Scottish Court of Session Decisions

The pursuer in this action, who is a chartered accountant, was appointed to be curator bonis to Kevin McKernon, hereinafter referred to "the incapax", in terms of an interlocutor of this court dated 20 October 1993, a certified copy of which is No. 30/1 of Process. At the time of that appointment, the incapax resided at 41 Seaforth Road, Tain, Ross-shire. In the present action the pursuer seeks reparation for loss, injury and damage sustained by the incapax as a consequence of a road traffic accident, which occurred on or about 26 May 1998, when the incapax was riding his bicycle southwards on the A9(T) road about a mile north of Tain on a part of it known as Wick North Road. There is no dispute that, at or about 3.00 pm on the date in question, the incapax had reached a section of the road about a quarter of a mile north of the Glenmorangie Distillery. At the material time, the incapax was in company with his father Michael McKernon, who was also riding a bicycle. At the time in question, the section of road where the accident occurred was being reconstructed. In the vicinity of the location where the accident occurred, traffic on the road was then restricted to the use of a single carriageway, which was controlled by temporary traffic light signals. At the material time, two motor vehicles were travelling in a southerly direction. These were firstly a Volvo B58 single deck touring coach containing 53 seats, which was being driven by the third party for his employers, White's Coaches, Newmachar, Aberdeenshire, and secondly a Mercedes 814 van belonging to the defenders and driven at the material time by Raymond Goodwill, one of their employees who was then acting in the course of his employment with them. It is not a matter of dispute that, shortly before the occurrence of the accident, these two motor vehicles had been required to stop at the temporary traffic light signals. At that time the touring coach driven by the third party was ahead of the Mercedes van. When the traffic light signals turned to green in their favour, both of these vehicles moved off. Immediately before the accident the Mercedes van had attained a speed of about 31 miles per hour, as demonstrated by its tachometer. The touring coach was travelling at approximately the same speed. It is matter of admission that the accident involved the nearside wing mirror of the Mercedes van striking the incapax, who then fell from his bicycle sustaining the injuries which constitute the basis of the pursuer's claim in the present action. It is also not disputed that a third motor vehicle was in the vicinity travelling northwards at or about the time of the accident. It was a private motor car driven by Ms Lesley Cooper.

The positions of the parties in relation to the pursuer's claim are set forth in their averments in the Closed Record (as amended), to which reference is made. It will be seen from the pleadings that the pursuer avers a case of fault against Raymond Goodwill, for whose actings and omissions in the course of his employment with them the defenders are said to be responsible. Liability for the accident is denied by the defenders, who have made a case of contributory negligence against the incapax himself, which is set forth at page 12D to E of the Closed Record. The defenders have also made a case of fault against the third party, Andrew Berry. That case has not been adopted by the pursuer. The third party denies responsibility for the accident. He makes no case of contributory negligence against the incapax.

At the commencement of the proof before me, my attention was drawn to the fact that the interlocutor of 21 May 1998 had restricted the scope of the proof to the merits of the action; matters related to damages did not fall within its scope. Accordingly the proof proceeded upon that basis. Evidence was led from a total of nine witnesses.

The pursuer himself gave evidence of a formal nature relating to his appointment as curator bonis and as to certain personal details of the incapax. He also gave evidence by way of explanation as to why the incapax himself was not to be called as a witness. That explanation was that the incapax had been unconscious for a period of three months following upon the accident and had no memory of it at all. It had been agreed between all interested parties that no useful purpose would be served by calling him as a witness.

Evidence was led from Police Sergeant Richard Fraser MacAulay, now a serving police officer in Orkney, who had at the material time been stationed at Tain. He had been called to the locus of the accident, where he had taken a series of photographs. These are produced as 13/1 of Process. His recollection of the circumstances had been impaired by the passage of time, but, with the assistance of the photographs, he was able to provide a reasonable description of the circumstances which he had observed and which, at the time, he had considered to be significant. He neither made measurements himself nor corroborated those made by any other police officer. I had no hesitation in accepting his evidence in relation to the photographs which he took and it is therefore appropriate to summarise briefly what he had to say about the locus of the accident. Photograph 1 showed the road in question running in a southerly direction, it being taken from a point close to the southern most end of the section of single carriageway road controlled by traffic light signals. At the time in question, the carriageway on the right hand side of the photograph was available for use by traffic going in both directions. The carriageway on the left hand side of this photograph had been coned-off and was not available for use by traffic. Photograph No. 2 showed the same road but a part of it closer to the supposed locus of the accident. At that point the tarmacadam carriageway which had been shown coned-off came to an end, its construction having gone no further in a southerly direction. There the surface changed from tarmacadam to hard core. Photograph No. 3 showed this hard core area and also the bicycles which had been being ridden by the incapax and his father. Photograph 4 showed what the witness took to be the location of the accident itself. The yellow chalk marks in the centre of this photograph, also depicted in photograph No. 5, surrounded an area of apparent blood staining, which the witness considered to be the point at which the head of the incapax struck the ground. Also shown in photograph 4 was a single tyre mark running obliquely to the line of the road for a short distance, which mark was about 1 to 2 feet from the edge of the tarmacadam surface. Further south from the marks shown in the centre of photograph 4 were to be seen two sets of two tyre marks running parallel with the line of the road, the east most set of which was about 1 to 2  feet from the edge of the tarmacadam surface. The witness considered that the distance between the apparent blood stain and these two sets of marks was several yards. The witness had observed that the Mercedes van involved in the accident, also shown in the distance in photograph 4, possessed double rear wheels. These could be seen from the photographs of the van itself, Nos. 11 and 12. At the time of his visit to the locus, this witness had formed the impression that the two sets of double tyre marks, to which I have referred, seemed to have been caused by the Mercedes van. Photograph 8 showed the two bicycles referred to. The bicycle ridden by the incapax was understood to be the one shown on the right of photograph 8 and also in photograph 9. From these photographs it could be seen that this bicycle was relatively slightly damaged, the handlebars and saddle having been forced out of their normal alignment. Photographs 11 to 15 inclusive showed various aspects of the Mercedes van. This witness felt able to say that the height of the nearside mirror on the Mercedes van above the ground was about 5 to 6 feet. Some marks which the witness considered significant had been observed on the nearside of the Mercedes van. Two of these could be seen in photograph 13, which had been marked in yellow chalk. The marks concerned were in the nature of ar

Ms Morag Scrimgeour testified that, at the material time, she had been a police officer stationed in Tain. She recollected having attended at the scene of the accident and confirmed the existence of various marks on the roadway shown in the photographs. By the time of her arrival, the incapax had been removed from the scene by ambulance. She had been in company with Police Constable Brian Logue, who had been the reporting officer. Her notebook from that period did not survive and she could not recollect any conversations relating to the matter or any measurements that might have been made. She thought that she and Constable Logue were the first police officers on the scene. She had gone there understanding that a young boy had been knocked off his bicycle.

Police Constable Brian Nathaniel Logue also gave evidence. He confirmed that he had attended at the locus of the accident and had been the reporting officer in connection with the case. He had taken a statement from the father of the incapax and had met the driver of the coach, the van and a lady, who were present at the scene. He considered that he would have taken measurements which would have been recorded in his notebook. Police notebooks were retained only for a period of five years beyond the current year. Accordingly his notebook was not now available. This witness was able to confirm having seen some damage to the nearside front of the van. In particular, a light there had been damaged. Constable Logue had been responsible for completing the road accident report form relating to the accident, which is 13/2 of Process. This witness recollected some damage to the bicycle which had been being ridden by the incapax. Its handle bars had been twisted. On reconsideration, the witness thought that he had not taken a statement from the father of the incapax. He had no present recollection of any conversation with any person present at the locus. Constable Logue was unable to give evidence relating to any distances shown in the photographs 13/1 of Process. He thought that the single tyre mark shown in the foreground of photograph 4 had had nothing to do with the accident. He had been unable to reach a conclusion as to what had made the two parallel sets of tyre marks seen in photographs 4 and 10. On reconsideration the witness said that he did, after all, recall taking a statement from the coach driver, Mr Berry, and also from the van driver, Mr Goodwill. He also recollected having taken a statement from Ms Lesley May Cooper, the driver of a motor car which had been in the vicinity at the time of the accident. This witness confirmed that, in consequence of the views which he had formed, no report was made concerning the accident to the procurator fiscal. For reasons which he did not explain, this witness considered that the injured cyclist had been riding his bicycle in the coned-off area of the new carriageway shown in photograph 1 prior to the accident. He considered that it would have been sensible for cyclists to have made use of that area and then subsequently to have turned into the main carriageway at the point where the coned-off area of tarmac came to an end.

Michael McKernon, the father of the incapax, next gave evidence. At the time of the accident he had been living in the area with his family, including the incapax. At the material time the witness and the incapax had both been working for a shellfish business in Tain. At that time the incapax had been aged 18 and was 5 foot 11 inches or 6 feet in height. The witness went on to describe the events leading up to the accident, so far as he was able. He said that the incapax and he had come to the temporary traffic lights where they stopped. Then, when the traffic lights showed green, he and the incapax moved off. He said that there had been a point where a bus had passed both the incapax and him very close. Then the next thing that he, the witness, remembered was the incapax lying injured in the roadway. There had been another vehicle very close behind them. The witness was unable to recall where the bus had passed them. He said that it was between the two sets of traffic lights. On being shown photograph 1 in 13/1 of Process, he was unable to say where the accident had occurred. He said that he did not know if he and his son had reached the tarmac area to the left of the line of cones and kerbstones. The witness stated that the incapax and he had been cycling one after the other; the incapax had been in front and there had been approximately two cycle lengths between them.

This witness said that he remembered seeing the bus; it had been about 1 foot away from the incapax. After seeing it pass, the next thing the witness could remember was seeing the incapax lying on the roadway. He did not remember seeing the incident itself, although he must have been looking straight ahead as he was cycling. He said that he was not sure what effect, if any, the bus passing the incapax had had. The witness explained that the incapax had suffered from learning difficulties prior to the accident; however he was not aware of any difficulty which he might have had as regards vision. The witness was emphatic that he and the incapax had not been cycling to the left of the line of cones and kerbstones in the coned-off area shown in photograph 1. He was quite positive about that. He said that it would not have been sensible to be in that area. He and the incapax had not cycled to the end of that section of tarmacadam.

Ms Lesley Ann Cooper next gave evidence. On the date of the accident she had been driving northwards from Tain towards her home at Edderton, with her two children. As she was doing so she observed three vehicles coming towards her. Firstly, there was a bicycle, followed by a bus, which, in turn, was followed by a lorry. She had been about a quarter of a mile away when she first observed these vehicles which had all be travelling in a southerly direction. She remembered that the cycle had been to the right hand side of the line of cones as one looked in a southerly direction, as in photograph 2. The cyclist appeared to be riding in a straight line as close as he could to the line of cones. The witness remembered the bus passing the cyclist. She had been apprehensive that the bus might crash into her car if it passed the cycle. At that stage she did not have the same apprehension about the lorry, since it appeared smaller than the bus. In the event, the bus did pass the cyclist without mishap. However, as the witness drew towards the rear end of the bus, she became aware of the lorry appearing to swerve out towards her. It appeared to go about half way into her side of the carriageway. The result of this was that the witness had to pull her car to the left and run into the pebbles which were laid at the edge of that side of the road, which could be seen in photograph 1. This witness said that when she had seen the three vehicles prior to the accident she was apprehensive that the situation contained the potential for an accident. The bus driver had not been signalling that he intended to pull out to pass the cycle and did not appear to be slowing down. However the bus did appear to pass the cycle. When it did so, the cyclist disappeared from the view of the witness. After these events, the witness stopped her car and alighted from it. She had seen a boy lying on the road, first of all, in her rear view mirror. The blood stain shown in photograph 4 marked the spot where his head had been. He was lying at an angle of 45 degrees to the line of the road with his feet pointing in a roughly northerly direction. The cycle which he had been riding was close by. She said that when the bus had passed her car, the lorry had not been far behind it. The witness said that she had not seen a second cyclist at all. On being pressed as to why she had considered there had been the potential for an accident, she explained that the reason was that the bus had not indicated an intention to pull out, nor did it slow down. She considered that the cyclist should not have been overtaken at a time when traffic had been coming in the opposite direction. The witness was not absolutely certain about the position of the bicycle when she first saw it. She was sure that the cyclist had been on the carriageway itself and not in the coned-off area to the east of it during the whole time that she saw him. Although the witness had been apprehensive about the bus passing the cyclist when she herself had been driving towards the bus, she said that she had taken no evasive action on that account. She thought that, as she herself passed the bus, the nose of the bus had been ahead of the cyclist. It followed that the three vehicles must have been abreast for a short period of time. When the lorry moved out, as described, causing the witness to take evasive action, she had then been approaching the tail end of the bus. She said that she had not been aware of the bus swerving at all.

In cross-examination this witness said that the reason for her saying that the cyclist had not been in the coned-off area was that she had been apprehensive about the bus passing the cyclist, although that manoeuvre appeared to have been successfully accomplished. She did not see anything of the collision herself.

Dr John Searle was the next witness to give evidence. He was a road accident analyst and in practice as a consultant in that sphere. He had first been asked to consider the accident concerned in 1993. He had extensive qualifications and experience in this area. In particular he had a B.Sc. in Mechanical Engineering, and a Ph.D. in Road Accident Studies and was a Chartered Engineer. He had spent 25 years with the Motor Industry Research Association and in particular had been their Scientific Director. He had lectured at various universities and advised police forces in relation to road traffic matters. He was a technical adviser to the Royal Society for the Prevention of Accidents. He had represented the United Kingdom on international committees which were concerned with the subject of his expertise.

This witness was able to give evidence of certain distances in connection with the locus of the accident, based on the Ordnance Survey Plan, 30/2 of Process. He indicated that the width of the road, as completed, could be obtained from the Plan; it was 10 metres. Furthermore, he was able to estimate certain distances, with what he considered acceptable accuracy from observation of the photographs, knowing the dimensions of certain of the objects depicted. The witness explained that asphalt was laid in strips or "lands", which were related in width to the size of the laying machine in use. Looking at the photograph 1, he considered that the road had been laid in three lands, having a total width of 31 feet 6 inches. The width of the area of tarmacadam to the left of the line of cones and kerbstones in photograph 1 was in the region of 10 feet 6 inches. It followed that the width of the carriageway to the right of that line in photograph 1 was around 21 feet. So far as the dimensions of the vehicles involved in the incident were concerned, the witness stated that the bus had a width of 2.5 metres, or 8 feet 21/2 inches. Such buses were built to the permitted maximum dimensions. So far as the Mercedes van was concerned, it was 2.3 metres wide across the cab. The box body itself was 2.5 metres wide, the maximum for such vehicles. It had to be recognised that there were two door mirrors fitted to the vehicle. In order to obtain useful views from these mirrors, it was necessary for them to project beyond the line of the body of the vehicle. Accordingly the distance between these two mirrors was greater than 2.5 metres. The height of the oblique lower support of these mirrors was approximately at the height at which a cyclist's head would be. A man of 5 foot 10 inches in height would have his head in line with the corner of the mirror bar if he was cycling on a cycle with dropped handle bars.

Dr Searle stated that the rear wheel configuration on the Mercedes vehicle was that there were twin wheels on each side at the rear. Questioned about the twin sets of tyre marks which appeared in photographs 4 and 10, he considered that the total width of the pattern from one side to another was 2.3 metres. That was consistent with the rear wheel configuration of the Mercedes vehicle involved in the accident. The witness estimated that, looking at photograph 10, the nearside skid mark was approximately 0.7 metres from the edge of the tarmacadam surface. He considered that a distance of 0.7 metres was not enough to enable the vehicle to pass a cyclist in safety. Asked as to what was a necessary minimum separation for safe passing, he indicated that 0.85 metres complete separation was an absolute minimum; even that was dangerously close. In excess of 1 metre would be more appropriate. The Highway Code recommended that a driver of a vehicle should give the same clearance to a cyclist as would be given to a motor vehicle. Very few motorists gave a clearance of less than 0.85 metres. In this connection he made reference to paragraph 87 of the 1987 edition of the document.

Certain other paragraphs of the Code were relevant in the circumstances of the present case. In particular, paragraph 47 imposed special standards in keeping a lookout for cycles among other vehicles. Paragraph 49 required adherence to speed limits. Paragraph 50 was of importance, since it advised the driver of a vehicle never to drive so fast that he could not stop well within the distance he could see to be clear. Paragraph 51 was concerned with leaving enough space between vehicles so that a following vehicle could pull up safely if the vehicle in front slowed down or stopped suddenly. Attached to that paragraph were the shortest stopping distances in relation to differing speeds. If, as was indicated here, the Mercedes van had been travelling at 31 miles per hour immediately before the accident, a distance between it and the vehicle ahead of it of between 25 and 30 metres was desirable. Any reduction in that gap would have the effect of reducing the ability of the van driver to react, either by stopping or swerving, to avoid some obstruction. A further feature of the distance between moving vehicles was that it affected the length of view ahead which was available to the driver of a following vehicle. In that connection reference was made to the document "Driving: The Department of Transport Manual", 36/1 of Process. The objectives of this document were similar to those of the Highway Code, but the document was more extensive in its contents. This document illustrated vividly the effect on the vision of a driver of a following vehicle of different distances between his vehicle and that in front. It was desirable to be able to see along the side of the vehicle in front, at least to some extent.

This witness had prepared the diagram of the scene of the accident, 35/1 of Process. It showed the layout of various features of the road, as it stood at the time of the accident. It portrayed the position of the pool of blood, where it was considered that the incapax had fallen onto the roadway. From this diagram it was possible to measure that the distance from the end of the tarmacadamed area which was coned-off along the line of the road to the pool of blood was approximately 10 metres. The witness went on to give evidence about the average widths of a normal family car and, on the basis of that and the other dimensions which he had already given concerning the dimensions of the bus and van involved, concluded that the cycle could have been passed with low clearance by the bus and van at a time when the car of Ms Cooper was abreast of the other vehicles. In such a scenario, there might have been a width of about 3 feet of carriageway available for the cycle itself. The width of the handlebars of the cycle was about 15 inches. The clearance left in the circumstances, to accommodate such features as the body of the cyclist and the natural wobble of a cycle was small. In such a situation, the most prudent course for a commercial vehicle coming up to a cyclist and at the same time facing an on-coming motor car on the road in question would have been to hold back until the car had passed the vehicle, before overtaking the cycle.

This witness next proceeded to give detailed evidence concerning the features to be seen in the photographs 13/1 of Process. He considered that the scuff mark shown on the surface of the road in photograph 7 was difficult to assess. As regards the damage sustained by the bicycle of the incapax, it appeared to be limited to twisting of the saddle and handle bars. If a bicycle together with its rider fell sideways, that could have the effect of twisting the saddle. The twisting of handle bars could have been occasioned by the striking of the offside of the cycle by a passing vehicle. It also had to be recognised that if the cycle fell to the ground, the handle bars could have been twisted round in either direction by such an event. As regards the twin sets of parallel tyre marks seen in photograph 10, it was clear that they must have come from a commercial vehicle, although not necessarily the Mercedes involved in this accident. The distance between the blood stain, to which reference has been made, and the start of these skid marks was approximately 6 metres. The Mercedes van was featured in the photographs 11 to 15 inclusive. What might be described as damage or cleaning marks could be seen in photograph 13. There was also damage to the light fitting on the nearside front bumper of the van. In the opinion of the witness, these markings on the Mercedes van were consistent with the occurrence of a collision between it and cyclist, in which the nearside wing mirror of the van struck the cyclist. That was the natural reading of the marks and damage concerned. Asked about the issue of whether it could be inferred that the cyclist had lost control of his cycle and had moved out in consequence into the carriageway in a diagonal manner as alleged at page 8D to E of the Closed Record, the witness opined that there was nothing to confirm that such an event had occurred. In particular, there was evidence which militated against the occurrence of such a situation.

The witness next proceeded to explain several factors which he claimed supported the view which he had just expressed. In the first place, it was his opinion that the cyclist had been upright when struck and not falling over. He had three reasons for saying that: (1) the cyclist's head must have been as high as the nearside wing mirror on the vehicle to make contact; it was plain that that had happened, since, as shown in photographs 12 and 14, the mirror was displaced after the accident by comparison with the ordinary use position; (2) there had been contact between the cyclist's head and the mirror and also between his body and the lower parts of the vehicle on the nearside, as shown by the cleaning marks and the damage on the front nearside of the vehicle; (3) the injuries which the incapax sustained were to the head, shoulder and hip on the right side, indicating that he had been struck on that side; furthermore, it was important to note that there was no question of his having been over-run by the lorry, which would have resulted in different kinds of injuries. For all these reasons, the conclusion of the witness was that the rider of the cycle had been upright when struck.

In the second place, the witness considered that the cyclist and his machine had been longitudinal with the carriageway and with the direction of travel of the Mercedes van, at the time of collision. That was apparent from the fact that the rider of the cycle had been struck in the manner described and from the fact that the cycle was virtually undamaged. It followed from that that the cycle itself had not been struck by a commercial vehicle travelling at 30 miles per hour. Had that occurred the cycle would have been seriously damaged. In particular, if the cycle had been in the position described at page 8E of the Closed Record, travelling obliquely towards to the centre of the carriageway at a time when the Mercedes van was itself following the line of the carriageway, there would have been huge damage to the cycle; it was likely that it would have been demolished. The lack of significant damage to the cycle strongly suggested that the cycle and its rider was on a course parallel to that of the Mercedes van at the time of the collision. In addition, had there been the kind of oblique collision suggested, the cyclist would have been likely to have been thrown away from the side of the vehicle by the collision. Had that occurred, there would have been no cleaning marks along the side of the van itself.

In the third place, the twin sets of parallel tyre marks were important. If those marks had been caused by the Mercedes van at or about the time of the accident, that would show that the cyclist had been close to the edge of the carriageway and not proceeding obliquely towards the centre of the road, since the marks themselves showed that the vehicle which caused them was close to the edge of the carriageway and travelling parallel to it. The witness considered that, at the moment of collision, the vehicle could not have been in a significantly different inclination to that described. He considered that a driver would not tend to swerve inwards after a collision. Accordingly his conclusion was that the cyclist had been close to the road edge at the time of the impact. The witness indicated that his conclusions in this regard were consistent with some of the direct visual evidence, which suggested that the cyclist had been travelling close to the edge of the carriageway and parallel with it just before the accident. The witness also considered that the position of the body following the accident was consistent with his analysis of the available real evidence.

The witness explained that, in part, his analysis depended upon knowledge of the injuries which had been sustained by the incapax. It was a routine part of his work to consider the significance of injuries sustained by road traffic accident victims. In the context of this case, he had relied upon the contents of an agreed medical report on the incapax by Mr Richard Baker, dated 8 August 1988, 13/3 of Process. It had been available to the witness as part of the material submitted to him. It outlined the right-sided injuries sustained by the incapax. In addition to these considerations, the witness had taken into account the admission that the nearside wing mirror of the van struck the incapax, to be found at page 7D of the Closed Record.

Dr Searle was extensively cross-examined on behalf of the defenders. He indicated that, from the information before him, he was unable to say what had been the length of the section of single carriageway controlled by traffic light signals at the time of the accident. Asked about the Department of Transport Manual, 36/1 of Process, and the photographs contained in the section which he had extracted, he explained that these showed two views of the same vehicle. It was apparent from them that in neither situation could the driver of the following vehicle see much of the nearside of the leading lorry. Such a driver could see more of the offside. That was, in part, a function of the position of the viewer's car on the carriageway and, more particularly, of the position of the viewer's eyes. In relation to the circumstances of the present accident, it had to be borne in mind that the southbound vehicles at or in the vicinity of the locus of the accident were travelling on a slight right-hand curve; the effect of that was to reduce a following driver's vision of the nearside of a leading vehicle.

The witness was closely questioned on the contents of the medical report 13/3 of Process. He said in relation to the laceration which had been inflicted on the top of the head of the incapax that the supporting arm of the mirror could injure the side of the head and the mirror itself touch the top of the head. As regards the brain injury referred to in the report, he considered that it could have been caused by the contre coup effect. The witness said that he could not rule out the possibility that injury was caused to some extent by contact with the front corner of the box of the Mercedes van. He considered that the comminuted fracture of the shoulder blade could have been caused by impact with the corner of the box of the van. Nevertheless he considered that the blows imparted to the cyclist were of a glancing nature. If that was correct, there would not be much lateral movement imparted to the body of the cyclist, unless the blow had been at the extreme right hand side of it. In that event, there would have been a tendency for the body to spin round to the left around the axis. If the cyclist's back had been square-on to the incoming blow there would be no lateral component, but there could be a spinning effect. While the witness could not be certain that the cleaning marks had been caused in the accident under consideration, some contact was admitted and they were of such a nature that they could have been caused by contact with the body of a cyclist.

The witness conceded that, if a substantial motor vehicle were to pass a cyclist at great speed close to him, that could create dangers arising from the aerodynamic effect of the movement of the vehicle. However such an effect would not be significant at 30 miles per hour. In this particular case, the witness considered that there was no evidence to show that the bus brought about a loss of control of the bicycle by its rider.

The witness was questioned about the possibility that the impact between the Mercedes van and cycle had occurred at a moment when both the cyclist and the Mercedes van had been travelling obliquely towards the centre of the road, the Mercedes van driver having swerved at a late stage in order to avoid the cyclist who was himself travelling in that direction. The witness accepted that the signs which he had mentioned would be consistent with that, but it would have been an extraordinary coincidence if the cyclist and the van had been travelling obliquely at the same angle. Furthermore, he considered that the cyclist would have had to have been a long way across the road for such a thing to occur. That was not a simple and easy explanation of what had been found.

Questioned by myself concerning the twin sets of parallel tyre marks, the witness indicated that the vehicle which caused them probably did not come to rest at the southern most end of the marks, since there was no indication of melted rubber at that point, which there would have been, had the vehicle come to rest; furthermore, the marks were of different lengths, which tended to suggest that it appeared that the driver had released the brakes, rather than coming to rest. The different lengths might simply reflect a differential adjustment of the brakes.

At this point in the cross-examination counsel for the defenders put a series of assumptions relating to speeds and distances to the witness for his comment. He expressed the view that there was something wrong with the assumptions which had been put to him. He indicated that the calculations sought to be made on behalf of the defenders were not capable of providing a precise answer to the question of the distance which existed between the rear of the bus and the front of the Mercedes van immediately before the collision.

The witness was questioned about the three factors, which he had explained as justification for the views which he had previously expressed. In this connection he was asked once again about the twin parallel tyre marks. He accepted that they could have been caused by any commercial vehicle of the same type as the Mercedes van. They showed that the wheels concerned had been locked for a fraction of a second only. Any causing vehicle would have to have had a single rear axle like the Mercedes van. The witness considered that the position of these skid marks on the ground indicated that, at 30 miles an hour, they were about 1.5 seconds beyond the point of impact. That could be explained by the reaction time of the driver. They could signify that the driver's immediate response to hearing the noise of an impact was to brake for a moment, until he realised that he had in fact passed the incident concerned. Asked as to whether these marks were compatible with having been caused by the Mercedes van and compatible with the evidence of Ms Cooper, the witness said that there might have been a swerve, such as she described, after the brakes had been applied. However, a swerve could not have succeeded the wheel lock if the incapax had been struck when he and the van were travelling obliquely to the line of the road. The witness considered that if the marks concerned had been caused by the Mercedes van, that indicated that the incapax had been cycling close to the nearside of the road at the time of impact. The witness considered that there was a high probability that these marks had been caused by the Mercedes.

Cross-examined on behalf of the third party, Dr Searle agreed that in a situation where a line of traffic had been brought to a halt by traffic light signals, when the line of traffic moved off, there would be a tendency for it to be closely bunched together and for the spacing between individual vehicles to increase only as speed was gained. If the bus concerned here had been at the head of a line of traffic, there would have been nothing to obscure its driver's vision. The witness agreed that there was nothing in the evidence which he had found to either support or contradict the view that the incapax had been cycling along on the coned-off area on the left hand side of photographs 1 and 2. If the incapax and his father had been cycling one in front of the other on the carriageway itself before the accident, one would have expected that it would have been the father of the incapax who would have been involved in the collision. The witness said that the assumptions that the two cyclists had been cycling in the coned-off area of tarmacadam, that as they got into the area shown in photograph 2, the incapax moved towards the main carriageway, that just before or at that point the coach driver appreciating that he was about to do so, without stopping, took evasive action in the form of a swerve to the right, by which means the coach driver succeeded in avoiding a collision and drove on, and that the lorry driver, who was driving behind the coach, collided with the cyclist and knocked him down, were entirely in keeping with his analysis of the situation. However he did say that there was little in the physical evidence to suggest what the cyclists had been doing before the impact. The witness was clear that, at the moment of impact, the incapax had been in the carriageway, riding upright and aligned with it.

It was apparent from photographs 1, 2 and 4 that no skid marks were visible northwards of the point of impact. It followed from that that neither the bus nor the Mercedes van had had locked wheels before the impact. If Ms Cooper were wrong relating to the lorry swerving, but that the position had been the bus had swerved, that would be consistent with the real evidence. The twin sets of tyre marks were consistent with the Mercedes van braking, but not swerving, having hit something. Those marks were plainly not made after the Mercedes van commenced any swerve. The witness ruled out a swerve by the Mercedes van before the braking, if those marks had been made by it. The witness said that he could also rule out a scenario in which the cycle ridden by the incapax was travelling at an angle towards the centre of the road and in which the Mercedes van was travelling parallel with the carriageway. If that had been the position, there would have been massive damage to the cycle; in addition it was very likely that the cyclist would have been over-ridden by the van.

In re-examination it was suggested to the witness that, if the bus driver had swerved away from the incapax as he was riding at the edge of the carriageway and if there was some difficulty caused to the cyclist by the passing of the bus, if the Mercedes van driver had been paying attention and had been at a safe distance behind the coach, the van driver could have taken effective evasive action. The witness agreed with that proposition. At this point the pursuer's case was closed. As part of it a Joint Minute was lodged.

The driver of the Mercedes van, Raymond Stanley Goodwill, next gave evidence. Having explained the circumstances of his journey, he confirmed that he had stopped at the traffic light signals situated at the length of single carriageway road near the locus of the accident. He was behind the coach. The one-way section of carriageway had not been long and thereafter the vehicles in the line simply continued on their own side of the road. He said that the coach had been about a car's length in front of his vehicle on starting from rest. Thereafter the coach appeared to pull out and in again with no prior indication of that having been given. Up till that time the witness had simply been following the bus, which appeared to have been proceeding normally. He said that he had passed what he described as the first cyclist, who had been well inside the coned-off area. This was the first cyclist that he had seen. The witness recalled seeing a vehicle coming towards the bus and his vehicle on the other side of the road, although it was some distance away when the coach moved in the manner described. Thereafter the witness realised that there was another cyclist, whom he described as the second one. When he saw this cycle it was oblique to the line of the road. Its rider appeared to be trying to regain his balance, not pedalling the while. The witness' impression was that he was struggling to keep his balance. He said that he was certainly out of control, trying to regain balance. The witness said that he immediately swerved his vehicle to the right, since, if he had not done so but simply continued in a straight line, he would have hit this cyclist. He stated that the on-coming vehicle also swerved to its nearside.

At this point in the evidence of Mr Goodwill, objection was taken on behalf of the pursuer to the line of evidence, based upon the contents of the last sentence of Answer 2 for the defenders, where it is averred that: "The said Raymond Goodwill had no opportunity to take evasive action". This objection was reserved.

Thereafter Mr Goodwill said that he considered he had had to choose between hitting the on-coming car or hitting the cyclist. In the event, he did not hit the on-coming car. He said that he had been made aware of the collision, since the passenger side mirror came in and struck the passenger side window. He heard that happen and saw his own face in the mirror. He had thought that he would have avoided hitting the cyclist by a significant distance, but unfortunately he did not. Thereafter he parked his vehicle and came back to see what had happened. He had been unable to see the cyclist in his nearside rear-view mirror. The bus also stopped in front of the witness' vehicle. The witness was also aware of the other cyclist being present as well as the female driver of the on-coming motor car. The witness said that he had been in a state of shock following the accident. He had been taken to a workman's hut where he had been given a cup of tea. The police made investigations, but no one was charged with any offence. They took the tachograph readings from the witness' van. The witness said that from the time when he saw the cyclist who was later injured to his bringing his van to halt he had not braked, save to bring the van to a halt. The witness recollected the police making 4 or 5 chalk marks on the van, where dirt appeared to have been rubbed off by contact with an object. Mr Goodwill stated that the damage to the front nearside bumper light on his van had been done at the time of the accident. The item concerned had been undamaged prior to it. The tachograph of the van indicated that at the time in question it had been travelling at a speed of 31 miles an hour. The witness was aware that the coach had been travelling at about 36 miles an hour; the distance between the two vehicles was a car's length, but increasing.

Cross-examined on behalf of the pursuer Mr Goodwill re-affirmed the sequence of events following drawing away from the traffic light signals. He insisted that the first cyclist whom he saw was riding inside the coned-off area on the nearside. The witness said that he could not see the road in front of him at all beyond the coach which was 9 or 10 feet ahead of him. He said that he was unable to remember what the first cyclist he saw had been wearing; he was not keeping a special watch for cyclists. With hindsight, he recognised that he should have done so because they might be so easily injured by a motor vehicle. He said that he had been going slowly and had not been expecting to see a cyclist, although he had pulled out a little after seeing the first cyclist, so that he was about a foot and a half away from the edge of the tarmacadam surface. As the vehicles travelled on, the gap between the coach and the witness' van was increasing. The witness said that he saw the bus "twitch", when it was 12 or 13 feet in front of the Mercedes van. It was then that the witness said he saw the second cyclist appear from the rear nearside corner of the bus. He said that he had then swerved out to the right, but did not brake. He had taken his foot off the throttle. The swerve had been effected when the van was almost level with the cyclist. The witness recognised that he had been travelling too close to the rear of the bus, but explained that both vehicles had recently been at rest at traffic lights. The witness agreed that if he had held back from the bus more than he did, he would have been able to see the cyclist earlier and would have allowed him a clearance of 3 or 4 feet; unfortunately he had not done that. Mr Goodwill was shown the twin sets of tyre marks in photograph 4 of 13/1 of Process. Asked whether his lorry had made those marks, he said that it had not. He had not been going fast enough to do that. He did not lock his brakes at all, although he agreed that he might have touched them there.

In cross-examination on behalf of the third party, Mr Goodwill said that the cyclist whom he had hit was outside the coned-off area when he saw him. He had seen the cyclist before he hit him, although the sequence of events was very quick. He had not seen this cyclist previously. The witness agreed that, if the twin sets of tyre marks had been made by his vehicle, then that vehicle could not have been swerving at the time. The whole incident had happened very quickly and came as a severe shock to the witness. He insisted that the cyclist had not been going in a straight line when he first saw him. It was the position that neither the cycle nor the cyclist had been over-ridden by the witness' vehicle; the bicycle was not seriously damaged. The witness accepted that his recollection of timings and distances was not very good. When it was suggested to him that, if he had time to react to the situation by swerving, he must have been further back from the bus than he had suggested, he agreed with the suggestion. Mr Goodwill was the only witness led on behalf of the defenders.

The driver of the coach, Andrew Clark Berry, was the only witness led on behalf of the third party. Having explained the background to his journey, he described stopping at the traffic light signals where there was single carriageway working. He thought that that section of carriageway was, as it were, on his own side of the road. His vehicle was the first one at the traffic lights. Mr Berry said that he had been aware of there having been a vehicle behind him, but he did not know of what nature, since it was very close behind his vehicle. When the lights changed to green, he moved off. He said that he remembered seeing two cyclists going in a southerly direction. He said that he had thought, until he saw the photographs in use in this case, that they had been riding on a pavement. He said that he now realised that they had been cycling in the coned-off area of carriageway shown in photographs 1 and 2. As he was coming along southwards, they were approaching the end of that part of the tarmac surface, as shown in photograph 2. On account of that circumstance, Mr Berry said that he had expected them to come out of the coned-off area onto the carriageway which was in use, since the alternative would have been to ride on the hard core seen in photographs 2 and 3. Mr Berry said that the father of the incapax was behind his son, who was riding 6 or 7 feet in front. Mr Berry said that, because he expected the incapax to ride out of the coned-off area into the carriageway, he himself had swerved slightly to his offside. His impression had been that the first cyclist, the incapax, was not going to stop on coming out into the carriageway. After having swerved, Mr Berry looked in his mirror and saw that an accident had occurred. Thereafter he pulled his bus into the side of the road. He informed his passengers of what had occurred and two nurses who were among them went to the assistance of the incapax. Mr Berry had been interviewed by the police following the incident, when he had said that his vehicle had not been involved in the accident. He had looked at the side of his coach and had found no marks of any kind on it. He said that he had told the police then what he had said in his evidence.

Cross-examined on behalf of the defenders, Mr Berry said that he had heard the evidence of Michael McKernon as to the position of the cyclists before the accident. That evidence was not true. Mr Berry accepted that Ms Cooper's evidence relating to the position of the incapax may well have been correct, he having come out onto the carriageway by the time that she saw him. However, if it were to be suggested that the incapax had been out on the carriageway in use for a significant period of time before the accident, he disagreed with that.

Mr Berry was unable to say how far behind his vehicle the Mercedes van had been travelling. He rejected the suggestion that he had passed the incapax on his bicycle giving him insufficient clearance. He denied that he had been within a foot or so of him. He said that it was his practice always to give cyclists and horses a wide berth. The incapax himself had not actually been on the carriageway when the witness himself passed him. Mr Berry said that he had just decided to move out because of a sixth sense which told him the cyclist was going to come out of the coned-off area. Mr Berry had stopped because he saw that an accident had occurred in his rear-view mirror.

There was put to Mr Berry the contents of a letter which he had written at some time after the accident to an insurance company. He agreed that he had signed this letter. He maintained that the contents of the letter were consistent with the evidence which he had given. He had no idea when the letter had been written. It had been the response to an approach by an insurance company.

Having narrated a summary of the evidence which was given in this case, it is now appropriate that I should record my impressions of the important witnesses in the case. As regards the police witnesses, Sergeant MacAulay, Ms Scrimgeour and Police Constable Brian Logue, I have no hesitation in accepting their evidence, so far as it went. However, all of them made the point that it was difficult to recollect events which occurred more than ten years ago. That was especially true in a situation in which their notebooks relating to the period in question had long since been destroyed. The photographs taken at the time were of considerable assistance to them as some basis for assisting their recollection.

So far as Mr Michael McKernon the father of the incapax is concerned, unfortunately I have to record that I can give no credence to his evidence at all. As regards the accident itself, he appeared to me to be quite unprepared to give any assistance that he could to the court. He was unable to describe it although he said he was cycling behind his son at the time. He appeared to me to give his evidence in a mechanical manner, as if adhering to some previously devised script. He insisted that his son and himself had been cycling one in front of the other on the carriageway in use throughout. I find myself quite unable to accept that evidence, which I believe was given in deliberate attempt to deflect possible criticism from the conduct of the incapax. That evidence is in direct conflict with the evidence of Mr Berry, which I have no difficulty in accepting. Furthermore, if the evidence of this witness in relation to that matter were to be accepted, it is impossible to see how it was that the incapax's bicycle was involved the accident, rather than the witness' bicycle, since the witness was riding behind the incapax and the motor vehicles coming up from behind. In addition, the evidence of Raymond Goodwill was to the effect that the first cyclist whom he saw, who must have been Michael McKernon, was riding within the coned-off area. In these circumstances, I simply discard the evidence of Michael McKernon as incredible.

As regards the testimony of Ms Lesley Cooper, I have no reason to believe that she was doing other than attempting to assist the court with what recollection she had of the incident in question. It was clear that she also experienced difficulty in recollecting events of 10 years ago. In addition, it has to be recognised that she was herself involved in the incidents which gave rise to the accident and had had to concentrate upon taking avoiding action when, as she said, the Mercedes van swerved out towards the centre of the road.

Dr John Searle gave extensive evidence in this case. I have to say that I have not encountered a more impressive witness than he was in his area of expertise. He was possessed of very extensive qualifications and experience in that area and gave his evidence with great care. I have no hesitation in accepting what he had to say.

As regards Mr Raymond Goodwill, the driver of the Mercedes van, I have no reason to believe that he was doing anything other than endeavouring to assist the court with his genuine recollections of the incident concerned. He made no effort to deflect the criticism which was directed towards him, based upon the short distance which he accepted had existed between the rear of the coach and the front of his van immediately before the incident. However, it may be that, after the passage of 10 years from the accident, his recollection may be to some extent faulty.

Finally, as I have already said, I found the evidence of Andrew Clark Berry, the coach driver, credible. He appeared to me to have quite a good recollection of the events concerned and I had every confidence that he could be accepted as a credible and reliable witness.

Against this background of recollections to some degree dimmed by the passage of time, I consider that the physical evidence of the different aspects of the event, as portrayed in the photographs and interpreted in the evidence of Dr John Searle, is of particular importance. Where recollections of the actual event are, to some degree, imperfect, it appears to me that the significance of what can be seen in the photographs as analysed by Dr Searle must be given great weight in any consideration of the circumstances. Where there is a conflict between that material and the present accounts of the events of a fleeting moment of time 10 years ago, albeit coming from witnesses upon whose credibility I can rely, it appears to me that what might be described as the real evidence ought to be preferred.

Before I express my conclusions as to the material facts involved in this case, it is proper that I deal with the objection which was taken by counsel for the pursuer during the course of the evidence of Mr Goodwill. I have reached the conclusion that this objection should be repelled. I have two reasons for so holding. In the first place, I consider that the averment at page 8E of the Closed Record, which has been quoted, properly construed, is an averment to the effect that Mr Goodwill had no opportunity to take effective evasive action. In the second place, prior to that objection being taken, evidence had been led without objection to the effect that some evasive action had been taken by Mr Goodwill. In that connection I refer to the evidence Ms Cooper, who described a swerve by the Mercedes van. Furthermore, the possibility of a swerve by the Mercedes van having taken place was discussed at some length with Dr Searle during the course of his evidence. In these circumstances, I consider that, before the objection was taken, the subject matter of it had already been canvassed in evidence without objection.

In the light of all the acceptable evidence before me in this case, I have reached the conclusion that the sequence of events which led to the injury of the incapax was as follows. Prior to the incident, I am satisfied on the basis of the evidence of Mr Berry and Mr Goodwill that the incapax and his father were cycling, the one in front of the other, in the coned-off area shown in photographs 1 and 2 of 13/1 of Process. As was observed in the course of the police evidence, that would have been a perfectly natural thing for cyclists to do. As the incapax came towards the point, shown in photograph 2, where the tarmacadam in that area came to an end, I consider that the incapax made as if to come into the carriageway which was in use for traffic. At that point, Mr Berry, anticipating what was about to happen, moved his bus out from the line of cones and kerbstones to some extent, in order to avoid the risk of some difficulty when the incapax did in fact come out onto the carriageway. I find it difficult to reach any conclusion as to the exact position of the bus when the incapax came out onto the carriageway. However, suffice it to say that he must have done so prior to the occurrence of the collision. It is quite clear that the bus, driven by Mr Berry, succeeded in overtaking the incapax on his bicycle without any contact with him and without apparently causing any serious difficulty for Ms Cooper, who was then coming in the opposite direction in her car. I conclude that when the incapax came onto the carriageway he proceeded along the edge of it and in the same line as taken by it.

When the bus had passed the incapax on his bicycle completely, I consider that the incapax was still travelling parallel with the line of the road. It was at that moment that Mr Goodwill first saw him. At that stage I consider that Mr Goodwill was too close for safety to the rear of the bus. It is difficult to reach a precise conclusion as to the distance which then separated the two vehicles. Mr Goodwill himself spoke of the distance being about a car's length, or a little more. Plainly the distance was substantially less than that desiderated in paragraph 51 and in the table attached thereto of the Highway Code, which speaks of a distance of 75 feet in relation to a speed of 30 miles per hour. It may be that very quickly thereafter Mr Goodwill attempted to swerve outwards away from the incapax, but plainly he failed to avoid colliding with him. I consider that the collision occurred in the first instance between the incapax, who was upright on his bicycle, and the nearside wing mirror and its support, as suggested by Dr Searle. Mr Goodwill said that his impression was that, at the stage immediately before the collision, the incapax's bicycle was out of control. I have reached the conclusion that I should reject that particular part of Mr Goodwill's evidence. Plainly he was speaking about something which must have been observed over a very short period of time indeed and I consider that his impression of those circumstances, after the very considerable passage of time which has occurred since the accident, cannot be relied upon. It appears to be inconsistent with other acceptable evidence. On the basis, particularly, of the evidence of Dr Searle, I consider that it is more probable than not that the twin sets of skid marks were in fact caused by the Mercedes van. Although Mr Goodwill initially did not accept that he had braked at all, save to bring his van to rest after the accident, at a later stage in his evidence he indicated that he might have touched the brakes. I consider that that would have been a probable reaction to the situation in which he found himself and that it was that action which resulted in the momentary braking which made the marks concerned. Following initial contact between the nearside rear-view mirror of the van and the incapax, I consider that the body of the incapax came into contact with the side of the van causing the cleaning marks, to which reference has already been made. This conclusion appears to be supported by the nature and position of the injuries sustained by the incapax, as Dr Searle pointed out. Thereafter the incapax fell off his bicycle and fell onto the roadway. I consider that it is perfectly clear that his head came into contact with the roadway at the point where the pool of blood depicted in the photographs is situated. I am confirmed in the view which I am taking of the mechanism of collision by the very slight damage which was caused in the event to the bicycle of the incapax. All that occurred was that the saddle and handle bars were twisted out of their normal inclination. I accept the analysis of the occurrence of the accident given by Dr Searle, whose evidence was not of course contradicted by any competing expert evidence. Had the incapax on his bicycle been proceeding obliquely towards the centre of the road, as suggested by Mr Goodwill, and if Mr Goodwill's van had been proceeding parallel with the road, I consider it likely that massive damage would have been done to the bicycle and it is probable that the incapax would have been over-run by the van. The only way in which that eventuality could have been avoided would have been if the van itself by coincidence was proceeding on a parallel oblique track with that bicycle. I consider that the evidence does

In the light of the foregoing factual conclusions I now turn to consider the issue of legal liability. The case made by the pursuer against the defenders is set forth in Condescendence 3, to which I refer. It appears to me that the evidence does not demonstrate that Raymond Goodwill was driving at an excessive speed in the circumstances. His speed was 31 miles an hour. However, I regard the remainder of the case made against him, and hence the defenders, as proved. It appears to me quite clear that he did not maintain a safe distance between his vehicle and the bus ahead of him. He virtually admitted that that was the case in his evidence. Had he left a greater space between the two vehicles, then, on the appearance of the incapax on his bicycle at the rear of the bus, he would have been able to react safely to his presence there, either by stopping or by pulling out away from him towards the centre of the road. In the circumstances, I consider that Mr Goodwill did not observe the advice contained in paragraphs 47, 51 and 87 of the Highway Code. In these circumstances I hold that Mr Raymond Goodwill was at fault in the respects mentioned and that his fault caused the collision between his vehicle and the incapax on his bicycle.

Turning to the issue of contributory negligence, the case which is made against the pursuer is to be found at page 12D to E of the Closed Record. It is said that the accident was either solely caused or materially contributed to by the fault of the incapax in respect that he did not ride his bicycle in a careful fashion and lost control of the same. In my judgment, it has not been proved that the incapax did lose control of his bicycle prior to the collision. As I have indicated, I cannot accept the evidence of Mr Goodwill in that regard. In these circumstances, I reject the case of contributory negligence which is pled. It is to be observed that there is no case made against the incapax in connection with his emergence, at the time when it occurred, from the coned-off area onto the carriageway in use at the material time.

Turning now to the case made by the defenders against the third party, the factual averments which are part of that case are to be found at page 8D to E of the Closed Record. It is there said that the coach driven by Mr Berry had been travelling too close to the incapax. As a result of the coach travelling too close to him, it is averred that the incapax was "imbalanced (sic) and consequently lost control of his cycle, thereby coming into the path of the defenders' vehicle. Raymond Goodwill then saw the incapax on a bicycle on the southbound carriageway pointing forward diagonally towards the centre of the road. The vehicle was out of control. The said Raymond Goodwill had no opportunity to take evasive action.".

In my judgment it has not been established that the incapax did lose control of his bicycle and in that way come into the path of the defenders' vehicle. That being so, the factual basis of the case against the third party disappears. In any event, I consider on the evidence that the manner of driving of the coach immediately prior to the accident has not been proved to have discommoded the incapax in his riding of his bicycle in any way. It appears to me that the careful and compelling evidence of Dr Searle militates against the notion of loss of control of his bicycle by the incapax, in support of which detailed reasons were given, based upon the nature of the injuries of the incapax, the state of his bicycle after the event and other real evidence.

In all of these circumstances I shall sustain plea-in-law 1 for the pursuer and pleas-in-law 2 and 3 for the third party, repel pleas-in-law 1 to 7 inclusive of the defenders, grant decree of absolvitor in favour of the third party and quoad ultra allow a proof on quantum of damages.