Scottish Sheriff Court Decisions

A38/09

SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY

 

JUDGMENT

of

SHERIFF PETER G. L. HAMMOND

in causa

MRS. AMANDA ALLARDICE, 12 McLean Place, Paisley, Renfrewshire, PA2 3DG.

PURSUER

against

DIRECT LINE INSURANCE PLC, Direct Line house, 3 Edridge Road, Croydon, Surrey, CR9 1AG.

DEFENDERS

 

PAISLEY, August 2010.

The Sheriff, having resumed consideration of the cause:

FINDS IN FACT:

(1)    The parties are as designed in the instance. The defenders are insurers of Mr. Rana Ashgar ("the insured"), and are convened as defenders in this action as being directly liable to the pursuer to indemnify the insured in terms of the European Communities (Rights Against Insurers) Regulations 2002.

(2)    The pursuer is the owner of a Ford Ka motor car registration number SJ52 WXG.

(3)    At about 7.10 p.m. on 17 May 2008, the pursuer was driving her car on Barrhead Road, Renfrewshire, when she was involved in a collision with a Chrysler motor car registration number WF57 WEJ being driven by the insured.

(4)    The roadway at the locus is a dual carriageway, with 2 lanes in each direction separated by a central reservation.

(5)    The pursuer was driving behind the insured in the left hand land of Barrhead Road travelling towards Paisley. The pursuer pulled out into the right hand lane in order to overtake the insured's vehicle

(6)    The pursuer's manoeuvre into the right hand lane took her into the path of a white Mercedes Sprinter van being driven by the witness Nadeem Shehzad. This van was in the right hand lane and about to overtake the insured's vehicle.

(7)    The pursuer failed to notice the white van approaching from behind. As she pulled out into the right hand lane to pass the insured's vehicle, Mr. Shehzad sounded the van's horn to warn the pursuer of his oncoming vehicle.

(8)    The pursuer panicked on becoming aware of the white van close behind her. She swerved back towards the inside lane and struck the offside of the insured's car with the nearside of her car.

(9)    The pursuer's car then veered across the carriageway and the central reservation before coming to rest at the entrance to a side street at the opposite side of the road.

(10)As a result of the collision the pursuer's car was damaged. There was damage to the steering, and to the nearside bodywork in the area of the passenger door.

(11)The cost of repairs required to restore the pursuer's car to its pre-accident condition are £1,026.96.

(12)Following the accident, the pursuer entered into a Credit Hire Agreement with Helphire (UK) Limited, who provided her with a replacement vehicle.

(13)The pursuer hired a vehicle from Helphire (UK) Limited for a period of 91 days from 22 May until 20 August 2008. The total hire cost was £4,325.06.

(14)The appropriate daily hire charge for an equivalent vehicle is £39.90 plus VAT.

 

FINDS IN FACT AND LAW.

1.             The accident was caused by the pursuer's loss of control of her car in the course of attempting to return to the nearside lane after aborting an unsafe overtaking manoeuvre.

2.             The pursuer's loss injury and damage was not caused by fault on the part of the defenders' insured.

 

THEREFORE sustains the first and second pleas in law for the defenders; Quoad ultra repels the parties' pleas in law; assoilzies the defenders from the crave of the Initial Writ; finds the pursuer liable to the defenders in the expenses of the cause; allows an account of expenses to be given in and remits the same when lodged to the Auditor of Court to tax and report.

 

NOTE

Introduction

[1.] This is an action of damages for reparation in respect of a road traffic accident on 17 May 2008. The pursuer sustained damage to her Ford Ka motor car SJ52 WXG. In this action she claims for the cost of repairing the damage to her car, and certain costs in hiring a replacement vehicle while her own one was off the road. Liability and quantum were disputed. A joint minute of admissions was lodged agreeing a number of matters relevant to quantum. The only issue between the parties, so far as quantum is concerned, was the pursuer's need for a replacement car, and her reasonableness in incurring the costs of entering into an extended Credit Hire arrangement for that purpose.

[2.] The proof proceeded before me on 7 June 2010. The pursuer was represented by Mr. McDonald, solicitor. The defenders were represented by Ms. Morrison, solicitor. Mr. McDonald led evidence from the pursuer herself and Derek Allardice (her husband). The defenders led evidence from Mr. Rana Ashgar (their insured) and Mr. Nadeem Shehzad (an eye witness to the collision).

Liability: Circumstances of the Accident

[3.] The pursuer was returning from work at the Silverburn Shopping Centre at about 7.10 p.m. on 17 May 2008. She was driving her blue Ford Ka SJ52 WXG along Barrhead Road towards Paisley. The road is a dual carriageway at that point, with 2 lanes running in each direction and a speed limit of 40 m.p.h. In the course of her journey she was involved in a collision with a black Chrysler motor car driven by the the defenders' insured, Mr. Ashgar. The parties are at complete odds as to how the accident occurred and who was responsible.

[4.] The pursuer's account is that she negotiated a roundabout onto Barrhead Road. She was travelling in the nearside (left) lane. She saw Mr. Ashgar's car some distance ahead of her in the offside lane. As she watched, Mr. Ashgar pulled over into the left hand lane in front of her and proceeded to drive slowly. She had to slow down and brake. She did not know why Mr. Ashgar did that, as there were no other vehicles in front of him. According to the pursuer, she then looked behind, saw nothing there and moved out into the offside lane to overtake Mr. Ashgar. As she did so, and began to draw level with him, he suddenly pulled out towards the offside lane without warning and collided with the nearside of her car. He did not indicate. There was nothing she could have done to avoid a collision. Her car was struck in the middle, in the area of the nearside passenger door. The point of impact on Mr. Ashgar's vehicle would have been towards the rear offside. The impact of the collision threw her vehicle across to the other side of the dual carriageway, where it came to rest in a side street, namely Connelly Place. Mr. Ashgar came over and spoke to her. She told him that he had hit her off the road, and she phoned the police. Mr. Ashgar apologised and said he had not had much luck, as he had only had the car a few months and this was his second accident.

[5.] The pursuer was not aware of any other eye-witnesses. There had been no other vehicle travelling behind her. In particular, she had not been aware of any white van. She sometimes had the radio on in the car, but it was off at the time of the accident. She did not hear any vehicle horn noise. Because of its size, she thought at first that Mr. Ashgar's car had been a Bentley. The pursuer denied that she had told her husband on the phone that she had "crashed into a Bentley". Her evidence, which was supported by her husband, was that she had said "I've been hit off the road by a Bentley".

[6.] Mr. Allardice attended at the locus shortly afterwards and spoke to Mr. Ashgar, who said that the situation had "got out of control". Apart from the pursuer and Mr. Ashgar, there was no-one else at the locus when he arrived. Neither of them made any mention of there having been any eye witnesses.

[7.] The evidence for the defenders was completely at variance with that scenario. Mr. Ashgar gave evidence and explained that he was driving home along Barrhead Road when the pursuer collided with his car. He had been in the offside lane at the roundabout onto Barrhead Road, and thereafter returned to the nearside lane. He checked his rear view mirror. There was no traffic in front of him. He suddenly heard music, then the sound of a vehicle horn and something crashed into his car towards the rear end. It happened very quickly. He could have done nothing to avoid the collision. He looked back in time to see the pursuer's car veer off across central reservation behind him, and he realised that this was the source of the music. A white van then went past him.

[8.] Prior to the collision, according to Mr. Ashgar, he did not overtake any other vehicle. There was nothing to overtake as the road ahead was empty. There were traffic lights some distance away up the road, but he had no reason either to drive slowly, brake, or pull out into the offside lane.

[9.] After the accident, a van stopped seconds later. A man came out of the van and told him that he and his colleague had been in a van behind him, and had seen what happened. The man gave him a card with the name and contact details of their business, in case he needed a witness.

[10.]         Mr. Ashgar went over to speak to the pursuer. She was hysterical and apologised to him. The pursuer telephoned her husband and told him she had crashed into a Bentley. Mr. Ashgar denied apologising himself, explaining that he had no need to do so. He also denied making the remark about having bad luck with the car and a previous accident.

[11.]         The only independent witness was Nadeem Shehzad. His evidence was that he was driving his white Mercedes Sprinter van along Barrhead Road, and saw the accident and what led up to it. He was accompanied by a passenger; an employee, Martin Taylor. He was driving along Barrhead Road from the roundabout in the offside lane. He was gaining on Mr. Ashgar's Chrysler, which was in the nearside lane approximately 2 car lengths in front, and getting ready to pass it. The van's windows were open and the radio was off. Suddenly he heard music and looked in his nearside wing mirror in time to see the pursuer's blue Ford Ka passing him in the inside lane. He realised she was going faster than the Chrysler, and would have to pull out into the offside lane to pass it; which would bring her onto a collision course with his van. Mr. Shehzad applied his brakes and sounded his horn as the pursuer moved out right in front of him in an attempt to pass the Chrysler. The pursuer appeared to panic on hearing the horn and realising that she was in the van's path. She tried to get back into her own lane, but by that time she was partly alongside the Chrysler. She lost control of her car and collided with the offside of the Chrysler before veering off across the central reservation.

[12.]         On behalf of the pursuer, Mr. McDonald vigorously challenged the defenders' witnesses to the effect that the white van had not been there and Mr. Shehzad had not in fact witnessed the collision at all. The pursuer's position was that there had been no white van. Mr. Ashgar's position was that immediately after the collision a man had come from the white van and given him a business card, suggesting that he could call the shop if he needed a witness. Mr. Ashgar reported the accident to his insurers, and left them to deal with the matter. At some point he was advised by the defenders that the pursuer was making a claim against him. They requested further particulars about the accident. Mr. Ashgar had mislaid the card given to him at the locus, but contacted the shop upon finding the card some months later. It was a shop called "Ali Baba Furniture and Electrical". The man who had handed over the card, Martin Taylor, no longer worked for the shop but Mr. Shehzad explained to him that he had himself also seen what happened. He then got Mr. Shehzad's details and passed them on to the defenders. Mr. Ashgar was adamant that neither Mr. Shehzad or Mr. Taylor were known to him prior to the accident, and he had no connection with them whatsoever other than passing eye witnesses who had passed on their details.

[13.]         Mr. Shehzad confirmed in his evidence that he had never met Mr. Ashgar prior to the accident, and was adamant that he was an independent eye witness.

[14.]         The pursuer's position was that Mr. Shehzad was lying, and I should reject his evidence and that of Mr Ashgar. Mr. McDonald drew my attention to a number of inconsistencies which, in his submission, undermined their evidence. The evidence about the position of traffic at the roundabout and on Barrhead Road was inconsistent. Mr. Ashgar had said that he was in the right hand lane at the roundabout to avoid shopping traffic in the other lane, but at that time of night it was unlikely that there would be significant traffic there. His evidence was that there were no vehicles behind him as he entered Barrhead Road, but then he went on to state that he was passed by a number of vehicles in the 100-150 yards or so between that point and the roundabout. Mr McDonald also pointed out that the position of damage to the vehicles was open to different interpretations. He submitted that the force required to push the pursuer's car across the central reservation was possibly indicative of movement into her lane by Mr. Ashgar's vehicle. It was strange how Mr. Ashgar could have taken the rear view observations he claimed if he did not see the other vehicles behind him. The defenders' witnesses' evidence about the distance, timing and traffic conditions between the roundabout and the locus was also suspect. If there was a delay in clearing the roundabout, it was not clear how Mr. Shehzad's van caught up with Mr. Ashgar's vehicle so quickly.

[15.]         Mr. McDonald submitted that the circumstances which led to Mr Shehzad coming forward as a witness were unclear and suspicious. The pursuer was clear that there had been no other vehicle such as a white van present. There was a discrepancy between Mr Ashgar and Mr. Shehzad over the timing of the contact from Mr Ashgar. When Mr Ashgar first telephoned, the only witness name he was able to refer to from the card was that of Martin Taylor. It was only at that late stage of contact that Mr. Shehzad disclosed that he had been in the van and witnessed what took place. Also, Mr. Ashgar had said in evidence that the reason he spoke to Mr Shehzad was to make sure he would attend court, but Mr. Shehzad's evidence was that Mr. Ashgar made no mention of going to court. Mr McDonald also drew to my attention that it seemed strange that, if Shehzad and Taylor had been there in the van, they did not go to check that the pursuer was alright following the collision.

[16.]         Both agents in the course of their submissions acknowledged that, in relation to liability, the question came down to one of credibility and reliability of the witnesses. There were two contradictory versions of how this accident occurred. I recognise that there were some discrepancies in the evidence between the defenders' witnesses, but I was not persuaded that these were of sufficient weight to undermine the trust which could be placed in their evidence. I formed the view that Mr. Ashgar and Mr. Shehzad were essentially credible and reliable. Any discrepancies could be attributed to the passage of time and the speed with which events happened. It is significant that the lead up to the impact took place behind Mr. Ashgar, and he was not aware of the pursuer's vehicle until it hit his car. I prefer the evidence of Mr Ashgar and Mr Shehzad to that of the pursuer. The road ahead of Mr Ashgar was clear. I can see no reason why he would have had any reason to pull out into the offside lane. There were no vehicles for him to overtake and the traffic lights at the next junction were still a long way ahead. It seems more probable that the pursuer had pulled out into the offside lane to overtake Mr Ashgar and then panicked when the white van right behind her sounded the horn to alert her to its presence. The evidence, which I accept, is that the puruser had music playing in her car which was loud enough to be heard by Mr. Ashgar and Mr. Shehzad from their respective vehicles. This may have distracted the puruser's attention. My assessment of the evidence is that the pursuer came up behind Mr. Ashgar in the nearside lane and began to pull out to pass him without realising the proximity and speed of the approaching white van in the offside lane. When Mr. Shehzad sounded his horn, the pursuer panicked and swerved left to try to get back into the nearside lane, causing her to lose control of her car, strike Mr. Ashgar's vehicle on its offside, and rebound off across the carriageway.

[17.]         The evidence of Mr Shehzad is crucial. He is the only independent witness. I did not accept that he was lying when he said he had witnesses the accident. I can see no reason why he would do so. He maintained that he had not met the defender prior to the accident and was not connected to him in any way. I believe him. There was no evidence to the contrary. Furthermore he was fully comprehensively insured under his policy with the defenders. He had a fully protected No Claims bonus. There was some confusion over Mr Ashgar's contacts with the shop, but in my view these can be accounted for to a large degree by the fact that messages were left with other staff. Martin Taylor, the employee who had spoken to Mr Ashgar at the locus, was no longer employed by the firm and could not be traced.

[18.]         For these reasons, I found the defenders' witnesses to be credible and substantially reliable. I preferred their evidence to that of the pursuer. The onus of proof rests on the pursuer to prove her case on a balance of probabilities. I have reached the conclusion that the pursuer has failed to prove that the accident was caused to any extent by fault on the part of the defenders' insured, and accordingly her action must fail. In my view, the evidence points to the accident having been wholly caused by her own fault.

Quantum - Damages

[19.]         It is appropriate that I should deal with the question of damages, and what my approach would have been if I had found in favour of the pursuer on the merits.

[20.]         The two heads of damages claimed by the pursuer are (firstly) the cost of repairing her vehicle, and (secondly) hire charges for a replacement vehicle under a Credit Hire Agreement.

[21.]         The cost of repairs required to restore the pursuer's vehicle to its post accident condition are agreed in the joint minute to be £1,026.96.

[22.]         The more controversial element is the credit hire charges. According to the joint minute, it is agreed that following the accident the pursuer entered into a Credit Hire Agreement with Helphire (UK) Limited in terms of which they provided her with a temporary replacement vehicle. Under that agreement, the pursuer hired a vehicle for a 91 day period from 22 May until 20 August 2008. The total cost of the hire amounted to £4,325.06.

[23.]         It is agreed in the joint minute that the appropriate daily rate of hire is £39.90 plus VAT.

[24.]         In inviting me to grant decree for the repair costs and car hire charges, Mr. McDonald submitted that the two issues to be considered were (a) Whether it was reasonable for the pursuer to have hired a vehicle, and (b) Whether it was reasonable for her to have required to hire that vehicle for 91 days.

[25.]         The evidence was that the pursuer only had Third Party Fire and Theft insurance cover, which gave no entitlement to a courtesy car. I accepted the pursuer's evidence that she would not have been in a financial position to hire a vehicle herself. Following the collision, her car was driveable home with difficulty. Apart from the bodywork damage, there was a problem with the steering which was ultimately fixed at no cost by a friend of the pursuer's husband. I accepted the evidence of the pursuer and her husband that the pursuer needed a car for her daily activities. She and her husband both worked on shifts, and their places of work and shift patterns were different. I accepted that it was not practicable for her to rely on her husband for transport, other than perhaps on a very occasional basis. Her insurers referred her to Helphire for a replacement .

[26.]         In relation to the duration of the hire, the pursuer did not consider the car driveable due to the steering problem. She commenced the car hire on 22 May 2008; some 5 days after the accident. On 27 May, her car was inspected by an engineer who stated that it was beyond economic repair. She wanted resolution of her claim so that she could replace her car. Helphire contacted her later in the summer to find out how repairs were progressing. By that stage there had been no admission of liability and no resolution of the claim was in sight. Helphire therefore terminated the hire on 20 August 2008.

[27.]         On behalf of the defenders, Ms. Morrison submitted that the pursuer did not need to hire a replacement car. In any event, she had failed to mitigate her losses and had failed to demonstate why it was reasonable to have continued hire of a replacement car for 91 days. Liability was still disputed at the proof, but the pursuer had assumed that the defenders would accept liability. This was an assumption she was not entitled to make. Had Helphire not terminated the hire, the pursuer might still be driving the hire car to this day. She pointed out that the fault which made the car undriveable was the steering defect, which was corrected free of charge by a friend of the pursuer's husband. If it was so easy to fix the steering, why did she not have it fixed earlier instead of waiting until the hire was terminated 3 months later? That would have been the reasonable and prudent course of action. Had she done that, the parties would have been arguing about a much smaller sum today.

[28.]         Ms. Morrison referred me to the case of Whitehead v Johnston 2006 Rep L. R. 25. In that case, the pursuer's car was deemed unroadworthy after a road traffic accident. Repairs were estimated at £1,750. The repairs were not carried out for a period of 12 months or so. In the meantime, the pursuer hired a replacement car from a company which provided it to him without charge. The costs of the hire for the 12 months came to more than £18,000. The pursuer argued that he could not have afforded to carry out the repairs himself. The defender argued that the pursuer had failed to mitigate his loss by not having the car repaired sooner. It was held that the cost of hire charges were recoverable if reasonable, but that would involve consideration of all the circumstances including the financial condition of the wronged party, and the level of costs themselves. In that case, the court considered that 6 weeks was a reasonable period for the repairs to be carried out. To that, he added a period for decision making, and allowed a total hire period of 75 days. At page 30, Sheriff Ross observed: "...But if a driver is not comprehensively insured and if there is no early acceptance of liability....or...the pursuer does not take reasonable steps to establish whether the claim is likely to be met, it cannot, in my opinion, be reasonable to continue to hire a replacement vehicle as a cost which far outweighs that of the repair."

[29.]         I respectfully accept and adopt the reasoning of Sheriff Ross and the authorities which are referred to in his judgment. The test of reasonableness involves proportionality as between the damage, the cost of repair and the period of hire of a replacement vehicle. The pursuer in the present case seems to have proceeded on the assumption that her claim would be met, without there having been any indication from the defenders that this would be so.

[30.]         Both parties accepted that if I did not find a 91 day hire period to be reasonable, it would be open to me to make a finding that a lesser period would be appropriate.

[31.]         I was not addressed in detail as to the timescales for carrying out the repairs to the pursuer's car. However it appears that the bodywork repair was relatively straightforward and involved a standard kind of car. The steering problem was fixed informally by a friend at no cost, and this was the defect which made the car unroadworthy.

[32.]         In all the circumstances, I consider that it was reasonable for the pursuer to have entered the credit hire agreement to obtain a replacement vehicle. However the period of 91 days is excessive. If I had been finding in favour of the pursuer, I would have found her entitled to recover hire charges at the rate of £39.30 plus VAT per day for a period of 35 days (5 weeks). That represents a fair period of 14 days during which to investigate the claim position, have the vehicle inspected by insurance engineers, and come to a decision about repairs. A further period of 21 days ought to have been sufficient for these relatively straightforward repairs to be effected.

Expenses

[33.]         It was agreed by parties' agents that expenses should follow success.

[34.]         The result is that the pursuer's case fails. I will grant decree of absolvitor in favour of the defenders, and award the expenses of the cause in their favour.