Stephen Lyons against QBE UK LTD (National Personal Injury Court) [2025] SCEDIN 20 (12 March 2025)

SHERIFFDOM OF LOTHIAN & BORDERS AT EDINBURGH

IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT

[2025] SC EDIN 20

PN4908-23

JUDGMENT OF SHERIFF M PETER ANDERSON

in the cause

STEPHEN LYONS

Pursuer

against

QBE UK LIMITED, an insurance company with registered office at 30 Fenchurch Street,

London, EC3M 3BD

Defenders

Pursuer: R Conway, solicitor advocate

Defender: S Kirk, solicitor

Edinburgh, 12 March 2025

The Sheriff, having resumed consideration, finds, admitted or proved:

The Pursuer is Stephen Lyons. He is 28 years old and is employed as a

Groundworker, a job he has done from the age of 17. This involves general physical

labour and work on construction sites including preparation of foundations for buildings.

The Defenders are an insurance company with a registered office at 30 Fenchurch

Street, London and on 22 January 2021 were the insurers of a Ford Transit van, registered

number SL70EOV being used by Advance Construction (Scotland) Limited and driven by

their employee Mr Lorenzo Tortolano.

The court has jurisdiction. The accident which gives rise to this case happened in

Scotland. There are no proceedings involving the parties in any other court. Reference was

made to another case, PN3487/23 at the instance of Lorenzo Tortolano against Lauren Sands

and it does appear to have arisen out of the same accident. I have no information about the

status or outcome of that action. Apparently it is not otherwise connected or relevant to the

present case. There is no agreement prorogating jurisdiction to any other court.

On 22 January 2021 at approximately 4pm, the Ford Transit van with registration

number SL70EOV was being driven by the Defenders' insured, Mr Lorenzo Tortolano.

Mr Tortolano was employed by Advance Construction (Scotland) Limited as a Ganger.

Mr Tortolano's home address is in Moodiesburn, Glasgow.

Mr Tortolano was driving three other Advance Limited employees including the

Pursuer who were travelling home to Airdrie from a construction site in Moodiesburn.

Johnny Mitchell was sitting in the front forward facing seat, the Pursuer was sitting behind

the two front seats in a seat facing backwards. He was wearing a seatbelt. A further

colleague, Colin Moss, was in another seat further back in the vehicle than the Pursuer,

looking forwards, facing the Pursuer.

The Ford Transit van was driving on the A73 Stirling Road approaching Riggend

heading towards Airdrie. This is a dual carriageway. The van was travelling in the outer

lane of the dual carriageway at a speed of approximately 70mph.

Ahead of the van, the inside lane was occupied by a Vauxhall Astra motor car,

registered number LL56REN driven by Lauren Sands, an off duty police officer. She was

driving at approximately 65 to 70mph. The speed limit applicable to the dual carriageway

is 70mph.

The distance between the Ford Transit van in the outside lane and the Astra car in

the inside lane was closing and Mr Tortolano intended to continue to overtake the Astra.

There was no other relevant traffic.

Ahead of both vehicles was a slip road on their left-hand side. An ambulance

driven by Mr Thomas McLaughlin was travelling up the slip road towards the junction

with the A73 southbound at the time the Ford Transit van and the Vauxhall Astra were also

approaching that junction. The blue light was operating on the ambulance and also its siren

was sounding. The ambulance came to a halt at the junction of the slip road with the dual

carriageway A73 southbound, ahead of and in the vision of the drivers of the Vauxhall Astra

and the Ford Transit. By the time it stopped, the Astra and the Ford Transit were

approximately 100 metres away from the slip road junction.

10.

Both Mr Tortolano, the driver of the Ford Transit van, and Ms Sands, the driver of

the Vauxhall Astra, became aware of the ambulance as it approached the slip road junction.

The view of approaching motorists is partially obscured on the left hand side by a banking

and trees with other foliage. Mr Tortolano saw the approaching ambulance at or shortly

before he reached the isolated trees on his left hand side approximately 150 metres from the

junction. Ms Sands was aware of the ambulance from an earlier point at or about the Give

Way sign on the left hand side approximately 250 to 300 metres from the junction.

11.

A short distance beyond the slip road junction with the A73 southbound, the road

ceases to be a dual carriageway and is reduced to two lane traffic. The dual carriageway

has a central reservation and towards the centre of the raised reservation there is a line of

small bollards joined at the top by fencing material. At a distance of approximately 200 to

300 metres before the slip road there is on the nearside of the road a sign indicating that

traffic is becoming two way. At a distance of approximately 100 metres to 150 metres from

the slip road there is a road sign indicating the slip road approaching from the left hand

side.

12.

Mr Tortolano did not reduce the speed of the Ford Transit on seeing the ambulance

approaching the slip road junction. He did not reduce speed in anticipation of the end of

the dual carriageway section of the A73 a few hundred metres ahead.

13.

When the Vauxhall Astra was approximately 50 metres from the slip road, the

driver, Ms Sands moved to the right, changing lanes in to the path of the Ford Transit van,

driven by Mr Tortolano. Ms Sands did not signal that move to the right.

14.

At a place approximately level with the Give Way sign shortly before the beginning

of the slip road junction, there was impact between the rear offside and rear of the Vauxhall

Astra car and the front nearside and front of the Ford Transit van. As a result of the impact,

the Vauxhall Astra driven by Ms Sands went out of control and spun ending up on the

northbound carriageway beyond the end of the dual carriageway section of the A73. Both

vehicles were significantly damaged in the areas of impact. The Ford Transit van required

repair/replacement to front bumper, front lower bumper, left head lamp assembly, left

front wing and the other damage as more fully set out in production 6/6/1 and invoice

dated 8/4/2021. The Vauxhall Astra is shown in the report from LV Repair Services Limited

following inspection on 25/1/2021 when it was assessed as a total loss all as set out in the

report production 6/7/1-31.

15.

The damage to the Vauxhall Astra shows impact in two directions, a heavy impact

from offside to the centre from the collapse of the offside body work. There is also damage

consistent with impact from rear towards the front. This is shown in photographs at page 99

and page 107 (production 6/7/6 and 6/7/14). The damage to the Ford Transit van is shown in

production 6/6 and in particular the two photographs 6/6/8 (page 72) showing the nearside

front corner of the bodywork pushed in in front of the tyre; in production 6/6/9 (page 73)

showing front to rear distortion damage to the nearside bumper and headlamps and the

bumper frame, damaged from left to centre. On Production 6/6/10, page 74 the tyre is

shown with the extent of body impact to the left and the front wing impacted rearwards.

16.

The Pursuer was 24 years old when he was injured in the incident. He attended

hospital the next day. He had been wearing a seatbelt in the van. As a result of the accident

impact, the Pursuer had pain radiating into both shoulders together with low back pain

and he was diagnosed as having sustained a neck sprain and back strain injuries consistent

with the impact collision. The neck injury had no continuing effects. He was off work for

one week and then returned to light duties for approximately two weeks after that. Light

duties involved tidying up, brushing etc. He was not fit to lift slabs and the other heavy

manual tasks associated with his employment as a Groundworker. The effects of the back

strain diminished over time. Pain and stiffness radiated into both shoulders. The effects

of the shoulder injury pain resolved within 3 months. The limitations of movement and

further pain resulting from the back strain injury persisted noticeably until at least

August 2021 and thereafter resolved by 9 months after the accident on 22 January 2021.

17.

The Pursuer's net loss of earnings was £346.76 inclusive of interest. The value of the

Pursuer's claim for the past services is £115.15 inclusive of interest.

18.

The driving of both the Defenders' insured driver, Mr Tortolano, in the Ford Transit

van, and of Ms Lauren Sands in the Vauxhall Astra, each made a material contribution to the

collision.

FINDS IN FACT AND LAW THAT:

The Pursuer has sustained loss, injury and damage as a result of fault and negligence

to a material extent on the part of the Defender's insured driver.

The net loss of earnings and value of past services total £461.91.

A reasonable award for solatium for pain, suffering and inconvenience is £3,700 plus

interest.

THEREFORE:

Grant decree for payment by the Defenders to the Pursuers of the sum of

SIX THOUSAND AND EIGHT POUNDS AND NINETY ONE PENCE (£6,008.91)

STERLING with interest to follow at the rate of eight per centum per annum from the date

of decree until payment.

PRELIMINARY ISSUES - PROCEDURE

1.1

This case called for Proof before me in Edinburgh Sheriff Court, All Scotland

Sheriff Personal Injuries Court, on Tuesday 4 February 2025. The Pursuer was represented

by Mr Ronald Conway, Solicitor Advocate and the Defenders by Mr Stephen Kirk, Solicitor.

The Pursuer had a Motion together with a late Inventory of Productions and a Motion

to have that received, to which no objection was taken and the late Productions were

accordingly received. The parties also produced for the Proof a Joint Minute of Admissions

which deals with a number of matters which were not controversial and agreement of the

medical report and medical records. It further agrees that the net loss of earnings is £346.76

and past services for the Pursuer at £115.15.

1.2

The Defender had lodged a Minute of Amendment and moved that the Record be

amended in terms of it. The amendment, although relatively brief in its wording does have

significant effect. In particular, the Defender's position is varied so that instead of saying

that the Vauxhall Astra "was joining the southbound carriageway from a slip road" the

Defender's position was now that the Astra was "proceeding in the inside lane". In support

of this, Mr Kirk said that it had always been known that the Vauxhall Astra, driven by

Lauren Sands, and which has been referred to in the pleadings as "the third party vehicle"

was travelling in the inside lane and had never been in the slip road. Accordingly, he said

there was no prejudice to the Pursuer.

1.3

Mr Conway objected to the amendment. He made reference to the established tests

for amendment procedure found in particular in Sheriff Court Practice - MacPhail - 4

Edition

Chapter 10. He acknowledged that this is a matter for the discretion of the Sheriff and that

various factors are identified to assist in that exercise including the stage which the action

has reached and the procedural history of the action, the nature of the amendment and any

prejudice. He pointed out that the Defenders had maintained skeletal Defences until after

the expiry of the three year limitation period. It was only after that date that the Defences

were expanded and suggested that liability for the accident rested with the Vauxhall Astra

and Ms Sands (the third party vehicle) although this created the wrong description of the

driving of the Astra. No third party proceedings had taken place. He did accept there

would be no actual prejudice to the Pursuer because the factual circumstances of the road

traffic accident were broadly understood and acknowledged on both sides. Nevertheless

until now the Defenders had been stating that Ms Sands' Astra emerged from the slip road.

The new version is very different.

1.4

I allowed the amendment reluctantly because any amendment of this significance

on the morning of a Proof is highly undesirable and potentially unfair. Ultimately, the

absence of any actual prejudice to the Pursuer and the prospect that the Proof without

the amendment would hear evidence which everyone knew was not consistent with the

Defender's written pleadings, and the desirability of having a Proof which dealt with reality

rather than some construct which was erroneous, led me to the view that the amendment

should proceed. However, the Defender's pleadings do the Defenders and solicitors no

credit. Even if the defence as expressed in adjustments managed to confuse the ambulance

which was using the slip road, and the Vauxhall Astra, (perhaps relying unwisely only on

information in the accident report prepared by the Pursuer), someone in the Defender's

solicitors should have read the pleadings earlier than the day or so prior to the Proof and

realised that the position in Answer 4 was wrongly described when the totality of the

evidence was considered. I understand that Mr Kirk inherited this case at a relatively late

stage for the purpose of the Proof and there is no criticism directed at him. He had to correct

the problem. Whoever was in charge of the pleadings prior to February 2025 had made a

significant and apparently careless error. There are further errors in the pleadings for both

parties which should not have been left uncorrected.

1.5

In Cond 3, jurisdiction is claimed by reason of the place of the accident stated as

"Stirling Road, Glasgow". That is wrong. The accident happened on the A73, possibly

known as Stirling Road, near to Riggend, which is near Airdrie, ML6. In Cond 4 the Pursuer

describes the vehicle being driven by Ms Sands as being a "Ford Focus" - it was a Vauxhall

Astra. In Answer 4 the Ford Transit van is described by the Defenders as being "owned by

Advance Construction (Scotland) Limited". Given the wording of the repair invoice I think

that is unlikely to be correct. Notwithstanding the Joint Minute of Agreement, it looks as

though the van may have been owned by "JMS Plant Hire" to whom the repair invoice is

addressed and this suggests that the van was on contract hire, although painted with the

Advance name on it and insured by the Defenders. Throughout Answer 3 the Vauxhall

Astra is described as "the third party vehicle". Whilst it may be that no technical

significance arises from this wording, it does suggest that Ms Sands was a third party to

the proceedings. She was not. At the end of Answer 4, the Defenders say, referring to the

history set out by Mr Ian Anderson, the Pursuer's medical expert at page 2 of production 5/1

that the accident happened "when, without warning a car which had been proceeding along

a slip road failed to give way and as a result crashed in to the passenger side of the works

van". That statement could and should have alerted the Defender's solicitors to the

inaccuracy of the position they had wrongly set out in the pleadings and they must have

known that this was not what Mr Tortolano was describing in his witness form,

production 6/9. It may be that pleadings are now relegated to a bit part in litigation,

particularly personal injuries litigation, but they remain important as seen from Practice

Note number 3, 2016 Personal Injury Actions for the Sheriffdom and paragraph 3. They

ought to have had better attention than happened here. There was also a degree of unreality

in a case being run on behalf of an innocent passenger only against one driver in a two

driver collision where liability was not straight forward. There may have been reasons for

this although I have difficulty in understanding what they might be, even allowing for

expiry of the limitation period. Similarly, I have difficulty in understanding why in the

situation where there could be blame attaching to both drivers, the Defenders did not make

that position clear and then also direct third party proceedings against Ms Sands and her

insurers. I appreciate that there are expenses implications in all of this and there may have

been tactical reasons. However the court has been left with the unsatisfactory situation of

trying to assess liability of two drivers when only one of them was expressly criticised for

their driving and represented.

1.6

EVIDENCE

Having allowed the amendment to the pleadings, I then heard evidence as follows:

Stephen Lyons - the Pursuer

Lauren Sands - the Vauxhall Astra driver (third party vehicle)

Thomas McLaughlin - paramedic driver of the ambulance

All of these witnesses were led for the Pursuer.

For the defence I heard evidence from:

Lorenzo Tortolano - the driver of the Defender's insured vehicle, the Defender's

Ford Transit van.

Alan Bathgate - Automobile Engineer.

PURSUER'S SUBMISSIONS

2.1

Mr Conway adopted his Written Submissions. Firstly, he stated that the driving of

Ms Sands who was not a "third party" since she was never introduced into the action by the

Defenders, is not criticised in the Pursuer's case. The Pursuer's case is directed only against

the insurers of the Ford Transit van as driven by Mr Tortolano. His proposition was

reduced to the short point that the driving of Mr Tortolano amounted to a negligent and

material contribution to the accident. He referred me to the well known decision Wardlaw v

Bonnington Castings 1956 SC (HL) 26 and the speech of Lord Reid at page 31 that the

claimant

"must in all cases prove his case by the ordinary standard of Proof in civil actions;

he must make it appear at least that on a balance of probabilities the breach of duty

caused or materially contributed to his injury".

He derived further support for the "material contribution" from page 32 of Lord Reid's

speech and that

"what is a material contribution must be a question of degree. A contribution

which comes within the exception of de minimis non curat lex is not material

but I think that any contribution which does not fall within that exception must

be material. I do not see how there can be something too large to come within

the de minimis principle but yet too small to be material".

2.2

Mr Conway added the recent decision in Holmes v Poeton Holdings Limited 2023

EWCA Civ 1377 and in particular paragraphs 44 and 58 of the Judgement of Lord Justice

Stuart-Smith which discussed the Bonnington principles as well as other industrial disease

cases which have followed on from Bonnington. In paragraph 58 Lord Justice Stuart-Smith

quotes Lord Rodger of Earlsferry in Simmons v British Steel plc 2004 UKHL 20 2004 SC

(HL) 94, who described the decision in Bonnington as "the classic authority for the

proposition that, to succeed and recover damages in full against any defendant, a plaintiff

need prove no more in that the defendant's wrongful act materially contributed to his injury:

"but it is also hard - and settled law - that a defendant is held liable in solidum even though

all that can be shown that he made a material, say 5% to the claimant's indivisible injury."

2.3

In seeking to persuade me that the driving of Mr Tortolano amounted to a

"material contribution" Mr Conway then referred to the Highway Code 16th Edition 2015

(production 5/4) at paragraph 219 (which had been put to witnesses) and which is referred

to emergency and incident support vehicles. It reads:

"You should look and listen for ambulances..... When one approaches do not panic.

Consider the route of such a vehicle and take appropriate action to let is pass while

complying with all traffic signs. If necessary, pull to the side of the road and stop,

but try to avoid stopping.....before..... narrow section of road. Do not endanger

yourself, other road users or pedestrians....... Do not brake harshly on approach

to a junction..... as a following vehicle may not have the same view as you".

In Mr Conway's submission this meant that Mr Tortolano should be making "some kind

of accommodation" for the presence of the ambulance ahead and for the possibility that the

Vauxhall Astra in the inside lane would move out.

2.4

He relied on the decision in Griffin v Mersey Regional Ambulance 1998 PIQR - 34, a

case which does involve an ambulance but where the ambulance came in to collision with

another vehicle, at page 35/36

"the Judge found the plaintiff to have been negligent in three respects: first for

failing to hear the ambulance; second for failing to see it; and third for failing to

appreciate that the white box van was not stopping so as to turn right, but rather

for some other purpose which itself should have put a reasonably prudent driver

on alert."

Mr Conway founded on all of three respects and argued the driving of Mr Tortolano failed

in all of them. The Court of Appeal in England in the Judgment of Simon Brown LJ used

that formulation and together with what was then Rule 76 of the Highway Code, which

had very similar wording to para 219 of the present Code. The Road Traffic Act 1988

Section 30(7) provides that

"a failure in the part of a person to observe a provision of the Highway Code.....

may in any proceedings (whether civil or criminal) ....... be relied upon......as

tending to establish or negative any liability which is in question......."

On the facts in that case, the appeal against the decision which apportioned liability 60:40 in

the Defender's favour was rejected. It was held that the plaintiff was plainly negligent and

by analogy Mr Conway argued that the same should apply here because of the breaches of

the Highway Code. In particular Mr Tortolano should have been on the alert to anticipate

Ms Sands changing lane. He maintained his speed at 60 to 70 mph and did not slow down.

He did not hear the ambulance siren. On his own evidence he did not see the ambulance

approaching the entrance to the dual carriageway until he was at a point level with the trees

showing in photograph page 58. The ambulance would have been visible for a significant

distance before then. The only way in which Ms Sands could give priority to the ambulance

was to change lanes which Mr Tortolano should have anticipated. Whilst it would have

been unwise to stop on a dual carriageway, Mr Tortolano's decision to drive on and pull

over later did not give sufficient priority to the ambulance.

2.5

Mr Conway relied upon the observation of Lord Uthwatt in London Passenger

Transport Board v Upson 1949 AC 155 at page 173:

"..........I desire to only to register my dissent from the view expressed by the

Master of the Rolls that drivers `are entitled to drive on the assumptions that other

users of the road, whether drivers or pedestrians, will behave with reasonable care'.

It is common experience that many do not. A driver is not, of course, bound to

anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of

consideration the teachings of experience as to the form those follies commonly

take".

Mr Conway adopted the passage in Clerk and Lindsell on Torts - 24th Edition, para 7-214

which repeats that quotation and adds "failure to anticipate carelessness on the part of

others is regarded as carelessness in itself". Mr Conway repeated that it was not his position

that Ms Sands had necessarily been negligent.

2.6

In summary he submitted that the accident was caused at least to a material extent

by the failures of Mr Tortolano:

He did not see the ambulance until late; he did not slow; he did not anticipate

the change of lanes by Ms Sands;

The damaged vehicles were more consistent with Ms Sands' explanation and

the sketch provided by Mr Tortolano in his initial witness form dated 24 January

2021 (production 6/9) made no sense and gave no indication of the place of

impact.

Mr Conway also pointed to the complete change in the Defender's pleadings

and the earlier version must have been based on something which presently

remained unexplained by the Defenders and solicitors. Mr Conway also doubted

whether there had been no discussion amongst those in the transit van after the

accident and that Mr Lyons contradicted this.

2.7

Quantum

For solatium Mr Conway pointing to the agreed medical report from Mr Ian Anderson,

Consultant in Accident & Emergency Medicine and, invited the conclusion that an injury

which extended to approximately 9 months (as spoken to by Mr Lyons in his evidence)

with lower back and shoulder pain should attract an award of solatium of £6,000. He

reached that figure as a midpoint in the range given by the Judicial College for the two

injuries sustained - ie back and separately shoulder with allowance for overlap in pain and

limitation of movement, and then also by reference to the decision in Faragen Akrim v UK

Insurance Limited 2024 SC Edin 53 where £2,000 was awarded by Sheriff KJ Campbell KC,

and in Callum Fraser v Evelyn Munro & Others 2024 SC Edin 36 where Sheriff Nicol

awarded £3,500 for strain/soft tissue injuries lasting approximately six months.

DEFENDER'S SUBMISSIONS

3.1

In response, Mr Kirk adopted his rather more extensive Written Submissions. In

answer to points raised by Mr Conway, Mr Kirk rejected the submission in relation to

the material contribution saying that Bonnington and the other cases relied upon were

dealing with Pursuers with industrial diseases and therefore a very different situation.

He submitted that in asbestos cases, the rule is that one fibre exposure is de minimis and

anything under 5% would similarly be characterised also as de minimis. He did not venture

an opinion as to the level of contribution at which shared responsibility for an accident such

as this would begin.

3.2

His interpretation of the Highway Code para 219 was that there was no positive

requirement on either of the drivers on the dual carriageway to give way to the ambulance.

In any event Mr Tortolano had considered the presence of the ambulance and decided to

deal with this by driving past the junction with the intention of later pulling over to allow

the ambulance to pass on the two way stretch of road.

3.3.

By reference to the argument presented by Mr Conway relying on the three-fold test

in Griffin, Mr Kirk argued that there was no breach of the first two factors but even if there

was they did not give rise to any consequences. It was only the third factor which could

be relevant. But the facts in Griffin were very different. By reference to Lord Uthwatt's

description of driver "follies" Mr Kirk submitted strongly that Ms Sands late move in to

the off side lane was not just folly but something well beyond that and not something which

could have been anticipated by Mr Tortolano.

3.4

As is expressed in para 2.2 and 2.3 of the written submissions, Mr Kirk summarised

the Pursuer's case as alleging failure on the part of the Defenders' insured driver to pay

adequate attention to the road ahead or consider the route of the ambulance and failure to

take appropriate action to let the ambulance pass safely by adjusting his speed. He further

pointed out that the Pursuer in his evidence did not blame the Defenders' insured driver,

Mr Tortolano, and that severely undermined any case made for the Pursuer. Mr Kirk then

argued that the Pursuer had failed to discharge the onus of Proof to show on a balance of

probabilities that there was any fault on the part of the Defenders' insured driver.

3.5

Mr Kirk invited me to find that the Pursuer was an unreliable witness. He had

not been able to see what happened and in his claim for injuries there was no indication of

what household duties he said he was unable to undertake. He then also pointed to the

information provided by the Pursuer to the medical expert, Mr Ian Anderson, which gave

an entirely incorrect version of how the accident happened. He also pointed to the witness

form which suggests fault on the part of the driver of the Astra rather than any fault on the

part of the Defenders' insured driver. But that was not consistent with the position now

being adopted in pursuing a case which blames the Defenders' insured driver.

3.6

So far as Ms Sands is concerned, Mr Kirk argued that her version of the immediate

build up to the accident was highly improbable. This was the first time she had said that

the van had tried to overtake her and this was not something which had been pled by the

Pursuer. In para 6.14 of his written submissions he makes the point that on Ms Sands'

evidence, the Ford Transit van must have attempted to overtake at a point further back than

the end of the slip road, but that the photographs of the road show that there was nowhere

for the van to attempt such an overtaking manoeuvre. Therefore, Ms Sands' account was

factually impossible. He further challenged her account of the accident by reference to her

evidence about where she braked, approximately 100m back from the slip road. But then

she later explained that in her evidence she had also said that at the point she braked, the

van swerved and collided with her car - in line with the slip road which she had said was

100 metres away. He then also pointed to the photograph at page 60 which shows that the

central reservation and bollards are still in place. Importantly, the driver of the ambulance

Mr McLaughlin did not see the van try to overtake the Vauxhall Astra nor did he see the

impact.

3.7

Accordingly in Mr Kirk's submission Mr Tortolano took the safest course of action.

Even if he had slowed there was nothing to say that the accident could have been avoided

given the late movement of the Astra into his path. Accordingly, there was no breach of

the duty of reasonable care proved against Mr Tortolano and the Defenders should be

assoilzied.

3.8

Quantum - Solatium

By reference to the decision in Ashton v Skews 2009 WL289344 (Sheriff Principal EF Bowen

QC) - an award of £2000 - Mr Kirk argued that £3,400 is an appropriate award as at today's

date taken together with the Judicial College Guidelines Chapter 7 with particular reference

to back injuries.

EVIDENCE IN SUMMARY

4.1

The Pursuer Stephen Lyons. Mr Lyons confirmed his personal details and that at

present he is again employed by Advance Construction Scotland Limited as he had been

at the time of the accident. Mr Tortolano was his foreman on 22 January 2021 and at

about 4.00pm they were travelling from the building site in Moodiesburn in a works Ford

Transit van which Mr Tortolano was driving. Mr Johnny Mitchell was in a front passenger

seat. The Pursuer was behind them in a seat facing backwards and he was wearing a

seatbelt. Another colleague Colin Moss was in a third row seat but facing forward directly

in front Mr Lyons. The Pursuer did not see the collision although he felt it. He felt the van

start to brake and then a thud followed by a second thud.

4.2

After the accident, Mr Lyons recalled that Mr Tortolano checked on all of his

passengers and then went to see the other car on the opposite side of the road some distance

down. The Pursuer only saw the ambulance after the event and by then it was parked near

the car driven by Ms Sands. He said that there had been no real discussion among the Ford

Transit van's passengers about what had happened but Mr Tortolano gave an "insight".

The Pursuer then walked the distance back home to Airdrie. He felt shocked and went to

bed and the next morning because of pain in his right shoulder and lower back he went to

Monklands General Hospital where he was seen. He then had a week off work but because

of financial needs went back to work. He received some sick pay. When he returned to

work he was capable only for light duties and this continued for a couple of weeks. Light

duties consisted of just tidying up, brushing and related work. He was not able to lift slabs

or do the heavy work which typically he did. He had painkillers obtained on prescription

over the counter from the Pharmacist. A friend had given him stronger pills. He described

continuing pain and discomfort particularly with his back which continued for some weeks

and months after the accident.

4.3

Production 5.1 is the medical report by Mr Ian Anderson, Consultant in Emergency

Medicine by video consultation on 17 August 2021. The Pursuer explained the version of

the accident circumstances in Production 5/1/2 that "a car had been proceeding along the

slip road and failed to give way" as something he had been told by Mr Tortolano.

4.4

In describing his condition symptoms, Mr Lyons said that as at the date of seeing

Mr Anderson he still did suffer discomfort as noted. He thought he did recover within

nine months as predicted by Mr Anderson. The pain was mostly in his lower back and he

could "deal with" the shoulder pain.

4.5

In cross-examination, Mr Lyons was asked whether he was blaming Mr Tortolano

(the Defender's insured driver) for the accident. Mr Lyons said, "no". He was referred

to production 6/12/1 and 6/12/2 a "witness form" apparently prepared for his employers.

Question 6 asks whether he heard "any admission by either driver" and the reply is "yes

the woman said to ambulance". Mr Lyons said he obtained that information from Lorenzo.

Question 7 asks - "whom do you consider was to blame.....?" The reply is "the woman

because she said to the ambulance". Again he explained that answer by saying this

information had come from Lorenzo. He was cross examined about the effect of his injuries,

but insisted that his earlier description in evidence in chief was accurate.

4.6

Lauren Sands

The Pursuer's second witness was Lauren Sands. She is now 33 years old and has five years

service as a Police Officer meaning that at the time of the accident in January 2021 she was

fairly recent into that occupation. After describing her police experience and background,

including driving police vehicles, using flashing lights and siren, she said that on 22 January

2021 she was driving to her home in Airdrie. By reference to Productions 6/4/1/2/3/4/5

(photograph pages 56-60), she confirmed that these show the dual carriageway from

Cumbernauld to Airdrie. They also show the central reservation with bollards.

Production 6/4/1 (page 56) shows an approach to the slip road junction and has a warning

sign showing that two way traffic is about to commence following the end of the dual

carriageway stretch. The remaining photographs show the approach to the slip road

until Production 6/4/5 (page 60) which shows the edge of the slip road junction. She

confirmed that the accident happened at about 4pm when she was driving her Vauxhall

Astra LL56REN. She was not on duty. From photograph Production 6/4/1 (page 56) she

described her car as being in the left hand inside lane and approaching the slip road. The

speed limit is 70 miles per hour and she was doing 65 to 70 miles per hour. By the time she

was at about the road sign shown in Production 6/4/2 (page 57) (the slip road sign) she could

see the ambulance approaching the end of the slip road ahead and coming to a halt. Blue

lights and a siren were operating. She said she then checked her mirror and saw the van

behind her. She checked her offside mirror for anyone in the outside lane. She said she was

thinking she would give the ambulance a clear exit and moved right. She thought she then

travelled to the Give Way sign seen in Production 6/4/4 (page 59), and braked, although

not heavily. The ambulance did move out but she described then being struck by the other

vehicle. This was just as they were approaching the end of the dual carriageway and the

return to single lane traffic in each direction. She was hit by the Ford Transit van on the rear

offside of her car. Her car then spun on to the opposite side of the carriageway and stopped

about 100 metres further on.

4.7

She denied ever saying to the ambulance driver that she had been on her mobile

phone or that the accident was her fault. She denied saying to the van driver that the

accident was her fault. She denied that the van had been established in the outside lane

prior to impact and also that she swerved without warning. She denied that the van could

not have avoided the impact saying that it could have braked. She denied any suggestion

that she could be at fault. When asked about the vehicle damage shown in Production 6/7

she said that this had occurred because the van driver tried to swerve and to go round her -

overtaking on the right hand side which meant on the central reservation. The van was

trying to overtake her and the collision happened at about the Give Way sign whilst the

ambulance was still at the slip road end. She then modified that to say that the collision

had happened further on and at a point where the central bollards end. She denied saying

in answer to the ambulance driver or Mr Tortolano that "this is a civil matter" meaning that

police did not need to be involved. She explained that in her view, police involvement was

not necessary.

4.8

She stated that she had moved in to the outside lane just beyond the traffic sign

seen in Production 4/6/4/4/2 (page 57), and at that time there was a distance of one and a

half car lengths between her vehicle and the approaching van. She insisted she signalled.

By reference to photograph Production 6/4/4 (page 58), she said she braked at approximately

half the distance shown between the front of the photograph and the slip road. She did

that because she considered a hazard existed from the ambulance and also they were

approaching the end of the dual carriageway. In re-examination she said that the van

carried out its overtake manoeuvre in the section of diagonal lines after the bollards had

ended.

4.9

Thomas McLaughlin

Mr McLaughlin was driving the ambulance as a paramedic, now with ten years' experience.

He confirmed it had blue lights operating and the siren was sounding. He came up the slip

road approaching the A73 and stopped at the white line. He saw the car in the left hand

lane move in to the right hand lane as he approached the junction but before he had

stopped. He then saw the van collide with the back of the car.

4.10

He thought that the car had moved from the inside lane to give way for him. That

is something he regularly experienced driving in urgent responses. He confirmed that

the car after the collision spun across the road into the opposite northbound carriageway

beyond the end of the dual carriageway section. He then moved to block the road with the

ambulance and check for injuries. He spoke to the car driver, a police officer and she said,

amongst other things, that this was a civil matter, meaning that police did not need to be

called.

4.11

He thought that the car was approximately 50 metres back from the junction when

it moved lanes. Impact took place shortly before the two vehicles reached the junction. He

did not see any attempt by the van to overtake the car.

4.12

Lorenzo Tortolano

The Defender's first witness was Mr Tortolano. He is now a contracts manager and no

longer works for Advance Scotland Limited. He confirmed that on Friday 22 January 2021

he and the others in the van had been working at a site in Chryston and he was taking them

to Airdrie to drop them off. He agreed that the accident happened somewhere between 3.30

and 4.00pm on the A73. He knew the junction and did regard it as "dangerous". He drove

it twice each day and knew that after the junction there are access roads to farms and offices

etc.

4.13

By reference to the photograph Production 6/4/4 (page 59) he indicated the slip road

and road sign, and then described his van as being in the right hand lane. The collision was

beyond the sign when the van was in line with the slip road end. He knew the ambulance

was in the slip road.

4.14

As he approached the slip road he had seen the ambulance and the car ahead. He

planned to continue past the slip road and then later give the ambulance space to overtake

him if necessary.

4.15

Mr Tortolano described the car as switching lanes and smashing in to the side of

the van at its front. This was done without signalling. He slammed on the brakes but hit

the front wheelarch of the car ahead. The car ended up on the other carriageway at about

where the distant car can be seen in the photograph.

4.16

He went to the car and had a conversation with the driver. He recalls her saying that

it was "a civil matter". He was taken aback by this statement because it was not something

he expected. He said she said she was on the phone to her partner who was "raging because

of the crash".

4.17

He confirmed the vehicle damage as shown in the photographs. Subsequently police

officers did attend because they had been passing. He confirmed his passengers walked

home although the van could be driven.

4.18

In cross examination and by reference to the photograph Production 6/4/4 (page 59)

that Mr Tortolano said that by the time he approached the Give Way sign the ambulance

was just arriving at the white line of the junction. He had seen it on the road up to the

junction with its lights on but had not heard any siren. He disagreed that the car had to

move to accommodate the exit of the ambulance. In his view it was better to drive past the

junction because otherwise he would have had to brake hard. He could then have allowed

the ambulance to pass him later. Mr Tortolano denied that he had hit the rear corner of the

Astra but rather it had hit him crossing the lane at a late stage. It had not occurred to him

the Astra might move over to allow the ambulance out. He confirmed that he had not

slowed his speed at all. He estimated his speed at being 60 to 70. He confirmed that the

Ford Transit was travelling faster than the Astra. He denied swerving right or trying to

overtake the Astra.

4.19

From the photograph Production 6/4/3 (page 58) Mr Tortolano thought that he

had reached the trees on the left hand side of the road seen in the middle distance of the

photograph when he first saw the ambulance. The ambulance then stopped at the junction.

He estimated that there were 300 to 500 yards of dual carriageway left beyond the junction.

4.20

Alan Bathgate

Mr Bathgate was the final witness. He is 69 years old and an automobile engineer. His skill,

knowledge and experience is set out in his report production 6/5. He is a very experienced

witness in road traffic accident litigation. He is not a road traffic accident reconstruction

specialist and his knowledge and experience relate to vehicle damage and repair and

related costs. He adopted his report and the photographs of the vehicle damage and the

descriptions which the report contains together with the appendices which are production.

He also made reference to the invoices and other related photographs in production 6/6.

He described the damage to the Vauxhall Astra as being heavy from offside to centre with

collapsed panels. The photographs also show damage exposing the tyre, impact forward

of the rear wheel and the extent of damage to the rear corner of the Astra with the body

impacted inwards.

So far as the van is concerned, Mr Bathgate described the bodywork damage to the nearside

front corner, the body pushed in in front of the tyre, then front to rear distortion, damage to

the nearside front bumper and headlamps, the bumper frame damaged from the left hand

side of the van to its centre. The Astra damage was from the right hand side inwards.

CREDIBILITY AND RELIABILITY

I keep in mind that all of the witnesses were telling me events that happened almost exactly

four years earlier, so inevitably some elements of their recollection were going to lack

accuracy, detail and precision.

5.1

I found the Pursuer to be generally credible. I had no reason to disbelieve anything

he said about the injuries he sustained and the nature and consequences of them. He

seemed to me to minimise the overall effect and my assessment is much the same as that

expressed by Mr Ian Anderson in his medical report production 5/1. I do not accept

Mr Kirk's submissions that to some degree the Pursuer was overstating his injuries and

that it was far from clear that he had suffered an inability to provide services or required

services done for him. The amount involved is modest and the Defenders had already

agreed a payment for that element of loss as set out in the Joint Minute but even without

that agreement I would have found his evidence to be entirely believable. He went back

to work, for economic reasons and after two weeks or so of light duties which he described,

he did go back to working as a groundworker as he had done previously. He did describe

two impacts, each one a "thud", and I accept that evidence. I do find it to be consistent

with a first impact between the front nearside of the Ford van with the rear offside of the

Vauxhall Astra and then a subsequent impact further along the offside of the Astra. His

evidence about the accident circumstances and the version he gave to Mr Anderson and

separately in the Witness Form Production 6/12/1 and 2 is very unsatisfactory. But it was

the version derived from Mr Tortolano. I mean no disrespect to the Pursuer in describing

his interest in and knowledge of the events as being generally very limited. I attach no

significance to his limited recollection and understanding. He did not see the accident

himself. There does not seem to me to be any significance in his own absence of blame

directed against Mr Tortolano. Finally, that is a question for the court to decide based on

all of the evidence.

5.2

I did not find Lauren Sands to be reliable in her description of events. My view is

reached firstly and primarily because of her description of the Ford Transit attempting to

overtake her Astra. There is no suggestion of that in the written pleadings. It was not

something she said in the course of her evidence in chief. It only emerged when she had

to explain the vehicle damage which was not consistent with her description that she had

moved out in time allowing a space behind her in the right hand lane and that she became

established there leaving sufficient room for the Ford Transit to slow down. This suggestion

of an overtaking attempt by the Ford Transit had never been mentioned before.

Mr Tortolano denied it. Mr McLaughlin did not see it happen as he almost certainly would

have done since it was directly in front of him. I find it to be wrong. Rather than treat this

as a deliberate lie, I think it could just be consistent with an impression she formed as the

impact happened, all of which would have been within no more than a second or two given

the speed at which the two vehicles were travelling. So, I make no express finding about

credibility as such. But additionally, Ms Sands said that the ambulance had begun to move

out by the time the impact occurred. Mr McLaughlin said the ambulance had not moved.

Mr Tortolano said the same. I do not accept Ms Sands' version which again seems to me

an attempt to justify her move by suggesting that the ambulance responded to it by then

also moving out onto the main carriageway. I am also satisfied that the evidence from both

Mr Tortolano and from Mr McLaughlin indicated when she was talking about the accident

after the event Ms Sands did say that this was to be treated as "a civil matter". She denied

that. I do not accept her evidence. That in turn leads to a question as to why she was

insisting it should be a civil matter. I appreciate that post accident, reactions may very well

be troubled by the shock and disturbance of what has just happened and I can appreciate

that Ms Sands may not have wanted to be embarrassed in front of police colleagues. But

if the accident had happened as she described in evidence to me - ie when the van was

overtaking her, it seems to me she would have wanted police officers to attend because

such driving could be described as just careless but probably reckless given the layout of

the road at that point. It seems to me that she was reluctant to have the presence of police

officers at least possibly because she was aware that her driving was not free from criticism.

Accordingly, I do not accept her evidence that she had moved out leaving a car and a half

car length for the van. If she had moved when the Ford Transit was some distance back,

then it is more likely that impact would have been square on the front of the van to the rear

of the car rather than a corner to corner impact that did occur. I find that she did move out

at a late stage very possibly shortly before the commencement of the slip road junction and

its Give Way sign. In doing so, she did not leave sufficient space. I consider that her driving

was a material cause of the accident.

5.3

In general, I did find Mr Thomas McLaughlin, a paramedic ambulance driver, to be

credible and largely reliable although unfortunately his recollection was relatively poor.

Similarly, I found Lorenzo Tortolano to be generally credible and reliable in his description

of what happened, the speed of his vehicle and the layout of the road.

5.4

For the avoidance of doubt, I do not find that there is evidence to say that Ms Sands

was using her mobile phone when the accident happened. If anything I suspect that by the

time conversation was being had with her after the accident she had phoned her partner.

There is no evidence that she accepted the accident was her fault. All she did was to express

reluctance to have formal police involvement, although it seems that did happen at a later

stage because officers were passing by.

5.5

Mr Alan Bathgate's evidence was entirely credible and reliable within the limitations

of his expertise.

DECISION AND REASONS

6.1

I find that the accident was caused to a material extent by the driving of

Mr Tortolano, the Defender's insured. It was also caused to a material extent by the driving

of Ms Sands in the Vauxhall Astra.

6.2

For reasons I explained in para 5.2, I have rejected entirely the version of events

described by Ms Sands except where that is supported by other evidence. I have accepted

her impression that she was at about the road sign for the slip road - approximately 250 to

300 metres before the slip road junction when she first saw the ambulance. That looks

probable from the photograph 6/4/2 (page 57) and fits with the evidence from

Mr McLaughlin, the ambulance driver. I have in large part accepted the version provided

by Mr Tortolano which is in its essentials supported by the recollection of Mr McLaughlin

in his evidence. There was no accurate measurement of the stretch of the A73 dual

carriageway which is in issue in this case, but judgment can be made from the photographs

Productions 6/4/1 to 6/4/5. The road sign showing the slip road and junction ahead in

Production 6/4/2 (page 57) is approximately 250 to 300 metres from the junction. Two

isolated trees referred to by Mr Tortolano are approximately 150 metres from the junction

as shown in Production 6/4/3 (page 58). The Give Way sign at the beginning of the junction

road markings is in Production 6/4/4 and is approximately 30-50 metres from the beginning

of the junction roadway itself at the end of a stretch of road which has hatched markings.

The evidence indicated that after the impact, Ms Sands' Astra ended up on the north facing

carriageway beyond the end of the dual carriageway at approximately the place where the

further distant car is seen in Production 6/4/4 (page 59) - a distance of approximately 100 to

200 metres beyond the end of the dual carriageway section. The impact happened at about

the Give Way sign seen in that photograph which is 30 to 50 metres from the start of the

roadway section of the junction - where the ambulance was stationary. Mr Tortolano said

that he first was aware of the ambulance as he approached the trees seen in Production 6/4/3

(page 58) on the left-hand side of the carriageway, a distance of approximately 100 to

150 metres from the Give Way sign.

6.3

The Pursuer's pleadings attributing fault to Mr Tortolano are brief and do not

represent all of the evidence. But in particular in para 4 it is said that Mr Tortolano

"failed to pay adequate attention to the roadway ahead of him or to consider the

route of the emergency vehicle. He failed to take appropriate action to let it pass

safely, namely by adjusting his speed".

Then in cond 6 it is said "he failed to keep a proper lookout and to slow down

notwithstanding the visible presence of the ambulance with lights flashing and siren

sounding. His vehicle struck the rear of the vehicle driven by Lauren Sands. Reference

is made to the Official Highway Code 2015 Rule 219 `emergency and incident support

vehicles'".

6.4

In his submissions to me, Mr Conway for the Pursuer placed heavy emphasis on

speed and the failure on the part of Mr Tortolano to slow down as the Ford Transit got

closer to the slip road with the Astra in front of him and the ambulance approaching the

end of the slip road with lights flashing and siren sounding. The emphasis was directed

to speed because of the presence of the ambulance. In answer, Mr Kirk denied there was

a duty to slow down, but then that even if such a duty did exist, he challenged whether

slowing down would have prevented the accident because the sole cause was the move

by Ms Sands driving her Astra into the path of the Ford Transit shortly before the slip road

junction and giving the van driven by Mr Tortolano no opportunity to avoid the impact.

6.5

I find that the accident was caused at least in part by the speed of Mr Tortolano.

In his evidence to me he said very frankly that he did not reduce speed at all. He did not

describe lifting his foot off the accelerator or covering the brake in anticipation of any

event that might result from the presence of the ambulance. I find that to be a breach of

the duty of reasonable care. It seems to me that a reasonable driver seeing the ambulance

approaching the slip road junction with lights flashing and the siren operating and aware

of a car in front in the inside lane could and should have reacted to what was unusual. I

consider the careful driver could and should have slowed sufficiently given the traffic

situation unfolding in front of him, so that he could react to a problem that might emerge.

What happened - the late move to the right towards the outside lane by the Astra driver was

folly, but it was not out with reasonable care to anticipate that it might happen and to slow

down against that possibility. I find that it was his duty to alter his speed so that he stayed

behind the Astra, which was travelling at an ordinary legitimate speed of 60 mph or more

just in case the presence of the ambulance created a change in traffic conditions which might

provoke an otherwise unlikely response from the Astra. This is different from the situation

if there had been some other non-emergency vehicle approaching the slip road end.

6.6

I find further that Mr Tortolano's driving was also too fast at that place because the

end of the carriageway, as marked by the earlier road sign, was only a short distance away.

He had decided he was going to complete his overtaking manoeuvre of the Astra even

although the end of the dual carriageway was not far beyond the slip road junction and his

overtaking speed of the Ford Transit was at most 10mph higher than the speed of the Astra.

This driving was a material contribution to the accident. It was the end of work on a Friday.

He was transporting colleagues to Airdrie and then returning home. He should not have

continued in the overtaking manoeuvre at the speed he was doing when the end of the dual

carriageway was not far ahead. Finally, it seems to me on the evidence that Mr Tortolano

could and should have been aware of the approach of the ambulance up the slip road sooner

than he was. There is no obvious reason why it should have only been as he approached the

isolated group of trees seen in Production 6/4/3 that he became aware of the approach of the

ambulance. On the evidence of Mr McLaughlin as well as that of Ms Sands, the ambulance

had been in view from a point somewhere between the road sign and the end of the first

group of trees seen in Production 6/4/2 (page 57). The late recognition of the approach of the

ambulance may also have affected the decision of Mr Tortolano to continue at the speed he

was doing and to overtake the Astra.

6.7

It is entirely clear from the evidence I heard that a further and probably principal

cause of the accident was the decision by Ms Sands to change lane going to the right into the

outside lane when she was only a short distance ahead of the overtaking van. She should

not have done that. That was negligent. On the evidence I accepted from Mr Tortolano and

from Mr McLaughlin, Ms Sands moved into the right-hand lane without signalling and at a

point which was approximately 50 metres from the beginning of the slip road junction. At

that point she was only a short distance ahead of the Ford Transit. She moved when the

Ford Transit had no opportunity to brake sufficiently or to avoid the impact. The collision

happened before she had established herself in the outside lane. From the impact damage,

her car was still at an angle entering the outside lane. That is the most obvious explanation

of the damage to the rear offside and rear side panel of the Astra and the corresponding

damage to the front nearside of the Ford transit van. It is also consistent with the Pursuer's

description of two impacts, the two "thuds" with the first of those being probably the front

nearside of the van hitting the rear offside of the car and then a further strike by the front of

the van to the rearward side panel of the car as it began to spin after the first impact.

6.8

Although it was not cited to me in argument, I find that the starting point for

consideration of driving conduct in accidents is as expressed by Lord du Parcq in Searle v

Wallbank 1947 AC 341 at 361 where he said: "an underlying principle of the law of the

highway is that all those lawfully using the highway.........must show mutual respect and

forbearance." In the modern world that might best be described as "defensive driving".

This is a style of driving which means looking out for the possibility that someone will do

something careless or worse and being ready to guard against that. Mr Conway for the

Pursuer relied upon the passage from Clerk and Lindsell on Torts 24th Edition - para 8 - 201

to the effect that "failure to anticipate carelessness on the part of others is regarding as

carelessness in itself". That is derived from a series of cases which I have considered but

will not quote or cite here. I do however find the observations of Lord Uthwatt in London

Passenger Transport Board v Upson & Another 1949 AC 155 p 173 indicate an early adoption

of that point of view when he said that he disagreed with the views expressed by the Master

of the Rolls (Lord Greene) "that drivers are entitled to drive on the assumption that other

users of the road, whether drivers or pedestrians will behave with reasonable care." As

Lord Uthwatt expressed

"it is common experience that many do not. The driver is not, of course, bound

to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out

of consideration the teachings of experience as to the form those follies commonly

take".

In that House of Lords appeal, Lord Du Parcq also disagreed with Lord Greene (Page 175).

At page 176 he repeated his earlier observation in Grant v Sun Shipping Limited 1948 AC 549

at 567 that "a prudent man will guard against the possible negligence of others when

experience shows such negligence to be common". The judges in these cases were

expressing views 75 years ago when traffic conditions were very different and the volume

of traffic much less. But even then, a majority of the House of Lords was making clear that

drivers are not entitled to assume that other drivers will behave with reasonable care. The

increase in vehicle numbers coupled with much higher potential speeds means this is even

more essential in the 2020s so that reasonable care for all road users properly requires the

reasonable driver to adopt defensive driving where it is needed.

6.9

If the danger was no more than a mere possibility, which would not have occurred

to the reasonably careful driver, armed with common sense and experience, then there is no

obligation to take extraordinary precautions. (Foskett v Mistry 1984 1RTR1). The Defender

is not judged by the standards of an ideal driver nor with the benefit of 20/20 hindsight.

(Stewart v Glaze 2009 EWHC704 (QBE)). Drivers must always bear in mind that a motorcar

is potentially a dangerous weapon (Lunt v Khelifa 2022 EWCA Civ 801). My conclusion is

that although many drivers may have done exactly what Mr Tortolano did, that does not

make it safe or even reasonably careful. The reasonably careful driver is defensive in his

driving and prepares for situations that may never arise.

6.10

Turning to the paragraph of the Highway Code - para 219 of the 2015 edition

(Production 5/4), it seems to me that it has no direct application to the facts and

circumstances of this case. It is of course guidance and not a rule of law or of the road.

In line 6 it says

"when one (i.e. emergency vehicle) approaches, do not panic. Consider the route

of such a vehicle and to take appropriate action to let it pass while complying with

all traffic signs. If necessary, pull to the side of the road and stop...do not endanger

yourself, other road users...do not break harshly on approach to a junction...as a

following vehicle may not have the same view as you."

This guidance does not merit a strict interpretation approach. There is a general direction

to consider an emergency vehicle and its road position and where appropriate to take action

to let it pass. The passage does not consider directly the prospect of an emergency vehicle

entering into a main road from a side road as here. But I take the general guidance to

operate which is basically not to panic or do anything in a sudden way which would

endanger other road users. The advice not to "brake harshly" is given in the context of

another vehicle having a less clear view. In this case, neither vehicle did break harshly.

The one thing which Ms Sands did was to move her road position in a way which did then

put the following van into difficulties and danger. To that extent therefore, I think she did

fail to comply with para 219. But similarly, it could be said that Mr Tortolano also failed

to comply. He could and should have slowed down, which would have allowed the

ambulance then to emerge. Doing that would not have created danger for other traffic since

it seems no other vehicles were nearby. It does not take hindsight to see that this was

always a better option to allow the ambulance a clear route ahead when it was responding

to an emergency rather than face the prospect of having to travel behind the Transit van

until Mr Tortolano could have found a place to slow down and let it pass. Mr Tortolano

could and should have put the Ford Transit in a position which was behind the Astra and

should not have moved from that until he knew that the emergency vehicle had become

established in its road use, or both the Astra and the Ford Transit had safely passed the

slip road. Although finally I do not require the special knowledge of Mr Tortolano about

the junction to set up the basis of my decision, there is an added requirement for caution on

his part because he said in evidence that he knew the junction to be "dangerous" although

he was not asked to expand upon what he meant by that.

6.11

Expressly, I decline to make any formal assessment of contribution as between the

Defenders' insured driver, Mr Tortolano, and Ms Sands, the driver of the Astra. I do that

for several reasons. Firstly, it is enough for me to find that there has been a material

contribution set out in the driving of Mr Tortolano which I have criticised. I am of the

opinion that there has been such a material contribution. It does not seem to me that I

need to become involved in any of the detail of what may be a fascinating philosophical

discussion as to what is or is not material or de minimis. I do not need to spend time

discussing whether or not the Bonnington principles are properly carried over from disease

cases into other forms of negligence actions, although for what it is worth, I do consider that

they are so properly translated and the objection from Mr Kirk could not be upheld. But it

is in any event my view that the law is clear, and has been for very many years, at least since

the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 Section 3 that two or more

contributors to any accident which causes loss, provided each of them is responsible to some

material extent, can be found liable in damages even if, as here, only one potential

wrongdoer is sued. At least in the first place, a single Defender can be held solely liable

for full compensation to the Pursuer. It can then be for that wrongdoer person to decide

whether or not they want to try to recover a contribution or all of the award from some

other person. It is not appropriate to set out a precise allocation of responsibility on the

part of Ms Sands since she was not a party to this action and was not represented. I have

heard no submissions on her behalf nor was she given the benefit of representation when

she was giving her evidence. It is presently sufficient for me to find comfort in the views

of Lord Reed in Jackson v Murray 2015 UKSC 5 at page 28 when he said "the apportionment

of responsibility is inevitably a somewhat rough and ready exercise". For me in this case,

that exercise is satisfied by finding that there is a material contribution from the Defenders'

insured driver, Mr Tortolano. I may have the impression from what I have heard that the

majority of the responsibility rested with the Astra driver, Ms Sands, but I make no specific

finding about that.

QUANTUM SOLATIUM

7.1

The only issue about damages is the level of award for the pain and suffering

sustained by Mr Lyons as a result of the accident. The medical report of 17 August 2021

is little more than a narrative of the symptoms which Mr Lyons has described to

Mr Ian Anderson, the Consultant in Accident & Emergency. No independent examination

was carried out. Mr Anderson's report is not clear about the "documentation" which he

says he reviewed, but which would seem to have included the brief records of Monklands

Hospital Emergency Department and the Pursuer's GP. The actual medical treatment was

brief - advice and pain reducing medication. The medical report does mention "a neck

sprain and back strain injuries". It also mentions treatment "along conventional lines with

neck care and back care advice together with analgesics and anti-inflammatory agents."

Mr Lyons did not describe any significant or continuing neck injuries. He did describe

back injuries which continued to affect him, and the medical report describes "residual

discomfort over the midline between both shoulder blades overlying his dorsal spine and

also over the midline over his lower lumbar spine". The shoulder pain was not a problem

after 3 months. As at August 2021, 7 months post-accident, the major impact of the injuries

had diminished. On examination by Mr Ian Anderson in August 2021, any shoulder pain

had resolved. There was no significant neck pain and none was mentioned by Mr Lyons

in his evidence to me. By that date only occasional limitation and problems with lower

back continued. Thereafter, any residual pain or difficulty reduced further until about 8 to

9 months after the incident when all of the symptoms had resolved. My starting point is the

Judicial College Guidelines, Chapter 7 - Orthopedic Injuries, and in particular Minor Back

Injuries - (c)(ii) - full recovery without surgery between three months and one year. (Page 43

of the Guidelines). This establishes a range of £2,990 to £5,370. The Judicial Guidelines

Section (C) - Shoulder Injuries subcategory (d) Minor (ii) resolving within a year has a

range £2,990 to £5,310. The decisions of Sheriff Campbell KC and Sheriff Nicoll in Ackrim v

UK Insurance Limited and in Callum Fraser v Evelyn Munroe respectively were helpful, but

ultimately the injuries they were dealing with were different from those in the present

case in material respects. In Ackrim, the injuries had resolved within 3 months placing

the award in a different category in the guidelines.

7.2

As in all cases of this type, the starting point for assessment is the severity of the

original injury, the duration of the symptoms, the degree of pain experienced and the extent

to which continuing symptoms are of a minor nature only. It seems to me that from his own

evidence and the report of Mr Ian Anderson, the Pursuer's shoulder injuries would not fall

within (ii) but rather within category (iii) - they resolved within three months. The Pursuer

indicated that he attributed any significant continuing difficulty to his back and that he

could cope with any difficulty or pain in his shoulder. There is always difficulty in trying

to add together two categories of injury because the overlap is obvious. The injuries I have

outlined and as set out in the Pursuer's evidence together with that of Mr Anderson, the

Consultant, lead me to the view that the appropriate figure is £4,300. I reached that figure

because it seems to me that the primary effect had resolved fairly swiftly for Mr Lyons

allowing him to return to work and then to resume his ordinary duties within 3 to 4 weeks.

I accept however that he continued to suffer particularly lower back pain which caused him

difficulties and he is entitled to have that recognised. The shoulder injury played only a

minor part in the pain and suffering and limitation of movement experienced by the

Pursuer. I attribute £600 of the award to that element. Taking it together with the back

injury, I therefore find that applying the guidelines leads to an award of £4,300 for solatium

in this case. Interest on that for nine months at 4% is £129. Interest on £4,300 at 8% from

October 2021 to the present is 3.25 x 8% - £1,118. Accordingly, the total award for solatium

is £5,547 inclusive of interest. Adding in the wage loss and payment for services (£346.76

plus £115.15), the total award is £6,008.91. I grant Decree for payment of that amount to the

Pursuer by the Defenders.

7.3

I reserve meantime all questions of expenses having not so far been addressed on

those, although the likely outcome seems predictable.

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	Scottish Sheriff Court Decisions
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Scottish Sheriff Court Decisions