Scottish Court of Session Decisions

Ellison v. Inspirations East [2002] ScotCS 289 (01 November 2002)

OUTER HOUSE, COURT OF SESSION
A523/01	OPINION OF LORD HARDIE in the cause LINDA GEORGINA ELLISON Pursuer; against INSPIRATIONS EAST LIMITED Defenders:   ________________

 

 

Act: O'Brien, Q.C. et A. Smith; HBM Sayers

Alt: J. L. Mitchell Q.C. et R. G. Milligan; Simpson & Marwick, W.S.

1 November 2002

1. I was advised by counsel for the pursuer that the proof in the present action was restricted to the question of liability and that the present action was being treated as a test case for a number of actions which had been raised in respect of the same accident which was the subject matter of this litigation. I heard evidence in the case on 21 May 2002 and succeeding days. Submissions concluded on 29 May 2002 when I made avizandum.
2. In or about May 1995 the pursuer contracted with the defenders for a two week holiday in Marmaris, Turkey. In exchange for the price the defenders provided the pursuer with travel between Glasgow and Marmaris commencing on 16 June 1995, accommodation in an hotel for fourteen nights and return travel to Glasgow. Paragraph 5 of the booking conditions at page 106 of the defenders' brochure for winter 1994/95 (6/5 of Process) provides inter alia:

"We accept responsibility for the acts and/or omissions of our employees, agents and suppliers while acting within the scope of, or in the course of their employment with us. We also accept responsibility for any deficiencies in the services we are contractually obliged to provide, or the failure of such services to reach a reasonable standard.

We do not accept responsibility in respect of death, bodily injury or illness of any person taking one of our holidays, except when caused by the negligent acts and/or omissions of our employees, agents, suppliers or sub-contractors while acting within the scope of, or in the course of their employment, agency, contract of supply or subcontract. ..."

3. On 17 June 1995 the pursuer arrived at Dalaman Airport, Turkey. The defenders had hired a Mitsubishi Marathon coach registered number 42 S4494 driven by Dirgan Ucar to transfer the pursuer and other passengers from the airport to their hotels. At about 4.30 a.m., as the coach drove along the Dalaman to Mugla road in the direction of Mugla, it collided with a motor lorry which had been travelling in the opposite direction. The coach travelled beyond the point of impact before it left the road, went down an embankment and came to rest in a gully on the north-east side of the road. The driver of the lorry and three of the passengers on the coach were killed and a number of other passengers on the coach, including the pursuer, were injured.
4. On the basis of the evidence it did not appear to be disputed that although the road at the scene of the accident now comprises three lanes, at the time of the accident it consisted of a single carriageway in each direction. The overall width of the road was 6.7 metres, with each carriageway being 3.35 metres wide. The edge of each carriageway was delineated by a continuous white line and the centre line of the road was delineated by a broken white line. At the edge of each carriageway there was a drop in height of about 15 centimetres representing the depth of the tarmacadam top surface of the roadway. To the north of the carriageway travelling west towards Mugla there was an extension of the road bottoming, which comprised loose stones and which sloped towards a grass area leading towards a gully. The width of the said extension of the road bottoming at the edge of this carriageway varied and, shortly prior to the estimated point of impact, narrowed considerably. The surface of the rough stones would not provide a good braking surface in respect that the coefficient of friction on the stone would be reduced and a vehicle would tend to skid over such a surface. I did not understand there to be much dispute about the road dimensions and conditions but insofar as there was any dispute, I preferred the evidence of the defenders' expert, Mr George Terence Mighel. The reason for my preferring his evidence on this matter was that he had visited the scene two or three weeks after the accident prior to the reconstruction of the road. The pursuer's expert, Peter Sorton, did not visit the site of the accident until 28 April 2002, after the road had been reconstructed. His initial report (6/10 of Process) is dated 16 February 2001 and was based on limited documentation. The limitations of his first report are recognised in his second report (6/11 of Process) at paragraph 2 and were readily accepted in his evidence. The approximate dimensions and weights of the two vehicles involved in the accident are contained in the vehicle specification provided at page 12 of the second report by Mr Sorton (6/11 of Process). The width of the coach was 2.4 metres. The coach was also significantly heavier than the lorry. The gross vehicle weight of the coach was 16,500 kilograms and the gross vehicle weight of the lorry was 7,500 kilograms.
5. The circumstances of the accident were narrated by the pursuer and various other witnesses who were passengers in the coach. Apart from details about booking the holiday and leaving Dalaman Airport by coach, the pursuer testified that she was in the company of her then boyfriend who was killed in the accident. She described the coach as an "old, old coach like something from the Hillbillies". The pursuer was seated about four or five seats from the front on the left hand side of the coach on the opposite side from the driver. She was at the window and her then boyfriend was seated at the aisle. It was pitch black. She remembered seeing the lorry coming towards them. She recalled flashing lights and noises from horns. Thereafter there was a crash. She presumed that both the lorry and the coach had flashed their lights. The scene was all lit up in front of her. She had no recollection of the coach applying its brakes. She was unable to assist as far as the speed of the coach was concerned. In re-examination the pursuer was asked whether, with the benefit of hindsight, she considered that there had been time for the coach to stop, thereby preventing the accident. She indicated that that was her view. I placed little weight on this evidence in view of the fact that it was lead in re-examination, but more particularly in view of the fact that the pursuer is not a driver and I considered it to be of doubtful value. I also did not attach any significance to the fact that the pursuer was confused about the position of the driver and herself in the coach. Drivers in Turkey drive on the right hand side of the road. The driver of the coach was seated on the left hand side.
6. The second witness was Andrew Blair, a 59 year old lorry driver who was also a passenger in the coach. He was seated five seats from the front on the left hand side of the coach. His recollection of events was that at about 20 minutes after leaving the airport they were travelling downhill when he noticed a light going in and out about three quarters of a mile ahead. He was under the impression that this occurred twice. He assumed it must have occurred a third time when the lorry hit the bus. When he first saw the lights, the coach driver must have seen them but did not appear to respond. He did not change his position on the road and did not slow down. This witness testified that his estimate was that the coach was travelling at about 45 m.p.h. He did not see much at the point of impact. He simply heard a bang and the coach swerved to the right, after which it went down what he thought was a storm drain. He was propelled through the windscreen of the coach. In cross-examination he stated that he had been a driver for about twenty years and held a heavy goods vehicle licence. He had visited Turkey several times before. He considered that the coach driver was driving normally in his correct lane and was driving at what he considered to be a normal speed. Indeed he considered the speed to be slow for coach drivers in Turkey. When he first saw the lights on the wrong side of the road he did not know that they were the lights of a lorry. He recalled the vehicle returning to its correct side. The vehicle crossed over again onto its wrong side, at which point someone flashed their lights. After the lights were flashed the oncoming vehicle returned to its correct side of the road. The witness did not see the lorry returning to the wrong side of the road prior to impact. He simply heard a crash. He was talking to his wife at the point of impact.
7. The third witness, Mrs Karen McKendry, aged 34, did not add much to my understanding of the accident. She referred to the driver smoking and to his being given a cup of liquid by someone she described as "a boy". She fell asleep and the next recollection she has is of her husband shouting and the accident occurring.
8. The next witness was Mrs Agnes Lynden or Allan, aged 65 years, who could not recall anything apart from hearing someone shouting, "We're going to crash". Thereafter there was what she described as an explosion. When someone shouted she looked up and saw lights and then heard a bang. She had been speaking to the lady sitting beside her. She did not know the lady prior to that evening. That lady was killed in the crash.
9. The next witness, Ms Anne Fleming Lynden Allan, aged 47, referred to seeing the driver with a cigarette in his left hand and a cup in his right hand at some point in the journey. This was five or ten minutes or even longer prior to the accident. She was dosing when she heard a voice shouting, "We're going to fucking crash". The whole bus lit up and there was a noise like a bomb. She saw two large beams of light just slightly before impact. Seconds after the light it was as if they had been bombed.
10. The next witness was Mrs Margaret Ann Gordon or Reilly, aged 32. She was seated two or three seats from the rear of the coach. In her evidence she made certain complaints about the manner of driving by the coach driver when he was on the motorway. She stated that the coach was old and it seemed to be travelling fast. She also referred to a person speaking to the coach driver and thereafter pouring liquid from a flask and giving it to the coach driver. Later on when they were on the "windy road" she stated that she was looking straight ahead and saw headlights. It looked as though a vehicle was on the wrong side of the road. The oncoming vehicle then moved back onto its correct side of the road. She stated that this happened two or three times. She noted headlights weaving in and out. The two vehicles eventually met. She stated that the coach swerved and that she had said, "That was close". Then there was a bang and bumping along the left hand side of the coach. She stated that she did not recall the coach slowing down but that the only time that she did recall it slowing down was "just before impact". She could not estimate how far apart the vehicles were when she first saw the lights of the oncoming vehicle. In cross-examination she confirmed that she had never been in Turkey before. She was unfamiliar with the manner of driving in Turkey. She also confirmed that just before impact she had the impression that there was a fork in the road and that at the last minute the coach driver "got away with it". After the initial impact it was as if the lorry was rubbing along the left hand side of the coach.
11. The next witness was James Douglas Borland aged 69, also a passenger on the coach. He was interponed as a defence witness. His recollection was that there was a huge flash of light and thereafter an explosion. He considered that the coach had been driven in a normal fashion. In cross-examination he confirmed that he had no recollection or concern of the coach driver driving in an unsafe manner. He could give no indication of the coach's speed because it was totally dark outside and he was unable to see trees or telegraph poles to judge speed.
12. The final witness among the passengers was Mrs Shona Robertson or Sopel, aged 42. She had never been in Turkey before and was on holiday with her husband and two sons. They were seated in the third or fourth seats from the back of the bus. She was on the right hand side of the coach. Her husband and sons went to sleep after the welcome by the courier. About half an hour later the accident occurred. She remembered seeing lights coming straight for the bus and "that was it". She could not say how far ahead the other vehicle was when she first saw the lights. She felt the bus slowing just before the point of impact. Thereafter the bus veered to the right and went down a gully. In cross-examination she confirmed that she felt as if the bus was slowing down before impact but she could not say whether that was because it was braking or because the driver was simply taking his foot off the accelerator.
13. Douglas Muir Galloway Russell, a partner in Simpson & Marwick, W.S., testified that efforts had been made to trace Dirgan Ucar to no avail. These efforts included inquiries by representatives of the defenders in Turkey and later investigations by Turkish solicitors instructed by Simpson & Marwick. The only other evidence from people at the scene of the accident came from Marion Karyn MacKenzie, a partner in a London firm of solicitors, who had taken a statement from the bus driver shortly after the accident. Objection was taken to the evidence of Miss MacKenzie by counsel for the pursuer. I repelled the objection. Thereafter Miss MacKenzie testified that she had visited Turkey and had interviewed the driver of the bus. She had used the services of an interpreter. She made notes of the interview and these were 7/11 of Process. I derived little assistance from this evidence and placed little weight upon it, particularly in view of the fact that the coach driver, for reasons already explained, had not attended in person and been subject to cross-examination. It is also clear from the notes that there are some fundamental errors in the recollection of the coach driver. In particular the sketch prepared by Dirgan Ucar, which is appended to the notes, suggests that the lorry was in the process of crossing over into the lane occupied by the coach at the point of impact. The technical evidence established that the lorry was in fact returning to its own lane at the point of impact. The only passages from the notes which I found of assistance were passages which were confirmed by other evidence. In particular the coach driver maintained that the lorry had been in the wrong lane on two occasions prior to the point of impact. I also accepted his estimate of speed as he drove round the final bend before the accident as being about 60 k.p.h. in view of the fact that he had passed part of the road which was under construction and also in view of the evidence of Mr Blair that the coach was being driven at a speed which was slow for vehicles in Turkey. I accepted the evidence of the coach driver that he flashed his lights and used his brakes. The flashing of lights was consistent with evidence given by other witnesses and the braking was consistent with the evidence of Mrs Sopel and Mrs Reilly. I also accepted the general evidence that he had held a driving licence since 1978 and a heavy goods vehicle since 1981, that he had been driving coaches for eight years and that he was familiar with the area of the accident and the roads surrounding it.
14. The evidence of the experts, Peter Sorton, for the pursuer, and George Terence Mighel, for the defenders, ultimately did not differ significantly. As I have already indicated, Mr Mighel visited the scene of the accident and examined the vehicles two or three weeks after the date of the accident whereas Mr Sorton did not visit the scene until 28 April 2002. He prepared his initial report on the basis of three photographs and a police report and reached conclusions about the circumstances of the accident to explain damage to the right hand side of the coach. Following sight of the defenders' photographs he accepted that the conclusions in his first report were erroneous. In particular the damage to the right hand side of the coach had been caused following the coach leaving the road, falling down the gully and ultimately coming to rest against a boulder. He accepted that greater reliance should be placed upon the evidence of someone who had visited the scene shortly after the accident before any alteration to the road layout had been made and who had examined the surrounding area at that time.
15. The principal area of dispute between the experts related to the action which they considered the coach driver should have taken to avoid the collision. Mr Sorton accepted that if the lorry driver had simply crossed over once, no fault could attach to the coach driver. However he was of the opinion that in view of the earlier encroachment by the lorry into the carriageway occupied by the coach, the coach driver ought to have braked and veered to the right onto the hard standing, being the extension of the road bottoming. Thereafter he ought to have continued braking and brought the coach to a halt on the hard standing. It was his opinion that it would have been safe to drive on the hard standing at a speed of 15 to 20 m.p.h. Mr Mighel did not accept that was a reasonable course of action. Having examined the scene of the accident he noted that the area of hard standing contained many large loose stones and narrowed considerably just prior to the scene of the accident. Beyond the hard standing there was a grass area which sloped away to the top of the gully. Moreover, there was a drop of about 15 centimetres from the tarmacadam surface to the level of the hard standing. This drop was explained by the depth of the tarmacadam surface. It was his opinion that the surface of the hard standing was not stable and the situation was not helped by the grass sloping away from it. He did not consider that the surface would provide a good braking surface. The coefficient of friction on the stone would be reduced and the vehicle would skid over the surface. In addition the coach would lose traction sideways because it would be coming off the tarmacadam surface at an angle. He explained that the mass of the vehicle would skid in the direction it was pointing. He considered that even if the coach had been travelling at 5 m.p.h. when it left the tarmacadam surface it would slide. Obviously it would slide a greater distance the greater the speed. Moreover, the bus was travelling down a gradient of 3% or 5%. In his opinion it would be inadvisable and extremely dangerous to drive the coach onto the hard standing. His reasons for that opinion were that because of Ucar's knowledge of the area the driver would know what was off the road. He would also know that whatever speed he was driving, there was a risk of sliding on the gravel. He would also be aware that there was not much room to slide sideways before reaching the grass and that the grass would give a reduced grip. In these circumstances the driver would be aware that there was a severe risk of the coach falling down the gully. Having regard to the dimensions of the carriageway and the width of the coach, there was little room for manoeuvre. If the coach was positioned in the centre of its lane there was less than half a metre available between the coach and the edge of the tarmacadam surface.
16. Prior to the evidence of Miss MacKenzie in which reference was made to notes taken by her of a statement by the driver, senior counsel for the pursuer objected on the basis that the notes were not a statement for the purposes of the Civil Evidence (Scotland) Act 1988. Alternatively they should not be admitted by reason of the circumstances in which they were taken in respect that Miss MacKenzie required to work through an interpreter. In the course of her submissions senior counsel for the pursuer referred to section 9 of the Act which excluded a precognition from the definition of a statement. Having referred me to that section, counsel then accepted that the notes were not a precognition "in the traditional form". She acknowledged that the notes were plainly hand-written notes at the time of an interview. Senior counsel for the defenders submitted that the notes were admissible in terms of section 2(1)(b) of the Act. He further submitted that there was no merit in the alternative submission otherwise it would be impossible to comply with the provisions of the Act in a situation where an interpreter was required. In the course of argument I was referred to the following authorities: Highland Venison Marketing Limited v Allwild G.m.b.H. 1992 S.L.T. 1127; Anderson v Jas B. Fraser & Co. Limited 1992 S.L.T. 1129; McAvoy v City of Glasgow District Council 1993 S.L.T. 859; Davies v McGuire 1995 S.L.T. 755 and Cavanagh v BP Chemicals Limited 1995 S.L.T. 1287. Having considered the submissions and the authorities I repelled the objection on the assumption that the witness was speaking to an interview and her notes reflected the answers to questions which she was putting to the witness. It appeared to me that the case of Anderson v Jas B. Fraser & Co. Limited was directly in point. In that case Lord Morton of Shuna stated at 1130J:

"It appears to me that in civil proceedings the only reason for the exclusion of a precognition is that what is stated in the precognition is or may be coloured by the mind of the precognoscer who produces in the precognition an edited version of what the witness has said. This would exclude the actual document prepared by the precognoscer but would not exclude evidence of what the witness actually said to the precognoscer prior to the preparation of the document. I am of the opinion that the exception in the definition of 'statement' in the Civil Evidence (Scotland) Act excluding 'a statement in a precognition' means what is recorded in a document prepared by the precognoscer and does not exclude evidence of what the person said to the precognoscer in interview. On that basis Miss Neilson's evidence for what it is worth is admissible."

I entirely agree with the Opinion of Lord Morton of Shuna and in view of the concession by counsel for the defenders that the notes are not a precognition "in the traditional form" I can see no justifiable reason for excluding the evidence on the basis that it is anything other than a statement made by the driver to the solicitor for the insurers. As far as the other objection is concerned, namely that notes should be excluded by reason of the circumstances in which they were made and in particular that the services of an interpreter were employed, I concluded that there was no justification for excluding the evidence on this ground. It appeared to me that to decide otherwise would be contrary to public policy and would discriminate against people whose first language was not English. It cannot have been the intention of Parliament to restrict the application of the Civil Evidence (Scotland) Act 1988 to statements made by witnesses whose native language was English or whose facility with English was such that they could communicate easily in English. I cannot conceive that Parliament intended to exclude from the provisions of this Act the testimony of witnesses, including British citizens, whose first language was not English and who required the services of an interpreter to convey their account of what they had witnessed. Having admitted the evidence I consider that the real issue for me is the weight to be attached to the evidence of the bus driver which is contained in the notes taken by Miss MacKenzie. In evaluating this evidence, apart from general evidence about his experience as a driver and his knowledge of the roads, I have restricted the use of this evidence to evidence which is supported by other acceptable evidence.

17. As far as the circumstances of the accident are concerned, I did not consider that there was much dispute amongst the passengers on the bus. Where there was a difference I preferred those passengers who gave their evidence in a more measured way. In considering their evidence about the manner of the driving of the coach, I rejected the evidence that the coach driver was driving at an excessive speed on any part of the journey including on the motorway after leaving the airport. The reason for rejecting that evidence is that it was dark and it would be difficult for passengers to estimate speed in those circumstances. I preferred those witnesses who had experience of driving, especially Mr Blair who was a lorry driver and Mr Borland, who had previous experience of being driven in Turkey. I also rejected the evidence that the coach was an old coach, even although this evidence had no bearing whatsoever upon the accident. It is clear from the evidence of Mr Mighel that the coach was four or five years old and was in good condition prior to the accident. While I accepted the evidence that the coach driver was smoking at some point during the journey and I also accepted that at some point during the journey he probably had a drink, prepared by the attendant on the coach, I rejected the evidence of Mrs McKendry that he was smoking and drinking at the same time. I considered her evidence on this point to be exaggerated and incredible. In any event, these criticisms of the driver by some of the passengers related to a period prior to the accident and were unconnected with it.
18. On a balance of probabilities I found it established that when the coach rounded the bend prior to the accident, the coach driver had a sight line ahead of him in excess of one kilometre. As he rounded the bend the lorry was on the wrong side of the road. The lorry returned to its correct side without any action being necessary on the part of the coach driver. It is not possible on the evidence for me to estimate the distance between the vehicles at this point of time. At some point thereafter the lorry again crossed over into the wrong lane. On this occasion the coach driver flashed his lights and the lorry returned to its own lane. On the evidence I am unable to determine the distance between the vehicles when this occurred. However seconds before the point of impact the lorry again encroached into the lane occupied by the coach and was returning to its own lane when the impact occurred. I accepted the evidence of Mr Sorton that a normal lane change takes about three seconds, whilst a violent swerve involves a timescale of about 1.7 seconds. If there were a complete lane change and the lorry was then returning to its own lane, the time involved would be somewhere between 3 and 6 seconds. In the event of the lorry swerving violently into the lane occupied by the coach and thereafter returning to its own lane, the time involved would be somewhere between 1.7 and 4.7 seconds to complete the manoeuvre. Having regard to the previous actions of the lorry driver and also having regard to the fact that he must have been aware of the existence of the coach because he responded when the coach lights were flashed when he encroached into the coach's lane, I consider that it was improbable that he was intending to complete a lane change. What is more likely is that for some reason the lorry driver swerved violently into the lane occupied by the coach and was in the process of returning to his own lane when the collision occurred. As the coach was in its correct lane, the point of impact must have occurred to the right of the centre of the lane occupied by the coach and at a time before the lorry was able to complete a manoeuvre of returning to its own lane. My best estimate of the time involved for the lorry to move from its own lane to the point of impact is about 3 seconds.
19. I also accepted that the coach driver was familiar with the road and that prior to the bend, after which the coach driver first had sight of the lorry, there was a section of the road about 30 to 40 metres long which was very rough and which, according to Mr Mighel, required vehicles to slow down to about 10 m.p.h. This section of the road was observed by Mr Mighel on his visit to the locus shortly after the accident and is referred to in the statement by the coach driver. The notes of his interview by Miss MacKenzie refer to "the destroyed part of the road" and "a curve after the destroyed part of the road". The coach driver also refers to being in third gear after "the destroyed part of the road". I accepted the evidence of Mr Mighel that the coach was probably driving more slowly than the lorry. I also accepted the evidence of the passengers, who were experienced in such matters, to the effect that the coach was driving normally or even slow for Turkish conditions. In addition I accepted the evidence of Mr Mighel that the hard standing at or about the point of impact was narrower than at other points and that there was a grass embankment beyond the hard standing after which there was a drop into a gully. At the point of impact I considered that the coach had slowed down and was travelling at about 10 or 15 m.p.h. when it left the road and fell down into the gully. In that regard I was impressed by the evidence of Mr Mighel concerning the extent of the damage caused by the vehicle falling 12 feet. Had the coach been travelling at a greater speed, Mr Mighel would have expected more significant damage. I accepted his evidence on that point. In the absence of evidence of emergency or heavy braking after the point of impact I considered that the speed of the coach at the point of impact was moderately slow. I also concluded that the coach slowed down just before impact. In that regard I accepted Mr Mighel's evidence that passengers would not necessarily be aware of the coach braking unless the braking was emergency or heavy braking, causing them to be thrown forward. The accident occurred during the hours of darkness and the passengers would be unable to see anything, such as the coach dipping at the front, which would assist them to conclude whether the coach driver had applied his brakes.
20. In relation to the question of liability for the accident senior counsel for the pursuer accepted that the lorry driver was principally at fault but she maintained that the coach driver contributed to the accident by failing to stop prior to the accident or by failing to drive onto the hard standing and thereafter to come to a halt. Senior counsel for the defenders maintained that the accident was caused solely by the fault of the lorry driver.
21. Insofar as there was a difference of opinion between the experts about the approximate speeds of the vehicles and the cause of the damage to the coach and inferences to be drawn from such damage, I preferred the evidence of Mr Mighel who, shortly after the accident, had examined the vehicles as well as the area where the coach finally came to rest. He found evidence consistent with the damage to the right hand side of the coach being caused by the fall of the coach into the gully. The coach driver, who was familiar with the area, would be aware that there was a risk of his coach overturning to the danger of the passengers and himself in the event of his leaving the tarmacadam surface at any speed. Further, he would be aware that by leaving the tarmacadam surface he would expose himself and the coach passengers to the risk of serious injury if his coach skidded on the hard standing and fell into the gully. He would be aware that the hard standing would not provide a good braking surface and that the risk of skidding on that surface was greater than if he remained on the tarmacadam surface of the road. I accepted the evidence of Mr Mighel that even at 5 m.p.h. there would be a severe risk of skidding if the coach driver applied his brakes on the hard standing. Thus I rejected the criticism of the coach driver for failing to leave the tarmacadam surface and drive his vehicle onto the hard standing, bringing it to a halt there. The risks associated with such a course of action appeared to me to be greater than the risk of slowing down and suffering a head-on collision having regard to the relative weights of the vehicles. Despite the lorry driver having been on the wrong side of the road on two occasions, the coach driver was aware that the lorry driver had returned to his correct side of the road on the first occasion without any intervention by the coach driver. He was also aware that the lorry driver had returned to his own side of the road on the second occasion when the coach driver flashed his lights. In these circumstances it was not reasonable to expect the coach driver to stop. In my opinion it was sufficient for the coach driver to drive at a slow speed, which he did. The time available to the coach driver to react to the final incursion by the lorry into the coach driver's lane was minimal. Even in that time the coach driver slowed down and swerved to his right. In all the circumstances I cannot find any liability on the part of the coach driver for this accident.
22. For the sake of completeness I should mention the averment at page 9D of the Closed Record where the pursuer refers to the conviction of the coach driver in Turkey, as a result of which he was sentenced to five years imprisonment. In Mr Sorton's first report (6/10 of Process) at paragraph 18 he states:

"The Turkish legal system appears to be very different from the legal system in the United Kingdom in as much as it is said that the Courts must blame, at least in part, any driver involved in a road traffic accident. It is also said that a surviving driver will always be prosecuted."

In her closing submission senior counsel for the pursuer very properly conceded that in any event the conviction could not be relied upon by me to assist in determining the liability of the coach driver.

23. In all the circumstances I shall grant decree of absolvitor.