Graeme Morrison V. Andrea Maree Gardiner
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2005] CSOH 156 |
| Date | 18 November 2005 |
| Docket Number | PD147/03 |
| Court | Court of Session |
| Published date | 18 November 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 156 | |
| PD147/03
| OPINION OF LORD GLENNIE in the cause GRAEME MORRISON Pursuer; against ANDREA MAREE GARDINER Defender: ________________ |
Pursuer: John L Mitchell, Q.C., P Milligan; Macbeth Currie
Defender: L Murphy, Q.C., HBM Sayers
18 November 2005
[1]On 27 November 2001 at about 11.50am the pursuer, who was at the time a police sergeant with the Lothian and Borders Police, suffered injury when the motorcycle on which he was riding collided with a motor car driven by the defender. The accident happened in Queen Street, Edinburgh. The pursuer was riding in an eastbound direction along Queen Street on the outside of two lines of stationary traffic when the defender pulled out from the offside lane of that traffic to do a U-turn with the intention of proceeding along Queen Street in the opposite direction. The impact occurred almost as soon as the defender pulled out.
[2]The pursuer suffered significant injuries, both to his left leg and his head. He still suffers from the consequence of the head injury. In the course of the first morning of the proof, the parties were able to agree all aspects of quantum and a joint minute was subsequently produced. During the course of the evidence all issues of liability remained alive, but in his final submissions to me Mr Murphy, Q.C., for the defender, conceded that the defender had been negligent. In the event, therefore, the only live issue remaining for my decision concerns the defender's averment of contributory negligence. Mr Murphy invited me to find the pursuer contributorily negligent to the extent of up to 75%.
[3]Evidence was led from the pursuer, from the defender, from other police officers involved in the training exercise and from certain individuals who had been in the traffic in Queen Street at the time in question and had had an opportunity to see the accident. There were a number of inconsistencies in that evidence, including inconsistencies as to the position of the defender's car just before the accident and as to the state of the traffic lights at the junction between Frederick Street and Queen Street. It was not suggested that any of the witnesses were deliberately untruthful. Despite these inconsistencies, a fairly clear picture emerged of the basic events surrounding the accident; and Mr Mitchell, Q.C., on behalf of the pursuer, in his closing submissions, helpfully gave me what he described as an "undisputed narrative" of the main events. With one qualification this was accepted by Mr Murphy. I shall set out this narrative before turning to the issues which remained in dispute.
[4]The pursuer was participating in a mobile training exercise escorting a convoy of two or three police vehicles. The purpose of the exercise was to demonstrate the organisation and technique of convoy escort duty to police officers who were undergoing training in such duties. The pursuer, with PC Martin and PC Aitken, were acting as "working bikes" for the purpose of the exercise. Sergeant Shillito (as he then was) was acting as "motorcycle pilot" and was in charge of the motorcycle operations. He was directly ahead of the convoy. All four motorcyclists were in radio communication with each other. Such communication was restricted to communication necessary for the purpose of the exercise. Sergeant Shillito had radio communication with the convoy so that he could control and direct its movement and also, when appropriate, give a commentary on what was happening to the people in the convoy. The convoy was taking the "Royal Route" from Edinburgh Airport to Holyrood House, the route used to escort VIPs and members of the Royal Family. All officers were very familiar with this route. This was a "security convoy". In other words, the purpose was to convey persons in the convoy safely from A to B. It was not an exercise in which the speed of the convoy was of the essence, by contrast with emergency operations which the police sometimes had to undertake. I should emphasise that Mr Murphy's agreement to this part of the narrative related to the speed of the convoy: he contended that the working bikes might require to go faster. All the officers who gave evidence, including the pursuer, confirmed that the prime objective was not speed but to keep the convoy in motion even if it moved at a slow speed. This was on the principle that a stationary vehicle was more at risk than a moving one. Because it was a training exercise, as opposed to a live operation, it was being carried out in a particularly careful and controlled manner so as to demonstrate to officers under training how efficiently and smoothly the operation could be carried out. The passage from the airport to the city centre was uneventful. The motorbikes had their blue flashing lights switched on and the pursuer's recollection is that his headlight was also flashing. Both Inspector Shillito (as he has now become) and PC Martin said that it was not normal procedure for motorbikes in such escorts to use their sirens or horns. None of them were operating their sirens. It was left to the discretion of the individual officer to use his siren or horn if and when he deemed it necessary.
[5]On the way in from the airport, the convoy went along Queensferry Road and crossed the Dean Bridge before entering Queen Street at its westernmost end. PC Martin proceeded ahead to the junction of Queen Street with North Charlotte Street and took control of the junction. This meant that he made sure that the traffic was stopped from all directions so as to allow uninterrupted passage to the convoy. The pursuer in his turn was to proceed to the junction between Queen Street and Frederick Street and to take control there. The traffic along Queen Street in an easterly direction was very busy. There were two lanes of eastbound traffic tailing back from the Frederick Street traffic lights, which were on red, stopping the Queen Street traffic. All officers were familiar with this type of traffic congestion. Sergeant Shillito was informed by radio that it was busy in Queen Street. He slowed the convoy to a low speed - no more than single figures in miles per hour - to enable the working bikes to clear a way for the convoy. Because the traffic was backed up in two lanes going eastbound, a "wrong side" was called, either by the pursuer or by PC Martin. This was a standard procedure when faced with traffic of this sort and indicated that the working bikes would clear a way for the convoy to proceed eastbound along Queen Street but on the westbound carriageway. The pursuer went past PC Martin on the wrong side of the road at the North Charlotte Street junction. He was followed through the junction by PC Aitken, but he tried to manoeuvre between the two lanes of eastbound traffic and became caught up in that traffic. The pursuer passed through the pedestrian crossing near the west end of Queen Street. A large commercial vehicle was parked within the zigzags and there were pedestrians in the area. Accordingly the pursuer operated his siren for a short while to warn pedestrians and then went fairly slowly across the crossing on the westbound side of the road. After the pedestrian crossing, and the central pedestrian refuge which forms part of the crossing, the pursuer steered slightly left into the hatched area protruding eastward from the central island. He then proceeded, in essentially a straight line, up the westbound side of Queen Street going eastwards. There was no traffic in the westbound lane because the traffic lights at the junction with Frederick Street were still red, preventing traffic coming down Queen Street from that junction. The pursuer was driving down a line approximately 2 to 3 feet into the westbound carriageway. The line was approximately where the offside tyre of a car proceeding westwards in the offside westbound lane would be. In this position he was about 4 to 5 feet from the stationary vehicles in the eastbound offside lane. As the pursuer was proceeding on this line and passing the Castle Street junction (a junction which was at the time blocked off from Queen Street) the defender, who was in the offside lane of the eastbound traffic driving a Saab motor car, commenced a U-turn into the westbound carriageway of Queen Street. A collision occurred between the defender's car and the pursuer's motor bike, as a result of which the pursuer was seriously injured.
[6]It should be added, and this also was not disputed, that before commencing to pull out for the U-turn, the defender looked forwards and then in an arc to her right, covering the area which her car would occupy in the course of carrying out the U-turn, and back to a point not directly behind her but sufficient to enable her to see at least the nearside lane, and some part of the way into the offside lane, of the westbound carriageway. She did not look far enough to her right to see the motorcycle coming up on her outside. Nor did she use her mirror. This frank admission by the defender was, no doubt, in part influential in removing...
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Mark Easdon V. A Clarke & Co (smethwick) Limited
...down on the outside lane and Lord Kingarth apportioned liability equally between the pursuer and the defender. In Morrison v Gardiner [2005] CSOH 156 the pursuer, a police motor cyclist, collided in Queen Street, Edinburgh with a car driven by the defender when it pulled out of the outside ......