Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 157

PD2346/13

OPINION OF LADY STACEY

In the cause

ADAM RUSSELL

Pursuer;

against

THE NATIONAL FARMERS’ UNION MUTUAL INSURANCE SOCIETY LIMITED

Defenders:

Pursuer:  Love;  Thompsons

Defender:  Thompson, Solicitor Advocate;  bto

30 October 2014

[1]        This is an action for damages following a road traffic accident.  The pursuer was riding his motorcycle when he was involved in a collision with a vehicle and trailer driven by Mr Brian Swinton, who was insured by the defenders.  Mr Love appeared for the pursuer and Ms Thompson, solicitor advocate, for the defenders.  The pursuer was injured in the accident and parties have agreed that the proper amount of damages, on full liability, is £66,000 inclusive of interest to 15 March 2014.  They have agreed the basis on which interest accrues after that date. 

[2]        The issue in this case is why did the collision happen?  Did Mr Swinton fail in a duty to take reasonable care for the safety of road users, in particular the pursuer?  If so, did that failure cause or materially contribute to the collision?  If it was caused by Mr Swinton’s failure in duty, did the pursuer fail in his duty to take reasonable care for his own safety?  If so to what extent did that failure contribute to the collision? 

[3]        The collision happened on 21 September 2012 at about 3.45pm.  Therefore it was daylight.  The weather was good.  The road on which it happened was the A72 Innerleithen to Peebles, which has one lane in either direction.  At the site of the collision the road runs broadly east to west.  The pursuer was heading west towards Peebles.  The speed limit is 60 miles per hour.  The pursuer was riding his motorcycle along a straight section of the A72 known as the “Horsburgh Straight”, then had driven round a sweeping bend to the left.  There were two junctions on the north side of the A72; the first led to the Glentress Hotel and the second to the Glentress Mountain Bike Centre.

[4]        Mr Swinton was driving a vehicle with a trailer attached.  He had been carrying out work on fences in a field on the south side of the A72.  He was with a colleague, Rory Wood, who left about seven or eight minutes before him, driving a tractor.  There was one other person, whom Mr Swinton did not know, working separately from him in the field.  Mr Swinton had worked once before in the field, about six months prior to the accident.  The exit which he used from the field was reached by a ramp, composed of hardstanding which sloped upwards to the road;  there was a gate, and there was an unbroken white line at the edge of the road.  There were no signs warning those on the road that there was an exit from the field.

[5]        Evidence was led from the pursuer, Mr Swinton, Mr Wood (by affidavit), PC Shona Furness, PC Neil Wilson, and Mr Richard Walcome.  Neither of the police officers were eye witnesses.  PC Furness was first on the scene, along with another officer, after police and ambulance were called.  She was an experienced police officer but had no experience of accident reconstruction.  PC Wilson did not attend on the day but was involved in the case later.  He did have experience of accident reconstruction.  Mr Walcome was an eye witness, as he was in his car and had a good view of the collision as it happened.  There were no expert witnesses into accident reconstruction.  Nor were there any maps or diagrams giving distances.

[6]        There were photographs which showed the locus and evidence was taken with the aid of photographs and a video recording of the location of the accident.  Parties were agreed that the photographs at 6/21 of process were taken on 24 September 2012 and those at 6/32 of process were taken on 17 September 2013.  The layout of the road at the accident was described by all of the witnesses and I found it to be as follows.  The A72 heading west towards Peebles takes a long sweeping left hand bend before reaching a junction on the right for the Glentress Mountain Bike Centre.  At the date of the collision there was also an entrance to the right, before that of the Glentress Mountain Bike Centre to the Glentress Hotel.  Both junctions have right turning lanes in the centre of the carriageway, marked by hatched white lines on red tarmac.  The spaces between the lines widen and as the junction is approached, the markings denote a right turning lane in the centre of the carriageway.  Between the entrance to the hotel and the entrance to the mountain bike centre is a bus stop in a layby.  As one proceeds westwards, as did the pursuer in this case, past the entrance to the Glentress Mountain Bike Centre, there are red hatched markings on the road which narrow as one goes west.  The entrance to the field is on the left hand side, that in the south side of the road.  The distance measured from half way along the bus stop layby to the gate into the field is 120 metres.  At the date of the accident there were trees running broadly north to south opposite the entrance to the mountain bike centre and there were bushes running broadly east to west, west of the trees.  The left hand bend is approximately 85 metres east of the junction with the unclassified road into Glentress Forest. 

[7]        The pursuer, age 25 and therefore 23 at the date of the collision, had been working in Innerleithen and having finished was heading towards the gym in Peebles.  He was not rushing for any reason.  He was dressed in full motorcycle leathers, red, white and black in colour and was wearing boots and a helmet.  He had the headlight of his motorbike switched on.  He was familiar with the area having lived there all of his life.  He travelled on the A72 frequently, perhaps twice per day.  He had had a licence for two and half years and also a driving licence.  He had been the holder of a driving licence for a car since he was 17 and a motorbike licence since he was 21.  At the date of the proof, he had 10 points on his licence and all related to speeding in his car.  He stated that he came onto the bend and positioned himself closest to the broken lines in the middle of the road giving himself a better sightline and a better angle for taking the bend.

[8]        He came round the bend at 60 miles per hour.  He noted a car approaching the junction to his right, from Glentress Mountain Bike Centre, which turned out to be driven by Mr Walcome.  He noted the car and formed the view the driver intended to turn right, that is to go to Peebles, the same direction as the pursuer was going.  He kept an eye on the car as well as on the road ahead.  He realised that the car was stopping at the junction.  As he came round the bend he moved slightly from the centre of the road towards his left hand side as the road was becoming straight.  He saw the vehicle driven by Mr Swinton ahead of him noting when he first saw it that the front bumper was just across the white line at the side of the road.  He saw that the vehicle was pulling out and he started to brake with his front and back brake.  He also slowed down by going down through his gears.  He was aware that there was a possibility of his losing control if he braked too heavily.  He maintained that the vehicle and its trailer stopped blocking both carriageways.  He did not think that he could stop his motorcycle safely although he was slowing down.  When he realised that the vehicle and trailer were stationary he decided he would have to go round the back of it, that is go to his left.  If the vehicle and the trailer moved forward then it would obviously be easier for him to go behind it.  They did not do so.  He did not succeed in clearing the back of the trailer and collided with the rear end of it.  That caused him to come off of his motorbike and having been catapulted into the air, to land on the roadway.

[9]        The pursuer did not accept that he was driving too fast and stated that he had taken the best action he could to avoid the vehicle and its trailer but could not do so because it came out into his path.  He estimated his speed at 60 miles per hour at its fastest and that he slowed down both by braking and using the gears.  He denied seeing any tractor as he approached the area of the collision and when it was explained to him that Mr Wood’s affidavit was to the effect that Mr Wood passed him, driving the tractor, and noted that he was travelling very fast, the pursuer’s answer was that he did not travel very fast and that he did not see any tractor.  He therefore questioned whether Mr Wood had seen him.

[10]      When he came off his bike the pursuer was able to get to his feet and he walked back to the entrance to the field.  There were, he thought, two or three men there who spoke to him.  There was blood at his hand and the men told him to sit down and hold his hand up.  He was in shock.  They called for an ambulance and for the police.  The pursuer said that he spoke to the police but he did not say that they were to tell the other driver not to worry because it was the pursuer’s fault.  The pursuer accepted, with his local knowledge, that there were sometimes slow moving vehicles on that road and he claimed that he was alert to the dangers caused by that.  He did not know that there was an entrance to the field.

[11]      I did not accept that the vehicle and trailer had actually stopped.  It seemed to me that the pursuer might well think that it had done so as he approached it but I am not persuaded that he was correct about that.  I found it difficult to decide if he had told PC Furness that she should tell the other driver not to worry, as it was not his fault.  I could see no reason why PC Furness would either invent that or be mistaken about it and on balance I think it more likely that the pursuer did say something to that effect.  I accept from the pursuer that he was somewhat dazed and of course I appreciate that he had suffered a shocking incident in which he had come off his bike, and while he did suffer injury, was no doubt concerned that he could have suffered much worse injury.  I therefore find that he did say something to the effect that PC Furness should tell the other driver not to worry, because it was his [the pursuer’s] fault.  I do not put much weight on that.  It was said immediately after a distressing collision.  The pursuer had hoped to steer round the trailer and had not succeeded in doing so.  I do not find his remark to be of any assistance in deciding the question before me.

[12]      The evidence of PC Furness was that she spoke to the pursuer and that he told her to tell the other driver not to worry because it was his fault.  She did not take a statement from the pursuer as he was plainly injured and her first concern was to get medical help for him.  She did however take a statement from him one month later and that time he told her that he had not said that she should tell the other driver not to worry.  When she was asked in court to explain why he would say that, PC Furness stated that she thought that he had taken advice in between times.  PC Furness said that there were two men in the field to whom she spoke but they did not see anything.  She was aware that Mr Walcome was a witness to the accident.  She understood that he thought that the pursuer had been travelling very fast.  She visited the locus later to measure the road layout, because the accident had to be classified as serious because of the injuries sustained by the pursuer.  PC Furness thought that Mr Swinton would be able to see 120 metres from his vehicle when he was exiting from the junction.  That would be into the midpoint of the layby for the bus stop.  She agreed on looking at the photographs that there were some bushes which would be nearer to the gate than 120 metres and therefore in the line of vision.  PC Furness’ own opinion was that the motorcyclist must have been travelling too fast as she thought that there would be sufficient time for him to stop when he saw the vehicle with the trailer.  Whilst she did not profess any expertise on road traffic reconstruction, she did give evidence about the Highway Code which states that the stopping distance, to include thinking and braking time at 60 miles per hour is 73 metres.  She knew that the reaction time used in the Highway Code is 0.67 seconds.  PC Furness frankly agreed with counsel that she did not know how the Highway Code authors calculated their figures. 

[13]      The solicitor advocate relied on PC Furness’ evidence.  She submitted that the reaction time of 0.67 seconds, used by the authors of the Highway Code, was relevant.  She argued that PC Furness, as an experienced police officer, formed the opinion that the pursuer must have been speeding.  I did not find PC Furness’ evidence to be compelling.  PC Wilson had experience of road traffic accident reconstruction and I preferred his evidence wherever there were differences between them. 

[14]      PC Neil Wilson had both experience and qualifications in road traffic reconstruction, having carried out the standard collision investigation course for police officers.  He carried out reconstructions at one stage in his career and while there had been a break due to police reorganisation he was currently involved in such matters.  He was not a motorcyclist.  He knew however that depending on the speed and position of a motorbike it was not ideal to brake in mid-corner and it was preferable to take speed off before going into a bend.  He went to the locus, along with PC Furness, within about four weeks of the accident.  He wished to consider whether or not there should be any report for criminal proceedings as a result of the collision.  He travelled the motorcycle route in his car to try to ascertain the first point of perception of the vehicle, by which he meant the place where the motorcyclist could possibly see the hazard which he would have to react to.  He said that the first point at which he could possibly have seen the vehicle would be 165 metres away.  He stated that he did not regard that as the place at which a normally observant motorcyclist would necessarily see the vehicle; he accepted that on his investigation, he was looking out for it.  He thought that at about 120 metres from the field entrance one could see the entrance and that was a more realistic distance at which to expect the driver of the car, and the motorcyclist, to see each other.  In applying his mind to whether or not he would report the matter to the procurator fiscal for criminal proceedings he took the view that he would give some distance for the motorcyclist to get onto the straight road and that the position at which he would expect the normally observant motorcyclist to start to react was about 85 metres from the entrance to the field.  He described the long sweeping left hand bend as one that could be taken at or near to 60 miles per hour.  He gave the following calculations as:  at 50 miles per hour one travels 22.3 metres per second, at 60 miles per hour 26.82 metres per second and at 70 miles per hour 31.29 metres.  He described “reaction time” as the time between someone perceiving the need to take action and physically taking that action.  According to PC Wilson the figures in the Highway Code are based on a reaction time of 0.67 seconds.  In his experience and training that is not the reaction time that is to be found in the average careful driver or motorcyclist.  He thought it more reasonable that the time was somewhere between one and two seconds.  He said that reaction time was dependent on age and that at 22 years of age one and a half seconds might be reasonable.  He accepted that the normal careful motorcyclist would pay attention to the entrance on his right and note the vehicle driven by Mr Walcome.  He would also look ahead and would see the vehicle driven by Mr Swinton.  He did not report the occurrence of this collision for criminal proceedings.  He decided if the pursuer saw Mr Swinton when 85 metres away then he was “very tight” for stopping. 

[15]      PC Wilson also considered the normal careful driver coming out of the field.  He carried out the manoeuvre himself.  He said that coming out of the field pulling a trailer was obviously an operation that could be hazardous and one would want to check that the way was clear and then get the vehicle and the trailer across the road as soon as possible.  He thought that a person driving a trailer out of that field ought to be able to see a motorcyclist at 120 metres away to his right.  He was asked what precautions he would take coming out of the field and said that for example a warning triangle placed on the road was a counsel of perfection and unrealistic for a normal driver.  He thought that it might be helpful to have a person acting as banksman but would not expect the normal person to do it.  He would wish to use all of his senses and therefore suggested that he would open his window and switch off his engine so that he could hear any traffic which was coming.  He accepted that the driver of the vehicle and trailer could turn left and go further along the road to come to a safe place to turn but would not expect anyone to do it.  He drove out and turned to the right; he estimated that would take between four and five seconds to get fully across the road and out of the westbound carriageway.  He accepted that Mr Swinton’s vehicle was higher than the police car and therefore Mr Swinton would have a rather better view than he would have had.

[16]      I found PC Wilson’s evidence helpful.  He was prepared to concede that while using a banksman would be safer than not doing so, he would not expect a normal careful driver to do so.  He did however emphasise that driving a vehicle and trailer from the field onto a road, turning right, was a potentially hazardous manoeuvre that needed thought and care.

[17]      Mr Swinton was a fencer, born 16 July 1969.  He had had a full licence since he was 18 and had no convictions.  It was a clear day with good visibility and he was in no rush.  He was going back to his yard.  He required to come out of the field and turn right.  He did not know how long his trailer was and at first estimated the total length of the vehicle plus the trailer at about 24 feet.  When it was suggested to him that it had been measured for the purposes of the court case and was over 30 feet he was prepared to agree with that.  He said that he did not see it as a particularly difficult manoeuvre and he had no concerns.  He looked right, looked left and looked right again to see if it was clear.  He thought he could see for 100 or 200 yards.  He said that some cars passed on the main road and he waited three or four minutes until the road was clear.  He then proceeded into the carriageway.  If he had seen the motorcyclist coming then he would not have come out.  He did not see Mr Walcome sitting at the junction which was on the other side of the road and off to his right.  He did not consider switching his engine off and did not know whether his window was open or not.  He pulled out, going from zero to about 15 miles per hour.  He said that he was on the other side of the road when he heard the noise of a bike going down through the gears.  He then heard a thud and realised it had hit his trailer.  He did not see the motorbike at all.  He did not stop his vehicle until just after the collision occurred.  He estimated his time from coming out of the field to the collision as three, four, five or six seconds.  He got out of his vehicle to make sure that the cyclist was all right.  He was in shock but he spoke to the cyclist and the cyclist said it was not his fault, that is it was not Mr Swinton’s fault.  Someone else called for an ambulance.  His own vehicle was moved off the road into the junction going to Glentress.  He accepted that his view to the right was a little restricted but felt that he could see clearly.  He denied saying at the time that he had just not seen the cyclist but he agreed that in fact he did not see him.  He did not think of asking Mr Wood to guide him out but in any event would not think that helpful because the tractor would move more slowly than he would.

[18]      Mr Swinton was a nervous witness.  I thought that he was truthful and doing his best to assist the court.  He was an experienced driver and often towed a trailer.  I came to the view that he did not fully appreciate how hazardous it was to drive out of the field to turn right.  I found that, while his driving record would indicate he was usually careful, he did not pay sufficient attention that day.  From the photographs, at 6/21, I decided that Mr Swinton should have been able to see both Mr Walcome’s car and the pursuer when he looked to his right before coming out.  He saw neither.

[19]      Mr Walcome was a neutral witness who had been at the Glentress Mountain Bike Centre.  He got to the junction and had stopped his car as he saw the motorcyclist, off to his left.  The motorbike was coming towards him downhill and the impression Mr Walcome had was that the cyclist was in control of his motorbike.  He thought that he was travelling fast.  The motorbike went past him.  Mr Walcome checked both ways then turned right to go towards Peebles.  There was no oncoming traffic from his right hand side.  He then travelled along the road behind the bike.  He thought that had the vehicle and the trailer pulled out before he turned right he would have seen it.  Looking at the photographs, he did not think that there would be any obstruction to his view.  After he did turn right and was behind the motorbike he then saw the vehicle and trailer directly in front of the cyclist, coming out of the field.  When Mr Walcome first saw it, it was on both sides of the road.  He saw the brake light of the bike coming on and he saw the bike attempting to manoeuver round the back end of the trailer going to the left of his lane.  He was not able to avoid a collision and Mr Walcome saw the bike and the rider somersault.  At that stage the vehicle was on the eastbound carriageway and the trailer on the westbound carriageway.  There was hardly any room for the motorcyclist to go behind the trailer as the trailer was close to the verge.  Mr Walcome could not remember when he saw the vehicle and trailer if it was moving or stationary. 

[20]      When the accident happened Mr Walcome put on his vehicle hazard lights, stopped his car and walked to the site of the accident.  He met the driver of the vehicle going round to the end of the trailer.  He found the cyclist, on his feet, holding his arm.  He said that the cyclist seemed shaken to say the least.  The car driver said that he had never seen the cyclist.  I accepted Mr Walcome’s evidence rather than Mr Swinton’s evidence in that matter.  Mr Swinton was understandably shocked by having been in a collision.  Mr Walcome was an observer, and I found him to be a careful and reliable witness.  Mr Walcome sat at the gate with the pursuer and another man came from the field and spoke to them.  Mr Walcome thought that the speed of the cyclist when he first saw him was probably over the limit of 60 miles per hour.  He thought that there would be less than ten seconds between his first seeing the vehicle and the trailer and the collision happening.  He felt that the motorcyclist had no other options but to slow down as he did, and to attempt to swerve round the back of the trailer. 

[21]      I have come to the view that the accident happened because Mr Swinton pulled out onto the main road once the pursuer had come round the corner and should have been visible to Mr Swinton, had he taken due care.  I am not persuaded that the motorcyclist was exceeding the speed limit and thereby caused the accident.  Rather I am of the opinion that the accident was caused by Mr Swinton coming out from the field and, as he had a trailer, blocking the path of the motorcyclist.  I do not regard the pursuer as having said that it was not the other driver’s fault as matter of importance.  I do however regard it as important that the driver of the vehicle, Mr Swinton said at the time of the accident, and in evidence, that he did not see the motorcyclist and nor did he see Mr Walcome.  I find that Mr Walcome’s car was at the junction when the car driven by Mr Swinton was waiting to come out of the field.  If Mr Swinton had looked he would have seen both Mr Walcome and the motorcyclist.  When Mr Walcome stopped his car Mr Swinton’s trailer was blocking the westbound carriageway.  It is therefore clear that he did not get his vehicle off the road before the cyclist got there.  Mr Swinton did not take sufficient care in the driving of his vehicle and trailer.  Even if he did not see the pursuer before pulling out, he should have seen him before the collision.  He should have moved further into his right turn manoeuvre to clear the westbound lane and enable the pursuer to avoid him.

[22]      On the matter of contributory negligence, I am not persuaded that there is evidence to show that the pursuer was guilty of contributory negligence.  Counsel for the pursuer referred me to the well-known dicta of Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663 to the effect that while there may be several reasons for an accident happening, one must decide what was the cause, and what actions were in breach of duty.  Thus even if it could be said that had the cyclist been travelling at a lesser speed, he would have been able to stop, that was insufficient for a finding of contributory negligence.  If I was not with him on that, counsel submitted that the level of contributory negligence, if any, was no more than 20%.  He made reference to the case of Hamied v Eastwick 1994, an unreported decision of Bingham MR, Hobhouse LJ and Morritt LJ referred to in Bingham and Berryman’s Personal Injury and Motor Claims Cases in which the claimant was travelling on the main road and the defendant was attempting to turn right from a minor road.  The claimant was travelling between 35 and 40 miles per hour on a speed limit of 30 miles per hour.  The court on appeal upheld the judge at first instance who found that the prudent driver must bear in mind the real possibility that someone may emerge from a side road and that by driving faster than he should he had contributed to the accident to the extent of 20%.  

[23]      The solicitor advocate for the defender submitted that the accident had been caused entirely by the excessive speed of the pursuer.  I do not accept that contention.  I did not put any weight on the affidavit evidence of Mr Wood to the effect that he saw the motorbike going very fast.  That might have had some relevance if it was immediately before the bend but it cannot have been, on the evidence given by Mr Swinton.  He said that Mr Wood left seven or eight minutes before him and that he sat for three of four minutes at the roadside.  Taking his evidence as accurate then he was at least ten minutes behind Mr Wood.  I suspect that the time estimates given by Mr Swinton are not accurate but I am not able to decide from that evidence that the opinion of Mr Wood that the motorcyclist was travelling fast is something I should give any weight to.  The solicitor advocate submitted that the motorcyclist ought to have been travelling at a speed that enabled him to come to a standstill when he saw the trailer ahead.  She relied on the Highway Code, arguing that one should drive at a speed which enabled one to stop if an obstruction arose.  I do not accept that contention as it appeared to me that the trailer came out into his path. 

[24]      In regard to contributory negligence, the solicitor advocate made reference to various decided cases.  Heaton v Hurzog [2008] EWCA Civ 1636; Ringe v Eden Springs (UK) Ltd [2012] EWCH 14 (QB); Train v Secretary of State for Defence [2014] EWCH 1928 (QB); Farely v Buckley [2007] EWCA Civ 403.  I did not find any of the cases particularly helpful as the principles which have to be applied are well known and each of the cases was illustrative of the particular facts of the case. 

[25]      I find the defenders liable to the pursuer, for their insured driver’s breach of care.

[26]      I did not hear parties on the question of expenses.