 mph.
When the pursuer braked the back tyre of the motor cycle locked and
caused a skid mark 4.3 metres long, a gap of 3.5 metres when he fell
to the ground and scrape markings 7.4 metres long before the impact. The motor cycle was upright when it made the
skid mark 4.3 metres long. The
pursuer must have been braking heavily at that point. During the gap the motor cycle was still
travelling forwards and in the process of falling. It then hit the ground. The pursuer lost total control of the motor
cycle and fell off it. It came to a halt
when it hit the cab unit. The cab unit
was most certainly stationary when the motor cycle hit it.
[43] The
plan 6/40 of process showed the absolute positions of the vehicles. It was possible to project backwards in time
as to where they were at any time before the markings were made. At 1.2 seconds before the start of the
motor cycle skid the nearside of the cab unit was coming into sight, but the
driver of the cab unit was not seeing the pursuer at that point. . Reaction
time was normally 1 to 1.5 seconds.
The pursuer had reacted appropriately.
Travel from the beginning of the skid mark to the end of the scrape took
two seconds. Mr Conner reacted in a
very short time, in the order of a second, after seeing the motor cycle. His time to stop was a little over 0.8 seconds. The total time taken for Mr Conner to
stop was therefore 1.8 seconds and the total time for the pursuer to stop
was 3.2 seconds. We therefore knew
that the cab unit was stationary for a little over a second before it was
struck. If the cab unit were to be moved
back three and a half seconds it would be out of sight. The motor cycle change of direction was going
to happen anyway: it was rotating as it
approached the cab unit and rotated further on impact. The scratch marks went through a 90 degrees
left turn. That fact absolutely did not
tell you whether the cab unit was moving or not at the time of impact. He would have expected the motor cycle to
rotate once it hit the ground. Unless
you were present to see the accident happening you could never say that the
motor cycle marks showed that the cab unit was moving at the time of impact.
[44] On
being referred to Dr Searle's report Mr Parkin accepted that on
speeds they were not greatly in disagreement:
the cab unit was travelling at 13 or 14 mph and a speed
of 27 mph for the motor cycle at the start of its skid mark was
likely to be accurate. It could have
been 26 mph: the upper limit
was plus one or two. He agreed with the
statement in para 7.1 of Dr Searle's report that the pursuer applied
emergency braking, locking the rear wheel of the motor cycle, which then went
down onto its offside. Dr Searle
was very probably not right to say (in para 7.3) that the cab unit could
not have reached the end of its skid marks when the collision took place, but
if you did not have the idea that you could move the vehicles back and check
the sightlines it was potentially correct.
The motor cycle could have gone under the cab unit. You could not say (as Dr Searle did in para 7.4)
that it was apparent the cab unit was still moving from the 90 degrees
change in direction of the motor cycle. There
were other possibilities. He also did
not agree with Dr Searle's statement (para 7.5) that the collision
occurred about one metre before the cab unit came to a stop. Dr Searle had excluded the rear wheel
going under the front bumper of the cab unit, but there was 1.25 metres
between the motor cycle skid marks and the cab unit's tyre marks, and the
overhang of the cab unit was 1.46 metres, giving a difference of about
8 inches. When the sightlines were
checked what Dr Searle said was virtually impossible and could not be
correct. Mr Parkin accepted that
the closing speed at impact was the combined speed of the two vehicles. He thought the cab unit had been stationary
at impact and had contributed nothing to it.
It could not be said that the closing speed was 15 mph. He did not accept that the cab unit had
travelled 1.1 metres after impact with the motor cycle. Whether the cab unit was moving at impact was
a completely moot point.
[45] Mr Parkin
opined that the motor cycle could have stopped before any collision if the
pursuer had not skidded. It made no
difference on this point if one took Dr Searle's figures or his own. It was losing control of the motor cycle that
caused the impact to occur. Clearly this
was speed dependent: the slower the
speed at which you were travelling, the shorter the distance in which you could
stop. Stopping distance increased
rapidly with speed. If the pursuer had
been travelling at 20 mph he would have been able to stop sooner: using 1 to 1.5 seconds reaction
time he would have come to a stop on his skid mark with moderate braking. It was the combination of speed and (lack of)
space which made the pursuer feel he was in an emergency. The risk of braking very heavily on a motor
cycle was always that you could lose control and fall off it.
[46] In
cross-examination Mr Parkin conceded that the driver could lose control of
a motor cycle when braking heavily, even at 20 mph. You could lock your brakes at any speed above
walking space, either on a motor cycle or in a car. He further conceded that, if the cab unit had
not been coming up to the corner and the motor cycle had been approaching it at 27 mph,
there was no reason to think that the motor cyclist would not have got round
the corner perfectly safely. As it was,
the pursuer was faced with a heavy goods vehicle coming towards him. The accident was due to a combination of
factors - the cab unit being on the wrong side of the road, the speed of
the motor cycle and the fact that the motor cyclist braked too heavily. If the pursuer had braked heavily without
locking his wheels the accident would not have occurred. What happened was that he encountered a
hazard coming towards him and cutting off his line of escape. This presented him with an enormous dilemma. Had he been travelling at 20 mph
this would only have been an inconvenience as he would have had plenty of time
to stop and if he had slammed on his brakes at 20 mph that would have
been an over-reaction.
[47] Whether
the cab unit was moving when the impact occurred might be largely academic. The 90 degrees deviation of the motor
cycle occurred when the cab unit was at rest and the motor cycle was underneath
it. That was no surprise as the front
bumper of the cab unit was high. The
motor cycle was rotating. Ordinarily you
would expect arcs in the skid marks, but whether the cab unit was moving or
stationary was irrelevant to whether there were arcs in the skid marks. According to the police officers the most
obvious damage to the motor cycle was to the petrol tank. To the rear of the motor cycle he had in mind
minor damage such as the bending of metal.
He had not seen the damage itself, only seen descriptions of it. On being shown a photograph (6/38/28 of
process) of damage to the motor cycle he asserted that it was far from obvious
that it had struck the panel of the cab unit.
It was just not possible for the cab unit to be moving at impact because
looking at the timings it was definitely (a word he virtually never used in
court) stationary.
(iii) Douglas Bolton
[48] Mr Bolton (55)
was employed by a firm of accident investigators in Stoke-on-Trent. He had served in Staffordshire Police for
23 years until November 1993. He
had been employed in accident investigation while a police officer, just like Sgt Mitchell. He was in the Accident Investigation Unit
until 1993. He had attended courses
in accident investigation from 1991.
He had been a police patrol car driver and a police motor cyclist. When in the police he had examined and
weighed vehicles. He had been an
approved police photographer. He was a
Grade 1 Advanced Motor Cyclist, which was the highest qualification you
can obtain. He had been an examiner for
the Institute of Advanced Motorists for over 25 years,
examining drivers of cars, motor cycles, heavy goods vehicles and buses at
advanced level and he had trained motor cyclists in voluntary schemes, both in
the classroom and on the roads. He had
advised Triumph on their motor cycles and road safety in general. He held a class 1 Heavy Goods Vehicle
licence and a Public Service Vehicle licence.
He had a certificate Grade 2 in tachograph analysis. He held membership of three institutes,
including the Institute of Traffic Accident
Investigators. He was
registered with the Council for Registration of Forensic Practitioners On
retirement he had started his own business.
He did over 100 accident investigation reports a year for both
claimants and insurers in the criminal and civil courts in the United Kingdom, Europe and the Far East. Much of his evidence was led under
reservation as to competency and relevancy following objections by Mr Mackay,
with which I deal below at para [75].
[49] Mr Bolton
stated that he had been asked to investigate the circumstances of this accident. He had listened to the evidence of fact given
in court, read Dr Searle's report and visited the scene of the accident in
January 2007 and taken certain photographs of it (7/22 of process). He stated first of all that the motor cycle
driven by the pursuer was a powerful one.
He agreed that the speed of the cab unit before braking was 13
to 14 mph and that the speed of the motor cycle was around 27 mph. He explained that as the pursuer was riding
along the access road he perceived something in front of him which caused him
to brake rather heavily, with such force that the rear wheel of the motor cycle
locked, causing it to want to rotate. This
might have been exacerbated a little bit as the pursuer was approaching a left
bend, so that the front wheel continued to go straight and the rear wheel moved
to the right. The rear wheel left tyre
marks 4.28 metres long, something which would have happened in a second. The pursuer realised what had happened, let
go of the rear brake and the rear wheel gripped the road again but went back
out to its right. In that situation the motor
cycle lifted to its right - something known as "high-siding". The pursuer was then thrown to the road and
the motor cycle followed him and they both slid into the cab unit. The instruction given to motor cyclists about
braking was that the first rule was that you did not skid and that to avoid
skidding you had to apply varying pressure to the front and rear brakes. The front brake had 75% efficiency on it
and caused you to stop. The rear brake
was for balance. A motor cyclist should
apply the front brake before the rear brake and vary the pressure accordingly. Two words which should always be in a motor
cyclist's mind were "self preservation".
The idea was not to get into an emergency situation if possible, but if
you did do so to apply the front brake and then the rear brake. When a motor cyclist went into a skid he had
lost control of his motor cycle and it wanted to turn round. Once the pursuer had applied the rear brake
he was in a "no win situation". If he
had kept the rear brake on he would have fallen to his near side and the
accident might have been just as bad. He
would have expected a motor cycle instructor to tell motor cyclists that they
must not skid. He would have expected
motor cyclists to know about high-siding only if they had watched motor cycle
racing on television, when motor cycles were driven to their limit. So far as speed was concerned, motor cyclists
were taught to ride within the speed limit and to drive at the correct speed
for every situation: they had to take
into account self preservation and the existence of other road users and not put
themselves into emergency situations. What
was said by an instructor depended on the individual instructor, but motor
cyclists should be told that the speed limit was the maximum, not the target,
and that they should ride at the correct speed.
[50] Mr Bolton
said that the entrance to the industrial estate was quite open and had no sight
lines: it was not really till you
travelled towards the Danskin building that the road closed in on you. The building completely blocked your view of
what was round the left bend. It had to
be borne in mind that the pursuer's motor cycle was not a car - all you
had to do to get up to 30 mph was flick the accelerator. The Kawasaki motor cycle could be
described as "a rocket on two wheels". Bearing
in mind the principle of self preservation which applied to a motor cyclist, it
was always necessary for him to exercise caution when he could not see round a
corner. The faster the speed at which a
motor cyclist was travelling the more distance he required to stop. He accepted that the pursuer would have been
able to see a cab unit with trailer attached coming out of the yard, as for him
that would have been local knowledge. Local
knowledge could also be a dangerous thing and could never be relied on 100%: you should never say never.
[51] Mr Bolton
expressed the opinion that what should have happened is that at 27 mph
the pursuer should have rolled off the accelerator and gradually lost speed as
he went round the corner. Mr Bolton
would not himself have gone round the corner at 27 mph. He would have thought a speed of 20 mph
would have been more appropriate. If the
pursuer had braked in a moderate manner he would have avoided a collision. For the pursuer to brake as hard as he did do
was to Dr Bolton a panic measure. The
pursuer had over-reacted. If he had just
lost speed and kept going the cab unit would have cleared his path without any
problem, but the pursuer had passed his test only 15 months earlier and
was not an experienced motor cyclist. The
cab unit in the position which it occupied must have caused him to over-react. Mr Bolton accepted that you do not have
to expect something coming towards you on the wrong side of the road round a
blind bend, but said that you should not drive or ride to the limit of what you
can see: you should have a driving plan
thinking forward which allows you not to brake so heavily.
[52] In
cross-examination Mr Bolton accepted that it would be acceptable for the
pursuer to stop six feet in front of a stationary packing case round the bend. You should not drive to the limit of your
emergency braking. It was appropriate
driving if you could stop before a stationary object which was round the bend. The pursuer would have been able to stop in
the circumstances which did arise if he had been able to remain in control of
the motor cycle, even at a speed of 27 mph. He accepted that there was nothing in the
Highway Code about motor cyclists not locking their wheels, but it enjoined all
drivers and riders to keep to their left.
The cab unit was at the very least straddling the middle of the road. The pursuer would undoubtedly have seen its
nearside corner and its coming towards him.
To go round the cab unit on the wrong side of the road was no option
whatsoever, but there was room to go round it on his left side.
Submission for
the pursuer
[53] Mr Mackay
submitted that the averments about the circumstances of the accident in
statement 4 of the Record had been amply proved by the evidence. He proceeded to review the evidence. He submitted that it had been proved on the
unchallenged and uncontradicted evidence of Dr Searle, as illustrated by
his DVD recording, that the cab unit without a trailer could have completed the
left turn out of the defenders' yard without going onto the wrong side of the
road. It was accepted that it was known
to the pursuer that cab units with trailers attached coming out of the
defenders' yard required to make a circle which took them onto the wrong side
of the road, but in this instance the vehicle was a cab unit without a trailer
which the pursuer would not have been able to see, whereas he could have seen
from right back at the beginning of the industrial estate a cab unit with a
trailer emerging from the yard. Mr Conner
had never previously driven a cab unit without a trailer out of the yard and
the pursuer had never previously seen one coming out of the yard.
[54] So far
as the defenders' allegation of contributory negligence was concerned, their
primary case against the pursuer was that he was travelling too fast to stop
within his range of vision. It was
accepted that the pursuer braked heavily before the bend. The defenders' averment in answer 4 that the
pursuer was travelling at at least 30 mph, an excessive speed in the
circumstances, as he approached the bend had not been proved. The huge weight of the evidence was that his
most probable speed was 27 mph.
It did not matter whether the cab unit was stationary or not at impact,
and it was not necessary for the court to make any finding on that matter. At the critical point the cab unit was
entirely on the wrong side of the road. There
should be no difficulty in making a finding on primary liability, which was a
straightforward element in the case. The
burden lay upon the defenders to prove contributory negligence. The evidence showed that the pursuer was
driving at a speed at which he could have stopped in an emergency in respect of
all foreseeable circumstances - even, at the very extreme, a vehicle
coming to wards him on his side of the road at 14 mph. The only possible contradiction on this point
came from Mr Bolton, whose evidence was that there should have been a
higher standard of driving than that which was put to the pursuer (drive at a
speed at which you can stop in time for an emergency). The entire proof had been conducted on the
basis of what had been put to the pursuer about the standard of driving to be
expected and it was only during the evidence of the defenders' last witness
that a higher standard (forward planning) was suggested. Mr Bolton's evidence amounted to mere
assertion of an opinion by a highly qualified police motor cyclist and not of
an ordinary motor cyclist. It was never
suggested to the pursuer that he even knew about the "forward planning" theory,
far less been taught about it in order to pass his test. Legal objection to that evidence was
maintained, and in any event it was of no weight at all.
[55] The
expert evidence was unanimous that the pursuer's speed alone would not have
resulted in a collision and that it was the loss of control that inevitably led
to the collision. The pursuer was
suddenly confronted with an emergency as a result of Mr Conner's
negligence and the "agony rule" applied.
The pursuer over-reacted in panic when faced with the cab unit coming towards
him and using up his available space. The
agony rule was defined as follows in Walker
on Delict (2nd Ed, 1981) at p 365 as follows:
"If the defender's breach of
duty puts the pursuer in a position of sudden emergency or immediate danger, he
is not to be held guilty of contributory negligence if he takes some action
which causes injury to him which he would not otherwise have suffered, or which
increases rather than diminishes the injury he would otherwise have suffered. If the pursuer, that is, is placed in a
difficulty, he is not to be penalised if he chooses what turns out to be the
wrong course of action. Foresight and
presence of mind are not to be expected and a pursuer, compelled to make an
immediate decision, cannot consider everything that a calm and calculated
appreciation of the situation might suggest."
As Lord Dunedin put it in Laird Line v US Shipping
Board 1924 SC (HL) 7 at p 40:
"It is not in the mouth of
those who have created the danger of the situation to be minutely critical of what
is done by those whom they have by their fault involved in the danger."
[56] The
application of the agony rule was illustrated by the case of Wallace v Bergius 1915 SC 205.
The driver of car A, driving along on his own side of the road, saw
car B being driven towards him on its wrong side of the road. Car B continued towards car A until
the two cars were so close that a collision was unavoidable unless the course
of one or other car was immediately altered.
The driver of car A, believing that the driver of car B did
not intend to give way, deflected his car to what was his wrong side of the
road and at the same moment the driver of car B returned to what was his
correct side of the road, whereupon a collision occurred. The Second Division, upholding the decision
of the sheriff, held that the collision was due to the fault of the driver of
car B for continuing so long on his wrong side of the road, and that the
action of the driver of car A in leaving his correct side of the road
immediately before the collision could not, in the position of difficulty in
which he was placed by the conduct of the driver of car B, be deemed
contributory negligence. The following
dictum of Lord Justice-Clerk Macdonald in the earlier case of Wilkinson v Kinneil Cannel and Coking Coal Co Ltd (1897) 24R 1001
at p 1004 was referred to with approval:
"I recognise it as an
established rule that a person injured by an accident is not debarred from
recovering damages because he did not, when he saw the danger, take the most
wise course, or even if he did, in the agitation of the moment, take an unwise
course, in endeavouring to escape from it."
That case was, of course, decided at the time when
contributory negligence on the part of a pursuer barred his claim altogether,
but the agony rule had continued notwithstanding the enactment of the Law
Reform (Contributory Negligence) Act 1945 ("the 1945 Act"). Winfield
& Jolowicz on Tort (17th Ed, 2006) in a passage headed
"Dilemma Produced by Negligence" stated at pages 327-8, para 6.49:
"Where the defendant's
negligence has put the claimant in a dilemma, the defendant cannot escape
liability if the claimant, in the agony of the moment, tries to save himself by
choosing a course of conduct which proves to be the wrong one, provided the claimant
acted in a reasonable apprehension of danger and the method by which he tried
to avoid it was a reasonable one. If
those conditions are satisfied he committed no contributory negligence."
The words in that passage applied to the pursuer in
the present case, said Mr Mackay.
[57] In Tocci v Hankard & Anr (1966) Sol J (Vol 110) 835 the
plaintiff was riding his moped down Balham Hill, London at about 11 pm
on 29 October 1962 when three vehicles came in the opposite direction, a
scooter, the defendants' van and a bicycle.
As the van pulled out to overtake the scooter, the scooter turned across
into a side road and the van driver, being put in a position of great
difficulty, managed to avoid the scooter but went to the wrong side of the road
and ran into the plaintiff, who was severely injured. It was held by the Court of Appeal that the
only person at fault was the driver of the scooter and that no blame attached
to the van driver. Lord Denning MR
said:
"It has often been said
that, when a dangerous situation was created such as this one, one ought not to
be critical of what was done on the spur of the moment to avoid an accident."
[58] In Methven v Metropolitan Police Commissioner (Court of Appeal, 10 October
2000, unreported) the claimant, who was driving a loaded van through green
traffic lights in north east London, collided with a police dog van which was
crossing the junction against a red light with its siren sounding and blue
light flashing. The Recorder gave
judgment for the claimant without any deduction for contributory negligence on
the basis that the claimant was acting in the agony of the moment when he
thought a car behind him with its headlights on was the emergency vehicle and
drove round the vehicle in front of him.
The Recorder stated:
"It turned out to be the
wrong decision, but I do not consider it was a decision which was
inappropriate, other than with the benefit of hindsight. He reacted as he did and there was an
accident, but that accident was wholly avoidable by PC Smith. If he had taken greater care and exercised
the degree of caution which he should have exercised when crossing a busy road
against a green traffic light the accident would not have happened at all."
[59] In Robertson v Inspirations East Limited [2005] CSOH 30 Scottish
holidaymakers travelled from the airport to their hotels in Turkey on a coach which collided
with a lorry coming towards it in the hours of darkness. The lorry swerved three times into the path
of the coach, colliding with the coach on the third occasion. The time between the coach driver's first
sight of the lorry and the collision was about 13 seconds. At para 71 of his opinion Lord Macphail
stated as follows:
"The issue is whether the
coach driver is nevertheless to be held negligent. The final incursion of the lorry, which was
plainly negligent, placed the coach driver in a position of emergency. I do not consider that the action he then
took, in braking and steering to the right, is open to criticism. I have found that it cannot be said on a
balance of probabilities it is established that the coach driver had a
sufficient opportunity to take any action to have avoided a collision. Even if, contrary to my opinion, it could be
said that he could have braked and steered to the right a very short time
earlier than he did, his failure to act more quickly could not in my opinion be
characterised as negligent. The
defenders referred to Wallace v Bergius 1915 SC 205 and Laird Line v US Shipping Board 1924 SC (HL) 37. In my opinion Wallace v Bergius is
particularly apposite. In that case it
was held that the driver of the defender's car could not be said to be
negligent "merely because, when he saw the danger, he did not take the wisest
course, but in the agitation of the moment took an unwise course in attempting
to escape from it' (Lord Guthrie at 211). In the present case the coach driver could
not, in my view, be criticised as negligent if it were the fact that in the
emergency confronting him he had the opportunity to follow a counsel of perfection
and take avoiding action a second, or a fraction of a second, earlier than he
did. In my opinion, accordingly, the
pursuers have failed to prove that the driver of the coach was negligent to any
extent."
[60] The
approach of the defenders in the present case had been to examine minutely the
actions of the pursuer in a situation which Mr Parkin accepted as being
one in which the pursuer would have proceeded round the corner at Danskin's
building without danger in the absence of Mr Conner's negligent act. The defender had lost control of his motor
cycle only because he was put in a dilemma caused by Mr Conner's
negligence. There should therefore be no
finding of contributory negligence against the pursuer.
[61] So far
as the question of apportionment was concerned, the modern approach to
apportionment in cases of contributory negligence was to adopt a two-stage
approach, distinguishing between causation and responsibility. The fault must be a causal contribution,
otherwise there could be no finding of contributory negligence, but section 1(1)
of the 1945 Act made it clear that responsibility or blameworthiness must
also be considered and that the judge must apportion on a basis that is just
and equitable (Kemp & Kemp, The
Quantum of Damages, Vol 1, para 7-004; Baker v Willoughby [1970] AC 467
at p.490). Apportionments made in
previous cases had to be viewed with extreme caution as apportionment was
primarily a matter of fact and degree in each case (McBeth v Secretary of State
for Scotland 1976 SLT (Notes) 63;
Dixon v Morris [1997] EWCA Civ 915).
Submission for
the defenders
[62] Mrs Stacey
for the defenders submitted that the accident had been caused by fault on the
part of both drivers and that a finding of contributory negligence should be
made against the pursuer. This was not a
case of sole fault. What had been
omitted in the submission for the pursuer was that he was approaching a blind
bend in an industrial estate with no road markings (for example, at side roads). In that situation one would expect a prudent
driver to take care and not to drive on the assumption that no one else would
be on the road. The pursuer had passed
his test. He stopped at the entrance to
the industrial estate and accelerated up to 27 to 30 mph to go
to his work's car park. The blind bend
and the premises behind it (the defenders' yard, the premises of Textile World
and his work's car park) were well known to him. He knew that other people may not behave
properly in the driving sense. A driver
had to be able to stop within his range of vision. Mrs Stacey conceded that the court might
not wish to rely on the evidence of Mr Conner unless it was supported by
evidence from elsewhere, but he drove the cab unit out of the defenders' yard
in the way he would have done had he had a trailer attached. He had no need to take the wide line which he
took to his wrong side of the road and then back on to his own side of the road. It was accepted that Mr Conner did go
onto his wrong side of the road, as was shown by the tyre marks made by the cab
unit. He did not fulfil his duty of care
as he was habituated to driving out of the yard in a cab unit with a trailer
attached. The experiment which Dr Searle
had carried out established that it was possible to drive a cab unit out of the
yard on its own side of the road. Mr Conner
had said at one point in his evidence that he was not taking care for other
road users, but he had brought the cab unit to a halt very quickly after seeing
the pursuer and there was no suggestion that he had not been keeping a proper
outlook.
[63] The
pursuer was returning to work. The
faster he was going the longer it would take him to stop and he might brake so
hard as to lock the brakes and skid. The
pursuer had heard of high-siding and described it to Constable Hazel Scott
after the accident. It had to be
accepted that the question of a "driving plan" as described by Mr Bolton
had not been put to the pursuer in evidence, but the purser had been asked why
he was going too fast and what need
there was for speed. There was a danger
of skidding when a motor cyclist had to brake in an emergency situation. The pursuer thought that his speed was all
right and that he could see any truck emerging from the defenders' yard. What was being suggested was that it was not
safe for him to drive up to that blind bend at 27 mph. He had to drive at an appropriate speed. 27 mph
was not an appropriate speed at which to drive up to this blind bend when the
existence of loading bays in the defenders' yard and the possible approach of
lorries from it were known to the pursuer.
The pursuer was not entitled to use his local knowledge in a wrong way. The possibility of a stationary packing case
round the corner which was figured by Dr Searle depended upon exactly where
it was situated: what would be likely to
happen had to depend upon exactly where the object was, what speed a motor
cyclist was doing and what he did to stop.
Even if one took a line from the crown of the road it was still a blind
bend: you could not see round it until
you were pretty close to it. Stopping
distance depended on speed. There was
now a sign up showing a speed limit of 10 mph at the bend. The fact that the experts agreed that the
pursuer could have stopped if he had not lost control did not mean that he was
not travelling at an excessive speed. It
did not mean that it was safe practice to drive up to that bend at the speed at
which he was travelling. The risk of
skidding for a motor cycle could not be laid aside. Once a motor cycle skidded the driver lost
control of it and he might fall off it. Those
who were taught how to ride a motor cycle were taught to avoid skidding by
moderate braking. In this instance there
was harsh braking, which should not have occurred. The pursuer's speed made it too late for him
to brake in a moderate fashion or to decelerate. Two things went wrong at the same time: he braked harshly and skidded. The pursuer knew the speed at which he was
travelling. He saw the cab unit and it
required him to brake as heavily as he could.
Had he been going at a slower speed that would not have happened. His reaction to brake as harshly as he did do
was connected to his speed and he had therefore failed to take reasonable care
for his own safety. There would have been
no need for him to slam on the brakes had he been travelling at 20 mph.
[64] The
situation here was different from that in the agony rule. The cases dealing with that referred to an
unexpected situation. This was a case of
coming round a blind bend and the agony rule did not apply at all. The case of Wallace v Bergius was a
million miles away from the present one.
In London Passenger Transport
Board v Upton [1949]
AC 155 the view of a bus driver approaching a light-controlled pedestrian
crossing at 15 mph with the lights in his favour was obscured by a
taxi on the crossing so that he did not see a pedestrian until she emerged into the clear space nine feet in front of the
bus, which struck and injured her. It
was held by the House of Lords that the bus driver was in breach of a statutory
duty imposed by a regulation which provided that the driver of every vehicle
approaching a crossing shall, unless he can see that there is no pedestrian
thereon, proceed at such a speed as to be able if necessary to stop before
reaching such crossing since he had not a clear view of the crossing and yet
failed to proceed at such a speed as to be able, if necessary, to stop before
reaching the crossing. At p 73
Lord Uthwatt stated:
"I desire only to register
my dissent from the view .... 'that drivers are entitled to drive on the
assumption that other users of the road, whether drivers or pedestrians, will
behave with reasonable care'. It is
common experience that many do not. A
driver is not, of course, bound to anticipate folly in all its forms, but he is
not, in my opinion, entitled to put out of consideration the teachings of
experience as to the form those follies commonly take."
Lord du Parcq said at p 176:
"The correct principle was
stated by Lord Dunedin when he said (in Fardon v
Hardcourt-Rivington (1932) 146 LT 91 at p.392): 'If the possibility of the danger emerging is
reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is
only a mere possibility which would never occur to the mind of a reasonable
man, then there is no negligence in not having taken extraordinary
precautions.' I regard this statement,
and that of Lord Macmillan in the same case, which was to the like effect,
as applying generally to actions in which the negligence alleged is the
omission to take due care for the safety of others. It must follow that (if I may repeat what I
said in the recent case of Grant v Sun Shipping Co Ltd [1948]
AC 549 at p.567) 'a prudent man will guard against the possible
negligence of others when experience shows such negligence to be common'. The driver of the appellants' omnibus agreed
in cross-examination that he knew "that people in London have a habit of crossing a
road when the lights are not in their favour." Even apart from the duty imposed on him by the
regulations, he was therefore bound to take precautions against the possibility
that some person was concealed from his view by the stationary cab and might
suddenly emerge from its protection. On
this ground alone it must at least be said that there was evidence to support
the conclusion that the driver had failed to take reasonable care for the
safety of others and was therefore negligent.
A driver is never entitled to assume that people will not do what his
experience and common sense teach him that they are in fact likely to do. It is true that in some circumstances it is
not reasonably possible for a driver to do anything to save a pedestrian from
the consequences of the pedestrian's own act, just as the pedestrian can
sometimes truly say that, although he knows that drivers are sometimes
negligent, he could not reasonably have been expected to avoid the particular
act of negligence which has caused him injury.
These are questions for a jury."
[65] A
driver had to expect that other road users would do things they should not do. It was not so fantastic or peculiar as to be
beyond reasonable expectation that there would be a vehicle round a blind
corner. Fardon v Hardcourt-Rivington was
a case of something strange. One had to
take care for one's own safety and the pursuer had failed to do so. The case of Robertson v Inspirations East
Limited did not assist the pursuer as
it involved a driver wondering what he should do when there was someone on his own
side of the road. The question was one
of his duty to his passengers and the case was therefore of no relevance. If a person causing an obstruction is
negligent the court would apportion liability between him and the driver who
bumped into him: Rouse v Squires [1973]
1 QB 889. It was conceded that Mr Conner
should not have been on the wrong side of the road. The question was - what was the pursuer
doing? It was not possible to know what
was round the other side of a blind bend and one had to drive so as to be able
to stop in the event that there was a danger round the corner. In the case of Rouse the approaching driver had not been keeping a proper lookout. The case of Harvey v Road Haulage
Executive [1952] 1 KB 120 was a case in which the accident was
the fault of both a lorry driver and a motor cyclist. In the present case Mr Conner was at
fault because he was driving on the wrong side of the road and the pursuer was
at fault because of his speed and the action he took. In Hardy
v Walder [1984] RTR 312
the driver of a motor cycle was at fault for riding at excessive speed and
overtaking at a blind corner. The
question was - what was an excessive speed in the circumstances? As this was a blind corner on an industrial
estate it was not safe to approach it at a speed of 27 mph. The pursuer was unable to bring his motor
cycle to a controlled halt, partly due to his speed.
[66] Mrs Stacey
then proceeded to refer to several cases.
Chep Seng Heng v Thevannasa [1975] 3 All
ER 572 was a case in which the first lorry had been parked safely and the
second lorry came round the corner too fast and collided with the first lorry. Liability was apportioned at 75 per cent
for the first lorry and 25 per cent for the second lorry. In this case the pursuer had been unable to
stop at 27 mph. That speed put
him in the situation of danger in which he found himself. Had he been driving at 20 mph he
would not have found himself in this situation of danger. That was why it could be said that he did not
take care to the standard required by law for his own safety. In Ameen
v Hunter (26 January 2000, unreported) the defender
drove into the pursuer's car which was broken down on the outside lane and Lord Kingarth
apportioned liability equally between the pursuer and the defender. In Morrison
v Gardiner [2005] CSOH 156
the pursuer, a police motor cyclist, collided in Queen Street, Edinburgh with a car driven by the
defender when it pulled out of the outside lane to execute a U turn. Lord Glennie held that in his manner of
riding the pursuer failed to take sufficient care for his own safety and
thereby contributed to his injury to the extent of 25%. In Smith
v McGuiness (21 January
2004, unreported) Lord Clarke held that the driver of a coal lorry
executing a right turn into a driveway after signalling to do so was not
negligent when the pursuer came round a bend and collided with the last vehicle
in the queue of vehicles stopped behind the coal lorry while it waited to turn
right. In Harrington v Milk Marketing
Board 1985 SLT 342 a lorry driver parked his lorry on the
southbound A702 near Nine Mile Burn with dim or unilluminated lights and
the pursuer drove his car straight into him.
Lord Murray held the lorry driver negligent for not having parked
in a nearby petrol station forecourt and assessed contributory negligence on
the part of the pursuer at 75% for failing to keep a proper lookout. In Morris
v Pirie 1985 SLT 365
the deceased was killed driving his lorry at 55 mph when it had to
swerve to avoid a broken-down car some distance beyond the apex of a bend. Lord Stewart held that the deceased had
been driving too fast and assessed contributory negligence on his part at 60%. In Sutherland
v Gardiner 1981 SLT 237
it was held by Lord Grieve that a motor cyclist who collided with a parked
car on a slip road was guilty of contributory negligence to the extent of 60%. It was conceded by Mrs Stacey that all
these cases were what she described as "fact-specific".
[67] Mrs Stacey
submitted that there was contributory negligence on the part of the pursuer in
the present case by reason of his excessive speed and heavy braking. Mr Conner's being on the wrong side of
the road was a problem because the pursuer was approaching round a blind bend
and neither could see the other. The
pursuer arrived at a point where he could see and could then have slowed down
by decelerating or braking. What he did
was to slam on his brakes, the motor cycle high-sided and there was an accident. Both Mr Conner and the pursuer
contributed to the cause of this accident.
It did not follow from the fact that the pursuer could have stopped in
time at 27 mph that he was not guilty of contributory negligence. The fact was that he did not stop, and there
should therefore be a finding of contributory negligence on his part.
[68] So far
as apportionment was concerned, it was a matter of impression. The pursuer had to bear a fair degree of
culpability because of his fast speed. Motor
cycles were dangerous because the driver was not contained within a steel box
and they were liable to skid. It was
necessary for a motor cycle driver to think of self preservation. Negligence on the part of Mr Conner by
reason of his being on the wrong side of the road was accepted, but he was
moving back to his own side of the road and he stopped whenever he saw the
pursuer on his motor cycle. It was
submitted that Mr Conner bore the majority of the blame - 75% or such
other figure as the court thought fit.
Response for
the pursuer
[69] In
response Mr Mackay submitted that none of the cases referred to by Mrs Stacey
was of help to the court and stated the he found difficulty in understanding
the purpose of referring to them. It
appeared that they had been referred to in "an evidence-free atmosphere". Mr Mackay then referred to each case in
turn and sought to distinguish it from the circumstances of the present case. He invited me to take account of the evidence
in the present case, in which the experts were clear and unanimous in their
view that the pursuer was driving at the scene at a speed which would have
enabled him to stop between six and seven metres from an emergency. It was not for the pursuer to prove that his
speed was reasonable, but for the defenders to prove that it was excessive. In the circumstances the pursuer had no time
to consider his braking. On the evidence
of Mr Parkin loss of control could have occurred at any speed. Any suggestion of a connection between speed
and braking had to be rejected.
Discussion
(i) The facts of the accident
[70] At the
conclusion of all the evidence there was little dispute about the facts of the
accident. The only matter of sharp
dispute was that between Dr Searle and Mr Parkin about whether the
cab unit was stationary or moving at the exact moment of impact. Mr Parkin accepted that this was a moot
or academic point and I therefore do not consider that it is necessary for me
to make any finding about it.
[71] In my
opinion the facts of the accident (with the exception of the question whether
the cab unit was stationary at the time of impact) were succinctly summarised
by Mr Parkin in his evidence. The
pre-braking speed of the motor cycle driven by the pursuer was 27 mph
and the pre-braking speed of the cab unit was 13 mph. On seeing the nearside of the cab unit approaching
him at the bend the pursuer braked and the rear wheel of his motor cycle locked
and caused a skid mark 4.3 metres
long, a gap of 3.5 metres when he fell to the ground and scrape markings
7.4 metres long before the impact. The
pursuer's motor cycle was upright when it made the skid mark 4.3 metres
long. The pursuer must have been braking
heavily at that point. During the gap
the motor cycle was still travelling forwards and in the process of falling. It then hit the ground. The pursuer lost total control of the motor
cycle and fell off it, sustaining serious injuries. The motor cycle came to a halt when it struck
the cab unit.
(ii) Liability
[72] The evidence overwhelmingly demonstrated,
and Mrs Stacey conceded for the defenders, that Mr Conner was at
fault for having driven the cab unit on the wrong side of the road at a blind
bend. In so far as the evidence of Mr Conner
(upon which, it is fair to say, Mrs Stacey did not ultimately rely)
conflicted with this fact I reject it. As
may be evident from my narration of the evidence, he was one of the worst
witnesses whom I have ever heard give evidence in any court. He repeatedly vacillated in his answers and I
would not be prepared to accept anything he said as credible and reliable unless
it were supported by evidence from some different credible and reliable source. In particular, I have to mention that I
reject Mr Conner's evidence that the pursuer was looking to his (the
pursuer's) left immediately before the accident. It is plain that there was no need for Mr Conner
to have driven the cab, which was not pulling a trailer, onto the other side of
the road as there was a sufficient turning circle available to him to exit the
defenders' yard on his own side of the road.
Mrs Stacey submitted that the greater part of the responsibility
for the accident rested upon Mr Conner but that the pursuer was guilty of
contributory negligence by reason of his speed and the manner of his braking. It is therefore necessary for me to consider
these matters.
(iii) Contributory Negligence
[73] Section 1(1)
of the 1945 Act provides, so far as relevant:
"Where any person suffers
damage as a result partly of his own fault and partly of the fault of any other
person or persons, a claim in respect of that damage shall not be defeated by
reason of the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such extent as the court
thinks just and equitable having regard to the claimant's share in the responsibility
for the damage."
[74] Contributory
negligence does not depend on a duty of care owed to a third party: it involves failure to take care for one's
own safety. The nature of the concept of
contributory negligence, in contradistinction to that of ordinary negligence,
was explained by Denning LJ in Davies
v Swan v Motor Co [1949] 2
KB 291 at pages 324-5 as follows:
"It has sometimes been
suggested that an injured plaintiff is not guilty of contributory negligence
unless he was under a duty of care towards the defendant. ... In
my opinion, it is not a correct approach.
When a man steps into the road he owes a duty to himself to take care
for his own safety, but he does not owe any duty to a motorist who is going at
an excessive speed to avoid being run down.
Nevertheless, if he does not keep a good lookout he is guilty of
contributory negligence. The real
question is not whether the plaintiff was neglecting some legal duty, but
whether he was acting as a reasonable man and with reasonable care."
Accordingly, in determining the question of
contributory negligence the question I must ask myself is not whether the
pursuer was in breach of a duty of care owed by him to Mr Conner, but
whether he failed to take reasonable care for his own safety.
[75] Mrs Stacey
submitted that the pursuer in this case was contributorily negligent by reason
of his speed and the manner of his breaking.
It was not suggested that contributory negligence could be based on the
lack of a forward plan for his driving, as spoken to by Mr Parkin. The lack of a forward plan does not feature
in the defenders' pleadings and was not put to the pursuer in his evidence and
I therefore sustain Mr Mackay's objection to the evidence of Mr Parkin
relating to a forward plan. I now turn
to consider the pursuer's speed and braking in order to determine whether
either or both could amount to contributory negligence on his part.
(iv) The pursuer's speed
[76] I have already found as a fact that the
pre-braking speed of the pursuer was 27 mph. When approaching the Danskin bend at that
speed he had no reason to believe that there would be a moving cab unit round
the bend on its wrong side of the road. Had
the cab unit been drawing a trailer he would have been able to see it as it
emerged from the gateway of the defenders' yard and would have known, because
of his previous experience, that it was likely to be on its wrong side of the
road. The evidence clearly established
that at 27 mph he would have been able to stop for any stationary
obstacle round the bend, for a cab unit with trailer travelling at 7 mph
and even for the cab unit driven by Mr Conner had it not been that he lost
control of his motor cycle. In these
circumstances it cannot be said that in travelling at 27 mph at the
material time his speed was excessive and he failed to take reasonable care for
his own safety by reason of his speed. It
may well be that the accident would not have happened had the pursuer been
travelling at a slower speed, but that is not the question that requires to be
addressed: the question is whether the
speed at which was travelling was excessive in the circumstances and displayed
a failure to take reasonable care for his own safety.
(v) The pursuer's manner of braking
[77] There
can be no doubt that, faced with the moving cab unit coming towards him and
taking up most of the available space in front of him, and not knowing what the
driver of the cab unit was about to do, the pursuer braked too hard, as a
result of which he fell off his motor cycle and sustained his serious injuries. I do not think it can be said that, in
braking in the way in which he did, the pursuer failed to take reasonable care
for his own safety. What he did was done
on the spur of the moment in an attempt to avoid a collision. He reacted instinctively by braking hard when
faced with a dire emergency. He cannot,
in my opinion, be faulted for that. In
braking as he did he was clearly seeking to avoid a collision by attempting to
bring his motor cycle to a halt. He was
faced with a dilemma and in the agony of the moment and in reasonable
apprehension of danger he chose a course of action which proved to be the wrong
one. The method by which he tried to
avoid the danger facing him was in my opinion a reasonable one and he cannot be
said to be guilty of contributory negligence by reason of the manner of his
braking. To adapt the words of Lord Dunedin
in the Laird Line case (supra) to the present case, it does not
lie in the mouth of the defenders, who, through the negligence of their driver Mr Conner,
created the situation of danger to be minutely critical of what the pursuer did
when faced with the danger which they created.
I reject Mrs Stacey's submission that this is not a case in which
the agony rule applies.
Decision
[78] For the reasons set out above I hold that
contributory negligence on the part of the pursuer has not been established and
that the defenders, through the negligence of their driver Mr Conner, were
wholly responsible for the pursuer's injuries.
I shall find the defenders liable to make reparation to the pursuer for
his loss, injury and damage and continue the cause for a proof on the amount of
damages to be awarded to the pursuer.
APPENDIX 1
APPENDIX 2
