Adam Wagner Against Thomas Grant And Arla Foods Uk Plc

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 51

PD1593/12

OPINION OF LORD UIST

In the cause

ADAM WAGNER

Pursuer;

against

(FIRST) THOMAS GRANT and;

(SECOND) ARLA FOODS UK PLC

Defenders:

Pursuer: Clarke QC, Love; Thompsons (for Motorcycle Law Scotland)

Defenders: Hanretty QC, Galbraith; DAC Beachcroft Scotland LLP

30 April 2015

Introduction

[1] The pursuer, who was born on 23 September 1991, sustained serious injuries, including a below-knee left leg amputation, when he was involved in a road traffic accident on 27 August 2009. At about 11pm that day he (then a learner driver) was riding his Honda CB125 motorcycle west on the B7076 Gretna to Johnstonebridge Road at Nouthill Farm, Gretna Green when he collided with a milk tanker consisting of a cab and trailer (“the vehicle”) driven by the first defender in the course of his employment with the second defenders which was reversing into the road on the pursuer’s left leading to Nouthill Farm. The B7076 road ran generally east to west with a single lane in each direction. It was unlit and subject to the national speed limit of 60 mph. At the material time the weather was dry. There was an unobstructed view of the entrance to the farm road from a distance of about 350 metres, after a crest in the road.

[2] In this action the pursuer seeks damages from the defenders for the loss, injury and damage which he sustained. All heads of damage, apart from the cost of prosthetics, have been agreed. The case therefore went to proof only on the disputed questions of liability and the cost of prosthetics.

The circumstances of the accident

[3] Only three people were present when the accident occurred – the pursuer, his uncle Alastair Pasco, who was riding his motor cycle close to that of the pursuer, and Mr Grant, the driver of the vehicle. Each of them gave evidence.

[4] The pursuer himself had no recollection of the accident. He could remember leaving his work at the Welcome Break Service Station on the M74, filling his motor cycle with petrol and leaving the service area to head for the B7076 road. His next memory was waking up in hospital a few days later.

[5] His uncle, Alastair Pasco, a man who had held a motorcycle licence for about 22 years and was the chairman of the Lonewolves Motor Cycle Club in the local area, was very familiar with the B7076 road. He had also been working at the Welcome Break that evening and was riding his motor cycle close to that of the pursuer. He had regularly ridden back and forth to work with the pursuer, whom he described as a competent and safe rider who was preparing for his driving test and had to be precise about what he was doing on the road. The pursuer had had experience of motor cycles before the age of 17 as he had ridden off-road. Since the accident he had remained keen on motor cycles and passed his driving test. At the material time the pursuer was riding in lead position on his left side of the lane and Mr Pascoe was on the right side about 30 feet behind him. He saw the glow of headlights on the other side of the lane while accelerating towards 50-55 mph. He was riding with a dipped beam headlight and the pursuer was on high beam until he saw the oncoming vehicle, when he dipped his headlights. The pursuer reached the rise on the approach to Nouthill Farm slightly before he did. Towards the top of the rise he saw a set of headlights on the opposite lane and a pair of sidelights on the same vehicle, causing him to think that it was a wagon of some description. He was sure it was on the other lane because of its position. He could not tell if it was stationary or moving, and, if moving, in which direction. The cab of the vehicle was facing towards him and his nephew. It did not give him any cause for concern as he thought it was just another vehicle on the road. As they approached the vehicle it seemed perfectly normal until the pursuer’s headlights showed up the trailer on the road. The pursuer braked, swerved to the left and collided with the last wheel arch on the trailer, causing him to be propelled from his motor cycle. He himself managed to get round the back of the trailer but was brought off his motor cycle by a high kerb at the entrance to the farm. In the aftermath of the accident he saw the tanker diagonally across the westbound lane at an angle of about 45 degrees as if it was about to go into the farm entrance. He had never previously seen a tanker perform such a manoeuvre there. Before the accident he had not seen any hazard warning or reverse lights or headlights flashing on the vehicle. He just considered the vehicle to be in the other lane coming towards them.

[6] At the material time the first defender, Mr Grant, a very experienced HGV driver, was reversing the vehicle into the farm road in order to collect milk from the farm and then transport it to the dairy in Lockerbie for processing. He had carried out the same manoeuvre on many previous occasions at about the same time of night. The tractor unit of the lorry was facing east in the eastbound lane with its headlights on towards the direction from which the pursuer was travelling. The trailer was angled across the westbound lane and blocking it. The headlights, hazard lights and working lights of the vehicle were illuminated. Mr Grant had checked for oncoming and rear traffic before he began to carry out the manoeuvre into the farm. When the pursuer appeared on his motor cycle a few hundred yards away Mr Grant saw two lights which he thought represented a car. It crossed his mind to pull out of the way by pulling forward but he did not have the time to do so. It turned out that the lights represented two motor cycles. One of them hit the trailer and a nearby wall and the other went round the rear of the trailer.

[7] Constable Stewart Hunter attended the scene of the accident. He had previously been a long distance lorry driver for 18 years. When he drove over the hill in the same direction as that in which the pursuer and his uncle had earlier been heading he could see the tanker sitting at an angle and other vehicles behind it on the other side. The headlamps, top lights, orange side lights and trailer coupling light of the tanker were illuminated. The cab of the tanker was on the westbound lane in a straight alignment, either on or straddling the centre white line. He took a statement about the occurrence of the accident from Mr Grant, which was in the following terms:

“I have driven for Arla Transport since April 2007. I start at 5 pm. My main job is farm collections. I drive an Arla vehicle DK55 DYN, which is a ERF and a tanker for milk.

Today, 27.08.09, I started work at 1700 and carried out normal deliveries. I done my daily checks. One of my pick-ups is at Nouthill Farm. At about 2300 I arrived at Nouthill. I travelled past the entrance in line with the gates from there. I stopped the vehicle, I looked ahead and the road was clear, I put my hazard lights on and my working lights on. I checked the road ahead and mirrors for behind, the road was clear and I started my manoeuvre which is reversing into the farm entrance. I positioned my vehicle into the middle of the road. I was reversing less than walking speed. The trailer was lined up with the gate.

I seen two lights coming, which I thought was a car. I thought, where did they come from. I stopped the vehicle in the middle of the road; seconds later these lights were on me. I had no time to get my truck out of the way. The lights were level with the cab when I seen they were bikes. The first went by, he was going at about 30-40, at a guess; I don’t know. The bike hit the rear bumper of the trailer, which carried him into the wall at the side.

The second bike missed the trailer, I think he either hit the first bike or came off at the grass; at that point I put the handbrake on and went to see what happened.”

In response to a question from Constable Hunter Mr Grant stated that when he saw the lights he would have moved out of the way if he could have. Road policing officers had attended for a short time but left once they discovered that it was not a fatal accident. Constable Hunter’s sergeant decided that there was no need for further investigation of the accident.

[8] Mr Barry Jamieson and his wife Mrs Karen Jamieson gave their evidence on commission prior to the proof. Mrs Jamieson was driving their car east on the B7076 and her husband was in the passenger seat. On a straight stretch of road she could see lights in the distance about half a mile ahead opposite a farm. She did not know if they were moving or stationary, but as she got closer she could see that they were stationary. She slowed down as soon as she saw the lights because she did not know what she was coming to. As she approached the lights she could see quite a large vehicle and two cars in front of her as well. When she got there she could see a milk tanker diagonally across the road “all litten up along the side” and guessed he was reversing into the farm. She had no difficulty in seeing those lights, which “were like a whitey colour”, and was aware of them for some distance, maybe half a mile. The front lights of the cab were shining into a hedge. She slowed down and stopped and she and her husband got out of their car. She was familiar with such a scenario in the morning after milking time and later at night. She did not realise until she got closer that the tanker was diagonally across the road. Mr Jamieson was very familiar with the road. About half a mile in the distance he saw the tanker “litten up” diagonally across the road with its nearside facing him where it had obviously stopped on its way to reversing into the farmyard. As his wife started to slow down he could see two cars between them and the tanker which had arrived on the scene before them. He could see the front and rear lights of the tanker and orange lights along its side. He had seen the lights from approximately half...