SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

 

PD16/09		JUDGEMENT   of   GRAEME NAPIER ESQ, SHERIFF OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
		in the cause
		JAMES SMITH, residing at 42 Jesmond Road, Bridge of Don, Aberdeen, AB22 8UN.
		Pursuer
		against
		MRS ROSSLYN FOWLER, residing at 83 Lee Crescent, Bridge of Don, Aberdeen, AB22 8FH.
		Defender   _____________________

 

 

Act:		Foster, Solicitor Hughes-Dowdall, Glasgow
Alt:		Richardson, Harper McLeod, Glasgow

 

 

 

 

ABERDEEN, 25^th July 2012.

 

The Sheriff, having resumed consideration of the cause,

 

 

Finds in Fact

1)             The pursuer is James Magnus Smith, who is aged 61 years and resides at 42 Jesmond Road, Bridge of Don, Aberdeen, AB22 8UN.

 

2)             The defender is Rosslyn Mary Fowler, who is aged 60 years (born 22 October 1951) and resides at 83 Lee Crescent, Bridge of Don, Aberdeen, AB22 8FH.

 

3)             Beach Esplanade, Aberdeen (which was occasionally and erroneously referred to at proof as Beach Boulevard) is a public road consisting of a single undivided carriageway running generally north to south. For much of its distance north from its junction with Beach Boulevard to Bridge of Don it is sufficiently wide to accommodate two lanes of traffic travelling in either direction.

 

4)             A road, referred to at the proof as 'Accommodation Road', but also referred to in the pleadings as the 'Golf Road slip road', lies to the west of Beach Esplanade and forms a junction with it. The junction is at an acute angle to Beach Esplanade as viewed by a driver travelling north on Beach Esplanade.

 

5)             At the area of Beach Esplanade adjacent to that junction it was sufficiently wide to permit two lines of traffic travelling in either direction in June 2007 and at that time there were no road markings delineating any separate lanes.

 

6)             At approximately 1710 hours on 6 June 2007, the pursuer was driving his Peugeot 307 motor car, SV04 KUN north on Beach intending to travel its length to Bridge of Don. At the same time the defender was driving her Citroen C4 SX HDi motor car, registration number J444 LAF, south on Beach Esplanade. She was intending to turn right into the Accommodation Road.

 

7)             There were two lanes of traffic travelling northbound and two lanes of traffic travelling southbound at the relevant section of Beach Esplanade.

 

8)             Entry to, and egress from, the Accommodation Road is made difficult by two factors, namely the angle formed at the junction with Beach Esplanade and a comparatively steep hill on Accommodation Road approaching the junction. Although Accommodation Road is wide enough at the junction to accommodate the width of two vehicles, the configuration of the road means that in effect one car cannot enter Accommodation Road from Beach Esplanade while another car is exiting Accommodation Road on to Beach Esplanade.

 

9)             Approaching the junction, the pursuer's vehicle had remained in the nearside or left hand northbound lane of traffic (at least from the point at which there is an exit from a car park on to Beach Esplanade some distance south of the Accommodation Road junction).

 

10)         In order to carry out her intended right hand turn across the northbound traffic, the defender had positioned her vehicle towards the centre of the road, remaining on the southbound side of the roadway and leaving enough room for a following southbound vehicle to pass her vehicle on the nearside. There was also sufficient room for two vehicles to travel on the northbound side of the road.

 

11)         The driver of a white van travelling in the outer or offside northbound side of Beach Esplanade, just ahead of the pursuer's vehicle, signalled the defender by flashing headlights. It then came to a stop. The defender interpreted this as an indication that it was safe for her to execute her right hand turn.

 

12)         The pursuer could not see the defender's vehicle because his view of the position it had taken up was obscured by the white van. The presence of this van also obscured the defender's view of oncoming traffic including of the pursuer's vehicle.

13)         The pursuer's vehicle was adjacent to the rear of the white van when the white van came to a stop.

 

14)         Without being able to see whether there were oncoming vehicles on the nearside of the northbound side of the carriageway, the defender commenced a right hand turn as the pursuer's vehicle was passing the junction of Beach Esplanade with Accommodation Road. The pursuer's vehicle was struck by the vehicle driven by the defender. The collision took place between the front of the defender's vehicle and the offside of the pursuer's vehicle.

 

15)         At all times the pursuer was driving in an appropriate manner, taking up a correct position in the road and travelling in accordance with traffic flow northwards on Beach Esplanade without exceeding the speed limit and without deviating from his lane. Prior to the collision, the pursuer was traveling at a speed of approximately fifteen miles per hour.

 

16)         At all times the pursuer was driving according with the standards and guidance set down in the then current version of the Highway Code, in particular Rules 160 and 163.

 

17)         When executing her right hand turn manoeuvre, the driving of the defender did not accord with the standards and guidance set down in the then current version of the Highway Code, in particular Rules 110, 179 and 180. She also failed to take into account the caution contained in Rule 111.

 

18)         The line of traffic in which the pursuer was travelling had twice stopped to allow traffic to exit from or enter on to Accommodation Road.

 

19)         The damage sustained by the pursuer's vehicle was on it's off- side. This is consistent with the account given by him as to how the accident occurred but is not consistent with the account given by the defender whereby she explained that the defender's vehicle had driven into her vehicle.

 

20)         The damage to the defender's vehicle is also consistent with the account given by the pursuer and inconsistent with the defender's account.

 

21)         The collision between the two vehicles was due to the failure of the defender to take reasonable care for other road users and there was no contribution to causation by weather, all night conditions which were dry and clear.

 

Finds in Fact and Law

 

1)             This court has jurisdiction.

 

2)             The said accident was caused by the fault and negligence of the defender.

 

3)             Liability for the said accident rests entirely with the defender with no contributory negligence attributable to the pursuer.

 

4)             The pursuer suffered loss, injury and damage through the fault and negligence of the defender.

 

5)             The sum sued for being agreed is a reasonable estimate for the loss, injury and damage suffered by the pursuer.

 

Finds in Law

The pursuer having sustained loss, injury and damage due to the fault and negligence of the defender, the defender is bound to make reparation therefor.

 

THEREFORE finds the defender liable to make payment to the pursuer of the sum of THREE THOUSAND ONE HUNDRED AND FIFTY POUNDS (£3,150) STERLING together with interest thereon at the rate of eight per centum per annum from 6 June 2007 until the date of payment; Finds the defender liable to the pursuer in the expenses of the action, appoints an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and report; and Decerns.

 

Sheriff

 

 

 

NOTE:

Background

[1]               In this action the pursuer seeks decree for payment of £3,150 in respect of loss, injury and damage sustained by him arising out of a road traffic accident involving a vehicle driven by the defender on 6 June 2007. The defender has a counterclaim in the sum of £20,000. Whilst the quantum of the pursuer's claim was agreed (in the sum of £3,150) liability was not. Nor was the value of the counter-claim. Accordingly if I find either that the defender is successful in her argument that the pursuer is solely responsible, at least partially responsible, for the accident, then it is agreed that it will be necessary for a proof in relation to quantification of her claim.

 

[2]               During the course of the proof, I heard evidence only from the pursuer and the defender. Various productions, including photographs, had been lodged and were referred to. Essentially, however, this case turns on what I make of the evidence of each of the parties.

 

[3]               The evidence was led in an afternoon and parties were content that the shorthand notes did not require to be extended. This judgment is accordingly based upon my contemporaneous notes.

 

[4]               The parties were represented respectively by Mr Foster, Solicitor, Glasgow and Ms. Richardson, Solicitor, Glasgow. The presentation of the case was assisted by the focussed approach of both agents. It was agreed that rather than setting aside an additional date for submissions, agents would lodge written submissions within two weeks of the conclusion of the proof. These were received by the sheriff clerk respectively on 19 and 20 June 2012.

 

[5]               It was not in dispute that the parties were driving in opposite directions on Beach Esplanade Aberdeen. The issue in this case was whether the pursuer, as he contended, had been proceeding properly along the Beach Esplanade, Aberdeen in the nearside lane of 2 north-bound lanes of traffic when a van to his offside and slightly ahead of him slowed to a stop indicating to the pursuer to execute a right hand turn which she did failing to take account of traffic flowing to the nearside of the van; or whether the pursuer had pulled out of the offside line of northbound traffic to the nearside effectively overtaking the van on the nearside causing a collision with the defender's vehicle by driving into it as she turned right across the northbound flow of traffic as contended for by the defender.

 

[6]               The pursuer's position was that at the time of the day the accident occurred it was normal that two lines of traffic flowed northwards and there was sufficient room for two lines of traffic to flow southwards at the locus. The defender's contention was that that was not a proper description of the way the traffic flowed there even at peak times.

[7]               In submission, the pursuer's agent contended that I should accept his version of events as credible and reliable and conclude that the defender's version was incredible or at least unreliable. I was invited to find that the pursuer's account was consistent with the evidence of the damage to the vehicle. I was invited to accept that he was entitled to restitution for the damage sustained and to reject the defender's counterclaim and case based on contributory negligence.

 

[8]          The defender's primary position was that the pursuer had failed to show that the loss suffered by him was attributable to fault and negligence on her part and the accident was solely due to the fault of the pursuer. Even if I did not accept that, at the very least a question of contributory negligence on his part arose and in attributing fault I should do so by apportioning fifty per cent to each party.

 

[9]          It was accepted by the parties that if I accepted either argument presented by the defender then a further diet of proof would be necessary to quantify the extent of the defender's claim.

 

 

 

The proof

[10]      The pursuer was, in my view, an impressive witness with considerable experience of how traffic normally flows at the locus at the time when the accident occurred. He had been travelling the same route at about the same time for eight years. His description of the accident is entirely consistent with the admittedly limited report of the damage caused to the vehicles as the result of the accident. He gave his evidence in an entirely straightforward and cogent manner without evasion, prevarication or embellishment.

 

[11]      The photographs which he had taken made it quite clear that his evidence that the road can accommodate two lanes of traffic in either direction is correct and that the defender's evidence to the contrary incorrect. I accept the point made by the defender's agent that photographs 13 to 17 of the pursuer's inventory (no. 5/2 of process) and in particular photographs 14 to 17, show the traffic on the road further north than the locus of the accident and that there are no photographs showing four vehicles abreast at the precise locus. However, it seems to me that in general terms these photographs support the pursuer's evidence but not the defender's, namely that at busy times, where it can, traffic proceeds with two lanes in either direction and certainly utilises 2 lanes travelling northwards approaching the locus as the pursuer was. The road markings shown on the photographs were agreed by both witnesses to be different from those which existed at the time of the accident.

 

[12]      The defender was not an impressive witness. She may well have held her driving licence for thirty years as she said but she seemed remarkably unaware of some of the essential provisions of the Highway Code; the road layout (particularly in her contention that there was insufficient room for four vehicles abreast on any part of the road); and the normal traffic flow at the locus at busy times utilising the full width of the roadway with up to 2 lanes in either direction(even though she agreed that having brought her vehicle to a stop on the southbound carriageway she had not caused a tailback behind her).

 

[13]      The defender's description of the accident with her sitting in the offside of the southbound 'side of the road' for fully five minutes before the northbound white van flashed her to turn right and then sitting a further two minutes before starting her right hand turn manoeuvre, as she waited for the entrance to Accommodation Road to clear, does not gel with the reality of peak time traffic particularly if she is correct that there was insufficient room for four vehicles abreast. If her description is correct there would inevitably have been a tailback behind each, a tailback which would have built-up over a period of seven minutes for southbound traffic and at least two minutes for northbound traffic. There was no evidence of such tailbacks.

 

[14]      Moreover, the defender's description of the accident itself, with the pursuer's vehicle being driven into the nearside of her vehicle (which on one other occasion she said was stationary at the time and on another occasion she said had just gone into first to start to move off) is not consistent with the pursuer's evidence of the damage to his vehicle being to the side. His evidence on this point was not challenged. Nor is it consistent with the record of the damage in the police report which was produced by the defender (6/7 of process) and which describes the damage to the pursuer's vehicle as "Sustained heavy damage to front offside wing" and to the defender's vehicle as "Sustained heavy damage to front bumper and bonnet".

 

[15]      There are internal inconsistencies in the defender's evidence. Her evidence that the pursuer's vehicle entered the Accommodation Road to give him enough room to pass the stationary van is not consistent with her description of the vehicle driving into her vehicle; nor is it consistent with her evidence that the reason she was stationary for so long is that there was traffic blocking the entrance/exit to/from the Accommodation Road.

 

[16]      Moreover, the defender simply could not say where the pursuer's vehicle had come from despite her evidence that she had checked that the road was clear to make a right-hand turn.

 

[17]      When the defender was being cross-examined on this last point she seemed at a complete loss as to the significance of this evidence. At this point in her evidence and on other occasions when tested, she became evasive and disingenuous and seemed to seek reassurance, if not answers, from the one person sitting in the public benches (who, it transpired, was her son). This resulted in me warning the witness not to communicate in any way with the defender. He was reseated by the court officer out of the pursuer's direct view. It was, I felt, particularly telling that the defender, having persistently spoken about the damage sustained by her vehicle, without any qualification, admitted under cross-examination that she had not examined either of the vehicles post-accident. This is another example of evidence which undermines her credibility.

 

Liability

[18]      To the extent that her evidence contradicted that of the pursuer, I accept the pursuer's version. The pursuer's agent invited me to conclude that the defender embellished her account because she had executed her right hand turn without checking that it was safe to do so. I accept that the defender did indeed commence her right hand turn without having checked that there was no oncoming traffic. Having not checked properly I can see that from the defender's perspective the pursuer's vehicle came out of nowhere. Not being willing accept that she was any way at fault she has attempted in her own mind to construct a version of events which could explain the accident namely, as averred on Record, but not spoken to in evidence, that the pursuer's vehicle had been fallowing behind the white van and when that van slowed and stopped the pursuer's vehicle pulled out of line and attempted to pass the white van on its nearside. I am not prepared to place reliance on this version of events. The pursuer's version is straightforward, internally and externally consistent and is therefore to be preferred. Accordingly, it is quite clear that the defender failed to comply with the duties incumbent upon her as the driver of a vehicle turning right across the path of oncoming traffic not to do so until the road was clear, both the road into which she was turning and the road ahead. The responsibility of a driver such as the defender is clearly set out in Rule 180 of the Highway Code which provides under the general heading "Turning Right" ... "Wait until there is a safe gap between you and any oncoming vehicle." The defender clearly failed to wait until there was safe gap between her vehicle and the pursuer's on-coming vehicle. I am satisfied that she drove into the oncoming vehicle driven by the pursuer. She failed to watch out for other road users. Had she done so she would not have been in a position of saying that the pursuer "came out of nowhere". She accordingly failed to comply with the duty owed by her to other road users. Had she done so the accident would not have occurred.

 

[19]      By contrast, the defender's counterclaim does not seem to me to get off the ground either as a matter of fact or of law. I have explained why I do not accept her version of the facts of the accident. On the facts I am prepared to accept I do not see how the pursuer can be said to have failed to comply with the duties on him. The position he took up on the Esplanade (keeping to the left) is entirely consistent with the requirements of Rule 160. His evidence was that he was proceeding slowly along the road in the left hand lane of two lanes of slowly moving traffic. In terms of Rule 163 it is appropriate in such circumstances to stay in lane but "if the queue on your right is moving more slowly then you are, you may pass on the left". There might have been an argument that having seen the van stop he should have exercised special car in proceeding forward, but his evidence was that he was already adjacent to the rear of the van when it stopped and further and in any event I accept that the defenders vehicle was driven into the offside of his. It does not seem to me that the pursuer has been shown to have breached any duties incumbent upon him and accordingly he should be assoilzied from the counterclaim and from any argument anent contributory negligence.

 

[20]      The defender's position is that she was 'flashed' to make her right hand turn by the van in the offside of the northbound carriageway. It is noteworthy that this situation is dealt with in Rules 110 and 111 of the Highway Code indicating to vehicles not to flash their lights for such a purpose and also making it clear to drivers such as the defender not to rely upon such indications. The defender did not, however, choose to convene the driver of his vehicle as a party to the proceedings (in fairness it would appear that the driver of that vehicle did not stop after the accident and their identity is presumably unknown).

 

[21]      Clearly the defender had a number of competing claims for her attention as she was waiting to make the right hand manoeuvre. To complete her manoeuvre, the Accommodation Road had to be clear of other traffic. To complete her manoeuvre, the northbound traffic had to be clear or at least have a sufficiently long gap in its flow to allow her vehicle to complete its manoeuvre safely and cross far enough into the Accommodation Road to clear the Esplanade. It seems to me to be more probable than not that her attention was more focussed on the junction into which she had to proceed than on the oncoming traffic and she relied inappropriately upon the white van having flashed her to indicate the road was clear and forgot to check for herself, that there was no traffic to the nearside of the van.

 

[22]      On the balance of probabilities, the accident was due to the defender having failed to check that the road ahead of her was clear before commencing her right hand manoeuvre.

 

Interest

[23]      There was some dispute in initial submissions about what had been agreed about interest. This was clarified and the defender's agent accepted that if the pursuer was successful interest should run on the agreed sum from the date of the accident.

 

Expenses

[24]      Parties were agreed in submissions that should the pursuer be wholly successful then he should be found entitled to expenses without a separate hearing.