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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RECLAIMING MOTION BY ALLEN WOODHOUSE AGAINST LOCHS AND GLENS (TRANSPORT) LTD [2020] ScotCS CSIH_67 (30 October 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_67.html
Cite as: [2020] ScotCS CSIH_67, [2020] CSIH 67, 2021 Rep LR 2, 2021 SCLR 1, 2020 SLT 1203, 2020 GWD 35-464
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 67
PD59/18
Lord President
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion by
ALLEN WOODHOUSE
against
Pursuer and Reclaimer
LOCHS AND GLENS (TRANSPORT) LTD
Defenders and Respondents
______________
30 October 2020
Pursuer: Milligan QC, M Crawford; Digby Brown LLP
Defenders: Primrose QC, G S Middleton; Brodies LLP
Introduction
[1] The pursuer was one of several passengers on a tour bus driven by an employee of
the defenders. It was heading northwards along the A83 when it left the road and rolled
over. Although he accepted that the maxim res ipsa loquitur applied to the circumstances, the
Lord Ordinary assoilzied the defenders on the basis that negligence on the part of the driver
had not been established. The principal question is whether, on the primary facts which he
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found, he was correct to do so. Subsidiary questions include whether the Lord Ordinary
misunderstood the effect of the speed of the bus on its handling capabilities and the
evidence on that and whether the Lord Ordinary failed to have regard to the evidence of a
driver who had been observing the bus before the accident.
The Pleadings
[2] It is admitted on record that, on 26 March 2015, the pursuer was a passenger on a
Lochs and Glens tour bus which was being driven by the defenders’ employee, Elizabeth
Gallon, northwards on the A83 “Rest and Be Thankful”. The bus party had been at the
Ardgartan Hotel, near Arrochar, for lunch. The bus set off towards Inveraray. It stopped at
a viewpoint to enable passengers to take photographs. At about 2.00pm the bus was in the
vicinity of the junction with the B828 Glen Mhor road at a point where a predominantly
straight stretch of road leads to a left hand, then a right hand, “S” bend. The bus’s “nearside
wheels went (“rode”) over the roadway’s edge” and on to the sloping grass verge causing
the bus’s nearside to be “downhill of its offside”. The bus tipped and rolled over. The
pursuer pled a breach of the defenders’ duty at common law to take reasonable care for the
pursuer. As the case proceeded under the rules for abbreviated pleadings in the sheriff
court (OCR Rule 36.B1(1)), prior to it being remitted to the Court of Session, no further
specification of fault was given. In due course, although not expressly foreshadowed in his
pleadings, the pursuer was to rely on the maxim res ipsa loquitur.
[3] According to the defenders, after the departure from the viewpoint, the driver
stopped again some 500 metres further on, in order to close the bus’s door. She continued
for another 100 metres, at a maximum speed of between 34 and 42 mph, when:
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“the nearside of the coach was struck by a sudden extraordinary and exceptionally
severe gust of wind, which caused the coach to drift to its offside, to the point where
the offside of the coach was just over the centre line of the road. The driver applied
the brakes and steered the coach gently back towards its normal driving position in
the centre of the northbound lane. At that point, the offside of the coach was then
struck by a second extraordinary and exceptionally severe gust of wind, the force of
which caused an overturning moment… causing the rear of the coach to drift and
yaw at an angle to the nearside. The driver unsuccessfully tried to steer the coach
back to its offside, but its nearside tyres left the road surface and went onto the
sloping grass verge at a speed of less than 34 to 42 mph.”
The defenders maintained that the phenomenon of the two gusts of wind could not
reasonably have been anticipated nor could the driver have taken “any reasonable or
effectual precautions” against it. The cause of the accident was damnum fatale; that is an
inevitable accident.
The Lord Ordinary’s Findings in Fact
[4] The stop at the viewpoint had been fairly brief, because the weather had taken a turn
for the worse. Very few of the 51 passengers had ventured off the bus. After the stop to
close the door, the bus set off again; the accident occurring less than a minute later some
150 metres further on. By that time there was a very strong northerly wind, which was
hitting the bus virtually head on. The driver described the wind as quite normal for this
location. She was an experienced driver who had driven this road many times. She was
used to winds of that strength and the gusts that came with it. She had not come across
gusts from different directions. Professor Rae, who spoke to the meteorological data,
described the conditions as “a nasty blustery day… with swirling wind from any direction”.
Such winds were not exceptional.
[5] The Rest and Be Thankful weather station, which took readings every ten minutes,
indicated that the wind was generally west-north-west with a mean speed of over 20 mph
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and gusts of up to 40 mph. In the vicinity of Loch Restil, where the accident occurred, the
direction was northerly. The mean wind speed over the 10 minute interval at the material
time was 18.1 mph with a maximum recorded gust of 38.3 mph. In the following 10 minutes
there was a mean of 15.9 mph with a maximum gust of 50.3 mph. The Lord Ordinary
concluded that, although the gusts were strong, near gale force, they were not so exceptional
as to be unforeseeable.
[6] The driver maintained that she had accelerated normally from the layby. She
thought that she had reached a speed of between 20 and 30 mph when the first gust hit the
bus from the nearside, pushing it towards the middle of the road and over the centre line.
The driver braked. She estimated that her speed had reduced to between 10 to 15 mph . She
turned to the left. No sooner had she regained her proper position on the road when the
second gust hit the offside, lifting up the front of the bus and forcing it to the left and off the
road, despite her attempts to brake and steer to the right. The Lord Ordinary interpreted this
as meaning that the effect of the wind had been to take the weight off the front wheels of the
bus, causing the bus to yaw to the left, despite efforts to correct its alignment. The bus ran
along the verge, gouging into the grass and mud and slowing it down rapidly. As the Lord
Ordinary put it, once the left front wheel hit the verge, the bus “was doomed”.
[7] On speed, the Lord Ordinary accepted that, as a generality, a driver will
underestimate the speed at which he or she is driving. The experts who gave evidence had
carried out calculations which were broadly in alignment. They showed that, at the moment
when the front wheel left the road and went onto the verge, the bus must have been
travelling at in excess of 30 mph and possibly as fast as 40 mph. The Lord Ordinary held
that, taking all the evidence into account, the bus was travelling at between 35 and 40 mph
when the front wheel left the road. He reasoned that, assuming that the driver had braked
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after the first gust and again after the second, the driver had been travelling at a rate
considerably in excess of 35 mph when the first gust hit. The Lord Ordinary concluded that
the bus was travelling at between 40 and 45 mph when it was hit by the first gust and
between 35 and 40 mph when it was hit by the second. On the basis of his findings on
speed, the Lord Ordinary considered that the time between the second gust hitting the bus
and the wheel striking the verge would have been “very short”. The driver could not be
criticised for failing to react in time by braking and/or steering the bus, given the estimated
reaction times.
[8] The Lord Ordinary held that, had the bus come to a halt even some yards before it
did so, it would have been on relatively level ground and would probably not have rolled
over. The speed at which the bus had been travelling took it further along the verge to a
point where the verge sloped down towards Loch Restil. It was leaning towards its left and
that, and the continuing wind, caused it to roll over. The driver was not charged with any
offence. The police took the view that the driver had not being going too fast. They did not
extract the data from the bus’s tachograph for what the Lord Ordinary describes as “some
unexplained reason”.
Extracts from the Transcription of Evidence
The Driver
[9] The driver was examined in chief by the pursuer. It is worth recording precisely
what she said about speed. She initially testified that she had been driving at 20 mph, later
modified to between 20 – 30 mph, when the first gust hit. She had then slowed down to
between 10 – 15 mph, although she was not really sure. Her normal reaction would have
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been to slow down significantly. The transcription of her examination-in-chief then reads as
follows
“… if you were hit by a gust of wind strong enough to move your coach, to drive on
after that at 34 to 42 miles an hour would be obviously dangerous, wouldn’t it? – Hm
mm.
It would be a really silly thing to do? – Yeah.
… If you were going 34 to 42 miles an hour after you’ve already been hit by a gust of
wind that’s moved the coach and then it happens again, the accident would be your
fault, wouldn’t it? – No, it wasn’t my fault.
But you’ve already said it would be silly to drive at that speed? – Yeah, but I don’t
think I was because I’d already braked so I’m going to be going slower… I don’t
think it would have been going any more than 20 mile an hour because I’d already
braked prior to getting hit by that second gust of wind.
... I would have been going about 20 miles an hour.
Yes, well I think you’ve said that but the important question is in your experience as
a very experienced coach driver, do you think that going at more than 20 miles an
hour would be sensible in those weather conditions you’ve described? – No.”
Douglas McArthur
[10] Mr McArthur and his wife had left Glasgow for a scenic drive in their Citroen C3 on
what had begun as a beautiful sunny day. The weather deteriorated as they reached
Arrochar; with winds buffeting their car mostly from the offside but from the front as well.
Mr McArthur slowed to 30 mph. At one point, he had seen the bus in front of him, but its
power had enabled it to pass a set of traffic lights regulating the Rest and Be Thankful before
he had been able to follow. The bus had disappeared around a corner. When Mr McArthur
next saw it, the accident had happened. Mr McArthur commented on the power that the
bus had been able to use, especially in comparison to that of his modest C3. He had thought
that 30 mph was safe for his car, which he had kept in second gear in order to maintain the
power at a constant level in the weather conditions.
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7
[11] Mr McArthur had been an HGV driver in the past. The following exchange took
place at the end of his examination-in-chief:
“Right. So you’re going about 30 miles an hour and you’re in second gear. – In
second gear.
And that was because of the weather conditions. – Because of the weather
conditions.
If you had been back in the day driving an HGV would you have driven faster or
slower? – Oh no, my training tells me to slow down in conditions like that. The
slower you go the heavier the vehicle becomes and there’s less wind to get
underneath it, that’s all basic training.”
Christina Holland
[12] Ms Holland, who was the defenders’ road traffic expert, was cross-examined in
relation to the speed of the bus at the time it left the road. She said:
“All I can say is that if [the driver] accelerated continuously at a typical rate for a bus
or coach driver to the point where the… accident occurred, where she left the road,
the range of speeds likely would be 34 to 42 miles per hour.
Yes, that’s if she accelerated continuously from start to finish. Yes. The gouge mark
and the length of the gouge mark indicates that the speed of the coach when it left
the road was 30 miles per hour or more. From that I have estimated a range of 30 to
40 miles per hour for the maximum speed of the coach.”
In relation to the accident, the following exchange took place:
“It was, an accident was inevitable? – Yes
Regardless of the speed of the bus? – No …If the speed of the coach was 30 miles per
hour it would be, yes.
Exactly. So it all depends on the speed of the coach. – Yes.
And if the coach had been going at a significantly lower speed, say 15 miles per hour,
the accident would not have been inevitable. – It might not have been, I haven’t done
the calculations…
Ultimately… if the coach had been travelling at a slightly lower speed than it actually
was travelling it would still have been possible to avoid the accident by braking. –
Probably.”
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8
Lord Ordinary’s Reasoning
[13] The Lord Ordinary accepted that the burden of proof had switched to the defenders
to prove that the accident had occurred without their negligence. He cited his dicta in
Morton v West Lothian Council [2006] Rep LR 7 (para [70] following Elliott v Young’s Bus
Service 1945 SC 445 at 456) that the maxim res ipsa loquitur applied when the circumstances
causing the loss were within the control of the defenders. Where the facts were eloquent of
negligence, it was for the defenders to prove at least the existence of other facts or
circumstances which may have caused the accident without their negligence (O’Hara v
Central SMT Co 1941 SC 363 at 378); or possibly that the accident was not in fact caused by
their negligence (Moore v R Fox and Sons [1956] 1 QB 596 at 614-5). The Lord Ordinary
rejected the defenders’ submission, which had been based upon a dissent in Ballard v North
British Railway Co 1923 SC (HL) 43 (at 54), that the defenders could satisfy the onus simply
by proffering a reasonable explanation of how the accident could have occurred without
negligence (O’Hara v Central SMT Co (supra).
[14] The Lord Ordinary accepted that the defenders could avoid liability by proving that
the accident was not caused by their negligence, notwithstanding that they could not point
to any specific non-negligent cause. He reasoned that:
“[30] … the considerations mentioned in …[Morton v West Lothian Council (supra)] all
point to the onus shifting to the defenders to prove a non -negligent cause of the
accident or at least to disprove negligence on their part. A coach travelling along an
A road in the Highlands should not ordinarily come off the road. The fact of it
having done so gives rise to a prima facie inference of negligence. It is for the
defenders to rebut that prima facie inference… I have no difficulty in holding that…
the burden shifts onto the defenders to show that the accident occurred without their
negligence”.
The Lord Ordinary observed that onus seldom mattered, once evidence had been led.
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[15] The Lord Ordinary concluded that the defenders had discharged the burden upon
them. He explained that:
“[32] … The only challenge, the only suggestion of fault advanced by the pursuer,
was in relation to the actions of the driver. What was said, in short, was this: if she
was driving at the speed at which she said she was driving (20-30 mph before the
first gust, 10-15 mph before the second) then she had plenty of time to enable her to
react to the gust and should have been able to prevent the coach leaving the road;
whereas if she was driving faster than that (40 mph, plus or minus) then she was
driving too fast, cutting her reaction time so that she could not react in time to
prevent the accident. I have already found that the coach was being driven at a
speed of about 40-45 mph before the first gust hit it, and at a reduced speed of 35-
40 mph when the second gust struck. Accordingly the pursuer’s first alternative
criticism can be excluded. That leaves only the second alternative criticism for
consideration.
[33] The pursuer’s case is that if the coach was being driven at a speed of 40-45 mph
then it was being driven too fast was not supported by any expert or independent
evidence to that effect. It was not said, by anyone, that at that speed the coach would
be less easy to handle in the prevailing conditions, or less responsive to directional
control, or in some way less stable, more vulnerable to the impact of the wind, more
prone to being deflected off course. The pursuer’s case that the coach was being
driven too fast was periled on the evidence [the pursuer’s counsel] led … from the
driver… .”
[16] The Lord Ordinary narrated the evidence of the driver as including the following:
“Witness: I don’t think I was going any more than 20 mph [when the first gust
struck]. I think if I braked I’d be going slowly.
Counsel: Do you think that going more than 20 mph would be sensible in those
conditions?
Witness: No.
Counsel: Your relative speeds. You were going at 30 mph, then you dropped down?
Witness: Yes
Counsel: It would be dangerous to keep going at the same speed after a gust caused
you to move?
Witness: Yes.
Counsel: If you were hit by a gust, to carry on at 34 – 42 would be dangerous.
Witness: Yes.”
[17] The Lord Ordinary interpreted the driver’s evidence as meaning only that it would
not have been sensible to maintain, or resume, a particular speed once the first gust had hit.
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She was talking about relative speeds. She had considered her speed both before and after
the first gust to have been sensible and safe. The fact that she was wrong about her estimate
of speed was not to be taken as meaning that she had accepted that, now that her true
speeds had been pointed out, she had been going too fast at 40 – 45 mph, reducing to 35 – 40
mph.
[18] The Lord Ordinary continued:
“[35] … Nor is it directly relevant that driving at a certain speed means that there is
minimal time available for an effective reaction in the event of the coach being blown
off course by an unexpected and violent gust of wind. Such considerations are too
far removed. Absent any proved connection between the coach’s speed and its
vulnerability to being blown off course, absent any evidence that the particular speed
of the coach made an accident of this sort reasonably foreseeable or in some way
more likely, then the question of how to react in such circumstances, and whether the
speed of the coach allows sufficient time to react, does not arise…
[36] … I do not accept the pursuer’s case that the driver was at fault. No other fault
is raised as an issue. But I am left with this concern. My finding on the evidence is
that the weather conditions were unpleasant and the wind was strong – but there
was nothing exceptional about the conditions, winds of that strength were
foreseeable, and extreme turbulence, being a feature of the topography of that area,
could also be foreseen. For that reason I would have rejected the defence of damnum
fatale, had it been necessary to consider it. If, as I have also found, the driver was not
at fault, how can the accident be explained? It is possible that the combination of
two gusts of wind from opposite sides of the bus was unique, though the fact that
[the meteorological expert] could readily explain the phenomenon suggests
otherwise. It may be that occurrences such as this, occurring without fault on any
side, though mercifully rare, are inevitable…”.
Submissions
Pursuer
[19] The pursuer did not dispute any of the Lord Ordinary’s primary findings in fact, but
he did challenge the inferences which he had drawn from them. It was not necessary for the
pursuer to show that the Lord Ordinary had been “plainly wrong”, when what was
challenged was the application of the law to the primary facts (Stephen v Scottish Boatowners
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nevertheless been plainly wrong.
[20] The Lord Ordinary had correctly determined that the defenders’ driver was prima
facie negligent. He had then found against the pursuer because the pursuer had failed to
prove that the speed of the bus had been excessive (see para [33] quoted supra). He had
effectively required the pursuer to prove negligence twice. Had the Lord Ordinary asked
the correct question, of whether the defenders had shown that the bus had been driven at an
appropriate speed, he would have been bound to find in favour of the pursuer (Mars v
required the defenders to explain why the bus could not be controlled when hit by the gusts
of wind. It should have been for the defenders to prove a non-negligent explanation (Smith v
[32] and [33]) on “The only challenge, the only suggestion of fault advanced” and “The
pursuer’s case”, whereas the reversal of the burden required the focus to be on the
defenders’ explanation for creating the danger; ie the speed of the bus. The Lord Ordinary
downplayed the significance of the reversal of the burden , under reference to authorities,
including Gibson v British Insulated Callenders Construction Co 1973 SC (HL) 15, which
supported the pursuer’s case.
[21] If the correct analysis had been adopted, the Lord Ordinary ought to have found
that, since the weather conditions were, as he held, foreseeable, the bus’s speed called for an
explanation. By inference, the speed was excessive for the conditions. The inference had not
been rebutted. It had been supported by Mr McArthur’s evidence. The driver had not
modified her driving for the conditions. She had taken no precautions for the prevailing
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windy conditions. She had driven at the maximum speed and acceleration possible from
her last stationary point, according to the unchallenged evidence of the defenders’ expert.
The defenders had offered no justification for the driver selecting a speed which left
insufficient time for reaction. Adverse weather conditions were not sufficient to rebut the
presumption of negligence. Drivers must drive according to the conditions (Weatherstone v
114, at paras [64] and [70]).
[22] The Lord Ordinary erred in holding that the bus had not been driven at excessive
speed. It had been driven at the maximum possible speed. It was faster than the driver had
acknowledged to be safe. It was faster than the speed of the only other witness to give
evidence about speed, namely Mr McArthur. There was n o evidence to show that the driver
had taken any precautions to deal with the weather conditions. It was a matter of agreement
between the experts that, had the bus been driven at even a slightly lower speed, the
accident would have been avoided. The driver testified that 20 mph was the sensible speed.
The Lord Ordinary had been wrong to consider that her evidence had only been concerned
with relative speeds. Her evidence was that she had been travelling at 20 mph, but it had
been established that that was at best half of her actual speed. That discrepancy required
explanation. Even if she had been talking about relative speeds, had she realised her true
speed, on her own evidence she would have slowed down considerably. The ignorance of
her own speed could not provide a non-negligent explanation for the accident; rather, it
reinforced the implication of negligence. Forty five miles per hour was only 5 mph less than
the maximum legal speed at the locus. In order to reach that speed the driver would have
had to have accelerated at the highest rate possible. Mr McArthur, who had been driving a
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small car, said that 30-35 mph was the speed at which he felt comfortable and that, as an
HGV driver by trade himself, he would not have driven faster in a larger vehicle.
[23] There was no reasoning on why these factors had been outweighed. The finding that
the driver did not know in advance that she was going to be called upon to react to anything
was inconsistent with the finding that the conditions were foreseeable. The finding that
there was no “proved connection between the coach’s speed and its vulnerability to being
blown off course” was inconsistent with the finding that the speed of the bus provided no
opportunity to react and ignored the obvious point that, by travelling more slowly, the
driver would have given herself a greater opportunity to react. Her speed led to the bus
being blown into the opposite carriageway and then off the road completely.
[24] The Lord Ordinary erred in holding that there was no evidence that the speed of the
bus made the accident reasonably foreseeable or more likely. This failed to take account of
the uncontroversial evidence that, but for the speed of the bus, the accident would not have
occurred. This did not need expert evidence, but even if it did, it was there: the defenders’
expert stated in her report that “The speed at which the coach deviates from its path is
directly proportional to the forward speed of the coach .” The reasoning is inconsistent with
the earlier finding that speed was causally connected to the ability to respond to the effects
of the wind. As one commentator (Sanders) put it (2020 Greens Rep B 153, 7-8): “It seems
difficult to conceive of how no liability could attach when a healthy driver, driving a defect
free coach encountered foreseeable road conditions”.
Defenders
[25] The defenders submitted that the Lord Ordinary had been correct to find that the
defenders had provided a non-negligent explanation for the accident. That explanation was
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the weather conditions. It was not undermined by the pursuer’s unsuccessful criticism of
excessive speed. The Lord Ordinary’s conclusion was open to him on the evidence and
based upon a correct evaluation of it. The pursuer had to show that the Lord Ordinary had
gone “plainly wrong” in his application of the law to the primary facts (Anderson v Imrie
(supra) at paras [35], [36], [98] and [99]; AW v Greater Glasgow Health Board (supra) at paras
[53] and [54]; George Mitchell (Chesterhall) v Finney Lock Seeds [1983] 2 AC 803 at 815-6; Biogen
[26] The contention, that the Lord Ordinary erred by requiring the pursuer to show that
the speed of the bus was excessive, was misconceived. The Lord Ordinary held that the
onus of proof had switched to the defenders. Thereafter he concluded that the defenders
had led sufficient evidence to establish that the accident had not been caused by their fault
and could be explained by the wind. The driver had not failed in her response to the
sudden impact of the wind. If there had been any failing, her actions and reactions should
not be judged by too high a standard. They were not negligent. The Lord Ordinary
concluded that the defenders had discharged the burden by proving that the accident
happened without any negligence on the part of the driver. This was not to place the onus
back on the pursuer, but to find that his challenges to the defenders’ non-negligent
explanation, specifically on the issue of speed, were unsuccessful. There was no expert or
independent evidence that the manner in which the driver drove had been negligent.
[27] The Lord Ordinary came to the view that the driver’s speed had been reasonable. It
was never suggested to the driver that she ought to have known that there would be
vulnerability to an accident above any particular speed; nor was there any evidence from
any other source to that effect. The assertion that the driver had accelerated at maximum
speed did not accurately reflect the evidence. The driver had been able to react to the first
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gust by braking and correcting the path of the bus, bringing it under control and back into
the centre of the lane. It was only after being hit by an unexpected and violent gust from the
opposite side that the accident occurred. The driver had never before experienced the
phenomenon of two sudden, extremely strong gusts from opposite directions. The
occurrence of such an event, leading to a situation where the bus would leave the road at 40-
45 mph, was not reasonably foreseeable. The Lord Ordinary applied the correct test;
whether a reasonable driver would have had in contemplation that an accident would be
likely to result if she drove at the speed at which she did (Muir v Glasgow Corporation 1943
[28] The Lord Ordinary did not err in holding that the driver had not been negligent. The
evidence was that she had been driving at an appropriate speed for the conditions. The
available reaction time after the second gust was such that the driver could not be criticised.
Nothing could have been done to avoid the bus rolling over. The driver was certain that she
had taken appropriate action by slowing down after the first gust and that her speed both
before and after that gust had been appropriate. The contentions that she conceded she
ought to have been travelling at 20 mph, and that this was the safe speed for the road under
the prevailing conditions, were entirely wrong. The Lord Ordinary was correct that the
driver’s evidence was about relative speeds. Whether there was a connection between
speed and vulnerability to being blown off course was a different consideration from the
reaction time after the gust had occurred. The Lord Ordinary’s reasoning did not say that
the driver’s ignorance of her own speed provided the defenders with a non-negligent
explanation. There was no evidence about any need for the driver to monitor her speed,
accelerating from a standing start over a distance of only 150 metres, or any failure by the
driver to do so.
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[29] Mr McArthur’s evidence as to the speed at which he felt comfortable did not infer
negligence on the part of the driver. He had agreed in cross-examination that: his car was
very light compared to the bus, which had a much more powerful engine; the bus was not
affected by the wind in the same way; and whether the wind affected his vehicle or not had
no bearing on the bus. He had said that the bus was being driven normally. Whilst the
wind conditions were foreseeable, the pursuer failed to lead evidence and to prove a
connection between the bus’s speed and its vulnerability to being blown off the road. In the
absence of proof that the driver ought to have known that, above a certain speed, there was
a likelihood of the bus going out of control if it was hit by an unexpected gust of wind, the
accident was not reasonably foreseeable. There was no evidence that a speed of 40-45 mph
was negligent. It was irrelevant that, if she had been driving even slightly slower, the driver
would have had time to avoid the accident.
[30] The finding that the bus would probably not have rolled over had it been going
slightly slower was an issue of causation, not negligence. Negligence required to be
considered first, as the Lord Ordinary had done. The Lord Ordinary recognised the
relationship between speed and reaction time. The point he made (at para [33] (supra)) was
that there was nothing to indicate that the driver ought to have known that at a particular
speed the bus was more vulnerable to being blown off the road. The Lord Ordinary was
entitled to reach the finding that he did as to the foreseeability of the accident on the
Decision
[31] A determination of whether an employee has been negligent is one of law. It is
nevertheless heavily dependent upon primary findings of fact. In reviewing the latter, an
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appellate court must exercise appropriate caution, especially where the Lord Ordinary’s
decision has been based on determinations on credibility or reliability. Where this occurs,
the appellate court must be satisfied that the findings of the Lord Ordinary were “plainly
approved in Thomas v Thomas 1947 SC (HL) 45, Lord Thankerton at 55, Lord Macmillan at
59). These words mean that, in the view of the appellate court, the Lord Ordinary reached a
decision which no reasonable judge could have reached (Henderson v Foxworth Investments
2014 SC (UKSC) 203 Lord Reed at para [62]). This in turn is explained as meaning that the
decision cannot reasonably be explained or justified (ibid para [67]).
[32] “Plainly wrong” is not the only ground for review. The Lord Ordinary may have
made “some other identifiable error” including:
“a material error of law, or the making of a critical finding of fact which has no basis
in the evidence, or a demonstrable misunderstanding of relevant evidence, or a
demonstrable failure to consider relevant evidence “ (ibid).
[33] The turns of a witness’s eyelid (Lord Shaw (supra)) may, at least in theory, be
significant in assessing credibility or reliability. Certainly the advantage, which a court of
first instance may have had in having seen and heard the testimony, should not be
court must have due regard to the limitations of the appeal process, with its narrow focus on
particular issues rather than the evidence as a whole (ibid). However, when the court is not
reviewing primary facts but inferences from them (secondary facts), it can more easily
reverse a first instance conclusion, especially one which has not involved a finding of
credibility or reliability (Stephen v Scottish Boatowners Mutual Assurance 1989 SC (HL) 24,
Lord Keith at 61). This is even more so when what is under review is the application of the
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law to the facts; whether primary or inferential (SSE Generation v Hochtief Solutions 2018 SLT
para [44]). In that situation, it may be that the benefits of the larger appellate bench can play
a significant part in arriving at the correct decision (ibid, citing Appellate courts parts 1, 2 and 3
2015 SLT (news) 125, 130 and 138 at 127). When engaging in the intellectual process of
applying the law to the facts, or in drawing inferences from primary facts, an appellate court
may be more objective in its approach and be less influenced by the Lord Ordinary’s
perception of, and maybe even sympathy for, the witness (AW v Greater Glasgow Health
Board [2017] CSIH 58, LJC (Dorrian) at para 44). The unitary nature of the Court of Session
as the reviewer of the delegated decisions of the Lords Ordinary is not without significance
either in relation to the traditional scope of a Division’s role (Clippens Oil Co Ltd v Edinburgh
and District Water Trustees (1906) 8 F 731, LP (Dunedin) at 750).
[34] With all these matters firmly in mind, the court has concluded that, despite the care
which he has clearly taken in his assessment of the testimony the Lord Ordinary,:
(i) misapplied the maxim res ipsa loquitur to the facts; (ii) was plainly wrong in holding that
the speed of the bus did not make it less easy to handle; (iii) failed to consider relevant
evidence; (iv) has misunderstood the driver’s testimony on speed; and (v) reached a
conclusion which cannot be explained or justified.
[35] The most problematic flaw is the Lord Ordinary’s application of the maxim res ipsa
loquitur. The use of the maxim in the context of road traffic cases is a familiar one. It was a
pointed out (at 377), under reference to Lord Shaw’s speech in Ballard v North British Railway
Co 1923 SC (HL) 43 (at 54), res ipsa loquitur is not a legal principle. It is a presumption of fact,
whose force depends on the circumstances of each case. When it applies, the defender must
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demonstrate that the accident occurred without fault on his part. It is not enough to proffer
a possible alternative non-negligent explanation. The defender must establish facts from
which it is no longer possible to draw the prima facie inference (Smith v Fordyce [2013] EWCA
Civ 320, Toulson LJ at para [61], cited in David T Morrison & Co v ICL Plastics 2014 SC
(UKSC) 222, Lord Reed at para [37] agreeing with Lord Hodge at para [98]).
[36] The Lord Ordinary correctly determined that the maxim applied. Buses which are
driven in a safe and proper manner and at a reasonable speed do not leave carriageways of
major trunk roads in winds of the relatively common velocity present at the time of this
accident. The defenders thus required to prove, on the balance of probabilities, that the
accident had occurred without negligence on the part of their driver. Unfortunately, the
Lord Ordinary did not approach the matter in this way. A different Lord Ordinary had
declined to ordain the defenders to lead at the proof. Such an order would perhaps have
reflected with greater clarity the correct application of the maxim in the circumstances
admitted on record. Be that as it may, the Lord Ordinary, in his approach to the proof,
returned the onus to the pursuer to prove what the Lord Ordinary described (at para [32] of
his opinion) as his only suggestion of fault; that being, according to the Lord Ordinary, the
actions of the driver, and in particular the speed at which the bus was being driven. That
was not the manner in which the pursuer’s case was pled or presented. The pursuer did not
need to advance any suggestion of fault. A prima facie inference of negligence existed by
virtue of the facts admitted on record. As the pursuer submitted, the Lord Ordinary
effectively required the pursuer to prove negligence twice.
[37] In these circumstances, the question which the Lord Ordinary ought to have asked
himself was whether the defenders had proved that the bus had been driven in a manner
which was not negligent. It was not for the pursuer to prove that the speed of the bus was
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excessive for the conditions. It was for the defenders to prove that it was not and, in any
event, that the driver had not failed to take reasonable care to keep the bus on the
carriageway. Speed may have contributed to the accident, but it was the driver’s loss of
control of the bus which was the ultimate operative cause. The defenders had the task of
proving that that loss of control was not negligent. For this reason alone, the Lord
Ordinary’s decision cannot be sustained.
[38] A second difficulty with the Lord Ordinary’s approach is his statement (at para [33]
of his opinion) that it was “not said” that, at the speed at which the bus was travelling, it
“would be less easy to handle in the prevailing conditions, or less responsive to directional
control, or in some way less stable, more vulnerable to the impact of the wind, more prone
to being deflected off course”. There are matters that do not need to be spoken to in
evidence. Central to any consideration of negligence is the self-evident fact that a lower
speed improves vehicle handling, especially in cross winds. A static bus, or one which is
driven at a slow speed, will not be blown off a main road by these winds. The faster a
vehicle is driven, the greater the impact of the dynamic forces on it will be. The less traction
there will be on the roadway. The less reaction time will be available when an unexpected,
but foreseeable, event occurs. This is not a matter which requires expert testimony, but one
of ordinary everyday experience. The slower a bus is driven in windy conditions, the easier
it will be to keep on the carriageway. The faster it is driven, the more unstable it will
become and the less reaction time there will be. The Lord Ordinary was plainly wrong in
holding that this had not been established.
[39] Thirdly, the effect of speed had been described in evidence. It is what Mr McArthur
was referring to at the end of his examination-in-chief (supra). This is a further problem with
the Lord Ordinary’s reasoning. He appears to have ignored this testimony. There is no
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obvious explanation for this evidence, which emanated from an experienced driver with
HGV experience and who had been subjected to the same conditions as the bus, being left
out of account. Mr McArthur had reacted to the conditions by slowing to a speed of 30 mph
which he could maintain in second gear. The discounting of Mr McArthur’s testimony also
has the effect of vitiating the Lord Ordinary’s decision.
[40] The importance of speed was also accepted by Ms Holland under cross-examination.
She had already alluded to it when mentioning speed restrictions which are imposed on
bridges when wind velocity exceeds certain limits. A bridge may only be closed to high
sided vehicles when the wind velocity exceeds 70 mph, but speed restrictions will be
imposed on vehicles when it is much less than that. There was no evidence that the driver’s
speed, and hence her ability to react, was not negligent. Such evidence as there was pointed
in the opposite direction.
[41] A fourth difficulty with the Lord Ordinary’s analysis is his understanding of the
import of the driver’s testimony. He dismissed the driver’s account of her speed as
unimportant; explaining that she was simply mistaken in her underestimation of the rate of
travel and that what she had said had been in the context of a discussion of relative speeds
before and after the first gust. Although there may be some force in these considerations,
the fact is that the Lord Ordinary correctly recorded the driver as accepting that driving at
more than 20 mph in the prevailing conditions, when the first gust hit, would not have been
sensible. The question and answer according to the transcription were: “…do you think
going at more than 20 miles an hour would be sensible in those weather conditions you’ve
described? – No”. As already noted, this was a reference to the conditions that existed at the
first gust, after which the driver said that she had braked and thus reduced her speed to 10
to 15 mph.
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[42] The Lord Ordinary concluded that, on the basis of the expert evidence, the bus was
actually travelling at between 40 and 45 mph, when it was hit by the first gust, and between
35 and 40 mph, when it was hit by the second. It was thus going at more than twice the
speed which the driver herself considered to be sensible when the first gust hit and possibly
even when the second gust did so too. The driver’s testimony amounted to an admission
against interest that, if the Lord Ordinary’s findings on speed were correct, she was not
driving sensibly. Her position, which was rejected by the Lord Ordinary, remained that she
was not driving at the speeds which were ultimately proved. Even when read in the whole
context of the examination, and bearing in mind the limits of an appellate review, this
admission is not capable of being glossed over in the manner adopted by the Lord Ordinary.
The bus was being driven at twice the speed which the driver maintained she was doing and
twice what she herself regarded as sensible for the conditions. It is extremely difficult, if not
impossible, to see how the driver could nevertheless be held not to be at fault when the
consequence was that she was unable to react in sufficient time to control the bus and avoid
the accident. The Lord Ordinary’s conclusion in this regard cannot be explained or justified.
[43] According to Ms Holland, the driver’s acceleration from the layby to the point at
which the first gust hit was typical. The bus accelerated to between 40 to 45 mph in the
space of 150 metres. This is at least strongly indicative of the driver adopting the rate of
acceleration which she would have applied in normal circumstances, as distinct from the
prevailing conditions. The acceleration was almost the maximum which was possible. If the
question is asked of what steps the driver took to adapt to these conditions, the answer on
the evidence would appear to be “none”. This is, as is often said when the maxim applies,
“eloquent of negligence”.
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[44] The only defence put forward by the defenders was that what had happened was
damnum fatale. Since the conditions which the bus encountered were not out of the ordinary,
this defence was bound to fail. The Lord Ordinary would, had it been necessary to do so,
have rejected this defence. The problem with that approach is that it was the only defence
which was advanced to rebut the inference of negligence which followed the application of
the maxim. Once it was rejected, that inference was almost inevitable.
[45] The Lord Ordinary’s residual concern (in para [36] of his opinion) is a curiosity.
Having said that he would have rejected damnum fatale, he went on to suggest that what had
occurred had been without fault and was “inevitable”. Damnum fatale is usually defined as
loss arising from inevitable accident (Traynor’s Latin Maxims; Guthrie Smith: Reparation 410;
cf Walker: Delict (2nd ed) 331). A finding of inevitability is inconsistent with the evidence
that the wind conditions were foreseeable and could be coped with by the expedient of
reducing the speed of the bus. As Ms Holland accepted (supra), an accident was not
inevitable. It depended on the speed of the bus. If the bus had been travelling “at a slightly
slower speed than it actually was travelling it would still have been possible to avoid the
accident by braking”.
[46] For these reasons, the decision of the Lord Ordinary cannot be sustained. The
inference of negligence was not, on the evidence, rebutted. In so saying, the court is not
deciding the case on the basis of onus. As the Lord Ordinary recognised, once all the
evidence is out, onus seldom matters (SSE Generation v Hochtief Solutions (supra) LP
(Carloway) at para 45 and Gibson v British Insulated Callenders Construction 1973 SC (HL) 15,
Lord Reid at 22). Rather, the evidence, notably that of the driver, Mr McArthur and
Ms Holland, was eloquent only of negligence. The reclaiming motion must be allowed. The
interlocutor of 18 December 2019 will be recalled. The court will find the defenders liable to
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make reparation to the pursuer in respect of the accident of 26 March 2015. In terms of the
parties’ agreement on quantum, this will be in the sum of £15,000, with interest thereon at the
judicial rate from the first day of the proof (30 October 2019).