Scottish Court of Session Decisions

This claim arises out of a tragic road traffic accident on 20 February 1996. As a result of the accident the pursuer was injured, and her child Hifsa, aged 8 months, was killed. Parties were agreed as to damages and the proof was restricted to the question of liability.

Certain basic facts were not in dispute. At about 4 o'clock in the afternoon the pursuer was driving her Peugeot 309 hatchback vehicle, registration number E694 WDS, eastwards in the outside lane of the A92. The pursuer's sister and the child were backseat passengers in the vehicle. The A92 at that point is a dual carriageway with a speed limit of 70 miles per hour. The carriageways in each direction are separated by a central reservation, in the middle of which is a crash barrier. On the day in question the road was dry and the weather was clear. The pursuer was travelling in the direction of Glenrothes. Her journey had started in Glasgow and she, and her father who was driving another vehicle at some point ahead of her, were travelling to visit a relative in Glenrothes. She had approached the A92 from Dunfermline. At a point about half a mile west of Cowdenbeath interchange her vehicle - for reasons which were in dispute - halted or came to a halt in the outside lane. Thereafter - probably a relatively short time later - a vehicle driven by witness Mrs Elaine Seymour, in which her husband, also a witness, was a passenger, and which had been travelling in the outside lane as it approached, moved inside to pass the pursuer's car. Mr Seymour telephoned the police on his mobile phone, concerned that an accident might happen. At some point thereafter another vehicle driven by witness Gordon Lamond - proceeding according to his recollection in the inside lane - passed the pursuer's vehicle. He was also concerned about the risk of an accident. He drove on for a distance, but, as he explained in evidence, was able, from his rear view mirror, to see the rear of the pursuer's vehicle lifted by an apparent impact. His wife who was a passenger did not give evidence. At some point behind him a vehicle driven by witness Mrs June Green also moved to the inside lane from the outside lane to avoid the stopped car. She had previously moved into the outside lane in order to pass a Metro car. She was able from her rear view mirror to see the collision which subsequently occurred. There were three passengers in her car, two of whom, Mrs Marion Ritchie and Mrs Agnes Coull (both of whom were seated in the back) gave evidence. At some point behind Mrs Green the defender was driving a Ford Sierra motor vehicle, registration J139 HHT, in the outside lane of the dual carriageway. His vehicle collided with the rear of the pursuer's vehicle. On 7 November 1996 he pled guilty at Dunfermline Sheriff Court to a contravention of section 3 of the Road Traffic Act 1988 in respect of his driving on this occasion.

The pursuer blames the defender for causing the accident. It is the defender's contention that the accident was caused solely or at least materially contributed to by the fault and negligence of the pursuer herself. I shall deal with the case against the defender first.

The defender's evidence was that on the day in question he was driving home from work, there being nothing unusual about this particular day. He was driving at a speed within the speed limit. The tenor of his evidence was that he was driving at about 65 miles per hour. He had been proceeding for a period in the outside lane, when a car ahead of him pulled out from the inside lane into the lane in which he was travelling. He was reasonably clear that there was no other vehicle travelling ahead. This car, according to him, pulled suddenly back over into the inside lane. He wondered what the driver was doing. Thereafter he was confronted with the pursuer's car which was in fact stopped. He thought he was only about 60 yards away at that time. His recollection was that he had "jumped on" the brakes, effecting emergency braking, and tried to steer to his right to avoid the vehicle. There was no room, by reason of traffic on his inside, to move to the left. He was unable to avoid a collision. His vehicle ended-up hard against the crash barrier in the central reservation.

The other main detailed testimony in relation to events immediately before the crash came from Mrs Green. It seemed clear on the evidence that she was driving the car ahead of the defender in the outside lane, and I so find. It is true that one of her passengers (Mrs Ritchie) thought that two other cars pulled into the inside lane behind Mrs Green's car but on this matter I prefer the recollection of Mrs Green, who was driving, which was consistent with the defender's recollection of one vehicle being ahead of him and pulling in. According to Mrs Green she was driving at about 65 miles per hour in the outside lane, having pulled out to pass a Metro vehicle. When she was about 200 yards away from the pursuer's car she became aware of it in front. A short time thereafter (she thought a couple of seconds only) she realised that it was stationary. She was able to check in her mirror and moved steadily, and without any sudden movement, to the inside lane. She slowed to a degree. She was able to pass the pursuer's vehicle on its nearside without any difficulty. She was aware from her rear mirror, however, of the defender's car driving into collision with the stationary vehicle. She thought that the defender had been driving appreciably faster than her. It was her evidence that at the time she thought his speed was in excess of 70 miles per hour, and she remained of that view. Her impression was that the defender's vehicle drove straight on into collision with the pursuer's car without deviation. She heard no squeal of brakes. She thought that her vehicle was level or not much forward from the pursuer's vehicle when the crash occurred. After the accident she felt angry. She remembered an altercation with the defender in which he said either that he had not seen the car ahead or that he was not going that fast.

On several critical areas of difference, save in relation to the defender's speed, I preferred the evidence of Mrs Green. She was an impressive and, I thought, careful witness - and, being independent of the parties, obviously had no particular axe to grind. She was an experienced driver, and had done a lot of driving in connection with her work, in particular over the last five or six years. By contrast, the defender, though obviously doing his best to describe what happened in difficult circumstances (he was clearly and obviously upset by the consequences of the collision and I entirely reject the suggestion made that he was "gung ho"), was to a degree uncertain and inconsistent as to what had happened from the moment the vehicle ahead began to pull into the inside lane. I formed the clear impression that he had no clear recollection as to what then happened. He was in due course convicted of driving without due care and attention (as to the significance of which I shall return later) and although it was his evidence that he did so only on the basis of advice (the detail of which was not explored and which it seemed he could not recollect) and on the basis of a concern for the pursuer and her child (which I have no doubt he genuinely felt and still does), he did not strike me as someone who would have admitted guilt if he had a clear and definite recollection of having been involved in a collision which he could not reasonably have avoided.

As to the way in which Mrs Green drove her vehicle from the outside into the inside lane I accepted her evidence that this was a steady unhurried manoeuvre. On this she had support from both of her passengers who gave evidence. Further I accept her evidence that she was indeed about 200 yards from the pursuer's car when she became aware of it. She accepted readily that earlier she had estimated the distance at some 60 yards, but on reflection, and having travelled the road again, she seemed to be clear in her own mind that that had been an under-estimate. The evidence she gave in court was consistent, it seemed to me, with the evidence of a relatively easy and steady change from the outside lane to the inside lane. Mrs Ritchie thought that the pursuer's car had been about a quarter of a mile away when it was seen, although she accepted she was "rubbish" at distances. Proceeding on Mrs Green's evidence on this matter I find the defender's evidence to the effect that the pursuer's vehicle became visible to him only when he was some 60 yards from it to be unreliable. Although I did not think that there was any satisfactory evidence to suggest, in the traffic conditions, that he would necessarily have been able to see the pursuer's vehicle before Mrs Green pulled in towards the inside lane (far less realise earlier that it was stationary) the evidence suggests Mrs Green must have begun to pull in when she was about 125 metres from the pursuer's vehicle (allowing, in line with her evidence- and she was in the best position to know -, a couple of seconds or so after she saw it). At that point, when the pursuer's vehicle at least became visible, the defender on his own evidence must have been some 50 metres further back (it was his evidence that he was ten or twelve car lengths behind the vehicle in front).

Thereafter the evidence tended to support Mrs Green's impression that the defender drove his vehicle without deviation and without any heavy or emergency braking into the rear of the pursuer's car. The evidence of the pursuer's expert Mr Stewart was that photographs of the damage to the rear of the pursuer's car indicated a straight-on impact, if anything the damage being more to the nearside than to the centre of the rear. Although the weight of the evidence indicated that after the collision the defender's vehicle ended up close to the crash barrier his impression was that this could well be the result of the way in which the vehicle had reacted after the impact. It appeared to be accepted that there were no marks found on the road surface afterwards, and the experts were agreed that in a car without ABS braking (such as the defender's vehicle) this meant that there could not have been any emergency braking. The defender's evidence (that he had jumped on the brakes effecting an emergency braking) did not sit easily with an earlier statement where (as he accepted in evidence) he had said simply "I tried to brake before I hit the car". More importantly shortly after the accident when he was cautioned and charged (with an offence under section 1 of the Road Traffic Act) on 20 February 1996 he said,

It is significant I consider that in that statement there was no mention at all of any braking manoeuvre.

The clear inference I draw from the evidence in these circumstances is that the defender did not see the pursuer's vehicle, or at least saw it too late to do anything about it. It remained his evidence from the witness box that he did not know whether that vehicle was stationary. Mrs Ritchie said she heard the defender, shortly after the accident, say, twice, "I didnae see her. I didnae see her". Although it was the defender's evidence that when he said that he meant "did not see her until it was too late", his slowness in accepting that he had said any such thing and his uncertainty in cross-examination as to whether he had seen the vehicle at all were perhaps the least impressive parts of his evidence.

On the question of speed, while the evidence did not suggest there had been much reduction, if any, in his vehicle's speed of travel up to the point of collision, I had no real reason to doubt his evidence as to the speed at which he had been driving prior to the critical events. While no doubt Mrs Green's impression was of substantial speed, it is notorious (and was the evidence both experts, in particular Mr Geary instructed by the defender) that estimates of the speed of a vehicle travelling behind (particularly in circumstances of an apparent impending accident) are difficult and unreliable. This was fairly accepted by Mrs Green herself. Moreover, the evidence of her passengers tended to suggest that she must have slowed, after she moved into the inside lane, more than she thought. Equally she saw events unfold from her rear mirror and it seems clear that her vehicle must have been to some degree further forward than she thought at the point of collision. Although Mrs Ritchie had an impression that the defender was driving slightly fast for the road, she thought, wrongly, that the speed limit was 60 miles per hour. She also accepted that she had not seen the defender's vehicle for long enough to form any accurate impression. Although Mrs Coull accepted that she had seen the defender's vehicle for such a short a time that she could not make any proper assessment, she offered the personal view that the defender was not driving "faster than us". Both experts offered certain views as to the speed at impact of the defender's vehicle from photographs of the damage to the pursuer's vehicle. It was Mr Stewart's view that these indicated the defender must have been travelling at not less than 60 miles per hour, whereas Mr Geary (although accepting that the damage was not inconsistent with that speed or even 65 miles per hour) gave his best estimate of a speed of somewhere between 50 and 60 miles per hour. This body of evidence, however, has to be treated with some care - especially in light of Mr Geary's explanation that much more detail would be required before any accurate assessment could be drawn from the damage found - but it was not, on either expert's assessment, inconsistent with the views I have formed from the other evidence.

Looking to the whole matter, however, I have come to the clear view that the accident could have been avoided if the defender had exercised reasonable care. On the face of it there was, I consider, no obvious reason why he, any less than Mrs Green, should not have been able - if maintaining a good look out on the road ahead - to move into the inside lane to avoid the pursuer's vehicle, even if not to stop in time before it - although the probability is, in my view, that he ought to have been able to do that too, if necessary. It is true that when driving in the outside lane, he could not reasonably have expected any vehicle to be stopped in the middle of it, and all the evidence suggested that there were no hazard warning lights flashing on it at the time. Further it is true that he required time not only to see the vehicle but to realise that it was stopped and that on any view he did not have much time. And although the overall braking distances referred to in the Highway Code were based on a reaction time of 0.7 seconds, the expert evidence in this case, in particular that of Mr Geary, suggested this would, for many people, even confronted by an obvious hazard, be too short. It is in addition true that the evidence of Mr and Mrs Seymour was to the effect that although they had seen the pursuer's vehicle clearly ahead of them, it was only when they were some four to five car lengths away that they realised it was stopped. The fact is, however, that Mrs Green, as I have found, was able with considerable comfort to avoid the pursuer's car. She saw the pursuer's car when she was about the same distance away from it as the defender was, as I have found, when it ought to have been visible to him. On the evidence which I accept there was no obvious reason why the defender could not have pulled in behind her. In particular I do not find that Mrs Green had to pull in sharply in front of any other traffic proceeding in the inside lane. Further, even taking a two second reaction time, (rather than the one second said to be generally appropriate for about 50% of the population when faced with an obvious hazard), the evidence suggested that an overall braking distance of 121 metres would have been available to a vehicle travelling at 65 miles per hour. Taking a three second reaction time 150 metres would have been available. In these circumstances it is not surprising that in examination on behalf of the pursuer the defender did have some difficulty explaining why he had not been able to avoid the collision. As to the Seymours, my impression of them was that while they acted wholly responsibly and no doubt felt that they had been to a degree fortunate, they almost certainly underestimated the distance from the pursuer's car which they had been when they became aware that it was stationary. Mrs Seymour, who was driving, felt that she had been in no danger and when asked whether she could have stopped said simply that she thought it was the "best bet" in the circumstances to drive around the vehicle ahead. If they had been only four or five car lengths away (that is, on the evidence, about 20 metres) she would have had no possible chance of braking in time. Further, on her evidence there were some other cars travelling in the outside lane behind her vehicle. There was certainly no evidence to suggest that the drivers of any of these cars had faced any particular difficulties.

Although therefore I find that the defender was negligent in failing to keep an adequate lookout and in failing to react accordingly, I do not find that he was driving too fast - at least prior to the point when he should have seen the pursuer's car ahead of him - or that he was driving at any point above the speed limit. Equally I do not find that he drove too close to the car ahead nor, as closely linked in submissions made on behalf of the pursuer, that from the fact of the accident it could be said that he must have been negligent in having failed to comply with paragraph 57, and to a lesser extent paragraph 99, of the then relevant Highway Code, and in particular with the first sentences thereof. At the relevant time paragraph 57, "Stopping distances" read:

Headed "Overtaking" paragraph 99 provided:-

In the circumstances of this case it seemed to me that paragraph 57 perhaps had more potential relevance. I see no reason to doubt however that when the defender saw Mrs Green's vehicle move to the outside lane ahead of him, he dropped back such a distance from her as might be thought reasonably to have left a two second gap from her, such as permitted by the Code in good conditions on roads carrying fast traffic. While it is true that the defender could not thereafter for a period see, at least clearly, beyond Mrs Green's vehicle, there was nothing in the way she was driving to suggest to the defender that the outside lane might be blocked. The evidence confirmed that a two second gap would always be less than the overall braking distance required for a vehicle to halt before the one ahead but, as Mr Geary confirmed (and Mr Stewart ultimately agreed), the reason for such a gap being permissible in good conditions on fast roads was that in general there was no reason, in such conditions, to suppose that a car ahead might require to stop dead. This was not the case, for example, in busy city streets. Mr Geary appeared to think that in the circumstances of this case a two second gap would have been reasonable, and I preferred his evidence on this matter to that of Mr Stewart. The pursuer's expert appeared to proceed, at least initially, on the view that the fact of any accident in which one vehicle drove into the rear of another would always infer failure to comply with the first sentence of paragraph 57. On his own evidence, however, and more particularly that of Mr Geary, it is plain that such an accident could occur even if a driver complied with the overall stopping distances referred to in Code, given the greater reaction time necessary for most people in most circumstances than that allowed for. Mr Stewart further it seemed, at least initially at any rate, paid scant regard to the two second gap exception to the general rule. Thirdly, it was plain on the evidence that if all drivers ignored the two second exception and drove a sufficient distance behind any vehicle ahead as to make certain that that vehicle was outwith the overall stopping distance required there would be little or no movement on fast roads. A vehicle travelling at 65 miles per hour would require, according to Mr Geary's evidence, to leave a gap of some 24 car lengths.

As previously indicated the defender was convicted of a contravention of section 3 of the Road Traffic Act 1988. This proceeded on a plea of guilty. Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 provides:-

The complaint which the defender had faced in this case was produced. The charge read that,

A question arose as to whether section 10(2)(a) of the Act applied so as effectively to transfer the legal onus to the defender to disprove negligence. For reasons already indicated I find on the evidence that the accident was caused by the fault and negligence of the defender, and no question of onus strictly speaking arises. In deference to the arguments which were submitted, however, I offer, at least in short form, my views on the point which was taken on behalf of the defender. This was that in the first place there was no clear evidence to establish the terms of the charge of which the defender was convicted and secondly, and more strongly, that even if the defender pled guilty to the complaint which was lodged, it was not clear that the basis upon which it was brought corresponded to allegations made in the present action. It could not therefore be said to be relevant in this case to prove that the defender committed the offence charged. Reference was made to Levene v Roxhan &c 1970 1 W.L.R. 1322, Hollington v F. Hewthorn & Co Ltd &c 1943 1 K.B. 587, Hunter v Chief Constable of West Midlands Police &c 1982 AC 529 and Caldwell &c v Wright 1970 S.L.T. 111. In any event it was argued even if the onus was on the defender by virtue of the relevant provisions, no weight was to be given to the mere fact of conviction. Reference was made to Stupple v Royal Insurance Co 1971 1 Q.B. 50 (and in particular to the opinion of Buckley L.J.) and to Wright v Wright reported in the Solicitors' Journal 1971, page 173.

While accepting the defender's submissions on this last matter on the basis of the authority to which I was referred, I was not, on balance, otherwise persuaded. The reasonable inference from the defender's evidence was, I consider, that he pled guilty to the complaint as libelled. There was no evidence of any advice to plead to a restricted complaint, far less of any such restricted plea. Further, while it is no doubt true that in any civil case it must be clear that the fact that a person has committed an offence must be relevant to the case made before advantage can be taken by a pursuer of the relevant provisions (and all the cases to which I was referred underline that view) and while the relevant conviction in this case was in broad general terms, so too properly understood is the case made by the pursuer on Record. Following express reference to the defender's conviction, the case made - in standard terms for cases arising out of road traffic accidents - begins by averment that it was the defender's duty "to take reasonable care for the safety of other road users such as the pursuer" and ends with averment that "In particular it was his duty to take reasonable care not to collide with other road users such as the pursuer". In the circumstances of this case therefore I am unable to accept the defender's contention that the conviction effectively falls to be ignored. Had it been necessary I would have found that, in the light of it, it was up to the defender to disprove that his negligence caused the collision.

The defender's position was that if the accident was not caused solely by the pursuer it was at least substantially caused by her fault and negligence. I turn now to consideration of this. Central to this part of the case is assessment of how she and her passengers came to be inside the vehicle, stationary, with no hazard warning lights apparently showing, in the outside lane of the dual carriageway - a position noted by several witnesses to be one presenting obvious and serious risk to herself and others.

According to the pursuer she had been proceeding at a speed of about 50 to 55 miles per hour in the outside lane, there being a build-up of traffic on the inside. As she was proceeding the car started jerking. It slowed and came to halt, and seemed to stall. She had no opportunity, because of cars on the inside, to steer to the inside lane. She tried to steer towards the right, and ended, she thought, more to the right side of the outside lane. At least at one point in her evidence she indicated that she had tried to switch on the ignition again after the vehicle came to a halt, but nothing happened. It was her evidence that she had switched on the hazard lights after the vehicle came to a halt. Her sister had got out of the car to see what, if anything, was wrong, and prior to the collision she had just returned telling the pursuer that they appeared to have a problem with a tyre.

There was indeed on the evidence no doubt at all that after it had halted her car had a major problem with the nearside rear tyre. This, from photographs and from observations, was totally flat and almost entirely off the wheel rim. Further, credible and reliable evidence was given by Mr and Mrs Seymour about what whey had earlier seen of the pursuer's vehicle as it drove on the A907 Halbeath Road about 2.8 miles from the scene of the accident. It was their evidence that the pursuer had driven her vehicle from behind them in such a way as to cut in in front of them causing Mrs Seymour, on the single lane road, to take certain evasive action. Shortly thereafter the pursuer was seen to speed away from a roundabout. More importantly, perhaps, Mr Seymour then saw that the pursuer's vehicle already had a flat rear nearside tyre, although at that stage there was one to one and a half inches of rubber tyre between the road and the wheel rim. The view of the defender's expert on tyres, Mr Grogan, was that the tyre would have deflated steadily till then, and thereafter ever more rapidly. At the point when the tyre began to leave the rim the vehicle would have been subject to a degree of jerking. This last would account, on the face of it, for what the pursuer felt prior to the vehicle coming to a halt.

I also find it clear as a matter of probability that the pursuer's vehicle came to a halt essentially because of the serious problem with the rear nearside tyre. It is true that after the accident the car caught fire and it was not possible for there to have been a full mechanical or electrical examination but it would have been an extraordinary co-incidence if at the same time as the serious tyre problem emerged there developed also a mechanical or electrical failure. Furthermore I did not accept as reliable or credible the pursuer's evidence that she had tried the ignition after the vehicle came to a halt. On this she was not consistent in the course of her evidence. More generally, making every allowance I can for the obvious difficulties she faced in giving evidence in relation to this particularly tragic accident in which she herself was injured, I have to say that overall she was not an impressive witnesses. She was at times defensive, at others aggressive and on occasions too numerous to mention in detail she claimed, not always convincingly, an inability to remember what had happened.

I do not however accept as I was invited to do that she simply drove her vehicle to a halt in the outside lane. It seems to me to be in the highest degree unlikely that anyone would willingly do that. Rather, as Mr Grogan in cross-examination appeared to accept, it seems clear that the jerking of the vehicle and the consequent slowing of it, caused by the tyre beginning to come off the rim, could have led, in the absence of any gear change, to the vehicle stalling. This would account for the pursuer's impression that the engine had stalled and I find it probable that that is what happened.

A question arose as to whether the pursuer tried to steer to her right. It was her evidence that she could not steer to the inside because of traffic, and there was no evidence to suggest that she could be criticised in that respect. I did not however find her evidence that she had managed to steer to some degree to the right reliable, in circumstances where all the other evidence suggested that the stationary vehicle was apparently positioned straight-on in the middle of the outside lane.

Although the pursuer's evidence was that she had put on the hazard lights, all the other evidence indicated that they were not showing. In this matter the pursuer herself made no attempt to try to suggest that there might have been something wrong with the lights of the car. Indeed, she said that she had seen the relevant light in the vehicle flashing. She suggested that anyone who indicated that the car hazard lights were not on must be lying or mistaken. On the contrary I find that the only reasonable inference from the evidence was that she did not switch on the hazard lights.

Against these facts it is clear, I regret, that the pursuer herself must bear a degree of responsibility for what happened. In the first place I accept the evidence of Mr Grogan that a driver of ordinary competence exercising reasonable skill and care ought to have appreciated, at least from the time the Seymours saw her car, that there was something wrong with one of the tyres. It was his evidence that there would thereafter have been an obvious and worrying instability or "fish-tailing", particularly in the course of any cornering manoeuvres. The evidence was that there were some four roundabouts to be negotiated thereafter prior to the vehicle reaching the A92. The evidence also disclosed that there was a lay-by with a telephone about half a mile before the scene of the accident. In these circumstances it seems clear that a reasonably prudent driver (and the pursuer on evidence had been driving for some ten years) ought to have realised that there was something amiss and should not have driven onto the fast dual carriageway road. She should at least have pulled into the lay-by to check (a case which though not specifically made on Record could readily be regarded as a modification or development of the case which is made). My impression was that the pursuer perhaps allowed her better judgment to be overridden by a concern to catch up or stay within a reasonable distance of her father's car which was ahead. Although she disputed any such concern this was one aspect of her evidence in relation to which she was particularly defensive. Further, although no doubt the pursuer was confronted with a difficult and perhaps novel experience when the car began to jerk, the evidence was that the car could still have been driven - in particular by changing down gears, which Mr Grogan thought would have been the almost instinctive reaction of most drivers, - and steered. In the circumstances it seems to me that the pursuer ought reasonably to have been able, when the serious problems began to emerge, to drive on to the central reservation where, on the evidence, there was room for her vehicle between the road and the crash barrier. She ought at least to have been able to restart the engine and drive to that position after it came to a halt. While, if that was not possible, it was not clear that there was sufficient time for her to have removed herself and her passengers from the vehicle and stand on the central reservation, it plainly was her duty to have put on the hazard warning lights. While criticism of her actions in the other respects mentioned might well be tempered in the absence of clear evidence that she had experienced similar difficulties before, it is difficult to be so charitable in relation to this last.

I add for completeness that it was also argued on behalf of the defender that if there had been some engine failure (or as I understood it failure in relation to the hazard warning lights) the court could find, in the absence of any reasonable explanation by the pursuer, that she had failed in her duty to take reasonable care to maintain her vehicle. Reference was made to the First Division case of Binnie v Rederij Theodoro B.V. 1993 S.C. 71 and to an Outer House decision on relevancy in Penman v Blue Cap Logistics Ltd 1999 S.L.T. 1999. Had I required to address this I would not have found the pursuer to have been negligent in this respect. Neither case it seems to me is clear authority for the proposition on which the defender appeared to rely, namely that any breakdown in a piece of mechanical equipment - including a privately owned vehicle - is prima facie evidence of negligence on the part of the owner or operator. The Lord Ordinary in Penman was prepared to allow a proof before answer inter alia on the basis that the pursuer averred in that case that the state in which the brakes and clutch were found was consistent with the operation of the vehicle with a failing clutch and an improperly maintained braking system. In Binnie the argument on behalf of the pursuer and appellant which was sustained appeared to be that the fact of the accident (which involved the breaking of a rope on a ship) called for an explanation by the defenders, and, where it was clear that an engine failure had led to the rope breaking and where the defenders chose to lead no evidence at all, that they had failed to provide such an explanation. It is not, it seems to me, authority for the general proposition on which counsel for the defender sought to found. Insofar as the Lord Ordinary in Penman was persuaded to any degree that it was, I respectfully disagree with that view.

Each side submitted that the greater share of responsibility should be born by the other in the event that liability was found to attach to both. I was referred on behalf of the pursuer to a number of authorities, in particular Rouse v Squires 1973 1 Q.B. 889, Harrington v Milk Marketing Board 1985 S.L.T. 342, Morrison v Laidlaw 1994 S.L.T. 359, Morris v Pirie 1985, S.L.T. 365, Blackhall v MacInnes 1997 S.L.T. 649, and Campbell v Gillespie 1996 S.L.T. 503. All these cases related to accidents where a travelling vehicle had collided with another vehicle which had broken down or had an accident on the highway and where fault to some degree attached to both parties. The facts of each case however were so different from the present that I did not find any of them of particular assistance - although it is probably fair to say that all were cases where the court was prepared (to a greater or lesser degree) to attribute a greater share of responsibility to the person who had the last opportunity to avoid the collision as opposed to the one who caused the situation of potential danger. For example Cairns L.J. said in Rouse v Squires at page 899,

In this case, however, I have come to the view that it would be fair and just to apportion blame equally having regard to the findings I have made. I therefore sustain the pursuer's first plea-in-law, repel the defender's first four pleas-in-law and sustain the defender's fifth plea-in-law to the extent of finding the pursuer 50% contributory negligent.

It was agreed between the parties that on a full liability basis the loss, injury and damage sustained by the pursuer amounted to £42,000, of which £35,000 represented damages to the date of proof (13 December 1999), the past element consisting of £30,568 together with interest thereon. It was agreed that interest would run at 8% on said sum of £30,568 from the date of proof to the date of decree. Total damages to date of decree inclusive of interest would therefore amount to £42,301.50. I shall therefore pronounce decree for payment by the defender to the pursuer of one half of that, namely £21,150.75.