Scottish Court of Session Decisions

On behalf of the pursuer and reclaimer it was submitted that there had originally been three grounds of fault of which two remained extant, namely, (1) a failure on the part of the coach driver Dirgan Ucar to brake and slow down in anticipation of an accident and (2) a failure on his part to take emergency action, including emergency braking, when the third and final incursion by the lorry onto the wrong carriageway occurred. Counsel maintained that the Lord Ordinary had misdirected himself on both these matters.

Counsel for the pursuer and reclaimer submitted that on this matter the Lord Ordinary had misdirected himself in every possible respect. It was submitted at one point that there was quite simply no acceptable evidence to the effect that, following the lorry's final incursion onto the wrong carriageway, the coach driver had taken any action whatsoever, either by slowing down or swerving to his right. In our opinion, however, the hearsay evidence of the coach driver himself, taken along with the evidence of Mrs Sopel and, it may be, parts of the evidence of Mrs Reilly, as also the evidence of the expert witness, Mr Mighal, fully entitled the Lord Ordinary, as the judge of first instance, to make these findings. At a later point in the submissions, however, the argument came to be that, even if there was evidence of a swerve and a slowing down, there was no evidence of "emergency braking" which, it was said, was in the circumstances obviously necessary. It is true that there was no such evidence and the Lord Ordinary is careful not to claim otherwise. For the rest, however, it is necessary to examine the last point canvassed in this reclaiming motion, namely whether the Lord Ordinary was correct in categorising the time available to the coach driver for taking avoiding action at this stage as "minimal". This description was said to be at odds with a period of three seconds identified by the Lord Ordinary at para 18 of his Opinion. Even allowing for reaction time it was submitted that that period should have allowed Ucar, through the use of emergency braking, to reduce the speed of the coach to such an extent as, on a balance of probabilities, would have avoided the accident which occurred and any serious injuries to the pursuer and other passengers in the coach. In this connection, the expert evidence relied on by counsel was to the effect that controlled emergency braking could have reduced the speed of the coach by 8.8mph for each second of braking although we have to note that that figure was thought to be on the high side by the defenders' expert, Mr Mighal. Counsel also relied on the fact that the collision was described by Mr Mighal as a "cross-corner impact" although, in that connection, it should again be noted that the degree of "overlap" between the two frontages was as much as 25%.