Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 2
PD2144/12	OPINION OF LORD KINCLAVEN in the cause BJ and OTHERS Pursuers; against HG and OTHERS Defenders: ________________

Pursuers: R Milligan QC, and Laing; Digby Brown LLP

Defenders: Andrew Smith QC; Ledingham Chalmers LLP

14 January 2014

Introduction and Overview

[1] This is an action for damages arising out of a tragic road traffic accident on 4 November 2011 on the A9 Perth to Inverness road near to Dunkeld.

[2] The pursuers are the parents and relatives of the late MJ, ("the deceased") who died as a result of the accident. The deceased was the front seat passenger in a silver Renault Kangoo ("the Renault") motor car being driven north by the first defender. The second defenders are an insurance company. The defenders deny liability.

[3] The case came before me for proof.

[4] Mr Milligan QC and Mr Laing appeared for the six pursuers.

[5] Mr Smith QC appeared for both defenders.

[6] Prior to the proof Lord Pentland had pronounced an interlocutor ordaining the defenders to lead. It was agreed between the parties that the circumstances of the accident gave rise to a presumption of negligence on the part of the first defender and that the onus was upon the defenders to provide a non-negligent account of how the accident occurred. The proof was conducted on that basis.

[7] Damages, and various other matters, were also agreed by way of joint minute of admissions (No. 30 of process).

[8] Mr Smith, on behalf of the defenders, invited me to grant decree of absolvitor.

[9] Mr Milligan, on behalf of the pursuers, invited me to grant decree for the agreed sums set out in the joint minute.

[10] Having considered the evidence, and the submissions of counsel, I have decided that the pursuers are entitled to reparation from the defenders. On the evidence, the defenders failed to provide a non-negligent account of how the accident occurred. The agreed presumption of negligence applies.

[11] Accordingly I shall grant decree in favour of the pursuers in the agreed sums in terms of paragraph 1 of the joint minute.

[12] In short, I find that the pursuers' submissions prevail essentially for the reasons outlined by Mr Milligan.

[13] I would outline the background to my decision as follows.

The Pleadings

[14] In the Record (No 16 of process), as amended, the pursuers' averments in relation to liability were as follows:

"Cond. 4 On or around 4 November 2011 at approximately 1935 hours the deceased was a front seat, retrained passenger in a silver Renault Kangoo, vehicle registration number XXXX XXX (hereinafter referred to as 'the Renault'). The Renault was being driven by the first defender. They were travelling in a northerly direction along the A9 Perth to Inverness Road. It was dark. The first defender had illuminated the Renault's headlights. The A9 road runs south to north. The road consists of varying stretches of single and dual carriageway. At the material time the Renault was travelling along a stretch of road consisting of single carriageway with one lane in either direction. The lanes are divided by centre line markings. There was no street lighting. Immediately east of the carriageway is a flat grass verge of approximately three metres in width followed by an embankment which is inclined upwards. To the west and adjoining the carriageway is lay-by number 15. This is approximately 3.5 metres in width and is separated from the carriageway by broken white lines. Immediately to the west of the lay-by is a flat grass verge approximately 3 metres in width followed by an embankment which inclined upwards. The speed limits for cars, including the Renault, is 60mph. At approximately 600 metres south of the junction between the A9 the B867 Birnam to Bankfoot Road, the first defender swerved the Renault from the northbound carriageway on to the south bound carriageway. The Renault entered the path of an oncoming black Peugeot 206. The Peugeot was being driven by SR .... The black Peugeot 206 collided with the front nearside of the first defenders vehicle. As a consequence of the collision, the deceased sustained fatal injuries. He was declared dead at the accident scene by paramedics. The cause of death was noted on the deceased's death certificate as multiple injuries arising from blunt force trauma in the accident. The second defenders are the insurers of the first defender in terms of section 143 of the Road Traffic Act 1988. The insurance policy number is XXX. In terms of regulation 3 of the of the European Communities (Rights Against Insurers) Regulations 2002 the second defenders are directly liable to the pursuers to the extent that the pursuers suffered loss, injury and damage as a result of the negligence of the first defender. With reference to the defenders' averments in answer, believed to be true that the deceased, the first defender and her son were travelling to a wedding in Fort William. Not known and not admitted that the first defender's son, CG was in the rear nearside passenger seat. Quoad ultra the defenders' averments in answer are denied except insofar as coinciding herewith. Explained and averred that the first defender has given various different and inconsistent accounts of the accident circumstances. The accident was investigated by Tayside Police. Following upon the accident, the first defender was admitted to Ninewells Hospital, Dundee. On 5 November 2011, FM (the first defender's stepfather) provided a statement to PC Andrew Miller (badge number 9837) and PC John Learmonth (badge number 9639). FM advised the police officers that the first defender had explained to both her mother and to him that she had suffered a sharp pain (possibly on the right side of her body) which caused her to pull sharply on the steering wheel. Thereafter, on 7 November 2011 at about 1.20pm, the first defender provided a voluntary statement to PC Learmonth and PC Miller. The first defender's position was that at the time of the accident she had suffered a surge of pain in her waist which went into her chest. As a result of the pain, she had moved the steering wheel to the right, veering onto the opposite carriageway. Thereafter, she had pulled the steering wheel sharply back to the left, following upon which the vehicle had veered back to the right, resulting in the collision. Subsequently, on 27 November 2011, at about 12.52pm, the first defender provided the two police officers with a second voluntary statement. The statement was provided at her request. Said statement was inconsistent with her first statement. The first defender advised the two police officers that the deceased had grabbed the steering wheel and pushed it towards the oncoming traffic. The first defender was discharged from hospital into the care of her General Practitioner, Dr DC ... . The first defender has also posted an entry on her Facebook page advising that the deceased was a hero as, after she had lost control, he had directed the car so he would take the impact, thereby saving her and the baby she was carrying. ...

Cond. 6 The pursuers' claims are based on the first defender's breach of her common law duty of care to take reasonable care for the deceased for which the second defenders are liable in terms of regulation 3 of the European Communities (Rights Against Insurers) Regulations 2002. The defenders' averments in answer are denied except insofar as coinciding herewith."

[15] The defenders' averment in relation to liability were as follows:

"Ans. 4 Admitted on or around 04 November 2011 at approximately 19:35 hours the deceased was a front seat restrained passenger in a silver Renault Kangoo with registration XXXX XXX (hereinafter referred to as "the Renault"). Admitted the Renault was being driven by the First Defender Admitted they were travelling in a northerly direction along the A9 Perth to Inverness road. Admitted it was dark. Admitted the First Defender had illuminated the Renault's headlights. Admitted the A9 road runs south to north. Admitted the road consists of varying stretches of single and dual carriageway. Admitted at the material time the Renault was travelling along a stretch of road consisting of single carriageway with one lane in either direction. Admitted the lanes are divided by centre line markings. Admitted there was no street lighting. Admitted immediately east of the carriageway is a flat grass verge of approximately 3 metres in width followed by an embankment which is inclined upwards. Admitted to the west and adjoining the carriageway is lay-by number 15. Admitted this is approximately 3.5 metres in width and is separated from the carriageway by broken white lines. Admitted immediately to the west of the lay-by is a flat grass verge approximately 3 metres in width followed by an embankment which is inclined upwards. Admitted the speed limit for cars, including the Renault, is 60 mph. Admitted at approximately 600 metres south of the junction between the A9 and the B867 Birnam to Bankfoot road, the Renault swerved from the northbound carriageway onto the southbound carriageway. Admitted the Renault entered the path of an oncoming black Peugeot 206 being driven by Shona Reed. Admitted the black Peugeot 206 collided with the front nearside of the Renault. Admitted as a consequence of the collision, the deceased sustained fatal injuries. Admitted he was declared dead at the accident scene by paramedics. Admitted the cause of death was noted as multiple injuries arising from blunt force trauma in the accident. Admitted the Second Defenders are the insurers of the First Defender in terms of section 143 of the Road Traffic Act 1988. Admitted the insurance policy number is XXX. Admitted in terms of the said 2002 Regulations the Second Defenders are directly liable to the Pursuers to the extent that the Pursuers suffered loss, injury and damage as a result of negligence of the First Defender. Admitted the accident was investigated by Tayside Police. Admitted following upon the accident, the first defender was admitted to Ninewells Hospital, Dundee. Admitted on 05 November 2011 FM provided a statement to PC Andrew Miller and PC John Learmonth. Admitted FM advised the police officers that the first defender had explained to both her mother and to him that she had suffered a sharp pain which caused her to pull sharply on the steering wheel under explanation that he also advised the police officers that the first defender had said that the deceased had leaned over to try to correct it. Admitted on 07 November 2011 at about 1.20pm, the first defender provided a voluntary statement to PC Learmonth and PC Miller. Admitted the first defender's position was that at the time of the accident she had suffered a surge of pain in her waist which went into her chest. Admitted she said that as a result of the pain she had moved the steering wheel to the right, veering onto the opposite carriageway. Admitted she said that thereafter, she had pulled the steering wheel sharply back to the left, following upon which the vehicle had veered back to the right under explanation that she also advised the police officers that after straightening up the vehicle the deceased had grabbed the steering wheel and that she felt it jolt away from the straight position. Admitted on 28 November 2011, at about 12.52pm, the first defender provided the two police officers with a second voluntary statement. Admitted the statement was provided at her request. Admitted the first defender advised the two police officers that the deceased had grabbed the steering wheel and pushed it towards the oncoming traffic. Admitted the first defender was discharged from hospital into the care of her General Practitioner, Dr DC ... . Quoad ultra denied. Explained and averred that at or about 19:35 hours on or around 04 November 2011 the First Defender was driving the Renault along a stretch of road consisting of single carriageway with one lane in either direction. The speed limit for cars was 60 mph. The First Defender had limited her speed to account for road conditions and was driving at between 50 mph and 55 mph. She was alert with headlights on dipped beams. The First Defender was 17 weeks pregnant. The deceased was the First Defender's partner. The First Defender's son, CG was in the rear nearside passenger seat. He was watching a hand-held DVD. The deceased, the First Defender and her son were travelling to a wedding in Fort William. The deceased was an alcoholic. He had been consuming alcohol throughout the day on 04 November 2011. At approximately 600 metres south of the junction between the A9 and the B867 Birnam to Bankfoot Road, suddenly and without warning, the First Defender felt a surge of pain in her lower left abdomen. She momentarily took her left hand from the steering wheel and placed it on her lower abdomen. She then placed her left hand back on the steering wheel continuing to drive with both hands on the steering wheel. The First Defender then felt a surge of pain shooting up into her chest. Her whole body cramped causing the First Defender to tense. As a result of the pain the First Defender pulled the steering wheel to the right, causing the offside wheels of her car to momentarily cross over onto the opposite southbound carriageway. The First Defender immediately steered the car back into the northbound carriageway by pulling the steering wheel back to the left. As the First Defender straightened the car up on the northbound carriageway, suddenly and without warning, the deceased leaned across and grabbed the steering wheel. The First Defender felt the steering wheel jolt away from her. The deceased grabbed the steering wheel causing the Renault to swerve from the northbound carriageway onto the southbound carriageway and into the path of oncoming traffic. The First Defender was given no opportunity to take any avoiding action. ...

Ans. 6 Admitted the Pursuers' claims are based on the First Defender's breach of her common law duty to take reasonable care for the deceased for which the Second Defenders are liable. Quoad ultra denied. The Defenders contend that: -

1. The Defenders are not liable to make reparation to the Pursuers:

2. The accident was caused wholly by fault and negligence of the deceased;

3. In any event, the sums sued for are excessive."

Witnesses for the Defenders

[16] The witnesses who gave evidence for the defenders were:

1. HG, the first defender;

2. DM, the first defender's mother;

3. John Roy, a coach driver who worked for Parks of Hamilton (Coach Hirers) Ltd; and

4. PC Michael Cargill, a crash investigator;

Witnesses for the Pursuers

[17] The witnesses for the pursuers were:

1. Sgt Andrew Miller, who took various statements;

2. Barry Seward, a consultant accident investigator; and

3. Nigel McGillivray, who was a lorry driver at the time.

Joint Minute of Admissions

[18] In the joint minute of admissions the parties were agreed as follows:

1. (a) the amount of the first pursuer's loss and damage is FIFTY-FVE THOUSAND POUNDS (£55,000) STERLING inclusive of interest to 1^st October 2013 upon which interest should be applied (i) at the rate of 8 per cent per annum upon £5,000 from 1 October 2013 to date of decree and at the rate of 4 per cent per annum upon £25,000 from 1 October 2013 to date of decree and (ii) thereafter, at the rate of 8 per cent per annum upon the full sum from date of decree to date of payment;

(b) the amount of the second pursuer's loss and damage is SIXTY THOUSAND POUNDS (£60,000) STERLING inclusive of interest to 1 October 2013 upon which interest should be applied (i) at the rate of 4 per cent per annum upon £30,000 from 1 October 2013 to date of decree and (ii) thereafter, at the rate of 8 per cent per annum upon the full sum from date of decree to date of payment;

(c) the amount of the third pursuer's loss and damage is TWENTY THOUSAND POUNDS (£20,000) STERLING inclusive of interest to 1 October 2013 upon which interest should be applied (i) at the rate of 4 per cent per annum upon £10.000 from 1 October 2013 to date of decree and (ii) thereafter, at the rate of 8 per cent per annum upon the full sum from date of decree to date of payment;

(d) the amount of the fourth pursuer's loss and damage is TWENTY THOUSAND POUNDS (£20,000) STERLING inclusive of interest to 1 October 2013 upon which interest should be applied (i) at the rate of 4 per cent per annum upon £10,000 from 1 October 2013 to date of decree and (ii) thereafter, at the rate of 8 per cent per annum upon the full sum from date of decree to date of payment;

(e) the amount of the fifth pursuer's loss and damage is TWENTY THOUSAND POUNDS (£20,000) STERLING inclusive of interest to 1 October 2013 upon which interest should be applied (i) at the rate of 4 per cent per annum upon £10,000 from 1st October 2013 to date of decree and (ii) thereafter, at the rate of 8 per cent per annum upon the full sum from date of decree to date of payment;

(f) the amount of the sixth pursuer's loss and damage is TEN THOUSAND POUNDS (£10,000) STERLING inclusive of interest to 1 October 2013 upon which interest should be applied (i) at the rate of 4 per cent per annum upon £5,000 from 1 October 2013 to date of decree and (ii) thereafter, at the rate of 8 per cent per annum upon the full sum from date of decree to date of payment;

2. Number 6/1 of process is the abstract report of Tayside Police in relation to the accident referred to on Record;

3. Number 6/15 of process is a copy of the written record of the verbal statement given by John George Roy to PC J Godfrey (PC 2053) at the A9 road on 4 November 2011 at about 9.10pm and is a true and accurate record of that statement;

4. Number 6/16 of process is a copy of the written record of the verbal statement given by [FM] to PC Learmonth (PC 9639) at Ninewells Hospital, Dundee on 5 November 2011 at about 5.10pm and is a true and accurate record of that statement;

5. Number 6/17 of process is a copy of the written record of the verbal statement given by [DM] to PC Andrew Miller (PC 9837) at Ward 20, Ninewells Hospital, Dundee on 5 November 2011 at about 5pm and is a true and accurate record of that statement;

6. Number 6/18 of process is a copy of the written record of the verbal statement given by Nigel MacGillvray to PC E McNee (PC 9239) by telephone on 6 November 2011 at about 12 noon and is a true and accurate record of that statement;

7. Number 6/19 of process is a copy of the written record of the verbal statement given by the first defender to PC Andrew Miller (PC 9837) at Ward 8, Ninewells Hospital, Dundee on 7 November 2011 at about 1.23pm and is a true and accurate record of that statement;

8. Number 6/20 of process is a copy of the written record of the verbal statement given by the first defender to PC Andrew Miller (PC 9837) at Ward 16, Ninewells Hospital, Dundee on 27 November 2011 at about l2.52pm and is a true and accurate record of that statement;

9. Number 6/21 of process is an obstetric report prepared by Dr Norman Smith, Consultant Obstetrician, dated 11 September 2013; and Number 6/22 of process is a supplementary obstetric report prepared by Dr Norman Smith, Consultant Obstetrician, dated 13 September 2013; that said reports contain a true and accurate account of the opinion of Dr Norman Smith and are to be treated as the equivalent of his oral evidence;

10. Number 6/23 of process is the curriculum vitae of Dr Norman Smith, Consultant Obstetrician, and is a true and accurate record of his qualifications, appointments, clinical expertise, educational activities and publications;

11. Number 6/24 of process is an extract from an article on "Joint Hypermobility" which appears on the NHS Choices website;

12. Number 6/25 of process is an article on "Fibromyalgia: Pregnancy and Breast Feeding" by Suzanne Elvidge;

13. Number 6/26 of process is an article on "Fibromyalgia" which appears on the Wikipedia website;

14. Number 6/27 of process is an article on "Fibromyalgia" which appears on the UK Fibromyalgia website;

15. Number 6/28 of process are General Practitioner medical records from [a named Medical Centre], which relate to the first defender and are what they bear to be;

16. Number 6/29 of process are medical records from Ninewells Hospital, Dundee, DDl 9SY, which relate to the first defender and are what they bear to be;

17. Number 6/30 of process are obstetric medical records from Victoria Hospital, Hayfield Road, Kirkcaldy, KY2 5AH, which relate to the first defender and are what they bear to be;

18. Number 7/3 of process are General Practitioner medical records from [another named Medical Centre] which relate to MJ, the deceased, and are what they bear to be;

19. Number 7/6 of process are 189 photographs taken by a specialist police photographer on behalf of the Forensic Services of the Scottish Police Services Authority;

20. That copies of all productions are to be treated as principals.

Authorities

[19] I was not referred to any authorities.

[20] Parties were agreed that the issues raised were essentially matters of fact for me to determine.

The DVD Footage

[21] Parties were also agreed that I could view the DVD footage again.

[22] The DVD is No 7/10 of process.

The Defenders' Position

[23] Mr Smith outlined the defenders' position along the following lines:

The defenders' formal motion

1. The defenders sought decree of absolvitor. If the court was against the defenders in that motion, then decree should be granted in the agreed sums per the joint minute.

Introduction

2. The defenders offered to lead at proof, recognising as they did that having admitted that the first defender (hereinafter sometimes referred to simply as "the defender") was driving the vehicle, and that it suffered a collision in the wrong carriageway, it was necessary that the first defender establish that she was not at fault. In other words, it was accepted by Mr Smith that there was formally an evidential burden upon the first defender to establish that the accident was not due to her fault. It was made clear that it was not the first defender's case that the entire accident was caused by the pain in her side and it is therefore not her fault. The defenders' case is that the accident was caused by the actions of the deceased and therefore his family are not entitled to claim damages for his death.

3. The defenders' position was simple: If the first defender is believed to the extent that she says the steering wheel was grabbed by the deceased which caused the car to veer across the carriageway, then the defenders should be assoilzied. If she is not believed, then the defenders are liable. The issue was as stark as that.

Inconsistencies in her statements

4. Mr Smith commented that much time was spent analysing the detail of the first defender's claims. She was cross examined at length at a level of detail that was, so submitted Mr Smith, wholly unrealistic in the quest to find out whether she was telling the truth or not. The reality was that she could not be expected (and no one could) to remember, and relate in a consistent way, every detail of a traumatic accident that occurred in only a few seconds. Although this could be referred to as unreliability (and in some respects it was accepted that she would be unreliable) it was understandable unreliability. By way of example, whether the first defender stated that the steering wheel was grabbed at the bottom or the side matters not. What was important is that the steering wheel was grabbed and on that core matter, she had been entirely consistent.

5. Mr Smith submitted that consideration of matters that could be described as "micro detail" (how far across the road she was, which part of the wheel was grabbed and so on) could only went towards her credibility and reliability. It was submitted that the court should commence its consideration by bearing in mind that there were essentially two, but possibly three, scenarios.

The possible scenarios
6. What was clear is that the Kangoo motor car suddenly turned into the opposite carriageway. That could be seen clearly on the DVD and was spoken to by PC Michael Cargill. No one disputed that it happened. Mr Smith submitted that the competing scenarios were these:

(i)            That the deceased did indeed grab the wheel for some reason (upon which there was direct testimony);

(ii)           That the first defender deliberately turned the wheel into the opposing traffic for no apparent reason (about which Mr Smith suggested there was no evidence);

(iii)         that the first defender somehow lost control in the earlier manoeuver and over-steered into the opposite carriageway. This, submitted Mr Smith, depended upon speculation that an event occurred which caused her to have to oversteer.

In considering the competing contentions, it was submitted that the second was totally improbable, and the third depended upon assuming that there was an event that provoked the over-steer. Mr Smith submitted that there was simply no acceptable evidence to support that contention. It depended upon establishing facts that indicated that there was an emergency of heading to the near side; and even if that was established, it depended on proof that there was an oversteer carried out in response. Mr Smith submitted that neither of those factors was established.

7. Mr Smith submitted that the second scenario was wholly unlikely. No one had suggested that this was a movement of omission - for example falling asleep, or merely inadvertence. It required a sudden and deliberate turn of the vehicle. It was simply improbable that the first defender would deliberately turn the car in that way, risking the life of her partner, herself and her son. Accordingly, it was unlikely to have been so. To do so would have been, in effect, a suicide bid that simply could not have taken place.

8. In considering the third scenario (an oversteer) versus the claim that the deceased grabbed the wheel, it was helpful to consider the evidence in support of, and against, each in turn.

9. In support of the contention that there was an over-steer, it was accepted that this was a possibility on the evidence. PC Cargill so stated in his report and he stated that in evidence under reference to the report. Mr Smith submitted that the difficulty was that it depends upon there being an action that would require an action to react to. In short, submitted Mr Smith, the evidence regarding an over-steer was utterly speculative. It began with a conclusion (the car crossing to the south-bound carriageway) and sought an explanation (an over-steer). In short, there was simply no evidence of that having taken place and all that was left was a pattern of marks on the road, shortly before the final cross over to the south-bound carriageway. It was perhaps noteworthy that although it was accepted that the arc ran generally towards the near side, then away from the nearside, all that that pointed to was that the car was indeed travelling at some point shortly prior to collision in that arc. Mr Seward noted (at 5.13) that the angle of the car towards the nearside was "very slight". He also stated (in 5.14) that the vehicle had probably not been "fully" controlled when right hand steering had been applied. Was that inconsistent with the deceased grabbing the wheel and (as the first defender said) turning it? Mr Smith submitted that the answer was "no". Accordingly, this really went nowhere other than to speculate to find an alternative explanation.

10. Mr Smith submitted that the other important point to be taken from the striation marks came from the evidence, principally, of Mr Seward. His evidence was to the effect that the first defender's evidence cannot be accepted to this extent: she must have been on the "wrong" carriageway very shortly prior to the final impact. He draws that conclusion from two sources - firstly the marks on the roadway and secondly what was apparently on the DVD.

Mr Seward's evidence

11. Mr Smith submitted that Mr Sewards' evidence should be put to one side. Firstly, it was submitted that he was not a satisfactory witness and his report displayed conjecture and a willingness to engage is speculation that ought not to appear in a report. For example, his willingness to support the pursuers' case by reference to a likely scenario (or more the unlikelihood of the first defender's claim) was made in circumstances that showed that he was prepared to "throw into the mix" things that he ought not to. He was also prepared to suggest that it was unlikely that the deceased did what the first defender said, as it was not necessary for him to lean over - ignoring the fact that that did not mean that the deceased did not choose to do it. Further, he invited the court to "see" something on the DVD that not even he could claim to see when he first looked at it. What he says can be seen by him, beyond doubt, is that the first defender's car can be seen returning to the north bound carriageway. Mr Smith submitted that that was simply unsupported by what can or cannot be seen. The main questions to be asked were these: Why did he not refer to these matters in his report? Why was he prepared to speculate on matters beyond his expertise? Why can we not see what he claims can be seen?

The core issue

12. Mr Smith submitted that the importance of this evidence was hard to imagine as at the end of the day it did not actually exclude what the first defender had said on the core issue: Did the deceased grab the wheel and cause the car to lose control? Once again, the court was being asked to use speculation to find that the first defender lied repeatedly.

13. Mr Smith submitted that the evidence of Mr Seward was also inconsistent with the evidence of Mr Roy, the bus driver, who was not challenged when he stated that the car had "drifted" into the south-bound carriageway; then drifted back to its own side. If this evidence was accepted, it was not consistent with a car out of control that may have provoked an over-steer correction. Accordingly, the court had actual eye witness evidence, that was unchallenged, to the effect that the concept of over-steer propounded by Mr Seward was unlikely. The evidence of Mr McGillivray was also "neither here nor there" on the issue - although the impression one might have had of his evidence was that the straying to the wrong carriageway was some distance ahead of him and certainly not necessarily immediately in front as was the thrust of Mr Seward's evidence.

Forensic evidence: neutral

14. The critical issue was whether there was anything in the forensic material that gainsaid the first defender's position. As was noted by the witnesses Cargill and Seward, there was nothing that either supported nor excluded what she said. And that, it was submitted, was the starting point for this discussion.

Inconsistencies in the police statements: the explanation

15. Mr Smith noted that much had been made by the pursuers of alleged inconsistencies in prior statements to the police given by the first defender. What was clear was that the emotional and physical trauma of this accident was understandably profound. Mr Smith submitted that it was unrealistic to expect every small detail to be entirely consistent, or indeed accurate; and establishing that one aspect was incorrect or inconsistent did not justify leaping to the conclusion that she has made the whole thing up. It could be seen from the medical records (that were agreed as accurate) that the first defender was certainly (and understandably) in a distressed state and in receipt of medication. See No 6/29 of process at pages 53, 74 and 76 for example. The evidence of the first defender's mother that the first defender was in "cuckoo land" was telling. Again, to expect a clear, consistent and wholly accurate statement two days after her son had died, when she was in pain and on medication, and three days after her partner died in front of her was totally unrealistic.

16. That said, what was before the court was that she told the police that the deceased had grabbed the wheel - what was described as "the core issue". That was apparently communicated to others: No 7/9 of process is the Facebook entry from someone (who heard from someone who visited the first defender in hospital) who recorded on 6 November 2011 "his last act was to grab the steering wheel, directing the point of impact towards himself giving HG and CG a fighting chance"; and on 7 November "his last act was to grab the steering wheel directing the point of impact towards himself". Mr Smith accepted that this information was "rather filtered through a number of minds", but he suggested that what was clear was that it was related by the first defender that the deceased had grabbed the steering wheel.

17. Mr Smith noted that the first defender said that much to the police on two occasions, and although it was accepted that on the second occasion she was more detailed in what she said regarding the deceased being the cause of the accident, she explained that things were "coming back to her" and it was clearer. She clearly felt and continued to feel loyalty to the deceased, it perhaps being understandable that she does not and did not wish to blame him. Any suggestion that this loyalty was surprising given the length of the relationship was rather defeated by the evidence of the first defender's mother that they had planned a life together.

Could one expect the deceased to act rationally?

18. So what of the deceased's actions? How could they be explained as being rational? Or how could irrationality be explained?

19. The first defender gave evidence that the deceased had a serious problem with alcohol: that is vouched ably by reference to the medical records that are agreed as being his. The following pages are of interest merely as a selection (to be found in No 7/3 of process):

·      page 190 - the deceased was found walking on a wall on North Bridge in Edinburgh, and was pulled down by a member of the public, who feared he was going to jump: this happened on 20 June 2011;

·      page 184 - he was found drunk and staggering around: 6 June 2010;

·      page 72 - he received help from an addiction centre: 3 August 2010;

·      page 41 - he "accidentally" punched a gaming machine to his injury: 15 March 2009;

·      page 39 - when drunk he suffered injury: 1 November 2009;

·      page 36 - he was found lying in the street: 17 April 2011;

·      page 21 - he suffered grand mal seizures when drunk (spoken to by the first defender too, saying he had bitten his tongue when suffering a fit): 30 Jan 2010; and

·      page 11 - he is recorded as having consumed a bottle of spirits a day: 15 March 2010.

20. Mr Smith submitted that what all of this showed was that the deceased did indeed have a serious problem with alcohol; and that when in drink he had acted irrationally. The defender spoke to him "fighting" when asleep. All of this was certainly consistent with the medical records.

21. Thus in analysing the actions of the deceased, as claimed by the first defender, it had to be borne in mind that his actions may have been irrational. If the wheel was grabbed it was certainly not inconsistent with his actions as recorded in medical records - so submitted Mr Smith.

The road works

21. Something was made by the pursuers of the first defender's position that the deceased was complaining of cars up behind her during the road works. It was known that the road works commenced some distance (perhaps a little over 800 yards) south of the collision point. But what was not known was for how far the contra-flow was in operation. Thus, it was entirely consistent with the first defender's version of events that the deceased commented early on in the roadworks that she was holding up traffic behind; that he fell asleep during the contra-flow; and that he woke up for whatever reason in time to grab the wheel and turn it. Issues of reaction times are not relevant for the deceased as it is not known what if anything he was reacting to. He may have been reacting to nothing but acting reflexively; or he may have been reacting to being partially on the wrong side of the road; or to a perception of the car moving to the near side; or to him being awake and seeing the car moving to the nearside and intervening to try to straighten the car but turning the wheel too far.

22. All of this of course was speculation. And it had to be balanced against what the first defender had said: did the deceased grab the wheel? If one started to ask whether what he did was rational, then one ended up in speculation that ought not to feature. One must again start with the position of the first defender on the core issue.

23. Mr Smith submitted that the first defender gave her evidence in a credible fashion accepting that there are aspects that are unreliable on detail. He founded heavily on the consistency on the core issue - Facebook and police statements, including her statement to her parents.

24. That should be balanced against the alternative: had she come to court having constructed a lie from the outset? Did she perjure herself before the court? Did she lay down the groundwork for this fabrication as from a few days after the accident? And of course, the critical factor was the sudden turn to the opposing carriageway that was corroborated by the DVD. There was no way that she could have known that there would be evidence, consistent with her case, that she had strayed in to the opposite carriageway, and returned to the correct side. That much she had correct, before forensic evidence became available that confirmed it.

25. And there was the "why" question. What did the first defender stand to gain by stating that this was the fault of the deceased? Was the court being asked to believe that she thoughts she would "lose her house" over this or be charged with murder? Mr Smith submitted that that was not a feasible explanation for her lying, perjuring herself and constructing a version of events immediately after the accident that appears to have some support from the forensic investigation.

Conclusion

26. It was therefore submitted by Mr Smith that the court was provided with a feasible explanation: that the deceased grabbed the wheel as the first defender claimed. The other possibilities (over-steer or deliberate wrong doing) were either wholly unrealistic or complete speculation. Unless the court had a good reason to disbelieve the first defender, and find that she acted in a way that resulted in the death of her son and her partner, it was submitted that her evidence ought to be accepted; and thus the defenders assoilzied. Those were the submissions made on behalf of the defenders.

The Pursuers' Position

[24] Mr Milligan outlined the pursuers' position along the following lines:

Summary

1. The deceased was killed in a road traffic accident on Friday 4 November 2011 whilst a passenger in a car driven by the first defender travelling north on the A9 (Perth to Inverness road) south of the junction with the B867 (Birnam to Bankfoot road). The accident occurred when the first defender lost control of the Renault Kangoo car registration XXXX XXX that she was driving and swerved into the opposite carriageway, into the path of a black Peugeot 206. It was agreed that the circumstances of the accident give rise to a clear presumption of negligence on the part of the first defender driver and so the onus was on her to provide a non-negligent account of how the accident occurred.

2. Her account was that the deceased grabbed hold of the steering wheel and steered the car into the path of the oncoming Peugeot 206 when there was no reason to do so. No explanation was given as to why the deceased might have done that. As well as being inherently unlikely, this account was (1) inconsistent with the physical evidence and (2) inconsistent with other accounts provided by the first defender at various points since the accident. The first defender was not a credible and/or reliable witness and this bizarre explanation should not be accepted. Decree should be granted in favour of the pursuers in the agreed sums of damages as set out in paragraph 1 of the joint minute.

The defender's account of the accident

3. The first defender's case on record was that the accident was caused by the deceased grabbing the steering wheel and turning the car into the path of the oncoming Peugeot. It was very important to note the terms of her case on Record (at page 12B-C). Her case on Record was that the car was travelling in a straight direction when the deceased grabbed the wheel. It was not sufficient for her to show that the deceased grabbed the wheel when the car either heading towards an oncoming vehicle or when heading off the road. That was not her case on Record (or in evidence) and it would not amount to a defence in any event, as the deceased would then be acting in the agony of the moment.

4. However, the first defender also had to explain away an earlier encroachment into the opposite carriageway seconds earlier. She claimed that this was an unrelated incident and that she had regained control of her vehicle when the deceased grabbed the steering wheel. If that was not the case then she had failed to establish her case on record and the pursuers must succeed.

5. According to the first defender, she had initially lost control of the car due to a pain in the chest. Her account of the location of the pain had varied, but in evidence she said it was in her left side. For some reason, she stated that this caused her to jerk the steering wheel to the right. As a result she encroached on to the opposite carriageway. An oncoming vehicle warned her with its horn and the first defender then returned to her side of the road. She continued driving on her side of the road, under control, when suddenly and without warning (and without any apparent motivation) the deceased woke from his sleep and reached under her arms to grab the bottom/left of the steering wheel and turn the car into the opposite carriageway, where it collided side on with the oncoming Peugeot 206.

6. If this account was accepted in full then the pursuers' case failed. If it was not then the pursuers succeeded. That was the only issue of fact or law that the court had to decide.

Reasons to disbelieve the defender's account

7. There were several reasons to disbelieve the first defender's account. It was inherently incredible. According to the first defender, two highly unlikely and completely unrelated incidents occurred within a matter of seconds. The first was that she suffered a pain in her chest - the like of which she had never suffered before or since (see No 6/22 of process, answers 17 and 18) - which caused her to swerve into the opposite carriageway. The second, and even more incredible, was that the deceased grabbed the steering wheel and turned it so that the car would collide with an oncoming vehicle.

8. This alone would make her account unacceptable to the court, even if she had been consistent and credible in her telling of it. However, the opposite was the case. She had given many different versions over time, which she tried to explain away for a number of reasons - e.g. being under sedation and, rather bizarrely, because she was dyslexic. Taken at its highest, the first defender's account was pieced together from flashbacks occurring over a period of many weeks since the accident and was different from what she told people in the immediate aftermath of the accident, when her recollection was likely to be more accurate. Indeed, the first defender still stood by much of what she said in the first statement. It was understandable that she wanted to remember things in a way that did not render her blameworthy for an accident with such terrible consequences and that had to be taken into account when assessing her evidence. Although one must have sympathy for the first defender, one must also remember the family (the pursuers) who have had to endure not only losing a loved one but also having him blamed for the accident. There is a plea of sole fault at page 18 of the Record.

9. The physical evidence in the form of the tyre marks recorded by the police demonstrated that the Renault was still moving to the left when it was steered to the right, which showed that the two incursions were all part of one manoeuvre. See No 7/6 of process, photos 62-66 and 71, and the evidence of PC Cargill and Barry Seward. Following the tyre marks back shows that the car had barely got back into its carriageway before it steered to the right again. Although a rather half-hearted attempt was made to challenge the evidence of Mr Seward, it was on all fours with PC Cargill, who was not challenged. Furthermore, his evidence was entirely consistent with the subsequent evidence of Mr McGillivray. This evidence alone was entirely destructive of the first defender's account, since if the deceased did grab the wheel, he must have decided to do so when the car was in the wrong lane and in danger of colliding head on with oncoming vehicles.

10. The CCTV footage demonstrated that there was not sufficient time for this to occur in two separate stages. The whole event occurred in no more than about 2-3 seconds, which means that there was not time to recover control of the vehicle, even for a few seconds. This is consistent with Mr Roy's impression that it was all part of one movement. Even the first defender accepted that if she did regain control it was only for a very short period of time (although she claimed to be unable to assess time and distance because of her dyslexia). The unchallenged evidence of Mr McGillivray (No 6/18 of process at page 4) was to the effect that the defender only just avoided a collision with him and would have collided with the car in front of him if it had not pulled into the verge. The accident occurred very close behind him.

11. The first defender's account of the pain that caused the initial incursion has varied through time. She told her stepfather that the pain was in her right side (No 6/16 of process at page 4). More recently she maintained it was in her left side. She told Dr Smith that she had never suffered such a pain, before or since the accident (No 6/22 of process at page 3). She also accepted in cross examination that she had never had such a pain before or since. Dr Smith simply describes it as a "non-specific pain of unknown aetiology" (No 6/22 of process at page 3).

12. The first defender said that she was told by her gynaecologist that such a pain could be related to her pregnancy. However, the agreed evidence of Mr Smith was that this pain was unlikely to be related to pregnancy given that she was only 17 weeks pregnant at the time of the accident (No 6/21 of process at page 6 and No 6/22 at page 3). The gynaecologist had not been led, so the first defender's evidence on this point was directly contradicted by the only expert evidence before the court. Like most of her evidence, it was not supported by any independent witness. It was positively undermined by it.

13. The first defender cannot explain how a pain in her left side would cause her to swerve to the right. That was illogical. Indeed, the defender cannot even explain why pain in the side would cause her to move the steering wheel at all. Even if you move your whole body, that would not move your hands on the steering wheel.

14. The first defender's account of how the pain caused her to lose control has varied. Even her evidence in court was at complete variance with her position on Record, in that she now claimed that she did not take her left hand off the steering wheel, even though she gave a full and detailed account of this in her written statement to the police (No 6/19 of process at pages 6-7). That, submitted Mr Milligan, was a major inconsistency.

15. The first defender said that she only encroached very slightly onto the opposite carriageway in the first incursion, but that was contradicted by the unchallenged evidence of MacGillivray (No 6/18 of process at page 4:"I think the van was fully onto southbound lane") and Roy, and also by the fact that she was there long enough to cause another vehicle to sound its horn. The car was travelling at 24.398 m/s (55mph) (see pages 21-22 of No 6/2 of process). ...

16. The first defender stated to the police that the deceased woke from his sleep to grab the steering wheel AFTER the initial incursion (see No 6/20 of process at page 3). As noted above, there simply wasn't time for this to happen. Furthermore, that was contradicted by her first statement (No 6/19 of process at page 5) where she stated that the deceased spoke to her at the traffic cones, which were shortly before the accident site. During her evidence in court she changed her position to say that the deceased was asleep throughout, even when he grabbed the wheel. Not only was that incredible, it was contradicted by the unchallenged evidence of her mother, DM, that the first defender had told her that the deceased "woke with a start" before grabbing the wheel. That was a serious inconsistency, submitted Mr Milligan.

17. In any event, the first defender's account of what the deceased had done was (1) inherently unlikely and (2) inconsistent. Firstly, if the deceased was going to grab the steering wheel, he would have grabbed the top, rather than reaching through the first defender's arms to get to the bottom of the wheel (or side of the wheel below her hands). Secondly, the first defender varied between saying that the deceased pushed the wheel and pulled the wheel. See No 6/20 of process at page 3. Only by pulling on the bottom of the wheel would he have caused the vehicle to swerve to the right.

18. In the day or so after the accident, the first defender told her mother and step-father that the deceased had grabbed the wheel to AVERT the accident (see No 6/16 of process at page 4 and 6/17 at page 6). That was inherently far more likely and realistic. She told visitors to her in hospital that the deceased had steered the vehicle so that he would take the brunt of the collision (which would only have been necessary if she was already out of control and likely to collide) - see No 7/9 of process at pages 1 and 2.

19. The first defender had changed her story again because even in June of 2013 she was worried that she would be charged with murder; because she thought that if she admitted it was her fault then her insurance would not cover the costs; and because she thought that she could lose her house if she lost the case (although she initially denied this, she then admitted it and became so flustered that the court rose early for lunch). The Facebook page at No 7/9 of process referred to the deceased "directing the point of impact towards himself".

20. It was worth noting that the only part of the first defender's evidence when she really became flustered ("frazzled") was not when talking about the accident, but when cross-examined on issues that she was not expecting, such as what she had been telling people earlier in 2013. For the rest of the time she relied on excuses such as medication and her dyslexia.

21. In explaining away the many discrepancies between her accounts since the accident, the first defender had relied on her medication as preventing her from making accurate statements. She also maintained that there was a big difference in her recollection between the two statements she made to the police. However, this was contradicted by PC (now Sergeant) Miller, who noted that (1) he would not have taken the first statement without the approval of the doctors; (2) the first defender volunteered to make the first statement; (3) the first statement was unusually long and detailed and recounted in a surprisingly composed manner and there was nothing in her demeanour to suggest she was struggling to provide an accurate account; (4) the first statement was made as a "free-form" statement and not in response to questions; and (5) there was no obvious difference in her demeanour when making the second statement as opposed to the first.

22. When explaining how she suddenly remembered what had "really happened", the first defender gave very vivid evidence that she was sitting with her mother and step-father and was sick whilst eating ice cream. However, the mother's evidence was simply that she had arrived at hospital one day to find her daughter in a bit of a state and knew that there was something wrong.

23. If the first defender really held the deceased to blame for the accident, and for the death of her first child, why would she have named her new baby after him? ... .

24. Mr Milligan submitted that for all of the foregoing reasons, the first defender should not be accepted as a credible and reliable witness. On the contrary, the first defender was an incredible and unreliable witness telling an incredible story. Her account should be rejected. It was not necessary for the court then to consider how the accident did happen, because the defender would have failed to discharge the onus on her to rebut the presumption of negligence. However, a far more likely explanation - suggested by Roy, Cargill and Seward and supported by the physical evidence - was that the first defender swerved to the left and then overcorrected to the right, having initially drifted onto the wrong side of the road.

Decision

[25] Clearly, this is a tragic case for all concerned. There was some suggestion that I should simply indicate my decision immediately at the conclusion of the proof, but I wished an opportunity to consider the submission of parties in more detail given their importance.

[26] As outlined above, I have given anxious consideration to the evidence and to everything said by Mr Smith on behalf of the defenders and by Mr Milligan on behalf of the pursuers. As agreed, I have also viewed the DVD No 7/10 of process again.

[27] Having done so, I propose to state my decision in short terms.

[28] I have reached the conclusion that the pursuers are entitled to reparation from the defenders. On the evidence, the defenders have failed to provide an acceptable non-negligent account of how the accident occurred. I was not satisfied by the first defender's explanation. It follows that the agreed presumption of negligence applies.

[28] In short, I find that the pursuers' submissions prevail essentially for the reasons outlined by Mr Milligan.

[29] Accordingly, in the whole circumstances, I shall grant decree in favour of the pursuers in the agreed sums in terms of paragraph 1 of the joint minute.

[30] I shall reserve the question of expenses meantime.