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Cite as: [2005] CSOH 166, [2005] ScotCS CSOH_166

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Ratter v. Halcrow [2005] ScotCS CSOH_166 (13 December 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 166

A4828/01

OPINION OF LORD HARDIE

in the cause

AMY MARGARET RATTER

Pursuer;

against

MARGARET HALCROW

Defender:

________________

Pursuer: Smith, Q.C., et Miss Munro, Advocate; Digby Brown SSC

Defender: J Thomson, Advocate; Ledingham Chalmers

2 December 2005

[1] In this action the pursuer seeks damages for injuries sustained in a road traffic accident on 2 October 1998. On that date at approximately 4.30pm the pursuer was riding her Yamaha motor cycle RD 350 registration number H410 LSX on the A970 Lerwick to Sumburgh road in a southerly direction. When the pursuer reached that part of the road about 750 metres north of the Aithsetter junction she was in collision with the defender who was a pedestrian. The issues for my determination were the question of liability and the quantum of damages, if any, to be awarded to the pursuer.

Liability
[2] The pursuer had a clear recollection of events. She was riding her motor cycle in a southerly direction. Her motor cycle had a 350cc two-stroke engine, which made it a noisier machine than one with a four-stroke engine, and it had a distinct high-pitched scream. The weather was overcast. There was slight drizzle and the road surface was damp. The pursuer was driving along the centre of the southbound carriageway because it was less worn than other parts and she was able to obtain better traction there. She was driving at the national speed limit of 60mph that applied to this road. As one approaches the track from which the defender emerged there are no road signs or other warnings of the existence of a track going eastwards from the road through an embankment to a cul-de-sac. When the pursuer was within 75 metres of the junction between the track and the road she noticed the head and upper body of the defender as the defender walked through the embankment towards the road. The pursuer anticipated that the defender would stop when she reached the verge of the road and would wait for the pursuer to pass. When the pursuer had almost reached the entrance to the track, the defender continued to walk onto the road and into the path of the pursuer. The pursuer started to veer to her right to avoid colliding with the defender but the defender collided with the pursuer's left arm. As a result of the collision the pursuer lost control of her motor cycle and was rendered unconscious until after the arrival of the ambulance personnel.

[3] There was a dispute in the pleadings about the circumstances of the accident, particularly whether the defender came from the east or west of the A970 immediately before the collision. However, there was no acceptable evidence to support the defender's position on Record that she emerged from a path to the west of the road and crossed the road in front of the pursuer's vehicle before being struck by it. The defender testified that she parked her motor cycle in the cul-de-sac to the east of the A970 and thereafter walked along a track through the embankment and crossed the road to a farm access road. From the farm access road she walked for about a mile along a track to the family peat hill where she put dried peat into sacks for about 2 hours. She ceased work when it started to rain and started walking back along the track to the farm access road. She had no recollection of reaching the farm access road and apart from confirming that she sustained injury as a result of the accident involving the pursuer the defender had no memory of events after walking on the track from the peat hill.

[4] Charles Halcrow Simpson, the defender's third cousin was driving south on the A970 after 4pm when he was overtaken by a motor cycle at Fladdabister, about two miles north of the scene of the accident. He was driving at between 56mph and 58mph. He estimated that the motor cycle was travelling at about 15mph more than his car but he accepted that it was difficult to estimate the speed of the motor cycle. In evidence in chief he stated that it was the pursuer's motor cycle but in cross examination he confirmed that he had assumed that it was the same motor cycle that he later saw at the scene of the accident. He accepted that it could have been a different motor cycle that passed him.

[5] Police Sergeant Gary Houston McCarthy, an accident examiner with Northern Constabulary, was requested to attend the scene on 3 October 1998. He concluded that the defender had been crossing from the east verge when she collided with the left handlebar of the pursuer's motor cycle. His opinion was based upon the location of the defender's principal injuries, the damage to the motor cycle and the direction of travel of the motor cycle after the collision. The principal injuries to the defender were on her right hand side. The motor cycle had damage to the left indicator stalk and left handlebar grip. After the collision the motor cycle had travelled to the right consistent with the rider veering to the right to avoid a collision. This witness also testified that it would take 3 seconds to cover a distance of 75 metres and that a reasonable reaction time would be 2 seconds. He also considered that the position on the carriageway of the pursuer's motor cycle immediately before the accident was the safest position and he did not criticise the pursuer for travelling at 60mph in the conditions that prevailed.

[6] Dr John Alexander Steel, Head of Department of Mechanical Engineering at Heriot Watt University, was adduced as an expert witness on behalf of the defender. He visited the scene of the accident in 2004 but did not have the opportunity of examining the pursuer's motor cycle. His evidence did not contradict the evidence of Sergeant McCarthy. In particular he confirmed that accident investigators would allow up to 2 seconds as reaction time. He also considered that the orientation of the defender immediately prior to impact indicated that her right hand side must have been on the road. He estimated that her right hand side would be in a segment covering approximately 0 to 100 degrees, where 0 degrees represented her standing parallel to the east verge with her right side towards traffic coming from the north and 90 degrees represented the pursuer at right angles to the verge with her back to such traffic. He also confirmed in cross-examination that he could not dispute Sergeant McCarthy's conclusion that the defender was crossing from the east verge prior to the collision.

[7] The pursuer impressed me as a credible and reliable witness, who was not prone to exaggeration and who readily accepted that she could not be precise about times or distances. I accepted her version of events. In particular I accepted that the defender had emerged from the track through the embankment to the east of the A970 and walked into the path of the pursuer's motor cycle. There was no contrary evidence. Moreover the expert evidence of Sergeant McCarthy and Dr Steel supported the pursuer's account. I also accepted the pursuer's evidence that she was travelling at 60mph and Sergeant McCarthy's evidence that this was a safe speed for the prevailing conditions. While I did not dispute Mr Simpson's evidence about being overtaken by a motor cycle, it did not appear to me to be relevant. I was not satisfied that it was the pursuer's motor cycle. If it had been, I would have expected Mr Simpson to remember the noise of the two-stroke engine if the motor cycle had been travelling in excess of 60mph. Moreover his evidence about speed was vague. In any event even if it had been the pursuer's motor cycle, Mr Simpson did not criticise the manner of driving or the location of the overtaking manoeuvre. An overtaking manoeuvre by the pursuer did not mean that she was driving at a speed in excess of the speed limit at the time of the accident, which occurred about 2 miles further south.

[8] In all the circumstances I have concluded that the accident was caused by the fault of the defender. The next issue relating to liability is whether the pursuer was also at fault. The pursuer was driving at an appropriate speed and according to Sergeant McCarthy she was properly positioned on the carriageway. She first saw the defender when she was within 75 metres, or 3 seconds, of the defender. At that time the defender was walking within an embankment which was set back from the road verge. In my opinion it was not reasonable for the pursuer to anticipate that the defender would continue beyond the embankment across the verge and into the path of the pursuer's motor cycle travelling along the middle of the southbound carriageway. Moreover the evidence suggested that the defender collided with the pursuer's left arm as the pursuer veered to the right to avoid her. In my opinion the pursuer was not at fault to any extent and the accident was caused by the sole fault of the defender.

Damages

Solatium
[9] As a result of the accident the pursuer suffered loss. She was rendered unconscious and taken by ambulance to Gilbert Bain Hospital and thereafter transferred to Aberdeen Royal Infirmary. She sustained a fractured left forearm and dislocated left wrist and her collarbone was broken. She had operative treatment to fix the fracture of her forearm with a metal plate. She was an in patient for 4 days. She required another operation in November 2002 to remove the plate from her forearm and was in hospital for 2 days on this occasion. She has lost some of the sensation in her left hand and her grip in that hand has diminished as a result of the accident. She is unable to bear weight on her right shoulder. She can no longer carry a back pack. She has a 6-inch scar on her left forearm. She has a specific phobia in relation to riding her motor cycle, which was precipitated by the accident and would not have developed if the accident had not occurred. It is likely that her mental condition will improve to a degree that within 9 months to a year she will no longer fulfil the diagnostic criteria for a specific phobia, assuming she receives appropriate treatment for her phobia. However, she is always likely to experience a greater degree of residual anxiety when riding her motor cycle than she did prior to the accident. Motorcycling was a form of recreation for the pursuer as well as an essential mode of transport. She had been riding motor cycles for about 5 years prior to the accident. She has been unable to pursue her preferred career as a joiner because of the accident. In all the circumstances I assess solatium at £12,000 of which £8,000 relates to the past and £4,000 is for the future. I calculate interest on past solatium at £2293.

Miscellaneous losses
[10] As a result of the accident the pursuer's motor cycle was destroyed and various items of clothing, including her helmet, jacket, trousers and gloves were damaged. Although the pursuer testified that she had spent a lot of time replacing parts of her motor cycle and would not have sold it for less than £2,000, the averment in article of condescendence 4 of the Summons about its value was that it "was about £1,850". I agree with defender's counsel that a reasonable figure for the motor cycle is £1,500. I also consider that the other losses should be assessed at £280. The total value of this head of claim is £1,780 to which must be added interest of £1,020.

Wage loss
[11] Although the pursuer qualified as a joiner, she was made redundant at the conclusion of her apprenticeship because of a slump in the construction industry at that time. She obtained employment in fish factories for more than 3 years but shortly before the accident she had commenced a foundation course at Art College, at the end of which she intended to resume her preferred career as a joiner. I accepted her evidence in that regard. On the basis of the evidence of Mr Cameron, a vocational consultant, I accept that those employed in the construction industry in Shetland peaked in 2000. I consider that it is probable that the pursuer would have obtained work as a joiner in 2000 after she had completed her foundation course in art. Although she would complete her art course in July 1999, it is probable that the pursuer would have required a refresher course before resuming her trade. Accordingly I would calculate loss of earnings from April 2000 to allow for that delay. I also accept Mr Cameron's evidence that there is a shortage of construction workers in Shetland despite the reduction in population. The population trend discloses an ageing population and a shortage of tradesmen among the younger generation. Furthermore there is an increase in house building and repairs to the housing stock. It is probable that the pursuer would have remained in employment as a joiner from April 2000 to the date of her retirement. The pursuer moved from Lerwick to Foula. She is now settled as a crofter and has part time work as a fire fighter, Water Board employee and crew member on an inter island ferry. Her change in her lifestyle is causally connected to the accident. Even if the pursuer now retrained as a joiner, her history of physical and psychological difficulties following the accident may inhibit employers from offering her employment. It would be unreasonable to expect the pursuer to alter her present lifestyle in view of the uncertainties associated with her obtaining employment as a joiner at this stage. In his closing submissions senior counsel for the pursuer tendered a table calculating net past wage loss at £46,102. I would not allow the sum of £4,629 claimed for the tax year 1999/2000 for the reason already explained. Accordingly I calculate past wage loss at £41,473. I calculate interest thereon from April 2000 to date at £9,402.

Future wage loss
[12] To reflect the uncertainties about the pursuer's future earnings from crofting and her various part-time posts I consider that the minimum difference between potential earnings as a joiner and the pursuer's potential earnings as a crofter and part time employee in various occupations is £6,000 per annum. Accordingly the appropriate multiplicand is £6,000. The pursuer is aged 30 and I accept the submissions by the pursuer's counsel that the appropriate multiplier is 19.46. Accordingly I assess future wage loss at £116,760.

Summary of damages awarded

Solatium	12,000
Past Solatium	8,000
Interest	2,293
Miscellaneous losses	1,780
Interest	1,020
Past wage loss	41,473
Interest	9,402
Future wage loss	116,760
Total	184,728

Decision
[13] I shall accordingly repel the pleas-in-law for the defender, sustain the first plea-in-law for the pursuer and grant decree for payment by the defender to the pursuer of the sum of £184,728, with interest thereon at the rate of 8% per year from the date of decree until payment.