Scottish Sheriff Court Decisions

The Sheriff, having resumed consideration of the cause, Makes the following.

1. The Pursuer is a 41 year old personal administrative assistant who resides at 11 Manuel Avenue, Beith, Ayrshire.
2. The Defender is Ingrid Machel, a 38 year old assistant physiotherapist who resides at 78 Burns Road, Aberdeen.
3. Both Pursuer and Defender are keen motor cyclists. Both are members of the Institute of Advanced Motoring. Both are well aware of the relative vulnerability of motor cyclists on the public roads.
4. On 21^st August 2000, both Pursuer, Defender and a fellow motor cycling enthusiast, Dr Eleanor Forrest were up in Glencoe for the purpose of taking part in a film shoot for a TV film. The three ladies and the film crew all met at the Glencoe Visitor Centre and the photographer discussed with them what was required. He explained that he wished to get a shot of all three of them riding their bikes together in a location which allowed him to show a background of fine Scottish scenery.
5. The photographer had identified an area and a whole party rode northwards up the A82 road to a large lay-by near a church.
6. At the lay-by the motor cyclists all stopped, unloaded the bags and jackets to the care of the camera man and received instructions from Vince the camera man about the shots that he wished to take.
7. The three girls were asked to ride as a group back up the road they had just come so that the camera man could take shots from a grass bank to the south of the lay-by entrance.
8. The three girls agreed and drove south to a petrol station where they turned and came back northwards.
9. The Defender was in the lead, the Pursuer at the rear and Doctor Forrest in the middle. The group formation they adopted was a staggered (wing) formation whereby the lead motor cycle was in the offside lane towards the centre of the road and the following motor cycle was behind and to her left and the rear most motor cycle was to the rear and the left of the middle motor cycle.
10. The motor cycles were about 20 feet apart from each other. Each had clear road directly ahead. This is a common formation for motor cyclists when riding as a group.
11. The group passed the camera man and continued northwards. As the group approached the lay-by entrance the lead motor cycle driven by the Pursuer braked and turned left. The middle motor cyclist was surprised at what she regarded as an unexpected manoeuvre. She reacted by braking hard, turning right and then accelerating. She avoided hitting the Pursuer's motor cycle. She was, however, slightly hit by the Defender's motor cycle behind her.
12. The Defender was not conscious of seeing brake lights but saw the Pursuer's motor cycle virtually broadside to her. She attempted to turn right but was blocked by the middle motor cyclist and then collided with the Pursuer's motor cycle. Both Pursuer and Defender were thrown from their machines.
13. The speed limit on the road was 60 mph. Prior to the incident leading to the collision the group were travelling at between 50 and 60 mph.
14. The Pursuer suffered significant injury. She was rendered unconscious and broke a bone in her spine. She was taken to hospital locally and then transferred to the Neurological Department at Southern General Hospital, Glasgow where she underwent MRI and brain scans. She was discharged on 25^th August 2000 to the care of her GP. She suffered pain in head, neck and lower back and was off work until 31^st October 2000.
15. The Pursuer's loss excluding solatium has been agreed at £1,839.02.
16. The Defender also suffered injury and loss. She sustained a displaced rib and bruising and abrasion to her right hand and forearm. Her losses excluding solatium have been agreed at £4,086.50.
17. Said collision was caused by the actions of the Pursuer. The Pursuer failed to take reasonable care for the safety of the other members of her group. She turned across their paths making collision with one or other or both almost inevitable.
18. Said accident was not caused by the fault of the Defender. In the circumstances the Defender had no reasonable opportunity to avoid colliding with the Pursuer's motor cycle.

Said accident was caused by the fault of the Pursuer. By braking and turning left as she did she failed to show reasonable cause for the safety of her fellow motor cyclist.

19. The reasonable estimate for solatium for the Pursuer's injuries is £3500. A reasonable estimate for solatium for the Defender's injuries is £700.
20. Accordingly, Finds in Fact and Law that said accident was not caused by the fault and negligence of the Defender and the Defender is not liable to make reparation to the Pursuer and accordingly sustains the Defender's 2^nd and 3^rd pleas-in-law and assoilzies the Defender from the crave of the writ; that said accident was caused by the fault and negligence of the Pursuer who is liable to make reparation to the Defender for her losses and therefor sustains the Defender's 1^st plea-in-law in the counterclaim; that the Pursuer's losses are reasonably stated at £5339.02 and that the Defender's losses are reasonably stated at £4786.50; accordingly grants decree in favour of the Defender in terms of the Defender's counterclaim for the sum of £4786.50 with interest from date of citation at the rate of eight per cent per annum and appoints parties to address the court on the issue of expenses on ...

This case consisting of claim and counterclaim arises out of a road traffic accident involving three lady motor cyclists and the parties to this action seek damages from each other in reparation for their injuries and losses.

The three lovely lady motor cyclists were participating in what is called a photo shoot. They had arranged with a camera man that they would ride northwards on the A82 near Ballachulish so that he could film them on their machines with a wonderful background of loch and hills. They had been asked to ride as a group. It is not uncommon for motor cyclists to ride as a group. These were all experienced motor cyclists.

The three ladies and the camera man had headed north from the Glencoe Visitor Centre until they came to the location which the camera man wished to photograph. All stopped at a lay-by on the west side of the road and divested themselves of various unnecessary accoutrements. A camera man took up his position and invited the ladies to head southwards and then turn and come back up past the area where he was filming.

The ladies headed off south, turned at a garage/petrol station apparently out of sight of the camera man and then came back. The Pursuer riding a 900 cc Honda was in the lead. She took up a position in the roadway just to the left of the centre line and the other two motor cyclists took up position in diagonal formation so that each had clear road ahead with the third motor cyclist, the Defender being closest to the kerb.

In the course of the journey back up northwards the Pursuer was aware of the number two motor cyclist in her rear mirror but she was unable to estimate with any degree of accuracy how far that motor cyclist was from her. The probable distance between each bike was not more than 3 or 4 bike lengths. The group, in formation, rode past the photographer and northwards. The entrance to the lay-by where they had stopped to divest themselves was about 100 yards north of the photographer's position. As she approached the entrance to the lay-by the Pursuer braked and turned to the left. The second motor cyclist was taken aback by this action, braked and turned to the right. There were cars heading southwards but she managed to go onto the south carriageway without colliding with any vehicle. The third motor cyclist, the Defender, also turned right initially but struck the second motor cyclist and then struck the first motor cycle, the Pursuer's, on the side below the saddle area. Both were then thrown off their bikes and sustained injuries.

At the time of this incident all vehicles were travelling at about 50 to 60 miles per hour. The Pursuer blames the Defender for the collision and argues that she did not keep a proper look out and did not keep an adequate distance behind the Pursuer so as to avoid collision. The Defender on the other hand blames the Pursuer on the grounds that the Pursuer failed to keep a proper look out for the motor cyclist behind her and she should not have cut across the path of oncoming vehicles in such a way as to make a collision virtually inevitable.

Damages were agreed with the exception of solatium and I shall deal with that later. It is perhaps convenient at this stage however to point out that the Pursuer was unconscious for some time, not recovering consciousness until she was in hospital and she now suffers from post traumatic amnesia.

The Pursuer cannot now recollect whether she knew of the precise location of the motor cyclist behind her but the other two motor cyclists concurred in stating that all the travelling in wing formation (to use a flying analogy) I will deal with the Pursuer's argument first. She argues that the Defender should have dropped back to a safe distance so as not to be caught out by an unexpected action by the motor cycles in front. This is an obvious and obviously correct argument in certain circumstances, however, it is a counsel of perfection and ignores the agreement to ride in formation. The question is whether it was reasonable in all the circumstances to do that. This incident occurred only about 100 yards past the photographer. Although there was no evidence as to whether the photographer was continuing to photograph them as they disappeared into the distance, it would seem to me that having agreed to go past as a group it is not reasonable to expect the rear most riders to break up the group immediately they pass the photographer. In my view it was reasonable to continue in formation.

The Pursuer then argues that the Defender should have kept a good look out on, in particular the lead motor cycle. Again this is an obviously correct argument but what difference does that make if she has no time to react safely to any action by the lead motor cycle. By common consent they were all travelling at at least 50 miles per hour. The distance between the motor cycles was about 20 feet and accordingly the Defender would be about 46 feet behind the lead motor cycle and about 6 feet to the side. Thinking time, that is the time available to perceive and trigger a reaction, is often expressed as the distance covered at a particular speed so is movement time i.e. the period between decision to move and actual movement. The total is generally accepted to be 50 feet at 50 miles per hour. The obvious conclusion is that there is very little chance of avoiding anything coming into your line of travel 48 feet away from you. Motor cyclist number 2 who is now a racing motor cyclist rather than a hobby motor cyclist managed to avoid contact by moving to the right and braking. That manoeuvre obstructed motor cyclist number 3 from doing the same manoeuvre to safety. Thus keeping a close eye on the lead motor cycle would have no more effect than to allow a clear perception of the inevitable. Much reference was made to the Highway Code and other manuals directed towards road safety but it would seem to me these exhortations are directed to individual independent users of the road. A safe distance is relative to the circumstances. These were not independent travellers, they were a group riding as a group. Group riding is a common phenomenon of cyclists and motor cyclists on all public roads. In my view it is reasonable to expect the followers in a group to anticipate any reasonable action by the leaders of the group. For example if an obstruction becomes apparent or a road sign requires to be obeyed the followers must anticipate how the leaders will react and react accordingly themselves.

From the evidence of the Pursuer, it was her anticipation that all of the group were going to recover their bags and overcoats from the photographer in the lay-by. Both the Defender and motor cyclist number 2, however, were of the view that there was no agreement to recover bags and they thought the arrangement was that they would all continue to a nearby hotel further north where other members of the camera crew were congregated. Neither Defender nor Dr Forrest anticipated the Pursuer's manoeuvre.

In my view, in the absence of a clear agreement or a clear requirement to stop and recover personal accoutrements being carried on the photographer's bike there was no ground for imposing upon the Defender an obligation to anticipate that the Pursuer would seek to enter the lay-by so soon after passing the photographer.

The Pursuer unfortunately cannot now remember where the followers were just prior to the accident. In any road situation even when they are not riding as a group, a motor cyclist has a duty not to change line of travel without checking that it is safe to move into the new chosen line of travel. It seemed to be accepted by all parties that the degree of rearward vision provided by the mirrors on a motor cycle is not great and there is a considerable amount of area behind which is simply not visible.

Reference was made to a procedure, known as "the life saver", which is a glance over the left or right shoulder depending on which way one is turning to ensure that one is not moving into the path of another vehicle. The Pursuer spoke to carrying out this manoeuvre but does not recollect seeing anything behind her. The Pursuer was adamant that she did not turn as she looked. She accepted there may have been a slight deviation or a very slight turn of the wheel. She accepted she did not signal, (that would have come later) but she confirmed that she did brake. The evidence of the two motor cyclists behind was that the lead bike had in fact turned across them. I see no reason to doubt that evidence. It would seem to me that in circumstances of group riding on motor cycle there is a clear obligation on the lead cycle not to change line of travel without making quite sure not only that the followers are aware of her intention but that she also has space within which to carry out the manoeuvre. The unexpected braking for no reason apparent to the followers would inevitably close the gap between the lead and the rear most motor cycle. The change of line of travel immediately thereafter made collision with the followers almost unavoidable.

In passing I should perhaps comment that it is a common argument that failure to observe is a conscious careless act. In my experience that is not so. It is very often a failure of the brain to register the information which would allow a conscious decision to be made. I have no reason to suspect that the Pursuer in this case was feeling reckless or even careless of the consequences of her actions on her companions but I have no doubt that it was her action that was the sole cause of this accident. Her action made the accident all but inevitable. There is no basis for any finding of negligence against the Defender and I have granted decree accordingly.

Parties very helpfully provided detailed submissions on quantum.

The Pursuer's injury has been the more severe. The consequences of her back injury continue to linger. She was rendered unconscious for an unspecified time. She appears to have recovered fully from that quite quickly. She also sustained injury to her back which was diagnosed as "probable concussive injury to the conus medullaris" (the lowest part of the spinal cord). The effect of that cleared up within a few days. She is left, however, with continuing back pain described as mechanical low back pain. It is assumed that this results from strain of the lower axial skeleton. The pain gradually subsided over the six weeks after the accident for which time she had poor mobility and was confined to home. She was given physiotherapy and able to return to work after 10 weeks. She was able to relinquish painkilling medication about that time. She continues to have episodic attacks of pain and requires to take painkilling tablets from time to time. She is not likely, however, to be off work as a result. She suffered anxiety symptoms. I was referred to the case of Somerville v Lothian Health Board 1994 SLT 1207 and generally to Kemp & Kemp. In my view the injury is not as severe as that sustained by Mrs Somerville 14 years ago. Had I found that the accident was caused by the fault of the Defender I would have assessed the damage for the Pursuer at £3,500 in respect of solatium plus £1,839.02 of the agreed items.

The Defender was more fortunate in respect of personal injury: A displaced rib, general bruising in the chest and ribs and strained muscles/ligaments to hands and arms. The effects of the strained arms and hands settled within a few weeks; the natural repair to inter-costal structures took a few months. In addition, she suffered psychological trauma, had difficulty in sleeping and nightmares for 4-5 weeks.

In my view, £700 would be a reasonable figure for solatium for past injury. Her other losses were agreed at £4,086.50 and accordingly the total award in her favour is £4,786.50.

I have enrolled the cause for a further hearing on the issue of expenses.