SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT BANFF

A6/08

 

 

JUDGMENT OF SHERIFF SHERIFF'S NAME   Patrick P Davies   in the cause   PURSUERS NAME   DARREL SMEATON, residing at C/o Mr Craig Smeaton, Bedon Field, Reidside, Cornhill, Banff, AB45 3BL, .........................................Pursuer;   against   DEFENDERS NAME   WENDY ELIZABETH DUNCAN, residing at 30 Causewayend Place, Huntly, AB54 7SL, ...............Defender;     ­­­­­­­­­­­­­­­­­________________

 

 

Act: DochertyAct:

Alt: BoyleAlt:

 

 

10^th March, 2009

 

The Sheriff, having resumed consideration of the cause:

 

FINDS IN FACT

 

The parties

 

1.      The Pursuer, aged 17, resides at C/o Craig Smeaton, Bedon Field, Reidside, Cornhill, Banff AB45 3BL;

 

2.      The Defender, aged 37, resides at 30 Causewayend Place, Huntly, AB54 7SL. The Defender is regularly employed as the driver of a school minibus;

 

The background

 

3.      The Pursuer purchased a black coloured Derby GTR50R motorcycle, Registration Number YM51 XJX in October 2006. Having previously taken his CBT test, he passed his motor cycle driving test in January 2007;

 

4.      On 5^th March 2007 at about 4.20 pm, the Pursuer left his home at Bedon Field, Reidside, Cornhill, with the intention of travelling to Banff on his motor cycle. He set off along an unclassified road passing near to Reidside Farm, Cornhill, Banff;

 

5.      The unclassified road on which the Pursuer was travelling was a narrow single-track road. There were banks on both sides. Initially the road on which he was travelling ran downhill. The features of the road were such that the Pursuer required to proceed with care;

 

The accident

 

6.      The Pursuer was still travelling downhill at a speed of about 30 mph when he reached a slight left hand corner. There were high banks to either side of this corner which served to limit visibility. As he rounded the bend and from a position about one foot from the verge to his left, the Pursuer was in a position to see at least part of any approaching vehicle when within about 50 metres of his position;

 

7.      As he entered the corner, the Pursuer saw a Saab 93 motor car coming towards him from the opposite direction. At that point, the car was travelling at about 40 to 45 miles per hour and was about 30 to 40 metres away from the Pursuer. It was being driven closer to its offside than to its nearside of the road. When he saw the car, the Pursuer slowed his motor cycle to a speed of about 15 to 20 miles an hour. The car proceeded towards him. The Pursuer anticipated that the car driver would, on seeing him, steer the car to her left. When she failed to do so, the Pursuer further slowed his motor cycle to a speed of about 10 miles per hour and continued to brake;

 

8.      The oncoming Saab 93 motor car bore the registration number NK53 NXG. It was being driven by the Defender who was driving it in the course of her employment. She was transporting the Pursuer's sister Amie Smeaton to the Pursuer's family home;

 

9.      The Defender was not keeping a proper lookout. She caused her car to proceed towards the Pursuer at a speed of 40 to 45 miles per hour without any significant reduction in its speed. She failed to adopt a road position that took proper account of the nature of the road and the possibility of oncoming traffic;

 

10.  The dimensions of the road were such that, proceeding with due care, there was room for a car and motor cycle to pass one another safely;

 

11.  The Pursuer pulled his motor cycle hard to his left and close to his left hand verge to try and avoid a collision. As he did so, the car collided head-on with his motor cycle. There was a substantial impact. The front offside bumper, in the vicinity of the offside headlamp, struck the front wheel of the motor cycle;

 

12.  As a result of the collision, the Pursuer was thrown forward from his motor cycle and to his left. He then slid along the ground to the offside of the car and came to a rest. His motor cycle initially became airborne, then spun round and slid along the side of the car and came to a rest, facing uphill and uphill of the Pursuer;

 

13.  The Defender's car proceeded for a short distance beyond the point of impact and came to a halt, partly on the bank, on its nearside of the roadway;

 

14.  The motor cycle sustained significant damage and, in particular, extensive frontal damage. Pieces of the Pursuer's motor cycle were scattered along the carriageway;

 

15.  The only immediately visible damage caused to the car by the collision was slight marking to the front offside bumper of the vehicle;

 

The aftermath

 

16.  Following upon the accident, the Defender tipped the Pursuer's motor cycle onto the adjacent verge and removed some debris from the roadway;

 

17.  Immediately following upon the accident, the Pursuer was able to stand up. He was invited to enter the Defender's car and she drove him home. There was no discussion at that time with regard to how the accident occurred;

 

18.  Following upon the Pursuer's return home, his father first recovered the Pursuer's motor cycle. He then took the Pursuer to hospital. The Pursuer was initially taken to Chalmers Hospital, Banff, and then to Gray's Hospital, Elgin;

 

The Pursuer's loss

 

19.  The Pursuer seeks reparation from the Defender for the loss, injury and damage sustained by him as a result of the accident;

 

20.  The Pursuer's motor cycle registration YM51 XJX was damaged beyond economic repair. At the material time, the value of the motor cycle was £1000;

 

21.  The Pursuer hired a replacement motor cycle from BLD Limited. The credit hire charges incurred by the Pursuer in respect of this hire inclusive of interest to 15^th September 2008 are reasonably stated in the sum of £1500;

 

22.  The Pursuer sustained injuries as a result of the accident. He suffered certain inconvenience. The Pursuer's claim in respect of solatium and inconvenience is reasonably stated in the sum of £1000, wholly attributable to the past;

 

23.  The Pursuer's riding equipment was damaged as a result of the accident. The Pursuer's claim in respect of such loss is reasonably stated in the sum of £100;

 

FINDS IN FACT AND LAW

 

Jurisdiction

 

1.      This Court has jurisdiction in terms of Schedule 8 Rule 2(3) of the Civil Jurisdiction and Judgements Act 1982;

 

2.      The Defender owed a duty of care to the Pursuer to exercise reasonable care, to keep her vehicle under proper control, to keep a proper lookout at all times and to travel at a reasonable speed taking due account of road conditions and the possibility of oncoming traffic. She had a duty to position her vehicle on the carriageway so as to minimise the risk of collision with the Pursuer's vehicle;

 

3.      The Defender failed to fully observe her duty of care to the Pursuer and thereby caused the Pursuer's loss and injury.

 

4.       The Pursuer had a duty to take reasonable care for his own safety. He observed that duty;

 

5.      Interest amounting to £88.32 is due on the value of the Pursuer's motorcycle, namely £1000, being interest at 8% from 31^st January 2008 to date;

 

6.      Interest amounting to £57.86 is due on the credit hire charges of £1500 incurred by the Pursuer, being interest at 8% from 15^th September 2008 to date;

 

7.      Interest amounting to £80.55 is due on the sum of £1000 due to the Pursuer in respect of solatium and inconvenience, being interest at 4% from 5^th March 2007 to date;

 

8.      Interest amounting to £8.83 is due on the Pursuer's loss of £100 in respect of his riding equipment, being interest at 8% from 31^st January 2008 to date;

 

9.      The Defender having failed to make reasonable reparation to the Pursuer, this action was necessary;

 

FINDS IN LAW

 

1.      The Pursuer having suffered loss and injury as a result of the negligence of the Defender is entitled to reparation from the Defender therefor;

 

2.      At this date, the Pursuer is entitled to reparation from the Defender in the sum of £3835.56;

 

THEREFORE

 

Sustains the First Plea-in-Law for the Pursuer; Repels the Second, Third, Fourth and Fifth Pleas-in-Law for the Defender; Sustains the Second Plea-in-Law for the Pursuer to the extent of finding the Defender liable in damages to the Pursuer in the sum of Three thousand Eight hundred and Thirty-five Pounds Fifty-six Pence (£3835.56); Grants decree in favour of the Pursuer for payment to him by the Defender of the sum of Three thousand Eight hundred and Thirty-five Pounds Fifty-six Pence (£3835.56) with interest thereon at the rate of Eight per centum per annum from the date of this decree until payment; Refuses to certify Mr Brian Forrest as an expert witness; Finds the Defender liable to the Pursuer in expenses; Allows an Account of Expenses to be given in and Remits the same when lodged to the Auditor of Court to tax and to report.

 

 

 

 

 

Note

 

Introduction

 

This is a straightforward reparation action arising from a road accident. Each party holds the other responsible for the accident. By the date of proof, quantum had been agreed and the only issue for proof was that of liability.

 

Procedure

 

This action was warranted in January 2008 and has proceeded without delay. The Record was closed on 3^rd June and a proof assigned for 15^th September. The proof proceeded on that date but was not concluded. It continued on 17^th December 2008 on which date I took the cause to avizandum.

 

At the diet of proof, Mr Docherty appeared for the Pursuer and Mr Boyle for the Defender.

 

The Defender was not present in court throughout the leading of the Pursuer's case. Not until she was called as a witness did she enter the Court - in order that, as explained to me by Mr Boyle, her account of events was unaffected by the evidence of other witnesses.

 

Objections to evidence

 

Several objections were made during the course of the proof but only one insisted upon. I repelled that objection under reservation and it was not insisted upon at the point of submissions.

 

The witnesses, their reliability and credibility

 

THE PURSUERS' WITNESSES

 

Craig Smeaton

 

This witness, aged 39, was the Pursuer's father. He spoke to the aftermath of the accident when, he said, his son and daughter had been brought home by Mrs Duncan. He had gone to the scene in his van to recover his son's motor cycle. He spoke to having taken some photographs when he had attended at the scene. With reference to these photographs, he described what he had seen. He spoke to his recovering the bike and to his then taking his son to hospital in Banff and then to a hospital in Elgin. He spoke to the account of events which his son had given him and to his son telling medical staff something of the accident. He was sure that he would have noted the fact had his son told the staff anything different from what he had been told. He refuted the suggestion put to him in cross-examination that he was involved with his son in an insurance fraud.

 

The Pursuer - Darrel Smeaton

 

The Pursuer spoke to the circumstances in which, when travelling from his home towards Banff and while still close to his home, he was involved in an accident. He gave evidence as to how the accident occurred and to the immediate aftermath. He described how he had thereafter returned to his home and subsequently been taken to hospital by his parents. He spoke to his motor cycle suffering significant damage.

 

Brian Forrest

 

This witness, aged 57, was a Motor Assessor of some twenty years experience. He spoke to his examination of the Pursuer's motor cycle. He spoke to the extent of the damage which he found and expressed his view as to the likely cause of the damage - a heavy impact from the front of the vehicle. He concluded that it had been involved in a head on collision. He was then questioned about his knowledge of Saab 9.3's and as to the evidence he might expect to see if a motorcycle had collided with the front bumper of such a vehicle. He explained how the outer "skin" of a bumper could initially deform but then reform - albeit sometimes leaving hidden damage behind the outer skin. He spoke to the marking which one might then find on the outer skin of the bumper and to his expectation that one would see some sign of a significant impact.

 

Amie Smeaton

 

This witness, aged 14, was the Pursuer's younger sister. She spoke to the circumstances in which, on the day of the accident in which her brother had been involved, she had been travelling as a rear seat passenger in the car driven by the Defender. She was often driven on her "school run" by the Defender and spoke to their having formed what she saw as a friendship. She gave evidence as to the manner in which she said that she and the Defender had been conversing in the moments before the accident and she spoke to the circumstances of the accident which she then observed. She described the road on which the vehicles involved had been travelling at the material time and the speeds and road positions involved. She spoke to the immediate aftermath of the accident and the circumstances in which the Defender had then taken both her and her brother home.

 

Mrs Kate Smeaton

 

Aged 37, this witness was the mother of the Pursuer and his sister Amie. She spoke to the circumstances in which her son and daughter returned home in the wake of the accident, to the recovery of her son's motor cycle and to what she had observed at the point of such recovery. She told me of the circumstances in which she and her husband then took her son to hospital. She spoke to having taken him first to a hospital in Banff and then to a hospital in Elgin. She spoke to her own discussions with medical staff and, in particular, to what she said to them as to the circumstances of her son's accident. She told me of her efforts to get the Defender's insurance details. She commented briefly on the nature of the roadway at the locus of the accident, her own approach to driving on the roadway and the like.

 

THE DEFENDERS' WITNESSES

 

Ian William Robertson

 

Mr Robertson, aged 35, was a former Police Constable with Grampian Police having joined the police in 2001 and left in 2008. With reference to his police notebook, he spoke to his having been instructed to investigate the accident in which the Pursuer and Defender had been involved. He had been instructed to do so two days after the event and his enquiries had extended over a considerable time. He spoke to the course of his enquiries and gave me detailed evidence as to various of the statements that he had noted. He spoke to what he perceived to be inconsistencies in some of the evidence that he was given. He told me that he had inspected the Pursuer's motor cycle and gave a limited description of the damage then seen. He had also seen the Defender's car and spoke to what he had observed.

 

The Defender - Mrs Wendy Elizabeth Duncan

 

Mrs Duncan, aged 37, gave evidence as to her employment as a taxi driver who undertook "school runs". She told me of the events leading up to the accident in which both her private car and the Pursuer's motor cycle were involved. She told me of the circumstances in which she had used her own private car, instead of her normal taxi, to drive witness Amie Smeaton home at the end of Amie's school day. She described the roadway on which the accident took place and the circumstances in which it occurred. She gave a very different version of events to that spoken to by the Pursuer and his sister Amie. It was her position that she was driving with due care and attention; that she was not engaged in or distracted by a conversation with Amie; that she stopped her vehicle when she saw the Pursuer approaching and that he then lost control of his motor cycle and had fallen off. She described the motor cycle sliding away from under the Pursuer and then sliding towards her until its handlebar caught a front wheel of her car, bringing the cycle to a halt. She spoke to her subsequent conversations and exchanges with members of the Pursuer's family and, generally, to the aftermath of the accident.

 

Submissions

 

Mr Docherty for the Pursuer, prefaced his submission by reminding me that the case was now concerned only with the issue of liability, the quantum of any damages payable now having been agreed. The issues of credibility and reliability were, he said, of the utmost importance in this case.

 

Addressing the Defender's position - that she was faced with a fraudulent claim - he pointed to the lack of any evidence of fraud. There was not, he said, any basis upon which I could make a finding of fraud.

 

Addressing the evidence of the witnesses for the Pursuer, Mr Docherty presented them as both credible and reliable. With reference to Amie, he posed the question "Would she come to Court and lie?" He reviewed the evidence of the Pursuer's witnesses. He pointed in particular to the fact that their evidence was consistent with the Pursuer's motor cycle "ending up" where did "end up". In relation to the Defender, he said that I should find her to be unreliable. She did not recall matters of detail; she had a poor recollection of distances; she could not say how the Pursuer parted from his bike or how he ended up where he did end up. Mr Docherty pointed to the evidence of Mr Forrester who had said that the motor cycle had suffered a heavy frontal impact - a fact consistent with the Pursuer's version of events. Notwithstanding the view of witness P. C. Robertson with regard to inconsistencies in the Pursuer's case, the officer had still charged the Defender with careless driving.

 

Addressing the question of expenses, Mr Docherty suggested that expenses should follow success. He asked me to certify Mr Forrest as an expert witness.

 

Mr Boyle for the Defender, indicated at the outset that the Defender had not pled a case of fraud. Rather, he had put the suggestion of fraud to the Pursuer's witnesses on the view that it was appropriate in this case; this was not a case of mistaken witnesses; the witnesses were not confused. The Court was faced with two very different version of events. He was not suggesting that an accident had been "set up" to perpetrate a fraud - there had been a genuine accident but, he suggested, an attempt at fraud after that event.

 

Mr Boyle then referred to certain aspects of the evidence which favoured the Defender.

 

The Pursuer had, Mr Boyle pointed out, quoted speeds such that the vehicles would have impacted at 50 to 55 mph. He had said that his motor cycle was hard to his left and the Defender hard to his side of the road. He had said that the Defender had then moved on for about three car lengths before halting. [I simply observe that I noted the witness to refer to two car lengths.] When first explaining events to his father, the Pursuer had said that he was stationary at the point of impact. When giving his first statement to the police, he had said that he was still moving. Initially, in his pleadings, he had said that he had pulled in and halted - later amending this to say that he had "slowed his motor cycle". These differences, taken alone, might not be significant, but they were significant given that the Pursuer had also given two different versions of events to the police. Again, one found two different versions of events in the medical notes. The Pursuer had he said, given three different versions of events - that he had fallen off his bike and slid, that he had stopped and been struck and that he had slowed down and been struck. P. C. Robertson has certainly seen inconsistencies in these versions of events.

 

Mr Boyle accepted that Mr Forrest's evidence created a certain difficulty for the Defender. He had said that the damage to the bike's forks was more consistent with the Pursuer's version of events, albeit it could have been caused by skidding into a bank; but that was unlikely. In any event, there had been no evidence as to the storage of the bike between the date of the accident and the date of its examination - the suggestion being that something else could have caused the damage.

 

Addressing the evidence of Amie Smeaton, Mr Boyle suggested that - in so far as the Defender was said to have glanced away from the view ahead of her - she was doing no more than checking her mirror as a prudent driver would do. While accepting that a child may have a limited grasp of such matters, he pointed to the fact that Amie's evidence had changed with regard to the distance between the two vehicles when she first saw her brother, and her suggested figures gave a closing speed of only about 7 kilometres and hour.

 

Acknowledging that it might be significant that the police reported the Defender to the Procurator Fiscal for consideration of a prosecution, Mr Boyle said that the police did so "with a caveat".

 

Reverting to the Pursuer's version of events, Mr Boyle said that the Pursuer's account - which gave a closing speed of 55 mph - beggared belief. There was not (save, he conceded for some shading spoken to by Mr Forrest) any damage to the front bumper of the Defender's car - a fact that was inconsistent with a high speed impact between the car and the motor cycle. At the very least, Mr Boyle said, I would need to find that there was no obvious damage to the front of the Defender's car.

 

Acknowledging that "there were areas with which she could not help", Mr Boyle presented the Defender as an honest, reliable, credible witness. He referred me to her account of events. It was, he suggested, consistent with the fact that the Pursuer would have slid along the road faster than his motor cycle and thus ended up further down the road than the bike.

 

In closing, Mr Boyle asked me to believe the Defender's account of events; or, if I could not do so, to accept neither and assoilzie the Defender on the basis that the Pursuer had failed to prove his case.

 

Mr Boyle opposed the certification of Mr Forrest as an expert witness. He was, he said, a witness to fact who had been asked to stray into an area of expert evidence. In any event, while Mr Forrest had certain skills, he had not been dealt with as an expert witness - he had not been given the pleadings and precognitions with a view to preparing a report or the like. He was simply asked to carry out a valuation of the motor cycle. He had been called as a witness to fact - to his valuation - and could not now be converted into an expert witness. One could not certify as an expert someone who had been a factual witness. Whether he was an expert or not all turned upon the original instructions he had been given - and he had not been instructed as an expert. Mr Boyle accepted that expenses should follow success.

 

With regard to contributory negligence, Mr Boyle suggested that if I broadly accepted the Pursuer's version of events, then I might come to the view that the Pursuer had contributed in some way by virtue of his speed, road position or the like.

 

Having thus heard the parties' submissions, I made avizandum.

 

My decision

 

My decision in this matter turns entirely upon my assessment of the credibility of the witnesses. This is not a case in which the striking differences in the evidence that I heard from the two opposing "sides" can, in my view, be attributed to mistake or unreliability. Someone has come to Court with the intention of misleading the Court as to the true facts of the case. In reaching my decision, therefore, I have had to first address the issue of credibility.

 

Having addressed the issue of credibility, I have concluded that the "Smeaton family" evidence is to be preferred to that of the Defender. Clearly, the "Smeaton" evidence was not in all regards consistent. There were a number of inconsistencies. They were, however, inconsistencies that can reasonably be attributed to the passage of time that has elapsed between the events herein and the proof, the fact that events perhaps "unfolded" rapidly before the witnesses, that they were overcome at the material time by shock or alarm - and so on. It is, I think, well recognised that honest witnesses who witnessed the same road accident will sometimes have differing recollections of what they witnessed at the time.

 

I will explain the basis upon which I have arrived at the foregoing view.

 

Firstly, as regard the "Smeaton witnesses", the Pursuer made a good impression on me when giving his evidence. He remained "cool" in the witness box, answering questions clearly and firmly and sticking to his version of events. This was particularly so when he was questioned about the difference in the case as stated in the writ and as appearing in the Record. There was nothing in his version of events that caused me, taking that evidence in isolation, to question the evidence that he gave. I was not quite so confident as to the evidence of the Pursuer's father. His father's demeanour in the witness box left a less favourable impression. Mr Smeaton Snr. spoke very fast in a rather "clipped manner" which made him difficult to understand. But, in overall terms, he gave his evidence in a reasonable manner, and didn't shuffle, redden, appear patently evasive or the like even when allegations of "insurance fraud" were levelled against him. So, again at first sight, I found his evidence to be acceptable. Young Amie Smeaton - who was, likewise, subjected to cross-examination in relation to a possible "insurance fraud" - made an excellent impression upon me. Although "tensing up" - not excessively - during a fairly rigorous cross-examination, she remained broadly relaxed. She did not - as she may well have done had she been lying - look to her father or brother who were in the public benches as if for support. She gave her evidence in a clear and convincing way. While Mr Boyle sought to suggest to her that the difficulty she was having in answering questions was due to the fact that she was lying, I really did not identify any particular difficulty on her part in responding to his questions. She "stuck to her guns", denied that she was perjuring herself and generally gave a satisfactory account of events. With regard to Mrs Smeaton, the immediate impression that she gave was of a straightforward character who impressed me as genuine. She was adamant that he children had been brought up to tell the truth and that she and her children were doing so! At the "end of the day", looking to the evidence as a whole, I have accepted that assertion.

 

Ultimately, the fact that the "Smeaton family" were subjected to relatively "hard" cross examination has served to assist me in determining where the truth lies. All four family witnesses dealt well with such cross-examination.

 

My assessment of the credibility of the "Smeaton witnesses" does not, of course, turn solely upon my assessment of them in the witness box. I have also had regard to the evidence that they gave, to the consistencies and to the inconsistencies. In overall terms, I found their account of events to be credible and the inconsistencies to be explicable. I acknowledge that the evidence of the Pursuer and his sister Amie differed in relation to the speed of the vehicles just before and at the point of impact. The Pursuer said that he was still moving - albeit at 10 mph or less - and that the car was still travelling quite fast. Amie, on the other hand, was quite sure that her brother had come to a halt before the impact. She appeared to accept - when it was put to her in cross-examination - that the vehicles had only collided at about 3 to 4 mph. On balance - accepting as I do that the Pursuer's motor cycle suffered extensive frontal damage - I prefer the Pursuer's version of events. That said, I have no reason to think that Amie was doing anything but her best to recall this incident and to give me an honest account of events. She had, however, told the police at the material time that her brother had still been moving at the time of the impact and I think that her memory failed her when she was "in the box". While preferring the Pursuer's account, I conclude, on balance, that lesser speeds than those recalled by the Pursuer were involved. Again, I do not think that the Pursuer was seeking to mislead me, but I would not expect a young man's recollection of speeds to necessarily be perfect in the situation with which he was confronted on this day. I accept that Pursuer has, at different times, given slightly differing accounts of the events in which he was involved, but that - again - leaves me unsurprised and unsuspicious as to his honesty.

 

The Pursuer was questioned about the difference between the account of the accident found in his initial pleadings when contrasted with that found in the writ. He denied that this was due to his changing his story. Rather, he suggested that his solicitor had simply "got things wrong". He was firm and unshaken in this and I was not persuaded by this chapter in his evidence that his evidence was other than sound.

 

The "big question" raised by Mr Boyle with regard to the Pursuer's honesty arose - Mr Boyle suggested - from the fact that the Pursuer had given different accounts of events both to those preparing his medical notes and to the police. This had certainly raised the suspicions of the then PC Robertson. On an analysis of the evidence, however, I find that these "different accounts" have been exaggerated.

 

With regard to the medical notes, it was the Pursuer's position that he gave no account of events to anyone. This was consistent with his mother's evidence. She said that she had provided an account of events - of the car "clipping" her son's motor cycle. This was, however, inconsistent with the evidence of Nurse Kirsten Gibb as recorded by PC Robertson. Nurse Gibb's "evidence" suggested that she had recorded information received from the Pursuer. But this was in direct conflict with the evidence of both the Pursuer and his mother and could not, of course, be "tested" as Nurse Gibb did not herself give evidence. I can only speculate as to whether Nurse Gibb correctly recalled the source of her information; or as to whether or not PC Robertson correctly noted what she said. But, on the whole evidence before me, I attach no real import to what I was told of this nurse's evidence. Again, the evidence recorded at Elgin gave a slightly different version of events. How "Elgin" came by that information was never, however, clearly established. It may simply have reflected a "gloss" attached by someone to a general account of events received from the Pursuer or other members of his family; or to the terms of information communicated by nursing staff in Banff. Again, in the absence of the authors of the hospital records to speak to them (and I accept the difficulties that would attach to calling every conceivable witness to deal with this sort of issue), I really cannot attach much importance to the inconsistencies in these medical notes. On any account of events, the GP's record - that he was told that the Pursuer "fell off his bike" would seem to be accurate!

 

In relation to the Pursuer's statements to the police, it was Mr Boyle's position that the Pursuer had made three different statement to the police. Looking to the evidence of PC Robertson, however, the officer said that when he first spoke to the Pursuer, prior to his noting a statement, the Pursuer told him that he had "slowed down and pulled to his left. On doing so, Wendy Duncan had come round the corner in a car and collided with his bike, causing him to fall off onto the ground". It was put to the Pursuer by Mr Boyle - as I understood what was put - that "you first told him [PC Robertson] that you came to a halt". The Pursuer denied this - and correctly so according to my note of the officer's evidence. When it came to the giving of his first statement, PC Robertson said that the Pursuer had said something to the effect - as I noted it - that he had "slowed right down and pulled in to the nearside. On doing so, a silver Saab 9.3 came round the corner in the opposite direction and ran straight into my bike." That accounts impresses me as consistent with the first account given. When PC Robertson came to quote the second statement, he said that the Pursuer said "... I heard another car coming and I pulled in. As I was nearly stopped, a car came round the corner and hit the front of my bike". I cannot detect the making of "three different statements" in this evidence. Given that these three accounts have been "filtered" through PC Robertson on each occasion, the accounts impress as pretty consistent. So, to suggest that the Pursuer is discredited by the making of "three different statement to the police" is wrong.

 

PC Robertson - whose attitude to the Pursuer has, I suspect, significantly influenced the course of this litigation - placed some weight on the fact that Dr Anderson whom he spoke to at Banff had said that the Pursuer's injuries were consistent with falling off a vehicle and going across the road surface. He seemed to think that this was more consistent with the Defender's account of events than with the Pursuer's. At first sight, that may be so. But, seeking to apply common sense to the situation, I doubt if it could be said that the injuries were inconsistent with the Pursuer's account of events and Dr Anderson was not available to have that suggested to her. So, unlike PC Robertson, I attach no adverse significance to what Dr Anderson said.

 

I now turn to the Defender's evidence and to my assessment of her.

 

There was nothing in the manner in which Mrs Duncan gave her evidence that led me conclusively to the view that she was giving false evidence. Her demeanour when in the witness box was composed and her evidence did not waiver. At times, when it was suggested to her that she was not telling the truth, she was quite forceful in asserting her position - that she was doing so! She conceded nothing. But, that said, there were conspicuous "gaps" in her evidence. There were matters that she could not recall or explain. She said that she "could not take her eyes off Darrel" as she saw him sliding off his bike and that it "seemed like slow motion"; but she could not describe the manner in which the Pursuer actually came off his bike - whether to the left or right of the machine. She said that she just recalled the bike "locking up" and sliding from under him - after she had herself come to a halt. She said that Darrel was obviously sliding ahead of the bike as he went further than it did. On her version of event, however, I would have expected her to actually recall something of the "slide". But, she went as far as to say that she could not remember seeing Darrel on the ground. The difficulty that she had in recalling matters of detail was, I thought, entirely consistent with her having been taken by surprise when not concentrating on the road ahead. It was, I thought, consistent with the Pursuer's motor cycle striking the front of her moving car and taking her largely unawares. At times, her evidence was less than convincing. She volunteered the fact that she had no recollection of speaking to Amie at all as they went up this stretch of road - but Amie's evidence in this regard had "the ring of truth" about it; she said that, while travelling at 20 to 25 miles per hour and on seeing the Pursuer, she stopped her car within less than a car's length - which seemed unlikely. She denied that anyone had asked her for her insurance details on the day of the accident, but I preferred the evidence of Mr Craig Smeaton and his wife - both of whom said that they had spoken to the Defender to enquire as to her insurance details. All that said, some of the Defender's problems of recollection could - as she maintained - have stemmed from the fact that she was speaking to events that had occurred about eighteen months earlier.

 

Coupled with the foregoing factors, is the fact that the Defender's version of events does not explain the heavy frontal damage sustained by the motor cycle while the Pursuer's version of events does so. It appeared to be the Defender's position that only a handlebar of the bike had come into contact with her car, the bike then coming to a halt on the road. And, while there was no evidence of obvious damage to the Defender's car, she was not assisted by the evidence of Mr Forrest who spoke to the manner in which bumpers could deform and reform. It was Mr Forrest's evidence that, notwithstanding the lack of clear frontal damage to the Defender's car, he could not say that the damage had not occurred in the manner described by the Pursuer. But he was clear as to the fact that the motor cycle had sustained extensive frontal damage consistent with a head on collision.

 

In placing some weight on the damage suffered by the motor cycle, I am conscious of the fact that Mr Forrest did not inspect the motor cycle until some months after the accident. But there was no evidence before me to suggest that the damage that he then recorded was caused by anything other than the road accident and I am satisfied on the whole evidence that what he saw was the result of that accident.

 

I would comment briefly on the allegation of "insurance fraud" levelled at all the members of the Smeaton family. While I can understand why it required to be put to these witnesses that they were not telling the truth in some material respects, I was surprised - and I remain surprised - that the allegation of "insurance fraud" was levelled at them. As I understand the common use of the expression "insurance fraud", no basis for its use arose in this instance.

 

Lastly, I should comment on the issue of contributory negligence. It would not be unusual if, in a collision of the sort with which I am dealing, some contributory negligence could be identified. The proof in this case was been conducted, however, very much on the basis that the accident involved was wholly the fault of one party or of the other. Issues of contributory fault - as distinct from absolute fault - were really not explored in evidence. Perhaps because of this, I find myself unable - on the evidence before me - to identify any basis for a finding of contributory negligence on the part of the Pursuer.

 

My Findings in Fact

 

These findings simply reflect what I have made of the "Smeaton" evidence.

 

In so far as I feel that specific findings require particular comment, my comment is as follows:

 

Finding 9. I have had no difficulty in concluding that the Defender was failing to keep a proper lookout at the material time - that that was the root cause of this collision. I am satisified that she was distracted by the conversation that she was having with Amie Smeaton.

 

Finding 10. This and the preceding findings reflect the evidence of the Pursuer. He said that the impact was "quite major". When it was put to the Pursuer that the car had halted and he had sped on towards it and then lost control, he denied this. When it was suggested to him that he just fell of his bike which then slide down the road into the Defender's stationary car, he likewise denied this. He said that the Defender may have braked at the point of collision but that her vehicle continued onward for "quite a bit" after the impact. On the evidence, I have been unable to reach any concluded view as to the distance for which the car did continue to travel - albeit I am satisfied that it travelled for some distance.

 

Amie Smeaton said that she only saw her brother when he was about 8 metres from the car. At that time, he appeared to have slowed his bike. She glanced away and then back at him. By that time, he appeared to be about six metres away and to have stopped. At this point, Amie said, the Defender had her face turned towards Amie and was speaking to her. The Defender and Amie had been chatting and the Defender had been turning her head briefly to address Amie and otherwise making eye contact with her in the interior mirror of the car. Realising that the Defender was unaware of the Pursuer's presence, Amie said that she screamed. Amie said that, by this time, she was aware that the Defender would be unable to stop. When it was put to her that the impact speed had only been about four to five miles per hour, Amie accepted that that was so. The front right hand side of the car, she said, struck the Pursuer. When it was put to her that he brother had just skidded and fallen off his bike, she strongly asserted that she was telling the truth.

 

Finding 11. During cross-examination, the Defender's agent put the terms of Condescendence 2 to the Pursuer. The description of the accident therein differed from the explanation that the Pursuer had given during the course of his evidence. The Pursuer could not explain the difference. He said that his solicitors must have made a mistake - he remained firm and unshaken when examined on the point. When his hospital and other medical were put to him, he said that they did not reflect anything that he had said. He said that it must have been his mum's or dad's account of events - he never said anything to the staff himself. When it was put to him that at different times he gave the police a different account of events, he said that he was unaware of having done so.

 

Finding 12. The Pursuer was unable to say what happened to his motor cycle in the moments following the impact. He could only say that it "followed" him. His sister Amie said more than once that the motor cycle "went up into the air" and I accepted her evidence in this regard. While it is clear that subsequent to the accident a small chip or dent was seen to have been "suffered" by the front offside wheel of the Defender's car, I have not - on the evidence and on the balance of probabilities - found this to have resulted from the collision.

 

Finding 13. Given that quantum had been agreed, the issue of the exact damage to the motor cycle was not explored in evidence.

 

Finding 14. The Pursuer was cross-examined on the basis that his account of events could not possibly be reconciled with the minor damage to the Defender's vehicle. This did not cause him to retreat from that account. As touched upon above, when Mr Forrest came to give evidence, he was questioned with regard to the damage which one was likely to see if a motor cycle collided - in the manner described - with the front bumper of a Saab 9.3. He said that he would expect to see something - but pointed out that it appeared that the blank plate on the front bumper of the car pictured in the photographs shown to him was missing. He explained how, on such a collision occurring, the bumper would be crushed but then the outer skin might"bounce out" and reform. There could be damage to the bumper mountings but that would not be obvious in such a situation. Looking at the photographs of the Defender's Saab as put to him, he said that he could not say whether or not it had been involved in a head on collision with the Pursuer's motor cycle.

 

Findings 19 - 22. These findings reflect the terms of the Joint Minute lodged by the parties.

 

My Findings in Fact and Law

 

Findings in Fact 5 - 8. These findings reflect the terms of the parties' Joint Minute. I am satisfied that they are appropriate findings to make.

 

Expenses

 

The parties were agreed upon the fact that expenses should follow success. I have thus found the Defender liable in expenses to the Pursuer. The only issue of expenses upon which I have required to form a view is the issue of whether or not Mr Forrest should be certified as an "expert" or "skilled" witness. I have concluded that he should not be so certified. I appreciate that the evidence that he ultimately gave was such as one might normally lead from a skilled witness who was not a witness to fact. But, that said, I think that the position of Mr Forrest can best be likened to that of a medical practitioner who, having treated the pursuer in the ordinary course of his professional duties, has not required to make any special examination of him prior to his giving expert evidence at the proof. There are Sheriff Court decisions to the effect that such a practitioner should not properly be certified as an expert. While such decisions are not binding upon me, that seems to me to be a sound approach - and an approach which I consider it appropriate to adopt in relation to Mr Forrest.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PPD laptop/Banff/Judgment Smeaton v Duncan final