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Duncan v. Walshe & Anor [2005] ScotCS CSIH_49 (17 June 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Kingarth

Lord Kirkwood

[2005CSIH49]

A1178/02

OPINION OF THE COURT

delivered by LORD OSBORNE

RECLAIMING MOTION

SUSAN JEMIMA DUNCAN, Executor dative of the late PETER GRANT DUNCAN

Pursuer and Respondent;

against

(FIRST) MARK MARTIN WALSHE and (SECOND) WHITTLE MOVERS LIMITED

Defenders and Reclaimers:

_______

Act: McEachran, Q.C., McCall; Russell Jones & Walker (Lefevre Litigations, Aberdeen) (Pursuer and Respondent)

Alt: Armstrong, Q.C., Cruickshank; The Anderson Partnership (Defenders and Reclaimers)

17 June 2005

The background
[1] On 27 May 1997 at about 1.40 p.m., the late Peter Grant Duncan, hereafter referred to as "the deceased", was riding his motorcycle northwards on the A92 road between Arbroath and Montrose. The motorcycle was a 600cc Honda of registration number H660 USA. The road along which the deceased was riding took the form of a single carriageway approximately 7.4 metres wide, with centre line markings separating the traffic lanes. It was subject to a speed limit of 60 mph. Located on the west side of the road was a junction between the A92 road and a minor road leading to Parkhill. At the material time, the first-named defender was driving a Leyland Daf articulated lorry, of registration number J123 FJX, southwards along the A92 road, in the course of his employment with the second-named defenders. Just prior to the accident, to which we shall refer, the deceased had been proceeding along a continuous left hand bend, which straightened and thereafter curved in a sweeping right hand bend past this junction. The lorry being driven by the first-named defender, a large box van articulated unit and cab, was about 16 metres in length and 2.5 metres in width. The first-named defender had formed the intention of turning right at the junction, thus leaving the A92 road. The lorry driven by the first-named defender slowed down in the vicinity of the junction, after which it turned right to enter the minor road. From his position opposite the mouth of the junction on the southbound carriageway, the first-named defender had an unrestricted view to the south of about 280 metres. In turning as described, the lorry momentarily blocked the entire width of the carriageway of the A92 road. While the turning manoeuvre was being undertaken, the motorcycle ridden by the deceased collided with the trailer of the lorry when the motorcycle was in a position close to the centre line of the road. As a consequence of the collision, the motorcycle was damaged and the deceased sustained very serious injuries.

[2] In this action, originally raised in the Sheriff Court at Arbroath, the deceased was the pursuer. He sought damages for the injuries sustained by him. On 9 April 2002 the action was remitted to this court by the sheriff. The deceased claimed that the accident had been caused by the fault and negligence of the first-named defender, for whose actions in the course of his employment with them the second-named defenders were responsible. The case made was that the first-named defender had failed to keep a good look-out; that he had driven into the path of the oncoming motorcycle; that he had caused or allowed the lorry to cross into and remain on the carriageway reserved for other road users, when it was not clear and was unsafe for him to do so; that he had failed to give way to vehicles proceeding along that carriageway, including that of the deceased; that he had failed to stop and wait until the deceased's motorcycle had passed before attempting to turn right across the carriageway; and, on the assumption that the first-named defender had not seen the deceased until after he had commenced his turn, he had failed to stop his vehicle and to allow the deceased to pass prior to continuing his turn into the junction.

[3] A case of contributory negligence was pled by the defenders. It was said that the deceased had failed to keep a proper look-out; that he had failed to drive his motorcycle in a safe and proper manner and at a reasonable speed and to keep it under proper control; that he had failed to refrain from driving it at an excessive speed; and that he had failed to drive it at a speed at which he could stop the motorcycle safely within the range of his vision.

[4] In due course, a proof was heard by the temporary Lord Ordinary who, on 8 July 2003, sustained the first plea-in-law for the pursuer, repelled the first, second, third, fourth and fifth pleas-in-law for the defenders and decerned against them for payment to the pursuer of the sum of £727,027 as damages. The temporary Lord Ordinary's decision involved the rejection of the defenders' plea of contributory negligence. Subsequent to the decision of the temporary Lord Ordinary, the deceased died on account of causes not directly connected with the accident. Thereafter the present pursuer was sisted as pursuer in his place, having been confirmed as his executor-dative.

The decision of the temporary Lord Ordinary
[5] The temporary Lord Ordinary describes in his Opinion the sources of evidence available to him. The deceased, who was the pursuer at the time of the proof, had given evidence on his own behalf, although he had had no memory of the accident or of the day of it before regaining consciousness in hospital. There were two potential eye-witnesses to the accident, a Mrs. Jean Findleton and Mrs. Lynn Cameron. The former lived at Corner Cottage, which faced directly onto the A92 road and was immediately adjacent to the north side of the minor road leading to Parkhill. The latter worked in stables on the opposite side of the A92. At the time of the accident they had been chatting at the front gate of Corner Cottage. Mrs. Findleton had been standing in her garden looking out over her fence to the A92 and beyond, while Mrs. Cameron had been standing outside the fence looking in towards Mrs. Findleton and her cottage. Evidence was also led from a Mr. Thomas Berry, who had been a passenger in a car being driven northwards on the A92 by a Mrs. Pauline Morton. Her car had been overtaken by the deceased on his motorcycle shortly before the accident occurred. Evidence had also been led for the pursuer from Mr. Paul Riley, who had investigated the circumstances of the accident and who had given evidence as an expert in road traffic accident investigation. Evidence for the defenders had come from a Mr. William Collins, who had been the first-named defender's "mate" and had been sitting in the passenger seat in the cab of the lorry, from P.C. William Strachan, who had been one of the first police officers to attend the scene of the accident, and from Dr. Hugh Barron, who was an experienced and well qualified road traffic accident investigator. P.C. Strachan had not been one of the accident investigation officers; his time at the locus had been comparatively brief. He had identified and obtained brief details from potential eye witnesses and had then left the scene to provide a police escort for the ambulance which took the pursuer to hospital. A joint minute was entered into agreeing the findings and conclusions of a P.C. John Alexander of the Tayside Police Accident Investigation Unit, who had attended at the locus very shortly after the accident and had recorded the real evidence at the scene. The temporary Lord Ordinary also indicates that there were available at the proof two documents entitled "Witness Statements", which bore to be statements taken by a Mr. William Percy, a self-employed enquiry agent, from Mrs. Pauline Morton and Mr. Thomas Berry. Mr. Percy, who had been led as a witness, explained how he had taken the witness statement from Mrs. Morton. In her witness statement, Mrs. Morton described being overtaken by the pursuer on his motorcycle and then arriving at the scene of the accident and seeing the pursuer being thrown through the air towards the grass verge. She stated that she did not see the impact and estimated that she was no more than 100 metres from the accident when she saw the pursuer being thrown through the air. Neither Mrs. Morton herself nor the first-named defender gave evidence at the proof.

[6] The temporary Lord Ordinary summarises the facts which he found to be established. The driving conditions on the day of the accident were ideal. The deceased's home had been in Arbroath but his principal place of work was in Montrose. He was familiar with the A92 road between Arbroath and Montrose. On the day of the accident he had been travelling from his home to his place of work to collect certain items before a period of work off-shore. The first-named defender had been driving northwards on the A92 towards Montrose, but had missed a diversion for tall vehicles and, at the time of the accident, had been heading south on the look-out for a suitable spot to turn his articulated lorry in order to continue his journey north. When P.C. Alexander attended the locus, he found fresh score marks on the southbound carriageway. He also found an area of dust which would probably have been dislodged from the wheel arches of the articulated trailer. From these score marks and the dust residue found on the road surface, it was possible to determine that the probable point of impact was near the centre line of the A92 at the junction with the Parkhill road, but on the southbound carriageway. The articulated trailer had two axles and the impact appeared to have been to the nearside of the trailer close to the centre of the two axles. The tyre of the outer wheel on the leading axle had been damaged as had the skin of the trailer close to the second axle. It was probable that the deceased's motorcycle caused the damage to the tyre and the pursuer himself struck the side of the trailer. There were no skid marks on the road surface, but it was probable that the pursuer had braked before the collision occurred. As the articulated lorry turned into the Parkhill road, the trailer had blocked the A92 road, not at right angles, but at an oblique angle. This meant that when the pursuer himself struck the side of the vehicle, he struck it something of a glancing blow so that he was deflected sideways and landed on the verge. His motorcycle had struck the wheel and bounced back so that it had ended up on the southbound carriageway. The temporary Lord Ordinary holds that the pursuer's probable speed at the time of impact was about 40 mph. At that speed the pursuer's body would have undergone a "deceleration of about 30 mph" because of the angle at which he struck the trailer. If the impact speed had been 50 mph, the deceleration undergone by the pursuer would have been about 40 mph and it was unlikely that he would have survived such deceleration. Although there was a bell mouth at the junction of the Parkhill road and the A92, the former was very much narrower than the main road. The A92 was 7.4 metres wide whereas the Parkhill road was 3.5 metres wide. There was a small service road which ran almost parallel to the A92 and in front of Corner Cottage. This service road could be accessed at its south end from the Parkhill road. At its northern end it was separated from the A92 by a small area of rough ground. As the A92 approached the Parkhill road from the south, there was a gradual curve to the left followed by a similar curve to the right. There was a bank of trees lining the road on its east side and comparatively open ground to the west, but with one substantial bush or tree on the west side approximately 80 metres south of the junction with the Parkhill road. For a vehicle on the southbound carriageway waiting to turn right into the Parkhill road, there was a clear line of sight southwards along the A92 for approximately 280 metres. Conversely, such a vehicle would be visible to a northbound driver on the A92 from approximately 280 metres south of the junction. The view that Mrs. Findleton and Mrs. Cameron would have had looking southwards along the A92 would have been restricted by the presence of the isolated bush or tree on the west side of the road to a distance of probably about 200 metres.

[7] After giving a detailed account of the evidence which he had heard, the temporary Lord Ordinary describes his assessment of it. He found himself unable to accept the evidence of the deceased that he never drove at more than 60 mph and that he overtook vehicles slowly, since that had been contradicted by Mr. Berry. However, he makes clear that he did not infer that the deceased was likely to have been driving at more than 60 mph as he rounded the left hand bend before the accident.

[8] The temporary Lord Ordinary gave careful consideration to the evidence of Mrs. Findleton, the results of which are set out in paragraph 29 of his Opinion. Although he had certain qualifications to express in relation to her evidence, he states that, in relation to the crucial fact of the defenders' lorry having turned across the path of the deceased's oncoming motorcycle, her evidence was clear and unshakeable. She had indicated that the picture of the lorry turning across would stay with her. She had had a clear view of what she described in her evidence. She had seemed to have had no doubt about what she had seen. Her evidence had been of first hearing the motorcycle, then seeing it and finally seeing the lorry signalling to turn right and then cutting across in front of the motorcycle. The temporary Lord Ordinary considered her evidence to be entirely consistent. He considered that it was significant that, because of her angle of view and the presence of the large tree or bush, the deceased's motorcycle would not have been visible to her until fractionally later than it would have been visible to the first-named defender. Her evidence that she did not think that the speed of the motorcycle had been excessive had not been challenged in cross-examination.

[9] The temporary Lord Ordinary found that Mrs. Cameron's evidence had been given with some diffidence. Her recollection had been limited to hearing the noise of the motorcycle, glimpsing it for a split second before looking back towards Mrs. Findleton and then hearing the sound of the collision. She had been unable to remember having seen the defenders' lorry before seeing the motorcycle. He found that nothing in Mrs. Cameron's evidence was inconsistent with the evidence of Mrs. Findleton who, by virtue of the position where she had been standing, had had a better view of the A92 road in both directions. As regards Mr. Collins, the temporary Lord Ordinary did not find him to be a reliable witness. He had been lying back in the passenger seat of the cab of the lorry prior to the accident and not paying particular attention to what had been going on. From Mr. Collins' demeanour in the witness box and the manner in which he gave his evidence, the temporary Lord Ordinary was not convinced that he was telling either the truth or the whole truth. The temporary Lord Ordinary was satisfied that Mr. Berry had been attempting to give honest evidence to the best of his recollection. However, he had accepted that he had had difficulty in recollecting the precise details of what had occurred. He had been the passenger in Mrs. Morton's car and not paying particular attention to what was going on around him. He had given evidence about Mrs. Morton's car and the car in front of it being overtaken by a motorcycle. He had thought that their own speed had been about 50 to 55 mph. He had thought that the motorcycle was travelling "a fair bit faster", but had had some difficulty in identifying the position where the overtaking manoeuvre had taken place. The temporary Lord Ordinary observes that the fact that his attention had had to be drawn to the accident by Mrs. Morton, because he was concentrating on something else in the car, raised a doubt as to how long his attention had thus been distracted and how reliable his estimate might be of the precise point at which their car was overtaken by the pursuer's motorcycle.

[10] As regards the weight to be given to Mrs. Morton's written statement, she not having given evidence, the temporary Lord Ordinary states that he would have been most reluctant to find any fact established on the basis of Mrs. Morton's written statement, or her oral statement to Dr. Barron. Having regard to the contents of her written statement to the effect that, as she approached Tarriebank Residential Home, she heard a motorcycle coming up behind her and saw it approaching the rear of the car or cars behind her and having regard to her own speed of 55 to 60 mph, the temporary Lord Ordinary concluded that her car would not have been overtaken by the pursuer until some distance north of that Home. Thus the temporary Lord Ordinary concluded that Mr. Riley's evidence about the position where Mrs. Morton's car was overtaken was incorrect. There were discrepancies between Mr. Berry's evidence and Mrs. Morton's statement regarding the distance of her car from the scene of the accident about the time when it occurred.

[11] The temporary Lord Ordinary describes the evidence given by the experts Mr. Riley and Dr. Barron in paragraphs 20 to 27 of his Opinion. Suffice it to say that both Mr. Riley and Dr. Barron carried out a number of detailed time-speed-distance calculations in an attempt to reconstruct what might have happened in the seconds immediately preceding the collision. There was no significant difference or conflict between their respective calculations. The differences between their evidence were attributable to their input data rather than any subsequent calculations. Both had considered two distinct reconstruction methods. The first was to estimate the time that it would have taken for the defenders' articulated lorry to move from a position facing south on its own side of the road at a point opposite the Parkhill road junction to the point at which the collision must have occurred with the cab of the lorry into the Parkhill road and the articulated trailer straddling both carriageways. Having estimated that time it was then possible to predict how far south of the junction the pursuer's motorcycle would have been if it had been travelling at any given speed and hence whether it would have been visible to the first-named defender. Mr. Riley had made calculations for assumed speeds of 60 and 70 mph. The calculation could be further refined by allowing for reaction time and deceleration to an assumed impact speed of about 40 mph. Dr. Barron had assumed that the pursuer was not visible to the first-named defender when the latter commenced his turn and then calculated the speed required to cover the appropriate distance in the estimated time. The other reconstruction technique involved identifying the point at which the pursuer's motorcycle had overtaken Mrs. Morton's car, identifying the point from which Mrs. Morton saw the accident happening or just having happened and calculating the speed of the pursuer's motorcycle from the known speed of Mrs. Morton's car. Mr. Riley had seen a video prepared by the defenders showing an actual reconstruction of the turning manoeuvre believed to have been in the course of being executed by the first-named defender at the time of the collision. He had demonstrated that if the defenders' lorry had taken between 5 and 7 seconds to move from a position of rest on its own side of the road to its position at the time of the collision and if the deceased had been approaching at a constant speed of 60 or 70 mph it could be deduced that his motorcycle would have been visible to the first-named defender at the time when he commenced his right turn manoeuvre. Modified calculations might be made if the lorry had not come to a complete halt before turning right, also making allowance for reaction time and braking, which was known to have been carried out by the deceased prior to the accident; in that event, the conclusion would have been that the distance travelled by him as the lorry turned right would have been reduced.

[12] While Dr. Barron had been in broad agreement with the estimate of time taken for the defenders' lorry to move from its own side of the road to its position at the time of collision, he had assumed that the first-named defender had commenced the turn when it was clear to do so and when the deceased and his motorcycle were not yet in sight. He then calculated the speed necessary for the deceased to have covered the 280 metre sight line in 6 seconds, reaching a result of an average speed of 104 mph. Other alternative calculations had been proffered, made by reference to the point at which Mrs. Morton had pointed out to him that she had been overtaken by the motorcycle.

[13] The temporary Lord Ordinary discusses the calculations to which we have referred at paragraphs 36 to 38 of his Opinion. He concluded that two of the three pieces of information required by Dr. Barron for his calculation of the deceased's speed prior to the accident could not be determined with any degree of certainty. With regard to the calculations carried out by both experts, based on the time taken by the first-named defender to turn his lorry into the position where it blocked the entire width of the carriageway, the temporary Lord Ordinary found himself unable to determine with any confidence how long that operation might have taken. While he recognised that the reconstruction video demonstrated satisfactorily that 6 seconds would be about the right time for a reasonably cautious driver of a similar vehicle who knew where he was going, as the driver in the vehicle in the reconstruction did, the difficulty for him was that, in the absence of evidence from the first-named defender, there was no basis for a belief that he did know where he was going, or what further manoeuvre he intended to carry out, or that he had ever driven into the Parkhill road before. He might have been making the turn extremely cautiously and he might have had second thoughts about how far into Parkhill road to drive. In any event, he considered that it was likely that the first-named defender had been concentrating more on the Parkhill road than on oncoming traffic on the A92. While he doubtless had checked that the road ahead was clear initially, he might well have paid more attention to the Parkhill road thereafter and before commencing his turn, without rechecking for oncoming traffic. The temporary Lord Ordinary concluded that, in the absence of evidence from the first-named defender and reliable evidence from Mr. Collins, he could find no reason to disbelieve the evidence of Mrs. Findleton. He observes that, if the first-named defender's crossing manoeuvre immediately prior to the accident had taken between five and seven seconds, then Mr. Riley's calculation of the distance travelled by the pursuer at 60 or 70 mph would corroborate Mrs. Findleton's evidence. Dr. Barron's estimate of the deceased's speed based on a turning time for the defenders' lorry of about 6 seconds presupposed that the road ahead was clear when the first-named defender commenced his turn. That supposition could only be made if Mrs. Findleton was wrong and if Mr. Collins' evidence was to be accepted. The temporary Lord Ordinary could find no reason in the other evidence to reject Mrs. Findleton's evidence, or to accept that of Mr. Collins. Accordingly he found no basis for Dr. Barron's estimate of the deceased's speed of between 89 and 125 mph based on a turning time of about 6 seconds.

[14] In paragraph 39 of his Opinion the temporary Lord Ordinary explains his decision. He observes that, in order to succeed, the deceased had to prove, that the first-named defender performed his right turn manoeuvre when it was not clear or safe for him to do so. In his opinion, he had succeeded in that proof. He accepted the evidence of Mrs. Findleton that the first-named defender drove his lorry across the path of the deceased's oncoming motorcycle. Accordingly he found that the first-named defender was at fault. So far as the plea of contributory negligence was concerned, the temporary Lord Ordinary stated that it could be sustained only if the defenders had proved that the deceased had been driving at an excessive speed, namely at a speed at which he could not stop his motorcycle safely and within his range of vision and that that failure had materially contributed to the accident and the injuries sustained by him. The temporary Lord Ordinary's conclusion was that the defenders had failed to prove excessive speed on the part of the deceased. While he might have exceeded 60 mph when overtaking three or four cars in the straight stretch of road before the gradual left hand bend on the approach to the Parkhill road junction from the south, they had failed to prove that his speed was excessive or in any way inappropriate over the 280 metres immediately to the south of the junction. Even if the temporary Lord Ordinary had been wrong about that, he considered that the defenders had failed to prove a causal connection between the deceased's speed and the occurrence of the collision, or the severity of his injuries. He observes that the defenders had perilled their case on the evidence of Mr. Collins and the supposition that the deceased must have been travelling at at least 90 mph when he came within sight of the junction. In order to do that, they had to overcome the evidence of Mrs. Findleton which, in his opinion, they had failed to do.

Submissions of the reclaimers
[15] Counsel for the reclaimers moved the court to repel the first plea-in-law for the pursuer and sustain the second, third and fourth pleas-in-law for the defenders and to recall the interlocutor of the temporary Lord Ordinary. Alternatively, a finding of contributory negligence was sought. At the outset, it was made clear that the reclaimers would make no submission based on calculations regarding the speed of the motorcycle from the time that the deceased overtook Mrs. Morton's car. Furthermore, it was made clear that the only challenge that there would be to the temporary Lord Ordinary's findings would relate to his acceptance of the evidence of Mrs. Findleton. His assessment of the credibility and reliability of other witnesses would not be challenged. In that connection, it was submitted that the temporary Lord Ordinary had failed to have full regard to the whole of Mrs. Findleton's evidence; much of the material in cross-examination had been ignored. However, it was accepted that her observations concerning the speed of the motorcycle prior to the collision had not been challenged in cross-examination. Counsel for the reclaimers recognised that it had been unfortunate that evidence had not been led from the first-named defender. The explanation for that had been that he had been cited at his last known address, but had moved from there. He no longer worked for the defenders. Attempts had been made to trace him to no avail.

[16] The main submission to be made on the reclaimers' behalf was that Mrs. Findleton had been wrong in her testimony. What she said she had seen could not have happened. It was inconsistent with Mrs. Cameron's evidence, with the evidence of P.C. Strachan and the calculations of the experts. Having regard to these other sources of evidence, the proper conclusion was that she was an unreliable witness. If that was correct, then there was no evidence on which the Lord Ordinary could have relied in order to find for the pursuer.

[17] After outlining the position of the reclaimers, counsel set forth four formal propositions. First, he submitted that the temporary Lord Ordinary had erred in placing reliance on Mrs. Findleton. He had not taken advantage of seeing and hearing the witnesses at the proof. When account was taken of speeds and prospective distances, it was clear that what she said she saw happen could not have happened. Secondly, this court was entitled to review the evidence because there was no challenge to the findings of the temporary Lord Ordinary in respect of the other witnesses. This court was not at a disadvantage. Only Mrs. Findleton's evidence required to be reassessed in relation to reliability, but not credibility. Thirdly, the court ought to disturb the findings of the temporary Lord Ordinary in respect of Mrs. Findleton by finding her to have been an unreliable witness. In doing so, the court ought to conclude that the pursuer had failed to discharge the onus of proof and that therefore the reclaimers should be assoilzied. Fourthly, upon the assumption that the third proposition was wrong, a finding of contributory negligence to the extent of 50% ought to be made.

[18] Counsel for the reclaimers next referred to two authorities, which he contended were of assistance. The first of these was Morrison v. J. Kelly & Sons Limited 1970 S.C. 65. That case demonstrated that a judge of first instance had to give adequate and sufficient reasons for a decision based on his assessment of the evidence of witnesses. Without justification, such a judge was not entitled to accept the evidence of one witness, yet reject a body of inconsistent evidence. The temporary Lord Ordinary in the present case had fallen into error in this regard; he had proceeded only on part of the testimony of Mrs. Findleton, which stood entirely on its own. Reliance was also placed on Thomas v. Thomas 1947 S.C. (H.L.) 45, which disclosed the circumstances in which an appeal court was justified in disregarding the conclusions of a judge of first instance on fact.

[19] At this point in his submissions, counsel for the reclaimers embarked upon a detailed examination of the evidence of Mrs. Findleton, Mrs. Cameron, Thomas Berry, P.C. William Strachan, Mr. Paul Riley and Dr. Hugh Barron. He then went on to submit that the temporary Lord Ordinary had rejected almost all of the evidence other than a part of the evidence of Mrs. Findleton. In doing so he had failed to take account of (1) certain other parts of Mrs. Findleton's evidence; (2) the calculations of the expert witnesses; and (3) the evidence of other witnesses in the case. Developing these points, he submitted that the temporary Lord Ordinary had ignored the evidence of Mrs. Findleton concerning the position of the motorcycle when the lorry commenced its turning manoeuvre; also where she had first seen the motorcycle. As regards the results of the calculations, the temporary Lord Ordinary had, without justification, rejected the evidence of Dr. Barron that the turning manoeuvre of the lorry took 6 seconds, although that time had been derived from the reconstruction of the manoeuvre at the locus, which had been accurately timed. However, counsel did accept the point made by the temporary Lord Ordinary in paragraph 37 of his Opinion, based on the unfamiliarity of the first-named defender with the junction.

[20] Counsel for the defenders went on to consider the implications of certain the calculations made by Dr. Barron and Mr. Riley. There were five of these calculations in all. They proceeded upon the assumption, supported in evidence, that the speed of the motorcycle at the point of impact was around 40 mph. It was also presumed that the turning manoeuvre of the lorry into the Parkhill road would have occupied about 6 seconds. A further factor introduced into the calculations had been that the lorry began to execute the turning manoeuvre at a time when the motorcycle had been about half way to the junction from the bush on the west side of the A92 road, a feature evident in several photographs produced. The position of this bush in relation to the junction between the A92 road and the Parkhill road had been measured and found to be 80 metres distant. The point of impact between the motorcycle and the trailer of the lorry had also been taken into account, a matter about which there was substantial agreement. Further, an assumption was made about the speed of the motorcycle when the lorry started to turn. Initially this was assumed to have been not less than 60 m.p.h. The material used also included figures for the distance covered by a motorcycle at different speeds per second, found in the report prepared by Mr. Riley, item 15 in the Appendix at paragraph 81, certain similar figures in item 24 of the Appendix and also figures relating to times and distances required for deceleration in item 25. What emerged from the calculations was that they showed that Mrs. Findleton's evidence as to the position of the motorcycle when the lorry commenced to turn had to be wrong and, in particular, that the motorcycle would not have been able to decelerate to 40 m.p.h., even if the deceased had reacted whenever the lorry started to turn. Further, the lorry would not have had sufficient time to turn to the extent it did prior to the collision. In light of this material it was submitted that the temporary Lord Ordinary's approach to the evidence had been flawed; he had failed to take proper advantage of seeing and hearing the witnesses. Furthermore, it showed that Mrs. Findleton's evidence was internally inconsistent.

[21] Counsel then proceeded to undertake a comparison of the evidence of Mrs. Findleton with other evidence in the case. At paragraph 30 of his Opinion the temporary Lord Ordinary had stated that nothing in Mrs. Cameron's evidence was inconsistent with that of Mrs. Findleton. However, it was contended that there were no fewer than eight inconsistencies between the evidence of these two witnesses. It was contended that these inconsistencies between the evidence of Mrs. Findleton and Mrs. Cameron should have caused the temporary Lord Ordinary to reject the evidence of the former.

[22] Counsel for the reclaimers next turned to make submissions on the matter of contributory negligence. He submitted that, having regard to the impact speed of 40 mph and to a reasonable period of time for the lorry to undertake the turning manoeuvre, the motorcycle must have been travelling at a pre-deceleration speed of more than 60 mph, or alternatively, the deceased had failed to keep a proper look-out. In connection with this submission reliance was placed on the figures derived from items 15 and 25 in the Appendix. An example was given based upon a turning time for the lorry of 5.3 seconds, that implied a pre-deceleration speed of 90 mph. In connection with the submission on contributory negligence reliance was placed on Jenkins v. Holt (C.A.) 1999 R.T. Rep. 411; Sutherland v. Gardiner 1981 S.L.T. 237 and Harrington v. The Milk Marketing Board 1985 S.L.T. 342. Based upon the approach taken in these cases, it would be appropriate to select a figure of 50% to represent contributory negligence.

Submissions for the respondent
[23] Counsel for the respondent moved the court to refuse the reclaiming motion and adhere to the interlocutor of the temporary Lord Ordinary. There was mutual recognition of an error in that interlocutor in respect that no decree for interest had been pronounced. It was a matter of agreement that interest at the judicial rate should be awarded from 8 July 2003. Interest prior to that date had been included in the agreed damages of £727,027.

[24] Counsel for the respondent began her submissions by referring to Thomas v. Thomas; also Thomson v. Kvaerner Govan Limited 2004 SC (HL) 1. In this latter case, Lord Hope of Craighead had reiterated at paragraphs 16 to 20 the test which had to be satisfied before an appellate court could properly disturb the judgment of the court of first instance on fact. Before there could be such interference it had to be shown that the decision of the judge who enjoyed the privilege of seeing and hearing the witnesses was "plainly wrong", or that it "unmistakably appeared from the evidence that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses". Bearing these criteria in mind, counsel for the respondent submitted that the temporary Lord Ordinary had not been plainly wrong to accept the evidence of Mrs. Findleton that the motorcycle had been in sight when the first-named defender commenced his turn across the road. Thus, he had not been plainly wrong to find that the deceased had been in sight of the first-named defender when the turn commenced. On that basis he was entitled to sustain the pursuer's first plea-in-law. It was evident from the foregoing submissions that proposition 2 of the reclaimers was wrong in principle. The whole presentation of the reclaimers' case was flawed. The reclaimers had sought to have this court review the evidence, which it could not do. Before this court could grant the reclaiming motion, it had to be satisfied that the temporary Lord Ordinary was plainly wrong in reaching the conclusion that Mrs. Findleton was to be relied upon in relation to her crucial evidence that the motorcycle had been in sight when the turning manoeuvre commenced. The reclaimers had to show that the temporary Lord Ordinary, in assessing the reliability of Mrs. Findleton's evidence, had failed to take into account other credible and reliable evidence on the matter in question, or that the facts that he had held proved were impossible. There had been an offer by the reclaimers to demonstrate the latter. What had to be shown to have been impossible was that the deceased had been in sight of the junction when the turning manoeuvre commenced. What that meant was that he was within the distance of 200 metres from the junction, that distance being the limit of Mrs. Findleton's vision. The reclaimers maintained that the temporary Lord Ordinary had not taken into account the calculations based upon the distance of the bush from the junction; had he done so, it was maintained that he would have been bound to find that Mrs. Findleton's evidence was unreliable. The respondent submitted that the temporary Lord Ordinary was correct to reject the evidence from Mrs. Findleton that the motorcycle was 40 metres away from the junction when the turning manoeuvre started. What he had found was that the motorcycle was in sight of Mrs. Findleton; that was all. The temporary Lord Ordinary had considered her evidence relating to the precise position of the motorcycle, but had not relied upon it. At paragraph 29 of his Opinion, he had observed that her ability to judge distances did not appear to be particularly reliable. It was significant that the part of her evidence that the temporary Lord Ordinary discarded had been that given in cross-examination; in examination-in-chief she had not attempted to give distances. She had simply said that she had seen the motorcycle when the turning manoeuvre commenced. She had observed that it had been coming just before the tree or bush. In cross-examination, Mrs. Findleton had mentioned the motorcycle having just been passing the bush and later almost half way to the junction from the bush. What was perfectly clear was that Mrs. Findleton's estimate of the distance concerned was not precise and could not usefully be used in calculations of any value.

[25] The reclaimers contended that the part of Mrs. Findleton's evidence where she mentioned the half-way position was wrong and impossible. It had to be recognised that the temporary Lord Ordinary had rejected that part of her evidence, so one had to ask the question why was he wrong regarding that. Just because the temporary Lord Ordinary had regarded Mrs. Findleton as unreliable on that one particular matter, it did not follow that she was unreliable as a witness in general. The temporary Lord Ordinary had been quite satisfied by the evidence of Mrs. Findleton that she had seen the motorcycle prior to the commencement of the turning manoeuvre. He had had the advantage of observing her demeanour in the witness box and had availed himself of it. He had tested the evidence and had relied upon it only where he was satisfied that it was reliable. The reclaimers had failed to demonstrate that it had been impossible for the motorcycle to have been in the sight of Mrs. Findleton at the material time. As regards the alleged failure of the temporary Lord Ordinary to weigh the evidence of Mrs. Findleton against other evidence, there was no other evidence held to be credible and reliable which conflicted with her evidence that the motorcycle was in sight when the turning manoeuvre commenced. The temporary Lord Ordinary had rejected the evidence of the deceased relating to his normal riding speed; he had also rejected the evidence of Mr. Collins. So far as Mrs. Cameron was concerned he had not perceived material inconsistencies between her evidence and that of Mrs. Findleton. The alleged inconsistencies featured in the reclaimers' submissions were not material. There was nothing in the evidence of P.C. Strachan which conflicted with Mrs. Findleton's evidence. The present case could readily be distinguished from that of Morrison v. J. Kelly & Sons Limited. In that case, the Lord Ordinary had rejected without justification a body of credible and reliable evidence which contradicted the evidence that he had accepted. In the present case there was no such body of evidence. None of the material gathered by the police officer who first attended at the locus was of significance; he had simply been taking the personal details of those who might have been witnesses to the event; he had not been taking detailed statements. Nothing said by Mrs. Cameron amounted to a material contradiction of the evidence of Mrs. Findleton; in any event, her evidence had its limitations. She had said that she did not have her glasses on that day; she was "as blind as a bat" without her glasses.

[26] Turning to the expert evidence, no expert had said that it was impossible for the deceased to have been in sight of Mrs. Findleton when the turning manoeuvre of the lorry commenced. The temporary Lord Ordinary had considered that Mr. Riley's evidence to some extent corroborated Mrs. Findleton, as appeared from paragraph 37 of his Opinion. One of the difficulties with the expert evidence was that assumptions had been made which could not be verified. For example, the table prepared by Mr. Riley in paragraph 81 of his report, No. 15 in the Appendix, involved an assumption of constant speeds, which was not realistic. So far as Dr. Barron was concerned, his evidence could not be seen as contradictory of Mrs. Findleton's evidence because he had made a number of assumptions which were not borne out by the evidence. On the whole matter, the reclaiming motion ought to fail, since the trial judge had assessed the evidence in a proper manner.

[27] Turning to the issue of contributory negligence, it had to be borne in mind that the onus of proof lay on the reclaimers. The temporary Lord Ordinary had rejected their contentions in relation to contributory negligence in paragraph 39 of his Opinion correctly. He had held that the reclaimers had failed to prove that the speed of the deceased had been excessive, or in any way inappropriate, over the 280 metres immediately to the south of the junction. Before this court, the reclaimers' submissions on this matter had been dependent upon the time required for the turning manoeuvre of the lorry. The temporary Lord Ordinary had found that that time could not be determined with confidence, as appeared from paragraph 37 of his Opinion. There could be no finding of contributory negligence unless a new finding-in-fact were to be made, which would require to be supported by evidence of substance. That could not be done. The temporary Lord Ordinary had taken the view that, in this connection, the absence of any evidence from the first-named defender was important, since several uncertainties could not be eliminated. Among those uncertainties were the level of familiarity of the first-named defender with the junction and whether or not he had come to rest prior to making the turning manoeuvre. The issue of whether the lorry had actually come to rest prior to the turning manoeuvre was one which could have a material bearing upon the time taken for any subsequent turning manoeuvre. The fact of the matter was that both experts had required to enter the realms of conjecture. The court could not do likewise. Before it could make appropriate findings in relation to these matters, the court would require to be able to affirm that the temporary Lord Ordinary was plainly wrong in making no finding as to the time involved. Furthermore it would require to examine all the other evidence and reach its own conclusion. The other evidence was incapable of demonstrating that the manoeuvre would have taken any particular time. It was evident from the evidence of Dr. Barron that the time taken was closely related to the speed of the lorry and whether it had come to rest prior to the commencement of the turn. Even if an attempt were made to develop a range of times, the range would be wide and be between 2 and 7 seconds. Those figures could give no useful basis for calculation. A further point of significance was that Dr. Barron and Mr. Riley had both stated that the motorcyclist might not have appreciated the need for action at the moment of the commencement of the turning manoeuvre, but rather only when the lorry could be seen to be well into the turn, as appeared from paragraph 16 of Dr. Barron's report, item 10 of the Appendix and Mr. Riley's evidence at pages 33 to 34 of the transcript. Thus, assumptions made concerning reaction time were questionable.

[28] An additional feature of the case was that there was no evidence of excessive speed from witnesses. Mrs. Findleton had thought that the deceased had been driving normally; Mrs. Cameron's evidence about speed had been based upon the sound of the motorcycle, but it had possessed a performance exhaust system. If the court were to hold that contributory negligence had been demonstrated, the assessment of the percentage of such negligence would be a question of the circumstances of the case; no assistance could be got from authorities.

[29] Finally, if the court reached the conclusion that Mrs. Findleton's evidence was wholly unreliable and had to be discarded, the pursuer could nevertheless succeed, since there was some other evidence that the first-named defender has started to turn the lorry when the motorcycle had been in view and capable of being seen by him. In that connection reference was made to the evidence of Mrs. Cameron who had noticed both vehicles. Furthermore, the occurrence of the collision itself was capable of raising an inference of negligence on the part of at least the first-named defender. In this connection reference was made to Baker v. Market Harborough Industrial Co-operative Society Limited; Wallace v. Richards (Leicester) Limited [1953] 1 W.L.R. 1472 and Howard v. Bemrose 1973 R.T.R. 32.

Submissions of senior counsel for the reclaimers
[30] Senior counsel adopted the submissions made by junior counsel. He said that he did not flinch from the dicta of Lord Hope of Craighead in Thomson v. Kvaerner Govan Limited. The reclaimers contended that the temporary Lord Ordinary had gone plainly wrong. It appeared that the submissions made by the respondent were in two parts: first, the temporary Lord Ordinary had been entitled to disregard that part of Mrs. Findleton's evidence relating to the relative positions of the vehicles, since she was considered not to be reliable in judging distances; and, second, the temporary Lord Ordinary had been entitled to accept her evidence that she saw the motorcycle at a time when that vehicle must have been in the sight of the first-named defender. Both of these assertions were refuted.

[31] So far as the first of these points was concerned, it was submitted that identifying the relative positions of vehicles was not the same thing as judging distances. It was her ability to judge distances that had been considered not particularly reliable, as appeared from paragraph 29 of the temporary Lord Ordinary's Opinion. What she had been doing had been identifying the positions of vehicles by reference to fixed objects with which she had been familiar. The part of her evidence which related to the bush as a point of reference had been introduced by her unprompted. Furthermore, the evidence that when she first saw the motorcycle it was "passing the bush" had been introduced by her, again unprompted. So the witness had selected the bush as a point of reference for her evidence. Senior counsel went on to consider in detail the evidence of Mrs. Findleton in relation to the positions and progress of the vehicles. When the lorry had started its turn, Mrs. Findleton had claimed that the motorcycle was nearer the junction than the bush. On this approach to Mrs. Findleton's evidence, it appeared that the temporary Lord Ordinary had not specifically dealt with her evidence relating to the position of the vehicles. These matters were not dealt with in paragraph 13 of the Opinion where a narrative of Mrs. Findleton's evidence was to be found. However, it had to be inferred that the temporary Lord Ordinary must have disregarded the evidence of Mrs. Findleton on the crucial matter of the position of the motorcycle when the turn commenced. The temporary Lord Ordinary appeared to have failed to consider this part of Mrs. Findleton's evidence.

[32] It had to be emphasised that the respondent's case could not succeed just because the deceased and his motorcycle could have been seen by the first-named defender. What had to be shown was that he could have been seen at the commencement of the turn and that the undertaking of the turn was an unsafe manoeuvre. The temporary Lord Ordinary's decision in paragraph 39 of the Opinion was jejune in the extreme. To justify his decision it was necessary to read into the third sentence the words "when it was not safe for him to do so". That was a slender basis for his decision. The temporary Lord Ordinary had not examined the whole evidence with sufficient thoroughness. Had he done so, he could not have been satisfied of the essential facts which the respondent required to prove before she could succeed. In particular, the temporary Lord Ordinary had not sufficiently examined the exercises and calculations of the expert witnesses. On the basis of reasonable assumptions which could be made, having regard to the experts' figures, Mrs. Findleton's evidence was plainly wrong in regard to the identification of the respective positions of the vehicles. Senior counsel went on to develop that submission in detail. He stated that he was not criticising the temporary Lord Ordinary in relation to his refusal to find that the turning manoeuvre took a particular time. However, the time necessary for the manoeuvre might reasonably be seen to fall within a certain range. If Mrs. Findleton's estimate of the positions of the vehicles was correct, it implied that the turning time fell outwith that range. The turning manoeuvre must have taken longer than 3 seconds. If that were so, Mrs. Findleton had to be wrong regarding the positions of the vehicles.

[33] Senior counsel emphasised that he was relying upon the test enunciated in Morrison v. J. Kelly & Sons Limited. Mrs. Findleton's evidence stood alone. Where there was no corroboration, the court had to be satisfied about the reliability of the evidence upon which it proposed to rely. There was a body of expert evidence in the present case which the temporary Lord Ordinary had failed to take into account. Senior counsel then went on to consider the expert evidence in detail. Thereafter he repeated the submission that Mrs. Findleton had been wrong in relation to the relative positions of the vehicles.

[34] Turning to the matter of contributory negligence, he made clear that he was content to adopt the submissions of junior counsel for the reclaimers. He emphasised the significance of Jenkins v. Holt. Baker v. Market Harborough Industrial Co-operative Society Limited was also of significance in reaching a conclusion as to the appropriate level of contributory negligence. The assessment of that was a jury question; 50% was commended to the court. If the evidence of Mrs. Findleton were to be rejected in total, it was submitted that this was not a case where the maxim res ipsa loquitur operated.

Submissions of senior counsel for the respondent
[35] Senior counsel adopted the submissions already made on behalf of the respondent. The Opinion of the temporary Lord Ordinary was comprehensive and rigorous. It accurately set forth all of the evidence and scrutinised it. The temporary Lord Ordinary had made a decision on what could be relied upon and what could not. A judge was quite entitled to select a part of the evidence of a witness and to reject another part of it. On any reasonable reading of paragraph 29 of the Opinion, that is what the temporary Lord Ordinary had done in relation to the evidence of Mrs. Findleton. The principles set forth in Thomson v. Kvaerner Govan Limited were applicable to this case. The reclaimers had to show that the temporary Lord Ordinary's approach to the acceptance and rejection of evidence was plainly wrong; that was a high hurdle which they had not surmounted. It was necessary for the reclaimers to argue that the temporary Lord Ordinary should have rejected all of Mrs. Findleton's evidence, but there was no reason why that should have been done. The alleged discrepancies between Mrs. Findleton and Mrs. Cameron's evidence were not material. The approach of counsel for the reclaimers involved hair-splitting in that it had been argued that the process of judging distances, where Mrs. Findleton might not be wholly reliable, was different from assessing the relative positions of vehicles. In essence, these were the same.

[36] It was quite understandable that the temporary Lord Ordinary had decided to accept the major part of Mrs. Findleton's evidence. In paragraph 29 of his Opinion he had stated that, in relation to the crucial fact of the defenders' lorry having turned across the path of the pursuer's oncoming motorcycle, her evidence was "clear and unshakeable". It had to be appreciated that she had been facing the accident site and had been able to see both the motorcycle and the lorry. The lorry had turned across the path of the motorcycle rendering an accident inevitable. She had considered the actions of the lorry driver inappropriate. The image gained by Mrs. Findleton of the situation just before the accident had plainly been memorable; she had stated at page 32 of the transcript of her evidence that the picture would stay with her for the rest of her days. On the other hand, 6 years after an accident it was inherently unlikely that she would have been able to remember the exact details of the relative positions of the vehicles at any particular moment. The reclaimers had submitted that the temporary Lord Ordinary had erred in relying on Mrs. Findleton's evidence because what she had said she saw could not have happened. That was a fanciful approach. It was indisputable that an accident occurred with a collision at a position which was not disputed. The question was whether the first-named defender had made a dangerous manoeuvre in turning right when he did. The answer to that question was given by Mrs. Findleton.

[37] Senior counsel went on to make a series of points relating to Mrs. Findleton. In the first place, when she came to give evidence she had left her glasses in her car and was not comfortable without them in examining photographs. Secondly, it was inherently difficult to describe where a moving vehicle was by reference to some fixed point on a roadside. Thirdly, even if she were wrong regarding the evidence of the motorcycle being almost half way between the bush and the junction, because there was a view available to her of 200 metres southwards along the road, the exact position of the motorcycle was not relevant. Fourthly, the issue was whether the lorry had turned right when it was unsafe to do so; Mrs Findleton had stated that it had. At pages 13 and 14 of her evidence she clearly expressed the view that the lorry driver should never have cut across in front of the motorcyclist when he saw him coming. She explained that she considered that the lorry would not have had time to turn in before an accident occurred. In other words she was saying that, after the turning manoeuvre was commenced, an accident was inevitable. At page 34 of her evidence she said that she could not believe it when she actually saw what happened. Fifthly, it had been argued by the reclaimers that what Mrs. Findleton had stated occurred was impossible. That assertion could not be justified on the basis of the material available in evidence for use by the experts. In that connection there were certain factors which were incapable of being determined, in consequence of which reliance could not be placed upon the results of the experts' calculations. For example, much depended, in relation to the time taken by the turning manoeuvre, on whether the lorry had actually come to rest at the junction. Mrs. Findleton had indicated that the lorry had not stopped completely. Upon that basis, it could not be said that what she stated that she saw was impossible.

[38] In any event, even if Mrs. Findleton's evidence had to be discarded, contrary to the temporary Lord Ordinary's view, the respondent was entitled to rely upon the facts of the accident itself. The facts of the accident spoke for themselves. They constituted a basis upon which an inference of sole fault on the part of the first-named defender would be justifiable. On the matter of contributory negligence, there was no justification for such a finding. Mrs Findleton had stated that the pursuer's speed was not excessive. The onus lay upon the reclaimers to show excessive speed on the part of the deceased, of which there was no satisfactory evidence. No finding of contributory negligence should be made.

The decision
[39] In view of the manner in which the arguments developed before us, it is appropriate initially to reiterate the approach which this court, as an appeal court, ought to take in relation to findings of fact made by a judge of first instance. This is not a matter about which there can be any serious dispute and, in the course of the debate before us, there was no such dispute. As was observed in the well-known case of Thomas v. Thomas by Viscount Simon at page 47:

" ... an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate Court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight."

That approach has been recently affirmed in Thomson v. Kvaerner Govan Limited. Lord Hope of Craighead, at paragraph 16 and following of his speech, said this:

"The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. In Clarke v. Edinburgh and District Tramways Company (page 37), Lord Shaw of Dunfermline said that the duty of the appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong. The words 'plainly wrong' were picked up and repeated by Lord Macmillan in Thomas v. Thomas, when he said (pages 59 to 60):

'So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.

...

If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge.'

...

The rule to which I have referred is so familiar that I would regard it as quite unnecessary for an appellate court as a matter of routine to cite the well-known authorities. But one ought to be able to detect some signs, in the language used or at least in the general approach which has been taken, that the court had the rule in mind when it was addressing the argument. One would expect it to be said that the Lord Ordinary had gone plainly wrong or that it unmistakably appeared from the evidence that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses."

Acceptance of these principles does not, of course, imply that an appellate court will never be justified in disturbing the decision of a judge of first instance on an issue of fact, if the judge of first instance has gone plainly wrong or it unmistakably appeared from the evidence that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses. A case in which that was done was Morrison v. J. Kelly & Sons Limited, where it was affirmed that there was a necessity for a judge of first instance to state adequate and sufficient reasons for reaching a decision based upon his assessment of the evidence of the witnesses. In that case the Lord Ordinary was held not to have given satisfactory reasons for rejecting a body of evidence contradictory of that of the pursuer, whose evidence he had accepted; in that situation the appellate court decided that it was entitled to reassess the whole evidence. Bearing these principles in mind, we now turn to the particular issues which have arisen in this appeal.

[40] The reclaimers' attack on the decision of the temporary Lord Ordinary was, in a sense, narrow and sharply focused. It was, of course, that the temporary Lord Ordinary had erred in his approach to the evidence of Mrs. Findleton. In particular, it was argued that, having regard to other evidence in the case, he ought not to have accepted the essentials of her evidence as reliable. In paragraph 13 of his Opinion, the temporary Lord Ordinary summarises her evidence. He says that, immediately prior to the accident, Mrs. Findleton had been chatting to Mrs. Cameron. The first that Mrs. Findleton was aware of the presence of the deceased was when she heard the noise of his motorcycle. She then saw the deceased on his motorcycle. The next event was the arrival of the lorry driven by the first-named defender, which signalled its intention to turn right into the Parkhill road. According to Mrs. Findleton the lorry then turned across the northbound carriageway in the path of the deceased. She described it as "cutting across". Mrs. Findleton stated that she saw the motorcycle before the lorry had started its turn. She thought that the lorry driver was bound to have seen the deceased's motorcycle before he commenced his turn. She did not think that the speed of the motorcycle was excessive. She did not see the impact itself because, by that time, the bulk of the articulated lorry was between her and the pursuer.

[41] In the section of his Opinion dealing with the assessment of the evidence, the temporary Lord Ordinary deals with the evidence of Mrs. Findleton at paragraph 29, in a passage which we have already summarised. It must be acknowledged that this passage in the Opinion shows a confident acceptance of the essentials of Mrs. Findleton's evidence as to the events immediately preceding the accident. The temporary Lord Ordinary, in paragraph 29, gives reasons for his confidence in her testimony. The essence of the attack on the approach of the temporary Lord Ordinary was that he had failed to have regard to other cogent and acceptable evidence in evaluating the evidence of Mrs. Findleton. Had he done so, he would have been driven to reject her evidence as unreliable. In this connection, particular emphasis was placed on certain passages of Mrs. Findleton's evidence in cross-examination. We have considered these passages in the context of her evidence as a whole. The particular part of her evidence in question was her testimony concerning the position of the motorcycle at the time when the turning manoeuvre was commenced by the first-named defender. She deals with this and related matters at page 13 and following of the transcript of her evidence. She was asked repeatedly about the position of the motorcycle at the time in question. Initially, she did not answer the question but said that the lorry driver should never have cut across in front of him when he saw the motorcycle coming. When she was pressed about the position of the motorcycle she indicated that she was not good at distances. She then requested the opportunity to examine photographs of the locus of the accident and its environs. It was then that she made reference to the tree or bush which featured in the evidence, saying: "We just saw the motorbike coming just before that tree." At a later stage in her evidence she was asked when the lorry came to the scene. She replied:

"Well, when the motorbike came down, it was just before he came to the bush the lorry came up the road from Montrose. He put his indicator out he was turning right up the Parkhill road, and he practically stopped, which I thought he was going to do, and then he just cut right across in front of the motorbike."

Asked at a later stage whether she was shocked, she replied: "I was, I can tell you. As I say, the lorry driver was bound to see the motorbike." Once more Mrs. Findleton was asked whether she had seen the motorcyclist before the lorry reached the junction. She replied that she had: "When he was at that bush or round about the bush." Yet again, Mrs. Findleton was asked where the motorcycle was when the lorry was at the junction. She said: "Well he'd be coming down past the bush." At a late stage in her cross-examination it was suggested to her that as the lorry driver came up to the junction the motorcyclist was coming ever nearer to that junction. The following exchange then took place:

"Q. At the point when the lorry started to turn, you must be saying to me that the motorcyclist was actually further on than this bush?

A. Aye, nearer the junction. ...

Q. How much further on?

A. I cannae remember six year ago, I mean as I say ...

Q. Half way to the junction from the bush?

A. Almost."

The gravamen of the attack upon the temporary Lord Ordinary was that, having regard to the other evidence in the case and, in particular, to the calculations of the experts, Mrs. Findleton must have been wrong regarding the latter answers concerning the position of the motorcycle. If that position were accepted, it was argued that the temporary Lord Ordinary should have concluded that Mrs. Findleton's evidence as a whole was unreliable.

[42] We have come to the conclusion that this contention of the reclaimers is unsound. It is, of course, trite law that a judge of first instance, in evaluating the evidence of a witness, is entitled to accept a part of the evidence of that witness and to reject another part of it. In our view that is plainly the course which the temporary Lord Ordinary has taken in this case. While it is true that he does not specifically mention the answers which she gave to leading questions in cross-examination about the precise position of the motorcycle at the moment when the lorry commenced its turn into the Parkhill road, we consider that his observations in paragraph 29 of his Opinion as to her being uncomfortable when looking at productions without her glasses and her ability to judge distances not being particularly reliable indicate that he had inter alia that part of her evidence in mind. She herself had indicated that she was not good at judging distances, when questioned in relation to the photographs of the locus. We think that that was exactly what she was trying to do when she gave the last answer quoted above. Standing her lack of confidence about that aspect of the matter and also standing her confidence and determination in describing the situation immediately before the collision, when the first-named defender cut across in front of the motorcycle, it is not difficult to understand why the temporary Lord Ordinary dealt with her evidence as he did in paragraph 29. It seems clear he felt able to draw a distinction between the clarity of her evidence on what he discerned as crucial facts and her evident uncertainty on other matters.

[43] In any event, although it is not necessary to go further, the basis upon which it was argued that the temporary Lord Ordinary should have rejected the whole of the evidence of Mrs. Findleton was principally to be found in what were said to be the implications of certain figures produced by the experts in their consideration of the case. As the case was presented to us, the reclaimers discarded material based upon the overtaking manoeuvre which the deceased had executed some little distance before the locus of the accident. Attention was focused rather upon calculations related to Mrs. Findleton's estimate as to the position of the motorcyclist when the lorry began to turn, the time taken for the lorry to undertake the turning manoeuvre, the undisputed location of the lorry and the motorcycle at the moment of collision and an assumed speed of the deceased's motorcycle when he reacted and the probable speed at impact. While at certain points in the argument, it was suggested that the temporary Lord Ordinary had ignored the figures produced by the experts, that is plainly not the case. In paragraphs 36 to 38 of his Opinion, he discusses them in detail, which discussion we have already summarised.

[44] What can be said of this part of the temporary Lord Ordinary's Opinion is that it shows without any doubt that he gave careful consideration to the evidence which it was contended he had improperly ignored. He identified, in particular, a number of factors causing him to conclude that he was unable to determine with any confidence how long the turning manoeuvre might have taken. During the course of the debate before us certain further factors were identified. In particular, an important consideration was the issue of whether the first-named defender had in fact come to rest prior to turning into Parkhill road. Mrs. Findleton's evidence tended to suggest that he had not done so; if that were the case, that would have a material bearing on the accuracy of the calculations. This would cast doubt on one of the assumptions used to demonstrate that Mrs. Findleton must have been wrong. Moreover, we think that in their calculations the reclaimers assumed a greater degree of precision as to the impact speed than was intended by the temporary Lord Ordinary's reference to "about 40 m.p.h.", a speed for the motorcycle when the lorry started to turn, said, initially to have been not less than 60 m.p.h., which was not clearly warranted on the evidence, and generally sought to impute a greater degree of precision to Mrs. Findleton's estimated distance than she could ever have intended. A further point of significance in this context is that the calculations sought to employ the turning time or times derived from the reconstruction exercise. However, it has to be appreciated that, so far as the deceased was concerned, it is possible that he might not have appreciated that a turn was being executed until the first-named defender was well into the turn. Accordingly that factor casts doubt upon the validity of the measurement of the time taken for a turn from the moment of its commencement. Finally, we should add that we are not satisfied that there was any substance in the eight alleged inconsistencies between the evidence of Mrs. Findleton and Mrs. Cameron on which the reclaimers sought to rely.

[45] In all of these circumstances we conclude that the temporary Lord Ordinary was well entitled to reject one or more of the factual premises which underlay the calculations upon which the reclaimers relied. That being so, we conclude that the only substantial basis for the attack on the evaluation of Mrs. Findleton's evidence by the temporary Lord Ordinary disappears. In our view it cannot be said that he has gone plainly wrong; equally it cannot be said that it unmistakably appears from the evidence that he has not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses. In short, in our opinion, the attack on the approach of the temporary Lord Ordinary to the evaluation of evidence fails.

[46] In regard to the matter of contributory negligence, the onus was on the reclaimers to show that, prior to the collision, the deceased had been riding his motorcycle at an excessive speed in all the circumstances and that that circumstance caused or materially contributed to the occurrence of the accident or his injuries. In essence, the reclaimers sought to demonstrate excessive speed upon the basis of the calculations made, in particular by Dr. Barron. However the starting point for them depended upon acceptance of a turning time for the lorry or, at least, on a restricted range of times for that. For the reasons stated by the temporary Lord Ordinary and the other reasons identified, that essential premise of the calculations has not been established. It appears to us to follow that there is no basis for a finding of contributory negligence against the deceased. Indeed, we are confirmed in that view by the direct evidence of Mrs. Findleton, who stated that, at the material time, the motorcyclist had not been driving at other than a normal speed in the circumstances. Finally we should say that, having regard to the conclusions which we have reached, it is unnecessary for us to consider whether, in the event that Mrs. Findleton's evidence had to be rejected, the finding of the temporary Lord Ordinary in favour of the respondent could be sustained. In the whole circumstances the interlocutor of the temporary Lord Ordinary will be affirmed, subject to the agreed addition to it as regards interest.