Scottish Sheriff Court Decisions

PD518/11

 

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

 

JUDGMENT

of

SHERIFF ALAN R MACKENZIE Esquire, Advocate

in the cause

BARRY GLEKIN

Pursuer

against

 

DIRECT LINE INSURANCE PLC

 

Defenders

 

GLASGOW, 29 June 2012. The Sheriff having resumed consideration of the Proof and whole cause FINDS IN FACT that:-

(1) The pursuer is Dr Barry Glekin MB CHB of 34 Beech Avenue, Newton Mearns, Glasgow G77 5PP. He is a general medical practitioner. He had been driving motor vehicles for 45 years.

(2) The defenders are Direct Line Insurance plc a company incorporated under the Companies Acts and having their registered office at 3 Edridge Road, Croydon, Surrey CR9 1AG .They are the road traffic insurers of Paul Nicol Campbell, 44 High Street, Airth, aged 52, in terms of Section 145 of the Road Traffic Act 1988 (as amended).

(3) On or about 29 July 2010 at around 1.50 p.m. the pursuer was driving a Mercedes motor vehicle registration SH08 KMB, belonging to him, southwards on Byres Road, Glasgow.

(4) The defenders' insured, Mr. Campbell, was driving a Hyundai motor vehicle registration T143 MEW, southwards on Byres Road immediately behind the pursuer's vehicle.

(5) Around a point on Byres Road at which a library is situated on the east most side of the carriageway the pursuer brought his vehicle to a halt while a vehicle in front of his vehicle manuvered into a parking space.

(6) Whilst the pursuer's vehicle was stationary it was struck in the rear by the vehicle being driven by Mr Campbell.

(7) Following the collision Mr Campbell supplied his insurance details to the pursuer and pointed out that his vehicle had caused (a) a puncture hole to the rear bumper of the pursuer's vehicle and (b) the dislodging of a self adhesive chrome strip from the rear bumper.

(8) As a result of the collision the pursuer's vehicle was damaged. The rear bumper was punctured by a rusty screw which protruded from the registration plate at the front of the vehicle being driven by Mr Campbell. The cross-member situated behind the bumper collapsed.

(9) Damages are agreed in the sum of £4,172.65 inclusive of interest to the date of this interlocutor in the event that the defenders' insured is found solely to blame for the accident.

(10) The pursuer's vehicle had parking sensors which emitted a series of bleeps whenever the vehicle revered towards an object

(11) Mr. Campbell's vehicle was generally in poor condition in 2010. He had purchased the vehicle when it had 60,000 miles on the milometer

 

FINDS IN FACT AND IN LAW that the pursuer sustained loss and damage as a result of the accident on 29 July 2010 which was caused solely through the fault and negligence of Paul Nicol Campbell, the defenders' insured, in respect that he failed to take reasonable care for the safety of the pursuer's stationary vehicle in that he did not keep a proper lookout and collided with it.

 

FINDS IN LAW that the pursuer having sustained loss and damage through the fault and negligence on the part of the defenders' insured is entitled to damages in the agreed sum as reparation.

 

THEREFORE, decerns for payment by the defenders to the pursuer in the sum of FOUR THOUSAND ONE AND SEVENTY TWO POUNDS AND SIXTY FIVE PENCE (£4,172.65) Sterling with interest thereon at the rate of 8% per annum from the date hereof until payment; finds the defenders liable to the pursuer in the expenses of process on the summary cause scale as assessed, with a diet of assessment on 23 August, 2012 at 11a.m. within the Sheriff Court House,1 Carlton Place, Glasgow; certifies Alan John Bathgate, 25 Barony Street, Edinburgh as an expert in the cause.

 

 

 

 

 

NOTE:

Introduction

[1] This is an action of damages for reparation arising out of a road traffic accident which occurred on 29 July, 2010.Damages were agreed, with the agreed figure based on a finding of sole fault, supplemented by an oral agreement at the bar that the agreed sum would be inclusive of interest to the date of my interlocutor

[2] The sole question which arose for the decision of the court related to liability. Parties were in issue as to how the accident occurred. The respective cases are perfectly straightforward. Both the pursuer's vehicle and the vehicle being driven by the defenders' insured were travelling southwards on Byres Road, Glasgow from Great Western Road in the direction of Dumbarton Road. The pursuer's vehicle was in front of the vehicle being driven by the defenders' insured, albeit the pursuer was unaware of it prior to the collision. At one point not long after the pursuer entered Byers Road a vehicle in front of his attempted to park on Byres Road .Accordingly the pursuer brought his vehicle to a halt. The pursuer's position was that while his vehicle was stationary the vehicle being driven by the defenders' insured drove into the rear of his vehicle. The defenders' insured's position was that while the parking manuvere was being undertaken both vehicles were stationary but then the pursuer reversed his vehicle slightly striking the front of his vehicle.

[3] A proof on liability took place on 20 June 2012. The pursuer was represented by Ms. Shepherd and the defenders by Mr. McPhee. The pursuer gave evidence and led Mr Alan John Bathgate, a Consulting Engineer, Claims Assessor and Specialist in Road Traffic Accident Reconstruction. The defenders led evidence from their insured Paul Nicol Campbell and from Barry James Bateman, a Motor Engineer, employed by the defenders.

 

Closing submission for the pursuer

[4] In moving the court to find in favour of the pursuer Ms. Shepherd submitted that the pursuer's account ought to be preferred. She submitted that the pursuer gave his evidence in a credible fashion. He was a professional who had testified clearly as to what had occurred; an account which was entirely consistent with the post-accident damage to his vehicle. The pursuer's account contrasted with the incredible account given by Mr Campbell. The pursuer had testified that he had parking sensors which emitted a series of bleeping noises in the event that his vehicle reversed towards any object and he had testified that there had been no such noise. It was submitted that Mr Campbell was not a satisfactory witness whose evidence was not credible. He had admitted in evidence, following questions initially put in chief, that he had penalty points on his driving licence for speeding. Ms. Shepherd submitted that this demonstrated a cavalier attitude on the part of Mr Campbell to requirements of road traffic law. In contrast the pursuer had testified that he had a clean licence. I was invited to prefer the evidence of the vastly more qualified and experienced Mr Bathgate to that of Mr Bateman as a source of corroborative evidence. Mr Bateman, it was submitted, as an employee of the defenders, was not truly independent.

 

Closing submission for the defenders

[5] Mr McPhee submitted that Mr Campbell's account should be preferred. He had given his evidence in a straightforward and candid fashion and did not shrink from honestly conceding anything that he simply could not remember. While it was true that Dr.Glekin had similarly given an account which seemed honest, Mr Campbell should be preferred. Support for Mr Campbell's account of events was found in the testimony of Mr Bateman who, unlikely Mr Bathgate had actually inspected the vehicle being driven by Mr Campbell. Mr Bathgate's testimony was that if the cross member of the pursuer's vehicle's rear bumper had collapsed then by virtue of the impact there would be a similar damage to the front bumper cross member of Mr Campbell's vehicle. Mr Bateman had both visually inspected the vehicle and pushed the front bumper and he neither saw nor felt evidence of any such damage. In the whole circumstances, it was appropriate that decree of absolvitor be granted with an award of expenses in favour of the defenders as assessed on the Summary Cause scale.

 

Discussion

[6] The pursuer testified that his vehicle was stationary at the point of impact and that following the collision Mr Campbell had been apologetic, not only pointing out the puncture of the rear bumper of the pursuer's vehicle but also pointing to further damage which the pursuer had not noticed, namely the dislodging of a self adhesive chrome strip on the rear bumper.

[7] Alan James Bathgate of 25 Barony Street, Edinburgh was a Consulting Engineer, Claims Assessor and expert in Road Traffic Accident Reconstruction. He was a Fellow of the Institute of Mechanical engineers, a Fellow of the Chartered Institute of Arbiters and had qualifications in relation to the assessment of motor vehicle damage. He gave evidence on average 18 times a year and throughout his career had examined something of the order of 60,000 vehicles. He examined between 15 and 18 vehicles a week and was called as a witness as often by defenders as by pursuers. He testified that the damaged rear cross member of the pursuer's vehicle was consistent with an impact between a stationary vehicle and a moving vehicle with the moving vehicle travelling at a speed of between 5 and 10-12 mile per hour. He testified that in the event that a vehicle was reversing ordinarily a vehicle would take 3 to 4 metres to reach a speed of 5 miles per hour. When it was put to him by Mr McPhee that, for example, automatic vehicles might accelerate in reverse faster than other vehicles he accepted that this might be so but stated, curiously as it appeared to me, that it would still take 3 to 4 metres to reach 5 miles per hour even if the vehicle accelerated faster, using the phrase "if that makes sense".

[8] Mr Campbell gave evidence. He was aged 52. He was emphatic in asserting that his vehicle was stationary when the pursuer's vehicle reversed into his vehicle. He was at pains to emphasise that at the time he considered that the impact was no more than "a nudge" and that his vehicle sustained no damage. He testified that prior to the pursuer reversing his vehicle the two stationary vehicles were approximately one metre apart while the driver in front of the pursuer's vehicle attempted to park in a parking space on Byres Road.

He was asked in chief whether or not he had any penalty points on his driving licence and responded that he currently had six points on his licence for what he characterized as "general matters" such as driving at 40 mile per hour in 30 miles per hour zone. In cross-examination Ms. Shepherd explored Mr. Campbell's history of receiving penalty points on his licence. It emerged that at one point Mr. Campbell had 11 penalty points on his driving licence which he indicated related to speeding matters but never anything like dangerous driving.

[9] James Bateman was employed the defenders for the last nine years as a staff motor engineer. He held both parts of the City & Guilds qualification as a motor engineer. He had examined the defenders' vehicle in August 2010 and characterised its general condition as poor. He had visually inspected the vehicle rather than taking any parts off for closer inspection and he saw no evidence of damage. He was asked whether or not he had pressed the front bumper to see if there was any movement, which might be indicative of damage to the cross member, and he testified that he had and that there was no movement. He testified that the extent of any movement very much depended upon the design of the vehicle. What that meant in relation to the defenders' vehicle was not explored any further in evidence. He confirmed the view that if a cross member of a vehicle was damaged when the vehicle was stationary, without further damage to the vehicle that would be suggestive of a collision with another vehicle moving at upwards of 5 miles per hour. He testified that he had looked in the gaps under the bonnet and through the grill to see if there was any evidence of damage to the front bumper cross member and he could see none.

 

 

Decision

[10] I found the pursuer an impressive witness. He was a mature man who gave his evidence in an eminently straightforward manner and it was clear that he came to court to simply recount his honest recollection of what occurred. He candidly acknowledged that the suggestion which he had heard at a later point, namely that he had reversed his vehicle into the rear of Mr Campbell's vehicle, was one which left him feeling very angry. His testimony was unshaken in cross-examination. I accept his testimony that he had working rear sensors on his vehicle and accordingly, had he reversed, he would have had to ignore the warning sounds which they emitted, a proposition which I find improbable. While Mr. Campbell too was clear in his account and unshaken in cross-examination I was left feeling that he almost appeared to be attempting to ride two horses at once in that he was blaming the pursuer for the collision but meantime very much playing down the whole incident. He appeared remarkably vague in his recollection of what he and Dr. Glekin had said to each other following the accident. I preferred the pursuer's account of the accident to that of Mr Campbell, whose recollection was, in my judgment, mistaken. I found support for the pursuer's position in the testimony of Mr. Bathgate. He is a well qualified expert witness with a wealth of experience. I accepted his evidence that the extent of the damage to the pursuer's vehicle was indicative of an impact between a moving and a stationary vehicle with the moving vehicle travelling at between 5 miles per hour and 10 to 12 miles per hour. I did not understand Mr. Bateman to demur from that conclusion. If, for example, one accepted Mr Campbell's testimony that the vehicles were stationary and no more than a metre apart it is impossible to see how while reversing over such a short distance the pursuer could have reached a speed of 5 miles per hour so as to cause such damage to the cross member of the rear bumper of his vehicle. I am not satisfied that the examination of the defender's insured's vehicle in August 2010, a vehicle which Mr. Campbell testified was bought simply as a 'run around' vehicle which already had 60,000 miles when he purchased it, was sufficiently rigorous to rule out the possibility of commensurate damage to the cross member of the front bumper of Mr Campbell's vehicle. Whether or not there is any movement in a bumper clearly involves an impressionistic assessment which evidently, according to Mr. Batemen, varies from vehicle to vehicle. As far as looking under the bonnet and through the grill are concerned I am left feeling that this does seem a somewhat superficial approach to establishing beyond doubt whether or not a cross member has been damaged.

[11] In all the circumstances I find in favour of the pursuer and give effect to the agreement of the parties in respect of damages. Expenses follow success, agreed by parties to be on the Summary Cause scale as assessed. I consider it appropriate to certify Mr Bathgate as an expert witness.