Scottish Court of Session Decisions

Pursuer: Armstrong QC; Love, advocate; Digby Brown

Defenders: Jones QC; G Watson, solicitor advocate; Simpson & Marwick

11 May 2010

[1] This action arises out of a serious road traffic accident which occurred at about 3 pm on Saturday 23^rd April 2005 on the B718 Harthill Road just south of Blackridge, West Lothian. A fire tender was responding to an emergency call relating to a grass fire in the village. It was travelling north towards Blackridge. It crossed onto the southbound carriageway in order to overtake two vehicles which had pulled in to allow it to pass. It was being driven by James Brownlee, who was acting in the course of his employment with the defenders. Meanwhile the pursuer was travelling south through the village on a Yamaha motorcycle with his son Lee as a pillion passenger. As he negotiated the crest of a hill at the exit from the village he saw the tender travelling towards him on his side of the road. The motorcycle struck the offside of the tender and both the pursuer and his son were seriously injured. An action raised by Lee Sim against both his father and the defenders has been settled for a substantial sum, though the defenders made no contribution and denied liability. In the current action the pursuer seeks damages from the defenders for the injuries which he sustained as a result of the accident. He claims that it was caused by the negligence of the defenders' employee. Quantum of damages has been agreed. The only issue in dispute is liability. The defenders contend that Mr Brownlee was not at fault and that the accident was caused by the pursuer. Failing that, if Mr Brownlee was blameworthy damages should be reduced because of the pursuer's contributory negligence.

[2] I heard a proof at which both lay and expert evidence was led. In the main the expert evidence was of no real assistance. However a relatively clear picture emerged from the evidence of those who witnessed or were involved in the accident. At the accident location the B718 Harthill Road is a two way undivided carriageway running generally north to south. It forms a crossroads junction with the unclassified Annandale to Forestfield road which runs generally east to west. The collision occurred just north of the junction. At this point the speed limit is the national speed limit, which for general vehicles is 60 mph, but 40 mph for heavy goods vehicles. However since the tender was responding to an emergency call, it was exempt from this limit. Southbound traffic travelling through Blackridge is restricted to a maximum speed of 30 mph. This restriction ends at the exit from the village at a point just north of the location of the accident.

[3] Police officers attended and preserved the collision scene. The position of the tender and the motorcycle, and of skid marks and other relevant information at the scene are recorded in plan 1 as appended to the collision investigation report, production 7/33. The photographs attached to that report show that the road to the north of the accident location rises to the crest of a hill which restricts the visibility of traffic travelling in either direction. For a considerable distance to the south of the crossroads the road is relatively flat and straight. The attending officers described the weather as bright and sunny. Visibility was good. The road surface was dry. Four tyre lock-up marks, which are shown on the plan, were attributed to the four rear wheels of the fire appliance when under emergency braking. A single tyre lock-up mark was made by the front offside wheel. The tyre marks began when the tender was more or less on the southbound carriageway but continued diagonally across the road until they ended when the appliance was on its own side of the carriageway. Damage to the offside of the appliance was consistent with a collision with the motorcycle, which itself was badly damaged. According to the police investigation report, marks on the road indicated that at impact the motorcycle was adjacent to the hazard warning line in the centre of the road. Scratches on the road surface occurred when it fell onto the road and continued diagonally across it, coming to rest at a verge and fence support on the south east of the crossroads. A calculation carried out to determine the speed of the tender at the position of the first visible tyre mark, all as explained at section 6 of the report, suggested a speed of 43 mph. This should be considered as approximate in that a nominal co-efficient of friction was used. It was not possible to calculate the speed of the motorcycle. The area of impact was identified as being 17.4 metres north of the commencement of the tyre marks. An examination of the tender revealed no relevant defects.

[4] In the pleadings the defenders aver:

"The pursuer had a volume of alcohol in excess of the legal limit in his system at the time of the accident. The pursuer was found to have a blood alcohol reading of 141 milligrams of alcohol in his system. The legal limit for a blood alcohol limit is 80 milligrams of alcohol in a person's system."

It should be noted that the limit is 80 milligrams of alcohol per 100 millilitres of blood. At the outset of the proof the pursuer's pleadings stated that these averments were "not known and not admitted." Evidence was led from the pursuer and others designed to show that the pursuer was not under the influence of alcohol at the time of the accident, and that he was fit to drive the motorcycle. DNA tests carried out on the relevant blood sample during the proof demonstrated that it was a sample of the pursuer's blood. His pleadings were then amended to admit the averments as to the pursuer's blood/alcohol level. The defenders led evidence from an expert in toxicology to the effect that excessive alcohol impairs judgment, reflexes, motor skills and a person's ability to observe what is happening. It causes people to be less risk averse. Driving with 150 milligrams of alcohol per 100 millilitres of blood causes a 23 fold increase in the risk of being involved in a road traffic accident. At 140 milligrams it would not be possible to take appropriate care, nor to respond quickly to an emergency. Such a level of alcohol in the system would make a person wholly unfit to drive. The defenders also aver that at the time of the accident the pursuer was travelling at a speed in excess of 60 mph. As noted earlier, in the direction of the pursuer's travel the accident occurred just beyond the end of the 30 mph limit through the village.

[5] When giving evidence the pursuer said that he could remember nothing of the accident, nor of the events immediately preceding it. Evidence was given by a police officer, namely Sergeant Linda Russell. She lived in a house a short distance to the north of the accident. She was outside her house and had a view of the road through the entrance to her driveway. She was not on duty at the time and she explained that she was not giving evidence as a police officer. Her house can be seen in photograph 2 of production 6/24 next to the fire tender. She heard the roaring of a motorbike engine. She looked up and saw a motorcycle pass the entrance to her drive with two people on board who were each lying forward in an almost horizontal position. It passed by "very very quickly". The speed limit is 30 mph at that point. She said that the speed of the bike was well over the limit and "took her breath away". She thought "The idiots" - there being a children's playpark in the vicinity. The pillion passenger had his arms wrapped around the driver. Within a couple of seconds a blue sports type car passed the driveway also travelling at an excessive speed. In Sergeant Russell's opinion the vehicles were racing. She then heard a screaming of tyres and a crashing of metal. She knew there had been a crash. She ran and saw the aftermath. There was no sign of the blue car.

[6] Sergeant Russell told the attending police officers that the motorbike was travelling at a speed "in excess of 100 mph." When asked how confident she was about that, she replied "Definitely near the 90s - 100s". She thought that the driver of the blue car had decided "not to hang about." There was one person in the blue car. It was possibly a Subaru or Mitsubishi vehicle. Sergeant Russell gave her evidence in a patently honest and reliable manner. Nothing that I heard during the proof caused me to question the accuracy of her account.

[7] The blue car mentioned by Sergeant Russell was a "souped-up" Mitsubishi sports car driven by David Turner, a friend of the pursuer's son, Lee Sim. He proved to be a most unsatisfactory witness. There were inconsistencies between his account and that of Lee Sim, in my opinion largely because neither were giving honest evidence. Mr Turner was very uncomfortable when pressed as to a statement he had given to the police when they found him later that day. They asked him why, rather than stay at the scene, he returned his car to a position out of sight at the back of his house, which is in the village not far from the scene of the accident. I do not accept Mr Turner's evidence that the motorbike was travelling at 30 mph when it crested the hill at the south of the village, nor that he was driving at the same speed. I do not believe his statement that he drove off in the same direction as the bike when, while in the course of manoeuvring into his driveway, he suddenly realised that his vehicle required fuel. Mr Turner said that he had been unable to give an accurate speed for the bike to the police when asked about it that day. When asked how and why he felt able to do so in his evidence, he could give no reply. During cross-examination he said that "he could not really remember what happened that day." I did not believe that statement.

[8] The pursuer's son Lee, his pillion passenger at the time, estimated the speed of the motorbike at the time of the accident at 30/35 mph. When pressed on the issue of the encounter with David Turner, and in particular on inconsistencies between his evidence in the witness box and the terms of his police statement, I formed the impression that Mr Sim was evasive and unconvincing. He agreed that he had accepted very substantial damages in his own action against his father on the basis that his father was culpable in the accident. However the general tenor of his evidence was that his father should be exonerated from any blame. Making such allowances as I can for the fact that Lee Sim was directly involved in a frightening accident, and that as a result he suffered serious injuries, his evidence did not cause me to doubt the reliability of the contradictory account as to the speed of the motorbike given by Sergeant Russell.

[9] Mr Brownlee gave evidence in a straightforward, reliable and credible manner. He had been a fire tender driver for 20 years. He and his colleagues were responding to a call that a field was on fire. He was fairly familiar with the road. There was not a lot of traffic and his speed was anything up to 60 mph. As he entered the straight approaching Blackridge he noticed cars ahead which were slowing or were going to stop. He had switched on the tender's sirens. Before he reached the cars there was no traffic approaching from the opposite direction. He was travelling at approximately 45/50 mph. He realised that he might have to overtake the cars and he checked whether there were any hazards. At this stage the cars were about 100/150 yards from the crossroads. He saw no cause for concern ahead. The road was empty and there was no activity in the playpark. He kept his speed constant to overtake the cars. Nothing was coming from the side roads. As he drew level with the second of the two cars he decided to turn back towards the left hand lane. He glanced in his mirror then turned to look forward. The road was clear, but then a motorbike came over the hill. At that time the tender was at an angle across the road just before the crossroads. He was asked what he did and replied "Nothing really." He thought that the cyclist was going very fast, however if he kept his line he would go past on the tender's right side, so Mr Brownlee carried on towards the left hand carriageway. However the motorbike wobbled and it "sat up". It headed towards the tender. Mr Brownlee then knew that there would be contact so he braked hard. He offered the view that it was perhaps just over a second from the time he saw the bike until he braked. At first he assumed that all would be well. He was pressed as to whether the time period might have been longer than a second, and he replied that it was maybe two seconds from the first time that he saw the bike until contact. He was asked if it could have been three seconds and he replied in the negative.

[10] Mr Brownlee stated that he had passed the cars and the tender was just before or just level with the crossroads when he saw the bike. He was halfway back onto his own lane. He braked after the bike started to move towards his side of the road. When he first saw the bike it was about two feet from the kerb. It then "sat up" and came towards the centre of the road. He was asked about the bike's speed. He replied that it was very fast. He estimated perhaps 60/70 mph. Mr Brownlee was very concerned when he saw him. The bike was going fast, however Mr Brownlee did not brake because he thought that the bike would stay on its own side of the road. Mr Brownlee braked when the bike changed direction. It hit just behind the cabin. Mr Brownlee had proceeded on the basis that if he pulled out to overtake and if something was coming over the hill at 30 mph he could still return to his own side of the road. He was surprised by the speed of the bike. However it would have been wrong to brake as soon as he saw the bike since this would leave the tender further back on the bike's side of the road. He agreed that at the time he was not counting the seconds. He did not know if it was one or two seconds till he braked. Mr Brownlee offered the view that if presented again with the same circumstances he would behave in the same manner.

[11] In its essentials Mr Brownlee's evidence was supported by his colleague William King, who was one of the crew in the tender. Four fire fighters were sitting in the back of the cabin. Mr King was behind the driver next to the person at the window. He had a partial view of the road ahead. He explained that when the tender passed the white car and as it was travelling back towards its side of the road he saw a motorbike in the distance coming round the corner. He saw it come over the brow of the hill on its own side of the road, more towards the nearside, that is the kerbside. He then noticed that the bike was coming straight towards the tender. He did not see the impact. It looked as though the motorbike straightened up on braking and it then "started heading for us". Mr King had driven motorbikes and he was familiar with bikes sitting up when braking. The bike was leaning over to turn the corner then braked, stopped leaning, straightened up, and then came towards the fire engine. In other words it stopped going round the corner. He saw the rider use the brakes. He had thought that the bike would "just pass us.". The motorcyclist's main option was to stay on his own side of the road. There was no reason for him to cross the white line. Thus at first Mr King had not been concerned. However he then thought "Where is he going?" - then there was a "bang". As he came nearer it was apparent that the rider was not in control of the bike. On being asked about the grass fire, Mr King explained that he had not been told of danger to people. He was unaware of the severity of the fire. However it could turn into a house fire and the report was treated in the same way as any other fire report. I formed the view that Mr King was a credible and reliable witness.

[12] Leeanne Harvey was the driver of the leading of the two cars overtaken by the tender as it approached the crossroads. She stopped her car just short of the junction. Its position is shown in plan 1 attached to the collision investigation report. She was familiar with the road. She saw the fire engine behind her and she drew in to stop her vehicle. When asked as to the fire tender's speed she replied "I don't know - more than 40 mph - going at a speed". The fire engine overtook her. She saw a bike coming over the hill as the fire engine was overtaking her vehicle. She did not notice anything regarding the speed of the bike. The fire engine pulled in in front of her. She said that as soon as she saw the bike she knew there would be an accident. This was given the speed of the fire engine and that there was nowhere for the bike to go. The fire engine stayed on the other side of the road for about 2/3 seconds then it started to pull in and swerved to the correct side of the road. It reached the correct lane. After a few seconds the impact occurred. At the time of the accident the fire engine was diagonally across and straddling both sides of the road. She saw the bike for "a really short time" before it disappeared from her view. "Everything happened that quickly." When asked if there was enough distance between them for the collision to be avoided she replied in the negative.

[13] William Filsom and Ian Mackay were passengers in a car travelling out of Blackridge. They passed the crossroads and they saw the fire tender approaching. In common with other cars travelling in their direction the driver of their vehicle pulled onto the right side of the road (the wrong side) to allow the tender to pass by on the southbound carriageway. They both looked back up the straight towards the village and witnessed the accident. Mr Filsom said that the tender was going "pretty fast" and that as it passed his vehicle shook, as did trees on the other side. The tender was overtaking up the hill in the wrong lane. He could not believe that the tender was overtaking on the hill going up towards Blackridge. He saw the motorbike come over the top of the hill. The fire engine tried to pull in and then he saw debris, with the bike and passengers flying through the air. He saw the collision. The tender tried to pull in to avoid the collision but it was too close. The left wheels of the engine were just over the central marks at the time of the collision.

[14] Mr Mackay was the other person in the back of the car. He was very familiar with the road. The fire tender was "going rather fast" - it shook the car. He thought there was an emergency and he would estimate the speed of the tender at 50 mph and upwards. He turned round to look back down the road in the direction of the tender because he was concerned. He knew that the road was dangerous. He saw the tender passing Ms Harvey's car and starting to level itself when the bike came over the brow of the hill and they hit. The bike was on its own side of the road. He saw the collision. Because of the driver's quick reactions, the tender was no longer completely on the southbound lane but had not reached its own side. It was straddling the centre line when the collision happened. The bike hit the side of the engine just behind the petrol tank. The tender pulled in fast so as not to hit the bike straight on, the result being a glancing blow on the side of the tender.

[15] This completes a summary of the toxicological evidence and of much of the evidence from persons who saw or were involved in the events at the time. As more fully discussed later, I draw the following conclusions from it. The pursuer drove his motorbike out of the village at a grossly excessive speed, well above the speed limit, and notwithstanding that his vision ahead was blocked by the hill. It is likely that the reason for this is that he was racing Mr Turner's car. At the time he was heavily intoxicated. Because of his speed he was hugging the kerb - or the racing line. When he saw the oncoming fire tender he braked causing his bike to sit up and steer towards the centre of the road. If the pursuer had not been travelling at such a speed, and if he had full control of his faculties, he could have avoided an accident by maintaining his course on his side of the road. The tender would have had sufficient time to return to its side of the road, and the motorbike would have passed the tender without incident. Alternatively, should it have been necessary a competent and sober motorcyclist travelling at a reasonable speed could have used the area shown in the photographs at the left of the southbound carriageway.

[16] So far as Mr Brownlee is concerned, he was not at fault. His speed was not excessive. He made a reasonable judgment that it was safe to overtake the two cars that pulled in to allow him to pass. Even when he first saw the motorbike he did not anticipate that there would be an accident. However its excessive speed and loss of control quickly caused an emergency situation, with the motorcycle coming towards the centre of the road and the fire tender. Mr Brownlee responded by braking and maintaining course towards the northbound carriageway, but he could not avoid the collision.

[17] Expert evidence as to the circumstances of the accident was led from attending police officers, accident reconstruction experts (namely Mr Seward and Mr Sorton) and an expert motorcyclist. While the evidence as to the police officers' findings at the scene was helpful, I found much of the other expert evidence to be of little real assistance. A good deal of it was taken up with experts making assumptions and carrying out or being encouraged to carry out calculations on distances, stopping distances, times, speeds, reaction times, etc, few of which could be rooted in any demonstrable basis of fact. During the proof I was somewhat puzzled at counsel for the pursuer's preoccupation with trying to pin Mr Brownlee down to a precise duration as to the time from him seeing the bike to his braking. In particular, was it one second, two seconds or three seconds? Understandably Mr Brownlee was reluctant to be so precise. It transpired that such precision was vital to some of Mr Seward's calculations. This illustrates the limitations of this kind of evidence. Also much of it was based on impressions gained from information obtained at an earlier stage, whereas the court must proceed on the evidence as it emerged at the proof.

[18] As summarised by counsel for the pursuer, Mr Seward's thesis was that when Mr Brownlee first saw the motorbike the tender was some 48 metres south of the rear of the two cars which had pulled in to allow him to overtake. Thus it was argued that Mr Brownlee chose to overtake or to continue an overtaking manoeuvre when it was clearly unsafe to do so because of the approaching motorbike. Mr Seward calculated all of this on the basis of a time of 3.8 seconds occurring between the sighting of the bike and the collision. This was made up of a delay of 2 seconds before Mr Brownlee decided to brake, a reaction time of 0.7 seconds, and a skidding time of 1.1 seconds. Mr Jones submitted that Mr Seward's thesis is contradicted by the eye witness evidence in the case. That evidence was to the effect that the motorbike came over the brow of the hill when the tender was more or less alongside the parked cars. It was suggested that the obvious explanation is that Mr Seward's estimates of time, upon which the whole of his theory was based, were wrong.

[19] All of this explains why counsel for the pursuer was so keen to pin Mr Brownlee to precise timings, something which I regard as unrealistic. In one sense it is helpful to the pursuer if the time between the sighting and the collision is lengthened, because it means that the motorbike took more time to cover the ground and thus was travelling at a slower speed. For example, though Mr Seward no longer adhered to the terms of his first report, in it he estimated this period at 2.6 seconds, which equates to a constant speed for the bike of 63 mph, most of which would have occurred in the 30 mph limit. The scenario ultimately presented by Mr Seward in evidence was that the tender was travelling at about 50 mph and the motorbike at an average speed from the hill to impact of about 43 mph, with the motorcyclist steering initially to the right which was described as "the natural avoidance route". According to Mr Seward both drivers were aware of each other when the tender was still some 50 metres south of the two cars which had pulled in just short of the junction. If one adopts this scenario, in my view it becomes difficult to understand how or why the accident occurred. The accident would have been avoided if the motorbike had kept to its own side of the road. In any event it is clear from the photographs that the pursuer could have steered to the left to avoid the tender, even assuming that it was not possible for both to stop before a collision occurred. Mr Sorton gave evidence that at any speed below 55 mph the motorcyclist should have been able to stop before the point of impact. Plainly Mr Brownlee was able to bring the tender to a halt before the start of the 30 mph limit. I also note that PC's Scott and Hannah considered the overtaking manoeuvre to be reasonable and legitimate, and I can readily understand why they came to that opinion.

[20] Be all that as it may, in any event I accept the submission that Mr Seward's thesis should be rejected because it is materially inconsistent with the acceptable eye witness evidence in the case. I have already summarised that evidence and the conclusions which can be drawn from it. In my view it indicates that the direct cause of the accident was the excessive speed of the motorbike. This, allied to the adverse consequences of the pursuer's intoxication, caused him to lose control of the motorbike and head towards the tender and collide with it. So far as Mr Brownlee is concerned, he was faced with two cars pulling in just before the crossroads. He assessed the situation and took a considered and reasonable decision that it was safe to overtake. However when the tender was more or less alongside the parked cars the motorbike appeared over the hill travelling at a grossly excessive speed. Even then there was no immediate cause for alarm since the bike could have passed safely on the tender's offside. Almost immediately there was an abrupt change in this situation when the pursuer lost control and headed towards the tender as it crossed back to its own side. This created the emergency which prompted the tender's heavy braking and the tyre lock-up marks. If the pursuer had been travelling more slowly, even if still somewhat above the speed limit, the accident would not have occurred, unless his intoxicated state took over and created an emergency.

[21] For the pursuer Mr Armstrong relied on a body of evidence to the effect that in general the pursuer was a careful driver not prone to excessive speed. However the issue is his behaviour on this occasion. It was suggested that he was unaware that he was intoxicated, otherwise he would not have used his bike, and certainly not with his son onboard. This may well be true, but I accept the evidence of Dr Duffus, an expert toxicologist led by the defenders, that the pursuer's blood/alcohol level would make him less risk averse. It would seriously impair his ability to control his motorbike and react in an appropriate manner to other traffic on the road. Reference was also made to the evidence of Mr McDonald, an expert motorcyclist. He was an impressive witness, but little that he said is of direct assistance. He did confirm that a motorbike will tend to "sit up" if the brakes are applied when it is leaning during cornering. Under reference to a photograph showing an unworn section at either side of the tread of one of the bike's tyres, he suggested that the bike had not been leaning over to the fullest extent. If a motorcyclist does not lean over to the appropriate extent the bike will tend to drift to the other side. None of this is inconsistent with the eye witness accounts.

[22] Mr Armstrong relied on certain case law to the effect that a driver cannot simply assume that all other road users will behave in a careful and competent manner. That general principle is not in doubt, but the question is, did Mr Brownlee exercise reasonable care? There is no criticism of the speed of the tender. Instead it is submitted that when Mr Brownlee saw the pursuer coming towards him he had time to stop or cut short the overtaking manoeuvre and thereby prevent the accident. If that factual basis for the claim had been established, the pursuer's excessive speed would have counted only towards contributory negligence. However, in agreement with the views expressed in evidence by PC's Scott and Hannah, I hold it established that Mr Brownlee was acting with due care and attention when he decided to embark on the overtaking manoeuvre. At that time there was no oncoming traffic. He could see that there was no one on the side roads. Nothing was happening at the playpark which would suggest a need for caution. There were no parking restrictions at this location, and in all the circumstances it seems to me unrealistic that Mr Brownlee should have brought his tender to a halt behind the parked cars even though there was no traffic coming towards him. It is true that but for the overtaking manoeuvre the accident would not have occurred, but as Lord Uthwatt observed in London Passenger Transport Board v Upson 1949 AC155, "A driver is not bound to anticipate folly in all its forms."

[23] I have not overlooked the evidence of the two passengers in the southbound car, namely Mr Filsom and Mr Mackay. At the time they had feelings of concern that it was dangerous to overtake at that location. That concern was wholly understandable. There were crossroads, a playpark and a blind summit ahead. However Mr Filsom and Mr Mackay were a considerable distance to the south of the accident location and their perspective from that position would have tended to emphasise the potential dangers. It would also make it difficult for them to judge the speed of the motorbike and the location of the tender when the bike first came into view. In short while I can understand their anxieties about the situation, it does not cause me to reject the evidence of others as to the location of the tender when the pursuer came in to view, nor to question the evidence of Mr Brownlee, Mr King and Sergeant Russell as to the circumstances of the accident.

[24] It is also true that Leeanne Harvey said that as soon as she saw the motorbike she knew that there would be an accident, and that this was given the speed of the fire engine and the absence of anywhere for the bike to go. She considered that there was not enough distance between them for the collision to be avoided. She also said that she did not notice anything regarding the speed of the bike. This is perhaps the best evidence in the case for the pursuer. However she also said that she saw the bike come over the hill as the fire engine was overtaking her vehicle, and that she saw the bike for "a really short time" before it disappeared from her view. She explained that "everything happened that quickly." I accept that Leanne Harvey was expressing her best recollection as to her impressions on the day. I have to assess her evidence along with all the other evidence. Bearing in mind her express qualifications as to the extent to which she had time to form an accurate impression, nothing that she said causes me to revise the above assessment as to the true cause of the accident. She had virtually no time to assess the speed of the bike before her view of it was blocked, presumably by the fire tender. In addition, I consider that she was wrong in her view that the bike had nowhere to go to avoid a collision.

[25] For the defenders a computer animation was played and spoken to by Mr Sorton. It was perhaps my fault, but I gained very little from it. It seemed to me that there was at least one flaw in it. Mr Sorton was not responsible for the animation, so understandably there was a limit to the extent to which he could speak on the subject.

[26] I am grateful for the helpful written submissions on the evidence presented by counsel, all of which I have taken into account. The overall result is that I am satisfied that the pursuer's case must fail and that decree of absolvitor should be pronounced.