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Halliday v. Douglas & Anor [2004] ScotCS 96 (15 April 2004)

OUTER HOUSE, COURT OF SESSION

A4745/01

OPINION OF T G COUTTS, QC

Sitting as a Temporary Judge

in the cause

HAZEL HALLIDAY or MILLEN

Pursuer;

against

MARGARET BROWN DOUGLAS and ANOTHER

Defenders:

________________

Pursuer: Clancy, Q.C.; Drummond Miller, W.S., (for Blair & Bryden, Solicitors, Greenock)

Defenders: Mitchell, Q.C., Higgins; Bishops

15 April 2004

[1] On 6 October 1998 Brian Murphy was driving his brother and two friends, Mr Bissell and Mr Millen, whose widow is the pursuer in this action, south on the A92 road on the side of Loch Lomond south of Tarbet. The vehicle, a Nissan Bluebird motor car, registration number C59 JSU was fairly heavily laden, containing as it did the four men together with their fishing equipment. It was fitted with a tow bar. They had spent the day on Loch Awe. Just after 9.00pm on that fine, dark night Mr Murphy was approaching a junction on the trunk road giving an access to a guest house then known as Hollybank House and now as Bonnybank.

[2] The late Mr Douglas was driving his motor car, an Astra, registration F872 TAY northwards. At a point on or just north of the north part of the Y-junction leading to the said access road Mr Douglas' vehicle, having crossed onto the southbound carriageway collided with Mr Murphy's car, nearside to nearside. Mr Murphy had at the very last moment braked and swerved to his right. The impact between the vehicles was very severe. The Astra was turned around and ended facing south near to a give way sign which had been placed for traffic emerging from the side road. The sign was on an island in the centre of the exit from the side road.

[3] The impact was sufficiently severe for the nearside front wheel of the Astra to be pushed towards the rear wheel by 1.35 metres. The damage to the Nissan involved the front nearside being crushed and pushed back 70 cms towards the passenger compartment crushing the front nearside floor panel and sill, pushing it 33 cms into the underside of the front passenger seat. Photographs were produced to the Court which illustrate the dramatic damage, although the photographs also showed damage caused by the rescue services extracting the dead and injured. That collision killed Mr Douglas and Mr Murphy's front seat passenger, Mr Millen, and injured the remaining passengers. All had been wearing seatbelts.

[4] On the face of it a vehicle colliding in the way above described on the wrong side of the roadway would require an explanation. That explanation is found in the earlier collision between the Astra and a stag. Counsel were agreed that the issue for the Court was whether the earlier collision was due to the negligence of Mr Douglas.

[5] Beside the pole at the Y-junction at the end of the side road and close to the rest position of the Vauxhall Astra a large dead stag lay on the kerb. The stag's head was pointing in an easterly direction. The front of the Astra showed evidence of a collision with the stag with hair being left across the front section. The photograph of the stag does not indicate any particular injury although a scuff mark extended along the roadway southwards in a south-easterly directly from the dead stag for a distance which, on the scale plan produced by the police, appeared to be 7 metres long commencing halfway across the bell-mouth of the junction on the double lines indicating the extended verge of the main road. The only other marks on the roadway were gouge marks caused by the vehicles at impact. There were no marks of braking or scuff marks anywhere on the sound, dry road surface.

[6] A debris field was found containing glass and indicator fragments extending from about the centre of the northbound carriageway to the edge of the rescue lane for vehicles turning right into the road to Hollybank House. The police measurements indicated that this area of debris commenced some 45 metres south of the entrance to Hollybank House. It was not clear however from what point on the entrance to Hollybank House that measurement was taken.

[7] That debris field would indicate that about a metre or so south of its commencement a collision had occurred between the stag and the Vauxhall Astra. The stag's journey ended when it hit the roadway on the offside of the vehicle. There were no deer fences on the roadway.

[8] The evidence of Constable Jamieson about the layout of the roadway was translated onto a scale plan. He gave as his opinion that during the hours of daylight drivers of northbound vehicles, such as Mr Douglas had a clear, unobstructed view for 300 metres on the approach to the locus of the incident and that southbound vehicles have a similarly unobstructed view. At night ,when dark, the driver's view would have been restricted only by the throw from the vehicle's headlights.

[9] The above narration contains the only certain items of evidence.

[10] There was evidence from the driver of the vehicle, Mr Murphy, and one of his passengers, Mr Bissell. Mr Murphy told the court that he had a clear and precise recollection not only of the events surrounding this accident but indeed of any event in which he was involved. His evidence was that he had been travelling southwards at about 50 mph. He knew that, because that was his average speed. When approaching the junction he saw "away in the distance" a big deer which he said was 300-350 yards away. He noticed lights behind the deer through the trees. He said in evidence that the big deer was on the other side of the road (i.e. the west), it was trotting across to the other side of the road and when he noticed the deer it was on the side of the road for traffic going north, and facing west. He then said it was just moving slowly but was clear that it was on the northbound side. It was then that headlights "came around". He said that Mr Millen had noticed it and commented that that was "one for the pot". He was, he said, driving on full beam which in his case, despite the load at the back of his vehicle, meant utilising the highest angle of his lamps. There were three positions for headlamps controlled from the inside of his vehicle. He chose to use the highest. That would give him a long view in certain circumstances even if it might be thought to be inconsiderate, having regard to his load, to approaching drivers. He said that the lights of the Astra were coming towards him on main beam, that he dipped his lights, that the Astra driver did not, that he then flashed 3 or 4 times until the Astra did dip its lights. All this was after he had seen the stag but he did not give any evidence that he had seen the stag after he began flashing his lights. The oncoming car dipped its lights then after a second there was nothing. The Astra had been a second on dip. The next thing he saw was the car approaching him on his side of the road so he swerved to the right. He said he hammered on the brakes but, presumably, too late to leave a mark on the roadway. He had spoken to the constable at the scene. In cross-examination he reaffirmed that the flashing was not done in order to warn the approaching driver about the deer. That was all done after he had seen the deer. He had thought the deer had left the road. I formed the view that Mr Murphy, after being involved in a dreadful accident over 5 years before the proof did not have such a reliable or precise recollection of minutiae as he professed. The relevant events before the collision occupied a very short space of time and his attention had not been focused on any danger to him. That is fully understandable and it was not, and could not reasonably have been suggested that he was attempting to mislead.

[11] His passenger, Mr Bissell, did not see a stag although he remembered a conversation about the approaching car using full beam headlamps and comments about the deer. In cross-examination he affirmed that the comments about the deer were "a little time" before the comments about the lights.

[12] The only evidence about the pre-accident position of the deer was the above. The expert witnesses, no doubt from precognition, and the constable, from speaking to Mr Murphy, all seemed to be of the view that the deer had emerged from the lochside, i.e. the east, and had gone across the roadway to the west. In particular, Mr Sorton, who gave evidence about accident reconstruction, in his report stated "it is acknowledged that the deer was moving from east to west when impact took place". In evidence there was no such acknowledgement nor indeed any evidence that at impact the deer was moving from east to west. Mr Sorton when dealing with the matter of an object being thrown after it collided with a car, indicated that if the deer had been thrown by the Astra there would have been a west to east component. He said that but for the evidence of the witnesses he would have assumed that the deer had been travelling west to east.

[13] Again the estimates of distance, time travelled and visibility to the points of impact enjoyed by the respective drivers depend upon the evidence of Mr Murphy. In his closing submissions, counsel for the pursuer said that he did not rely on Mr Murphy about distances, only as to the evidence of the sequence of events, and acknowledged the difficulty in the evidence about the matters of timings discussed below.

[14] Constable Jamieson said that due to the absence of suitable evidence he was unable to calculate the pre-impact speeds of the vehicles involved; a proper, cautious approach.

[15] The two witnesses professing road traffic accident reconstruction expertise who gave evidence were at odds on distances, times and visibility. They did agree, however, that in view of the damage sustained by the vehicles and in all the circumstances the impact speed was about 80 mph. They were unable to distinguish which vehicle might have been travelling faster than the other. The Nissan was a much heavier vehicle and would inflict more damage unless the speed of the Astra was so great as to explain the collision. Neither thought that the latter was the case.

[16] Constable Jamieson and Mr Warren, the defender's expert, took the view that the stag had been carried some distance by the Astra before leaving it and hitting the roadway. Mr Sorton at first disputed that assumption in its entirety, but had to concede in cross-examination that there would have been at least some carry and that the deer would not have been thrown by the immediate impact. He produced a report which depended upon published calculations of throw distance from which he purported to derive possible speeds. These calculations were not based upon an animal of the size or weight of the stag. I am unable to accept that there was a simple throw particularly as the throw would have been in a direction which was contrary to that assumed by Mr Sorton given his assumption that the deer had been moving east to west. Mr Sorton sought to explain that in some measure by deducing that the deceased must have steered to his right. That however would not have accounted satisfactorily for the final position of the deer. All those involved in the reconstructions tended to the view that after the Astra collided with the stag Mr Douglas was incapable of taking any voluntary action. That would explain the lack of any retardation marks on the roadway and would indicate that the Astra proceeded at the speed of impact less some small rate attributable to the actual collision. Had the Astra been braked at impact and braking continued the deer would in fact have been thrown immediately according to Mr Sorton, whose evidence on that matter can be accepted.

[17] Various calculations were attempted involving distances and assumed speeds but I could find no specific foundation in evidence for any assumption of speed other than that of Mr Murphy who said that he had been going about 50 mph when he saw the stag and about 45 mph at impact. If that be correct, and there is no certainty of this, the Astra was travelling at 35 mph or thereby at the impact with the Nissan. Attempts were made to calculate in seconds the time taken for the stag to cross the road if it was walking, the time between Mr Murphy seeing the stag, then the lights, then dipping then flashing, but all ended in confusion. There were, as Mr Sorton said, "too many seconds", for satisfactory estimates to be given.

[18] Acknowledging these difficulties, counsel for the pursuer submitted that if the court accepted the sequence of events spoken to then there was a timescale which would have given the deceased time to have observed the stag and take avoiding action. On one possible reconstruction of events that argument has some force, however it would depend upon the stag being visible and in the pathway of the Astra for sufficient time for that to have taken place. The only eye witness said the stag was moving to the west and was on the northbound carriageway. He did not see it again and the next event was the darkness caused by the collision with the stag after Mr Douglas had dipped his lights. What the stag had done in the meantime and how far away Mr Douglas was when the stag was seen by Mr Murphy or by Mr Millen is pure speculation. The movement of the stag, or lack of it, and its direction is of critical importance to all the calculations made by the experts in relation to the amount of time available for Mr Douglas to see the stag.

[19] There is what was described by defenders' counsel as an evidential vacuum. I cannot resolve it one way or the other and cannot find that the deer was in such a position that Mr Douglas, on the balance of probabilities, must have seen it in sufficient time to take avoiding action. That he took no avoiding action at all except perhaps to deviate to his offside indicates to me that the matter of the deer being visible in his path was sudden rather than something observable over a long number of metres. I could find nothing inconsistent with the idea that he might have swerved to the offside if the deer had come across his path from his nearside but in any event a driver's actions in such circumstances cannot be weighed too finely or accurately calculated without the assistance of any witness. It would be wrong to make any assumption that Mr Douglas was driving carelessly.

[20] The death of Mr Millen is one of these extremely unfortunate events for which there is not sufficient evidence to attribute blame to anyone. That, I note, was the view taken by Constable Jamieson at the time. He said in the conclusion of his report, and in evidence, that after careful consideration of the circumstances he was of the opinion that no blame can be apportioned to either Mr Douglas or Mr Murphy. I agree and unless there is such blame the pursuer cannot succeed.

[21] I shall accordingly sustain the defenders' second and third pleas-in-law, repel the pursuer's pleas and grant decree of absolvitor.