Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 49
PD263/12	OPINION OF LORD MATTHEWS in the cause ANTHONY COWLING Pursuer; against LIVERPOOL VICTORIA INSURANCE COMPANY LIMITED Defenders: ________________

Pursuer: Thornley, Advocate; Thompsons

Defenders: Rolfe; Solicitor Advocate; Simpson & Marwick

26 March 2013

Introduction

[1] This is an action of damages arising out of a road traffic accident which occurred on 29 January 2010 on the unclassified road between Inverurie and Newtonhill at the bottom of a hill known as Cookney Hill. The pursuer at the material time was the driver of a Jeep Cherokee and the defenders are the insurers of Mr Brian Smith, the owner of the other vehicle involved, a Vauxhall Astra. Quantum of damages was agreed by Joint Minute so the only question before me was one of liability.

[2] The pursuer was driving from Inverurie to Newtonhill just beyond Cookney. He avers that just after negotiating a sharp bend beyond Cookney he was confronted by a stationary Vauxhall Astra motor vehicle which had been southbound but which had been brought to a halt on the northbound side of the road where he was proceeding.

[3] The road runs generally east to west and the evidence disclosed that the pursuer was driving in a generally easterly direction. He avers that he required to swerve to avoid the Astra and that such evasive action caused his vehicle to strike a wall, spin and roll over. In response to certain averments by the defender the pursuer admits that the defender was positioned in his vehicle, which was stationary, at the bottom of a steep unclassified road, the condition of which was treacherous. It is averred, and it was proved, that Mr Smith himself had positioned his vehicle at the bottom of that road.

[4] In answer the defenders plead that the vehicle was indeed parked at the bottom of the steep road. It was parked, they say, adjacent to the verge with sufficient space for vehicles such as that being driven by the pursuer to pass. The pursuer was descending the road, which was icy and treacherous and as he did so he lost control of his vehicle. It is said that he was noted to pick up speed as he approached the pursuer's (sic) car. Obviously this means Mr Smith's car. It is said that the pursuer swerved to avoid Mr Smith's car and as a result overcompensated, striking a wall and rolling over. Had he been driving at an appropriate speed for the locus and conditions he would have been able to pass Mr Smith's vehicle without swerving.

[5] The pursuer claims that the accident was caused by the fault at common law of Mr Smith in negligently bringing his vehicle to a halt on the wrong side of the road in icy conditions and in a position where the pursuer's legitimately proceeding vehicle required to swerve to avoid it. The defenders claim that the accident was caused or at least materially contributed to by the fault and the negligence of the pursuer in choosing to negotiate a steep and icy hillside road and in failing to control his vehicle.

[6] It is against that background that I heard evidence and submissions.

[7] Much of the evidence in the case was unchallenged, the basic facts not being in dispute. Put shortly, on the morning of 29 January 2010 the pursuer was driving his Jeep Cherokee 4 x 4 from Inverurie to his sister's house in Newtonhill. His mother was in the front passenger seat. They were going to his sister's house to await the arrival of someone who was going to see to the security alarm, his sister being unable to wait in the house. Both the pursuer and his mother were wearing seatbelts. He was driving on an unclassified country road with a 60mph speed limit. At the material time the pursuer was driving his car down Cookney Hill. The nature of the road at and in the vicinity of the locus is such that when vehicles travelling in the opposite direction pass each other, one or other of them has to slow down or stop and utilise the verge. In places the verge had been worn away such that what might be termed unofficial passing places had been created. Before reaching the hill the pursuer had passed a church and was travelling generally east. From the pursuer's perspective there was a right hand bend in the road starting shortly after it steepened. There is a gate on the left hand side of the road near the end of the bend and, whether or not the bottom of the hill is visible earlier than that, it is visible from the gate. The gradient from there until the bottom of the hill is around one in nine. There is a road sign near the bottom of the hill on the northern side of the road and the distance from the gate to that sign is 56.85 metres. From the traffic sign in the other direction there is a distance of around 8.6 metres to the point where the hill flattens out. At or about that point is the middle of the mouth of a farm track heading broadly north. It would take 8.48 seconds to travel 56.85 metres at 15mph and 6.3 seconds at a speed of 20 mph. At the locus there was a covering of snow and conditions were slippy. The road at and in the area of the locus so far as material is boundered on either side by a grass verge, worn away in places as I have indicated, and thereafter a wall. In the vicinity of the road sign the width of the tarmac is 3.7 metres. From the edge of the tarmac on the road sign side (the north side of the road) there is a distance of 4.7 metres to the wall on the south side. That distance encompasses the width of the tarmac and the southmost verge. The Cherokee had a width of 1.87 metres, excluding door mirrors. Door mirrors would be likely to have added 15-20cms on each side, making the maximum total width 2.27 metres. The Astra was 2.03 metres wide, including door mirrors.

[8] The pursuer was familiar with the road, having used it around three or four times a year to go back and forth to his sister's house. She had lived in Newtonhill between 18 and 20 years and he had been using the road during that time. Throughout the pursuer's journey that morning the roads were covered in snow. At the material time it was daylight. As the pursuer came towards the end of the bend at a point around the gate he saw the Astra near the bottom of the hill. The rear of it was more or less adjacent to the road sign. It was pointing up the hill and was on the north side of the road. That is to say it was on the wrong side of the road from the perspective of the Astra and the same side of the road as the Cherokee was travelling. Having seen the Astra the pursuer intended to go past it but in circumstances which I will hereafter narrate, the Cherokee skidded, hit the south mostwall at a point near the Astra and turned over onto its roof, striking the rear near side corner of the Astra at some point in the process and sustaining damage.

[9] Mr Smith had driven the Astra to the locus shortly before the Cherokee arrived. Coming from Newtonhill towards Cookney he had travelled around three or four miles on similar roads that morning, which had taken him about 20 minutes, and he had not experienced any difficulty. On approach to the bottom of the hill there was a bend to the left which started around 30 yards from the hill. He attempted to drive up the hill and had gone about 10 or 15 yards when he found that his car was not getting a grip on the road. He started to reverse back down but he saw the top of the Cherokee around 100 to 120 yards away. He did not continue to reverse but decided to tuck his car into the right hand side. He first saw the Cherokee in full view when it was around 60 yards away. He switched his engine off and tried to open his door to leave the car but was unable to do so, so he sat in the car while the Cherokee came down the road. It passed his car to some extent but unfortunately the accident in question occurred.

The evidence

[10] The witnesses called for the pursuer were the pursuer himself, his mother, Dr Heather Wilson and James Cameron McCartney, a former traffic officer and now an accident investigator. Mr Smith gave evidence for the defenders.

[11] There would be no purpose in my narrating all of the evidence, particularly in relation to matters which were not in dispute. I shall concentrate on those matters which seem to me to be material.

[12] The pursuer said that when he was going down the road he did so very cautiously and slowly because one never knew what could be coming up in the opposite direction. At the time (which he said was approaching 0900 hours) the road had not been gritted. Photograph 6 in 6/8 of process was taken by him on his mobile phone after he emerged from his car. It showed snow on the road. He said that on approach to the bend he was going at perhaps 15mph or 20 at the most. As he went round the bend he noticed the Astra at the bottom of the hill. His immediate reaction was to put the brakes on but the car started to slide at a slight angle with the nose of the car pointing towards the right. He did not remember if there was any sideways movement. As it slid the car did not slow down or speed up. It was an automatic car and he took it out of drive and selected first gear. He said that the Astra came into view more or less when he was at the gate on the left of the road as shown in photograph 6/8/3 of process. He did not remember if he still had his foot on the brake when he selected first gear but doing so slowed the motion of the wheels and helped to regain traction. He was probably doing about 15mph as he came round the corner. Between putting the brakes on and going into first the car had probably travelled about half way between the gate and the sign. When the vehicle regained traction it was heading directly towards the Astra and his concern was to try to avoid a collision with it. He was asked whether the fact that there was someone sitting in the driver's seat changed his thinking and he said that it never changed. His intention was always to avoid hitting the car although perhaps more so because someone was sitting in it. He drove his Jeep to the right hand side of the road to avoid hitting the Astra. He thought the gap between the Astra and the wall on the right was big enough. There are tyre tracks shown in photograph 6/6/8 and he said that they were his. He was very close to the front of the Astra when he managed to turn his wheel and when he passed the front of the Astra his wheels were at an angle. He thought he had missed the Astra but soon after passing the front of it the front part of the driver's side of his car struck the wall on the right. The next thing he remembered was seeing the road coming up towards the windscreen and the car continued down the road. The road came to meet the windscreen as if the car had done a forward roll. It thereafter stopped in the position shown in 6/8/6. He and his mother spoke to each other and ascertained that they were both alright. His mother got her seatbelt off and helped him to get his off before she got out. A local doctor who happened to be there spoke to him while he was still in the car. He then managed to emerge and for some reason took the photograph on his mobile. He did not know if the Astra was moved after he drove past it. He was not aware of striking the Astra, though 6/8/7 showed some damage to its rear nearside. He did not remember any conversation between himself and his mother as they were coming down the hill although he remembered a sort of sigh of relief that they had missed the Astra, as he had thought. He was taken through a number of photographs showing the road getting progressively nearer to the top of the hill but I need not go into those. He was also taken through a DVD attached to 6/8 of process showing the material part of the journey he would have taken down Cookney Hill. This was shot in July so the vegetation was different. It was put to him that Mr McCartney had criticised him for braking too harshly when he saw the Astra but in reply he said that he thought that he was doing the right thing at the time. In cross-examination he said that he took the road in order to avoid going through Aberdeen. The main road would have been blocked with people trying to get to Aberdeen. It was not unusual on the country road for cars to be coming in the centre of the road. In the past he had come across large farm vehicles either going in the same direction as him or coming towards him. He agreed that one had to drive at an appropriate speed to allow one's vehicle to stop if a hazard was encountered. While the road was subject to a 60mph limit he did not consider that appropriate. In fair conditions he thought that a speed of up to 30mph at the most was indicated. It was prudent to slow down while approaching the bend so he would do that at a speed lower than 30. He agreed that as a general principle one ought to be able to stop within one's field of vision. It took longer to stop the faster one travelled and could take even longer if the road was covered in snow or ice. He said at first that his wheels would not lock because he had ABS but then he agreed that it was possible that they would if he braked hard enough. If the wheels locked there was a greater chance of going out of control. The road was only slippery when he applied the brakes. He would not say that the roads were slippery in the 30 miles he had travelled up to that point although they were covered in snow. The slipperiness at the locus came as a surprise to him. He took the 4 x 4 so that his mother did not have to drive her car. Hers was a rear wheel drive and was no use in the snow. The Jeep had a higher ground clearance than the average vehicle and gave a better view of the road ahead. He agreed that it was sometimes necessary to halt to let other vehicles past and that it was important to drive at a speed which allowed for that. Picture 4 in 6/8 of process showed roughly the view he had when he first saw the Astra. The latter was on a straighter stretch of road. He agreed that he saw it earlier than he would have expected to see it if it had been on the right hand side of the road from his perspective. He was unable to estimate the distance between the vehicles when he first saw it. He said that his vehicle behaved in a manner he did not want when he first saw the Astra. He could not say how much time elapsed between his first seeing it and being alongside it. When he saw it at first he was doing between 15 and 20mph but he was looking at the road not the speedometer. It was put to him that he was surprised by the Astra and as soon as he saw it he braked and swerved to the right to avoid it. In answer he said that when his car regained traction he went to the right. It was suggested that he swerved and he agreed. He denied that it was possible to avoid a collision. Photograph 1 in 6/9 of process showed a silver vehicle straddling the road further up the hill from the Astra. He agreed that it appeared to have been able to stop. Also in that picture was an ambulance further up the hill and he agreed again that it had not collided with the Astra but said that it had had to go into the left. It was put to him that if he was going more slowly he would have been able to maintain control and pass the Astra but he said he could not answer that. When the two vehicles in the photograph came on the scene the conditions had changed. I understood him to agree that he probably could have avoided a collision if he had gone more slowly but he did not agree that he should have been more gentle with the controls, perhaps not braking as harshly and swerving as hard. If he had not swerved he would have gone head on into the Astra. It was easier to try to go to the right than it was to try to stop. He agreed that rule 146 of the Highway Code applied to him. That indicated broadly that a driver should adapt his driving to the type and condition of the road he was on. He denied that he was unprepared for a difficult situation. It was suggested that he did not adjust his speed down and he said he was down to 15 to 20mph. He agreed that rule 154 applied to him. That rule was to the effect that extra care should be taken on country roads, that speed should be reduced at approaches to bends and that one should be prepared for pedestrians, horse riders, cyclists, slow moving farm vehicles or mud on the road. One should be able to stop within the distance one could see to be clear. He said that that he thought he could do so but he was unable to because of the road conditions. Rule 231 also applied. That is to the effect that one should drive extremely carefully when the roads are icy. Sudden actions should be avoided. One should drive at a slow speed in as high a gear as possible, accelerate and brake very gently, drive particularly slowly on bends where loss of control is more likely, brake progressively on the straight before one reaches a bend, steer smoothly round the bend, avoiding sudden actions and check the vehicle's grip on the road surface where there is snow or ice by choosing a safe place to brake gently. If the steering feels unresponsive this may indicate ice and the vehicle losing its grip on the road. It is pointed out in the rule that when travelling on ice tyres make virtually no noise. He agreed that he did not make any effort to select a lower gear until the vehicle started to do things he did not expect. He agreed that he probably did not brake progressively and said that he probably panicked a little having seen the Astra. It was put to him that he did not avoid sudden actions and he said that he pressed the brakes harder than he should have. As far as steering input was concerned he said he continued to go round the bend steering the car. He had slowed down a bit on approaching the bend. He denied that when he swerved that was an example of sudden steering. It was the natural course to take to avoid a collision. It was put to him that other vehicles had safely negotiated the road before and he said he saw no cars before him. He would be surprised if they had negotiated the road without sliding. At first he said he did not know if it would have made any difference if the Astra had been exactly where it was but facing the other way but later he said that he thought whether it was pointing up or down the outcome would have been the same. In re-examination he was referred to 6/9/1, the photograph with the ambulance and the silver car in it. There were tyre tracks in front of the Astra which appeared to indicate that it had come back down the hill to some extent. It was further down the hill than in 6/8/6. He vaguely remembered the silver car coming down the hill and did not think that it had come to a controlled stop. He thought the position it was in was where it had ended up in trying to avoid the Astra. When he, the pursuer, had driven the Jeep to the right to avoid hitting the Astra head on, it had not been a violent swerve but more of a controlled action.

[13] The pursuer's mother Patricia Cowling gave evidence. She was a driver herself and had been on the road many times. She said the pursuer picked her up around 0830 hours. At that time it was very cold and the roads were icy. She did not remember if it was still snowing when they left but it had been. She said that she normally drove down the slope with due care because it was quite a narrow road. She did not travel fast on back roads. The pursuer was driving with great care because the conditions were not very good. There had been quite a bit of snow and the road was icy. She could not tell the actual speed but it was not very fast. As they were coming down the hill and round the bend they noticed the Astra on their side of the road at the bottom of the hill. She was asked how far it was and said it was about half the length of a football pitch away. They saw the Astra as they came round the bend and she would say it was just beside the road sign. Her son was not driving fast because it was too icy to do so on that road. As they came round the bend they saw the Astra and her son said there was a car at the bottom on their side and that they would have to be careful they didn't hit it. He then said they couldn't hit the car because there was someone in it and they would have to miss it and go to the other side of the road. They travelled downhill and he said something like "good we have missed it". As that happened the Jeep seemed to bump something on the right hand side of the road and then seemed to bump into the Astra before it was thrown across to the right again. The car seemed to go up and all of a sudden she said she was in a "powdery world". After her son had said there was a car the Jeep had proceeded slowly down the hill. Her son had to go down and slightly to the right past it. As they were getting closer to the car she was feeling quite calm because she did not feel she had anything to worry about. She spoke about the aftermath of the accident but I need not go into that except to say that a car came down the hill and she said they were waving their hands to tell the driver to be careful. He turned his car into the side of the road. It was the silver vehicle shown in 6/9/1. She saw the ambulance coming down the hill and it looked as if the driver was having difficulty controlling it. He drove onto the verge. The silver car arrived before the ambulance. It seemed to me that it was significant that the ambulance was able to avoid a car which was further up the hill than the Astra had been. In cross-examination she said that one had to be very vigilant on the road. Sometimes vehicles came in the opposite direction in the middle of the road. She had never come across a tractor. She normally drove about 20mph on the road in fair conditions. That day they had encountered slippery roads en route to the locus. Two vehicles could pass each other with care and she expected that sometimes one would have to halt to let another pass. She thought that photograph 7/1/40 best represented the image she saw when she first saw the Astra. Her son's car was on the left hand side of the road as it approached the bend. She was unable to say how close to the verge the Astra was. She was asked how much time passed between first seeing the Astra and the Jeep being alongside it but she said that as a passenger she was not aware of time passing. When they saw the Astra they took their time going down the hill and drove slowly down it. She reiterated that she and her son exchanged a few words. Her son said that there was a car on their side of the road and that they might end up hitting it. No sooner had he said that than he changed it to "we can't hit it there is someone inside". At that point his voice was calm and the witness said that he did not make her feel anxious. He said that they would have to miss the car. They seemed to go to the other side of the road to get past it and he said "good, that's us past". No sooner had he said that than he hit something on the right. Her son seemed to be very relaxed. He was not speeding. On the contrary, he was going at a speed at which he felt comfortable. She thought it was slower than 20mph because of the conditions. She agreed that they saw the car ahead, that her son took action to avoid it and that it happened at a relaxed pace. They were not concerned and the discussion was not particularly agitated. Her son was in control and they bumped something. I asked her when the situation changed and she said it happened when they bumped something on the other side of the road.

[14] The next witness was Dr Heather Wilson. She was a medical researcher who lived not far from the locus. She went up and down the hill at least once a day. In normal conditions she would go down it in third gear at 30mph. The conditions that day were treacherous and the hill was very slippery. She was descending it about 0730 hours, intending to go to work in Aberdeen. She was driving a Volkswagen Passat and was virtually on the verge because she knew the road was bad. She managed to negotiate the hill without any problem, going so slowly that she knew she could stop if anything happened. She said she was going probably about 5mph and maintained that speed all the way down. She described the conditions as extremely icy. She had known from leaving her drive that that would be the case. She managed to travel about eight miles in the space of two hours on the way to her work and decided to turn back. Rather than negotiate the hill again she parked her car on a wider part of the road where there is a car parked as shown in photograph 50 of 7/1 of process. She thought that it was about 10am by then. She called her husband and asked him to come and pick her up, her intention being to leave her own car where it was meantime. There was a taxi parked in the farm track to which I have already referred on the right hand side of it as one looks, for example, at 7/1/7. It was more or less in line with the dustbins shown in that photograph. While waiting for her husband she saw the Astra. It came from behind her own car, drove slowly past hers and tried to go up the hill. It was driving quite slowly and reached a point just past the sign or just at it. She thought the back wheels would be at the "stem of it" as she put it. It had difficulty going up the hill because it was so icy and it came to a standstill. The next car she saw was the Jeep. She noticed the top of it at the far left hand edge of picture 5 in 7/1. That would put it at more or less the position of the gate to which I have already referred. She thought she saw it perhaps 30 seconds to a few minutes after seeing the Astra coming to a halt. It was certainly not long after that. When she saw it she had concerns that the Jeep would not be able to stop, possibly because it was travelling faster than she had. She was asked if she could give a precise speed and said that she could estimate it at 30mph but she did not really think that she could answer the question. In any event the Jeep seemed to come down quite quickly. She was on the wrong side of the wall to see the impact directly but she saw the Jeep stop suddenly and then flip over. She did not notice whether the Astra moved between the time she first saw the Jeep and the time it slid on its roof. She got out to make sure everyone was alright but the local GP chanced on the scene as well and went to see the pursuer. Dr Wilson phoned the ambulance. She did not remember seeing the silver car in 6/9/1 but she did remember the ambulance coming down the hill. It skidded as well, went on to the verge and stopped. In cross-examination she said that she had gone down a lot more slowly than the pursuer did. She did not skid or lose control. Her own car did not have snow tyres and she knew she would not get up the hill although other cars might have been able to. She said that for the conditions she would not have travelled at the speed at which the pursuer was travelling. She was asked if he was doing 15 to 20mph but she would have said it was faster than that. She could not say whether she was surprised that the pursuer lost control but said that one could manage the hill without any problem if going at a slower speed. She agreed that the time between seeing the Astra halting and seeing the Jeep could have been less than 30 seconds. If the defender said it was a matter of seconds she would not question that.

[15] The last witness for the pursuer was James Cameron McCartney, an accident investigator. Of consent he was present in court during the evidence of the previous witnesses. I need not go into details of his expertise since he was not challenged in that regard. He prepared two reports, numbers 6/8 and 6/9 of process, based on his examination of the papers and a visit to the locus on 25 July 2012. He provided the measurements to which I have already referred. He also shot certain footage of the locus which was played a number of times during the proof. This was shot using a camera mounted in the middle of the dashboard of his VW Golf. He was doing around 25 to 30mph at the time. 6/9 of process was a scale plan which he prepared using electronic surveying equipment. The mid-point of the gate to which I have already referred and the mid-point of the traffic sign were points where there was a clear and unequivocal view for vehicles going down and vehicles coming up respectively. He described the gradient as being like the road in Edinburgh which runs from the traffic lights half way down the Mound to Waverley Station. Given the various measurements concerned he said that if the Astra was parked at the edge of the tarmac the Jeep would have had to mount the verge on the opposite side in order to pass. As I have indicated, the Jeep had a width of 1.87 metres excluding door mirrors but with mirrors he estimated it as 2.27 metres. The width of the tarmac from the nearside of the Astra, assuming it was parked right on the edge, was 1.67 metres. There were 2.67 metres to the wall. He said that there was a lot of research into reaction times. In his view it would be 1 to 2 seconds unless a driver had a heightened awareness that something might happen. The Highway Code, on the other hand, said it was 0.67 to 0.68 seconds. He based his 1 to 2 seconds on a consensus which was apparently reached between accident investigators based on a number of tests which had been carried out. As it happens I did not consider that the question of reaction times had any real bearing on the issue before me. The Jeep had ABS. When one applied pressure to car brakes the wheel could lock meaning that the car had reached static friction and would then slide and speed up. Maximum braking effect was just at the point where the wheel was starting to lock up. ABS released the pressure and immediately put it back on. One would still be able to steer a car. It worked well on wet roads and could do on ice. If one was braking on gravel or snow however, the braking distance could be extended rather than reduced. In his opinion when the pursuer applied the brakes the vehicle started to skid. The ABS would have been working and he would have still been able to steer, though if he was on ice he would struggle to control the vehicle. He would not necessarily be able to stop in front of him. It was put to him that the pursuer said he braked and slid then went into first gear and felt that he regained traction. Mr McCartney said that the lower gear would dictate how fast the wheels rotated. The damage to the pursuer's car indicated that the primary impact had been in the front offside corner. The marks across the bonnet were consistent with striking the wall. There was no damage to the number plate. Had it hit the wall at 90° it would have been damaged. There was no damage on the near side and nothing to suggest it had scraped against the wall. Mr McCartney was not convinced that the Jeep had done a forward roll. In his opinion it had rolled sideways. He would have expected a fairly heavy frontal impact otherwise. He would also have expected the front airbags to deploy and they did not. 6/9/2 of process showed tyre tracks going from right to left and striking the wall. 6/9/1 showed the Astra and the tyre tracks. On the assumption that the Astra was further up at the time of the accident he was surprised that the Jeep did not hit it as it came down. He agreed that if the Astra was further up that showed that there was sufficient room for the Jeep to come down without contact. If the Jeep merely struck the wall and came back and round, he would have expected it to have struck the Astra but the evidence suggested that the rear came up and rolled over thereby missing it. There was damage to the Astra above the rear wheel. That was impact damage. 6/8/6 of process showed tyre tracks coming down the hill and into the nearside verge. They were more than likely to be from the Jeep. As it happens, those can be seen to be missing the Astra.

[16] In cross-examination he agreed that a camera on the middle of the dashboard of a Golf would give a lower view than that of the driver of a Jeep although drivers might be of different heights. Mr McCartney was reminded that the pursuer had said he was travelling between 15 and 20mph and was asked whether anything could be taken from the fact that the Jeep rolled over. All he could say was that it might have encountered something or attempted to turn too sharply for the speed. There was anecdotal evidence from the USA, which the witness himself thought was misleading, about a series of tests in 2001 involving cars going sideways at a certain speed and hitting something. They could roll over at 5mph, including a Jeep Cherokee. He understood that they struck something like a kerb. That scenario, however, was of vehicles travelling directly to the kerb and hitting it. It was reasonable to propose that there was a relationship between the angle of approach, the speed and the consequences. He would have been surprised if the Jeep had rolled over forwards with a frontal impact at 15mph.

[17] With that evidence the pursuer's case was closed.

[18] The only witness called for the defender was Brian Alexander Smith. He is a retired bank manager. He was 62 years of age at the time and lived in Newtonhill. He had held a driving licence for over 40 years with no endorsements. He said that he left his house probably between 0830 and 0900 hours in order to go to Drumoak. That route took him to the bottom of Cookney Hill. He went up the slope for a distance of around 10 to 15 yards and found that his Astra was not getting a grip and he decided there was no way he could continue. He had not experienced any difficulties on the road until then. He had been on the road for around 20 minutes or so and covered three or four miles. He had used the road many times over the years. In the two years before the accident he was on it two or three times a month. When he began to meet a difficulty he was probably in the middle of the road but he did not quite remember. He did not remember precisely where his car was at the time of the accident because at some point afterwards he had had to move it in order to open the door and get out. He looked at 6/8/6 of process, the photograph taken by the pursuer on his mobile phone, and recognised himself in the picture on the left. He said that at that stage he had moved his car because he was out of it. He had probably driven it slightly forward and to the left to allow him open the door. When he had parked it he had done so as far to the right as possible because he felt he could see better to judge how close he was to the side than he could if he parked it on the other side. He was aware of the Jeep coming down. At one stage it was sideways on and he panicked and switched his engine off. He got his seatbelt off and tried to open the door but it only opened six or nine inches so he assumed his wheels were on the verge. Before that he said that he had started to reverse down the hill after his failure to negotiate it on the way up. He had just started when he saw the top of the other car around 100 to 120 yards away as the crow flies. He thought it was going quite fast and he judged that he could not continue to reverse and negotiate the car to a safe location before the Jeep was upon him so he decided to tuck it into the side. He saw the Jeep in full shortly after that. It took three or four seconds at most to park his car. He then saw the 4 x 4 again, or at least the top of it, but it came into full view when it was probably about 60 yards away. He used to be a sprinter and was quite confident in judging distances. Quite soon after he saw it fully it became apparent that it was not in control. It was beginning to slide about and it was at that point that he switched his engine off and tried unsuccessfully to open his door. When it was about 60 yards away he thought it was doing around the same speed as it had been when he had first seen it. He thought it was a little too fast. When it was about 30 yards from him it was broadside on and he was hoping that the driver would get it under control. It seemed then to straighten up but it was still going quite fast. The Jeep went past him then the accident happened as it did so. Mr Smith did not know if the Jeep hit his car first or the wall because it happened so fast. His initial reaction was that the Jeep had passed him safely but then he heard a crunch. He felt something as well but not very much. He was asked how long had passed between the time he saw the Jeep in full and the crunch and he estimated that it was something like 20 to 30 seconds. It was not a great deal of time. It was slightly longer than the time it took him to run 100 yards, having run it in 10.3 seconds. He went on to say, however, that when he was sitting in his car watching the vehicle he could not really appreciate the time. It seemed like forever. He was guessing what the time would be. After the crunch he moved his car forward slightly and got out. By that time other people were on the scene including a local GP. He thought he was in shock. He was on the scene for two hours waiting for the police to arrive but they never did. Someone, he thought Heather Wilson, had called the emergency services and he had assumed the police would come. He did not remember the silver car shown in the photographs but he did remember the arrival of an ambulance, a post office transit size van and another vehicle. He knew two of the drivers and the third was the ambulance. There was room for these things to get past. The post office van came down quite fast but did not seem to skid, while the ambulance did skid a bit as did the other private car. The post office van was not being driven as fast as the Jeep had been but it was driven faster than he would have driven down the hill. He agreed that the winter was pretty bad that year and that when driving in snow one had to expect the unexpected and be aware of what other drivers might do. He agreed also that a car coming down a steep hill was more likely to skid than it would be if it were on the flat. He did not regard the gradient as unduly steep. One could cycle up it quite easily. He did not stop reversing as such when he saw the Jeep. He stopped reversing to go downhill but continued reversing in order to park. The whole manoeuvre was done in three or four seconds. He reversed straight into the side of the road. The manoeuvre after the accident took the car slightly out to the left from where it had been. He did not know the exact distance but it was sufficient to get the door open and the car ended up in roughly the same position as it had been except that the front part was further out. The rear would be near the road sign. He agreed that he would only have to go back 10 or 15 yards to get to the bottom of the hill or to go into the track and he said that that was his initial intention. It was put to him that he could have reversed down by the time the 4 x 4 came but he said he would not have been happy to do that. He would have been reversing slowly and then into the farm track. He had had to make a snap decision. He thought the speed of the Jeep was such that it would be upon him before he could put his car out of harm's way. From first seeing the Jeep until it came into full view there had elapsed around six or seven seconds, not a long period of time. If he had gone onto the flat he would have had to reverse round the blind bend another 10 or 15 yards with the Jeep approaching and he had not thought that that was very safe. He agreed that there was a risk that someone coming down the hill would slip, his tyres having started to fail to get a grip on the way up. It was suggested that he had never applied his mind to that and he agreed. He did not know what the rest of the road was like uphill because he was not on it. He was reversing slowly and anticipated that it would take him too long to get into the track before the Jeep was upon him based on the latter's speed when he saw it. He was referred to paragraph 46 of the Highway Code in connection with adapting one's driving and he agreed that one should be able to take account of unexpected situations. He was asked if that would include a skidding car coming down and said that a car should be able to come down in control. The vehicle should have been able to come down without skidding. He was not expecting that to happen. He disagreed with a suggestion that he should have reversed the car back. He would rather have had his car parked where there was sufficient room to pass than reverse down in the middle of the road. That would not have been courteous apart from anything else. He was trying to suit the needs of the other vehicle as well.

Submissions for the pursuer

[19] Mr Thornley moved me to find that the accident was caused by the fault and negligence of the defender, that it was not to any extent caused by the fault and negligence of the pursuer and to pronounce decree in the agreed sum of £27,064.51 with interest at 8% on that sum from 19 February 2013. He also moved for the expenses of the action. He submitted that a reasonable driver would have reversed the short distance back down the hill to either the flat section of road or the nearby track after he had come to a stop on the hill and seen the pursuer's car approaching. The defender parked his car in such a way as to amount to an obstruction in conditions where the road was steep and had a covering of snow.

[20] Mr Thornley went through the facts from the point of view of the pursuer. I have already set out many of these. He submitted that the evidence showed that the pursuer drove down the road at a speed of around 15mph or at most 20mph. I was referred to his evidence and that of his mother. His mother said she would normally do 20 and thought that the pursuer's speed was less than that. Dr Wilson thought it was faster than she had gone and at one point said it was faster than 15 to 20mph but she was some distance away. It did seem to me that the question of speed was to some extent irrelevant. The issue was not what the number on the speedometer was but whether it was too fast for the conditions. The defender only said that the speed was slightly fast. In fact his evidence supported a lower speed rather than a higher one. At one point he said he saw the pursuer's Jeep at a distance of 100 to 120 yards and it took about six or seven seconds before it appeared in full view, having covered a distance of some 40 yards. At another point he referred to a passage of around 30 seconds between first seeing the Jeep and its going past the Astra. That obviously could not be right precisely but it tended to support a lower speed. The pursuer was driving carefully on his evidence. He was around 58 metres from the Astra when he first saw it. The evidence was fairly consistent about the positioning of the defender's car. According to the pursuer, when he first saw the Astra he reacted by applying his brakes and as he did so he felt the car start to slide. It was going at a slight angle as it slid down the hill. The defender's evidence that it was going broadside was not exactly the same but was not entirely inconsistent. The pursuer changed gear from drive to first gear and, according to Mr McCartney, that would slow down the speed of the wheels. This had the effect, according to the pursuer, of the wheels regaining traction. The pursuer was around half way between the gate and the Astra when he put his car into first gear. He was heading directly towards the Astra on the left hand side of the road as he descended and saw someone sitting in the driver's seat. He was trying to avoid a collision, although he could not remember any conversation with his mother. He steered the car towards the gap between the Astra and the wall, managed to miss the front of the Astra but struck the wall at a slight angle and his car rolled forward onto its roof. Mr McCartney thought that that was unlikely but it made no material difference. The Jeep struck the rear passenger side of the Astra over the rear wheel arch as it rolled over. It would appear that it caught the Astra a glancing blow on the way past.

[21] The defender had parked his car on the wrong side of the road and it took him around three to four seconds to do so. He came across as generally credible but his reliability as to timings was not great. There was a gap of around 2.7 metres between the Astra and the wall, assuming the car was parked on the extreme edge of the tarmac. It was not suggested there was not enough room to pass but there was no suggestion that the grass verge was driveable. While the Jeep did manage to go past to some extent, it was at an angle. One might be able to pass at a very slow speed but people used an unofficial passing place, of which this was not one. The pursuer, said Mr Thornley, gave his evidence carefully and truthfully and was prepared to make concessions. He was never argumentative or dogmatic. His mother's memory was perhaps not the greatest but she came across as credible and reliable. Dr Wilson gave evidence in a careful and measured way and Mr McCartney was also a careful witness. The defender's evidence about what happened seemed quite clear but then he was vague about what happened afterwards. He was dogmatic though. He did not accept in cross-examination that he should have reversed round the blind bend. That was in answer to a question whether he should have simply reversed a couple of car lengths. There was no reason why he should not have reversed to the track, as was his original intention.

[22] Mr Thornley submitted that the defender's car was an obstruction in the road which the pursuer had to try to drive around in difficult road conditions, of which the defender was aware. Had he thought about it he ought to have been aware of the risk of cars descending the hill skidding or sliding or losing traction as the pursuer's vehicle had done. That risk should have been an obvious one to the defender had he thought about it. He accepted that the pursuer ought to have thought of that risk as well. The defender was at or near the bottom of a steep hill and was at fault in parking his car in that place. It was on the pursuer's side of the road at the bottom of a steep hill covered with snow and where the road was not wide enough for two cars to pass. He ought to have continued reversing his car the short distance to the bottom of the hill. Had he done so the accident would not have occurred. The pursuer had had to take action to avoid a collision with the defender's car and it was this action which led to the pursuer's car crashing into the wall and overturning. Mr Thornley made reference to the cases of Sutherland v Gardiner 1981 SLT 237 and Rouse v Squires [1973] 1 QB 889.

[23] As far as contributory negligence was concerned, Mr Thornley submitted that the onus of proof of that was on the defender. Before he could succeed he had to establish that the pursuer was at fault. His actions after he braked were not criticised by the defender and there was no basis for arguing that he was at fault. His speed as he drove down the hill was reasonable and he reacted in the way that a reasonable driver would react when faced with an obstruction in his path. Even if I took the view that there was an element of contributory negligence the lion's share of the blame should be at the door of the defender because he had had a much longer time to react.

[24] Expenses should follow success.

[25] In a brief reply to the submissions for the defender, which I shall outline shortly, Mr Thornley said that novus actus interveniens should be pled as such but it was unnecessary to consider it in this case. He accepted that the "agony rule" could apply to defenders as well as pursuers.

Submissions for the defenders

[26] Mr Rolfe moved that the defenders should be assoilzied and that, in the event I were to find that Mr Smith was liable to any extent, the pursuer ought to be found contributorily negligent to the extent of 80%. He invited me to find Mr Smith and Dr Wilson credible and reliable. Mr Smith was not dogmatic. He simply addressed the choices and said why he had not selected particular ones. He was not reliable as far as timings were concerned, having indicated himself that he had been guessing. He was credible and reliable in relation to distances. Dr Wilson was the only impartial factual witness to give evidence and where her evidence differed from that of other witnesses he invited me to prefer it. The pursuer's evidence was vague on various issues and could not be considered to be reliable. He could not assist with how far away he was from the Astra when he first saw it. He could not recall if he still had his foot on the brake when he shifted from drive to first. He could not recall if his Jeep struck the Astra. He could not say where the Astra was with reference to the road sign at the time of the incident. He had referred to the arrival of the ambulance and had a vague recollection of the silver car but made no mention of the other vehicles descending the hill after the accident which was spoken to by Dr Wilson and Mr Smith.

[27] His account that he was travelling at 15 to 20mph, that he braked and did not slow down, that he travelled the whole distance of 56.85 metres to the Astra at the same speed and that his car overturned following a collision with the wall was not credible. Notwithstanding all the attempted avoiding manoeuvres he said that the vehicle maintained its speed throughout. There were points at which he said he regained traction, for example when he went into first gear, and it was incredible that the car turned over at 15mph. I have to say that I am not in a position to opine on that since I heard no evidence which would enable me to make a finding.

[28] The evidence of the pursuer's mother had to be treated with caution. She was doing her best to recall what happened but there were a number of matters she simply could not remember and she was not impartial. She spoke of a conversation which was not spoken to by the pursuer. In my opinion it is easier to forget something than to make it up and I did not think that she was making up the conversation.

[29] Mr McCartney spoke to measurements he took at the locus but his evidence in relation to reaction times should carry little weight given that it varied from the Highway Code figure. He had mentioned certain studies but none of those was before the court. I have already indicated that I did not find the question of reaction times to be of assistance. Mr Rolfe submitted that the pursuer had failed to prove the case on Record which was to the effect that Mr Smith had negligently brought his motor vehicle to a halt on the wrong side of the road in icy conditions and in a position where the pursuer's legitimately proceeding vehicle required to swerve to avoid it. It was not in dispute that the conditions were icy. Neither was it in dispute that Mr Smith's car was stationary at the material time. The test for obstructions was that set out in Rouse v Squires by Cairns LJ at p 898, C-D:

"If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first driver's negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicle or some other person."

[30] Thus the pursuer had to satisfy the court that Mr Smith's car was an obstruction which constituted a danger to other road users, that the obstruction was caused negligently and that the pursuer was not reckless. Mr Rolfe accepted that there was no recklessness averred by the defenders.

[31] Was the Astra an obstruction? The facts were quite different from those in Rouse. In Rouse the blockage was a lorry which obstructed two lanes of the carriageway of an unlit motorway at night. In the present case there was ample room to pass. As well as the tarmac there was an area of flattened verge at the opposite side of the road which had perhaps not been previously driven over. There was no evidence as to the extent to which the verge was passable but the photographs taken in the height of summer showed that there was room even when the vegetation was presumably higher than in the winter. It seemed to me that if cars were passing in that area anyway, one of them at least would have had to go onto the verge. There again it would have been on one's own side. Photograph 6 in 6/8 of process showed tracks which might even have utilised the verge.

[32] The pursuer did not complain of hampered visibility. Lighting was an issue in Rouse. In Sutherland v Gardiner the obstruction was round a blind bend and the pursuer first saw it at three bicycle lengths away. On the other hand, Mr Cowling had had ample time and space to see the Astra. He would have been at least 56.85 metres away. This was not a case where he suddenly came upon the Astra without sufficient time to take appropriate action. The Astra was no more of an obstacle than should routinely be anticipated by drivers on a country road at the locus. It was tight up against the verge and occupied the same amount of road as it would have done had the pursuer required to drive past it in the normal course of a journey (on the other hand, he would have been able to remain on his own side of the road in doing so).

[33] Even if it was an obstruction, was it caused negligently? Mr Rolfe invited me to adopt a common sense approach. Whether a driver's actions were negligent or not depended entirely on the circumstances of the case. According to Mr Smith, the road was no different from any other he had driven on that day in the preceding three or four miles. He had had no difficulty on those roads and did not know that he would have difficulty on the hill. He had no reason to believe that he would. Heather Wilson had seen him pass and had taken no steps to dissuade him from his attempts to drive up the hill. She had said in evidence that he had attempted to drive up the hill, as anyone would do, and that there was nothing unusual about it. Other drivers could have driven up the hill and did so. When Mr Smith attempted to drive up the hill, there was no one coming in the opposite direction. Once he realised he could make it no further up, he attempted to reverse down the hill to the farm track. Before he could do so, he saw the Jeep and thought that it was travelling too fast for the conditions. He decided to put his car as close to the off-side verge as he could, to allow the Jeep to pass safely. He chose that verge as it was on the driver's side and he could be sure that he was as tight to the verge as possible. The Jeep was out of control very shortly after Mr Smith first saw it in full, 60 yards ahead of him. He tried to get out of his car but was so close to the verge that he could not open his door. It was not a simple matter of reversing two or three car lengths to the bottom of the hill. He would not have been reversing quickly enough, given the road conditions, to complete the manoeuvre before the Jeep was upon him. There was no evidence to suggest that had he reversed to the bottom of the hill, the accident would not have happened. In Mr Smith's view, it was not safe to reverse round a blind bend with the Jeep approaching. Reversing into the farm track was the only other option available to him but he did not want to be looking around or in mirrors when the Jeep was coming towards him. He thought it better to remain where he was to allow the pursuer to attempt to pass him, rather than have his car end up in the middle of the road whilst reversing.

[34] His actions were those of a reasonably competent motorist exercising reasonable care and the pursuer had failed to elicit any evidence that he was in any way negligent. In answer to a question by me, he said that the so-called "agony rule" could apply. Mr Rolfe then went on to submit that, even if I found that the actions of Mr Smith were negligent and that his vehicle was a dangerous obstruction, the pursuer's actions were reckless and, as such, were a novus actus interveniens. He referred to the case of Wright v Lodge [1993] 4 All ER 299 where at page 307 Parker LJ said the following:

"As I have said, Mr Walker submits that the judge misinterpreted Rouse v Squires [1973] 2 All ER 903, [1973] QB 889. I do not myself consider that he did. Rouse v Squires recognised that there would be no liability, because no relevant danger, if an obstruction was only a danger to a reckless driver, and his reference to other cases and this case falling 'the wrong side of the line' in my view show that he approached the matter correctly.

In any event approaching the matter as if he were a jury and taking a common sense view, he was, as we are, clearly entitled to conclude that the presence of the Scania in the westbound carriageway was wholly attributable to Mr Lodge's reckless driving. It was unwarranted and unreasonable. It was the violence of the swerve and braking which sent his lorry out of control. Such violence was due to the reckless manner in which he was driving and it was his reckless speed which resulted in the swerve, loss of control and headlong career onto, and overturned on, the westbound carriageway. It is true that it would not have been there had the Mini not obstructed the nearside lane of the eastbound carriageway but the passages which I have cited show clearly that this is not enough. It does not thereby necessarily become a legally operative cause. The subsequent conduct of Mr Lodge was such that any judge or jury could in my judgment exclude Miss Shepherd's conduct as being causative of the subsequent accident. The judge did exclude it and in my judgment he was right to do so."

[35] Mr Rolfe submitted that the recklessness of the driver in Wright v Lodge was exactly the same as was exhibited by the pursuer in the present case. The latter was under an obligation to keep a proper lookout for potential hazards on the road, he was under an obligation to drive at a speed appropriate for the conditions, which allowed him to bring his vehicle to a stop within the distance of his field of vision and he was under a duty to keep his vehicle under control. (It has to be pointed out that in Wright the driver was travelling at 60mph in thick fog).

[36] Mr Rolfe submitted that in each and all of the duties which he enumerated the pursuer had failed. Those failures caused the accident. The critical factor was that he was travelling too quickly to allow him to react appropriately to an unexpected hazard and to allow him to bring his vehicle safely to a halt without incident. He had given evidence of his speed, while Heather Wilson had considered that he was travelling more quickly. Mr Smith considered him to have been travelling too quickly for the road and the prevailing weather conditions. Even taking his speed at 15mph, this was still three times the speed which Heather Wilson thought appropriate. 20mph was four times her speed.

[37] In addition, the Jeep stopped reacting, as he intended it to do, as soon as he saw the Astra, roughly 56 metres ahead of him. He said he was surprised to see the Astra where it was, notwithstanding the fact that he had accepted that he had to be vigilant for potential obstructions on a country road. When he regained traction he did not attempt to stop. He tried to drive round the Astra and simply misjudged the manoeuvre.

[38] Taken together, his excessive speed, his failure to maintain control of the Jeep and the failed attempt to drive around the Astra raised his culpability beyond negligence to recklessness.

[39] The key factor which supported the contention that his recklessness was a novus actus was that, on his own evidence, had the Astra been facing the other way, the accident would still have occurred. In essence, the only way Mr Smith could have prevented the accident would have been if he had not been on the road at all. The pursuer averred that the negligence stemmed from Mr Smith's car being on the "wrong" side of the road. If it had been facing the other way, it would have been on the "correct" side. Had that been the case, according to the pursuer, the accident would still have occurred. The Astra being positioned where it was, it was seen earlier than it would have been had it been on the other side of the road.

[40] The fact that the accident would have occurred, without even the alleged negligence of Mr Smith, supported the submission that the pursuer's actions were a novus actus.

[41] Mr Rolfe therefore submitted that the Astra was not a dangerous obstruction. Even if it was, it was not where it was as a result of any negligence on the part of Mr Smith. Even if it was a dangerous obstruction negligently caused, it was only a dangerous to a reckless driver, such as the pursuer and his reckless driving amounted to a novus actus interveniens. In these circumstances, decree of absolvitor should be pronounced.

[42] Mr Rolfe submitted that if I were not with him in his primary submission, his secondary position was that the pursuer was contributorily negligent. In this connection he referred to a number of cases.

[43] In Harrington v Milk Marketing Board 1985 SLT 342, a lorry driver parked his lorry on the southbound A702 near Nine Mile Burn with dim, or unilluminated, lights and the pursuer drove his car straight into it. Lord Murray held the lorry driver negligent for not having parked in a nearby petrol station forecourt, but assessed contributory negligence on the part of the pursuer at 75% for failing to keep a proper lookout. In the present case, Mr Smith was stuck. It was not as open as him to put the vehicle elsewhere as in Harrington and in other cases.

[44] In Morris v Pirie 1985 SLT 365 the deceased was killed driving his lorry at 55mph when it had to swerve to avoid a broken down car some distance beyond the apex of a bend. Lord Stewart held that the deceased had been driving too fast and assessed contributory negligence on his part at 60%.

[45] In Sutherland v Gardiner, to which I have already referred, it was held by Lord Grieve that a motorcyclist who collided with a parked car on a slip road was guilty of contributory negligence to the extent of 60%. In that case the obstruction was round a blind bend and the pursuer had only been able to see it from two to three bicycle lengths away.

[46] Mr Rolfe submitted that the pursuer ought to bear the greater proportion of the responsibility for the incident, and moved for a finding of 80% contributory negligence.

Discussion
[47] I was indebted to both Counsel, not least for the fact that they had both produced outline submissions in writing. They had also managed to focus the issues.

[48] As far as the witnesses were concerned, I had no difficulty in finding that they were credible and doing their best to tell the truth as they saw it. The real issue was as to their reliability. The incident occurred over a very short space of time and it is hardly surprising to find that witnesses' perceptions of what went on might differ. Obviously no one was looking at a stopwatch so timings, particularly when one is dealing with an affair which lasted seconds, have to be regarded with some scepticism. Having said that, Mr Smith's view was that it took about six or seven seconds between his first seeing the top part of the Jeep and his seeing it in full. He thought it was 100 to 120 yards away when he first saw it and about 60 yards away when he saw it in full. The timings and distances involved tend, broadly, to give credence to the pursuer's evidence that he was travelling about 15 to 20mph. I am prepared to accept his evidence in that regard, there being nothing to contradict it and my having formed a general favourable view as to his credibility. The real issue, though, as far as his driving was concerned, was not the actual speed he was doing, but whether it was excessive for the conditions. In the first instance, however, I think I should concentrate on the actions of Mr Smith. I accept his account that he tried to negotiate the hill and, having failed to do so, that he chose to pull into the verge on the right hand side, rather than attempting to reverse back down the hill. I accept that he did this in order to leave room for the Jeep to pass and also because he was of the view that, if he attempted to reverse, it had the potential to make matters worse. He can only have had a matter of seconds to react when he saw the Jeep. Dr Wilson's evidence about the timings involved was speculative and she did not, at the end of the day, demur from the suggestion that it was only a matter of seconds. It is likely, and I so find, that the Astra was placed to some extent on the verge, which gave rise to Mr Smith's inability to open his door. That increased the space which was available for the Jeep to pass. That there was sufficient room to pass can also be seen from photograph 6/8/6, which shows the tyre tracks and their relationship to the Astra, even after the latter had moved further into the road.

[49] I accept that the Astra was, to some extent, an obstruction. That is obvious. While it would have represented something of an obstruction had it been parked on its own side of the road, that would at least have meant that the Jeep did not have to swerve to the right. It would probably have had to encroach on the verge on the left to some extent however. There would be nothing in that manoeuvre which was not the sort of thing which the pursuer ought to have expected to have encountered, given the nature of the road.

[50] However, the obstruction caused was in no sense in the same category as those in the cases to which I was referred. In Sutherland the car was about 4 feet out from the kerb, round a bend and only became visible to the pursuer when he was possibly three bicycle lengths away. In Rouse the lorry obstructed the nearside and centre lanes of the northbound three lane carriageway of the M1 on a frosty December night.

[51] In Harrington v Milk Marketing Board the lorry in question was parked on the carriageway, with dim or unilluminated lights. In Wright v Lodge the Mini car petered out and came to a stop in the nearside lane of the eastbound carriageway of a road in very foggy conditions. Visibility was down to about 60 yards. The judge, at first instance, found that the driver was negligent in failing to get her passengers to push it off the carriageway onto the verge, which would have been an easy task. On reading the opinion of the Court of Appeal, it appears that they would not necessarily have found the driver to be negligent but that is perhaps a side issue.

[52] That all having been said, the fact that there was an obstruction, to some extent, cannot be gainsaid.

[53] It seems to me, however, that the extent of an obstruction, and the general conditions, are relevant to the question of negligence on the part of the person who created it, in conjunction with all the other circumstances of the case. Mr Smith had only a very few seconds in which to act. The Jeep was coming down the hill towards his car. I accept his evidence, and that of Dr Wilson, that it was going too fast. He had little time in which to make a decision. On the one hand, he could have attempted to reverse down, but that, in his judgment, might have made the situation worse. On the other hand, he could have chosen to remain where he was. A third option was to pull in further to the side, to give more room to the Jeep to pass. That was the option which he adopted and I think it was a perfectly reasonable one in the circumstances. It did not, in my opinion, exhibit any lack of reasonable care or consideration for other road users. He left adequate room for the Jeep to pass. Not only is that evident from the measurements and the photograph (6/8/6), but it seems to me to follow from the evidence of the pursuer's mother who said that the situation in the Jeep was quite relaxed. The pursuer saw the Astra, he had a conversation about it with his mother and she was quite relaxed about the prospects of going past it. As I have said, I accept the evidence of Dr Wilson and Mr Smith that the Jeep was going too fast for the conditions and in my opinion it was that circumstance which led to the accident, rather than any negligence on the part of Mr Smith.

[54] Effectively Mr Smith had difficult choices to make in the agony of the moment. He cannot be criticised for exercising the choice which he did. The positioning of the Astra was merely a sine qua non rather than the causa causans of the accident. Mr Smith was facing an emergency and his actions, in my opinion, cannot be categorised as negligent. (cf Rouse v Squires where, at page 898G Cairns LJ said the following:

"Of course we do not know exactly what happened to the third party lorry; but there was nothing to suggest that its driver had any emergency situation to face. He for some reason had simply lost control of his vehicle, presumably by driving too fast on a frosty road or by unwisely applying his brakes."

[55] In these circumstances, the defenders are entitled to absolvitor.

[56] It is not necessary for me to consider the question of novus actus interveniens. As I see it, that would only apply if there was negligence on the part of a defender which had the potential to cause harm but where the chain of causation was interrupted. I have found that there was no such negligence. However, in deference to the arguments presented, I should make a few comments.

[57] It is well known that a novus actus has to be something "ultroneous, something unwarrantable, a new cause which ... can be described as either unreasonable or extraneous or extrinsic" (The Oropesa [1943] 1 All ER 211, 215.

[58] The cases to which reference was made, dealing with road traffic accidents, are to the effect that only recklessness will be sufficient to break the chain. Mr Rolfe did not point me to any particular definition of recklessness, but the concept is well understood. Although Allan v Patterson 1980 JC 57 was a criminal case, the comments therein are apposite. What is required is more than a want of due care and attention but the deliberate courting of obvious risks without any regard to the consequences. See also the judgment of Hobhouse J at first instance in Wright v Lodge, quoted at page 306 of the report, where he said:

"... it is quite clear that Mr Lodge was very seriously at fault. He was driving at a speed of around 60mph in an articulated lorry which was subject to a 50mph speed limit and he was driving at that speed in thick fog. I consider that there is no escape from the conclusion that he was driving recklessly. He was shutting his eyes to the obvious risks that existed ... His conduct on that night was clearly, in my judgment, reckless because he was driving at a speed which was obviously unsafe for his vehicle and contrary to the law and was, furthermore, plainly reckless and taking unacceptable risks having regard to the fog conditions that existed ...".

[59] I have held that Mr Cowling was driving too quickly for the conditions. Had he been driving at the sort of speed at which Dr Wilson negotiated the hill it is likely that the accident would not have occurred. However, in my opinion, his actions cannot be categorised as reckless. They simply do not reach that high standard.

[60] In the circumstances, had I found that Mr Smith was negligent, I would not have held that the actions of Mr Cowling amounted to a novus actus.

[61] For the sake of completeness I should say that, had I found Mr Smith to be negligent, I would have found that Mr Cowling was contributorily so, to the extent of 75%.

Decision
[62] I shall assoilzie the defenders from the conclusions of the summons and find the pursuer liable to the defenders in the expenses of the action as taxed, in so far as they have not otherwise been dealt with.