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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Joseph v. Braid [2003] ScotCS 228 (14 August 2003)
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Cite as: [2003] ScotCS 228
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Joseph v. Braid [2003] ScotCS 228 (14 August 2003)
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OUTER HOUSE, COURT OF SESSION |
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A3161/00
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OPINION OF LORD BRACADALE in the cause MARK JONATHAN BRIAN JOSEPH Pursuer; against GRAHAM BRAID Defender:
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Pursuer: Caldwell Q.C., Hutcheson; Thompsons
Defender: Primrose; Bishops
14 August 2003
Introduction
[1] In this action the pursuer seeks damages in respect of personal injuries which he suffered in a road accident which took place on 23 April 1999 at the junction, known as the Hallmuir junction, between the C93a Highlaw to Roberthill road and the C92a Limestonerigg road. The BMW motor car driven by the pursuer was in a collision with the Nissan Almera motor car driven by the defender. Damages were agreed between the parties and the proof before me was concerned only with whether the accident was caused by fault on the part of the defender and, if so, whether the pursuer had also contributed to its occurrence by his own fault. It was agreed by joint minute that on full liability damages should be assessed at £205,000. In addition, a schedule in terms of the Practice Note No. 3 of 1997 for the purposes of the Social Security (Recovery of Benefits) Act 1997 was lodged together with the joint minute.The locus
[2] The Hallmuir junction is in a rural area and the roads are bordered by narrow grass verges and hedges or trees. It forms a crossroads on the C92a and the C93a roads. The C92a road runs generally north and south between Lockerbie and Dalton and is known as the Limestonerigg Road. It is a single carriageway approximately 5.6 metres wide, marked for two lanes of traffic. It is subject to a 60 mph speed limit. On the approach to the Hallmuir junction the centre line markings comprise long white lines with short gaps indicating a hazard. Approximately 90 metres north of the junction there is a sign indicating a crossroads. As a driver travelling south approached the junction he would be travelling on a straight and generally flat road and would have an uninterrupted view of the junction for a distance of about 250 metres. At the time of the accident there were trees on the east side of the road but these had been cut down by the time the photographs were taken. [3] The C93a runs generally east and west. At the approach to the Hallmuir junction travelling in a westerly direction it is a single carriageway approximately 4.3 metres wide. At the junction the road broadens to form a bell mouth. The junction is marked by a Give Way sign at the edge of the road, a Give Way triangle painted on the road surface, and Give Way signs at the junction. On the C93a approximately 75 yards before the junction there is a right hand bend. A driver on the C93a travelling west and about to cross the junction would have a view slightly hampered by vegetation on the side of the road but the restriction was minimal and the driver would have a sight of approaching vehicles up to 200 metres. At the time of the accident it was dark and the road was dry. The roads were in good repair. [4] There were three sets of photographs of the locus. Photographs taken by the pursuer's expert witness were reproduced as part of 6/22 of process. Two days after the accident Wendy McQueen, the sister-in-law of the pursuer, took photographs which were reproduced as part of 6/19 of process, and 7/17 of process comprised a book of photographs taken on behalf of the defender. PC Barr, who attended at the scene of the accident along with Sgt Tait, compiled a sketch plan which was produced as plan B in 6/22 of process. The police officers took as their point of reference for measurements the point on the apex of the south-west corner of the junction where the white broken line finished at the grass verge. [5] The expert instructed by the pursuer, Steven Parkin, drew a plan which was produced as Plan A in 6/22 of process.Evidence
[6] The pursuer gave evidence. Evidence was led on behalf of the pursuer from a number of police officers who attended the scene. These included Sgt Colin Tait, PC Scott Barr and Sgt David Blacklock. Evidence was also led from a former police officer, Kenneth Hope, who had taken a statement from the defender after the accident. Evidence was led from Gary Nicol who had attended as a para-medic. Evidence was led from John Maxwell McQueen and his wife Wendy McQueen. Wendy McQueen and the pursuer's wife are sisters. [7] The defender gave evidence and evidence was led from two witnesses on his behalf. These were Sharon McLean who was the passenger in the Nissan and her father James McLean who attended at the scene shortly after the accident. [8] Expert evidence designed to reconstruct the accident was led on behalf of the pursuer from Steven Parkin.
The accident
[9] It is common ground that at about 9.30pm on Friday 23 April 1999 the pursuer was driving a white BMW saloon car along the C93a road in a westerly direction towards Dumfries. He approached the junction of the C93a with the C92a. The junction is known as the Hallmuir junction and the C92a has priority. The defender was driving a Nissan Almera car south on the C92a approaching the junction. The pursuer drove across the junction and the vehicles collided. The front of the Nissan struck the offside of the BMW. The impact was to the area of the driver's door extending to approximately 60 centimetres from the front of the vehicle. The pursuer was employed as a customer services co-ordinator at Currys in Dumfries. He also had a part time job as a door man at a club in Dumfries. He was travelling to his part time job at the time of the accident. As a result of the accident the pursuer sustained serious injuries.Case of fault
[10] The case of fault made by the pursuer is that the defender was travelling at a speed which was excessive in the circumstances and failed to keep a proper lookout. A case of contributory negligence is made against the pursuer on the basis that he failed to keep a proper lookout and drove across the junction into the path of the defender who had priority. [11] As the case developed the questions of speed and lookout became inter-linked and the controversial issues in the case related to the speed at which each of the vehicles had been travelling prior to the accident.Speed
Direct evidence
[12] The pursuer had no recollection of the accident. The last thing he remembers was going round the right hand bend approximately 75 yards before the junction. The next thing he remembered was sitting in the car after the accident. He explained that he used this junction four, or five, times a day, going to and from both work and his part time job. His normal practice on arrival at the junction was to stop and check and inch out because it was difficult to see oncoming traffic. Once he had checked that the road was clear he would "shoot" across. [13] The defender said that as he was driving along the road towards the Hallmuir junction, he had priority. He saw the lights of another car through the trees. Initially, in his evidence, he said that he expected it to give way and kept at his own speed. He went on to say that when he saw the headlights of the other car he was driving between 50 and 60 miles per hour and he lifted his foot slightly off the accelerator as a natural reaction. Again, in cross-examination he said at one stage that he kept travelling at his own speed, but at another that he had slowed down slightly. In re-examination he said that he kept on travelling at the same speed after he had eased off. There was thus some degree of confusion in the evidence of the defender as to whether, when he first saw the headlights of the pursuer's car, he had maintained his initial speed or eased off slightly.[14] The defender said that when the pursuer's car emerged from the junction, he himself was very close to the junction. Under reference to posts and markers in photographs 14 and 15 of 7/17 of process, he said that he was between the markers shown in photograph 14 and was past the post on the left hand side shown in photograph 15. He had no time to do anything. He could not remember if his vehicle had swerved. In particular, he did not have time to do anything about speed.
[15] When he was interviewed by the police on the night of the accident he had told the police that he was travelling at 50 miles per hour. He had told his solicitors that he was going at about 50 to 60 miles per hour. On record it is averred that he was travelling at 60 miles per hour. He rejected the possibility that he was travelling at 76 to 78 miles per hour. His recollection was that the accident had occurred in his own lane of the carriageway. [16] Sgt Tait confirmed that the speed limit of the C92a was 60mph. No suggestion had been made at the time that the driver of the Nissan was driving too fast. From his experience and knowledge of accidents he would estimate that the speed of the Nissan was not more than 60mph. [17] Sharon McLean said that she did not feel unsafe and that everything felt fine before the accident. [18] There was no direct evidence as to the speed at which the BMW was travelling prior to the accident. The pursuer gave evidence as to his normal practice. The defender said that he had seen the lights of the BMW as it approached the junction. It had not stopped but had driven straight out.Accident reconstruction
[19] Steven Parkin was led by the pursuer as an expert in accident reconstruction. He had the following qualifications: BSc (Hons.), CEng, MIMechE, MAE, MITAI. He had been the Manager of the Accident Research Centre at the University of Birmingham and is now a full time accident reconstruction specialist. [20] By reference to the point of impact and the final resting positions of each vehicle, Mr Parkin gave evidence from which I was invited to draw an inference about the speed of each of the cars prior to the collision. Mr Parkin sought to fix the point of impact by the presence on the roadway of certain gouge marks. In order to rely to any extent on the evidence of Mr Parkin as to the respective speeds of the vehicles, it would be necessary for me to be satisfied that I could draw the inference that the gouge marks were caused by the accident. In addition, it would be necessary for me to be satisfied as to the respective resting positions of each vehicle. [21] Wendy McQueen was the sister-in-law of the pursuer. She visited the locus two days after the event and took photographs, including photographs showing gouge marks. These can be seen in photograph 4 of 6/19 of process. She said that between the time of the accident and the time when she took the photographs, there had been no rain. John Maxwell McQueen was the husband of Wendy. He visited the scene on the following weekend (seven days later). He examined the gouges. They were about 10mm deep and extended for about 600mm. One was quite a deep score. As it happened, Mr McQueen was a civil engineer and had extensive experience of road works. He said that the gouges looked as though something had scored the tarmac and from his experience he thought that they were fresh. He had worked in the water industry laying pipes and often had seen tarmac freshly cut. [22] Mr Parkin, in his report, stated that gouges very often occurred in relatively high speed impacts and were useful in locating the striking vehicle at the point of maximum engagement. Such gouges are usually made when the striking vehicle's front is forced down into the road (by the impact and sometimes aided by the vehicle already under heavy breaking) and the engine and/or gearbox strike the ground. In his evidence Mr Parkin said that the photograph of the gouges showed that they were very fresh because there was a powder-like appearance which disappears when water comes into contact with the tarmac. To be in that condition the gouges must have been photographed before any rain fell. The depth of 10mm shows that this was caused by the kind of forces involved in a collision and not from the process of recovery of the vehicles or scratching of the surface. [23] As a result of his examination of the undercarriage of a similar Nissan Almera Mr Parkin considered that the parts most likely to create such gouging were the front mounting point of the exhaust to the front cross member where there are two large bolt heads spaced approximately 3ins apart. The spaces between the gouges was consistent the bolt arrangement in the Nissan. There had been a high speed impact and therefore one would expect to see gouging from the Nissan. [24] Mr Parkin himself examined the gouges and measured them as being 3.7m from the Give Way line from which Mr Joseph emerged and 1.1m south of a line extended east from the centre line of the C93a west of the junction. In other words on the pursuer's side of the road as he passed through the junction. [25] Taking this body of evidence together I am satisfied that I can draw the inference that the gouge marks were caused in the course of the accident by the underside of the Nissan striking the roadway. Accordingly, I am prepared to accept the evidence of Mr Parkin that the point of impact can be fixed under reference to the gouge marks. [26] Next, before any reliance may be placed on the expert evidence it is necessary to examine the evidence as to the resting places of each of the cars. [27] Police Constable Scott Barr of Dumfries and Galloway Police, with five years service, said that on 23 May 1999 he attended at the scene along with Sergeant Tait at about 10.00pm. It was dark and there were traffic officers already there. He had difficulty remembering where the Nissan car was. He thought it was in the field, through the hedge and facing towards Dalton. The white BMW car was further up the road towards Dalton on the right hand side of the road. It was facing towards Lockerbie. [28] Once the area was cleared Constable Barr and Sergeant Tait took measurements. The police officers took as their point of reference for measurements the point on the apex of the south-west corner of the junction where the white broken line finished at the grass verge. [29] As a result they prepared the accident report (6/17 of process). He also referred to a copy (6/25 of process) and a photocopy of the police notebook (6/27 of process). There was also a sketch plan (Plan B in 6/22 of process). He confirmed that their measurements were correctly recorded. Under reference to photographs 8 and 9 of 6/19 of process, he said that the Nissan was in the first area of damaged hedge to be seen in photograph 9. It had gone through the first bit of damaged area of hedgerow along from the fencing. In cross-examination he said that he could not say whether the Nissan was fully through the hedge. He said that 3.3m was correct. [30] Sergeant Colin Tait who had 21 years police service, said that the Nissan had gone through the hedge and was in the field and that the BMW was further up the road towards Dalton facing back towards Lockerbie. He confirmed that the measurements were accurate. [31] Under reference to photograph 9 he indicated that the Nissan was where the lower part of the hedge was and that the front of the vehicle was just behind the higher part. In cross-examination he said that the Nissan motor vehicle was fully in the field, right through the hedge but not very far. [32] Sergeant David Blacklock was a member of the traffic department with 16 years service. He said that the Nissan was in a field and that the BMW was on the grass verge on the road side of the hedge facing Lockerbie. The Nissan was facing Dalton. He thought that the 3.3m was a slight understatement but he did not measure it. Under reference to photograph 9 he said that the Nissan was close up to the hedge at the first hole where the hedge uprooted and the Nissan was in the area next to the part of the hedge still standing. The BMW was more towards the crest of the hill. The Nissan was totally in the field. [33] The defender placed the BMW at the middle gap in the hedge at its final resting place. This was further south than the area described by the police. Sharon McLean's father, James McLean gave evidence. His recollection was that after the accident the BMW was just next to the Nissan. It was so close that you could touch them at the same time. [34] The evidence of the defender and James McLean is at odds with the evidence of the police officers as to the resting places of the cars. I consider that their evidence is typical of the range of accounts which eyewitnesses to a road accident will give. I do not find their evidence on this matter reliable because it is at odds with the evidence which I do accept. In particular, I accept the evidence of measurements taken by PC Barr and Sgt Tait, although it is unfortunate that they did not select a more precisely identifiable point of reference. [35] Accordingly, I am prepared to hold on a balance of probabilities that the Nissan came to rest, facing in its direction of travel (south), in the field, through the hedge, 3.3 metres from the point on the apex of the south-west corner of the junction where the white broken line finished at the grass verge. I am similarly prepared to hold that the BMW came to rest, facing north in the northbound carriageway of the C92a road, 26 metres from the point of reference. [36] I now turn to the evidence of Mr Parkin. At paragraph 10.2 of his report Mr Parkin stated that the gouges were located on the opposite side of the carriageway for the direction of travel for the Nissan. In addition, they were found to be at an angle to the road showing that the Nissan was moving towards the offside verge at the point of impact. This indicated that the defender had swerved to the right (paragraph10.3). [37] At paragraph10.4 of his report Mr Parkin explained that the BMW had travelled a substantial distance up the road (in the direction of travel of the Nissan) but very little across the road (in its own pre-accident direction). The distance that the BMW continued in its original direction of travel reflects its own pre-impact speed. The distance that the BMW travelled in the Nissan Almera's original direction of travel is reflective of the speed given to it by the Nissan Almera, and therefore the speed of the Nissan Almera before impact. He concluded that the rest position of the BMW showed that before impact the BMW was travelling at a low speed. Further, the rest position of the Nissan is consistent with the slow speed of the BMW. The BMW has not given the Nissan much momentum in the direction of travel of the BMW. If it had been travelling at what he described as an appreciable speed both vehicles would have ended up a considerable distance into the field. [38] Mr Parkin drew attention to another indication that the BMW was travelling at a slow speed. The gouge marks showed that the defender had time to react and swerve. If the pursuer had emerged into the junction at a speed of, say, 30mph, he would have been in sight for about 0.5 seconds which is much too short a time for the defender to react and steer the vehicle to the impact position. [39] At paragraph 11.2.2 Mr Parkin stated that the BMW had travelled approximately 5.4 metres from the junction. At a standard acceleration rate of 0.15g, it would have taken 2.7 seconds for the BMW to reach the point of impact from a standing start. In evidence Mr Parkin said that the figure of .15g for acceleration rate is widely recognised and used extensively. At a constant 10 mph it would have taken 1.2 seconds for the BMW to travel to the point of impact from the give way line and 0.8 seconds at 15mph. [40] The speed of the BMW at impact did not necessarily indicate that the vehicle had stopped at the Give Way sign. It could have drifted into the junction at 10 mph or so. [41] At the time when he prepared his report Mr Parkin had misunderstood the position of the fixed point from which Constable Barr and Sgt Tait took their measurements. In the light of the evidence of Constable Barr, to which Mr Parkin was permitted to listen, Mr Parkin revised his analysis. He estimated that Constable Barr's reference point was three to five metres further south than he, Mr Parkin, had understood. This made much more sense. [42] Mr Parkin went on to explain at paragraph11.2.3 that the post-impact displacement of the BMW could be used to calculate the post-impact speed of the BMW. At paragraph11.2.4 he explained that the BMW had rotated in its journey to its rest position and had the appearance of having rotated clockwise 90º. In reality, because the impact was towards the front of the offside of the vehicle, the BMW had rotated counter-clockwise and therefore had rotated at least three-quarters of a revolution and perhaps one and three-quarter revolutions. In the course of rotation there would be times when the wheels would be free to rotate, during which there would be very little deceleration. There would be other times when the vehicle would be travelling completely sideways, during which the wheels could not rotate. This would give rise to deceleration equivalent to locked wheel braking. The overall deceleration of a vehicle rotating with unbraked wheels can be calculated by taking the sine of the angle of rotation and summing the result over many angle changes. The effect of this calculation was that a rotating vehicle decelerated at 64% of the level of a vehicle under locked wheel braking. In this particular instance the offside wheel was all but destroyed and therefore was not free to rotate. Because of this the BMW would have decelerated at a somewhat higher rate than the 64% used and using 64% will therefore tend to under-estimate the post-impact speed of the BMW and therefore the pre-impact speed of the Nissan. He went on to say at paragraph 11.2.6 that the coefficient of friction of the road surface for car tyres on dry tarmacadam is universally accepted as being between 0.7 and 0.8. This has been established by tests in which vehicles were skidded to a stop from known speeds and from skid tests performed at the scenes of accidents. Certain published data was appended to the report. In his report Mr Parkin had taken the displacement of the BMW as 36 metres. In the light of the evidence of Constable Barr the displacement should be recalculated as 32 to 34 metres. On these figures the speed of the Nissan at the point of impact would be 76 to 78 miles per hour. [43] In cross examination Mr Parkin accepted that a number of the figures which he had used were capable of being varied and would therefore give a different result. However, he stated that the figures which he had used were within reasonable ranges and that he had taken a cautious approach. He rejected any suggestion that a figure of .55 was more appropriate for the coefficient of friction. (If the coefficient of friction was reduced to .55 then the pre-impact speed of the Nissan would be 65 miles per hour.) This was a dry asphalt road. While wear of the road surface was a factor in calculating the coefficient of friction, the road surface of the C92a at the locus at the time of the accident was dry tarmacadam under normal conditions. He rejected any suggestion that gravel on the road surface would have any significant effect. When it was put to him that most of the rotation would be expected at impact, Mr Parkin rejected this proposition and explained that he would expect the vehicle to rotate in a linear manner. The broken wheel would prevent it from rolling along the ground. [44] At paragraph 11.3 Mr Parkin analysed what the effect would have been if the defender had been travelling at 60 miles per hour. He concluded that if the Nissan had been travelling at 60 mph the vehicles would have avoided each other and the accident would not have occurred. [45] Mr Primrose, on behalf of the defender, submitted that Mr Parkin's evidence as to the speed of the Nissan should be rejected. There were, he submitted, too many variables involved in the calculations. He was critical of the choice of a figure for the coefficient of friction. The figures in the published material related with one exception to theoretical testing rather than test on public roads. He also submitted that the presence of gravel on the road would affect the figure. Having regard to the published tables and the absence of any alternative evidence as to an appropriate figure I am prepared to accept Mr Parkin's evidence that for the vast majority of dry tarmacadam roads the figure of 0.7 - 0.8 is reasonable. There was no evidence to suggest that surface gravel would affect the figure to a significant extent and I am therefore prepared to accept the evidence of Mr Parkin on this matter. [46] Mr Primrose made some criticism of the figures chosen by Mr Parkin for the total weights of each car and its occupants. These were necessary in order to calculate the exchange of momentum. It has to be said that Mr Primrose did not press this criticism strongly and I am able to accept that the figures used by Mr Parkin were reasonable in the circumstances. [47] Next, Mr Primrose criticised the estimate of the distance between the point of impact and the reference point chosen by the police. Because he had misunderstood the position of that reference point until PC Barr gave evidence, Mr Parkin had to make that estimate from the photographs in the course of the proof. He did so under reference to photographs 4 and 8 of the photographs of the locus in 6/22 of process. Again I accept that his estimate of 3 - 5 metres was a reasonable one. [48] Mr Primrose was critical of the evidence as to the final resting places of the cars and of the evidence relating to the gouges in the road. I have already explained why I find that evidence acceptable. [49] Mr Primrose submitted that the speed of Nissan calculated by Mr Parkin was not consistent with the evidence of the defender. Nor was it consistent with the evidence of Sgt Tait who said that on the basis of his experience of accidents over 21 years, and the resting positions of the vehicles, he would estimate the speed of the Nissan prior to the accident as being not more than 60 mph. In assessing the value of this opinion it has to be borne in mind that Sgt Tait was not a member of the traffic department, he had no specialist training accident reconstruction and he did not hold himself out as an expert in accident reconstruction. Curiously, although Sgt Blacklock, who was a member of the traffic department, was present at the scene, he does not appear to have taken any part in the investigation into the accident. The reasons for this were not explored in evidence, nor was he asked for his opinion of the speed of the Nissan prior to the accident. [50] On the basis of the evidence of Mr Parkin I have come to the conclusion that the defender has significantly understated his speed. I note the differences in the estimates of speed given to the police on the night of the accident; to the solicitors and on record. The evidence of the reconstruction of the accident by Mr Parkin indicates that the defender was driving at a significantly higher speed. I hold on a balance of probabilities that he was driving in excess of 70 mph. He did so on a road which was subject to a speed limit of 60 mph. Furthermore, he did so in the knowledge that he was approaching a junction: there was a sign indicating the presence of a junction ahead; there were hazard lines in the centre of the road; he had seen the lights of a car approaching the junction. His evidence as to whether he reduced his speed on seeing the lights of the other car is contradictory and unreliable, but even if he did so, it would suggest that he was travelling at an even higher speed beforehand. [51] For the reasons set out above I prefer the opinion of Mr Parkin to that of Sgt Tait as to the speed of the Nissan prior to the accident. [52] Having found that the defender was travelling at a speed in excess of 70 mph, the question arises as to whether in the circumstances that was negligent and caused or contributed to the accident. [53] Before answering that question it is necessary to examine the position with respect to the pursuer. It is clear on the evidence that the pursuer drove from the minor road into the path of a car travelling on the road which had priority. In doing so he failed to keep a proper lookout. Miss Caldwell Q.C., who appeared on his behalf, did not seek to argue that no blame could be attached to the pursuer. [54] In addition, there was evidence relating to the use by the pursuer of a mobile phone. The defender said that in the course of the collision a mobile phone came from the other car and landed on Sharon McLean's lap. It was on and someone was screaming down the phone. They used the pursuer's phone to summon help. Sharon McLean confirmed that this had occurred. The pursuer accepted that in the car he did have a mobile phone which was held in a cradle attached to the windscreen. This meant that it was possible to talk on the phone without using hands. He thought that using the phone in this way would not interfere with his normal driving practice. He accepted that he may have been using the telephone at the time of the accident. While he did not think that he would be distracted by using the phone, he did accept in cross-examination that this could have been a reason why he was distracted at the junction. [55] It is not possible on the evidence to make a finding as to whether the pursuer actually stopped at the junction but I have held that he was travelling at a slow speed at impact, which was consistent either with the pursuer stopping or, at least, slowing down from normal driving speed to a low speed to approach the junction. The defender was approaching with his headlights on and was there clearly to be seen from a considerable distance. From all the evidence I infer that the pursuer misjudged the speed and distance of the defender's car. Further, I infer that the pursuer was to some extent distracted by his use of the mobile phone. [56] In my opinion the speed at which the defender approached the junction did contribute to the accident. He was travelling well in excess of the speed limit as he approached a junction which he knew to be there and which he knew was being approached by a car. Furthermore I accept the evidence of Mr Parkin that the accident would not have occurred if the defender had been driving at 60 mph. [57] I was referred to a number of cases dealing with the duty of a driver on the major road where a collision occurs between a car travelling on the major road and a car joining or crossing the major road. In particular I was referred to Walsh v Redfern 1970 RTR 201; Watkins v Moffat 1970 RTR 205; and Ramage v Hardy Bros 1968 SLT (N) 54. I did not find these cases to be of much assistance because there was no suggestion in any of these cases that the driver on the major road was travelling at excessive speed. Quite the reverse appeared to be the case. In the present case the defender was travelling at an excessive speed and having become aware of the presence of the pursuer's car on the minor road did not reduce his speed. In these circumstances there was, in my opinion, a combination of driving at excessive speed and failure to keep a proper lookout on the part of the defender.Contributory Negligence
[58] I have come to be of the opinion that both the pursuer and the defender are to blame for the accident and that therefore the pursuer contributed materially to the occurrence of the accident. In these circumstances the question of contributory negligence arises. [59] Miss Caldwell did not dispute that there was some fault on the part of the pursuer, but argued that it should not be assessed at more than 25% and that the defender should be held to be 75% to blame. She reminded me that in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945 the question is the extent to which the court thinks it just and equitable to reduce the pursuer's damages having regard to his share in the responsibility for the damage which he suffered. She referred me to Hardy v Walder 1984 RTR 312. In that case the Court of Appeal upheld the decision of Jupp J to apportion 2/3 blame to the motorcyclist travelling on the main road when he was in collision with a car which emerged from a minor road. 1/3 blame was apportioned to the driver of the car. The motor cycle was travelling at excessive speed and had overtaken on a blind corner. [60] Mr Primrose submitted that the pursuer was wholly to blame for the accident, but, that, if I was to hold that there was any contributory negligence, the defender should be held to be no more than 10% - 25% to blame and that contributory negligence should be assessed at a figure between 75% - 90%. He pointed out that in Hardy v Walder there was a finding that in addition to driving at excessive speed the plaintiff had overtaken on a blind corner. He referred me to Williams v Fullerton 1961 Sol Journal 280 where the apportionment of blame against the second defender was 25%. In that case the second defender was driving on the major road and failed to keep a proper lookout. The first defender drove across the junction at 30 - 60 mph. [61] I am satisfied that the assessment of contributory negligence proposed by Miss Caldwell is far too low. The pursuer drove from the minor road across the path of a car on the major road. The defender's car was there to be seen. The pursuer misjudged the speed and distance of the defender's car. The pursuer was using a mobile phone and was to some extent distracted by that. I accept the submission of Mr Primrose that in Hardy v Walder there was an additional factor that the motor cyclist on the major road had overtaken on a blind corner. Nevertheless, the defender was driving at a speed in excess of 70 mph as he approached the junction. In addition, not only was he aware of the existence of the junction, but also of the approach of the pursuer's car to it. In all the circumstances I consider that the pursuer's share of the responibility for the accident should be assessed at 2/3 and that the defender was 1/3 to blame for the accident.Result
[62] In these circumstances I shall sustain the pursuer's first plea-in-law, repel the defender's second, third and fourth pleas-in-law, sustain the defender's fifth plea-in-law and find that the agreed damages awarded to the pursuer should be reduced by 2/3 in terms of section 1 of the Law Reform (Contributory Negligence) Act. Accordingly, I shall grant decree for the sum of £68,333. For the purposes of the Social Security (Recovery of Benefits Act 1997 I find that the agreed sum of damages contains the following: loss of earnings during the relevant period 23 April 1999 to 23 April 2004 of £85,000 inclusive of interest.