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Opinion of Lord Macphail

Donald Robertson (Pursuer)

against

Inspirations East Limited (Defenders)

Summary

14^th February 2006

This action of damages for personal injuries concerns holidaymakers who were involved in a road accident in Turkey on 17 June 1995. In all, six actions were brought against Inspirations East Ltd., the company with which the holidaymakers had contracted for their holidays. It was agreed that the decision in Mr and Mrs Robertson's action would determine the question of liability in all six actions.

Lord Macphail decided that the pursuers had not established on a balance of probabilities that the coach driver was to any extent to blame for the accident, and absolved Inspirations East Ltd.

This is one of six actions of damages for personal injuries which arise from a road accident in Turkey on 17 June 1995. A number of holidaymakers flew from Scotland to Turkey on package holidays. They arrived at Dalaman Airport in Turkey and were on their way by coach to their hotels in the holiday resort of Marmaris when the coach collided with a lorry. Three of the coach passengers and the driver of the lorry died in the accident. The pursuers in these six actions either suffered the loss of a relative or were seriously injured themselves as a result of the accident. In these six actions they sued Inspirations East Ltd., the company with which they had contracted for their holidays. It was agreed that the decision in Mr and Mrs Robertson's action would determine the question of liability in all six actions.

Although the accident took place in Turkey, the parties agreed that the Court of Session had jurisdiction to hear the case and that the law of Scotland applied. While the action arose from the alleged negligence of the coach driver, its legal basis was that his negligent driving was a breach of the contract between the pursuers and the defenders. The contract was a "consumer contract", and the Civil Jurisdiction and Judgments Act 1982 allows a consumer to bring an action concerned with matters relating to such a contract in the courts of the place in which the consumer is domiciled. The pursuers are domiciled in Scotland. The law of Scotland applied because in a civil case the law of another country is presumed to be the same as the law of Scotland if, as in this case, neither party alleges and proves that it is different.

Another passenger in the coach, Ms Linda Ellison, brought a similar action against Inspirations East Ltd. which was heard by Lord Hardie in 2002. Lord Hardie held that the coach driver was not to blame for the accident, and his decision was affirmed by the First Division.

The accident happened in darkness in the early hours of the morning. Lord Macphail found that the lorry was travelling towards the coach when it swerved into the path of the coach three times, colliding with it on the third occasion. Lord Macphail said that the time between the coach driver's first sight of the lorry and the impact was probably no more than about 13 seconds.

The accident had occurred more than 11 years ago and had been a traumatic experience for the coach passengers who gave evidence. Some had been injured, while others had seen their friends or fellow-passengers injured or dying. In these circumstances the search for trustworthy evidence, especially in relation to speed, times, distances and vehicle movements was extremely difficult.

Lord Macphail found that the coach driver had braked and swerved to the right before the impact, but the evidence was much too imprecise to enable him to reach any conclusion as to whether the coach driver had had time to react earlier than he did and so avoid a collision.

Lord Macphail therefore held that the pursuers had not established on a balance of probabilities that the coach driver was to any extent to blame for the accident, and absolved the defenders.

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 30

A1602/01

OPINION OF LORD MACPHAIL

in the cause

(FIRST) DONALD THOMAS ROBERTSON (AP)

and

(SECOND) JUNE ROBERSTON (AP)

Pursuers;

against

(FIRST) INSPIRATIONS EAST LTD

and

(SECOND) RAMSAY WORLD TRAVEL LTD

Defenders:

________________

Pursuers: A. Smith, Q.C., A.E. Smart; H.B.M. Sayers

First Defenders: Mitchell, Q.C., R.G. Milligan; Simpson & Marwick

Second Defenders: No appearance

14 February 2007

Introduction

[1] This is the leading action of six actions of damages which are to be conjoined. In each case the pursuer or pursuers sue Inspirations East Ltd. In this action and in three of the other actions another company is called as the second defender, but none of these second defenders has compeared. All six actions arise from a road accident which occurred in Turkey as long ago as 17 June 1995. The pursuers had set out on package holidays from Glasgow to Turkey and had flown from Glasgow Airport to Dalaman Airport in Turkey. Having arrived at Dalaman Airport they were being conveyed by coach from the airport to their hotels in the holiday resort of Marmaris. On the journey to Marmaris, the coach collided with a lorry. Three of the coach passengers and the driver of the lorry died in the accident. The pursuers, and others, were seriously injured. In this action the pursuers blame the coach driver for the accident and sue Inspirations East Ltd, with whom they had contracted for their holidays, and Ramsay World Travel Ltd, who are the travel agents through whose agency the contracts were made. Inspirations East Ltd are the only compearing defenders and are referred to hereafter as "the defenders".

[2 ] Although the accident took place in Turkey, the parties are agreed that this Court has jurisdiction and the law of Scotland is applicable. This Court has jurisdiction in this way. While the action arises from the alleged negligence of the coach driver, its legal basis is an alleged breach of the defenders' obligations under a contract between them and the pursuers. It is agreed that there is a contract between the defenders and the pursuers which relates to a package holiday within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992 (S.I. 1992, No. 3288) ("the Regulations"). Regulation 15(1) makes the defenders liable to the pursuers for the proper performance of the obligations under the contract; and the pursuers say that the allegedly negligent actings of the coach driver amounted to improper performance of the defenders' obligations under the contract. The contract is a consumer contract, and the action is concerned with matters relating to that contract. When this action was raised in 1998, the rules as to jurisdiction over consumer contracts were set out in articles 13 to 15 of Schedule 4, and rule 3 of Schedule 8, to the Civil Jurisdiction and Judgments Act 1982. (The rules now in force, which so far as material are to the same effect, appear in paragraphs 7 to 9 of Schedule 4, and rule 3 of Schedule 8, all as substituted by the Civil Jurisdiction and Judgments Order 2001 (S.I. 2001, No. 3929), articles 1(b) and 4, and Schedule 2.) Rule 3 allowed the consumer to bring proceedings against the other party to the contract in the courts for the place in which the consumer himself was domiciled. The pursuers in the present actions are the consumers and are domiciled in Scotland. This Court accordingly has jurisdiction. As to the law to be applied, in this case the law of Turkey is presumed to be the same as the law of Scotland since neither party has maintained the contrary (Macphail, Sheriff Court Practice (3^rd edn, 2006), paragraph 9.18 and cases there cited).

[3 ] I have now heard a proof before answer restricted to issues of liability only. The pursuers blame the coach driver for the accident and found on regulation 15(1) of the Regulations, as I have explained. The defenders say that the coach driver was blameless and the accident was caused entirely by the fault of the lorry driver. They rely on regulation 15(2), the effect of which is that they will avoid liability if the improper performance of the contract was attributable to a third party unconnected with the provision of the services contracted for and was unforeseen or unavoidable, or was due to unusual and unforeseeable circumstances beyond the defenders' control, the consequences of which could not have been avoided even if all due care had been exercised.

The factual dispute

[4 ] Many of the material facts are not in dispute. On record, the following facts are averred by the pursuers and admitted by the defenders. Each of the pursuers contracted with the defenders for a holiday in Marmaris, which included travel between Glasgow and Marmaris. They arrived at Dalaman Airport on 17 June 1995. It had been arranged that they would be conveyed by coach from the airport to their accommodation in Marmaris. The coach was a Mitsubishi Marathon coach with the registered number 42 S 4494. The driver's name was Dirgan Ucar [named elsewhere, and hereafter in this Opinion, as "Uçar Dirgan"]. The coach uplifted the pursuers and others, left the airport and was being driven in a north-westerly direction towards Mugla, on the Dalaman to Mugla road. [It is common ground that in Turkey vehicles drive on the right.] The weather was fine and visibility was good. [It is also common ground, however, that it was early in the morning and it was still dark.] The road was a single carriageway, with unmade hard shoulders on both sides of the road. At the same time, a Fiat 50NC motor lorry was being driven on the road in a south-easterly direction towards Dalaman. The driver was Huseyin Termelez. As the lorry approached the coach, it began to swerve and encroached into the northbound carriageway. [The pursuers aver that it did so "on two occasions": the defenders aver that it did so "on at least two occasions".] The coach driver noted the danger and flashed the headlights of the coach to warn the lorry driver. The coach continued to drive in the northbound carriageway towards the approaching lorry. A collision occurred between the lorry and the coach. The front of the coach and the left front of the lorry collided, with the vehicles overlapping by about a third. The coach left the road and entered a ravine. The coach driver was subsequently convicted of an offence within the 10^th Division of Istanbul Criminal Court and was found to be 25% responsible for the accident taking place. It should be added that the defenders believe and aver that the lorry driver had fallen asleep at the wheel.

[5 ] The following facts relative to the accident are agreed by joint minute. Following the accident, the resting positions of the coach and the lorry were approximately 70 metres apart. The horizontal distance across the ravine was approximately 5 metres. The depth of the ravine at the point where the coach came to rest was approximately 3.65 metres. The point of collision between the front nearside of the coach and the side of the ravine is shown by the circled area on a photograph of the ravine (No. 13 of No. 6/17 of process). The latter "fact" is clearly wrong, as I shall explain later.

[6 ] On record, the following issues of fact are in dispute. First, as I have already noted, the pursuers aver that the lorry encroached into the northbound carriageway "on at least two occasions", while the defenders aver that it did so "on two occasions", prior to the accident. The defenders' account on record is that on the first occasion the lorry returned to its own carriageway immediately; on the second occasion, the coach driver flashed his lights at the lorry; the lorry then returned to its own carriageway; as the two vehicles reached each other, the lorry suddenly and without warning swerved back into the coach's carriageway.

[7 ] Secondly, as to the speed of the coach, the pursuers aver that the coach driver, after flashing his headlights, continued to drive towards the lorry at a speed of about 45 mph in the northbound carriageway. He had an opportunity to reduce speed but he failed to do so. At impact, the coach was being driven at a speed in excess of 40 mph. The defenders, on the other hand, say that after the coach driver flashed his headlights the coach continued to drive in the northbound carriageway towards the approaching lorry, but it reduced speed. It was travelling at about 60 kph (37.5 mph) and reducing in speed.

[8 ] Thirdly, as to the direction of the coach, the pursuers say the coach driver had an opportunity to reduce speed and steer to the right, away from the crown of the road, but he failed to do so. The defenders say that when the lorry suddenly and without warning swerved back into the coach's carriageway, the coach started to swerve to the right but did not have time to avoid the lorry.

[9 ] Fourthly, the pursuers aver that the limited overlap in the collision between the vehicles indicates that, had the coach been steered to the right shortly before the collision, or had the speed of the coach been reduced, a collision would have been avoided. In their averments of fault, to which I shall refer later, the pursuers go on to blame the coach driver for the accident and, in particular, they blame him for failing to reduce speed and failing to steer to the right. The defenders, on the other hand, aver that the coach driver had no reasonable opportunity to take evasive action. In their averments relative to liability they say that the accident was caused entirely by the fault of the lorry driver. They also say, in their averments of fact, that it would have been dangerous and unreasonable to drive on to the area of hard standing next to the road. That area, they say, was about 15 centimetres below the road surface; it contained many loose stones, its surface was not stable and it was not safe to drive on, even at low speeds. It narrowed considerably just prior to the scene of the accident, and beyond it was a grass area that sloped away to the top of the ravine.

The evidence

Previous judicial investigations

[10 ] An unusual feature of this case is that reference has been made in the evidence to two other judicial investigations into the accident. The first was an inquiry by a Turkish court a few days after the accident. There are produced in this case the accident report compiled by the Turkish police (No. 6/1 of process) and the site investigation record related to that inquiry (No. 6/2 of process). Translations of these documents are contained in No. 6/3 of process. It is agreed by joint minute that these documents are what they bear to be. One of the witnesses in this case, Mr Andrew Blair, gave evidence to the Turkish inquiry, and a version of what he then said is included in the site investigation record. I shall refer to these documents later.

[11 ] Secondly, in 1998 one of the passengers in the coach, Ms Linda Ellison, raised an action in this Court against the present defenders, Inspirations East Ltd. The proof was heard by Lord Hardie over four days in May 2002. The interlocutor which his Lordship pronounced after proof was reclaimed. I have not studied Lord Hardie's Opinion or the Opinions of the Judges of the Inner House except to the extent that these have been referred to at the hearing on evidence. The transcripts of the evidence in Ellison have been lodged (No. 7/7 of process) and are agreed by joint minute as a true and accurate record of the evidence of the witnesses in that proof. I have read only those parts of the transcripts to which reference has been made at the proof and the hearing on evidence in this case.

[12 ] It is also agreed by joint minute that the evidence of three of the witnesses in Ellison should be treated as their evidence in the present case. The first is Ms Marion Caryn MacKenzie, a solicitor who is a partner in the firm of Field Fisher Waterhouse, London. In December 1995 Ms MacKenzie travelled to Turkey and had a meeting with the coach driver, whose name she recorded as Uçar Dirgan. She communicated with him through an interpreter, made handwritten notes during the meeting (No. 7/8 of process) and thereafter composed a statement (No. 7/5 of process). It is agreed in paragraph 3 of the joint minute that No. 7/5 of process is a true and accurate record of the terms of his statement to Ms MacKenzie and that Ms MacKenzie's notes are No. 7/8. By the date of the proof in Ellison the whereabouts of Mr Dirgan were no longer known. The second of the three witnesses, Mr Douglas Russell, a partner in Simpson & Marwick, gave evidence before Lord Hardie to the effect that Mr Dirgan could not be found and all reasonable steps had been taken to find him. Ms MacKenzie gave evidence before Lord Hardie about her meeting with Mr Dirgan and about the contents of her note and the statement. That evidence was read out in court in the present case. I have read the evidence of Mr Russell. Mr Russell gave further evidence before me, to which I shall briefly refer later.

[13 ] The third witness is Mr James Borland, who was a passenger in the coach. The defenders have lodged a soul and conscience certificate certifying that he is seriously ill and unable to appear in court at the proof (No. 7/9 of process). I have also read Mr Borland's evidence.

[14 ] Several of the witnesses in Ellison also gave evidence at the proof in the present case, as will appear from my assessment of the witnesses in the following paragraphs.

The scene of the accident

[15 ] Before discussing the evidence of the witnesses it will be helpful to provide as a framework a brief outline of the scene and the basic facts of the accident. It will become apparent, however, when I review the evidence later in this Opinion, that it is impossible to determine certain matters with precision. It will suffice to say at present that the accident occurred after the coach had negotiated a right-hand bend in the road. Thereafter the road, as seen from the coach, was comparatively straight for a considerable distance. It went downhill at first and then became level. The accident occurred when the coach was going downhill and the lorry was going uphill. There is no acceptable evidence about the speed of the lorry. There is no precise evidence identifying the whereabouts of the point of impact. It is agreed, as I have already noted, that as the lorry approached the coach, it encroached into the northbound carriageway, the number of times it did so being a matter of dispute; that the coach driver noted the danger and flashed his headlights to warn the lorry driver; that the coach continued to drive in its own carriageway towards the lorry; and that a collision occurred between the two vehicles, their left fronts overlapping by about a third, after which the coach left the road and entered a ravine.

Evaluation of the eye-witness evidence

[16 ] It is important to appreciate, when evaluating the evidence of the eye‑witnesses, that those events must have occurred within a very short space of time. The acceptable evidence, to which I refer later, indicates that the interval of time between the eye-witnesses' first sight of the lorry and the impact between the two vehicles was probably no more than about 13 seconds. It is also important to note that it was dark and early in the morning: the time of the accident is not precisely established, but it appears to have been at some time between 2.00 am and 4.30 am. The coach passengers had travelled by air from Glasgow. For them the accident was a traumatic experience: some were injured, while others saw their friends or fellow‑passengers injured or dying. And the accident occurred more than eleven years ago, on 17 June 1995. The proof in this case took place from 17 to 27 October 2006. In all these circumstances the search for credible and reliable evidence, especially in relation to speed, times, distances and vehicle movements, is for obvious reasons extremely difficult.

The coach driver

[17 ] I shall begin by discussing the information given by the coach driver, Uçar Dirgan, to Ms MacKenzie. I have already noted at paragraph [12] above that Ms MacKenzie composed a statement (No. 7/5 of process) after meeting him in Turkey in December 1995, communicating with him through an interpreter and making handwritten notes (No. 7/8 of process); and that it is agreed that the statement is a true and accurate record of the terms of his statement to her, and that her evidence in Ellison should be treated as her evidence in the present case.

[18 ] At the hearing on evidence the pursuers' counsel nevertheless submitted that the statement No. 7/5 of process was inadmissible. Reference was made to Young v National Coal Board 1960 SC 6. It was argued that the statement was not a spontaneous statement of Mr Dirgan's position but was self-serving and had been taken by a solicitor in circumstances that were post litem motam. It was plainly a precognition. In any event it was hearsay and its weight was negligible or zero. The information had been communicated to Ms MacKenzie by an interpreter who was in effect a taxi driver and not a qualified interpreter who had taken the oath de fideli administratione; and the Court had had no means of assessing his ability. The Court also had had no means of assessing Ms MacKenzie and considering how much care she might have exhibited; and crucially, the Court had had no means of assessing Mr Dirgan himself as a witness.

[19 ] The defenders' counsel countered these submissions. He argued that the objection to the admissibility of the statement should have been taken when the transcript of Ms MacKenzie's evidence in Ellison was about to be read. It came too late at the hearing on evidence. A timeous objection had been taken at the proof before Lord Hardie when the defenders had tendered Ms MacKenzie as a witness, and the matter had been properly considered then. Lord Hardie had repelled the objection. (I note that Lord Hardie's decision is reported: Ellison v Inspirations East Ltd 2003 SLT 291.) Ms MacKenzie had then been examined in chief about the quality of the interpreter and about the manner in which she had taken the statement. There had been no cross-examination by counsel then appearing for the pursuer. In the present case her evidence had been the subject of the agreement in the joint minute. If the pursuers had wished to hear her evidence in court, she had been available and could have been called as a witness.

[20 ] I have decided to repel the pursuers' objection on the ground that it was not timeously stated. I would add, however, that I find it curious that the pursuers should have entered into the joint minute relative to the statement and Ms MacKenzie's evidence if it was their intention to object to the admissibility of the statement. A reader of the joint minute would have reasonably assumed that there was no issue as to the admissibility of the statement and Ms MacKenzie's evidence.

[21 ] It is necessary, however, to evaluate the weight of the information attributed to Mr Dirgan by Ms MacKenzie. I have decided to examine Ms MacKenzie's original contemporaneous handwritten notes which she made at the meeting, and not the statement which she subsequently composed, notwithstanding the agreement in the joint minute. I have noted that (1) the information is presented in the form of hearsay evidence; (2) Mr Dirgan did not give the information on oath; (3) he was not subjected to cross-examination; and (4) the information has been mediated through an interpreter and (5) through a solicitor who was acting for the defenders. I have re-read the transcript of Ms MacKenzie's evidence, and her manuscript notes, with these important considerations in mind. I am satisfied that Ms MacKenzie was an experienced solicitor who was well accustomed to taking statements from witnesses. She was carefully examined as to the ability of the interpreter and the mental state and demeanour of Mr Dirgan, and I am also satisfied that Mr Dirgan understood her questions and that the interpreter translated her questions and his answers accurately. Her manuscript notes run to 15 pages. Considered together with her evidence, they give me the clearest impression that she questioned Mr Dirgan in a thorough and impartial manner. I am therefore satisfied that her notes give an unvarnished account of what Mr Dirgan said.

[22 ] There remains, however, the important question whether the information Mr Dirgan gave, although properly elicited and accurately recorded, is credible and reliable. I have taken into account, as considerations in favour of its trustworthiness, the facts that he gave the information only some six months after the accident, and that he did not know what the other witnesses would say. On the other hand I have been very conscious of the disadvantages of having been unable to observe Mr Dirgan's demeanour and to take account of any answers he might have given in cross-examination. In this case, where some witnesses have been critical of Mr Dirgan's driving, and all the witnesses have been speaking to their perceptions over a very short period of time prior to a disastrous accident which took place eleven years ago, the benefits of seeing the witnesses in court and attending to what they said under careful cross-examination have been very distinct. I have reached the conclusion that, at risk of unfairness to Mr Dirgan, I should not rely on his unsupported word on any material issue but should accept from him only information which is corroborated by another witness or other witnesses. In so deciding I do not suggest that Mr Dirgan's unsupported word is incredible or unreliable: I say only that in the absence of corroborative evidence I consider it unsafe to affirm positively that his word on a material issue is to be preferred where he stands alone or is contradicted by other witnesses.

[23 ] In his account of the journey Mr Dirgan speaks of having to slow down at a portion of the road which had been destroyed by a flood shortly before he arrived at the stretch of road where the accident occurred. Mr Dirgan goes on to say that 100 metres after that bad bit of road he changed up to fourth gear. He saw a lorry zigzagging up the hill 200 metres or more away. He could not guess its speed but thought it was fast enough because it was approaching quickly. His own speed was 50 to 60 kph (31 to 37 mph). He would have gone up to 70 to 80 kph (43 to 50 mph), but he did not do so because he saw the lorry. The lorry's lights were on high beam and the driver did not change his lights at all. The lorry entered the coach's lane and returned to its own lane twice. Mr Dirgan had dipped his own lights, and he tried to flash them quickly, four times or more. The lorry went straight for a very little time then re-entered the coach's lane before the impact. Mr Dirgan moved the coach sideways to the right and braked hard. He did whatever was possible before the accident. He was knocked unconscious by the impact, which was on his side of the coach, and he lost control of the coach. He did not hear anyone saying anything or screaming. He denies that he was given any tea before the accident.

[24 ] I consider that Mr Dirgan is probably right in saying that he slowed down to cross the bad bit of road, although none of the passengers remembers it. The pursuers' counsel suggested that he was wrong or lying about this matter, but it would seem to be a strange mistake or a pointless invention. Mr Dirgan is supported by the evidence of the defenders' skilled witness Mr Mighall who saw and photographed such a portion of road when he visited the accident scene some three weeks later (photograph No. 6/17/1 of process) and saw coaches slowing down as they crossed it. I consider, however, that Mr Dirgan's estimate of 200 metres or more as the distance between the coach and the lorry when he first saw the lorry is incorrect. Measurements taken by Mr Mighall, to which I shall refer later, indicate that the distance from the point where Mr Dirgan could reasonably have first seen the lorry and the point of impact (although the latter point cannot be precisely determined) was over 200 metres. On the other hand the expert evidence is consistent with Mr Dirgan's evidence in so far as it indicates that there was time for two incursions by the lorry prior to the pre-impact incursion. As to the lorry, there is other evidence, to which I shall refer later, that its headlights were on full beam, which supports Mr Dirgan on that point. As to the speed of the coach, the acceptable evidence from the passengers, which I shall also discuss later, indicates that its speed was about 40 mph, that is, a little above the upper end of Mr Dirgan's estimated range. It is agreed that he flashed his lights. There is acceptable evidence which supports his testimony that he braked and swerved to the right before the impact and, as I shall indicate, I accept that he did so. I think he is wrong, however, when he says that no one brought him any tea before the accident. Several passengers speak to this, and I am satisfied that Mr Dirgan's evidence is incorrect. I do not regard this discrepancy as sinister, but rather as a failure to recollect a matter of detail. There is no reference in the pursuers' pleadings in this action to his having any tea, and thus there is no suggestion there that that had any bearing on the accident. Against his evidence that he did not hear anyone shouting or screaming, there is evidence which I accept as truthful that certain passengers shouted before the impact. It appears to me that the likely explanation of Mr Dirgan's failure to hear them is that his attention was fully occupied by the scene on the road ahead of him.

The coach passengers

[25 ] I shall now consider the evidence of the passengers in the order in which they gave their evidence in the witness box. It was generally accepted that each of them was doing his or her best to tell the truth as he or she remembered it. The issue in each case is not whether the witness is credible, but whether his or her evidence is reliable. It will become clear that the passengers' estimates of speed, times, distances and movements were frequently unreliable.

[26 ] The first witness was Mr Andrew Laughland. The pursuers attached great importance to his evidence. He was sitting with his wife in the front seats on the right hand side, across from the driver. Mr Laughland was an experienced driver, and he estimated the speed of the coach as between 35 and 40 mph. He said that the lorry made two incursions into the coach's lane, and hit the coach on the second incursion. On the first incursion it had stayed in the coach's lane for three seconds, then returned to its own lane and stayed there for five or six seconds before it came over half way into the coach's lane. It was in the coach's lane for 10 to 20 seconds before the impact. The coach driver did not brake or take action to get out of the way of the lorry although he had plenty of time to do so. He thought the coach driver should have turned to the left. Before the impact, his wife had time to say, "He's gonna hit us, Andy," and he had time to stand up and try to cover her and say, "You'll be all right."

[27 ] While Mr Laughland's estimates of times cannot be relied on, his estimate of the speed of the coach is consistent with the statement of the coach driver. The significance of Mr Laughland's evidence, if accepted, is that he saw the danger of the approaching lorry on the final incursion and had time to react by trying to protect his wife whereas, according to him, the coach driver did not react at all. I accept that he and his wife reacted as he described. However, Mr Laughland's opinion that the coach driver should have swerved the coach to the left casts doubt on the accuracy of his appreciation of the situation. His opinion on that matter was not supported by any of the skilled witnesses, and it is obvious that such a swerve would have taken the coach more nearly into a head-on collision with the lorry. Mr Laughland sustained severe head injuries in the accident, and he said that since the accident his memory had been "not great". His evidence is not consistent with the evidence of other witnesses that the coach driver braked and swerved to the right, and I am satisfied that their evidence is to be preferred.

[28 ] Mr Laughland was referred to a document (No. 7/1 of process) which bore to be a statement in manuscript that had been signed by Mr and Mrs Laughland on 22 July 1995. It was suggested by counsel that the statement had been composed in a Glasgow solicitors' office, but its provenance was not proved. Mr Laughland could not remember anything about it. The statement bears to be in the words of Mrs Laughland, although it begins, "I Sandra Laughland and Andrew Laughland of 70 Sycamore Court, East Kilbride G75 9JT hereby state ...". Mr Laughland could not say if it was in his wife's handwriting. It seems not impossible that it was some kind of joint statement composed by a third party. In any event the evidence about this document was unsatisfactory and I disregard it.

[29 ] Mrs Laughland's evidence was generally to the same effect as that of her husband. She said that the speed of the coach was not more than 40 mph, which is consistent with her husband's evidence and the coach driver's statement. She also recollected, however, that the lorry had come round a corner, while the coach had not come round a corner: that is not correct. She spoke to her exclamation that the lorry was going to hit them, and to her husband's standing up to cover her: I accept that on these matters she is correct. She also said, however, that the coach driver did nothing at all: he did not brake or go to the right. She would have gone to the left. The latter observation, together with her evidence as to which vehicle had come round a corner, appears to me to cast doubt upon the reliability of her evidence. In addition, her evidence about no braking or swerving by the coach, like her husband's evidence to that effect, is contradicted by the evidence of other witnesses who I am satisfied are trustworthy on this point.

[30 ] The third witness was Mr Andrew Blair, aged 64, a retired fork-lift truck and lorry driver. He had held an HGV licence for over 20 years. He gave evidence before the Turkish court and before Lord Hardie. He was a tall man of 6 feet 4 inches, and he was sitting rather uncomfortably in the fourth or fifth row in the window seat on the left hand side, slouched over the seat in front of him, with a good view through the windscreen of the road ahead. He estimated the speed of the coach as between 40 and 45 mph, which he said was pretty fast for the road but not as fast as some drivers do. The coach had been in its correct lane. When he first saw the lorry it was in its wrong lane. His evidence as to the number of incursions by the lorry before the impact was uncertain, but he eventually said that there were two. After the second one, he ceased to pay attention to the lorry and he did not see the impact. Before the impact he heard someone saying, "Oh no, we're going to hit something". He was not aware of the driver braking or turning the steering wheel. That was the essence of his evidence in court in the present case.

[31 ] He was referred to the statement attributed to him in the translation of the report of the Turkish proceedings. He is there quoted as having said, amongst other things:

"Before the crash, I saw our driver putting the brakes on, actually I felt it. Our driver was cruising normally in the right hand lane, at a normal speed. But the lorry was going fast. [ . . . ] The driver of our bus did whatever he could do before the crash."

[32 ] I consider that I cannot have regard to this statement because it is not proved that Mr Blair made it. It is agreed by joint minute only that the accident report No. 6/3 of process is a translation of the original Turkish police document No. 6/1 of process and "is what it bears to be". It is not agreed that the report contains an accurate account of what Mr Blair told the Turkish court. It is therefore of no consequence that Mr Blair said in the present case that if he said what was attributed to him in the statement, it would be truthful, because he had no accurate recollection of what he said, and what he said has not been proved. In any event I would not have been inclined to accept the statement in the report as an accurate record of what Mr Blair said. Mr Blair said in the present case that his evidence had been elicited by question and answer; but the statement is recorded in narrative form. Mr Blair also said that the statement attributed to him information which he did not have, when it quoted him as saying, "I gave the same statement to the Police in Marmaris Hospital, as did my friends", and "The other witnesses stated the same". Mr Blair said in the present case that he had had no idea what other people had told the Police. He also added that the interpreter had been very poor; he (Mr Blair) had just come out of hospital and was all strapped up and dosed up; he was the only British subject there; it was a very trying experience and he wanted out as quick as he could. In all these circumstances I would not have accepted as reliable the statement attributed to him in the report.

[33 ] Mr Blair was also referred to passages in the transcript of his evidence before Lord Hardie. The transcripts (No. 7/7 of process) are agreed by joint minute to be a true and accurate record of the evidence of the witnesses at that proof. In some respects Mr Blair's evidence in the present case differed from his evidence in 2002. Thus in 2002 he said he had been talking to his partner in the final seconds before the impact, whereas in the present case he said that she had been sleeping. In 2002 he was clear that there had been two incursions by the lorry before the incursion that preceded the impact. In 2002 he said that there had been a car behind the coach, but he could not remember that when he gave evidence in the present case. In 2002 he had no reservations about the speed of the coach: he agreed that the driver had been driving along in his correct lane at about 45 mph, which he described as a normal speed. Having seen and heard Mr Blair in the witness box, I am satisfied that where his evidence before me differs from what he said in 2002, his evidence before me should not be accepted as accurate. Accordingly I do not accept his evidence that the coach driver's speed was "pretty fast for the road". His evidence about the number of incursions was too uncertain to be acceptable. I do not consider that his evidence that the coach driver did not brake can be accepted. Mr Blair's attention was no longer on the coach and the lorry shortly before the impact, and his evidence on this point differs from that of other witnesses whose recollection on this point I am satisfied is reliable.

[34 ] Ms Linda Ellison, who was the pursuer in Ellison, was travelling with her boyfriend, who died in the accident. Very understandably, she was uncertain in various parts of her evidence. She saw lights flashing and heard a horn or horns sounding, but she was not sure from which vehicle. She did say, however, that she thought there would be a crash and she thought some one would have done something to avoid a head-on collision, but she did not think anything happened to avoid the collision. To her, the bus was going fast, but she could not say that it was speeding. She did not drive. Her evidence indicates that in her view there was time for something to be done before the collision. However, her view that nothing was done is at variance with the evidence of other witnesses whose testimony on this point I regard as trustworthy.

[35 ] Mrs Karen McKendry was snoozing. She heard horns sounding and people shouting that they were going to crash. Her husband put her head between her knees, but she did not know if he achieved that before the impact. Thus she indicates that there was time for some reaction by the passengers, and the driver, before the collision.

[36 ] Ms Pauline Anderson was dozing. She had a fleeting thought that they were going quite fast, but she had no perception of anything until the impact. Her evidence is accordingly unhelpful.

[37 ] Ms Anne Allen said she was trying to relax when headlights lit up the bus and a man stood up and shouted, "They're going to f---ing crash". There was no swerving or braking by the bus. The lights, the shouting and the impact all happened very quickly. I have no doubt that she saw headlights and that the latter part of her evidence is true, but again, I prefer the evidence which indicates that the bus did indeed swerve and brake. She had understandably not been paying attention to the road before the lights, the shouting and the impact, and I do not think it would be safe to rely on her impression that there had been no swerving or braking.

[38 ] Mrs Agnes Allen, Ms Allen's mother, said the first thing she was aware of was of the man standing up and shouting. She then put her head down. She did not feel the bus slowing down. She would have been aware of hard braking: she would have been jerked forwards, but she was not. I accept that she had time to react before the impact, but in view of the other evidence which I regard as trustworthy, I reject as unreliable her evidence that there was no braking.

[39 ] Mrs Margaret Reilly was in my view the most impressive of the passenger witnesses. She impressed me favourably as an alert, intelligent and careful witness.

She admitted that her memory had been a lot clearer when she gave evidence before Lord Hardie, and that eleven years after the accident she was "struggling". In the present case she was able to remember that the coach had been on a dual carriageway and then on a winding road before it reached the scene of the accident. She was sitting in the central seat on the bench at the back of the coach, and she had a clear view down the aisle and through the front windscreen. She had felt a bit uncomfortable with the coach's speed, which she thought was maybe 50 to 60 mph (I note that no other witness speaks to a speed of this order, and here I consider Mrs Reilly to be mistaken.) Her first recollection of something not right was when she saw headlights in the path the coach was travelling. She thought the lorry encroached into the coach's path at least once; but if she had said to Lord Hardie that it did so two or three times (as she did: No. 7/7 of process, pages 101-102), that was what happened. She had time to ask a friend what side of the road they drove on in Turkey. The coach braked and moved to the side. The move was as if the driver had taken a fork in the road at the point of impact. However, while she was positive that the coach brakes had been applied, she would have braked before she felt the driver brake. The coach slowed almost on impact. She felt the coach had tried to move out of the way of the oncoming vehicle. The braking began before the move to the side. She thought the coach had just managed to avoid the lorry. But in her view, the driver should have been assessing the situation and braking and moving across out of the path of the vehicle. She knew as a driver that there was time for that to have been done. She felt the driver had still been wanting to travel at the same speed in line with the oncoming vehicle, and was only giving way when he had to. She assented to the suggestion that it had been like a game of "chicken", an expression used by Mrs Laughland in her evidence. While I reject Mrs Reilly's evidence of speed, I accept from her that the coach braked and moved to the side before the impact. Whether the coach driver should have braked and swerved earlier than he did is a matter which I shall discuss later.

[40 ] The last passenger to give evidence was Mrs Shona Sopel. She saw the lights coming towards them, and she had a sense that the coach driver was slowing down, but she did not really remember. There was no violent braking. I am not satisfied that Mrs Sopel had a clear recollection of the events of the accident, and I do not consider that reliance should be placed on her evidence.

[41 ] I have read the evidence of Mr James Borland, the passenger who gave evidence before Lord Hardie but was too ill to give evidence before me. Mr Borland told Lord Hardie that the first he became aware of was a huge flash of light when the headlights of another vehicle lit up the inside of the coach, and a loud explosion. The coach had been driving in a normal fashion: he had no recollection of the driver driving in what he would term an unsafe manner. He could not give any indication of its speed. Neither counsel referred to Mr Borland's evidence at the hearing on evidence, and I have not found it helpful.

The expert witnesses

[42 ] I heard the evidence of three expert witnesses: Mr Peter Sorton for the pursuers; and Mr Steven Parkin and Mr George Mighall for the defenders. Although the examination of these witnesses occupied much time at the proof, the assessment of their material evidence may be fairly shortly stated.

[43 ] Mr Sorton had given evidence at the proof before Lord Hardie, but later had revised his views to some extent in the light of information which he had not been afforded before he appeared before Lord Hardie. He was a witness with much relevant experience, and he gave his evidence in a careful and measured manner. He did not visit the scene of the accident, however, until 27 April 2002, almost seven years after the accident. He took a number of photographs, but by that time the layout of the road had been altered from a two-lane to a three-lane highway, and the ditch where the coach had come to rest had been filled in. Some of his evidence was based on an assumption that a circled white mark in one of the photographs (No. 13 of No. 6/17 of process), said to indicate the place where the front of the coach had struck the side of the ditch after the collision, was on the same level as the roadway. That assumption is clearly incorrect because, as Mr Sorton himself said, for the coach to proceed horizontally across the ditch after leaving the road it would have had to be going at an extraordinary or even impossible speed.

[44 ] It is convenient to mention here that the parties had agreed in paragraph 7 of the joint minute that the circled area in the photograph showed "the point of collision between the front nearside of the coach and the side of the ravine". It emerged in the course of the evidence, however, that that would have been impossible. The experts said that if that had been so, the speed of the coach would have been "infinite" (Mr Parkin), or "200 mph" (Mr Mighall) or simply impossible to estimate (Mr Sorton). The pursuers' counsel nevertheless submitted that the Court could not reject the fact agreed in the joint minute. I am unable to accept that submission. The pursuers' proposition must be that the Court is obliged to try to reach a just conclusion on the basis of a state of matters which has been shown to be nonsense, simply because it has been incautiously agreed to be true in a joint minute. But the contract represented by paragraph 7 of the joint minute was obviously made in error. I therefore disregard paragraph 7. Having done so, I find that the circled white mark is of no significance. Even if it marks approximately where the front of the coach eventually came to rest, it is not, in my view, possible to infer from it any precise information either as to the point of impact between the vehicles or as to the manner of driving of either vehicle before the accident.

[45 ] Mr Sorton's evidence was of value, however, because he was able to show, as was Mr Mighall, that the coach must have moved to the right before it collided with the lorry. That is consistent with the evidence of Mr Dirgan and Mrs Reilly.

[46 ] I considered Mr Mighall to be a conscientious witness who was trying to be helpful. He visited the scene of the accident in July 1995 and made industrious investigations. He made many measurements and took numerous photographs of the scene of the accident and of the vehicles. I shall refer to some of his measurements later. Mr Mighall saw the portion of the road which had been destroyed by a flood, as described by Mr Dirgan, and said that vehicles had to go over it at a slow speed, as Mr Dirgan said he had done. Mr Mighall also obtained a lorry similar to the one in the accident and drove it along the road in the same direction as the lorry was driving at the time of the accident, to see how fast it could travel on that road in that direction.

[47 ] Counsel for the pursuers made a strong attack on Mr Mighall's evidence. He maintained that Mr Mighall was a wholly unsatisfactory witness who had changed his evidence on material matters while in the witness box and who had engaged in wild speculation. Suffice it to say that while on occasions Mr Mighall was diffuse in his answers and offered differing responses to the same question, it was clear to me that he was doing his best to help the Court in relation to an investigation he had made some 11 years before. Some of his evidence was not acceptable: he offered an opinion that the lorry had been travelling faster than the coach, which did not survive cross-examination; and his evidence as to the circled area in the photograph, and as to the difference in height between the road surface and the adjacent rough ground (referred to as "the hard shoulder"), was confused. While his evidence on matters on which he was shown to be wrong or inconsistent must of course be set aside, I do not accept the very serious criticisms made on behalf of the pursuers.

[48 ] The third expert was Mr Parkin, who was the other skilled witness for the defenders. I considered his evidence to be less impressive than that of Mr Sorton and Mr Mighall. His report (No. 7/11 of process) contained a number of small but important slips, such as the use of the word "lorry" instead of "coach" at several points, which did not inspire confidence. He had not amended his report after attending a meeting at which he had obtained further information. He had read the reclaiming print and the Opinion of the Inner House in Ellison, and his reading of these documents seemed to have influenced his views. In the event, neither counsel relied on his evidence to any great extent. The pursuers' counsel relied on his concession that the coach driver had had a clear opportunity to brake. In my view the acceptable evidence is that he did in fact brake. The defenders' counsel relied on Mr Parkin's evidence that it would have been unsafe for the coach driver to drive the coach on to the hard shoulder. Mr Mighall's evidence on that point was to the same effect. I accept the evidence of both witnesses. At the end of the day, however, the pursuers did not contend that the coach should have been driven on to the hard shoulder. Accordingly Mr Parkin's evidence turned out to be of little importance.

Burden of proof

[49 ] Before making my findings in fact, I shall notice an argument by the pursuers that a passenger in a vehicle which is subjected to violent movement is entitled to say that there is a prima facie case of negligence which calls for an explanation. This was not, the pursuers' counsel emphasised, a submission that this was a case of res ipsa loquitur. Their submission was that a passenger in a motor transport vehicle who is subjected to an accident involving a sudden swerve and a consequent crash in a ditch, causes, by proving these basic facts, the onus to move to the defenders to explain why that occurred without negligence on the part of the driver. The pursuers relied on O'Hara v Central SMT Co Ltd 1941 SC 363, Lord President Normand at 375-379; Elliot v Young's Bus Service Ltd 1945 SC 445, Lord Mackay at 458-459, Lord Stevenson at 468; Sutherland v Glasgow Corporation 1949 SC 563 (affirmed, 1951 SC (HL) 1); and Doonan v SMT Co Ltd 1950 SC 136. Counsel also referred to Ellison v Inspirations East Ltd (First Division, 12 December 2003, unreported), the decision of the Inner House in the pursuer's reclaiming motion against Lord Hardie's interlocutor, where Lord Marnoch, delivering the Opinion of the Court, said (at paragraph [6]):

"[6] We have, of course, reached our decision in this reclaiming motion on the basis that the onus of proof in this case was throughout on the pursuer. Under reference to Doonan v SMT 1950 SLT 100 and certain of the authorities there cited counsel for the reclaimers did submit that as the coach had gone off the road the onus switched to the defenders to show how that had occurred without negligence on the part of the coach driver. In our opinion, however, the authorities to which reference was made are very clearly distinguishable and have no application to a case, such as the present, where the primary cause of the accident is known to be fault on the part of the driver of another vehicle involved in a collision."

Counsel for the pursuers, who had been among the counsel acting for the reclaimer at the hearing before the First Division, stated that he did not recollect reference having been made to authorities other than Doonan, and he submitted that O'Hara, on which he particularly relied, was not limited to the extent indicated by Lord Marnoch. Counsel also referred to McAtear v Lewis (Second Division, 18 December 1992, unreported).

[50] Counsel for the defenders maintained that the pursuers' submissions were misconceived. The authorities on which the pursuers relied had no application where the primary cause of the accident had been indisputably due to the fault of another, in this case the driver of the lorry which was on its wrong side of the road at the time of impact. In that situation no presumption of negligence on the part of the coach driver arose. The issue was whether the driver of the coach had failed to take reasonable care and so failed to avoid an accident. The decision of the First Division in Ellison was binding. The defenders' counsel, who had also appeared at the hearing of the reclaiming motion, stated that the earlier authorities had been considered. The Court had unanimously rejected the reclaimer's argument.

[51 ] In my opinion the submissions for the defenders are to be preferred. The decision of the First Division in Ellison is inescapably binding on this Court. Even if it were not, I would reach the same conclusion. In O'Hara the pursuer averred only that the bus in which she was travelling suddenly and without warning swerved violently, causing the pursuer to be thrown from the bus to the street. The defenders introduced the explanation that the bus driver had swerved to avoid a pedestrian who had run across the road. (The averments are reported verbatim in the report in 1941 SLT 202 at 202-203.) Lord President Normand observed that the facts were, or ought to have been, within the driver's knowledge, whereas the passengers had no duty to know them and generally knew nothing of them. In the present case there is no suggestion that the cause of the movement of the coach was unknown to the pursuers: the pursuers themselves have averred that the lorry had encroached into the coach's carriageway before the collision, and have led evidence to that effect. Thus the pursuers have known from the outset that the primary cause of the accident was the fault of the driver of the lorry. This is not a case where some material fact of which the pursuers are necessarily ignorant is within only the defenders' knowledge. Accordingly there is no need to look to the defenders for an explanation, and no room for any presumption.

[52] The pursuers' counsel went on to submit that the defenders had failed to discharge the onus which, according to his argument, was incumbent upon them. They had failed to produce material evidence. The pursuers criticised the defenders' reliance on the statement by Mr Dirgan, a matter with which I have already dealt, and maintained that he should have been brought to give evidence. Given the terms of paragraph 3 of the joint minute, to which I have already referred, I found that a somewhat curious submission. The pursuers also submitted that the defenders should have led the evidence of Zehra Gurbuz, a tour representative, who was present on the coach; and of a passenger in the lorry, from whom Ms MacKenzie had taken a statement. They cross-examined the defenders' solicitor, Mr Russell, about these witnesses and submitted at the hearing on evidence that an adverse inference should be drawn from their absence. Reference was made to Morrison v J Kelly & Sons Ltd 1970 SC 65 and McLaren v Caldwell's Paper Mill Co Ltd 1973 SLT 158. Since, however, there was in my view no onus on the defenders such as was contended for by the pursuers, these matters are in my opinion of no significance. I need only note that I was satisfied with the evidence of Mr Russell.

Findings in fact

[53 ] It is unnecessary to repeat the undisputed facts which I have set out in paragraphs [4] and [5] above. It should be added that at the hearing on evidence counsel were agreed that at the time of the impact the lorry was pointing towards its own carriageway. It will be recalled that the joint minute records that the front of the coach and the left front of the lorry collided, with the vehicles overlapping by about a third. I shall now state some further undisputed facts relative to the dimensions of the road and the respective weights of the two vehicles. I shall then deal with the matters in dispute: (1) the speed of the coach before the impact; (2) the number of times the lorry encroached into the coach's carriageway before the impact; (3) whether the coach braked and swerved before the impact; and (4) whether the coach driver had any reasonable opportunity to take action which would have avoided the accident.

[54 ] Mr Mighall gave unchallenged evidence that the overall width of the road at the accident scene was 6.7 metres, each carriageway being 3.335 metres wide. The coach was 2.4 metres wide: thus, if centrally placed on its own lane, it would leave about 0.475 metres on either side between the coach and the edge of the lane.

[55 ] The coach was about three times heavier than the lorry.

[56 ] As to the speed of the coach before the impact, the pursuers aver that the coach continued to drive at a speed of about 45 mph, the coach driver failed to reduce speed, and at impact the coach was being driven at a speed in excess of 40 mph. The defenders aver that after the coach driver flashed his headlights, the coach was travelling at about 60 kph (37.5 mph) and was reducing in speed. The coach driver, Mr Dirgan, said that his speed was 50 to 60 kph (31 to 37 mph). Mr Laughland said the speed of the coach was between 35 and 40 mph. Mrs Laughland said that it was no more than 40 mph. Mr Blair said it was between 40 and 45 mph, and Mrs Reilly said it was between 50 and 60 mph. I reject the evidence of Mrs Reilly on this point, where she stands alone. Having considered the evidence of the other witnesses, I have concluded that the speed of the coach before the driver braked was approximately 40 mph.

[57 ] There is no satisfactory evidence as to the speed of the lorry before impact. Mr Mighall expressed the view that it had been travelling faster than the coach, but the foundations for his view were effectively undermined in cross-examination and it was not adopted by the defenders.

[58 ] As to the number of times the lorry encroached into the coach's carriageway before the impact, the pursuers say on record that it did so "on at least two occasions", the impact occurring on a further, final, encroachment. The defenders aver that it did so "on two occasions", and the impact occurred on its third encroachment. Here also, the witnesses are at variance. Mr Dirgan spoke to two encroachments prior to the impact, which took place after a third encroachment. Mr Laughland spoke to one encroachment and a second, final, encroachment. Mrs Laughland was to the same effect. Mr Blair's evidence on this point was too uncertain to be reliable. Before Lord Hardie, however, he had said that there had been two incursions by the lorry before the incursion that preceded the impact. Mrs Reilly adopted her evidence to Lord Hardie that the lorry encroached into the coach's path two or three times. I accept Mrs Reilly as the most reliable of the coach-passenger eye-witnesses, and I note that her evidence and that of Mr Dirgan point to there having been more than one encroachment before the final encroachment. I reject the evidence of Mr and Mrs Laughland and of Mr Blair.

[59 ] Some light is thrown on this matter by expert evidence as to the time it would have taken for the coach to travel from the point where the driver first saw the lorry, to the point of impact. It must be emphasised, however, that there is no precise evidence as to the whereabouts of either of these two points, and accordingly the distance between them cannot be ascertained with accuracy. There is some evidence from Mr Mighall about the extent of the coach driver's view ahead. That view may be seen in photographs 3 and 4 in No. 6/17 of process, which like No. 6/18 contains photographs taken by Mr Mighall. I accept that Mr Mighall took the photographs from a point which he considered to be the point where the coach driver could reasonably have seen the lorry, and I accept his opinion on that matter. Mr Mighall also made a measurement from the road sign in photograph 3, but unfortunately there is now some doubt as to the whereabouts of the point to which Mr Mighall made his measurement: whether it was to the point where the coach left the roadway, or to the point where it entered the ravine, or to the rear of the coach in its resting position. The various distances are 757 feet, 770 feet and 794 feet. If one takes the distance of 757 feet as the nearest of the three to the point of impact, and if one assumes that the coach was travelling at a speed of 40 mph, it would have taken the coach 12.9 seconds to travel from the point where the driver could first see the lorry and the point where the two vehicles collided. There was some evidence from the expert witnesses as to how long it would have taken the lorry to move from its own side of the road to the coach's side of the road and back again. Mr Sorton said that that would take a total of 6 seconds, while a partial change of lane which would be noticeable would take 4.6 seconds. Mr Parkin said that a "swerve" from one lane to the other would take 1.75 seconds.

[60 ] It is not possible to accept as scientifically accurate the assumed distance of some 757 feet; the coach's speed of about 40 mph is only a probable and imprecise speed; it is not possible to say whether the encroachment or encroachments preceding that which ended in the impact was or were complete or partial; the word "partial" was undefined; and it is not possible to tell how much time elapsed between one encroachment and another. Keeping in view all these caveats, and the acceptable evidence of Mr Dirgan and Mrs Reilly that there was more than one incursion before the fatal incursion, I have reached the view, after much hesitation, that it is probable that in the space of some 13 seconds the lorry partially encroached into the coach's carriageway twice before making a third incursion which ended in the impact; and that on the third incursion the whole or a substantial part of the lorry was initially in the coach's carriageway, but it moved to the right, towards its own carriageway, before the impact. It is agreed, as I have already noted, that on impact the front of the coach and the left front of the lorry collided, with the vehicles overlapping by about a third.

[61 ] As to whether the coach braked and swerved before the impact, the pursuers aver that the driver had an opportunity to reduce speed and to steer to the right, but he failed to do so. The defenders say that the coach was reducing in speed before the impact, and that when the lorry swerved back into the coach's carriageway, the coach started to swerve to the right but did not have time to avoid the lorry.

[62 ] Mr Dirgan said that when the lorry re-entered his carriageway he moved the coach sideways to the right and braked hard. Mr and Mrs Laughland said he did neither. Mr Blair was not aware of the driver braking or turning the steering wheel. Ms Ellison did not think anything had been done to avoid the collision. Ms Allen said there was no swerving or braking, and her mother said there was no braking. Mrs Sopel had a sense that the coach driver was slowing down, but I consider her evidence to be too imprecise to be reliable. Mrs Reilly, on the other hand, was clear that the coach had braked and moved to the side: the braking began before the move to the side. She strikingly described the coach's change of direction "as if the driver had taken a fork in the road". I was favourable impressed by Mrs Reilly's evidence when I heard it, and I note that she corroborates Mr Dirgan. Finally, and very significantly, the expert evidence of Mr Sorton and Mr Mighall, which I accept as convincing, was to the effect that the coach must have been angled to the right prior to impact. In my judgment the weight of the evidence supports the view that the coach driver did indeed brake and swerve to the right before the impact, and I so find.

[63 ] Finally, should the coach driver have done more than that? Should he have taken action which would have avoided the accident completely? At the end of the day there was no suggestion that he should have driven the coach on to the unstable hard shoulder: there was clear evidence that that would have been a perilous manoeuvre. The question is whether it is established on a balance of probabilities that he had an opportunity to brake and swerve earlier than he did, and whether, if he had done so, the accident would not have taken place. It is clear that various passengers had an opportunity to react physically to the final incursion of the lorry into the coach's carriageway. Mrs Laughland had time to exclaim to her husband, and he had time to stand up and try to cover her. Mr Blair heard some one saying, "Oh no, we're going to hit something". Mrs McKendry's husband put her head between her knees. Ms Allen and her mother witnessed a man standing up and shouting. Mrs Reilly considered that the driver should have taken action sooner than he did.

[64 ] It is also clear, however, that the final incursion of the lorry into the coach's carriageway can have lasted for only a very few seconds. In addition to the calculations of time made above, there is acceptable evidence from some of the passengers that the final sequence of events was very quick (e.g. Mrs Laughland, Ms Allen). The coach driver was aware of the previous incursions of the lorry: it is agreed that he had flashed his headlights to warn the lorry driver. It is clear that when the lorry made its final incursion, he had very little time to observe, think and react. He did react by braking and swerving, and Mrs Reilly initially thought that the coach had just managed to miss the lorry. There was evidence from Mr Parkin and Mr Mighall to the effect that if he had reacted a second earlier than he did, the collision would not have occurred. No doubt that is so, but I do not find it possible to affirm that the coach driver had time to brake and swerve earlier than he did. As I have indicated, the time available to him was extremely short. The evidence of the reactions of the passengers, which also must have taken place in an immeasurably short space of time, and Mrs Reilly's impression that the driver could have reacted more quickly, are much too imprecise to enable me to reach any conclusion as to whether the coach driver had time to react earlier than in fact he did. The state of the evidence about times and distances and the movements of the lorry is also so inexact that, in my judgment, it cannot be said that on a balance of probabilities it is established that the coach driver had a sufficient opportunity to take any action which would have avoided a collision.

Liability

[65 ] I shall clear the ground by considering in the first place the conviction of the coach driver in Turkey. The pursuers aver that he was convicted "within the 10^th Division of Istanbul Criminal Court" and "was found to be 25% responsible for the accident taking place." The defenders admit that he was convicted in that court and aver "that according to Turkish law, the surviving driver of a fatal road traffic accident is always prosecuted. Responsibility for the accident is apportioned in terms of one-eighths. The coach driver was held to be two-eighths responsible. The lorry driver was held primarily responsible. It is unusual in such cases for either driver to be absolved of guilt entirely."

[66 ] I did not hear any evidence about this matter. Accordingly the only information available to this Court consists of the admitted facts that the coach driver was convicted of some unspecified offence and was held to be 25% responsible for the accident taking place. I know from the documents referred to in paragraphs 1 and 2 of the joint minute, and from the evidence of Mr Blair, that some official investigation was carried out. I do not know, however, what offence the coach driver was charged with, what court procedure was followed, what evidence was led, what facts were found proved and what reasons, if any, the court gave for its decision. I note that the document No. 6/3 of process states that the accident happened when the coach went into the lane of the lorry. I accordingly find the decision of the Turkish court wholly unhelpful, and I disregard it.

[67 ] The parties are agreed that the contract between them relates to a package holiday within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1991 (S. I. 1992, No. 3288) ("the Regulations"). The pursuers found on regulation 15 of the Regulations, which provides:

"(1) The other party to the contract [the defenders] is liable to the consumer [the pursuers] for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services."

The pursuers aver:

"The negligent actings of the coach driver in the circumstances amounted to improper performance of the defenders' obligations under the contract."

The pursuers' first two pleas-in-law are in these terms:

"(1) The pursuers having suffered loss, injury and damage through the fault and negligence on the part of the said coach driver for which the defenders are liable is entitled to reparation therefor.

(2) The pursuers having suffered loss, injury and damage through the improper performance of the contract condescended upon are entitled to reparation therefor."

[68 ] The defenders found on regulation 15(2) of the Regulations, which is in these terms:

"(2) The other party to the contract [the defenders] is liable to the consumer [the pursuers] for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because:

[ . . . ]

(b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or

(i) unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; [ . . . ]"

The defenders aver:

"The defenders were the other party to the contract. The improper performance of the contract was not due to the fault of the other party nor to that of another supplier of services. The coach driver fulfilled all duties incumbent upon him. [ . . . ] The accident was caused entirely by the fault of the third party, the lorry driver, who was unconnected with the provision of services contracted for. The accident was caused by unusual and unforeseeable circumstances beyond control of the defenders, the consequences of which could not have been avoided even if all due care had been exercised by the driver of the coach."

The defenders' second and third pleas-in-law are as follows:

"(2) The pursuers' averments so far as material being unfounded in fact, decree of absolvitor should be pronounced.

(3) The pursuers not having suffered any loss, injury or damage through any fault on behalf of the defenders or their employees, decree of absolvitor should be pronounced."

[69 ] The question therefore comes to be whether the pursuers have succeeded in proving any degree of fault on the part of the coach driver. The pursuers aver that he failed in the following duties of reasonable care:

"In particular it was his duty to take reasonable care for the safety of passengers in said vehicle. It was his duty to keep a good lookout on the road ahead. It was his duty to drive at a reasonable speed in the circumstances. It was his duty to pay attention to the presence of other vehicles on the said road such as the lorry. In the event that a vehicle, such as the lorry, encroached onto his carriageway, it was the coach driver's duty to take reasonable care to brake and reduce his speed immediately. It was his duty to steer to the right, to avoid the oncoming lorry. It was his duty to keep control of the vehicle. It was his duty not to collide with the said lorry."

The defenders, for their part, aver that the coach driver fulfilled all duties incumbent upon him: he drove with due care and attention; he was travelling at a reasonable speed; he was driving within his own carriageway at the time of the collision; it would have been dangerous and unreasonable to drive onto the area of hard standing; the accident was caused entirely by the fault of the lorry driver. Before the impact, say the defenders, the coach was reducing in speed; as the lorry and the coach reached each other, the lorry suddenly and without warning swerved back into the coach's carriageway; the coach started to swerve to the right but did not have time to avoid the lorry.

[70 ] It follows from my findings in fact that I am satisfied that the coach driver was keeping a good lookout on the road ahead and was driving at a speed which was reasonable in the circumstances. He was well aware of the presence of the lorry on the road. He flashed the headlights of the coach to warn the lorry driver. When the lorry made its final incursion into his carriageway, he braked and steered to the right. He kept control of the vehicle up to the moment of impact.

[71 ] The issue is whether the coach driver is nevertheless to be held to be negligent. The final incursion of the lorry, which was plainly negligent, placed the coach driver in a position of emergency. I do not consider that the action he then took, in braking and steering to the right, is open to criticism. I have found that it cannot be said that on a balance of probabilities it is established that the coach driver had a sufficient opportunity to take any action which would have avoided a collision. Even if, contrary to my opinion, it could be said that he could have braked and steered to the right a very short time earlier than he did, his failure to act more quickly could not in my opinion be characterised as negligent. The defenders referred to Wallace v Bergius 1915 SC 205 and Laird Line v U S Shipping Board 1924 SC (HL) 37. In my opinion Wallace v Bergius is particularly apposite. In that case it was held that the driver of the defender's car could not be said to be negligent "merely because, when he saw the danger, he did not take the wisest course, but in the agitation of the moment took an unwise course in endeavouring to escape from it" (Lord Guthrie at 211). In the present case the coach driver could not, in my view, be criticised as negligent if it were the fact that in the emergency confronting him he had an opportunity to follow a counsel of perfection and take avoiding action a second, or a fraction of a second, earlier than he did. In my opinion, accordingly, the pursuers have failed to prove that the driver of the coach was negligent to any extent. I am satisfied that the accident was wholly caused by the fault of the driver of the lorry.

Further procedure

[72] The proof before answer was restricted to issues of liability only. The parties are agreed by joint minute that this action is to be conjoined with the following actions:

Andrew Blair (AP) v Inspirations East Ltd and Ramsay World Travel Ltd (A252/01);

John Kuncaitis v Inspirations East Ltd and Going Places Leisure Travel Ltd (A1468/01);

Anne McIntyre (AP) v Inspirations East Ltd and Ramsay World Travel Ltd (A1535/01);

Margaret Anne Reilly (AP), Mark John Reilly and Cheryl Marie Reilly v Inspirations East Ltd (A1601/01);

Rachel Ann Quinn v Inspirations East Ltd (A1605/01).

[73 ] The joint minute further records that the parties to the present action are also agreed:

"2. That the pursuers in the present action ("the Robertsons") shall lead all of the evidence at the proof, with the other pursuers in the above list and their witnesses being called as the Robertsons' witnesses;

3. That in the event of any tender being made of a sum in settlement of any of the claims, the defenders will apportion any such sums amongst the relevant pursuers;

4. That the decision of the Court (whether at first instance or on appeal, including appeal to the House of Lords) in this case in respect of liability shall be determinative of the dispute on liability as between the other pursuers in the above list and the defenders;

5. In the event that the Robertsons are unsuccessful at any stage, but decide not to appeal, the other pursuers in the above list may nevertheless appeal, in which event the evidence led in the Robertsons' action shall be accepted as being the evidence in whichever other action is concerned.

6. That copies are equivalent to principals."

[74 ] In these circumstances I shall pronounce an interlocutor conjoining this action with the five actions listed, sustaining the second and third pleas-in-law for the defenders, repelling the first and second pleas-in-law for the pursuers, and putting the case out by order for a discussion of further procedure.

[75 ] The parties are owed an apology and explanation for the delay in the production of this Opinion. I made avizandum on 27 October 2006 and asked for transcripts of the evidence of the expert witnesses. Owing to a most regrettable administrative error, the volumes of transcripts were not delivered to me until 6 February 2007.