Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 96

A352/15

OPINION OF LORD TURNBULL

In the cause

CHRISTINA VIBERT

Pursuer;

against

ZENITH INSURANCE & ANOTHER

Defenders:

Pursuer:  No appearance

Defenders:  Maguire QC;  BLM, Solicitors

Third party:  Hanretty QC;  BTO, Solicitors

7 July 2016

Introduction
[1]        This action concerns very serious and debilitating injuries sustained by the 26 year old pursuer in a road traffic accident in Edinburgh at around 1:30 pm on 6 January 2013.  The pursuer was the front seat passenger in a motor car being driven by her partner who was killed in the collision (“the deceased”).  The defenders were the insurers of the deceased’s motor vehicle.  The third party is Mr Anthony Cennerazzo who was convened by notice served at the instance of the defenders. 

[2]        The case was originally brought under Chapter 43 of the Rules of Court but was subsequently appointed to proceed as an ordinary action.  Although a Closed Record was lodged there were no pleas-in-law, presumably in light of the original Chapter 43 procedure.  The case called before me on the third party’s motion for dismissal based upon the submission that the averments against him were irrelevant and lacking in specification. 

The circumstances of the collision
[3]        The circumstances of the collision leading to the pursuer’s injuries are set out in condescendence 4 in the Closed Record.  It is averred that the deceased was driving along the B701 road approaching the junction with the Clovenstone roundabout.  The roadway at that point is a dual carriageway with a 40 mph speed limit.  The deceased was driving in the outside lane at what is said to have been an excessive speed.  He failed to give way on approaching the roundabout and proceeded through the junction colliding with a heavy goods vehicle. 

[4]        In answer 4 for the defenders, averments concerning the conduct of the third party are introduced.  It is averred that he was the driver of a vehicle travelling in the inside lane which passed the deceased’s vehicle on the left, a manoeuvre referred to as “undertaking”.  It is averred that the third party was travelling at an excessive speed and that on the approach to the roundabout the deceased and the third party started racing each other. 

[5]        In answer 4 for the third party the defenders’ averments in so far as summarised above are denied.  On his behalf it is averred that he was driving home having been playing football with friends in Dunfermline and had taken his elderly father-in-law with him as a treat.  It is averred that on his approach to Clovenstone roundabout the third party accelerated briefly to provide a thrill for his father-in-law and did so at a point when the carriageway in front of his vehicle was wholly clear.  He avers that on his approach to the roundabout he slowed his own vehicle and brought it to a halt, being aware of traffic on the roundabout and, in particular, the heavy goods vehicle which the deceased drove his vehicle into.  On behalf of the third party the defenders were called upon to specify what was meant by the term “racing”, where the racing referred to started and to specify the manner of driving referred to.  The defenders answered this call by averring that the term “racing” meant a competition between vehicles to see which is the fastest which can arise spontaneously. 

[6]        In light of the averments as to fact the defenders focused their ground of fault against the third party in the following averments taken from answer 4: 

            “On the approach to the roundabout, the deceased and the Third Party started racing each other. The probable cause of this being the undertaking manoeuvre of the Third Party alone or together with the admitted acceleration of the Third Party’s vehicle as it approached the roundabout. In any event, the Third Party’s manner of driving created a risk of injury to others, such as the Pursuer who was a passenger in the deceased’s vehicle. The Third party admitted to the police officers       investigating the incident that he had “undertaken” the deceased’s vehicle. Such a manoeuvre is likely to have been a significant distraction to the deceased as was his racing the deceased’s vehicle thus resulting in the deceased misjudging the proximity of the Roundabout. His sudden burst of unnecessary acceleration to provide a “thrill” was reckless and likely to have been a significant distraction to drivers of other vehicles, such as the deceased, either alone or together with the undertaking manoeuvre. Accordingly the Third Party’s manner of driving caused or contributed to the deceased’s vehicle colliding with the HGV.” 

Submissions for the third party
[7]        On behalf of the third party, Mr Hanretty submitted that the defenders’ averments as directed towards him were irrelevant and lacking in specification.  There were no adequate averments advanced by the defenders which might set out the duties said to have been incumbent upon the third party and owed to the pursuer.  He pointed out that all that was said was that on the approach to the roundabout the two drivers began racing each other.  He observed that it was impossible to know over what distance this was said to have occurred.  He submitted that he was entitled to know at what point in the journey it was said that any racing occurred.  He observed that the only averments made about racing concerned the manoeuvre of undertaking.  He submitted that this could not be treated as an invitation to engage in a race as it was an everyday feature of the way in which motor vehicles approached a roundabout on a dual carriageway.  No contact was averred between the two vehicles and there was nothing inherently obvious arising out of the manner of driving specified which caused any danger to anyone else.  He observed that the only two acts relied upon by the defenders were, first, the act of undertaking and, secondly, the acceleration to provide a thrill.  He submitted that these facts if established and taken together would not entitle a decision maker to arrive at the conclusion that the drivers became engaged in a race. 

[8]        Separately, Mr Hanretty submitted that there were no adequate averments setting up a causal connection between the third party’s driving and that of the deceased.  There was no suggestion that the manner in which the third party drove his vehicle caused the deceased to manoeuvre his vehicle in response to a risk of collision or danger created by the position of the third party’s vehicles on the road or the like.  Furthermore, he submitted that the concept of racing did not carry with it a recognised juridical basis for joint liability for the consequences of an accident.  He relied on the decision of the Inner House in Davis v Catto [2011] CSIH 85 and submitted that if the defenders’ position as presently pled represented a relevant or specific case, then the decision of the Inner House would have been bound to have been different. 

Submissions for the defenders
[9]        Ms Maguire for the defenders began by submitting that the third party’s argument could only be upheld if the court was satisfied that the case against the third party was bound to fail, even if the defenders’ averments were proved, or to put it another way, that there was nothing of relevance to be decided in a proof.  She relied on Jamieson v Jamieson 1952 SC (HL) 44 and what was said by Lord Rodger of Earlsferry in the case of Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85.  In the present case there were issues of dispute to be resolved.  She drew attention to the dispute in the pleadings concerning the undertaking manoeuvre. 

[10]      Ms Maguire also drew attention to the third party’s response to the defenders’ averment that he was driving at excessive speed for the road and traffic conditions.  She submitted that his response was to explain that he accelerated his vehicle on the approach to the roundabout in order to provide a thrill to his passenger.  She submitted that this was a description of a reckless act, taking place as it did on the approach to the roundabout.  She submitted that the averment of racing was made on the basis of witness evidence that this is what the vehicles appeared to be doing.  She submitted that the defenders’ averments made it clear that their case was that the racing began at the point of the undertaking manoeuvre and that the racing was probably instigated by the manoeuvre of the third party constituting tacit invitation.  She referred to the case of Khanna v Somra [2002] EWHC 555 in support of her submission that the third party had a duty not to drive in such a way as to encourage other drivers to drive in a manner exposing others to the risk of injury. 

[11]      Ms Maguire submitted that the question of whether a finding as to racing would lead to joint liability was dependent upon the facts of an individual case.  The facts in the case of Davis v Catto were distinguishable from the present case but in any event nothing which was said by the Inner House would necessarily prevent the defenders from establishing joint liability against the third party if racing was established.

[12]      However, Ms Maguire made it plain that the defenders case against the third party was not restricted to a claim that he was racing with the deceased.  She drew attention to the passages at page 7D of the Closed Record as quoted in paragraph [6] above.  She submitted that if it was possible for the court to draw an inference from the actions of the third party as admitted, or as capable of being proved, that the manner in which he drove distracted the deceased as he was approaching the roundabout, then the third party could not succeed in having the case dismissed without further enquiry into the facts.  She submitted that distraction could form the basis of a contribution even in the absence of any direct contact with the injured party or the vehicle in which she was travelling and relied upon the case of Hames v Furguson [2008] EWCA Civ 1268. 

Discussion
[13]      On the issues of fair notice and adequate specification, my view is that the criticisms advanced by Mr Hanretty were unfounded. It is obvious what the defenders mean to establish by the term “racing”.  As they aver at the top of page 9 of the Closed Record, they mean to establish that the two drivers were engaged in a competition to see which was the fastest over a portion of the roadway.  The defenders’ averment at page 7 letter D is that on the approach to the roundabout the deceased and the third party started racing each other.  Ms Maguire made it plain that the defenders’ contention is that the race commenced at the point of the undertaking manoeuvre and continued on towards the junction.  In the third party’s pleadings it is denied that any undertaking manoeuvre occurred.  In these circumstances it does not seem to me that any further specification of where on the roadway, or how far away from the junction the manoeuvre occurred requires to be given.  I cannot see that the defenders require to provide further specification of an act which the third party says did not occur. 

[14]      Davis v Catto does not establish that a finding of shared liability against the third party is impossible despite a conclusion that the drivers were engaged in a race.  In that case the first instance judge hearing the case declined to draw the inference that the drivers were actively engaged in racing or that they tacitly invited competition.  In giving the opinion of the Inner House, at paragraph [22], Lord Eassie said: 

            “We should not be taken in giving judgement in this reclaiming motion as endorsing a general proposition that active or tacit participation in a competition of speed automatically gives rise to joint liability on the part of all of the participants, whether the agreement be tacit or express.”

[15]      That, of course, is not the same as saying that joint liability cannot arise in a case involving racing.  The question will turn on the particular facts established in any given case.  In the case of Khanna the basis of the claim of shared responsibility against the second defendant was that he had been engaged in a race with the first defendant, whose vehicle collided with a bus shelter killing a gentleman who was standing there waiting for a bus.  In holding that the driving of both defendants constituted joint causes of the accident Mr Justice McCombe rejected the suggestion that the two defendants required to be acting pursuant to a joint enterprise.  He pointed out that two negligent drivers could jointly contribute to an accident and be liable for it without the hint of a joint venture between them and gave examples of how this might occur.  In identifying the basis of liability against the second defendant Mr Justice McCombe observed that both vehicles were embarked upon a short period of dangerous driving and that the second defendant accelerated away in circumstances which must have made it apparent that the first defendant was likely to follow.  He held that the second defendant’s conduct constituted a tacit invitation to the first defendant to follow him.  At paragraph 32 of his decision he said the following: 

            “It seems clear to me that the second defendant was under a duty not to expose other highway users to foreseeable risk of injury. A constituent of that same duty was not to drive in such a way as to encourage other drivers to drive in a manner exposing other users to            such a risk. In my view, that duty, expressed in its either wide or narrow sense, was broken.”

[16]      In the present case the defenders offer to prove that both the deceased and the third party were driving at excessive speed. They offer to prove that the third party engaged in an undertaking manoeuvre. They rely on his own admission that the third party deliberately accelerated his vehicle on the approach to the roundabout. They rely on other available evidence to establish the impression formed by other road users. Taking account of all of these features I cannot conclude that there is no possibility of a judge holding that the two drivers were indeed engaged in a race which commenced spontaneously.  Whether or not such a conclusion would lead to an apportionment of liability to the third party would depend upon the precise nature of the findings made by the judge hearing the proof. At this stage I cannot say that the case is bound to fail.

[17]      I also consider it is important to bear in mind that the basis upon which the defenders contend for apportionment is not restricted to their case of racing.  As Ms Maguire made plain, the defenders will ask the court to draw the inference that the effect of the twin manoeuvres of undertaking and acceleration on the approach to the roundabout was to distract the deceased, thus causing him to misjudge the proximity of the roundabout.  She submitted that these inferences would be available legitimately to a judge hearing the proof and the absence of evidence from the deceased would not prevent such inferences being drawn.  

[18]      In support of these submissions Ms Maguire relied on the circumstances which had led to liability being established in the case of Hames.  That case concerned the circumstances in which liability for injury was shared between two friends who were the drivers of two vehicles.  The claimant was a passenger in a vehicle which collided with a tractor.  His injuries were entirely caused by this collision, although the following driver then collided into the rear of the vehicle in which he was a passenger.  There was no direct evidence as to what had caused the original collision and no acceptable evidence about what had caused the second.  Despite this, the Court of Appeal held that the first instance judge was entitled to draw inferences on the basis of his findings of primary fact in relation to the circumstances of the accident.  The first instance judge concluded that both vehicles were being driven too quickly and that the second vehicle was driving too close to the car ahead.  The judge inferred that the explanation for the first driver driving into the stationary tractor and for the second driver colliding with him was that the two young men were concentrating on each other rather than on safe driving.  As the Court of Appeal described it at paragraph 17 of its decision: 

            “Each driver was bound to be distracting the other from his proper task of concentrating on the road ahead.”

[19]      The decisions in the cases of both Khanna and Hames were referred to before the Inner House in the case of Davis v Catto.  Neither was disapproved of and they were described as being decided on their own peculiar facts. 

[20]      In inviting me to give effect to his motion for dismissal of the action as directed against the third party the onus lies on Mr Hanretty to persuade me that even if all of the defenders’ averments were proved the court would not be able to make any finding of negligence against the third party.  The question is not whether the defenders have a persuasive case.  Nor would I be entitled to accede to his motion if I considered that the defenders case was unlikely to succeed.  

[21]      On the averments identified above, I consider that it would be open to a judge to hold that the two drivers engaged in a race which was initiated by the third party’s tacit invitation.  As in the case of Khanna, and depending upon the precise facts established, it would be open to the judge to hold that the third party was in breach of his duty not to drive in such a way as to encourage other drivers to drive in a manner exposing other users to such a risk.  What the effect, if any, of that breach was would be a matter for proof.

[22]      Separately, I accept Ms Maguire’s submission that the third party’s conduct in accelerating towards the roundabout in order to provide a thrill to his passenger might properly fall to be described as a reckless act.  That cannot be known until the evidence has been heard.  If the evidence discloses that this is a proper description then I agree that it would be open to a judge to infer that the combination of this manner of driving and the undertaking manoeuvre was distracting to the deceased and contributed to him misjudging the distance to the roundabout.

[23]      In the circumstances set out, and for the reasons given, my opinion is that the facts averred by the defenders are sufficient to allow a proof before answer. I will refuse to grant the third party’s motion for dismissal and I will reserve meantime the question of expenses.