Rachel Davis V. John Catto+cis General Insurance Limited+stephen Skinner
| Jurisdiction | Scotland |
| Judge | C J MACAULAY, Q.C. |
| Neutral Citation | [2010] CSOH 93 |
| Court | Court of Session |
| Published date | 14 July 2010 |
| Year | 2010 |
| Docket Number | PD2241/08 |
| Date | 14 July 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 93 | |
| PD2241/08 | OPINION OF C J MACAULAY, Q.C., Sitting as a Temporary Judge in the cause RACHEL DAVIS Pursuer; against (FIRST) JOHN CATTO AND (SECOND) CIS GENERAL INSURANCE LIMITED Defenders; and STEPHEN SKINNER Third Party: ________________ |
Second Defenders: Shand, Q.C., Milligan, Q.C.; Anderson Strathern, Solicitors
Third Party: Hanretty, Q.C., Springham; bto
14 July 2010
Introduction
[1] Shortly before 9pm on 18 March 2006 a black Honda Civic motor car registration number M942 DSJ driven by the first defender was involved in an accident in which the pursuer sustained serious injuries. At about that time the first defender was driving at speed on the A832 Avoch to Munlochy Road, and at a point on the road called Roskill lost control causing the Honda Civic to leave the road and overturn. The loss of control occurred at a time just after the first defender had overtaken a black Ford Focus car registration number E6 SAS driven by the third party. The pursuer was a front seat passenger in the first defender's car (the Honda Civic). Another passenger, Ian Chisholm, was in the rear of the car.
[2] I heard a proof in which the second defenders and the third party participated. The second defenders are the insurers of the first defender, the driver of the Honda Civic motor car. The defenders admitted liability to make reparation to the pursuer on 19 February 2009. The issue that arose in the proof was whether the defenders have a right of contribution from the third party on the basis that the third party is a joint wrongdoer under section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. It was not disputed that, in the circumstances of this case where liability has been admitted, to seek a finding on contribution was competent.
[3] I consider that such a finding of contribution could only be made in this case if the defenders prove either (a) that at the time of the accident the first defender and the third party were competing with each other or (b) even if no such competition can be proved, that the third party was otherwise in breach of a duty of care to the pursuer.
Background
[4] Darren Stewart was a passenger in the car driven by the third party, the Ford Focus. He gave evidence as did the third party. The pursuer did not give evidence, nor did the other passenger Ian Chisholm. Also, although the first defender did give evidence, he had little recollection of the events leading up to the accident and no recollection of the accident itself. Accordingly, apart from the third party and Darren Stewart there was no other eye witness of the actual accident, although there was evidence of the events leading up to the accident to which I shall return later in this Opinion.
Location
[5] The accident happened on the A832 Avoch to Munlochy road. The road itself, according to the subsequent police investigation, is some 5.5 metres wide, and is a two way undivided carriageway with hazard centre line markings. At the time of the accident the weather was dry. By the time of the accident it was dark. The speed limit that applied was 60mph for motor cars.
[6] At the point where the accident occurred, from the perspective of vehicles travelling from Avoch to Munlochy, the road bends to the left. As the photographs disclose, and as explained in evidence, the bend is a relatively gentle one, and one capable of being safely negotiated even at speed.
[7] The distance from the centre of the village of Avoch to the accident scene is about 3 miles. A number of points along that stretch of road were identified in evidence. The distance from Avoch to the entrance of Rosehaugh Mains was about 1.3 miles, and from the village centre to Smithy House, some 2.2 miles. The map used in evidence shows a P for parking sign, which was said to be about 250 metres short of the accident scene.
The accident reconstruction
[8] Before considering the eye witness evidence of the third party and Darren Stewart, there is some merit in first considering the accident and reconstruction evidence, which largely was not in dispute.
[9] The investigation carried out by the police into the accident was spoken to by Police Constable John Allen MacIntyre Hier. He had in excess of twelve years experience in accident investigation. His findings are contained in No 15/3 of process. His examination of the locus disclosed evidence of a 4.3 metre score mark and two locked tyre marks measuring respectively 9.3 metres and 1.6 metres. Following in line with these marks there were further gauges tracing a route up the grass verge beside a tree. The Honda Civic was found in a field on the north side of the road. It was lying on its roof. On the assumption that the Honda Civic had overtaken the Ford Focus immediately before the accident, and returned to the correct side of the road, PC Hier concluded that control of the car was then lost with the result that it crossed the carriageway, mounted the grass verge and travelled for some distance into the adjacent field.
[10] I shall consider later the role played by the third party's car in the accident, but two points are worth noting at this stage. Firstly, when subsequently examined the third party's car, the Ford Focus, was found to have been sprayed with grass and dirt. These findings showed that the Ford Focus must have been close to the Honda Civic when the accident happened. The second point is that there was no evidence of any contact having taken place between the two vehicles at the time of the accident. This second point, notwithstanding the implication from the defenders' pleadings that such contact might have taken place, was not disputed.
[11] PC Hier calculated the speed of the Honda Civic at the start of the marks on the road at "not less than 79mph". Peter Sorton, an investigation and reconstruction of road traffic accidents consultant suggested that immediately prior to skidding the Honda Civic was travelling at a speed a little over 80 miles per hour. I have no hesitation in accepting that evidence.
[12] The score mark found at the scene of the accident needed some explanation. According to Mr Sorton the score mark was caused by the rear nearside wheel trim. The Honda Civic was very badly damaged as a result of the accident. On examination three of the tyres were inflated but the rear nearside tyre was off the rim. There was grazing around the edge of this rim, with road grindings between the rim and the bead of the tyre.
[13] Graham Newland, an independent tyre consultant, prepared a report following upon his examination of the rear nearside wheel (No.15/2 of process). He explained that a tubeless tyre of the kind fitted on the Honda Civic requires a perfectly airtight seal between the internal faces of the rim at the bead seating area and the bead itself. Inflation of the tyre forces the bead to sit properly, and under normal conditions of operation, this seal remains intact.
[14] Mr Newland also explained that under certain conditions this seal can be compromised and the bead forced away from the flange. For this to happen to a properly inflated tyre, the force would have to be extreme.
[15] In the circumstances of the accident in this case, Mr Newland considered it to have been very unlikely, having regard to the type of tyre, that dislodgement would have occurred unless the tyre was already in an underinflated or even deflated condition at the time of dislodgement leading to rim contact with the roadway and the creation of the score mark.
[16] Mr Newland explained that on the hypothesis that the Honda Civic overtook the Ford Focus and returned to its correct side of the road, correction, and possible overcorrection at speed to straighten the vehicle, could result in a need for steering forces from the nearside tyres. Underinflation of the rear nearside tyre in such circumstances could result in oversteer. Oversteer would cause the vehicle to veer to the right (offside) and dislodgement of the outer bead of the rear nearside tyre.
[17] What I take from Mr Newland's evidence is that, with the forces generated by speed, oversteer, and the correction associated with that, would throw additional weight onto the rear nearside of the car at a time when the rear nearside tyre was underinflated or deflated. That was a perfectly reasonable mechanism for the failure of the nearside rear tyre, and accepting what was said by Mr Sorton, is wholly consistent with the wheel rim creating the score mark on the roadway.
[18] From the evidence of the third party and Darren Stewart which I discuss later, I accept that the first named defender must have turned sharply into the path of the third party's car at the time of the accident before he lost control of his car.
The direct eye witness evidence
[19] As I have already observed, the direct evidence of the accident comes from the third party (Steven Skinner) and his passenger, Darren Stewart. Neither witness was a particular impressive witness. They were defensive in the manner in which they gave their evidence, Darren Stewart more so than the third party. The third party had a clear motive to minimise his responsibility for what turned out to be a serious accident. Darren Stewart seemed intent on protecting a position that reduced the third party's responsibility for the accident. On the important question of speed their evidence was contradicted by credible and reliable evidence. I concluded that I could only rely upon their evidence if it was supported by independent evidence or if it was contrary to the interests of the third party.
[20] At the time of the accident, the third party (dob 25.4.88), aged 21 at the date of the proof, was a footballer with Ross County Football Club. He had obtained his full driving licence some six to seven months before the date of the accident. On the day of the accident he left his home near Forfar at about 8.20pm and travelled to Fortrose. Darren...
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