Naheed Ameen V. Henry Sharp Hunter
| Jurisdiction | Scotland |
| Judge | Lord Kingarth |
| Date | 26 January 2000 |
| Court | Court of Session |
| Published date | 26 January 2000 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD KINGARTH in the cause NAHEED AMEEN Pursuer; against HENRY SHARP HUNTER Defender: ________________ |
Pursuer: H.H. Campbell, Q.C., Cherry; Thompsons (for Trainor Alston)
Defender: Shand; Morison Bishop
26 January 2000
This claim arises out of a tragic road traffic accident on 20 February 1996. As a result of the accident the pursuer was injured, and her child Hifsa, aged 8 months, was killed. Parties were agreed as to damages and the proof was restricted to the question of liability.
Certain basic facts were not in dispute. At about 4 o'clock in the afternoon the pursuer was driving her Peugeot 309 hatchback vehicle, registration number E694 WDS, eastwards in the outside lane of the A92. The pursuer's sister and the child were backseat passengers in the vehicle. The A92 at that point is a dual carriageway with a speed limit of 70 miles per hour. The carriageways in each direction are separated by a central reservation, in the middle of which is a crash barrier. On the day in question the road was dry and the weather was clear. The pursuer was travelling in the direction of Glenrothes. Her journey had started in Glasgow and she, and her father who was driving another vehicle at some point ahead of her, were travelling to visit a relative in Glenrothes. She had approached the A92 from Dunfermline. At a point about half a mile west of Cowdenbeath interchange her vehicle - for reasons which were in dispute - halted or came to a halt in the outside lane. Thereafter - probably a relatively short time later - a vehicle driven by witness Mrs Elaine Seymour, in which her husband, also a witness, was a passenger, and which had been travelling in the outside lane as it approached, moved inside to pass the pursuer's car. Mr Seymour telephoned the police on his mobile phone, concerned that an accident might happen. At some point thereafter another vehicle driven by witness Gordon Lamond - proceeding according to his recollection in the inside lane - passed the pursuer's vehicle. He was also concerned about the risk of an accident. He drove on for a distance, but, as he explained in evidence, was able, from his rear view mirror, to see the rear of the pursuer's vehicle lifted by an apparent impact. His wife who was a passenger did not give evidence. At some point behind him a vehicle driven by witness Mrs June Green also moved to the inside lane from the outside lane to avoid the stopped car. She had previously moved into the outside lane in order to pass a Metro car. She was able from her rear view mirror to see the collision which subsequently occurred. There were three passengers in her car, two of whom, Mrs Marion Ritchie and Mrs Agnes Coull (both of whom were seated in the back) gave evidence. At some point behind Mrs Green the defender was driving a Ford Sierra motor vehicle, registration J139 HHT, in the outside lane of the dual carriageway. His vehicle collided with the rear of the pursuer's vehicle. On 7 November 1996 he pled guilty at Dunfermline Sheriff Court to a contravention of section 3 of the Road Traffic Act 1988 in respect of his driving on this occasion.
The pursuer blames the defender for causing the accident. It is the defender's contention that the accident was caused solely or at least materially contributed to by the fault and negligence of the pursuer herself. I shall deal with the case against the defender first.
The defender's evidence was that on the day in question he was driving home from work, there being nothing unusual about this particular day. He was driving at a speed within the speed limit. The tenor of his evidence was that he was driving at about 65 miles per hour. He had been proceeding for a period in the outside lane, when a car ahead of him pulled out from the inside lane into the lane in which he was travelling. He was reasonably clear that there was no other vehicle travelling ahead. This car, according to him, pulled suddenly back over into the inside lane. He wondered what the driver was doing. Thereafter he was confronted with the pursuer's car which was in fact stopped. He thought he was only about 60 yards away at that time. His recollection was that he had "jumped on" the brakes, effecting emergency braking, and tried to steer to his right to avoid the vehicle. There was no room, by reason of traffic on his inside, to move to the left. He was unable to avoid a collision. His vehicle ended-up hard against the crash barrier in the central reservation.
The other main detailed testimony in relation to events immediately before the crash came from Mrs Green. It seemed clear on the evidence that she was driving the car ahead of the defender in the outside lane, and I so find. It is true that one of her passengers (Mrs Ritchie) thought that two other cars pulled into the inside lane behind Mrs Green's car but on this matter I prefer the recollection of Mrs Green, who was driving, which was consistent with the defender's recollection of one vehicle being ahead of him and pulling in. According to Mrs Green she was driving at about 65 miles per hour in the outside lane, having pulled out to pass a Metro vehicle. When she was about 200 yards away from the pursuer's car she became aware of it in front. A short time thereafter (she thought a couple of seconds only) she realised that it was stationary. She was able to check in her mirror and moved steadily, and without any sudden movement, to the inside lane. She slowed to a degree. She was able to pass the pursuer's vehicle on its nearside without any difficulty. She was aware from her rear mirror, however, of the defender's car driving into collision with the stationary vehicle. She thought that the defender had been driving appreciably faster than her. It was her evidence that at the time she thought his speed was in excess of 70 miles per hour, and she remained of that view. Her impression was that the defender's vehicle drove straight on into collision with the pursuer's car without deviation. She heard no squeal of brakes. She thought that her vehicle was level or not much forward from the pursuer's vehicle when the crash occurred. After the accident she felt angry. She remembered an altercation with the defender in which he said either that he had not seen the car ahead or that he was not going that fast.
On several critical areas of difference, save in relation to the defender's speed, I preferred the evidence of Mrs Green. She was an impressive and, I thought, careful witness - and, being independent of the parties, obviously had no particular axe to grind. She was an experienced driver, and had done a lot of driving in connection with her work, in particular over the last five or six years. By contrast, the defender, though obviously doing his best to describe what happened in difficult circumstances (he was clearly and obviously upset by the consequences of the collision and I entirely reject the suggestion made that he was "gung ho"), was to a degree uncertain and inconsistent as to what had happened from the moment the vehicle ahead began to pull into the inside lane. I formed the clear impression that he had no clear recollection as to what then happened. He was in due course convicted of driving without due care and attention (as to the significance of which I shall return later) and although it was his evidence that he did so only on the basis of advice (the detail of which was not explored and which it seemed he could not recollect) and on the basis of a concern for the pursuer and her child (which I have no doubt he genuinely felt and still does), he did not strike me as someone who would have admitted guilt if he had a clear and definite recollection of having been involved in a collision which he could not reasonably have avoided.
As to the way in which Mrs Green drove her vehicle from the outside into the inside lane I accepted her evidence that this was a steady unhurried manoeuvre. On this she had support from both of her passengers who gave evidence. Further I accept her evidence that she was indeed about 200 yards from the pursuer's car when she became aware of it. She accepted readily that earlier she had estimated the distance at some 60 yards, but on reflection, and having travelled the road again, she seemed to be clear in her own mind that that had been an under-estimate. The evidence she gave in court was consistent, it seemed to me, with the evidence of a relatively easy and steady change from the outside lane to the inside lane. Mrs Ritchie thought that the pursuer's car had been about a quarter of a mile away when it was seen, although she accepted she was "rubbish" at distances. Proceeding on Mrs Green's evidence on this matter I find the defender's evidence to the effect that the pursuer's vehicle became visible to him only when he was some 60 yards from it to be unreliable. Although I did not think that there was any satisfactory evidence to suggest, in the traffic conditions, that he would necessarily have been able to see the pursuer's vehicle before Mrs Green pulled in towards the inside lane (far less realise earlier that it was stationary) the evidence suggests Mrs Green must have begun to pull in when she was about 125 metres from the pursuer's vehicle (allowing, in line with her evidence- and she was in the best position to know -, a couple of seconds or so after she saw it). At that point, when the pursuer's vehicle at least became visible, the defender on his own evidence must have been some 50 metres further back (it was his evidence that he was ten or twelve car lengths behind the vehicle in front).
Thereafter the evidence tended to support Mrs Green's impression that the defender drove his vehicle without deviation and without any heavy or emergency braking into the rear of the pursuer's car. The evidence of the pursuer's expert Mr Stewart was that photographs of the damage to the rear of the pursuer's car...
To continue reading
Request your trial