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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duncan v. Walshe & Ors [2003] ScotCS 191 (08 July 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/194.html Cite as: [2003] ScotCS 191 |
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OUTER HOUSE, COURT OF SESSION |
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A1178/02
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OPINION OF M. G. THOMSON, Q.C. Sitting as a Temporary Judge in the cause PETER GRANT DUNCAN Pursuer; against MARK MARTIN WALSHE AND OTHERS Defenders: ________________ |
Pursuer: McEachran, Q.C., McCall; Russell Jones & Walker
Defenders: Armstrong, Q.C., Cruickshank; The Anderson Partnership
8 July 2003
Introduction
[1] In this action the pursuer seeks damages for serious multiple injuries which he sustained in a road traffic accident which occurred at about 1.40 p.m. on 27 May 1997. His motorcycle was in collision with an articulated lorry which was being driven by the first defender in the course of his employment with the second defenders. The pursuer was riding his motorcycle northwards on the A92 road between Arbroath and Montrose. The first defender had been driving his lorry southwards on the same road. At the time of the accident he was performing a right turn manoeuvre into a minor side road known as Parkhill Road. As his lorry straddled both carriageways of the A92, the pursuer's motorcycle collided with it. [2] In the course of the proof parties reached agreement on all heads of quantum of damages and the proof proceeded on the merits alone. The pursuer's contention was that the first defender was entirely to blame for the accident because he had attempted to turn right across the opposite carriageway when it was not clear to do so because the pursuer was approaching and could clearly be seen to be approaching. The defenders blamed the pursuer for the accident. They maintained that the road ahead was clear when the first defender began to turn right and that the pursuer was driving at an excessive speed, namely a speed at which he could not stop safely within his range of vision.Sources of Evidence
[3] The pursuer gave evidence to the effect that he had no memory of the accident or of the day of the accident before coming round in hospital. There were, however, two potential eyewitnesses to the accident, Ms Jean Findleton and Mrs Lynn Cameron. The former lived at Corner Cottage, which faces directly onto the A92 and is immediately adjacent to the north side of Parkhill Road. The latter worked in the stables on the opposite, east side of the A92. At the time of the accident they were chatting at the front gate to Corner Cottage. Ms Findleton was standing in her garden looking out over her fence to the A92 and beyond and Mrs Cameron was standing outside the fence looking in towards Ms Findleton and her cottage. The pursuer also led evidence from Mr Thomas Berry who was the passenger in a car being driven northwards on the A92 by a Mrs Pauline Morton. Her car had been overtaken by the pursuer on his motorcycle shortly before the accident occurred. The pursuer's final witness on the merits was Mr Paul Riley, who had investigated the circumstances of the accident and who gave evidence as an expert in road traffic accident investigation. [4] The defenders led evidence from Mr William Collins, who was the first defender's "mate" and who had been sitting in the passenger seat in the cab of the lorry, from P.C. William Strachan, who was one of the first police officers to attend the scene of the accident, and from Dr Hugh Barron, who, like Mr Riley, was an experienced and well qualified road traffic accident investigator and had investigated the circumstances of the accident. P.C. Strachan was not one of the accident investigation officers. His time at the locus had been comparatively brief. He had identified, and obtained brief details from, potential eyewitnesses and had then left the scene to provide a police escort for the ambulance which took the pursuer to hospital. Parties entered into a joint minute of agreement as to the findings and conclusions of P.C. John Alexander of the Tayside Police Accident Investigation Unit who had attended at the locus very shortly after the accident and had recorded the real evidence at the scene. [5] Finally, there were two documents entitled "Witness Statement" (nos. 33/1 and 33/2 of process) which bore to be statements taken by Mr William Percy, a self-employed enquiry agent, from Mrs Pauline Morton and Mr Thomas Berry respectively. Mr Berry's "Witness Statement" was put to him in re-examination and he explained that he made the statement to Mr Percy and that it had been read over to him before being signed by him. Mr Percy was led as a witness and explained how he had taken the "Witness Statement" from Mrs Morton. He had tried not to ask any leading questions. He had written the statement in his own handwriting and had then given it to Mrs Morton to add to, alter or delete as appropriate before signing it. Mr Percy described his visit to Mrs Morton to obtain the statement and also spoke to his recollection of what she had told him. In her "Witness Statement" Mrs Morton describes being overtaken by the pursuer on his motorcycle and then arriving at the scene of the accident and seeing the pursuer being thrown through the air towards the grass verge. She states that she did not see the impact and estimates that she was "no more than 100 metres from the accident" when she saw the pursuer being thrown through the air. Mr Percy was asked about Mrs Morton's estimate of this distance and he described how she had shown him the distance in the street outside her house. [6] From the evidence of Mr Berry and Mr Percy I am satisfied that these witness statements are "statements" within the meaning of sections 2 and 9 of the Civil Evidence (Scotland) Act 1988 and are admissible hearsay evidence in this proof. I shall return to the question of the weight to be given to this evidence. [7] Neither Mrs Morton nor the first defender gave evidence at the proof.The Established Facts
[8] It was a warm sunny day. Driving conditions were ideal. The pursuer's motorcycle was a "Honda" 600c.c. motorcycle. According to the pursuer it was fitted with a "performance" exhaust system which made it more than normally noisy. He was aged 23 at the date of the accident and had been driving for six years. He had had that particular motorcycle for only four months. Before that he had owned a different 600c.c. motorcycle. The pursuer's home was in Arbroath and his principal place of work was in Montrose. He was familiar with the A92 road between Arbroath and Montrose. On the day of the accident he was travelling from his home to his place of work to collect certain items before a period of work off-shore. [9] The first defender had been driving northwards on the A92 towards Montrose but had missed a diversion for tall vehicles and, at the time of the accident, was heading south on the lookout for a suitable spot to turn his articulated lorry in order to continue his journey north. When P.C. Alexander attended the locus, he found fresh score marks on the southbound carriageway. He also found an area of dust which would probably have been dislodged from the wheel arches of the articulated trailer. From these score marks and the dust residue found on the road surface, it was possible to determine that the probable point of impact was near the centre line of the A92 at the junction with Parkhill Road but on the southbound carriageway. The articulated trailer had two axles and the impact appeared to have been to the nearside of the trailer, close to the centre of the two axles. The tyre of the outer wheel on the leading axle had been damaged as had the skin of the trailer close to the second axle. It is probable that the pursuer's motorcycle caused the damage to the tyre and the pursuer himself struck the side of the trailer. There were no skid marks on the road surface, but it is probable that the pursuer had braked before the collision occurred. As the articulated lorry turned into Parkhill Road, the trailer blocked the A92 road not at right angles, but at an oblique angle. This meant that when the pursuer himself struck the side of the vehicle, he struck it something of a glancing blow so that he was deflected sideways and landed on the verge. His motorcycle struck the wheel and bounced back so that it ended up on the southbound carriageway. The pursuer's probable speed at the time of impact was about 40 m.p.h. At that speed the pursuer's body would have undergone a deceleration of about 30 m.p.h. because of the angle at which he struck the trailer. If the impact speed at been 50 m.p.h., the deceleration undergone by the pursuer would have been about 40 m.p.h. and it is unlikely that he would have survived such deceleration. [10] Although there was a bell mouth at the junction of Parkhill Road and the A92, Parkhill Road was very much narrower than the main road. The A92 was 7.4 metres wide, whereas Parkhill Road was 3.5 metres wide. There was a small service road which ran almost parallel to the A92 and in front of Corner Cottage. This service road could be accessed at its south end from Parkhill Road. At its northern end this service road was separated from the A92 by a small area of rough ground. [11] As the A92 approaches Parkhill Road from the south, there is a gradual curve to the left followed by a similar curve to the right. There was a bank of trees lining the road on its east side and comparatively open ground to the west but with one substantial bush or tree on the west side approximately 80 metres south of the junction with Parkhill Road. For a vehicle on the southbound carriageway waiting to turn right into Parkhill Road, there is a clear line of sight southwards along the A92 for approximately 280 metres. Conversely, such a vehicle would be visible to a northbound driver on the A92 from approximately 280 metres south of the junction. The view that Ms Findleton and Mrs Cameron would have had looking southwards along the A92 would have been restricted by the presence of the isolated bush or tree on the west side of the road to a distance of probably about 200 metres.The Evidence
[12] Although the pursuer had no recollection of events on the day of the accident, he described his normal, pre-accident driving habits. He said that his normal speed on this road was 60 m.p.h. or a safe speed. He also explained that when he overtook another vehicle, he did so slowly so as to be able to take avoiding action if necessary. In his evidence-in-chief he said that he had never travelled at 100 m.p.h. on that road and he doubted that it would be possible to round the gradual left-hand bend to the south of the locus at 100 m.p.h. When these matters were pursued in cross-examination, his evidence became more entrenched. He would not have overtaken a car travelling at 60 m.p.h. He would have had no reason to do so. He would have been happy to ride his motorcycle behind such a car. He only ever drove at 60 m.p.h. The pursuer's explanation for the performance exhaust system on his motorcycle was simply that it was on the motorcycle when he bought it, that the engine would be very quiet without it and that he regarded the performance exhaust as something of a safety feature because other road users would be aware of his presence. When cross-examined as to why he had changed one 600c.c. motorcycle for another of the same engine capacity some four months before the accident, his position was that he had "fancied a change". [13] Immediately prior to the accident, Ms Findleton was chatting to Mrs Cameron. The first that Ms Findleton was aware of the presence of the pursuer was when she heard the noise of his motorcycle. She then saw the pursuer on his motorcycle. The next event was the arrival of the lorry driven by the first defender, which signalled its intention to turn right into Parkhill Road. According to Ms Findleton the lorry then turned across the northbound carriageway in the path of the pursuer. She described it as "cutting across". Ms Findleton stated that she saw the motorcycle before the lorry started its turn. She thought that the lorry driver was bound to have seen the pursuer's motorcycle before he commenced his turn. She did not think that the speed of the motorcycle was excessive. She did not see the impact itself because by that time the bulk of the articulated lorry was between her and the pursuer. [14] Mrs Cameron was standing with her back generally towards the A92 and the direction of Montrose. She too first became aware of the presence of the pursuer when she heard the noise of his motorcycle. She thought that it sounded fast. As the noise grew louder she looked along the road in the direction of Arbroath and briefly saw the pursuer's motorcycle. She described it as a glimpse. She did not remember hearing the lorry approach nor of seeing the lorry before she saw the motorcycle. The next event of which she was aware after glimpsing the motorcycle was hearing the sound of the collision. She thought that she had probably briefly seen the lorry before the accident occurred, but she did not see the lorry turning across the road. Her recollection was that neither she nor Ms Findleton said anything about an impending accident before it occurred. [15] Mr Collins described the lorry's journey that day prior to the accident. As he and the first defender approached the junction from the north, there was no conversation between them. Nothing was said by the first defender with regard to the manoeuvre which he intended to perform at the junction. Mr Collins was sitting in the passenger seat of the cab of the articulated lorry. Behind his seat there was a solid wardrobe cupboard. Mr Collins was sitting back in his seat which was reclined as far as the presence of the wardrobe permitted. This meant that his sideways vision to his left was blocked by the solid side of the cab. This can been seen in one of the police photographs (no. 24/7/9 of process). In order to see out on his left hand side, Mr Collins had to lean forward and look out of the side window of the cab. His view was thus somewhat blinkered. Mr Collins' evidence was that as the lorry approached the junction and as the first defender commenced his turn into Parkhill Road, the view directly ahead was clear and there was no sign of the pursuer on his motorcycle. As the turn progressed, Mr Collins' view was focused increasingly towards Parkhill Road. As the cab of the lorry turned into Parkhill Road, Mr Collins leant forward, looked to his left, saw the pursuer approaching on his motorcycle and told the first defender that there was a motorcycle. In the time that it took Mr Collins to utter those words, the pursuer's motorcycle arrived at, and collided with, their lorry. Mr Collins could not remember whether the lorry had come to a stop before commencing the turn into Parkhill Road or not, nor could he offer any explanation as to why he had chosen that particular moment to lean forward and to look out of the left hand window. He said that he had not heard any noise of the approaching motorcycle. [16] Mr Berry was the passenger in the car being driven northwards by Mrs Morton. Some distance south of the junction with Parkhill Road, their car was part of a line of traffic comprising three or four cars. He thought that their speed was about 50-55 m.p.h. Mrs Morton was "not a speedster". He became aware of a very loud engine noise. At first he did not know what was causing it. He thought it might have been a low flying aircraft. Suddenly their car was overtaken by a motorcycle which, he thought, overtook the car immediately in front of them in the same overtaking manoeuvre. He thought that the motorcycle was travelling "a fair bit faster" than their car. Mr Berry was not a motorcyclist and candidly could not gauge the speed of the pursuer's motor cycle. When pressed on the matter, he said that he had thought that he would have been aware of a motorcycle travelling at 100 m.p.h. and he did not think that the pursuer's motorcycle had been going as fast as that. He also expressed doubt that a motorcycle could have negotiated the left hand bend before the junction at as much as 90 m.p.h. [17] The next time that Mr Berry saw the pursuer's motorcycle, after having been overtaken by it, the accident had occurred and the motorcycle was lying on its side on the road surface and its rider was lying on the grass verge. By reference to a series of photographs taken by Mr Riley (no. 24/2 of process) Mr Berry attempted to identify his position on the road when he first saw the pursuer's motorcycle after the accident. He identified photographs 12 and 13 which were taken 175 and 150 metres south of the junction respectively. He was also asked by reference to another set of photographs (24/5 of process) to identify the point on the road where and Mrs Morton were overtaken by the pursuer. At first he referred to photographs 9 and 10, but then he settled on photograph 8. Photograph 8 was taken approximately 837 metres to the south of the Parkhill Road junction, whereas photographs 9 and 10 were taken from points approximately 707 and 587 metres respectively to the south of that junction. These measurements can be derived from the indices to the various photographs taken by Mr Riley (nos. 24/2 and 24/5 of process). After Mr Berry and Mrs Morton had been overtaken by the pursuer, the gap between their car and the car in front opened up. Mr Berry was not sure whether this was because that car had speeded up or because Mrs Morton had slowed down. [18] The terms of Mr Berry's "Witness Statement" (no. 33/2 of process) accorded generally with his oral evidence. It contained an explanation that his attention was first drawn to the accident by a shout from Mrs Morton. Until that moment, he had not been looking at the road ahead. He thought that he must have been doing something else in the car at the time but he could not remember what that was. [19] P.C. Strachan was one of the first police officers on the scene after the accident. His primary concern was to identify, and note the details of potential witnesses, so that they could be interviewed later by other police officers. Although a search had been made for his police notebook for the time of the accident, it could not be found and he had no contemporaneous record of events on the day of the accident. He was, however, the only witness other than the pursuer who was an experienced motorcycle rider. He explained that he was used to riding a touring motorcycle so that he could not describe the handling characteristics of a sports motorcycle. He said that he thought that it would be possible to negotiate the gradual left hand bend to the south of the scene of the accident at 90 m.p.h. 100 m.p.h. might be possible. He did not know. He would not have been comfortable at more than 90 m.p.h. He also stated that a speed of 125 m.p.h. would not be impossible. He explained that he would have taken a route following the crown of the road but on his side of the centre line and he would have leant into the bend using his weight to balance the motorcycle rather than steering it as such. [20] Mr Riley had thoroughly investigated the accident and the roads approaching the scene of the accident insofar as he was able to do so. He had taken numerous photographs and a video showing the approach to the scene from the south and the north and had prepared detailed plans showing the precise position of physical objects and their relative distances to the junction of the A92 with Parkhill Road. He had also seen a video prepared by the defenders which showed a reconstruction of the turning manoeuvre believed to have been in the course of being executed by the first defender at the time of the collision. That reconstruction used an articulated lorry of the same length as that involved in the accident but which was slightly different in detail. For example, the articulated trailer used in the reconstruction had three axles whereas that involved in the accident had only two. Both Mr Riley and Dr Barron had carried out a number of detailed time/speed/distance calculations in an attempt to reconstruct what must have happened in the seconds immediately preceding the collision. There was no significant difference or conflict between their respective calculations. The differences between them concerned the input data rather than any subsequent calculation. [21] Both had considered two distinct reconstruction methods. The first was to estimate the time that it would have taken for the defenders' articulated lorry to move from a position facing south, on its own side of the road at a point opposite the Parkhill Road junction, to the point at which the collision must have occurred with the cab of the lorry into Parkhill Road and the articulated trailer straddling both carriageways of the A192. Having estimated that time, it was then possible to predict how far south of the junction the pursuer's motorcycle would have been if it had been travelling at any given speed. Mr Riley had done the calculation for assumed speeds of 60 and 70 m.p.h. The calculation could be further refined by allowing for reaction time and deceleration to an assumed impact speed of about 40 m.p.h. Dr Barron assumed that the pursuer was not visible to the first defender when the latter commenced his turn and then calculated the speed required to cover that distance in the estimated time. The other reconstruction technique involved identifying the point at which the pursuer's motorcycle had overtaken Mrs Morton's car, identifying the point from which Mrs Morton saw the accident happening or just having happened and calculating the speed of the pursuer's motorcycle from the "known" speed of Mrs Morton's car. [22] Both Mr Riley and Dr Barron had had access to the "Witness Statement" of Mrs Morton. In that statement (no. 33/1 of process), she stated that prior to the accident she had been in a line of three or four cars with at least one car in front and behind hers. As she approached Tarriebank House Residential Home, which was measured by Mr Riley to be some 1,450 metres to the south of the Parkhill Road junction, she heard a motorcycle approaching from behind her. She looked in her driving mirror and saw a motorcycle approaching the rear of the car or cars behind her. The motorcycle did not slow down and he overtook the whole line of cars including that of Mrs Morton. She estimated her speed at between 55 and 60 m.p.h. and that the motorcycle was travelling "considerably faster" than that. She also described the speed of the motorcycle as "certainly a lot more than 60 m.p.h.". She then lost sight of the motorcycle ahead of her because of the gradual left hand bend. She then came upon the defenders' articulated lorry, the trailer of which was still across the carriageway of the A92 at a slight angle with the rear slightly further to the north than the front of the trailer. The trailer was blocking the whole of the carriageway. Mrs Morton described seeing the pursuer "actually in the process of being thrown through the air towards the grass verge on the east carriageway". She did not see the collision itself. She estimated that she was no more than 100 metres from the accident when she saw the pursuer being thrown through the air. She also noticed that the lorry had continued into Parkhill Road before coming to a stop. [23] Mr Riley demonstrated that if the defenders' lorry had taken between five and seven seconds to move from a position of rest on its own side of the road to its position at the time of the collision, and if the pursuer had been approaching at a constant speed of 60 m.p.h. or 70 m.p.h., he would have covered between 134 and 188 metres or between 156 and 219 metres respectively. Since both of those ranges were well below the visibility distance of 280 metres, he concluded that the pursuer's motorcycle would have been visible to the first defender at the time when he commenced his right turn manoeuvre. If the defenders' vehicle had not come to a complete halt before turning right, the manoeuvre time would have been reduced as would the distance travelled by the pursuer. Similarly, if allowance was made for reaction time and braking which was known to have been carried out by the pursuer before the accident, the distance travelled by him as the lorry turned would again have reduced. [24] Mr Riley also considered the inferences which could be drawn from the timing of the pursuer's overtaking of Mrs Morton's car. He drew attention to the fact that a motorcycle of the type driven by the pursuer had "more than ample capabilities to overtake slower moving motorcars with ease and in a relative short amount of space without the need of constant excessive speed". He then took account of Mrs Morton's evidence about having seen the pursuer in mid-air immediately after the collision and concluded that if Mrs Morton's car had been overtaken by the pursuer some 1,450 metres south of the junction, the conclusion must be that the motorcycle had been travelling at an average speed which would have been "very similar to that of the vehicle he had just overtaken". [25] Dr Barron's estimate of how long the defenders' lorry would have taken to move from its own side of the road to its position at the time of the collision was very similar to that of Mr Riley despite a minor difference between them as to the precise distance which would have been travelled by the rear wheels of the articulated trailer. This discrepancy appeared to be due to differing estimates of the distance travelled by the cab of the articulated unit as opposed to the rear wheels of the trailer which would have travelled a shorter distance. Having agreed that time at six seconds or less depending on whether or not the vehicle had come to a complete halt before commencing the turn, Dr Barron then assumed that the first defender had commenced the turn when it was clear to do so and when the pursuer and his motorcycle were not yet in sight. He assumed that the pursuer must have been more than 280 metres south of the junction when the first defender commenced the turn and calculated that for the pursuer to have covered 280 metres in six seconds, he must have travelled at an average speed of 104 m.p.h. The average speed required to cover that distance in five seconds would have been 125 m.p.h. and in seven seconds, 89 m.p.h. If allowance was made for the known deceleration before impact at about 40 m.p.h., the initial speed would have had to have been correspondingly greater. [26] Dr Barron also gave evidence as to safe braking distances. The overall braking distance for a motorcycle from a speed of about 90 m.p.h. would range from 156 metres to 242 metres depending upon the severity of the braking and the reaction time of the rider. From a speed of about 60 m.p.h. the same range of braking distances would be between 78 and 126 metres. The absence of skid marks on the road surface was consistent with heavy but controlled braking having occurred immediately before the collision occurred. [27] On 23 April 2003 Dr Barron visited the scene of the accident with Mrs Morton. They approached the junction together from the south and Mrs Morton pointed out to Dr Barron where she had been overtaken by the motorcycle on the day of the accident. Dr Barron marked the spot with a chalk mark and later measured the distance from there to the entrance to Parkhill Road and found it to be 730 metres. She also told him that the impact had occurred just before she had rounded the left hand bend, namely just over 280 metres from the impact point. From this Dr Barron calculated the speed at which the pursuer's motorcycle would have had to have been travelling in order to cover 730 metres in the time that it took Mrs Morton to cover 450 metres at 60 m.p.h. and at 55 m.p.h. Those speeds were 97 m.p.h. and 89 m.p.h. respectively. Mrs Morton had estimated to Dr Barron that she had been travelling at 60 m.p.h. when she was overtaken by the pursuer. Dr Barron also carried out various detailed calculations to take account of the deceleration of the pursuer's motorcycle which must have occurred immediately before the collision. When allowance was made for that factor, the average speed of 97 m.p.h. would increase to 104 m.p.h. before starting to decelerate and 89 m.p.h. would similarly increase to 93 m.p.h.Assessment of the Evidence
[28] The pursuer spoke to his normal driving habits. I found this evidence to be so improbable as to be incredible. In particular, his evidence that he never drove at more than 60 m.p.h. and that he overtook slowly was contradicted by Mr Berry and I did not believe it. Mr Berry's account of the pursuer's overtaking manoeuvre accorded with Mr Riley's evidence of how the capabilities of a motorcycle such as that driven by the pursuer could be used to overtake in safety. Although I reject this evidence from the pursuer, I do not infer that he was likely to be driving at more than 60 m.p.h. as he rounded the left hand bend before the accident. I am simply denied the pursuer as a reliable source of evidence as to how the accident occurred. [29] I start therefore by considering the evidence of the eyewitness, Ms Findleton. She was aged 70 and appeared to me to be slightly nervous and flustered about giving evidence. She had left her reading spectacles in her car and did not seem to be comfortable looking at productions without them. Her ability to judge distances, when tested in evidence, did not appear to be particularly reliable. Nevertheless, in relation to the crucial fact of the defenders' lorry having turned across the path of the pursuer's oncoming motorcycle, her evidence was clear and unshakeable. As she put it, the picture of the lorry turning across would stay with her. She had a clear view of what she described in her evidence. She seemed to have no doubt about what she had seen. Her evidence of first hearing the motorcycle, then seeing it and finally seeing the lorry signalling to turn right and then cutting across in front of the motorcycle was entirely consistent. It is also significant that, because of her angle of view and the presence of the large tree or bush, the pursuer's motorcycle would not have been visible to her until fractionally later than it would have been visible to the first defender. Her evidence that she did not think that the speed of the motorcycle was excessive was not challenged in cross-examination. [30] Mrs Cameron was a more diffident witness than Ms Findleton. Her recollection was limited to hearing the noise of the motorcycle, glimpsing it for virtually a split second before looking back towards Ms Findleton and then hearing the sound of the collision. She could not remember having seen the defenders' lorry before seeing the motorcycle. Her impression of the speed of the motorcycle was derived from the noise that it was making. Since it was fitted with a performance exhaust, that may well not have been a particularly reliable guide as to speed. Mr Armstrong, Q.C., for the defenders, submitted that the reason Mrs Cameron "glimpsed" the pursuer's motorcycle was that it was on its "wrong" side of the road as the pursuer negotiated the gradual left hand bend and the configuration of the road caused him to pass into and then out of Mrs Cameron's field of view. While that may be a possible explanation of Mrs Cameron's evidence, it is only one possible explanation of which there may be several. I took her to mean that she looked briefly in the direction of the pursuer and then looked back to Ms Findleton, rather than that the pursuer passed through her field of vision as she was looking in his direction. In any event Mrs Cameron's memory of events and the quality of her evidence did not appear to me to be sufficiently reliable for any such precise inference to be drawn with any confidence. Nothing in Mrs Cameron's evidence was inconsistent with that of Ms Findleton who, by virtue of where she was standing, had a better view of the A92 in both directions. [31] Mr Collins did not appear to me to be a reliable witness. He was lying back in the passenger seat of the cab of the lorry. He was not paying particular attention to what was going on. He said that he had not discussed with the first defender why the latter was turning right at that point. Neither was familiar with the road and it was far from self-evident what would be achieved by turning into Parkhill Road in view of the large size of the defenders' vehicle compared to the width of Parkhill Road and the narrowness of the service road which ran in front of Ms Findleton's cottage. Furthermore, it seems inherently unlikely that Mr Collins might have chosen that particular moment to lean forward and look out of his left hand side window of the cab. He could offer no explanation of why he had done so. He denied that he had heard the noise of the pursuer's approaching motorcycle. He did not say that he had been prompted to do so by the first defender. He could not remember if the first defender had brought the vehicle to a stop before commencing the right hand turn or not. He was unable to describe the speed or manner of the first defender's turn into Parkhill Road. [32] Mr Collins' evidence was uncorroborated by the first defender who did not give evidence. The first defender, who was actually driving the vehicle, should have been in a better position to describe the view ahead along the A92 immediately before he commenced the turn into Parkhill Road than Mr Collins, who was apparently lying back in his seat and not paying particular attention to what was going on. No explanation was given to the court as to why the first defender did not give evidence. His name had been on the defenders' list of witnesses and, in the course of the proof, I was informed that there had been some difficulty in tracing the present whereabouts of the first defender, but ultimately no explanation was given for his non-appearance. [33] From Mr Collins' demeanour in the witness box and the manner in which he gave his evidence I was not convinced that he was telling either the truth or the whole truth. [34] I turn now to the evidence of Mr Berry and the statement of Mrs Morton. I had no doubt that Mr Berry was attempting to give honest evidence to the best of his recollection. He candidly accepted, however, that he had difficulty in recollecting the precise details of what had occurred. He was the passenger in the car and was not paying the same attention to what was going on around him as Mrs Morton was. He did not have the benefit of a rear view mirror. He was not watching the speedometer in the car and was having to judge speed by reference to Mrs Morton's normal driving habits. The fact that his attention had to be drawn to the accident by Mrs Morton because he was concentrating on something else in the car raises a doubt as to how long his attention had thus been distracted and how reliable his estimate may be of the precise point at which their car was overtaken by the pursuer's motorcycle. [35] I have to decide what weight to give to Mrs Morton's statement. It is open to the usual criticisms of hearsay evidence, namely that she was not on oath, she was not subject to cross-examination and I was denied the opportunity of seeing her give her evidence in the witness box. Mrs Morton was on the list of witnesses for both the pursuer and the defenders, but neither chose to lead her and no explanation was offered by either party for this failure. In this state of affairs I would be most reluctant to find any fact established on the basis of Mrs Morton's written statement or her oral statement to Dr Barron. Her hearsay evidence can provide corroboration of Mr Berry's evidence where the two coincide, but it can also cast doubt on the weight to be attached to Mr Berry's evidence where there is a contradiction. For example, Mr Berry's estimate of the point at which their car was overtaken by the pursuer's motorcycle is supported by her statement to Dr Barron. Her written statement is less precise but is nonetheless consistent. In the written statement she states that as she approached Tarriebank Residential Home she heard a motorcycle coming up behind her, she looked in her internal driving mirror and saw that it was approaching the rear of the car or cars behind her. Since she was travelling at an estimated 55 to 60 m.p.h., that means that her car would not have been overtaken by the pursuer until some distance north of Tarriebank Residential Home. This means that Mr Riley's evidence that Mrs Morton's car was overtaken by the pursuer some 1,450 metres south of the junction is incorrect. The correct figure is more likely to have been about 800 metres, the figure derived from Mrs Morton's statement to Dr Barron and Mr Berry's evidence. There is a discrepancy between Mr Berry's evidence and Mrs Morton's statement regarding the distance of Mrs Morton's car from the scene of the accident at about the time when it occurred. According to Mr Berry, he was first aware of the accident when he was 150 to 175 metres from the junction, but according to Mrs Morton, she was no more than 100 metres from the accident when she saw the pursuer in the air and that must have happened before Mr Berry looked up and first saw the pursuer's motorcycle on the carriageway. What is more, Mr Percy, who took the statement, explained in evidence how she had shown him the distance out in the street and that was how the figure of 100 metres came to be in the written statement. [36] Dr Barron's calculation of the pursuer's speed was dependent on knowing where Mrs Morton's car was overtaken by the pursuer, the distance of Mrs Morton's car from the junction when she saw the pursuer in the air and the speed at which Mrs Morton had been travelling between those two points. Mrs Morton's car was probably travelling at between 50 and 60 m.p.h. when it was overtaken by the pursuer, but I am unable to find that it continued at the same speed until first Mrs Morton and then Mr Berry saw the aftermath of the collision. The difficulty is the car which was ahead of Mrs Morton's car and which was also overtaken by the pursuer. According to Mr Berry that car had pulled ahead of them by the time that they reached the scene of the accident. He said that that car could have speeded up or Mrs Morton could have slowed down. He did not know which. It is also known from his written statement that at that critical time his attention was elsewhere within the car. In these circumstances I cannot find that Mrs Morton did not slow down before seeing the pursuer being thrown through the air. Accordingly two of the three pieces of information required by Dr Barron for his calculation of the pursuer's speed cannot be determined with any degree of certainty. [37] With regard to the calculations carried out by both Mr Riley and Dr Barron based on the time taken by the first defender to turn his lorry into the position where it blocked the entire width of the carriageway, I am unable to determine with any confidence how long that operation took. The reconstruction video demonstrated satisfactorily that six seconds would be about the right time for a reasonably cautious driver of a similar vehicle who knew where he was going, as the driver of the vehicle in the reconstruction did. The difficulty is that in the absence of evidence from the first defender, there is no basis for a belief that he did know where he was going or what further manoeuvre he intended to carry out or that he had ever driven into Parkhill Road before. He may have been making the turn extremely cautiously and he may have had second thoughts about how far into Parkhill Road to drive. At any event it is likely that the first defender was concentrating more on Parkhill Road than on oncoming traffic on the A92. While he doubtless checked that the road ahead was clear initially, he may well have paid more attention to Parkhill Road thereafter and before commencing his turn without first re-checking for oncoming traffic. In the absence of evidence from the first defender and reliable evidence from Mr Collins I find no reason to disbelieve the evidence of Ms Findleton. If the first defender's crossing manoeuvre immediately prior to the accident took between five and seven seconds, then Mr Riley's calculation of the distance travelled by the pursuer at 60 or 70 m.p.h. would corroborate Ms Findleton's evidence. Dr Barron's estimate of the pursuer's speed based on a turning time for the defenders' lorry of about six seconds presupposed that the road ahead was clear when the first defender commenced his turn. That supposition could only be made if Ms Findleton was wrong and if Mr Collins' evidence was to be accepted. I find no reason in the other evidence to reject Ms Findleton's evidence or to accept that of Mr Collins and accordingly I find no basis for Dr Barron's estimate of the pursuer's speed of between 89 and 125 m.p.h. based on a turning time of about six seconds. [38] I have already explained my reasons for rejecting Dr Barron's alternative calculation of the pursuer's speed based on the point at which he overtook Mrs Morton's car. I should say that both Mr Riley and Dr Barron impressed me as thorough and conscientious expert witnesses who were endeavouring to provide evidence to assist the court. I found no material differences in their respective calculations. The differences in their conclusions lay in the factual material to which they had had access and the assumptions that they made about the factual position. At the end of the day I have to apply their calculations to the facts that have been established in evidence in the course of the proof.Decision
[39] In order to succeed in this action the pursuer has to prove that the first defender performed his right turn manoeuvre when it was not clear or safe for him to do so. In my opinion the pursuer has succeeded in that proof. For the reasons which I have given, I accept the evidence of Ms Findleton that the first defender drove his lorry across the path of the pursuer's oncoming motorcycle. Accordingly I sustain the first plea-in-law for the pursuer. It is then necessary to consider the defenders' plea of contributory negligence. That plea could only be sustained if the defenders had proved that the pursuer had been driving at an excessive speed, namely a speed at which he could not stop his motorcycle safely and within his range of vision, and that that failure materially contributed to the accident and the injuries sustained by him. In my opinion the defenders have failed to prove excessive speed on the part of the pursuer. While he may well have exceeded 60 m.p.h. when overtaking three or four cars on the straight stretch of road before the gradual left hand bend on the approach to the Parkhill Road junction from the south, they failed to prove that his speed was excessive or in any way inappropriate over the 280 metres immediately to the south of the junction. Even if I was wrong about that, the defenders have failed to prove a causal connection between the pursuer's speed and either the occurrence of the collision or the severity of his injuries. The defenders perilled their case on the evidence of Mr Collins and the supposition that the pursuer must have been travelling at at least 90 m.p.h. when he came within sight of the junction. In order to do that, they had to overcome the evidence of Ms Findleton which, in my opinion, they failed to do. The only direct evidence as to the pursuer's speed within those last 280 metres came from Ms Findleton and Mrs Cameron. Ms Findleton's evidence that she did not think that the pursuer's speed was excessive was unchallenged. Mrs Cameron's assessment of speed appeared to be based largely on the noise that the motorcycle was making. Since that noise was explained by the performance exhaust system, noise was an unreliable indicator of speed. [40] Mr Armstrong referred me to three reported cases involving contributory negligence on the part of a motorist whose vehicle had collided with an unlit or inappropriately parked stationary vehicle. In those cases the driver had been found 60 or 75% to blame on the view that the accident could have been avoided if he had been keeping a proper lookout. I could make no such finding in the present case. Finally, Mr Armstrong referred me to the decision of Lord Davidson in Caven v McEwan 1985 S.L.T. 83. In that case a car driver emerged from a side road into the path of a motorcyclist and Lord Davidson apportioned liability for the accident as to three-quarters to the car driver and as to one-quarter to the motorcyclist for driving at an excessive speed. The case is only reported as a note on quantum and Lord Davidson's reasoning on this point is not explained. If I had been able to find fault on the part of the pursuer and that that fault had contributed to the accident, I would have found Lord Davidson's decision in Caven v McEwan more helpful than the decisions involving stationary vehicles because of the more closely analogous circumstances of a vehicle emerging from a side road. [41] In the circumstances I repel the first five pleas-in-law for the defenders.The Result
[42] In the course of the proof parties lodged a joint minute (no. 35 of process) in which they agreed all of the heads of the pursuer's claim for damages. At the end of the proof Mr McEachran, Q.C., for the pursuer moved for decree in the sum of £726,414, being the sum of the figures set out in the joint minute. The quantum of that motion was not opposed by Mr Armstrong. It is apparent from the terms of the joint minute that parties had calculated interest on past wage loss and past solatium to 27 May 2003, the sixth anniversary of the date of the accident. Parties agreed that it would be appropriate for me to update the accrued interest to the date of decree. Accordingly I shall pronounce decree in favour of the pursuer in the sum of £727,027 made up as follows.|
Expenses incurred by the pursuer |
£6,414 |
|
Past and future services in terms of sections 8 and 9 the Administration of Justice Act 1982 inclusive of interest |
£90,000 |
|
Past wage loss |
£80,000 |
|
Interest on past wage loss to 8 July 2003 |
£19,568 |
|
Future wage loss |
£400,000 |
|
Loss of pension |
£35,000 |
|
Solatium |
£80,000 |
|
Interest on past solatium (two-thirds of £80,000) to 8 July 2003 |
£13,045 |
|
Additional transport costs inclusive of interest |
£3,000 |
|
TOTAL |
£727,027 |
