Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 116
PD158507	OPINION OF LORD UIST in the cause RAYMOND MUNRO Pursuer against WILLIAM STURROCK trading as SCOTMAPS Defender ­­­­­­­­­­­­­­­­­________________

Pursuer: Hanretty QC, Revie; Anderson LLP

Defender: Dunlop, Pugh; Dundas & Wilson CS LLP

17 August 2010

Introduction

[1] The pursuer, who is 48 years old, has been a keen rally driver since about 1980. He had competed in a hundred or more rallies up to 2004. He was initially unsuccessful, but gradually became successful thereafter as he gained experience. He eventually won between 15 and 20 Scottish championships in the years leading up to 2004. He was the Scottish Champion in 2003 and 2004 and was said by the Press to be dominant in the sport. On 21 August 2004 he competed in "The Little the Jewellers Speyside Stages 2004" rally. He was driving a Subaru Impreza car which had been adapted for rallying. The organisers prohibited reconnaissance runs by competitors under pain of disqualification. His co-driver was Heather Connon (now MacKenzie). It was her function to navigate the route for him by reading aloud to him the instructions on where to go from the route notes (6/7 of process) which had been provided by the defender, who traded under the name of Scotmaps. The route notes with accompanying DVD were sold for £100.

[2] On page 3 of the route notes the defender stated:

"We have taken every care to describe to you the road and bends accurately, including any hazards that are known at the time."

In the General Advice section of the notes on page 4 the defender stated:

"We hope that all crews using these notes will find them useful. They have been designed for easy understanding and reading. Instead of reading corners in degrees, ie 20°, 30°, 40° etc, you simply omit the 0 and read out as 2, 3, 4 up to 9 for 90°.

The direction of the corner is given first, followed by the angle and any other information that is given."

Despite what was stated above, in the set of route notes which the pursuer purchased the angle of the corner was given first, followed by the direction. I shall employ that system of annotation in all descriptions of the bend, whenever provided.

[3] In stage 6 (out of 9 stages) of the rally, which took place in Clashindarroch Forrest, the pursuer crashed his car on a bend about four miles from the start of the stage and immediately after junction number 7 in the route notes. The circumstances of the crash were captured in the in-car video footage (6/10 of process). As a result of the crash the pursuer's car was damaged and he maintains that he has suffered a psychiatric injury. The bend was described in the route notes as "4Lin". The "4" referred to the angle of the bend and signified that it was a bend of 40°. The "L" signified that the direction of the bend was to the left. The "in" signified, according to the Key in the route notes, "take tight line".

The pleadings

[4] In his pleadings the pursuer avers that the route notes were accurately relayed to him by his co-driver and that he approached the bend at an appropriate speed and line in terms of the notes. At a point by which he was committed to his speed and line through the bend he saw that there were the foundations of a wall on his nearside underneath a grassy overlay and that the bend was much more acutely angled than 40°. His nearside tyre went over the wall foundations, throwing the car offline, and he was unable to steer it through the bend, as a result of which it impacted into the bank on the offside of the track just after the bend. He goes on to aver that any competent assessment of the route would have noticed the foundations of the wall on the nearside and that the route notes, if competently compiled, would have noted them. The notes, if competently compiled, would not have noted "in" thereon. Any competent assessment of the route would have assessed the angle of the bend at substantially more than 40°. Had the notes specified accurately what was involved at that bend he would have approached it at a substantially slower speed and would have taken a different line. He would not have been thrown off line by the foundations and he would have been able safely to negotiate the bend. In the set of route notes prepared for the same stage in 2001 the bend was classified as 7L. There had been no material changes to the route at that bend since then. Had the bend been classified as 7L in the 2004 route notes the accident would not have occurred.

[5] The defender avers in answer that the route notes were prepared by him in accordance with his longstanding usual practice following a detailed consideration of the rally course and sold to the pursuer along with a DVD run-through of the course showing an in-vehicle view of a car traversing the course while the route notes were read out. The route notes accurately described the bend in question as 4Lin. They were not, and were not intended to be, scientifically or mathematically accurate: they provided the defender's subjective assessment of the course and of the bends, corners, crests and other features thereof. The numeral 4 in the description of the bend in question denoted a 40° angle, an appropriate assessment for the bend in question, which was not severe and did not merit a 7, denoting a 70° angle. The letter L correctly denoted a left bend and the word "in" indicated, as was made clear in the Key which accompanied the route notes, that the defender was suggesting that a tight line be taken when negotiating that bend. The word "in" did not, as would be well known to the pursuer as an experienced rally driver, suggest that the driver might intrude on the inside verge as he went through the bend. If any such suggestion were to be made in route notes it would be made by the use of the word "cut". The route notes did not, and expressly stated that they did not, make any attempt to provide advice as to the speed at which the course might be driven. The accident was wholly caused by the fault of the pursuer in failing to negotiate the bend in question at a speed and in a manner appropriate therefor, notwithstanding it having been accurately and appropriately described by the defender in both the route notes and the DVD accompanying them. Many other drivers purchased the route notes and used them in the course of the rally. None made the same mistake as did the pursuer.

The proof

[6] The case went to proof on the issue of liability only. The pursuer's case consisted of the evidence of the pursuer and of six witnesses led on his behalf. The defender's case consisted of the evidence of the defender and eight witnesses led on his behalf. At the conclusion of the evidence I was invited by Mr Hanretty for the pursuer to prefer the evidence of the pursuer and his witnesses that the description of the bend in question as a 4L was wrong and to hold that, on any subjective assessment, it was so wrong and unreasonable that the defender was guilty of negligence. Mr Dunlop for the defender submitted that the opinion evidence given by the pursuer's witnesses about the angle of the bend was incompetent and also inadmissible as none of the witnesses met the criteria for a skilled witness, that the test to be applied in determining negligence was that set out in Hunter v Hanley 1955 SC 200 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and that the pursuer had not only failed to prove his case but that the evidence led for the defender conclusively proved that he had not been negligent, whatever test fell to be applied for negligence.

[7] As the outcome of the action turns upon my assessment of the evidence I summarise below the relevant evidence for each party.

The evidence for the pursuer

[8] The pursuer spoke to the circumstances of the crash as shown in the video recording. He explained that his co-driver called the corner as a 4Lin and he approached it as he would have approached such a corner. Had the corner been described as 7Lin he would have approached it at least two, or maybe three, gears lower and at a speed 30-40 mph slower. In that event he would most likely not have crashed. The reason he crashed was because he followed the instruction given by his co-driver. He accelerated when he should have slowed down. The word "in" should not have been included in the description of the bend when there was a wall so close to the nearside of the road: its foundation was at the nearside verge of the road. He thought that the corner had been correctly described in the 2001 route notes and wrongly described in the 2007 route notes.

[9] In cross-examination he stated that he thought he watched the DVD of the route twice before driving it. He accepted that the description of a bend in route notes is subjective. There was room for a small margin of disagreement about the description of the angle of a bend. Generally rally drivers and most people involved in the sport would agree on the assessment of a bend. There may be disagreement about whether a bend should be described as a 5 or a 6, but not about whether it should be described as a 4 or a 7. The angle of a bend would never change unless there had been a physical change to the road. When the video recording of the crash was played he accepted that he had not impacted with the wall on the nearside and denied that he had misjudged the bend. The car lifted, after which he over-steered and then under-steered before the crash. He would have been travelling at between 60 and 80 mph: to have been in fifth gear he had to have been travelling at 70 mph at least, possibly 80. The bend looked like a normal 7 to him. He agreed that if the angle of the corner had been correctly measured as being 30° it could be described as a 4 but not as a 7.

[10] Heather MacKenzie, aged 31, a radiographer, had been involved in rallying since she was 14, having, as she put it, "got the bug from her father". She was the pursuer's co-driver at the time of the crash. She called a 4Lin just before the bend. She thought, after reviewing the video footage of the crash, that the bend was a bit tighter than an L4. She felt that the route notes should not be advising a driver to take a tight line at a bend where there was a wall on the nearside. She felt that the car hit something on the nearside of the road and then hit the offside of the road. She would have expected the car to have slowed down more if going into an L7 bend. It did not make sense to her if the bend in question had been described as an L7 in the route notes for the 2001 rally. In cross-examination she accepted that the description of a bend in route notes was a matter for subjective assessment, but any differences in the description of a bend from different people were unlikely to be great. If the bend was a 30° bend it should have been described as a 3. Reasonable people could disagree slightly in the description of a bend.

[11] James Christie, aged 51, was a garage proprietor who had been involved in rallying since 1983. Rallying was his sport. He had stopped in 1996 but resumed in 2003. He had spectated at and competed in a lot of rallies. He also watched television programmes about rallying. He explained that the object of rallying was to go from the start of a stage to its end in the shortest possible time. That was down to car control and the co-driver. He considered himself qualified to say whether a driver took a good line or a bad line on a bend. He had been a friend of the pursuer, who was his landlord, for over 25 years and had known the defender for about 12 years. He himself had participated in the 2004 Speyside stages.

[12] Having watched the video footage of the crash, he thought that the pursuer took the bend as 4L, but that the bend was a 7. Although he did not know so in 2004, there were rocks and boulders on the nearside of the bend. The term "in" meant that the driver wanted to be well in to the nearside, as far as the track would allow him. In cross-examination he agreed that describing a particular bend was a subjective exercise. He would definitely not expect a 30° bend to be described as a 7. He agreed, on the basis of his own experience, that "in" did not mean "cut". The boulders which he had recently seen on the nearside of the bend were embedded in the ground and had not, in his opinion, come off the wall.

[13] Steven Clark, aged 35, a service engineer for an oil management company, had been involved in motor sport since the age of 20. He won the Scottish Junior Championship in 1996. He had done some co-driving and spectated at numerous events. He thought he knew whether someone had taken a corner within a range of acceptability. He could tell whether someone was committed to a corner. It was fairly obvious when a bad driver went round a corner. He was able to express an opinion on how a corner had been taken on the basis of his experience of rallying and spectating. Route notes had three purposes: (1) to reduce the advantage gained by cheats who used other notes; (2) to reduce the advantage of those with local knowledge; and (3) to make the rally safer. If the route notes were not accurate the driver would not know how fast to drive at a corner: he could take it at the wrong speed or in the wrong gear. He was acquainted with the corner at which the pursuer crashed in 2004 as he himself had covered it in the 2001 rally, in the route notes for which it was described as a 7L. He had acted as co-driver for Malcolm Proudlock in the 2004 rally. He thought the corner was tighter than a 4Lin in 2004: he thought it was at least a 6. A 4Lin was quite a fast corner, which most drivers could take in top gear. Video footage (6/12 of process) showed that Mr Proudlock took the corner in third gear. He felt that there was something not quite right when Mr Proudlock took that corner and that he had had "a moment", which was the only one which he recalled him having. He thought Mr Proudlock was aware of "the moment" and that they had spoken of it after the stage, at a time when they were not aware that that was where the pursuer had had his accident. There had been no difference in the corner over 2001, 2004 and 2007. He was not aware, before the pursuer's accident, that there was a wall on the nearside. A driver would not wish to be "in" if there was a wall there. As the previous corner was a 5L it was to be assumed that the following corner could be taken at a faster speed as it was a 4L. He himself had changed it to a 6L in the notes. Having seen the video footage of the pursuer's crash, he thought that the pursuer had taken the corner in the same manner as he had taken other 4s in the stage. Mr Proudlock did not drive to the notes on that occasion. Corners should be described consistently in route notes: if that were not done, there was no point in having them.

[14] In cross-examination Mr Clark admitted that he had never won the Scottish Championship. He accepted that in the compiling of route notes reasonable assessments were being made and that people might differ in their assessments. Ideally the route note provider would want to go through the route several times. As long as the description of corners was consistent, the actual angle of the bend was irrelevant. If the bend in question had been measured at 30° then all the other bends described as 7 should be 30°. He agreed that if a 30° bend were a 7 that a 3 would be straight. In 2004 he had not changed the description of the bend from the description given in the route notes: he had left it to Mr Proudlock to decide and he did not change it, although other things were changed. He denied having dreamt up for the purpose of the litigation his description of Mr Proudlock having "a moment" at the bend. He accepted that if the bend was 30° there was a margin for discussion of it being described as a 4.

[15] Robert Main, aged 60, was a civil engineer employed by Forest Enterprise Scotland. He was aware of the location of the pursuer's crash. He had first covered that part of the country in 1992. There had been no substantial realignment in the location since then. There might have been widening or ditch work in 1998-9, but there had been no change in the course of the road: it might have been widened by between 4 and 8 inches. A 1 foot 3 inch wall was still substantially intact at the corner at the visible end of the road. On the other side of the road was some ditching and high banking. In cross-examination he stated that the foundations of the wall were slightly closer to the road since 2003. He went to the corner with a compass and measured it at 35-37°, or 40° if you wanted to be broader. The measurement depended on where you took the apex from. In re-examination he accepted that the datum point could change the angle. He was standing with a hand-held compass when he took the measurement. He thought that measurements for route notes would be based on an on-board compass, a GPS or the human eye.

[16] David MacFadyen, aged 48, was a domestic appliance engineer who had been interested in motor rallying since 1982-3, but was out of rallying between 1992 and 2004. He had had experience of the use of route notes since 2004. He had been a co‑driver since 2005 and called out route notes. When doing so he changed the tone of his voice depending on the severity of a corner. He took part in the 2004 rally as a co‑driver. He had known the pursuer quite well since the early 1980s and was aware that he had had a crash in 2004. The pursuer was the best or one of the best drivers in the championship and, judging by the speed at which he drove, he would expect him to be going completely by the route notes. He did not recollect the corner in question when co-driving in 2004, but had visited it about two or three weeks before giving his evidence. In his opinion 4L was not an accurate call for the corner. He thought it was a 6, and required to be approached with more caution than a 4. The use of the term "in" was not appropriate as the nearside edge was raised. In cross-examination he conceded that somebody might say the corner was a 5 and somebody might say it was a 6. The angle of the corner depended on the area from which the measurement was taken and what was at the side of it. If it was a 30º bend he would not expect it to be described as a 6 or a 7.

[17] Alistair Miller, aged 61, produced television programmes for motor sports and had covered the Scottish Rally Championship for more than 25 years. He had also competed as a driver and co-driver in the 1970s. He fitted in-car camera systems and had watched hundreds of videos of rallying. He asserted that he had watched enough in-car footage to enable him to say whether a driver was driving competently or incompetently. He had made the television programme for the 2004 rally. He had adjusted the speed of the video footage of the pursuer's crash to 25% of normal and watched it frame by frame in order to see what had caused it. He opined that the nearside of the car had bumped into something, the car had set up, gone straight on and hit the bank on the offside.

The evidence for the defender

[18] The defender explained that he had started business in 1997 as Scotmaps, was a sole trader in 2004 and was now in partnership. He had been a competitor in the sport since 1979 and had worked as a cartographer and town planner in local government for 16 years. Route notes had been introduced in Scotland in 1997. Before that navigation was done by means of a map or a road book provided by the organisers. Because he had competed a lot in Europe he had had experience of route notes. With the exception of 1998, he had provided route notes for the Scottish Championship for every year since 1997. In 2006 he was successful in winning the contract for the South African National championships and he had also provided route notes in the Caribbean. He had prepared route notes for between 140 and 170 rallies.

[19] The procedure which he adopted in compiling route notes was as follows. He received information from the organisers about four to six weeks before the event. He then made contact with the Forestry Commission or private landowner to access the road. Along with an assistant, he then carried out a reconnaissance over two or three days. He drove the car and the assistant noted the relevant information. He tried to drive at 30 mph as there could be other road users in the forest. How he assessed a corner was a perceptual exercise. He then drove the course a second time and his assistant read out to him what had been noted. In describing bends he used a system of 1 to 9 for 10°-90°, followed by "hair pin" or "acute hair pin". He also added in all sorts of other terms such as long, very long, dip and bump. A corner could be short or long. The word "in" denoted "take a tight line". In the route notes he was trying to describe to the driver what the road was doing, not what speed the driver should be doing. On the second run he made amendments after his assistant had read out the notes to him. He then did a third run to see if he was satisfied with the amendments which he had made. The video footage 7/2 of process showed his fourth run for the speyside Stages in 2004. Normally his assistant drove on that run, but he could not recall if that was the case on this particular occasion. He would go back the day before the event and drive the stage again to look for anything that has changed in the forest. In 2004 Andy Kelly was with him on the day before the stage. He had been involved in rallying in the Scottish championship for quite some time and the Scottish Championship had appointed him as a fresh set of eyes to check if he (the defender) had missed anything. They prepared refreshment sheets (to cover, for example, a chicane which had been constructed in a manner totally different from what had been anticipated) which were made available to every competitor and a copy of which, signed by himself and the clerk of the course, was put up on the notice board.

[20] The route notes were compiled afresh unless an event had used a forest within the previous six months to a year. It was not his practice to carry out comparisons of the route notes with those of previous years for the same course. In 2004 he started afresh. He also did a run-through on the Saturday morning at pace or speed, but he could not remember if he issued any emergency amendments for that stage. The route notes he prepared were 6/7 of process. He took some care over, and pride in, the process of compiling the Key. His notes were received with approval in the rallying world. "4Lin" signified a 40° corner to the left at which the driver should take a tight line. 4 was his assessment of the severity of the corner. He considered that assessment to be reasonably accurate and had no concerns about it now. Compiling route notes was a subjective exercise. In 2007 something had made him perceive that corner as a 7, but he saw it differently in 2004. It was a 4.

[21] In cross-examination he stood by his assessment of the corner as 4 and said he did not think it was a 3. His perception had changed between 2001 and 2004. He did not see any boulders on the road surface in 2004.

[22] John Symes, aged 61, was the technical director of the Royal Automobile Club Motor Sports Association. He had been in that post for approximately two years. Before that he had been Technical and Risk Control Manager and at one stage Environmental and Safety Director. He held the qualifications of BSc in Mechanical Engineering and MCIME. He had had considerable experience of safety in motor sports and had investigated a large number of motor sports accidents, including those in rallying. He became aware of the pursuer's accident when his Association received a letter from the pursuer's solicitors. He had then carried out an investigation by obtaining the steward's report and other reports from the file, viewing the video footage of the crash and visiting the locus twice. He viewed the video footage a good number of times, including viewing it in slow motion and frame by frame. He did not see in the video footage any movement of the pursuer's car consistent with clipping on its nearside or front: the pursuer just ran wide at the corner and up the banking. He had had experience of describing a bend in route notes, which were "very personal things". On considering the defender's route notes he thought 4Lin was a very reasonable description of the bend in question: it was actually two bends with a straight in between.

[23] Mr Symes conceded in cross-examination that he had been at best a fairly modest rally driver and that he had at last competed about 15 years previously. On his two visits to the locus he had carried out a survey of it. He had also spoken to the clerk of the course, the safety officer and the co-ordinator of the Scottish Rally Championship, but not to the pursuer. He was satisfied that the route notes were an accurate representation of what he would expect to see. He had been told that the bend had previously been described as 7L but he did not think that the change from 7L to 4L was relevant. Route notes varied. He was satisfied that the 2004 description was accurate. He had not known that in 2006 the bend had been described as a 6R in the opposite direction. He was surprised by the magnitude of the change from 2001 to 2004, but it was possible that in 2001 it was considered as one bend. He would be surprised to find a change of 30° if there had been no change in the road in the interval. He could not think of an explanation for the change. On looking again at the video footage in the course of his evidence he thought that nothing in it suggested that the nearside of the car had struck anything. In re-examination he accepted that it could be the case that the 2001 description of the bend was wrong.

[24] Jonathan Thompson (37) was a civil engineer specialising in traffic engineering and road safety matters. His curriculum vitae is 7/6 of process. He had had about 20 years experience of assessment of road layouts, including measuring the angles of bends in roads. He had visited the locus in this case on 29 September 2009 and produced the plan 7/5 of process. He had measured the bend on the plan at 30°. He had undertaken a topographical survey on site which had resulted in the drawing shown in the plan. He explained that to calculate the angle of the bend he took datum points along the centre line of the track, identified the two straights that lead into the bend, extended those straights to meet one another and then calculated the difference in angle between those two straight lines. That was a recognised method to measure the angle of a bend: as the track was relatively narrow there was no real benefit in measuring it in any other way than along the centre line, being generally the path that a vehicle would take along that single track road. If the lines were to be moved closer to either the left or the right side the angle would still come out at 30°. The only possible way of getting a different result would be to skew the angle of the two straight lines by taking a diagonal line across the straights, but the difference in angle achieved would be minimal. The angle could be made marginally less than 30° by running a line on the approach from the right channel into the apex of the corner on the left and then exiting to the right. Equally, if the opposite of that were taken, the bend could be made marginally greater than 30°. There was no way, by moving datum points or doing anything else, that the bend could be measured as 70°, 60° or 50°. It could maybe be measured at 35° at the absolute maximum if a very odd approach angle were to be used.

[25] In cross-examination Mr Thomson stated that on the nearside there was a stone wall just over half a metre high, but he had not seen on the bend any parts of the wall which had fallen down. He was happy with the fact that there had been no change in the angle of the bend between 2004 and 2009. The exercise which he had carried out was in his view scientifically and mathematically accurate. He was aware that the route notes stated that they were not, and were not intended to be, scientifically or mathematically accurate, but he considered that, although the route notes had to be accurate to a point, that meant that someone had not gone out there and applied the level of mathematical checking that he had. He thought that the route notes should represent fairly accurately what the angle of the bend was, but beyond that he did not wish to comment. The description of that bend as a 7L would be inaccurate. The description of the bend in the opposite direction as 6R in the 2006 route notes indicated that the corner was tighter than it was. It was stating the obvious to say that if there was no change to the layout of the road, the angle of the bend would not change. He had not measured the radius on that or any other bend. A change in radius could alter the speed at which a driver could go through a corner: with a radius of one mile on a motorway he would not have to slow for the bend, whereas with a radius of 6 metres he could not take the bend at 70 mph. The angle was the angle and did not change, whatever the radius.

[26] Barry Johnson, aged 48, from County Durham was the managing director of a company which supplied electronic security systems. He was an experienced rally driver of 12 years standing who had won the Scottish Championship in 2002 and 2005. He finished second to the pursuer in the 2004 event. He never saw the route notes or video recording of the course provided for an event as his co-driver did not let him see them. He drove stage 6 in the 2004 rally immediately behind the pursuer. He had seen the video footage of the pursuer's crash and had no criticism of the description of the bend in the route notes as 4Lin. That appeared to him to be an accurate description of the bend.

[27] In cross-examination Mr Johnson accepted that he disapproved of the present litigation because he thought it was bad for the sport and had posted comments on the internet to that effect. He had suggested that the pursuer and his crew should be banned from rallying. When asked what "in" meant on the instruction for a bend, he initially replied: "You're looking at the corner to see how far you can cut it, for you're having to cut it because, obviously, it's not a 'cut', so it's on the inside of the road". He explained that "in" meant just the edge of the road. He later said: "I would like to say that my instruction for 'in' is I'm right on the edge of the road and I'm looking to see if I can get any further in". If he could see the grass and there was nothing there, that meant he could go onto the grass. When his co-driver stated "cut" he would tell him how far to cut, it could be the whole car off the road, so there was a big difference between "in" and "cut".

[28] Neil Shanks, aged 34, was a project engineer in a steel fabrication company from Elgin. He had been involved in rallying since his early teens, initially at club level, then progressing through to compete at Scottish Championship level and thereafter at British Championship level. He still competed at the latter two levels. He held an international rally licence. He had been involved in the organisation of the Speyside Stages since their inception in 1997, initially as Assistant Clerk of the Course, and from 1998, with the exception of two years, as Clerk of the Course. 2004 was the first year that he competed in the event rather than being involved in its organisation. He was familiar with the locus of the pursuer's crash and had seen the video footage of the crash. His main involvement in rallying had been as a co-driver and he was familiar with the use of route notes. In the 2004 event the pursuer was first off and he was in the third or fourth car on the road, behind Barry Johnson. The car in which he was travelling was flagged down and stopped roughly 50 to 100 yards before the locus of the crash. He had no criticism of the description of the bend as a 4Lin. His understanding of the notation "in" was to take a tight line to the inside of the corner and use only the available road. "Cut" was a different definition. Generally one would not expect to find "cut" in a set of route notes, but rather in pace notes (which dealt with speed). There was a clear difference between "in" and "cut".

[29] In cross-examination Mr Shanks stated that on the day of the crash he did not examine the corner in any great detail as the main concern was to clear the road of the blockage and continue with the event. He saw a mark on the outside of the corner but not on the left side. From local knowledge he was aware that there was a wall on the left side of the corner a reasonable distance (which he estimated as somewhere in the region of 400 to 500 mm) from the edge of the road. He believed it was an old dry stone wall and was not sure how much of it remained. The corner had not to his knowledge changed significantly over the years other than as one would expect it to change with forestry operations. Generally you would expect the passage of lorries to make the road wider and to take out any significant corners. Overhanging foliage could give the impression that the road narrowed even though it did not. He was aware that in 2001 this corner had been described by the defender as a 7L. He would have had no reason to be aware of major use of that road at the corner by forestry vehicles between 2001 and 2004. Some major form of operations would have been required to change the bend from a 7L in 2001 to a 4L in 2004. On the assumption that there had been no significant work on the road between 2001 and 2004 you would not expect the corner to have changed from 7L to 4L. In his interpretation the term "well in" meant you should take the tightest line available to you by using all the road: it did not mean you could go off the road, the term for that being "cut". In the 2007 route notes 6/17 of process the key for "well in" was "cut", but "cut" was very definitely a different thing from "well in". "No cut" meant that in the recce a hazard, such as a boulder or a culvert, that you would not want to make contact with, had been picked up close to the road. The hazard did not need to be on the road but you would expect to find it immediately adjacent to the road where the car could strike it by taking the tightest possible line. The instruction "no cut" was used when there was a hazard (which may be on the verge) which the driver should not strike by taking too tight a line. He could not recall ever having called the instruction "well in" when acting as a co-driver, but going by page 1 of the 2004 route notes he must have done. "Well in" to him meant the driver was coming from a narrow road onto a wider section of road and taking the tightest line he could. To him the difference between "in" and "well in" was the width of the road. He had never interpreted "well in" to mean "cut".

[30] Mr Shanks did not believe there was any foundation to the present action and did not believe that it was in the best interest of the sport. He thought that any legal case against any sport was potentially damaging. Route notes were subjective. He accepted that a major inaccuracy in the description of a corner could prejudice safety, but given the safety record of the sport the likelihood of someone being killed or seriously injured was very minor. People were aware of the dangers of competing in rallies. In re-examination he accepted that if the bend had been surveyed at 30° that reinforced his view that in 2004 it was reasonably described as a 4Lin.

[31] Matthew Proudlock, aged 49, was a hotelier from Dumfries. He had started off as a rally driver in the late 70s in clubman type events and gave up when he got married and built up a business. He resumed in 1990 but then stopped again and started again in 2003. He had finished second overall in the 2005 Scottish Championship. He had competed in the Speyside Stages for the 2004 Championship, ending in sixth position overall, and used the route notes and DVD provided by the defender. About 85 to 90 cars competed. He took the fastest time on stage 6 once it resumed after the pursuer's crash. He set out to win the stage with his co-driver Steven Clark, who would always be pushing him on. In his experience route notes provided by the defender were fantastic, and he did not like other providers' notes as much as those of the defender. He had had no difficulty in taking the corner where the pursuer had crashed and denied that he had had "a moment" at the corner. He did not recall having had a discussion with Mr Clark after the end of the stage about the "moment" he was alleged to have had at the corner. He had watched the defender's DVD in advance of the Speyside Stages and there was nothing that stood out as wrong on that day. He had had no concerns about the particular bend. He had no criticism of the description of it as a 4Lin.

[32] In cross-examination Mr Proudlock said that it would be silly not to use the DVD. On viewing the in-car video footage of his car taking the bend in 2004 he denied that he started to lose control of the car and then had to correct the steering. His turn of the steering wheel to the right was quite normal. He did not touch the brakes going through the corner, so there was no "moment" and the other significant factor was that he went through the corner with one hand on the steering wheel. He had not driven in the 2001 rally and was not aware that the bend had been described in the route notes for 2001 as 7L. The change from 7L to 4L was a big one and he would find it surprising if there had been no change in the road during the interval. When he took the bend in 2004 he was right next to the right banking, but that was quite normal and everything was under control. He thought he was in third gear going round the bend and estimated his speed at between 40 and 50 mph. If the pursuer took the corner in fifth gear that suggested his speed was between 65 and 75 mph. To him the instruction "well in" in route notes meant it would be safe to put your wheel on the inside of the corner as there was no obstruction there, but it did not mean "cut". In re-examination he stated that if the bend was a 30° bend he would not expect it to be described as a 7 and in 2004 it was reasonably described as 4Lin.

[33] Andrew Kelly, aged 53, was a company director from Greenock who had been involved in rallying for 30 years, predominantly as a driver, but was no longer involved on the competitive side. He knew both the pursuer and the defender. He had been the defender's driver on route note checks prior to the rally on a number of occasions, but had never been involved in the creation of the notes. The checks to look for any changes in the route since the notes had been compiled would be carried out on the Friday and the Saturday morning and any changes (for example, logs at the side of the road) would be noted. He could not recall having altered the severity of a corner in the route notes when working with the defender: he tended to agree with the defender's description of the bends.

[34] Mr Kelly had traversed the route for the 2004 Speyside Stages on the Friday and the Saturday and had no problem with the defender's descriptions of the bends. He knew the bend at which the crash had occurred and was content with the description of it as 4Lin. No error had been made in the description of the bend and he had no difficulty now with the description of it given by the defender. In an email to the pursuer dated 24 August 2004 (6/9 of process) he had written: "On the basis of your information it would appear that Bill has made a massive error in his route notes. As you know I'm the one that checks the notes with him on the day and therefore, if this is correct, I must accept some degree of responsibility. ... I have no idea how I could have got this corner so wrong as even in the Volvo I thought I would have noticed such a difference. I feel really bad about this and I am extremely disappointed in my own ability as a so-called rally driver." This email was, he said, a bit of a knee‑jerk reaction to what was being said in the Press and a bit tongue-in-cheek (in describing himself as a so-called rally driver).

[35] In cross-examination Mr Kelly accepted the difference between 7L and 4Lin and that one of these descriptions for the same bend was wrong. He presumed that when he wrote the email on 24 August 2004 he must have been aware that the bend had previously been described as 7L. On the basis of what he had heard since the accident he did not believe that the defender had made a massive error.

[36] Campbell Roy, aged 54, was a company director with 30 years experience as a co-driver in rallying. He had been the Scottish Co-Driving Champion in 1989 and 1990, and had come second in the British Championship in 1994. From October 2004 until October 2009 he had been Chairman of the Scottish Rallying Championship (SRC). He held no office in August 2004 and had not competed in the 2004 rally. He had known the defender for probably 15 years. The defender had provided the SRC route notes for the last 11 years. The standard and consistency of his notes had been exemplary, covering roughly 60,000 pages of notes and 150,000 calls. He also knew the pursuer.

[37] Route notes, which were provided for everybody in the field, were really a description of the road and there had to be an element of subjectivity about them. Consistency was required in the description of the corners. He was familiar with the route and had reviewed the video footage of it and of the crash. He had no difficulty with the description of the bend as 4Lin. He would say that a bend between 35° and 45° would be a 4. He took "in" to mean take an inside line or a tight line: it did not mean "cut", and the driver could not put his wheels off the road. The pursuer, as a former Scottish champion, would have known that.

[38] In cross-examination Mr Roy stated that, in the absence of an "in" call the driver would go with the normal line, presumably the middle of the road: he would drive round the corner as he saw it. Mr Roy had not personally taken part in the 2004 rally and first became aware of the pursuer's crash in the days after it. It was later on, probably when he had become chairman of the SRC, that it became clear that the pursuer was not happy with the description of the bend in the route notes. He knew that the bend had previously been called a 7L and, on the assumption that there had been no change in the road between the two different calls, one of them was wrong. The wall at the nearside of the road did not in any way prevent a driver going round the corner and he did not recall any rocks or stones being adjacent to the road.

[39] Murray Grierson, aged 61, was a retired engineer. He had been involved in rallying from the early 70s until 1978 and again from 1984-1999. He had competed at international level. His curriculum vitae is 7/7 of process. He had used route notes on numerous occasions and had made route notes for himself over the years. He considered himself qualified to offer an opinion on route notes based on his experience over the years. In connection with this case he had traversed the stage with the route notes used on the day. He had also stopped and looked in depth at the bend and viewed the video footage. The route notes were subjective and had been made by one driver for 120 other drivers of differing ability. It was very hard to get agreement about what a corner should be called. He was quite happy with the description of the corner as a 4 and had no concerns at all about it. The term "in" meant the driver should take a tight line to the left without using any of the embankment. He had no concern about the term "in" being used for that bend, or about the wall not being mentioned.

[40] In cross-examination Mr Grierson explained that the term "well in" became used when the Scottish Championship asked that the term "cut", which depended on the car, be not used. As a generality a driver would take the apex when going through a corner. Even if the term "in" was not used he would make his own judgment of where to be on the road. The term "no cut" meant that the driver should not go onto the grass. Some drivers would still cut corners even if the term "cut" was not used: the pursuer had done so in this instance. He himself would not have cut that corner, although he saw no hazard at it. Numerous corners were called tighter in the 2001 route notes than in the 2004 route notes.

Discussion and conclusion

[41] In my consideration of the evidence I must first rule upon the objection taken on behalf of the defender to the admissibility of the evidence of the pursuers' witnesses about the angle of the bend. This evidence was admitted subject to competency and relevancy following upon the objection, the substance of which I have set out above at para [6]. In my opinion the objection falls to be repelled and the evidence in question admitted. I do not consider that such evidence amounts to opinion evidence which can be given only by an expert. What I am dealing with in this action is route notes in the sport of motor rallying. There is nothing technical or esoteric about route notes: they are merely a shorthand description of the route which is to be traversed, based on the compiler's assessment of the route. All people seriously involved in rallying are able to read and comprehend them (with the aid of the Key, if required) and to express their own views on the description of any particular feature given in the route notes. The pursuer's witnesses were in my view as entitled as the defender's witnesses to express in evidence their impression of the angle of the bend. The compiler (who does not require to have any professional or other qualifications) sets out his description of the bend in the route notes and others with experience of rallying are entitled to give their impression, for what it is worth, of the layout of the bend. In my opinion the evidence of the pursuers' witnesses of their impression of the bend is in the same category as that of witnesses who give evidence of their estimate of the speed of a vehicle, the distance between two points, the height of a building or the like: it is admissible for what it is worth. It follows that in reaching my conclusion I shall take into account the evidence of the pursuers' witnesses of their impression of the angle of the bend.

[42] In my opinion the crucial issue in this case is the angle of the bend in question, which must be a question of fact capable of empirical verification. Expert evidence of the angle of the bend was given by the surveyor Jonathan Thompson, who measured it at 30° in a mathematically accurate topographical survey. His evidence about the measurement of the angle was not challenged in cross-examination, and no other expert evidence of the angle of the bend was led to contradict it. The only real point raised with him in cross-examination was that of the significance of the radius taken by him in his survey. He answered that by explaining that the angle was the angle and did not change, whatever the radius. The only criticism (if it can properly be called that) of Mr Thompson's evidence made by Mr Hanretty in his closing submission was that his survey consisted of "a protractor exercise". I can find no reason (and none was suggested on behalf of the pursuer) why I should not accept Mr Thompson's evidence that the angle of the bend is 30°. He carried out his measurement in September 2009, but it was clear from all the evidence that there had been no material change in the layout of the road between August 2004 and 2009 (indeed, between 2001 and 2009). I accept his evidence and it follows that I reject all evidence which contradicts the angle of the bend as 30°. I therefore find as a fact that the angle of the bend at the time of the rally on 21 August 2004 was 30°. Consequently, on no possible view would it be correct to describe it as a 7 in the route notes for 2004.

[43] Mr Hanretty repeatedly made much of the fact that in the 2001 route notes the bend was described as a 7, so much so that I felt at times that I was hearing an action about whether the bend had been accurately described in the 2001 route notes. As I am satisfied on the evidence which I heard that there was no material change in the bend from 2001 onwards, I find that the bend was a 30° bend at the time of the 2001 rally. It follows that the description of it as a 7 in 2001 was wrong, but that fact is quite irrelevant for the purpose of the present action. The pursuer was not involved in a crash in the 2001 rally and he was relying on the description of the bend as a 7 in 2001 to support his case that it was wrongly described as a 4 in 2004.

[44] The defender, of course, did not describe the bend as a 30° bend: he described it as a 40° bend. He did not carry out a topographical survey and his description was based merely on a visual assessment when he traversed the stage for the purpose of compiling the route notes. It is no part of the pursuer's case, and it was not suggested, that it was wrong or negligent to describe a 30° bend to the left as 4L. In this respect I accept the evidence of the witnesses for the defender that no criticism can be made of the description of the bend as a 4. Moreover, the pursuer himself accepted that a 30° bend could be called a 4 and Mr Main measured it with a compass at 35-37°. The description of the angle of the bend in the route notes did not require to be mathematically accurate and to describe a 30° bend as a 4 was within the range of acceptability. (I would add, for the sake of completeness, that I also accept the evidence of Mr Proudlock, supported as it is by his in-car video footage, that he did not have "a moment" at the bend in the 2004 rally.)

[45] There remains the question of the use of the term "in". The Key in the route notes gives the meaning of this as "take tight line". The preponderance of the evidence, which I accept, was to the effect that this term did not indicate to the driver that he could "cut", in the sense of driving off the road surface when taking the bend. The term "well in" was not used to describe the bend and I fail to understand why it was referred to in evidence. If, in negotiating the bend, the pursuer clipped the nearside verge (about which I am not satisfied), then he cannot attribute this to the use of the term "in" by the defender in the route notes. I am satisfied, on the basis of the video footage and the evidence of Mr Syme, that the pursuer did not clip the nearside verge and that all that happened was that he ran wide at the bend and up the banking on his offside.

[46] As I am satisfied that there was no error by the defender in his description of the bend as 4Lin in the 2004 route notes, it is unnecessary for me to decide whether the standard of negligence which falls to be applied is the ordinary standard or the professional negligence standard as set out in Hunter v Hanley, for on either test the pursuer's case fails on a question of fact.

Decision

[47] For the reasons given above I shall assoilzie the defender.