EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Smith Lord Abernethy	[2011] CSIH 85 PD2241/08 OPINION OF THE COURT delivered by LORD EASSIE in the Reclaiming Motion in the cause RACHEL DAVIS Pursuer; against JOHN CATTO and CIS GENERAL INSURANCE LIMITED Defenders & Respondents; and STEPHEN SKINNER Third Party & Reclaimer: _______

Pursuer: No Appearance

Defenders & Respondents: Shand, Q.C., Milligan, Q.C.; Anderson Strathern

Third Party: Hanretty, Q.C., Springham; Brechin Tindal Oatts

16 December 2011

Introductory

[1] This is an action of reparation for personal injuries arising out of a road traffic accident which occurred on 18 March 2006. The pursuer was a passenger in a black Honda Civic motorcar driven by the first named defender in a westerly direction on the A832 road between Avoch and Munlochy in the Black Isle. At a point on the road, a little to the west of the entrance to Roskill House, the Honda Civic left the road, mounted a bank on the right-hand side of its direction of travel and came to rest in a field. The second named defenders are the insurers of the first named defender. On 19 February 2009 the defenders admitted liability to the pursuer, who suffered serious injuries in the accident. Her claim has been settled. The third party was the driver of a black Ford Focus motorcar which was also being driven in a westerly direction on the road at the time at which the first defender's car left the carriageway. The defenders seek contribution from the third party. That issue was the subject of a proof before answer after which the Temporary Lord Ordinary by interlocutor of 14 July 2010 held the third party liable to contribute 20% of the damages and expenses payable by the defenders to the pursuer. The third party has reclaimed that interlocutor. The defenders have cross appealed, contending for a greater measure of contribution.

[2] The averments advanced by the defenders in respect of their claim for contribution from the third party are lengthy and diffuse, with some obvious irrelevancies. In the averments it is half suggested that some physical contact might have occurred between the two vehicles, thereby playing a rôle in the accident, but in the event that suggestion was not pursued to any extent whatever at the proof. The other basis upon which it is contended that the third party was jointly responsible with the first defender is in essence that the "third party was racing with the first defender".

[3] In paragraph [3] of his opinion, the Temporary Lord Ordinary expresses the view, reflecting the matters in contention before him, that a finding of contribution on the part of the third party could only be made were the defenders to prove "either (a) that at the time of the accident the first defender and the third party were competing with each other or (b) even if no such competition can be proved, that the third party was otherwise in breach of a duty of care to the pursuer." On the first of those alternatives the Temporary Lord Ordinary held that it could not be inferred from the evidence that the first defender and the third party were actively engaged in competing with each other; nor did he accept that it could be inferred that one driver was tacitly inviting the other to compete. It is against that conclusion of the Temporary Lord Ordinary that the cross appeal is directed. On the second branch, the Temporary Lord Ordinary held, in paragraph [42] of his Opinion that, in addition to the first defender, the third party was also driving at a speed grossly in excess of the speed limit; that he was aware of the approach of the car driven by the first defender which was about to overtake his car; that rule 144 of the Highway code envisaged that a car being overtaken "may need to slow down for reasons of safety". The Temporary Lord Ordinary then states:

"In my opinion in the circumstances the third party was under a duty of care to react to the oncoming (sic) Honda Civic by slowing down and allowing the Honda Civic more scope to carry out an overtaking manoeuvre with a greater margin of safety. He failed in that duty of care. The third party must bear some responsibility for the accident."

It is against the Temporary Lord Ordinary's conclusions on that second branch that the reclaiming motion is taken. Put very shortly the argument for the reclaimer is that while it is accepted that the reclaimer - the third party - was driving the Ford Focus at a speed well in excess of the prevailing speed limit and that his doing so was to be deplored, in the particular circumstances of this case the excessive speed of the vehicle driven by the third party was not demonstrated to have had any proper causal rôle in the occurrence of this most unfortunate road traffic accident.

[4] With that introduction, it is appropriate to turn more closely to the facts.

Topography

[5] It is necessary to have regard to the topography of the location of the accident. As already indicated, the road in question was the A832. So far as relevant to the present case, that road runs in a generally south-westerly direction along the northwest shore of the Moray Firth from Rosemarkie, through Fortrose, to Avoch at which point it follows a more westerly direction inland towards the village of Munlochy. At the point at which the accident occurred, the carriageway was approximately 5.5 metres in width and was a two-way undivided carriageway with hazard centre line markings. That point was approximately 3 miles to the west of Avoch. At that point the road curved, for the westbound driver, to the left. That curve was, however, an extremely slight bend. It could safely be negotiated by a car at high speed, including, according to the expert evidence, a speed equivalent to the maximum speed of the Honda Civic. Beyond the exit from the gentle bend, the road pursued a generally straight course for approximately 400 metres until its entry into the outskirts of Munlochy. At the locus of the accident, the road might be described as generally flat, without any significant undulation.

Mechanism of the accident

[6] The circumstances of the accident were, of course, the subject of careful examination at the scene by police traffic officers. Additionally, the Temporary Lord Ordinary heard expert evidence from Mr Peter Sorton, an expert in road traffic accident investigation, and from Mr Graham Newland, an independent tyre consultant.

[7] The conclusions to be drawn from the real evidence respecting the mechanism of the accident were not in any real dispute. The findings of the Temporary Lord Ordinary on this aspect of the case are set out in paragraphs [9] to [18] of his Opinion as follows:

"[9] The investigation carried out by the police into the accident was spoken to by Police Constable John Allen MacIntyre Hier. He had in excess of twelve years experience in accident investigation. His findings are contained in No 15/3 of process. His examination of the locus disclosed evidence of a 4.3 metre score mark and two locked tyre marks measuring respectively 9.3 metres and 1.6 metres. Following in line with these marks there were further gauges [ sic - gouges] tracing a route up the grass verge beside a tree. The Honda Civic was found in a field on the north side of the road. It was lying on its roof. On the assumption that the Honda Civic had overtaken the Ford Focus immediately before the accident, and returned to the correct side of the road, PC Hier concluded that control of the car was then lost with the result that it crossed the carriageway, mounted the grass verge and travelled for some distance into the adjacent field.

[10] I shall consider later the role played by the third party's car in the accident, but two points are worth noting at this stage. Firstly, when subsequently examined the third party's car, the Ford Focus, was found to have been sprayed with grass and dirt. These findings showed that the Ford Focus must have been close to the Honda Civic when the accident happened. The second point is that there was no evidence of any contact having taken place between the two vehicles at the time of the accident. This second point, notwithstanding the implication from the defenders' pleadings that such contact might have taken place, was not disputed.

[11] PC Hier calculated the speed of the Honda Civic at the start of the marks on the road at "not less than 79mph". Peter Sorton, an investigation and reconstruction of road traffic accidents consultant suggested that immediately prior to skidding the Honda Civic was travelling at a speed a little over 80 miles per hour. I have no hesitation in accepting that evidence.

[12] The score mark found at the scene of the accident needed some explanation. According to Mr Sorton the score mark was caused by the rear nearside wheel trim (sic rim). The Honda Civic was very badly damaged as a result of the accident. On examination three of the tyres were inflated but the rear nearside tyre was off the rim. There was grazing around the edge of this rim, with road grindings between the rim and the bead of the tyre.

[13] Graham Newland, an independent tyre consultant, prepared a report following upon his examination of the rear nearside wheel (No.15/2 of process). He explained that a tubeless tyre of the kind fitted on the Honda Civic requires a perfectly airtight seal between the internal faces of the rim at the bead seating area and the bead itself. Inflation of the tyre forces the bead to sit properly, and under normal conditions of operation, this seal remains intact.

[14] Mr Newland also explained that under certain conditions this seal can be compromised and the bead forced away from the flange. For this to happen to a properly inflated tyre, the force would have to be extreme.

[15] In the circumstances of the accident in this case, Mr Newland considered it to have been very unlikely, having regard to the type of tyre, that dislodgement would have occurred unless the tyre was already in an underinflated or even deflated condition at the time of dislodgement leading to rim contact with the roadway and the creation of the score mark.

[16] Mr Newland explained that on the hypothesis that the Honda Civic overtook the Ford Focus and returned to its correct side of the road, correction, and possible overcorrection at speed to straighten the vehicle, could result in a need for steering forces from the nearside tyres. Underinflation of the rear nearside tyre in such circumstances could result in oversteer. Oversteer would cause the vehicle to veer to the right (offside) and dislodgement of the outer bead of the rear nearside tyre.

[17] What I take from Mr Newland's evidence is that, with the forces generated by speed, oversteer, and the correction associated with that, would throw additional weight onto the rear nearside of the car at a time when the rear nearside tyre was underinflated or deflated. That was a perfectly reasonable mechanism for the failure of the nearside rear tyre, and accepting what was said by Mr Sorton, is wholly consistent with the wheel rim creating the score mark on the roadway.

[18] From the evidence of the third party and Darren Stewart which I discuss later, I accept that the first named defender must have turned sharply into the path of the third party's car at the time of the accident before he lost control of his car."

[8] The third party and the passenger in his Ford Focus car, Darren Stewart, were the only eyewitnesses who gave evidence of the events of and immediately preceding the accident. While the first defender did give evidence, he apparently had no recollection of the accident and little recollection of the events which preceded it. The passengers in the Honda Civic, namely the pursuer and a male passenger, were not adduced as witnesses. The Temporary Lord Ordinary formed a somewhat unfavourable view of the testimonies of the third party and Darren Stewart - see paragraph [19] of his Opinion. In particular, he appears to have been unwilling to accept the third party's evidence that he was travelling at 60-70mph and not at a higher speed at the relevant time. The third party described in his evidence his car having been overtaken by the car driven by the first defender. The Temporary Lord Ordinary held, from evidence other than that of the third party, that the speed at which the third party was driving when overtaken by the first defender was in excess of 70mph. The Temporary Lord Ordinary thereafter sets out in paragraph [23] of his Opinion the third party's description of the accident:

"[23] The third party described the overtaking manoeuvre executed by the first defender at the time of the accident as one in which the first defender's car pulled sharply in front of him causing him to brake. The clear inference from his evidence is that he did not slow down during the overtaking manoeuvre itself. That inference is one that I take from his evidence, and it is an inference supported by Darren Stewart to whose evidence I propose to turn in the next paragraph. The third party's description as to what happened next is supported by the reconstruction of the accident I have set out in paragraphs [8] to [17]. According to the first defender [sic -the third party] the back of the left side third party's [sic -of the first defender's] car "went down", the car then went "sharp right" and off the road. That description fits comfortably with the reconstruction evidence."

[9] As respects the evidence given by Darren Stewart, the judge, having rejected Mr Stewart's evidence as to the speed of the Ford Focus, sets out in the latter part of paragraph [24] of his Opinion what he accepted in Mr Stewart's evidence:

"[24] Darren Stewart was aged 20 at the date of the proof. He sought to support the third party in relation to his speed leading up to the accident as being in the region of 60-70mph. I reject that evidence, again because it is contradicted by other evidence. Prior to the accident Darren Stewart said he was aware of the first defender's car approaching from behind. He attributed his knowledge to looking into the nearside side mirror. However, that could not be correct as the nearside side mirror was not operative at that time. I accept that he did become aware of the approaching car. He said it was going very fast when it started to overtake, and that is evidence that I accept. I also accept that he told the third party to slow down when the first defender's car was overtaking and that the third party braked when the first defender's car "started losing control". He supported the third party's position as to the first defender's car moving sharply back to the correct side of the road."

[10] It is also appropriate to set out what the Temporary Lord Ordinary states in the subsequent paragraph of his Opinion:

"[25] It is clear that the third party's car was close to the first defender's car when control was lost as material thrown up in the accident was subsequently discovered on the Ford Focus, the third party's car. I am satisfied that immediately before the time of the accident the third party maintained a constant speed and only braked when he realised that the first defender was losing control of the Honda Civic."

[11] In summary therefore, it appears that the first defender was driving his Honda Civic with a rear tyre which was insufficiently inflated. He overtook the third party's Ford Focus, when that car was driving at a speed notably in excess of the prevailing 60mph speed limit. While there was a slight bend to the left in the road, it was of no objective materiality, being negotiable at a speed equal to the Honda Civic's maximum speed. After that slight bend the road was straight for some 400 metres. There was no oncoming, eastbound, traffic at the time. The first defender however returned sharply to the left-hand side of the road. In doing so, the first defender brought about a need to correct the over-steer which, in combination with the under-inflated tyre of the left rear wheel brought about the sudden deflation of that tyre. That deflation, combined with the need to correct the over-steer, caused the first defender to lose control of his car which then veered to the right and mounted the embankment on the northern side of the road before coming to rest in the field.

"Racing" - the cross appeal

[12] As we understood her, the position of counsel for the defenders was that her primary motion was for refusal of the reclaiming motion; and only in that event, she said, might the cross reclaiming motion be open for consideration. We have some difficulty in understanding that approach since it appears to have been, and to be, the case that the defenders' claim for contribution involves the proposition that participation, prior to the accident itself, in "racing" carries with it joint liability for the accident. In that respect we consider that it is more appropriate first to consider whether the attack, in the cross appeal, on the Temporary Lord Ordinary's finding in paragraph [40] that it could not be inferred that the drivers of the two respective cars were actively or tacitly inviting each other to compete (self evidently in speed) is well founded.

[13] The evidence before the Temporary Lord Ordinary upon which he was invited to, but declined, to make the inference of express or tacit "racing" may be summarised as follows.

[14] First, a motorist, Mr Cran deponed to having been driving his car on the A832 as it proceeded out of Avoch towards Munlochy and within the 30mph restriction on that part of the road in Avoch, when he was overtaken by two cars. Despite some confusion in Mr Cran's evidence as to their respective colours, it may be accepted - and it was not in dispute before us - that in order of overtaking the first car was the first named defender's Honda Civic and second, the third party's Ford Focus. Mr Cran said that both were exceeding the speed limit and he estimated their respective speeds in like measure as 50-60mph. There was a lapse of time between the two overtaking manoeuvres which Mr Cran estimated at 3-4 seconds.

[15] Secondly, another motorist, a Mr Calum MacLennan, gave evidence to the effect that he was driving his car in a westerly direction from Avoch to Munlochy when, in the general vicinity of the entrance to Rosehaugh Mains, his car was overtaken by two white vehicles, the registration number of the first beginning with the letter "E". Both vehicles were travelling at speed. Mr MacLennan estimated that speed being approximately 90mph for the first car, with the second at the same speed. As the Temporary Lord Ordinary notes in paragraph [30] of his Opinion, having referred to a statement made by Mr MacLennan to the police,

"Mr MacLennan went on to say that he informed the impression that there was an overtaking manoeuvre at the point some way ahead of him around Smithy House because he had the impression of rear lights side by side on the roadway before they went out of sight. He was unclear how far ahead of him this occurred and whether it was 1/2 mile or 3/4 would be a 'pure guess' ".

We would add that Smithy House lies to the east of the point at which the first defender's car left the road, the distance being very roughly about 1km west from the entrance to Rosehaugh Mains. We would further add that the Temporary Lord Ordinary's view that Mr MacLennan was mistaken as to the colour of the two cars was not questioned.

[16] Since the third party's vehicle had an "E" registration number, one important implication stemming from the evidence of these two motorists is that at some point between the built- up area of Avoch and the overtaking manoeuvres in which the two cars overtook Mr McLennan's vehicle, the Ford Focus driven by the third party had overtaken the Honda Civic driven by the first named defender. This, in fact, tallied with evidence given by Darren Stewart to the effect that after leaving Avoch the Honda slowed down noticeably and was overtaken by the third party (cf transcript of evidence day 2, page 131). The third party likewise gave evidence that the Honda slowed down, he overtook it and continued to drive at 70-75mph (transcript day 2, page 169-170). The location at which the third party's vehicle thus overtook the first defender's Honda Civic is, perhaps understandably, not entirely clear. But the accuracy of the evidence of Mr Stewart and the third party that the Honda driven by her client slowed down noticeably and was thus overtaken was not questioned by counsel for the defenders in her examination in chief of these witnesses whom she called as part of the case for the defenders.

[17] As just mentioned, the judge also records that in a statement given to the police in the relatively immediate aftermath of the accident, Mr MacLennan was noted by the police as having had the impression that the cars were "racing". Since in the defender's note of argument, and orally before us, some emphasis was placed upon that witness' impression that the cars were "racing", it should be noted that (whatever might have been intended by the use of the term "racing") the basis for it was "as from their lights in the distance one was overtaking the other."

[18] We think it also necessary to record that in the examination of both the third party and Mr Stewart by counsel for the defenders, it was never put to them that they were, or at least the third party was, engaged, either actively or tacitly, in a competition of speed or any form of racing.

[19] With that exposition of the evidence, we turn to the argument on the cross appeal. In support of the cross appeal it was contended for the defenders that the Temporary Lord Ordinary erred in not finding that the first defenders and the third party were "racing". Counsel also advanced a contention that the only inference to be drawn was that the two drivers were "encouraging" each other to drive dangerously or were "influencing" each other; and that inference ought to have been drawn by the Temporary Lord Ordinary. Further the Temporary Lord Ordinary had not had proper regard to the fact that the police had noted Mr MacLennan as having had the impression that the two cars in question were "racing".

[20] In our consideration of this argument we begin by noting that in stating that he could not accept the inference that the first defender and the third party were competing, the Temporary Lord Ordinary made plain in paragraph [40] of his Opinion that he was considering both the possibility of express invitation to compete and also tacit invitation to compete by virtue of prior conduct. In her submissions to him counsel for the defenders is recorded by the Temporary Lord Ordinary as having expressed that as a matter of the third party's "goading" the first defender to drive in competition with him. While in presenting the cross appeal, counsel for the defenders may have deployed language yet more nebulous than the term "goading" which she used in addressing the judge at first instance, we do not understand her to advance a proposition materially different from that which she placed before the Temporary Lord Ordinary and which is encompassed in his reference to tacit invitation to compete.

[21] In our view, the Temporary Lord Ordinary was fully entitled to reach the view that, on the evidence which he accepted, he could not draw the inference which the defenders invited him to do. There was, of course, no evidence whatever of any prior communication between the two drivers. While, at the proof, counsel for the defenders made allegations respecting events said to have taken place in and south of Fortrose and thus prior to the vehicles emerging from Avoch there was, as the Temporary Lord Ordinary rightly found, no evidence to support those allegations. There was therefore no evidence of the two cars in question repeatedly overtaking each other. There was no evidence at all of the two drivers jockeying for position on the carriageway. It may also be of some moment that, as already mentioned, it was at no point put to the third party - or to Darren Stewart - that the third party was in any sense "racing" with the first defender or goading him to do so. As respects Mr McLennan's impression of "racing", it was based on his observations of the distant lights of vehicles at the commencement of the first defender's overtaking manoeuvre in which the accident occurred. The occurrence of that manoeuvre is not in any doubt and we do not consider that the Temporary Lord Ordinary can in any way be faulted were he to have taken the obvious view that an impression based on the observation of very distant rear lights was of no material assistance. Moreover, a decision by the first defender to overtake the third party's car says nothing about the third party's thinking or actions.

[22] In these circumstances we consider that the cross appeal is not well founded. Since we consider that the judge hearing the case did not err in declining to draw the inference that the first defender and the third party were actively engaged in competing with each other or tacitly inviting competition, it is not necessary to consider on what juridical basis one driver actively or tacitly competing with another may properly be held jointly liable for the consequences of an accident caused by that other. That legal issue was not discussed before the Temporary Lord Ordinary. Parties appear to have approached the matter before him on the basis that the fact of some active or tacit competition was in itself sufficient to result in a sharing of liability. For our part, we think the issue may not be so simple. While, on raising this more fundamental juridical question we were referred to Khahna v Imran Somra [2002] EWHC 555 and Hames v Ferguson [2008] EWCA Civ 1268 it appears to us that both of those cases were decided very much on their own peculiar facts. We should not be taken in giving judgment in this reclaiming motion as endorsing a general proposition that active or tacit participation in a competition of speed automatically gives rise to joint liability on the part of all of the participants, whether the agreement be tacit or express.

[23] In these circumstances we consider that the cross appeal must be dismissed and we turn now to the reclaiming motion.

Causation - The Reclaiming Motion

[24] In advancing his submission that the Temporary Lord Ordinary was in error in finding the third party jointly liable, counsel for the third party focussed his criticism on paragraph [42] of the judge's Opinion. For convenience, we set out that paragraph and the preceding paragraph:

"[41] Mr Hanretty argued that the sole cause of the accident was the first defender's action in moving quickly in front of the third party's car and then losing control. I have set out in paragraphs [8] to [18] my conclusions on how the accident happened and I am in no doubt that the first defender must bear a significant proportion of the blame for the accident. He attempted a manoeuvre at a grossly excessive speed that involved moving quickly in front of another car that was also travelling at an excessive speed.

[42] Nevertheless, even although I have concluded that the first defender and the third party were not engaged in any form of competition, the fact remains that at the relevant time the third party was also driving his car at a speed grossly in excess of the speed limit. I find it quite telling, as I have set out in paragraph [24] that Darren Stewart asked the third party to slow down as the first defender's car approached from behind, and the third party did not brake until the first defender lost control of his car. The third party was aware that the car driven by the first defender was approaching and about to overtake. The relevant version of the Highway Code at Rule 144 envisages that a car that is to be overtaken may need to slow down for reasons of safety. In my opinion in the circumstances the third party was under a duty of care to react to the oncoming Honda Civic by slowing down and allowing the Honda Civic more scope to carry out an overtaking manoeuvre with a greater margin of safety. He failed in that duty of care. The third party must bear some responsibility for the accident."

The reasoning in the latter paragraph was, said counsel, flawed. In particular, the evidence demonstrated that there was nothing ahead of the overtaking vehicle obstructing its passage which required the first defender to move in quickly in front of the third party's vehicle, that being the manoeuvre which, in conjunction with an under-inflated rear tyre, caused the first defender to lose control of his car. There were of course situations in which the presence of an oncoming vehicle, or the configuration of the road, might require that the vehicle being overtaken slow down in order to give the overtaker more space and time to regain the left-hand side of the carriageway. That was what rule 144 of the Highway Code contemplated; but it was plainly not the situation in the present case. Further, the antepenultimate sentence of paragraph [42] failed to address in what relevant sense the defender's driving, at a steady speed, while being overtaken by the first defender had any causal rôle in this particular accident.

[25] In response, counsel for the first defender referred to certain well known authorities on the extent to which an appellate court may depart from the findings of a judge at first instance and she submitted that since counsel for the third party had not challenged the findings in fact, it then required to be shown that the judge had reached a conclusion which was plainly wrong. Counsel stressed that the Temporary Lord Ordinary had found the third party to have been driving at an excessive speed. That must, she submitted, have some causal effect as respects the accident. Counsel, invited the Court to have regard to certain passages in the evidence of Darren Stewart, in which that witness expressed a view that the first defender might have been cutting in sharply in front of the third party's car because of the existence of the bend to the left.

[26] In approaching these submissions on causation, we consider that the appropriate starting point is the mechanism of the accident as demonstrated in the evidence, which the Temporary Lord Ordinary reflects in his unchallenged findings in fact. It is to be observed at the outset that the present case does not involve any collision or contact between the Honda Civic and the Ford Focus. While the first defender had elected to overtake a vehicle which was itself proceeding at a speed notably in excess of the speed limit, the immediate cause of his losing control of the vehicle was his action in swerving sharply to his left in front of the third party's car thereby requiring him to correct an over-steer, all while driving a car with an under-inflated rear tyre, which then deflated.

[27] Given that immediate causal explanation of what happened, the next step must be to consider what action or omission on the part of the third party might properly be said to have caused, or materially contributed to, the first defender's swerving sharply to the left in front of the third party's vehicle.

[28] It is plain from the evidence that there was no oncoming vehicle whose approach might have dictated a need for the third party to slow down to allow the first defender to get back into the left-hand side of the carriageway. We shall revert to the evidence of Darren Stewart to which counsel for the first defender referred, but it is also plain from the evidence that there was nothing in the configuration of the road which provided any apparent reason for the overtaking car to require to cut in sharply in front of the Ford Focus. As counsel for the third party pointed out, there was nothing to prevent the first defender from continuing his overtaking manoeuvre in safety by returning gradually to the left-hand side of the carriageway; in particular there was nothing in the configuration of the road which would suggest to the third party, as the driver of the vehicle being overtaken, any need to accord the overtaking vehicle space to return to its own side of the road. While it is of course the case that both vehicles were driving at a speed greatly in excess of the speed limit, the expert evidence was to the effect that the slight bend could be negotiated safely at high speed. Speed on the part of the third party, as such, played no evident rôle so far as direct causation and the attribution of responsibility was concerned.

[29] In paragraph [42] of his Opinion the judge adverts to the evidence of Darren Stewart to the effect that, as the first defender's car began to overtake, he asked the third party to slow down. Perhaps appreciating that, despite its description by the judge as "telling", the suggestion by Darren Stewart that the third party slow down did not provide any cogent explanation for the first defender's sudden leftward cutting in, counsel for the first defender drew attention to passages in the evidence of Mr Stewart in which the witness ventured the view that the first defender might have been trying to pull in because of the left-hand bend.

[30] However, as counsel for the third party pointed out, Darren Stewart was not a driver; nor had he the same vantage point as the driver of the vehicle in which he was travelling; let alone the vantage point of the driver of the overtaking Honda Civic. On any objective view, the existence of the slight left-hand bend could not provide an explanation for any need on the part of the first defender to cut in sharply in front of the third party's car. We therefore consider it to be understandable that the Temporary Lord Ordinary makes no express reference to that particular passage in the evidence of Mr Stewart.

[31] It is also to be noted that nowhere in the evidence - and in particular in the expert evidence - was there any exploration of the proposition that, were the third party to have slowed down while being overtaken, the first defender would not yet have cut in sharply in front of the Ford Focus. There is nothing in the expert evidence adduced by the defenders to demonstrate that slowing down, as opposed to continuing at the steady speed which the third party maintained, would have had any causal consequences as respects the particular swerving manoeuvre which is central to the causation of the accident. There was, for example, no discussion as to the point at which deceleration might have been desiderated, or its effects upon producing a distance greater than the already ample distance available to allow the first defender to gradually regain the left-hand side of the road in safety.

[32] It is of course the case that the third party was driving at a speed significantly in excess of the prevailing speed limit and to that extent, as his counsel rightly stated, his conduct is to be deplored. However, while deplorable, the fact of his driving at an excessive speed when the first defender elected to overtake at an even greater excessive speed does not mean in itself that the third party thereby becomes jointly responsible for the accident. One has to examine carefully the manner in which the accident was caused. For the reasons which we have endeavoured to explain, in the particular circumstances of this accident, we do not consider that the evidence demonstrates that the speed in excess of the statutory speed limit at which the third party was driving, nor his continuing to drive at that speed, may properly be said to have had any causal rôle in the accident. In so far as the judge at first instance appears to address in terms the question of causation he simply says that he finds the third party to have been under a duty of care - in which he says the third party failed - to slow down when being overtaken by the first defender's car to afford "a greater margin of safety". We have to note that in so saying the judge does not explain in practical terms, derived from the evidence, what he intends by the phrase "a greater margin of safety" or how that might have had any causal consequences in the particular circumstances in which the first defender is shown, on the evidence, to have lost control of his car.

[33] In these circumstances we have come to the view that the Temporary Lord Ordinary has fallen into error and that the reclaiming motion should be allowed.