Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 12
A755/10	OPINION OF LORD BANNATYNE in the cause JEFFREY CRUIKSHANKS Pursuer; against AMLIN UK LIMITED Defenders: ________________

Pursuer: Mackay; Thompsons

Defender: Peden, Solicitor Advocate; Brodies LLP

22 January 2013

Introduction

[1] This matter came before me for a proof before answer. The pursuer sought damages arising out of a collision between his vehicle, a BMW Z4 registration number T13 JEF and a tractor unit registration number UKZ 8287 driven by the defenders' insured, namely: Paul Garrett on 29 September 2009 at or about a roundabout in Bellshill, North Lanarkshire which had three entrances/exits, namely: Belgrave Street, James Street and Crowness Crescent.

[2] The only issue was liability, damages having been agreed in terms of paragraph 3 of a minute of agreement number 17 of process in the figure of £21,751.55 inclusive of interest.

[3] The evidence was in very short compass, the only witnesses who were led being as follows:-

Pursuer

1. The pursuer himself.

2. PC Steven Cook, who attended at the locus of the collision, shortly after it had taken place and spoke to both the pursuer and Mr Garrett.

Defenders

1. Paul Garrett.

Evidence

[4] The pursuer's evidence was this: he entered a roundabout in the Bellshill area from James Street; he went into the left hand lane on said roundabout intending to leave the roundabout at the next exit, namely: the exit at Crowness Crescent; the traffic both on James Street and the roundabout was very heavy, he described it as being nose to tail and he was in a line of traffic moving very slowly around the roundabout; as he was coming off the roundabout on the slip road into Crowness Crescent he became aware of a shadow on his right hand side and to his rear which turned out to be the tractor unit of a lorry driven by Mr Garrett; the tractor unit then hit him at the rear offside of his vehicle and drove down the offside of his vehicle damaging the whole of the offside; the part of the tractor unit which came into contact with his vehicle was the step/rim at or about the front nearside wheel of the tractor unit; the tractor unit had come from the right-hand lane of the roundabout (this was the first time he had seen the tractor unit which had come from behind him and to his right); he was not able to get his car out of the way of the tractor unit; it was his position that the tractor unit did not stop after the accident and that he had to run after the tractor unit which became stuck in traffic in Crowness Crescent; he caught up with the tractor unit, climbed on to it and knocked on the window of the driver's cab; he described the driver as being oblivious to having hit him and saying: "Sorry I did not see you"; in addition he said the driver appeared unwilling or unable to give his insurance details, so he called the police; a police constable told him after speaking to the driver of the tractor unit that the driver of the tractor unit was admitting liability and he then left the locus. His position was that prior to the collision the tractor unit was never in front of his vehicle. When it was put to him in cross-examination that he had misjudged a manoeuvre and come up the blindside of the lorry from behind it, he denied this.

[5] The next witness was PC Cook, his evidence was brief and was to this effect: the traffic at the locus and in the area of the locus was very heavy. On arrival at the locus he spoke to the pursuer and then spoke to Mr Garrett who said to him that he was at fault for the accident, he accepted liability for the accident and further said to the officer that he had not seen the pursuer's vehicle. The officer then went back and told the pursuer what had been said by Mr Garrett. He saw damage down the whole offside of the pursuer's vehicle.

[6] The last witness was Mr Garrett. He stated that he had entered the roundabout at Belgrave Street (the entrance to the roundabout immediately before James Street); he went to the outside ie right hand lane on the roundabout as he intended to leave the roundabout at Crowness Crescent (which so far as he was concerned was the second exit on the roundabout); he said that the traffic on the roundabout was busy but described his travel through the roundabout: as being "a continuous run round it"; he stated that at no point prior to the collision had he seen the pursuer's vehicle. He said that the pursuer's vehicle could not have been ahead of him on the roundabout as if it had been he would have seen it; he stated that the first he knew of the collision was hearing the noise of it. It was his position that the part of his vehicle which had come into contact with the pursuer's vehicle was the rim round his front nearside wheel; he said that he checked his mirror prior to moving from the right to the left lane on the roundabout; he said that before moving into the left lane he had signalled. He accepted that there were blind spots when looking into his mirror; he denied accepting liability to the police officer; his position was that the officer had not following speaking to him gone to speak to the pursuer, but rather that the pursuer had prior to the officer speaking to him left the locus. He accepted in cross-examination that he had crossed the line which demarcated the left and right lanes of the roundabout and then the collision took place causing the rim of his wheel to run along the whole offside of the BMW.

Submissions on behalf of the pursuer

[7] On behalf of the pursuer I was formally moved to sustain the pursuer's first plea in law, repel the defenders' plea-in-law and grant decree in the agreed sum.

[8] Counsel submitted that the case turned on the issue of credibility and reliability. He submitted that the pursuer's evidence was both credible and reliable. He founded in particular on the manner in which the pursuer had given his evidence which he submitted was clear and consistent. Secondly he pointed to the support which the pursuer gained from the evidence of PC Cook which in his submission tied in with the pursuer's version of events.

[9] He submitted in summary that on the pursuer's evidence the pursuer had done nothing wrong while driving around the roundabout and had acted at all times appropriately.

[10] It was his position that, on the unchallenged evidence, Mr Garrett at the relevant time was moving from the right hand lane on the roundabout to the left hand lane in order to exit the roundabout onto Crowness Crescent.

[11] He submitted that in so doing he had not taken reasonable care, in that he had failed to see the pursuer's car in the left hand lane. He submitted that Mr Garrett had failed to take reasonable steps to see that the area he was moving into was clear.

[12] In passing counsel referred me to rules 127, 133 and 186 of the Highway Code. Counsel accepted that these rules did not deal with the exact circumstances of the present case however he submitted they broadly supported his position that Mr Garrett was entirely to blame for the collision.

[13] Lastly counsel submitted that there was no room for any finding of contributory negligence; the pursuer had done nothing wrong.

Reply on behalf of the defenders

[14] The solicitor advocate for the defenders began by submitting that I should hold Mr Garrett as credible and reliable. He conceded that his evidence had not been as crisp as some of the others, however, he contended that he had given in his evidence his best recollection. I was reminded that the accident was some three years ago.

[15] He submitted that on the basis of the version of events spoken to by Mr Garrett the pursuer's car was behind the tractor unit in the left hand lane and had approached the tractor unit seeking to undertake it. The pursuer's vehicle he contended had approached in the blind spot of Mr Garrett, the pursuer had not paid proper attention to what was happening in the right hand lane, he had thus missed seeing the tractor unit, seeing Mr Garrett signalling prior to manoeuvring and thereafter beginning his manoeuvre.

[16] The solicitor advocate made passing reference to paragraph 221 of the Highway Code in support of the above submission.

[17] In the alternative he submitted that I might be unable to find who was at fault in this collision and that it followed that in those circumstances the pursuer must fail.

[18] Lastly he submitted that if I were not with him as regards either of these submissions I should hold that the pursuer was at least partly to blame for the collision.

Discussion

[19] Given that only two eyewitnesses to the events were led in the course of the proof the issue of their credibility and reliability is of critical importance.

[20] As regards the pursuer I have no difficulty in holding him to be credible and reliable. I found him to be an impressive witness who gave his evidence about the circumstances of the accident in a clear and authoritative manner. He was not shaken at all in his evidence in the course of cross-examination. I am unable to find any reasons why I should reject any material part of his evidence.

[21] I observe that his evidence, in a number of important respects is supported by the evidence of PC Cook. This is of some significance as PC Cook is an entirely independent witness. There was no submission on behalf of the defenders that I should reject PC Cook's evidence as either incredible or unreliable. In any event I am unable to identify any reason for rejecting his evidence.

[22] With respect to Mr Garrett I do not find him to be an impressive witness. His evidence regarding the circumstances of the accident, I do not find to be particularly clear. He gave his evidence in a hesitant and unconvincing manner.

[23] He answered a number of questions either by saying "I can't remember" or "I don't know". In my opinion these answers did not ring true. It appeared to me that, despite the passage of time since the accident, these questions should have been capable of being answered either yes or no. His evidence on certain important matters was not in conformity with the evidence given by PC Cook, whose evidence as I have said I accept as credible and reliable. In particular he differed as regards the following matters: as to whether he had admitted liability for the collision to the officer; as to when the pursuer had left the locus following the officer's arriving at the locus and as to whether the officer spoke to the pursuer after speaking to him; and lastly as to whether he said to the officer he had not seen the pursuer's vehicle at the time of the accident (his position was he said he "Didn't see where pursuer had come from", a materially different answer).

[24] Moreover, Mr Garrett's version of events appeared inherently unlikely in that it required me to accept either: that the pursuer had failed to see a very large vehicle in front of him moving into his lane, which seems highly unlikely or alternatively had seen Mr Garrett's vehicle moving across into his lane and had decided, in his small sports car to take a chance and attempt to undertake the vehicle driven by Mr Garrett. This latter possibility when put to the pursuer in cross-examination he dismissed by saying if he had done that there "was only one winner", namely: the very much larger vehicle driven by Mr Garrett. I believe that statement correct and this answer illustrates why the second alternative is highly unlikely.

[25] The pursuer's version of events, on the other hand, seems highly probable, namely: that Mr Garrett high up in his very large tractor unit, with the additional problem of blind spots in his wing mirrors, failed to see the small sports car in the left hand lane as he began his manoeuvre.

[26] Lastly, there was no dispute, that the damage to the pursuer's vehicle was down the whole of the driver's side and was caused by the front passenger side wheel arch or some adjacent part of Mr Garrett's vehicle. These circumstances fit in with the pursuer's version of events of Mr Garrett's vehicle coming from behind and to his right and scraping down the side of his vehicle. I find the cause of the damage and the nature of the damage to the pursuer's vehicle very difficult, if not impossible, to fit in with Mr Garrett's version of events.

[27] Having regard to the above I am unable to find the defender to be a credible and reliable witness. Accordingly in relation to all disputed matters I prefer the evidence of the pursuer to that of Mr Garrett and prefer PC Cook's evidence to that of Mr Garrett.

[28] In these circumstances and for the above reasons I hold that at the material time the truck driven by Mr Garrett moved from the right hand lane to the left hand lane as he exited the roundabout at Crowness Crescent; at this time the pursuer's vehicle was in the inside (left hand) lane and in front of the said tractor unit; the front passenger side wheel or some adjacent part of Mr Garrett's said tractor unit then collided with the rear offside of the pursuer's car; the said part of Mr Garrett's vehicle then continued in contact with the offside of the pursuer's vehicle for approximately its entire length. Mr Garrett at no point prior to the collision saw the said car and was not aware of colliding with said car until told of this afterwards by the pursuer. Mr Garrett in bringing the tractor unit into collision with the pursuer's car failed to keep a proper lookout and moved from the right hand lane to the left hand lane when it was not safe to do so. The pursuer fulfilled all duties incumbent upon him. He could do nothing to avoid the tractor unit driven by Mr Garrett. The pursuer was to no extent contributory negligent. The collision was wholly caused by the fault and negligence of Mr Garrett. The sections of the Highway Code to which I was referred I did not find to be of any particular assistance.

Decision

[29] I accordingly sustain the pursuer's first plea-in-law, repel the defenders' first, second, fourth and fifth pleas-in-law, find the defenders solely liable for the collision and award the pursuer the sum agreed in the joint minute, namely: £21,751.55 inclusive of interest. I have had the case put out by order before me in order that I can be addressed in relation to the issue of expenses.