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Stephen v. Peter & Ors [2005] ScotCS CSOH_38 (16 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 38

A3610/01

OPINION OF LORD MENZIES

in the cause

LEITH STEPHEN (AP)

Pursuer;

against

ROBERT PETER AND OTHERS

Defenders:

________________

Pursuer: MacAulay, Q.C., Creely; Balfour & Manson, W.S.

Defenders: (First Defenders) Stacey, Q.C., Simpson; HBM Sayers

(Second Defenders) Woolman, Q.C., Brodie; Simpson & Marwick, W.S.

16 March 2005

[1] This is an action for damages for personal injuries sustained by the pursuer as a result of a road traffic accident on 20 September 1998. In the course of the afternoon of that day the pursuer was working for the first defender as a lorry driver. At that time the first defender owned and operated his own haulage business which had four or five heavy lorries. On that date the pursuer was instructed to collect a Scania 143M tractor unit and trailer belonging to the first defender from the second defenders' premises at Mugiemoss Paper Mill and to drive this to Portlethen. At Portlethen he exchanged the trailer for another trailer which had been packed with 15 large rolls of paper, which had been stacked on the trailer by employees of the second defenders. The pursuer's instructions were to drive the tractor unit and trailer loaded with these rolls of paper to London. He set off from Portlethen at about 1.15pm that afternoon. At about 3.10pm he crossed over the Friarton Bridge on the M90 close to Perth. Just south of this bridge, at junction 10, he turned left on to the A9 slip road which led to a flyover which crosses the M90. The slip road has a left hand rising bend before the road enters into a right hand bend. As the pursuer was negotiating the right hand bend the trailer overturned to the nearside, causing the lorry to collide with the nearside crash barrier. As a result of this accident the pursuer suffered very significant injuries which resulted in total paraplegia. I do not propose to rehearse the extent of the pursuer's injuries as averred on record, as parties have entered into a joint minute whereby quantification of this claim on the hypothesis of full liability being established has been agreed.

[2] Evidence was led in this proof before answer over 4 days in November 2004, and the proof was then adjourned until the latter part of January 2005. When the proof began, the pursuer's pleadings were to the effect that there were two main causes for the accident, namely (a) that the load of rolls of paper was not evenly distributed on the trailer and was inadequately stabilised and secured to prevent the load from shifting, and that the unstable, shifting and unevenly distributed load caused the lorry to tip over; and (b) that in any event the tachograph and speed limiter fitted to the lorry had been wrongly calibrated, so that instead of preventing the vehicle from exceeding 56mph, it allowed the vehicle to be driven at speeds of up to 62mph, and that the lorry would not have overturned with a secure load at the bend in question if driven at 56mph. The pursuer made three cases against the first defender, namely (1) fault and negligence at common law for failure to ensure that the trailer was loaded safely; (2) a case of defective equipment under section 1 of the Employer's Liability (Defective Equipment) Act 1969; and (3) failure to maintain the tachograph and speed limiter in an efficient state, in efficient working order and in good repair in terms of the Provision and Use of Work Equipment Regulations 1992, Regulation 6. There was only one ground of action against the second defenders, namely fault and negligence in failing to ensure that the trailer was safely loaded. However, when the proof resumed in January 2005 senior counsel for the pursuer abandoned his case against the second defenders, and decree of absolvitor was granted in their favour. Moreover, senior counsel for the pursuer intimated that he no longer insisted on his case against the first defender at common law for unsafe loading of the trailer, and that his case against the first defender was accordingly limited to the defective tachograph and speed limiter, in terms of the 1969 Act and the 1992 Regulations. This had the effect of narrowing the points in issue very significantly, and has the result that I need not rehearse or consider some parts of the evidence led at proof.

The evidence

[3] The pursuer stated in evidence that he could not remember the immediate circumstances of the accident. He had been working regularly as a lorry driver from about 1990 or 1991 until the date of the accident on 20 November 1998. For the whole of this period he had been driving articulated lorries; much of his time had been spent driving lorries loaded with rolls of paper from Aberdeen to the south of England or Europe. He would drive on average two or three round trips from Aberdeen to the south of England each week, and would usually use the same route as he used on the date of the accident. When he collected the loaded trailer at Portlethen on the day of the accident he was concerned that there was more weight to the rear of the trailer than to the front, and he considered that the load should have been heavier at the front than at the rear. He inspected the load, but was not content with it. As it was a Sunday, he felt that he could not complain about this - if it had been a weekday, he stated that he would have taken the load back and caused it to be reloaded. He remained concerned about the stability of his load on the trip south, and formed the impression on at least three occasions that the load shifted. This caused him additional concern, so that he attempted to telephone the first defender on more than one occasion, without success. As a result of this concern he reduced his speed. The lorry was fitted with a tachograph and speed limiter which, if it had been calibrated correctly, should have prevented the lorry being driven faster than 56mph. The pursuer said that he would generally drive his lorry at its speed limit. As he approached Friarton Bridge from the north, he remembered that two cars in front of him indicated to turn left to Perth; he indicated to his right and overtook them in the fast lane. Then an articulated lorry approached the motorway from the slip road from Perth and flashed his headlights to allow the pursuer into the nearside lane again. As he was crossing the Friarton Bridge the pursuer was in front of this lorry; he could not remember what speed he was driving when he was on the slip road to the south of the Friarton Bridge which then swung across the motorway on a flyover. However, he had driven around this bend many times before; he agreed that this was a tight bend, and he would normally drive around it at between 45 and 50mph, and certainly below what ought to have been the maximum speed of 56mph which the speed limiter should have allowed. He denied that he could tell by the way that the lorry was travelling that he was driving in excess of this speed. However, he did not remember the accident happening.

[4] In cross examination, the pursuer accepted that safety was his top priority when he was driving an articulated lorry, and that when driving, much depended on the driver's "feel" for the lorry - it either felt right or it did not, and he agreed that this was "a driver thing". He stated that he would normally drive around this bend at between 40 and 45mph, and that this was the proper speed to drive around it. He agreed that if he was actually driving at or about 60mph this was too fast for that bend. He was asked whether, within the road haulage industry, drivers were aware that sometimes tachographs were calibrated wrongly, with the result that lorries could be driven at a speed faster than the lawful maximum speed of 56mph and faster than the speed indicated to the driver. At first he denied this, and maintained for some time that he had no knowledge of ever having heard of inaccurate or wrongly calibrated tachographs. However, eventually he agreed that it was known in the road haulage industry that tachographs are not always accurate (and in re-examination he stated that he was aware that the first defender had another vehicle that ran fast and recorded slow, although he was not aware that the lorry in question suffered from this problem). He accepted that he would rely on his own experience as a lorry driver to assess what was the appropriate speed, and that he did not look often at the speedometer. He accepted that if he was driving round this bend at more than 40 to 45mph he should not have done so, and that this was particularly so standing his concerns about the stability of the load. He remembered that shortly before the accident he overtook another lorry. He also agreed that most articulated lorries by 1998 had been fitted with tachographs and speed limiters, and that he would know that he was driving faster than 56mph if he overtook several other lorries. He maintained that if the lorry driver of the lorry which he overtook shortly before the accident maintained that he was driving at a speed of just under 60mph when the pursuer cut in front of him, that driver was mistaken. In re-examination he stated that he had no impression when driving this lorry that it was running fast and recording slow. He did not believe that he could have been driving faster than he thought he was, and he never felt that he was travelling at about 60mph.

[5] Mr Gordon Humphreys spoke to his report (No.6/13 of process), in which his professional qualifications and experience are set forth. He was managing director of Foster Tachographs Limited, and had been carrying out forensic analysis of tachograph charts since about 1986. He carried out an examination and analysis of a copy of the tachograph chart from the pursuer's lorry (No.19/3 of process). The original of this chart had gone missing, and Mr Humphreys emphasised that it was impossible to analyse the photocopy with any degree of precision, because it was not possible to undertake a detailed microscopic analysis. A photocopy gives a simple black and white image which does not show the clear definition of individual traces and therefore it is not possible to provide accurate time measurements. Moreover, it is not possible to identify small deviations in the speed trace which may indicate cab oscillation, nor to identify changes in the thickness and depth of the same trace which may indicate a change in the pattern of braking. Normally, his equipment can provide a three-dimensional analysis, but this was not possible in the present case. The tachograph in the lorry being driven by the pursuer was recording low by approximately 8.6%, which required the increase of all recorded speeds by 8.6kph (5mph) in order for the actual road speed to be identified. If this resulted as a result of wrong setting at a calibration station, Mr Humphreys was of the opinion that this would indicate carelessness. He pointed out that if the driver was driving at an indicated speed of 56mph on the speed limiter and was overtaking other goods vehicles, this should indicate to the driver that his tachograph/speed limiter was reading slow.

[6] Because of the difficulty in interpreting a photocopy, the period of some minutes immediately before the accident occurred was not wholly clear. However, Mr Humphreys estimated that for much of the period between 1454 hours and about 1510 hours the vehicle was being driven at an indicated speed of 56mph (which was an actual speed of 61mph). At about 1456 the indicated speed rose briefly to 62mph, which would equate to an actual speed of 68mph, but then settled again at the indicated speed of 56mph. The vehicle slowed to an indicated 52mph (actually 56.5mph) before increasing speed again. The apparent peak in speed just after 1510 to an indicated speed of 65mph (an actual speed of 70mph) was probably a "rogue trace" caused by the drive wheel leaving the road surface. Mr Humphreys disagreed with paragraph 7.3 of the report prepared by Peter Jennings (No.7/10 of process) and considered that Mr Jennings had analysed the 56mph constant as being advancement in time. However, he agreed in cross-examination that for the period between 1456 and 1510 the indicated speed shown was 56mph, which was actually 61mph on the road. He also explained that a tachograph has to be calibrated within tolerances laid down in European Union Regulations, which provided that on a test bench the acceptable tolerance was plus or minus 3kph, and in service the acceptable tolerance was plus or minus 6kph.

[7] Eur Ing Graham Geary spoke to his report, No.6/16 of process, in which details of his qualifications and experience are provided. He was a forensic consultant engineer with considerable experience in providing reports on road traffic accidents. He visited the locus in April 2003, about 41/2 years after the accident. He listed in his report the sources of information before him, and in addition to having before him Mr John Alexander's report (No.6/18 of process) he discussed the case with Mr Alexander before providing his report. He proceeded on the basis that the pursuer was driving the lorry at about 61mph immediately before the accident, and (on the basis of Mr Alexander's measurements) the radius of the bend which the pursuer was trying to negotiate was approximately 175.47 metres with a crossfall of 2.4º. He saw no evidence that the lorry had reached its critical speed (i.e. the speed at which the tyres lost their grip on the road surface). With regard to the rollover speed or overturning speed of the lorry, Mr Geary was asked to comment on Dr Horsfall's report, (No.23/3 of process). Ultimately, his position was very similar to that of Dr Horsfall. Mr Geary had proceeded on Mr Alexander's estimate of the centre of gravity of the trailer being 2 metres above the ground, but he took no issue with Dr Horsfall's analysis at section 5.1 of his report, and did not consider that the 5% difference between Dr Horsfall's 1.9 metres and Mr Alexander's 2 metres made any difference in this case. Indeed, given that the trailer was heavily loaded, the weight on the lorry suspension and tyres would result in a centre of gravity closer to Dr Horsfall's figure. Mr Geary agreed with Dr Horsfall's analysis of the effect of crossfall, and agreed with his conclusion at paragraph 5.4.3 that the lateral acceleration was about 0.45g. He also agreed with Dr Horsfall's calculations of lateral acceleration at section 5.6 of his report, that at a speed of 61.7mph and a path radius of 175 metres the calculated lateral acceleration of the vehicle was 0.44g; that the calculated lateral acceleration necessary for the vehicle to overturn was approximately 0.45g; that neither the estimate of speed nor the estimate of stability could be considered absolutely accurate, and to all practical purposes the two calculated figures could be considered identical. He was asked if the lorry would have overturned assuming that its load was secure and the speed limiter had been operating correctly, and he expressed the opinion that it was unlikely that the vehicle would have overturned at 56mph provided the load was secure and central. He was asked if a vehicle with an incorrectly calibrated tachograph was safe, and he observed that this obviously raised a safety issue - if a tachograph was 8 or 10% out, this might have pushed the vehicle over the rollover speed. It was his view that lorry drivers tended to drive at the maximum of their limited speed, that he did not consider that a driver could tell that his speed limiter was set wrong (unless he was overtaking all other lorries), and he did not consider that a driver could tell the difference between driving at 61mph and 56mph.

[8] In cross-examination Mr Geary agreed with Dr Horsfall's opinion that the lorry's speed was such that it would almost certainly have overturned even with a completely secure load, although Mr Geary observed that it was very borderline, and right on the edge of the rollover speed. He repeated the view that a driver would find it very difficult to distinguish between driving at 56mph and 61 or 62mph, but he observed that a driver should drive at a safe speed around a bend and would not rely on his tachograph or speed limiter, but rather would rely on his own feel for speed and the road. He differed from Mr Alexander's assessment of the relevance of the long scuff mark or skid mark found on the road; Mr Geary considered that this was not related to this accident in any way.

[9] Mr Geary was referred to Mr Jennings' report (No.7/10 of process). He took issue with paragraph 8.2 thereof in two respects - (1) the radius of the lorry's path on which Mr Jennings based his calculations was 165 metres, which was significantly different from Mr Alexander's measurement of 175 metres, and (2) the assumption that there was negligible superelevation or camber to the road was wrong - the effect of crossfall was important in this case. He agreed with Mr Jennings' views at paragraph 8.7 that because there was inevitably some free play in the fifth wheel coupling, the stability of the trailer would be reduced, and he would expect lorry drivers to know this. However, he disagreed with the figure for lateral acceleration of about 0.4g in paragraphs 9.9 and 10.7; when the crossfall was taken into account, he considered that this would be approximately 0.44 or 0.45. He agreed with Mr Jennings' observation at paragraph 10.8 that if this bend had been posted with an advisory speed, the speed was likely to have been 45mph. Again, he criticised Mr Jennings' measurement of the radius of the bend at approximately 165 metres. He considered that measurements taken from an ordnance survey plan were generally not as accurate as police measurements taken on the spot. In answer to a question from the Court, he expressed the view that if the lorry was travelling at 56 or 57mph it would not have turned over if the load was absolutely stable, because of the crossfall in the road; at 61mph, it was right on the edge of whether it would turn over or not. If the driver had concerns about the stability or movement of his load, he would certainly have expected the driver not to be driving at the maximum speed allowed by his speed limiter. He would also have expected a driver with skill and experience to have known what was the proper speed for a particular bend.

[10] Mr John Alexander spoke to his report (No.6/18 of process). He had 31 years service with Perth and Kinross Police; at the time of this accident he was attached to Tayside Police Accident Investigation Unit as a civilian. Since 1999 he had been working as an independent road traffic accident investigator. He attended at the locus immediately after the accident, when the pursuer was still trapped in the wreckage of the lorry. He spoke to the marks which he found on the road and which he had marked on the plan (No.6/9 of process) which he had prepared electronically. The scuff mark was in his view obviously connected to the accident. It began on the nearside lane and was caused by the driving axle of the tractor unit and the tyre fitted to the nearside wheel. Mr Alexander did not accept Mr Geary's view that this was unconnected to the accident. He explained that he measured the radius of the bend at 174.7 metres using a 20 metre cord measure along the white line on the left side of the bend at approximately the apex of the bend; this he considered to be the most accurate method of measurement. He measured the crossfall at 2.4º with a metre level.

[11] In cross examination Mr Alexander was asked to comment on paragraph 4.3 of Mr Jennings' report (No.7/10 of process), where Mr Jennings uses the police plan to support the view that the radius of the bend in the vicinity of where the lorry rolled over was in the region of 160 to 165 metres. He stated he had been taught never to use a plan, but to use an electronic theodolite as he did on this occasion, because it was very difficult to be as precise using a plan on a scale of 1:400 as he had been with his methodology. He would have expected the scuff mark on the road to be narrower than the width of the lorry tyre (as it was) because the weight was on the outer rim of the tyre. Moreover, it would be contrary to all his experience to find a scuff mark caused by an offside wheel in this situation, and he was very surprised that any road traffic investigator would support such a conclusion. If the driver braked during the course of negotiating this bend, this would cause further instability. He was asked what his view was of a loaded articulated lorry with a full 28 tonne load on it negotiating this bend at 61mph: he observed that this was a significant speed for that bend. He had negotiated that bend many hundreds of times in a police patrol car, and would drive round it at a maximum of 70 to 75mph if he was attending an incident as an emergency. He observed that a speed of 10mph less than this for a laden articulated lorry was a significant speed, and his impression was that the driver took the bend too fast. When he was asked what, in his opinion, was the cause of the accident, he replied that it was the approach speed of the lorry, together with the driver's action in changing lanes and applying the brakes at the wrong time when the vehicle was already almost at its critical speed; in his opinion it was driver input which caused the accident.

[12] Andrew Jamieson was an experienced lorry driver who was driving a white 6-axled 38-tonne Mercedes articulated lorry south across Friarton Bridge just before the accident on 20 September 1998. He had held a heavy goods vehicle licence for nearly 40 years. He had driven lorries up the slip road and over the flyover bridge where the accident happened on many occasions; he would slow down to about 50mph at this bend, and he regarded 50mph to be the maximum limit of safe speed. He normally drove either 38-tonne or 25-tonne lorries. The lorry that he was driving on that date was fitted with a speed limiter which was set to a maximum speed of 56mph, but he thought that this was perhaps a wee bit generous, and his actual maximum speed might have been 58mph. He gave evidence that the lorry driven by the pursuer overtook him as he was driving across the Friarton Bridge, just before the slip road. Under reference to the photographs in 23/2 of process, he stated that he was where the white lorry was in photograph A when the pursuer's lorry overtook him. Mr Jamieson was driving at 56 to 58mph, and the pursuer's lorry was travelling "at a fair speed" which he estimated at nearer 70mph. The pursuer's lorry came across in front of Mr Jamieson's lorry, just after the 100 metre marker, in order to leave the main motorway by the slip road: the pursuer's lorry did not slow down much at all. Mr Jamieson continued on the main motorway, and as he was about level with the pillar of the bridge in photograph D of No.23/2 of process he saw the pursuer's lorry on the bridge, just on its nearside wheels. As Mr Jamieson was passing under the flyover bridge, the pursuer's lorry was crashing into the crash barrier; Mr Jamieson stopped and telephoned the police. In cross examination for the pursuer, Mr Jamieson stated that he flashed his headlights at the pursuer at a point between 100 yards and 50 yards before the slip road to indicate that the pursuer could cut in front of him. It was put to him that this happened further away from the slip road, but Mr Jamieson denied this.

[13] Dr John Horsfall spoke to his report (No.23/3 of process) in which his qualifications and experience were summarised. With regard to the skid marks and scuff marks on the road, he expressed the view that these would be made by the outer shoulder of the tyre, exacerbated by the fact that the outer part of the tyre was more heavily laden. He inferred from the skid marks at point C on the plan that the driver was applying heavy braking, and the lorry was subject to lateral movement, and that these marks must have been made by the offside wheels of the tractor unit. He observed that on a public road any vehicle leaving tyre marks was not fully under control, and this indicated that the lorry was at the limits of controllability. If a vehicle is cornering so hard that it leaves tyre marks (especially if it is a high vehicle such as a lorry or a bus) it is not certain that the vehicle can be brought back under control. An accident becomes inevitable once the vehicle begins to roll over, and the rollover of articulated lorries is almost always initiated by the trailer rolling over. The accident therefore became inevitable at around marks C and D on the plan. With regard to the various figures which had been given for the radius of the bend, and standing the uncertainty in the other factors surrounding this accident, he did not consider that the difference between a radius of 165 metres and a radius of 174 metres was material. In cross examination he did not consider that braking would have a great effect on the stability of the lorry, although heavy emergency braking was likely to make things worse. Although he had not seen Mr Humphreys' report (No.6/13 of process) before, he observed with reference to the magnified copy of the tachograph chart appended thereto that a peak such as is seen at point B is not uncommon where a lorry rolls over; it did not represent the true speed of the vehicle, but showed that the drive wheel had left the road at one side and was spinning. The drop in speed just before that peak was consistent with a braking manoeuvre immediately before the lorry rolled over.

[14] The defender was aged 45 at the date of the proof and obtained his HGV licence when he was aged about 22. At the time of the accident he was operating his own haulage business, which ran about four or five lorries; he ceased this business in about March 2000, since which date he had been a lorry driver. He bought the lorry which the pursuer had been driving on the day of the accident about one year before that date. He had to make sure that the tachograph was properly calibrated and checked, so about 11 months before the accident he arranged for this to be done at the tachograph centre at Harper's Commercial, Bucksburn, Aberdeen. He paid for this work, and so far as he was aware the work which was instructed was performed. He did not learn until some time after the accident that the tachograph had been incorrectly calibrated, and he did not know how it came to be wrongly calibrated.

[15] Before driving a lorry, if he did not supervise the loading himself he would check to see that it was properly and safely loaded, and if it was not properly loaded he would be concerned and would sort this out. He knew the bend on which the accident occurred well - before the accident he had driven a loaded lorry over that stretch of road two or three times each week, with a load similar to that which the pursuer was driving. He would normally negotiate this bend at about 40mph. He was asked if he would ever go round this bend at 56mph, and he stated that one would have to be very brave to do so, and in addition one would have to be driving an unloaded trailer. There was no chance of doing it safely with a loaded trailer.

Mr Peter Jennings is the principal consultant in the Investigations and Risk Management Group at the Transport Research Laboratory specialising in road accident reconstruction and investigation matters. He spoke to his report (No.7/10 of process), in which his qualifications and experience were summarised. With regard to his measurement of the radius of the bend, he had no written evidence of this so he measured it from the police plan. He did not consider that a difference between 160 and 165 metres was material. He stated that the nominal setting for the tachograph speed limiter should be 90kph (which equates to 56mph), but a latitude of 2 to 3kph was allowed under the regulations. The tachograph in question exceeded this margin of error. He explained that only an authorised tachograph calibrator should calibrate a tachograph, which should be done in accordance with the tachograph manufacturer's handbook and then sealed to prevent tampering. He agreed with other witnesses that it was difficult to interpret or analyse accurately a photocopy of a tachograph chart, but it appeared from the photocopy before him that the lorry was effectively driving at its typical open road constant maximum speed between 1455 and 1510 on the day in question. With reference to paragraph 8.2 of his report, he accepted that if there was a camber on the road in question this would affect his calculations, and the steeper the camber the larger the effect would be. He expressed the view that a lateral acceleration rate of about 0.4g equated to about 57mph, and that if the lorry was being driven around this bend at about 57mph it was "on a knife edge" as to whether it would roll over or not. In cross examination he accepted that the details of the camber of the road would change his figures slightly, but he would be surprised if they had the effect of increasing the lateral acceleration rate as high as 0.45g. Paragraphs 5.4.1 to 5.4.3 of Dr Horsfall's report (No.23/3 of process) were put to him and he agreed with the contents of these paragraphs. He was asked if he disagreed with a rollover speed of 62mph, and he replied that he did not disagree, but he did not think that anyone could give an exact figure for the rollover speed.

[16] Other witnesses gave evidence, and the above witnesses gave additional evidence, which I need not rehearse in light of the restricted nature of the points now in issue.

Submissions for the pursuer
[17] Mr MacAulay indicated that the legal basis for the pursuer's case now rests on breach of the statutory duties imposed by the Employer's Liability (Defective Equipment) Act 1969, section 1, and by the Provision and Use of Work Equipment Regulations 1992, Regulation 6. With regard to the 1969 Act, it was conceded on behalf of the first defender that the pursuer was an employee for the purpose of section 1. Mr Humphreys' evidence was that erroneous calibration of the tachograph should not have happened and was indicative of carelessness. The tachograph and speed limiter were not performing the task for which they were fitted, and this amounted to a defect in equipment provided by the first defender. The calibration of the tachograph at the calibration centre was equivalent to repair of equipment; in this context I was referred to the note to the annotated edition of the 1969 Act, which includes the statement that "the defect may arise in the course of manufacture, during distribution or even after acquisition, e.g. where an employee tampers with the equipment or where a repairer repairs it unskilfully". Mr Jennings' evidence agreed with that of Mr Humphreys, to the effect that the calibration of the tachograph was incompetent and a mistake. The pursuer therefore brought himself within the terms of section 1 of the 1969 Act. With regard to the 1992 Regulations, the duty under Regulation 6 was a strict duty. It was part of the first defender's case on record that the tachograph had been wrongly calibrated by the garage which had carried out the last calibration check prior to the accident and was found to have been under-indicating speed by about 10%. It was therefore not performing as it ought to have performed; it was not in an efficient state nor was it in efficient working order nor was it in good repair. The first defender was accordingly deemed to be negligent in terms of the 1969 Act, and was in breach of the duty imposed by the 1992 Regulations. The question then arose whether these breaches were purely technical, not giving rise to any liability, or whether they were in any way causative of the accident.

[18] With regard to the evidence, Mr MacAulay relied on four propositions:-

(i) The lorry overturned because it reached its rollover speed. Mr Geary, Dr Horsfall and Mr Jennings agreed on this. Mr Alexander's calculations suggested a rollover speed of 70mph and the pursuer's braking creating instability in the lorry, but neither Dr Horsfall nor Mr Geary thought that braking played any part in the accident - by the time the pursuer started to brake, the trailer had already begun to tilt, and a rollover was inevitable.

(ii) The incorrect calibration of the tachograph meant that the speed limiter was under-indicating the actual speed of the lorry by about 10%. This was agreed in the parties' pleadings, and in any event was borne out by the evidence.

(iii) The rollover speed of the lorry, on the assumption that the load was secure, was best estimated at about 62mph. Dr Horsfall stated this in evidence, and this is the consequence of paragraphs 5.41 to 5.43 and 5.61 to 5.63 of his report, with which Mr Geary and Mr Jennings agreed.

(iv) At about the time of the accident, the lorry was travelling at 62mph. This does not appear to be disputed; it is the subject of averment on behalf of the first defender, and Dr Horsfall reached this conclusion at paragraph 5.5.5 of his report.

[19] It follows that the lorry was only able to achieve the speed of 62mph because of the incorrect calibration of the tachograph - but for that, the lorry would not have reached its rollover speed. If that is correct, counsel submitted, the incorrect calibration was at least in some part the cause of the accident. The pursuer would not have been able to reach rollover speed if the tachograph had been properly calibrated. Against this, he suggested that the defenders could advance only two arguments - (a) that the pursuer was negligent in driving at such a speed as to cause him to overturn; Mr MacAulay did not take issue with that proposition, but the appropriate way of dealing with it was a finding of contributory negligence (on which see further below); and (b) the defenders seek to rely on the fact that a certain element of tolerance was admissible in the calibration of tachographs - but on the evidence, that degree of tolerance is only some 6kph, and it is a matter of admission that the error of calibration was greater than this. The line may be a fine one, said Mr MacAulay, but there is a line which can properly be drawn.

[20] Finally, senior counsel addressed the question of contributory negligence. He did not dispute that the pursuer was driving too fast in the circumstances, and indeed the pursuer himself said that he would normally go round this bend at between 40 and 50mph, and that 60mph would be too fast. However, if the correct rollover speed of the lorry was 62mph, the pursuer had a reasonable chance of negotiating this bend safely had his speed been limited properly. The vehicle was unsafe because the tachometer was incorrectly calibrated, and the defender himself said that he had driven this lorry on occasions over the previous 11 months without realising that it was running too fast. However, Mr MacAulay accepted that a competent driver can assess whether he is driving too fast or not. He submitted that the appropriate way of disposing of this case was to find liability shared between the pursuer and the defender, and so to make a finding of 50% contributory negligence. This would reflect the fact that the lorry was not safe having regard to the incorrect calibration of the tachograph, and the defender must bear the burden of that unsafeness. Accordingly he invited me to sustain the first plea-in-law for the pursuer insofar as directed against the first defender, and the second plea-in-law, to repel the defenders' pleas-in-law, and thereafter to put the matter out By Order.

Submissions for the first defender
[21] Mrs Stacey submitted that the question was not whether the wrong calibration of the tachograph was in any way causative of the action - it was necessary to go further and decide whether legal causation had been established. Many things may be causative to some extent of an accident, but it is only legal causation that gives rise to liability. If it could be shown that the rollover speed of this lorry at the locus was, or may have been, under 59.7mph, then factual causation could not be made out, as the lorry would have rolled over at a speed lower than that indicative of fault (or breach of statutory duty) on the part of the defender. She referred me to Council Regulation (EEC) No.3821/85 of 20 December 1985 on recording equipment in road transport, which provided that tachographs might have a maximum speed tolerance of 6kph more or less than the real speed (which equated to 3.7mph). The pursuer stated that he thought that his lorry was limited to 56mph, but obviously the speed limiter would be subject to the maximum permitted tolerance, so it might be limited to 59.7mph. Moreover, the driver would know that tachographs did not always limit a lorry's speed to exactly 56mph - the pursuer admitted this in cross examination, and Andrew Jamieson confirmed this when he said that the pursuer's lorry overtook him travelling quite fast, and that speed limiters have some leeway and are not absolutely precise. It followed that if the pursuer could not prove that but for the faulty tachograph the lorry would not have overturned because it would have been travelling at less than 59.7mph, the action must fail because there was no factual causation.

[22] Even if the pursuer could prove such factual causation, this is not per se enough, he needs to go on to establish legal causation. In support of this submission Mrs Stacey referred me to the decision of the House of Lords in Fytche v Wincanton Logistics plc [2004] UKHL 31, and in particular the speeches of Lord Hoffman at paragraphs 5 to 7 and Lord Walker of Gestingthorpe at paragraphs 51 to 54. In that case a lorry driver was provided by his employers with steel capped safety boots to protect his feet against injury from heavy objects. During a night of extreme weather conditions his lorry became stuck in snow and he spent several hours digging it free unaware of a hole in one of his boots. He suffered frostbite in his toe and brought proceedings against his employers alleging breach of the duty under Regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992 for employers to keep personal protective equipment "in an efficient state ....and in good repair". Ultimately the lorry driver accepted that his duties did not require him to walk about for long periods in snow and ice, and that the boots were adequate for his ordinary conditions of work, so he abandoned his case of negligence. However, he maintained his case under the 1992 Regulations. By a majority their Lordships rejected his claim, because the statutory duty only required employers to provide equipment suitable to protect employees against an identified risk, and did not extend to repairs or maintenance having no bearing on the function of the equipment as personal protective equipment.

[23] It was accordingly necessary, counsel submitted, to look at the scope of the duty imposed by statute to decide whether, in a given set of circumstances, an employer is liable. It is necessary to look at the Regulations in their context and determine what they are about. Counsel submitted that a lorry driver must retain autonomy as a driver- he is the equivalent of a captain of a ship. If there is a defect which causes the lorry to blow up at a reasonable speed, then clearly such a defect would not be the driver's fault. However, if an accident happens because he does something in breach of his own duty to take care for his own safety, then that is his fault and not the fault of his employer. He cannot escape the need to rely on his own judgment as a driver by pointing to some technical breach by his employers - notwithstanding the fact that the EEC Council Regulation was concerned with road safety, this does not diminish the autonomy of the driver nor remove the need for him to exercise the necessary skill, care and attention. As the pursuer himself said in evidence, there are some matters which are "a driver's thing" - some areas in which there is no substitute for the driver's own judgment. The figure of 56mph in the Regulations was wholly arbitrary - the pursuer's position in evidence was that to go round the bend in question relying on the tachograph limit would be unsafe, and he did not suggest that he was lulled into a false sense of security by the tachograph.

[24] Mrs Stacey submitted that the law seeks the causa causans rather than the causa sine qua non; these are referred to respectively as the effective factor and the factor without which damage could not have occurred. In support of this she referred me to the paragraph headed "The 'But For' Test" at paragraph 2-06 of Clerk and Lindsell on Torts (18th Edition). She went on to submit that the pursuer's action in driving so far in excess of the safe speed (on his own evidence) was such that it obliterates any wrongdoing by the first defender, and amounted to a novus actus interveniens, breaking the causal connection between the wrongdoing and the damage. As Clerk and Lindsell put it at paragraphs 2-36 and 2-37,

"the defendant's conduct may have satisfied the 'but for' test, in the sense that without his wrongful conduct the damage would not have occurred. But this, in itself, is not determinative of whether he should be held responsible when other causally relevant events have played a role. Thus, in the majority of cases where a plea of novus actus succeeds, there will have been a prior finding that the original wrongdoing does indeed satisfy the 'but for' test of factual causation. It is a cause of the damage. On grounds of equity and policy the Court then proceeds to find that in the light of subsequent events, the defendant should not be held answerable for consequences beyond his control. A novus actus may take three forms ...(iii) the conduct of the claimant himself. Whatever its form the novus actus must constitute an event of such impact that it obliterates the wrongdoing of the defendant".

Mrs Stacey relied on the evidence of Mr Jamieson who thought that the pursuer was driving very fast. She submitted that this was clearly much worse than careless driving - it was not a momentary lapse, but rather involved driving a heavily loaded lorry round a dangerous bend at far too high a speed, with a real risk of killing people all around including those on the motorway below the bridge.

[25] Mrs Stacey went on to refer me to Clerk and Lindsell at paragraph 2-51, where the learned authors state that:

"When the conduct of the claimant exacerbates, or adds to the injuries, of which he complains, that conduct will generally result in a reduction of his damages on grounds of contributory negligence, or failure in his duty to mitigate damage. However, it may be that the conduct of the claimant is so wholly unreasonable and/or of such overwhelming impact that that conduct eclipses the defendant's wrongdoing and constitutes a novus actus. His own conduct is found to be the effective cause of his injury".

In support of this I was referred to the well known dictum of Lord Reid in McKew v Holland and Hannen & Cubitts (Scotland) Ltd 1970 SC(H.L).20 at 25. Applying these principles to the present case, Mrs Stacey argued that although the first defender made the accident possible, it was the pursuer who made it happen by an extremely negligent act which was such as to eclipse the negligence of the defender in providing a lorry with a wrongly calibrated tachograph.

[26] Mrs Stacey went on to observe that in appropriate cases it may be that the Courts will hold that the test of causation is satisfied on policy grounds when it would not otherwise be satisfied; in this regard she referred me to Chester v Afshar [2004] UKHL 41. That decision depended peculiarly on the facts of that case, and there were no policy considerations in the present case to remove it from the normal rules of causation. In essence the point was a simple one: the pursuer was not in fact relying on his tachograph or speed limiter, he was simply driving too fast and this was the cause of the accident. In these circumstances decree of absolvitor should be pronounced.

[27] Turning to the evidence, Mrs Stacey submitted that absolvitor was also the only appropriate disposal if it was held that the lorry might have rolled over at a speed under 59.7mph. The "best estimate" of the rollover speed of the lorry at 62mph depended significantly on a variety of measurements taken by Mr Alexander, and Mrs Stacey urged me not to place too much weight on the accuracy of his measurements. Both Mr Geary and Dr Horsfall based their estimates and analyses partly on figures taken by Mr Alexander and partly from scaled up plans. Mr Alexander's evidence was not satisfactory on a number of fronts - for example, he was unable to explain why the critical speed would be lower than the rollover speed, nor could he explain precisely where he took his chain measurements. His measurements were not accurate enough nor reliable enough to use as the basis for such fine line measurements - and the question of fact in this case was indeed a fine line. Mr Geary, Dr Horsfall and Mr Jennings each indicated that their various calculations depended on a number of factors, including the amount of play on the fifth wheel, the exact configuration of the load, the vehicle's suspension and the inflation of its tyres, the state of the road surface, the actions (if any) of the driver, the radius of the bend and the extent of the camber. It was for this reason that Mr Jennings was unable to be definite about the actual speed of the lorry and the rollover speed of the lorry. He put the rollover speed at 57mph, but he could not be definite about this and this did not include the element of crossfall. However, he was surprised at Dr Horsfall's assessment of lateral acceleration being as high as 0.45g. What is clear is that the rollover speed could not be lower than 57mph, and Mrs Stacey submitted that this was the only safe finding in fact. Standing all the uncertainties, and the added difficulty of having to work from a photocopy of the tachograph record, the Court should be slow to make any definite finding that the rollover speed was greater than 57mph.

[28] Finally, Mrs Stacey submitted that if there was any finding of liability against the first defender, it should be far less than 50%. In the event that I was against her on all the submissions summarised above, she urged me to assess contributory negligence at 95% and to find the first defender liable only for 5% of the relevant award of damages.

Reply for the pursuer
[29] In reply, Mr MacAulay observed that in relation to any argument of novus actus interveniens the onus of averring and proving this rests on the defender. In support of this he referred me to Walker on Delict (2nd Edition) at page 216. In order for this argument to succeed, the first defender would have to prove that the lorry would have rolled over at a speed less than 59.7 mph. There was no evidence to support this. It cannot be said that the pursuer's negligence was the sole cause of the accident unless it can be said that the lorry would have rolled over at a speed less than 59.7mph.

[30] With regard to contributory negligence, although the negligence of the defender in terms of the 1969 Act is deemed negligence, it is still negligence. Mr Humphreys' evidence was that the incorrect calibration of the tachograph indicated fault, and Mr Jennings said that it was incompetent. Against this, it was accepted that the pursuer, in the course of the first defender's business, drove too fast around this corner and made an error of judgment. However, there was no element of recklessness - it was a simple careless act. Finally, he reminded me that Regulation 6 of the 1992 Regulations "clearly imposed an absolute obligation on the employer, in language construed over many years in respect of the health and safety of employees as imposing a strict obligation" - Stark v Post Office [2000] ICR 1013.

Decision

[31] I shall set out my views on the evidence first, before turning to the legal arguments which were advanced in light of the evidence. I observe at the outset that two things are clear from the evidence, and indeed were not in dispute: first, the pursuer was driving this lorry around the bend in question at a speed far higher than was safe, and it was this unsafe and excessive speed which caused the accident, and second, the tachograph and associated speed limiter fitted to the lorry was wrongly calibrated so that it under-indicated the actual speed of the lorry by about 10%. None of the rest of the evidence was as clear cut, depending as it did largely on analyses and professional judgments of several road accident investigators, each of whom was doing his best to analyse and interpret incomplete and imperfect data. The point which Mrs Stacey made in her submissions in this regard was sound - there are many variables and imponderables such as the exact configuration of the load, the play on the fifth wheel, the suspension of the vehicle, the inflation of the tyres, the state of the road surface, the actions of the pursuer and even the radius of the bend. However, ultimately there was relatively little which separated the views of Mr Geary, Dr Horsfall and Mr Jennings: where there was any dispute, I preferred the evidence of Dr Horsfall whom I found to be an impressive witness who provided a careful report and who was not prone to exaggeration. I was satisfied on the balance of probabilities of the following facts:-

The lorry was travelling at about 61mph or 62mph when it began to roll over. (Dr Horsfall estimated the speed at about 62mph at paragraph 5.5.5 of his report; Mr Geary put the speed at approximately 61mph; and although Mr Jennings felt unable to be precise, he did not quarrel with Dr Horsfall's figure.
The lateral acceleration of the vehicle was about 0.44g or 0.45g (when account is taken of the crossfall, both Mr Geary and Mr Jennings appeared to agree with Dr Horsfall on this point).
The rollover speed of the vehicle was about the same as its actual speed, i.e. 61 to 62mph.
In terms of the Council Regulation (EEC) No.3821/85 the maximum permissible tolerance in a tachograph in use with regard to speed is 6kph, which equates to 3.7mph.
The tachograph would therefore have complied with the EEC Regulation if it had limited the speed of the lorry to 59.7mph. It did not do so.

[32] If the rollover speed of the lorry on this bend had been less than 59.7mph, then I consider that the action would have been bound to fail on grounds of causation. Although the matter is very finely balanced - as Mr Geary observed, "right on the edge" - I am satisfied on the balance of probabilities that that is not the case here. I am satisfied that both the actual speed of the lorry and the rollover speed of the lorry were higher than 59.7mph. It is therefore necessary to consider the rest of the submissions made for each of the parties.

[33] I am satisfied that the pursuer has established a defect in equipment provided by his employer for the purposes of the employers' business, and that the defect is attributable wholly or partly to the fault of a third party. Leaving aside causation (and so the important words "in consequence of" where they appear in section 1) I am satisfied that section 1 of the Employer's Liability (Defective Equipment) Act 1969 applies. I consider that the incorrect calibration of this tachograph is equivalent to a repairer repairing it unskilfully. Both Mr Humphreys and Mr Jennings regarded this erroneous calibration as indicative of carelessness or incompetence. It was attributable wholly or partly to the fault of the calibrator and this is deemed to be negligence on the part of the first defender by reason of section 1 of the 1969 Act. I am also satisfied that the tachograph and speed limiter comprised work equipment for the purpose of Regulation 6 of the Provision and Use of Work Equipment Regulations 1992, and that the first defender failed to ensure that it was maintained in an efficient state, in efficient working order and in good repair. As was held in Stark v Post Office [2000] ICR 1013 this Regulation imposed an absolute obligation on the first defender.

[34] Although I am satisfied with the legal basis for the pursuer's case and have accepted the four propositions advanced by Mr MacAulay in his submissions, that is not the end of the matter. As Mrs Stacey submitted, in order to succeed the pursuer must establish not only "but for" causation but legal causation. In determining this issue, I have not derived much assistance from the case of Fytche v Wincanton Logistics to which I was referred. I have no difficulty with the proposition that one must look at the scope of a duty imposed by a statute or regulations to decide whether liability arises. In that case, as already described, the employee alleged that his employers had failed to keep personal protective equipment in an efficient state and in good repair because one of a pair of safety boots had a small hole in it which allowed the entry of water. The claimant's appeal was dismissed by the House of Lords on the basis that the boots were provided to protect against an identified risk (i.e. injury from heavy objects) and that the duty was to maintain and repair the equipment so that it continued to provide protection against that identified risk and did not extend to repairs or maintenance having no bearing on its function as personal protective equipment. In the present case, I consider that the obligation to provide an accurate tachograph (with associated speed limiter) is directed precisely at the purpose of preventing lorry drivers from driving too fast. If one looks to the preamble to Council Regulation (EEC) No.3821/85 to find its purpose one finds the following: "Whereas automatic recording of other details of a vehicle's journey, such as speed and distance covered, will contribute significantly to road safety and will encourage sensible driving of the vehicle; whereas, consequently, it appears appropriate to provide for the equipment also to record those details....". This, it seems to me, places the present case in a quite different category from Fytche. In the present case, the first defender was obliged to provide a tachograph, accurate within certain tolerances, for the express purpose of contributing to road safety and encouraging sensible driving of the vehicle. The scope of the duty on the first defender therefore comprehends the circumstances of this case.

[35] Mrs Stacey's argument on causation went further than simply arguing that any failure by the first defender was a "but for" cause and that the "effective" cause was the pursuer's own actings; she developed her argument to the effect that the pursuer's act in driving at such a grossly excessive speed amounted to a novus actus interveniens breaking the chain of causation. That the law recognises such an event I am in no doubt. I do have some doubt as to whether McKew v Holland and Hannen and Cubitts (Scotland) Ltd was truly concerned with such a situation. Although some of their Lordships' language appears to suggest that they were applying their minds to causation in the context of establishing delictual liability, I am inclined to the view that that case was rather more concerned with questions of remoteness of damage. It concerned an accident sustained by an employee as a result of the admitted fault of his employers. Three weeks after the accident the pursuer sustained further injury in a separate accident. The heading to the case as reported in Session Cases is "remoteness of damage", and the rubric narrates that the House of Lords held that the pursuer's unreasonable conduct in the second accident was novus actus interveniens, breaking the chain of causation, and that it and its consequences were not the natural and probable result of the defenders' fault. The case appears to have been relied upon more often in considering remoteness of damage than in considering causation as a prerequisite of liability. However, these observations merely relate to whether the case of McKew provides a good example of the principle on which Mrs Stacey was relying: I accept that the principle exists.

[36] However, not every act of a claimant himself will amount to a novus actus - it must constitute an event of such impact that it obliterates the wrongdoing of the defendant (see the discussion in Clerk and Lindsell on Torts at paragraphs 2-36 to

2-52). Mrs Stacey submitted that the pursuer's action in driving this loaded lorry round the bend in question at such a high speed went beyond mere carelessness on his part and amounted to recklessness.

[37] While I agree that the pursuer's driving was negligent, I am not persuaded that it amounts to a novus actus interveniens. There was evidence from Mr Geary that lorry drivers tend to drive at the maximum of their limited speed, which gives rise to the phenomenon which he called "rolling jams" with one lorry overtaking another lorry very slowly. It is a recognised and foreseeable risk that lorry drivers may drive their vehicles too fast - it was because of this that Council Regulation (EEC) No.3821/85 was adopted "to contribute significantly to road safety" and to "encourage sensible driving of the vehicle". A decision on this point is inevitably one of degree. In the present case I am not persuaded that the pursuer's negligent driving amounted to a novus actus interveniens such as to obliterate the deemed negligence and breach of duty of the first defender.

[38] This brings me to the final matter for my consideration, namely the assessment of contributory negligence. Despite my remarks in the preceding paragraph regarding causation and novus actus, and although I am satisfied that in this case the incorrectly calibrated tachograph and speed limiter amounted to an effective cause of the accident together with the pursuer's excessive speed, I am in no doubt that it was the pursuer's excessive speed which was by far the greatest contributory factor to this accident. The pursuer himself accepted that a speed of 40 to 45mph was the safe speed at which to negotiate this bend, and that a speed of about 60mph was far too fast. Several other witnesses supported this view, and there was no contradictory evidence. Moreover, the pursuer accepted that he knew that tachographs occasionally underestimated the actual speed of a lorry, and that he would rely on his own experience as a lorry driver when negotiating this bend, rather than relying solely on the tachograph and speed limiter. His driving at such a speed was particularly reprehensible given his concerns about the stability of the load and the handling of the lorry on other bends earlier in the journey. By contrast, the role played by the wrongly calibrated tachograph as an effective cause of this accident was in my view minor. In these circumstances I apportion the liability for this accident and the pursuer's consequent injuries as resting 90% with the pursuer himself and 10% with the first defender. I shall accordingly sustain the first plea-in-law for the pursuer, restricted to breach of statutory duty of the first defender, and in terms of the Joint Minute for the Parties tendered at the Bar (No.38 of process), I propose to reduce the damages recoverable by the pursuer in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945 to the figure of 10% of the total referred to in paragraph 1 of the joint minute. As requested by parties, the case will be put out By Order to enable the practical mechanisms of implementing this decision to be discussed.