Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 111
PD1617/11	OPINION OF LORD BOYD OF DUNCANSBY in the cause DOUGLAS DICKSON Pursuer; against STUART KINSMAN AND CENTRICA PLC Defenders: ________________

Pursuer: Middleton; Thompsons

Defenders: Dawson; Simpson & Marwick

9 July 2013

[1] This is a personal injuries action. The pursuer is Douglas Dickson. He is now 40 years old. He lives in Inverness and is married with three children. He is employed by Lifescan Limited based in Beechwood Avenue, Inverness. At the time of the accident he was an Operations Team Leader.

[2] On 24 July 2008 he fell off his bicycle on the way to work. At around 8 a.m. on that day he was cycling along Ferntower Avenue, Culloden towards Barn Church Road. Ferntower Avenue is in a modern housing estate. The road is constructed to the standard one normally sees in such an estate and the road surface is tarred and smooth. The pursuer was very familiar with this road. It was close to his home and he had cycled along it many times before on his way to work. He was wearing a pair of shorts, fleece, cycle shorts, cycle helmet, socks and trainers. The bicycle was relatively new. It is described as a hybrid, meaning that it is adapted for road and mountain biking. The weather conditions were good. The road was dry and the traffic light.

[3] As one travels along Ferntower Avenue towards Barn Church Road, the road bends to the right with a slight downward slope. The pursuer was cycling close in to the kerb and at a moderate speed. Immediately after the bend, Ferntower Avenue is joined from the left by Loch Lann Road. Traffic on Ferntower Avenue has right of way and traffic joining from Loch Lann Road must accordingly give way. There are road markings indicating to traffic that it must give way to traffic on Ferntower Avenue. There is a good view of the junction from Ferntower Avenue, particularly from a point before the road bends to the right. However, for traffic exiting from Loch Lann Road into Ferntower Avenue, visibility is partially obscured by some bushes in a garden on the offside of the junction - that is in the direction from which the pursuer was travelling. The view opens out close to the give way markings.

[4] As the pursuer approached the junction with Loch Lann Road, a small Vauxhall van, belonging to the second defenders, was being driven along Loch Lann Road by Mr Stuart Kinsman, the first defender. He is employed by the second defenders and at the time was on his way to a job in Nairn on behalf of his employers. He intended to turn left into Ferntower Avenue. The vehicle was being driven in a manner which gave the impression to the pursuer that he had not seen the pursuer and did not intend to stop. The vehicle approached the junction at a speed which suggested that he intended to carry on into Ferntower Avenue without stopping. When he first looked right, the first defender did not see or register the pursuer cycling down Ferntower Avenue. He "looked right through me", according to the pursuer. The pursuer believed that he was about to hit the van. Accordingly he braked suddenly. As a result, he went over the handlebars. The first defender first saw the pursuer when he was flying through the air. The first defender stopped at the junction with his front bumper sticking a short distance over the markings. The pursuer landed just in the entrance to the junction.

[5] The pursuer sustained a number of injuries. These included fractures to both wrists. He was off work for a period of time. His bicycle and some other possessions were damaged. The parties have agreed damages of £26,000. Accordingly the proof was restricted to one of liability. The defenders also have a plea of contributory negligence.

[6] Apart from the pursuer, his wife Caroline Dickson gave evidence at the proof. Police Constable Alexander Collins gave evidence for the defenders on commission and I had the transcript of that commission. I also had a note on credibility and reliability from the commissioner. The first defender, Stuart Kinsman, also gave evidence.

The Pursuer

[7] The pursuer is an experienced cyclist, a professional married man who lives very close to where the accident occurred. His evidence was not without some problems. In the first place, though I believed he was trying to be helpful, at some points I thought he was trying too hard. I noted that he had gone out and purchased a measuring wheel so that he could properly measure the junction where the accident happened. He was not unnaturally anxious about giving evidence. He was subject to a long cross examination. Mr Dawson sought to dissect each moment of the accident in great detail. With respect I am not sure that it is possible to break down events into such small slices of time. Given that approach, I was not surprised that some apparent inconsistencies emerged.

[8] There were a number of pieces of evidence which I did not accept. The pursuer said at one point that he had managed to remember part of the van's registration. I did not believe that. He did not give them to PC Collins, as might have been expected and had not mentioned this before. Despite that, and some other matters which I will come on to, I formed the view that on the essential matters his evidence was credible and reliable.

[9] Immediately after the accident, the pursuer called his wife who was at home. According to her, he said to her that he had been in an accident and asked her to come and collect him. She asked what had happened and he replied that a van had pulled out and he had come off his bike. She did not recall his exact words. He had added to that account later when he returned to the house. He told her that the driver had not seen him. He had not said anything else at the time. She said that she was very aware of the children in the house.

[10] When the pursuer attended Raigmore Hospital, details were taken from him about the accident. Such accounts recorded in hospital records should always be treated with caution as they are not taken for the purposes of gathering evidence but of treating the patient. Complete accuracy is therefore not required. Mr Dawson pointed out that one of the accounts recorded suggests that he had swerved to avoid the car. This, he suggested, was another inconsistency in his account. As I said, it would be wrong to over analyse words noted down by doctors and nurses and accident and emergency. There is a clear account of having to brake suddenly and going over handlebars as a result of a car or van pulling out in front of him.

[11] The pursuer was spoken to by PC Collins at Raigmore Hospital, sometime after 4.30pm that afternoon. In the account noted in PC Collins' notebook, the pursuer stated that as he approached Loch Lann Terrace, he saw a BT (sic) van approach the junction with Ferntower Road. "I saw the driver glance around but he did not slow down so I assume he did not see me at first so I applied the brakes on my bike which caused me to go over the handlebars. The BT van driver obviously saw me late". Later he added that if he had not braked, he felt that he would have struck the vehicle in the bonnet or front wing.

[12] Accordingly, the pursuer has been consistent from an early stage that he came off his bicycle as a result of having to apply his brakes suddenly to avoid colliding with the van.

[13] Mr Dawson made a large number of criticisms of his evidence in a detailed written submission. Some are more substantial than others. I will attempt to deal with these in the order in which he has raised them, though some points are better dealt with in the analysis below. First he said that the pursuer had delayed in raising the action. He had known the details of what happened, although not who the driver of the van was from immediately after the accident. He could have found out the name of the driver of the van sooner by writing to British Gas or by asking PC Collins, who had taken a statement from the first defender on 13 August 2008. In any event, he said there was no good reason for the delay. I was not impressed by this criticism. The pursuer's evidence is that he went to Quantum Claims, some two months after the accident. The action was raised within the triennium.

[14] Secondly, Mr Dawson contended that the pursuer spoke to having left home knowing he had twenty things to do at work that day as he was travelling to Ireland the following week. This, he said, went to reliability as well as the extent to which he was "complying with his duties at the time of the accident as he had other things on his mind." There is no suggestion in any of the evidence that the pursuer was unable to function normally because of "things on his mind." Nor do I accept that his reliability as a witness was impaired.

[15] Thirdly, Mr Dawson noted the circumstances of the accident. He hit his head. His helmet was damaged. The shock must have had a significant impact upon his thinking at the time and his subsequent recollection of events. Despite this, he was able to give very detailed evidence about the accident. Again I reject this. There was nothing in the evidence to suggest that he had suffered from amnesia as result of a blow to the head or that his memory was impaired.

[16] Fourthly in this chapter, Mr Dawson submitted that there was a lack of evidence from the pursuer. In particular there was a lack of expert evidence about distances to establish that he required to brake in the way he claimed he did. There was no expert evidence, Mr Dawson submitted, of either physical matters such as distances, skid marks etc. or an analysis of such evidence which such experts regularly give to the courts. I do not accept that expert evidence was necessary and I am not sure how much help an expert could give. There were no skid or other physical marks. There was some evidence of distances from the pursuer. An expert would be wholly dependent on what the pursuer and first defender said. In any event, as Mr Middleton pointed out, this ought to have been a short proof about a man who fell off his bicycle. The court should be able to resolve these issues without insisting on experts.

[17] Mr Dawson also criticised the failure to lead the neighbour who took the pursuer to hospital. Immediately following the accident, the pursuer phoned his wife who came and collected him and took him home. She gave evidence of what the pursuer had told her about the circumstances of the accident. Thereafter the neighbour took the pursuer to hospital. It should be noted that the neighbour was not present and did not see the accident. Nevertheless it is said that he was a "ready source of corroborative evidence". In the absence of his testimony the court should, it was said, be slow to accept anything said by the pursuer to those who assisted him after the accident. Again I reject this criticism. I have no idea what, if anything, might have been said by the pursuer to this neighbour. No doubt he was available to the defenders and could have been led by them if they so wished.

[18] Fifthly it was suggested that the pursuer gave inconsistent evidence about the distance he was from the kerb. In evidence he said that he was about one foot from the kerb. I had suggested to him that that seemed quite close and he was said to be amenable to the suggestion that it might have been more. Mr Dawson submitted that the way in which he gave his evidence and was open to suggestion, showed that he was unreliable and inconsistent. He also submitted that the pursuer was close to the left hand kerb as it bent gradually but significantly to the right. He had demonstrated in evidence how he had turned the handlebars in a significant way to achieve the turn, but had then downplayed the extent of the turn required. This analysis, it was submitted, was more in keeping with the defenders' theory that he had hit the kerb. I have seen the photographs of the road and the bend in it. I accept that that is not the same as seeing it for myself. However it is a clear smooth road on a modern housing estate. The bend is not sharp but gradual and any competent and experienced cyclist should be able to negotiate it with ease. I suspect that the pursuer was probably a little further out than one foot. The estimation of distances is always difficult, but I found nothing in this chapter of evidence to suggest to me that the pursuer's evidence was unreliable.

[19] Sixthly, it was suggested that the pursuer was unreliable in his estimation of distance from the first defender when they had a conversation with him after the accident. Initially he had said he was 10 metres away, but when Mr Middleton had queried in chief whether this was right he was amenable to a suggestion that it was not as much as this, it could be six or seven metres. Not only was this inconsistent, it was inconsistent with the evidence of where he said he fell of his bike. I accept that there is an inconsistency in this part of his evidence. I did not think it went to the heart of his reliability as a witness. Despite the fact he had measured distances at the junction, I came to the conclusion that his ability to estimate the exact distances involved was not good. This does not seem to me surprising.

[20] Seventhly, it was submitted that the interaction between the pursuer and the first defender, immediately after the accident was inconsistent with his account. The first defender stopped, wound down the window and asked if he was ok. He said yes. As Mr Dawson put it, this was an admitted lie. He was not ok. He did not ask for assistance. He did not rant and rave at the first defender, or put it to him that he had been at fault. He did not attempt to get any details like insurance, address etc. He did not call for an ambulance. PC Collins said in evidence that this was unusual. He would have expected someone who suspected he "had a broken anything" to call an ambulance. He also said that he would have expected him to get details of the driver. Mr Dawson criticised the fact that he did not contact the police and that he called for his wife to come and get him, despite the fact that she was at home looking after the children. It was his wife who subsequently called the police. He said in evidence that if it had been his fault he would have been too embarrassed to call the police. It was said that the reason he did not call the police was that he knew it was his fault. I was not impressed by any of these criticisms. The first response of many people who are hurt is to say that they are ok. It often requires a moment or two for people to accept that they are injured. Nor do I think unusual for him not to rant and rave at the driver of the van or request his details. The pursuer gave evidence that he thought that the first defender was in a hurry and keen to get away. I accept that evidence. If the first defender had been concerned for the pursuer, he would have stopped and made sure that he had assistance if he required it. It seems to me that the first defender was not there long enough for the pursuer to recover his wits enough to do all the things that it was submitted he should have done. Nor do I think it unusual for him to call for his wife's assistance rather than an ambulance. She lived almost round the corner. She could get him and the bicycle without too much trouble, though it is true that she was concerned about leaving the children for any length of time. That is why she subsequently arranged for the neighbour to take him to hospital. As to his not calling the police I note that his account has been consistent that he came off his bicycle as a result of a car or van coming out in front of him.

[21] Finally, it was said that there were inconsistencies between the account given by the pursuer and the account given to PC Collins. In particular, he said that the pursuer had not mentioned that the van was over the line, or that it had exited the junction, or that he was slowing down at the junction, or damage to his back pack, helmet and watch. Nor did he mention that he was in the mouth of the junction when he came off the bike. In my judgement, there is nothing in these criticisms. These are matters of detail which one might not expect to feature in a policeman's notebook. As PC Collins explained if he required a detailed statement he would have gone back and taken one.

Mrs Caroline Dickson

[22] Mrs Dickson is the pursuer's wife. She has three children, the oldest of whom was, at the time, twelve years old. She was in bed when the pursuer rang her and asked her to come and collect him. She had got the children up and made sure that the oldest was to look after the younger children. Despite that she was anxious about leaving the children even for a short time. When she returned, she arranged for a neighbour to take him to hospital. She gave evidence about finding her husband sitting on the kerb, noting the damage to his bike and other items and also spoke to what her husband told her about the circumstances of the accident.

[23] I was impressed by Mrs Dickson's evidence. She was obviously concerned for her husband's well-being, but I thought that she was entirely honest and straightforward in the way in which she gave her evidence. I had no reason not to accept her as a credible and reliable witness. Mr Dawson made a number of criticisms of her evidence. I will deal with some of these.

[24] Mr Dawson submitted that Mrs Dickson had been late in reporting the accident. For this submission he relied on the evidence of PC Collins that Mrs Dickson had contacted the police after 4 pm that day by telephone. The incident log of Northern Constabulary showed contact being made at 16.17 by Mrs Dickson by telephone and it was on the basis of that entry that PC Collins gave his evidence. I did not accept that. Mrs Dickson gave evidence that she had gone to the hospital that morning to visit her husband. On the way home she had attended Culloden police station and reported the accident in person. She thought it was sometime after 12 noon. She did not speak to PC Collins who was contacted by police control some time later. Apparently he got the impression that the accident had just occurred and attended the locus only to find that nobody was there and there was no sign of an accident. While one might not normally question an incident log, I have to say that I am satisfied that it was wrong. It may be that 16.17 was the time at which it was entered in the system. There was some evidence on the form to support that interpretation. The log also shows PC Collins being allocated the inquiry at 17.06. Yet his notebook shows that he took the statement from the pursuer at 16.38. So the accuracy of the log is open to question. I preferred the evidence of Mrs Dickson. It seemed to me to be natural in the circumstances that she would attend the police station on her way home. Accordingly, I do not accept his criticism of her in being late in reporting the accident.

[25] Mr Dawson also criticised the fact that the pursuer had not given his wife any further detail of what happened; that she was preoccupied with looking after the children and therefore her ability to absorb detail of what she had been told was limited; that Mrs Dickson spoke to a conversation in the car on the way home which the pursuer had omitted to mention - this was an inconsistency; that she had a financial interest in the outcome of the case; that she had undergone treatment for cancer and that a previous diet had to be discharged because of the effect that the treatment was having on her memory; that she was keen in cross examination to refute any suggestion that she might have discussed the case with the pursuer and that, in the light of the fact that she had had to have treatment for cancer, could not be true. I hope that I have sufficiently paraphrased Mr Dawson's lengthy written submissions on the issue of Mrs Dickson's credibility and reliability. I have considered all the points he raised with care. I do not accept any of them.

[26] Both the pursuer and Mrs Dickson said in evidence that the pursuer had been given morphine before he spoke to PC Collins at 16.38 that night. That is not borne out by the hospital records. I did not think anything turned on this point. He was certainly given morphine later that night.

Stuart Kinsman

[27] Mr Kinsman, the first defender, is the driver of the van owned by the second defenders. He is a gas service engineer with Scottish Gas and has been employed in that capacity for some 20 years. He has a clean driving licence. He has undertaken driver training for his work and has not been involved in an accident. As Mr Middleton conceded he gave evidence in a straightforward manner. In many ways he was more comfortable giving evidence than was the pursuer. His evidence gave me pause for thought and has made it more difficult to resolve the issues. However having carefully considered all of the issues, I have decided that on the crucial issues the evidence of the pursuer is to be preferred. My reasons for doing so are set out below.

The issues in the evidence

[28] There are only two eye witnesses; the pursuer and the first defender. Neither are neutral. Inevitably, as in most accidents, events happen very fast and it is sometimes difficult to reconstruct precisely what happened. In some reparation actions it is possible to inspect machinery or to conduct a reconstruction of a road accident with expert evidence. This was not possible in this case. Mr Dawson cautioned against accepting an ex post facto account of what happened. In any witness's account there may well be detail that is "fitted in" later to ensure a coherent whole. It seems to me that is what the human mind does in trying to make sense of events. At the end of the day, the question is always whether or not a witness's evidence is reliable and credible.

[29] The burden of proof is, of course, on the pursuer. Mr Dawson referred me to Walker & Walker at paragraph 4.2.1. He submitted that the court must, in the first instance, decide whether the pursuer's evidence was inherently probable. Where the probabilities are equal, the burden of proof is not discharged; Miller v Minister of Pensions [1947] 2 All ER 372, per Lord Denning at page 374. Where the circumstances are equally consistent with the fault of the defender, as with non-fault, the pursuer's case must fail: Hendry v Clan Line Steamers [1949] SC 320, per Thomson LP at page 322. Mr Middleton took no issue with these submissions which I accept.

[30] The case pled on record is to the effect that the first defender failed to stop at the give way lines. "The front of his van crossed said lines and protruded into the pursuer's path. The pursuer required to brake sharply and in doing so, lost control of his vehicle and fell to the ground, injuring himself. The van then came to a stop." However in the course of the proof, it became clear that part of the pursuer's complaint was not merely that the van failed to stop and protruded over the lines into the pursuer's path, but that the van approached the junction at "excessive" speed. No objection was taken to this line of inquiry, but Mr Dawson submitted that evidence on speed should be disregarded as it had not been pled on record.

[31] I have come to the conclusion that I cannot disregard the evidence of speed. In the first place, it was not objected to at the time. Secondly, even if it had been, I would have allowed the evidence as it seems to me artificial to exclude it and there was no prejudice to either party.

[32] The pursuer gave evidence that he was about three or four metres away from the start of the white lines at the junction when he first saw the van. It was being driven "fast and quick" to the junction. He was aware of the driver glancing in his direction, but said that he "looked straight through me". He had the impression that the driver was looking for cars. He was looking straight past him. The pursuer said that he had to brake suddenly to avoid running into the van. The van stopped with his bumper or front part of the van over the give way markings on the road. The offside of the vehicle was over the line by about one foot. The first defender had obviously seen him late. The pursuer said he did not swerve. He just applied the brakes. It was in the heat of the moment. He landed on the ground at the junction. The first defender had rolled down his window and asked if he was ok. The pursuer had the impression that he was eager to go. He said he was ok and got up and started moving stuff off the road.

[33] In cross examination it was suggested to him that he had simply hit the kerb and fallen off. The pursuer denied that. He said that he was a competent cyclist. He was not a novice. He similarly denied loosing concentration or control. In cross, and in submissions, Mr Dawson suggested that it would not be possible for the pursuer to note at the distance that he was from the driver and in the short time he had to observe him, that he had not been seen. The pursuer denied this. He said that there was no eye contact. It was clear that the driver had not seen him.

[34] The first defender lives in Loch Lann Road. He said that he left home as usual about 8 am that day. He was driving to Nairn which is his "patch". He usually would have an apprentice but not that day. He usually drove along Loch Lann Road and exited on to Ferntower Avenue. He was very familiar with the junction. He said that there were a lot of children in the area and that influenced the way he drove. He was careful. Near to the end of Loch Lann Road there were often two vehicles parked on opposite sides of the road, but not directly opposite each other. One was a Transit van and the other a Range Rover, though it was not clear to me if both were present on that day. In any event, these usually impeded progress towards the junction with Ferntower Avenue.

[35] He approached the junction with care, not at a great speed. He looked right. The first thing he saw was the cyclist, the pursuer. He was half way through a somersault over the handlebars. At that point he said his van was moving, but slowing down. He was 10 to 15 metres away at the time. He saw the pursuer hit the ground. He landed half off and half on the kerb. He got up and pulled his bicycle off the road and sat on the grass at the kerb. He had stopped at the junction by this point. A red Nissan Micra came up Ferntower Avenue from the direction of Barn Church Road and turned into Loch Lann Avenue. Despite suggestions to the contrary, the evidence of the first defender was that there was no contact with the driver of this vehicle. The pursuer did not recollect seeing this car. In any event, the first defender then wound down his window and asked if the pursuer was ok. The pursuer said he was. The first defender was asked what had caused the pursuer to come off his bike and he replied that he thought he must have hit the kerb, though he made it clear that he did not see that happen. He said he did not think he was going too fast.

[36] I accept the evidence of the pursuer that the first defender, when he first looked to the right, did not see the pursuer. Despite the criticisms of this passage of evidence I considered that the phrase "he looked straight through me" is one that is well recognised and has the ring of truth. It is a not an uncommon experience to see people, often that one recognises, but who have not registered one's own presence because their eyes are focussed elsewhere sometimes looking out for someone, or something else. Nor do I think that the pursuer would have been unable to detect that lack of awareness. I consider that cyclists are well able to make quick assessments of that nature as are other road users.

[37] Indeed the first defender's evidence offers some corroboration. According to him, the first he sees of the pursuer is when he is executing a somersault i.e. after the pursuer had applied the brakes. Unless one accepts that the accident was caused by some factor completely independent of the first defender, such as hitting the kerb, it must follow that the first defender did not see the pursuer when he first looked in his direction. The first defender admitted in cross examination that it was possible that the pursuer thought that he had not seen him. It seems to me that the first defender was more focussed on looking out for motor vehicles than bicycles.

[39] I should record that the first defender's position is that he did see the pursuer when he first looked right. If that is the case it seems to me that he either did not look properly or his view was obscured by the bushes. In either case he ought to have taken more care. It was unclear how far away he was from the give way lines when he did look right. According to him, he was almost stopped - slightly rolling forward.

[40] So far as speed of the first defender to the junction, much was made of this as being an additional ground of fault. Speed is of course relative. It seemed to me that the complaint of the pursuer was not that he was going too fast as such. It was that the impression as the van approached the junction was that it might not stop. Its speed of approach coupled with the failure to see him was part of that. I accept that there may well have been cars parked in such a way that impeded the absolute speed of approach to the junction. Nevertheless, I consider that the way in which the first defender approached the junction including his speed, contributed to the impression that he might not stop at the give way sign. The pursuer's credibility on this point is supported by what he told PC Collins when he gave his statement at the hospital later that day. He said; "I saw the driver glance round, but he did not slow down".

[41] I also accept that when the first defender did stop, the offside of the vehicle was over the outer aspect of the give way markings on the road, albeit marginally. On that evidence, I preferred the pursuer to the first defender. While the first defender denied going over the lines, I thought that his demeanour when he answered questions on this point was less confident than on other matters. I note too that the pursuer does not suggest that he protruded well into the carriageway. Indeed the pursuer would have been well able to manoeuvre round the van. Nevertheless, it does suggest that the first defender decided to come to a full stop, somewhat later than would have been the case had he been aware earlier of the need to give way. His momentum carried him over the line.

[42] One serious matter of dispute is the precise location of where the pursuer came off his bicycle. According to the pursuer he landed in the junction close to the kerb on the opposite side from the van. He pointed to the third single painted block in the lines at the junction. The first defender's evidence was that when he first saw the pursuer, he was half way through a somersault landing some 10 to 15 metres away. Some distance up Ferntower Avenue in the direction from which he had travelled there is a grey box at the side of the road, of the type used by postal delivery staff. The first defender said that the pursuer landed about halfway between a lamppost close to the junction and the grey box. According to the pursuer's measurements, the grey box is approximately 21 metres from the centre point of the junction. When it was suggested to the first defender that the pursuer landed closer to the junction than he maintained, he looked genuinely surprised at that suggestion.

[43] PC Collins gave evidence that the pursuer told him that he had come off his bicycle close to the grey box. I did not hear this evidence as it was given on commission. The commissioner noted that he gave his evidence in a straightforward manner without undue hesitation or uncertainty. He appeared to be doing his best to be helpful. He appeared slightly confused when answering questions about the road layout in the vicinity of the accident, insofar as he referred to Ferntower Court, but subsequently corrected himself. The commissioner considered that this did not undermine his reliability. He noted that PC Collins became somewhat less helpful in his demeanour and his answers were shorter when under cross examination, but not to such an extent that the commissioner considered that he was attempting to obfuscate or mislead. However, there are some difficulties with PC Collins' evidence. In the first place, he said that the statement was given at the pursuer's home. It was in fact given in hospital. He has not noted the evidence of where the pursuer came off his bike. His explanation was that it was just in general conversation. As Mr Middleton points out, it appears inconsistent with the account that he did note down in his notebook.

[45] I have considered the issue of where the pursuer came off his bicycle with care. On balance, I have come to the conclusion that the evidence of the pursuer supported by his wife is to be preferred. His wife gave evidence that she found him sitting on the kerb at the junction. The chicken curry which he had taken for his lunch had come out of his backpack and was in the centre of the road opposite the junction. I had no reason to disbelieve Mrs Dickson as to where she found the pursuer. I did not consider that there was any collusion between the pursuer and Mrs Dickson. Nor did I think that her evidence was untruthful or motivated by financial considerations. Nor does it make any sense to suggest that the pursuer had moved closer to the junction after the first defender left the scene and before Mrs Dickson arrived.

[46] The defenders in their pleadings state that they believe and aver that the pursuer was travelling on his bicycle at excessive speed along Ferntower Avenue and that the pursuer misjudged his direction and collided with its western kerb. There is no direct evidence for either contention. So far as the pursuer's speed is concerned, he gave evidence that he passed a radar speed advisory sign shortly before the junction. That told him he was going at 15 mph. According to the pursuer he had slowed down since then. I have to say that his evidence on this point was not entirely satisfactory. He said that he was slowing because he was going downhill. Yet the slope is gradual and it was unclear to me that it required particular care. Indeed many cyclists might speed up at this point. He also suggested that he would slow down to negotiate the turn into Barn Church Road. No doubt that is true, but that junction is some way off. Nevertheless, there is no evidence to suggest that the pursuer was travelling at a speed which might contribute to a lack of control. I consider the best evidence to be that he was probably travelling about 15 mph. It was not suggested that such a speed was excessive. As to colliding with the kerb, it is true that the first defender in evidence said that he thought that the pursuer must have collided with the kerb, but he did not see it happen. The pursuer was an experienced cyclist who was well used to travelling on this route. The road was dry and conditions for cycling were good. While one can never exclude the possibility, it seems to me inherently unlikely that the pursuer collided with the kerb.

[47] Alternatively, the defenders say that the pursuer reacted inappropriately to the situation and applied his brakes too hard and by applying his front brake initially. That is a more serious challenge and if I had come to the conclusion that the pursuer came off his bicycle where the first defender said, I would have thought that this was a serious possibility. However, it seems to me that the pursuer was placed in a position where he had to react very quickly to what he perceived was a distinct threat to his safety. Of course it would have been better had he applied his rear brake first so as to ensure so far as possible that he did not go over the handlebars. As the pursuer said in cross examination; "I just applied the brake. I did not think what brake to apply. I just had to stop." Mr Middleton submitted that this reaction fell well within the ambit of the "agony rule" and any over reaction was not negligent. He referred me to Easdon v A Clarke & Co (Smethwick) Ltd [2008] CSOH, a decision of Lord Uist at paragraphs 1,6,7, 54 to 60 and 77 and Walker on Delict (2^nd Edn.) page 365. I agree with Mr Middleton's submissions and accept that the pursuer cannot be faulted for his overreaction.

[48] The defenders have a plea of contributory negligence. Having regard to my findings in regard to the agony rule above, I do not consider that it would be appropriate to apportion any contributory negligence to the pursuer.

Conclusion

[49] This was a relatively simple case about a man who fell off his bicycle. A lot of time was spent in analysing an event which must have lasted no more than a minute or two. The difficulty for me has been that there were no independent eye witnesses and little other evidence to assist me. I gave very careful consideration to the submission of Mr Dawson that the onus was on the pursuer and if I was left in a situation where neither account could be preferred, I must assoilzie the defenders. I accept that would be my duty. However, I have concluded that the balance of probabilities decisively favours the pursuer. He was an experienced cyclist, well used to travelling on this road and cycling in ideal conditions. I did not accept the defenders' theory that he hit the kerb; that seemed highly unlikely. Whatever criticisms may be made of the pursuer's evidence, he has been consistent as to the reason for his accident. I did not accept the suggestion, though only I think tentatively made, that even as he was making his statement to PC Collins he was considering compensation. The first defender's admission that when he first observed the pursuer he was in mid somersault, supports the evidence of the pursuer that the first defender did not see him when he first looked right. I accepted the pursuer's evidence that he landed on the ground in the junction close to the offside kerb. In those circumstances, it seems to me clear that the first defender was not looking out for cyclists such as the pursuer, that he braked later than he should have done and conveyed the impression that he might not stop at the junction. Accordingly, he put the pursuer in a position where he had no option but to apply his brakes suddenly causing him to come off his bicycle and sustain the injury. The first defender had a duty of care to look out for other road users, including cyclists. He failed to exercise that duty.

[50] I therefore grant decree against the defenders in the sum of £26,000 inclusive of interest to the first day of the proof (8 November 2012) and thereafter at 8% per annum until payment. I reserve the question of expenses.