George Gilfillan V. Alexander Barbour
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Date | 12 August 2003 |
| Docket Number | A4123/01 |
| Court | Court of Session |
| Published date | 12 August 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A4123/01
| OPINION OF LORD REED in the cause GEORGE GILFILLAN Pursuer; against ALEXANDER BARBOUR Defender: ________________ |
Pursuer: Clancy, Q.C.; Allan McDougall & Co., S.S.C.
Defender: Batchelor, Q.C., Bowen; Drummond Miller, W.S.
12 August 2003
[1]On the evening of Saturday 4 March 2000 the defender went with his wife, Mrs Helen Barbour, to a concert at the Royal Concert Hall in Glasgow. They were both in their sixties, and had been married for 36 years. After the concert they set off towards their home in East Kilbride in their Fiat Punto car. The defender was driving, and Mrs Barbour was in the front passenger seat. They drove eastwards along Gallowgate to its junction with Millerston Street and Fielden Street. They intended to turn right into Fielden Street. As they approached the junction, they heard the siren of a police car, but they could not tell which direction the sound was coming from. There was another vehicle facing towards them, which was waiting to turn right from Gallowgate into Millerston Street, and which restricted the defender's view of the westbound carriageway of Gallowgate beyond the junction. When the defender thought it was safe to do so, he began to turn to his right. The other vehicle was also moving to its right, allowing the defender a better view. He then saw a police car coming towards him at high speed. The police car, a high performance Volvo S70, collided with the Fiat a second or two later. Mrs Barbour was killed in the accident.
[2]Following the accident, the pursuer, who was the driver of the police car, began the present proceedings against the defender, seeking damages in respect of a psychological injury, and a consequential loss of earnings, which he had suffered as a result of Mrs Barbour's death in the accident. The action was based on an allegation that the accident had been caused by the defender's negligent driving. The defender counterclaimed, alleging that it was the pursuer who had been negligent. Contributory negligence was also pleaded as a defence to both the principal action and the counterclaim.
[3]When the case came before me for proof, it was admitted on behalf of the defender that his driving had been negligent. No such admission was made on behalf of the pursuer. The value of their respective claims, if liability were established without any deduction for contributory negligence, was also agreed: the pursuer's claim was valued at £174,550 and the defender's at £32,000. The issues for determination were therefore:
(1)had the pursuer's driving been negligent; and, if so,
(2)to what extent should the damages recoverable by each party be reduced on account of contributory negligence.
[4]It may be best to begin by describing the locus of the accident. The evidence on this matter was largely uncontroversial. Gallowgate is a major thoroughfare leading from the city centre to the east end of Glasgow. It lies between, and parallel to, two other major thoroughfares: Duke Street (which lies to the north) and London Road (to the south). It is subject to a speed limit of 30mph. It has two lanes in each direction, i.e. four lanes in all. At the junction in question, the eastbound carriageway has a third lane for traffic turning left into Millerston Street. The junction is a crossroads where Gallowgate intersects with Millerston Street (to the north) and Fielden Street (to the south). These are themselves important thoroughfares: Millerston Street connects Gallowgate to Duke Street, and Fielden Street connects Gallowgate to London Road. Millerston Street and Fielden Street have two lanes in each direction, i.e. four lanes in all. At the junction, the southbound carriageway of Millerston Street has a third lane for traffic turning right into Gallowgate, and the northbound carriageway of Fielden Street has a third lane for traffic turning left into Gallowgate. The junction is thus a confluence of 11 lanes of traffic: three which have come from the north down Millerston Street, two which have come from the east along Gallowgate, three which have come from the south up Fielden Street, and three which have come from the west along Gallowgate. The junction is controlled by traffic lights. At the time of the accident, there were no filter lights for traffic turning right, and such traffic had to wait for a gap in traffic going straight ahead. There are several pedestrian crossings at the junction. The dimensions of the junction were not established in evidence.
[5]As I have mentioned, the westbound carriageway of Gallowgate has two lanes where it comes to the junction. Traffic in that carriageway which is going to turn right into Millerston Street therefore has to remain in the offside lane until it is able to begin to turn right. Traffic in the eastbound carriageway which is going to turn right into Fielden Street similarly has to remain in the offside lane of that carriageway until it is able to begin to turn right. If there is a vehicle in each carriageway waiting to turn right, then the view which each driver has of traffic approaching the junction from the opposite direction is restricted by the other vehicle: in such circumstances, the driver will not have an unrestricted view until one or other of the vehicles proceeds into its turn.
[6]The pursuer described the junction as extremely busy during peak hours, but quieter in the evening. After viewing a CCTV video recording showing the junction during the seconds immediately before the accident, he agreed that it had been fairly busy.
[7]At the time of the accident, the pursuer was a police constable in the Traffic Division of Strathclyde Police. He had 22 years service, of which about 10 had been spent in the Traffic Division. He had passed the advanced driving course for traffic officers at the Police Training College (a four week course) in 1991, and had also undergone two weeks training there as a VIP security driver in about 1993. His training included instruction in fast driving: for example, in cornering techniques. He was not trained specifically in how to drive fast in traffic.
[8]On the date of the accident he came on duty at 2.30pm . He was working with PC Clyde Rodger. Their evidence as to the circumstances forming the background to the accident was broadly similar. The vehicle which they were using was, as I have mentioned, a high performance Volvo saloon. It was a marked car, and was fitted with the most up-to-date sirens and lights. The two officers were on general traffic patrol in the east end of Glasgow. They had two radios in the car. One was tuned to the appropriate frequency to receive messages broadcast by Force Control in police headquarters. The other was tuned to the appropriate frequency to receive messages broadcast by the local police division. In the east end of Glasgow, the local division was based at London Road Police Office, located at the junction of London Road and Fielden Street, a short distance from the junction where the accident occurred.
[9]The pursuer and PC Rodger were on patrol in Shettleston Road shortly after 10pm when they heard a message broadcast from London Road Police Office. According to the pursuer's evidence, the message was to the effect that a police CCTV operator had observed a suspected drunk driver driving north on Fielden Street. The car, which was a large car similar to a Jaguar, had been seen to mount the footpath on several occasions. PC Rodger's evidence was slightly different. His recollection was that the driver was said to be possibly under the influence of alcohol, and that he was said to be smelling of alcohol. The latter observation would imply that a report had been made by someone who had been in close proximity to the driver; and PC Rodger explained that he subsequently learned that the report had been made by a prostitute. He did not recollect the source of the report being said to be a CCTV operator. As explained below, PC Rodger generally had a more reliable recollection of events than the pursuer, and I prefer his evidence on this matter. Calls were prioritised by the dispatcher. This particular message was not categorised as an "immediate response call", which would be issued in relation to an occurrence requiring an immediate response. The message was not given any particular level of priority.
[10]The pursuer and PC Rodger decided to respond to the message. The message had not been directed at them, but they were in the general area. They did not know whether any local police car had responded to it. They sent an acknowledgement that they had received the call. They were at the time about 11/2 miles from the junction where the accident occurred. In order to get to that junction, they had to travel through a built-up area and several junctions controlled by traffic lights as well as a number of roundabouts. They activated the lights and the siren and drove at speed. It took them three or four minutes to get to the junction. They made their way westwards along Shettleston Road to Biggar Street and then on to Gallowgate. When they were in Biggar Street, they received a message that the driver in question had been seen proceeding westwards along Gallowgate in the direction of the city centre. The pursuer and PC Rodger did not know the speed of the vehicle in question. They did not know whether it had remained on Gallowgate, or had turned off, or had parked. The pursuer said that they were not in hot pursuit. They were not chasing the vehicle. They were trying to find it. They were hoping to catch up with it.
[11]According to the pursuer's evidence, he was familiar with the junction. He knew that, if the traffic lights were at green for traffic coming from the east, they would also be at green for traffic coming from the west, and that such traffic, if heading into Fielden Street, would turn across his route. He drove towards the junction, initially in the offside lane, at a...
To continue reading
Request your trial