Robert Smith (ap) V. Messrs. D.l. Mcguinness
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Date | 21 January 2004 |
| Docket Number | A1243/6 |
| Court | Court of Session |
| Published date | 21 January 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A1243/6/97
| OPINION OF LORD CLARKE in the cause ROBERT JAMES SMITH (AP) Pursuer; against MESSRS D.L. McGUINNESS Defenders: ________________ |
Pursuer: Stacey Q.C., Lindsay; Morton Fraser
Defenders: Armstrong Q.C., Forsyth; The Anderson Partnership
21 January 2004
Introduction
[1]The pursuer, in this action, sues the defenders for injuries he sustained in a road accident, which occurred on 25 August 1994, when the pursuer was 20 years of age.
[2]At the time of the accident the pursuer was a student of electronic and electrical engineering. The defenders are a firm of coal merchants.
[3]The case came before me for a proof before answer restricted to the question of liability.
The Evidence
[4]The pursuer, himself, did not give evidence. His father, Mr James Smith, did. He told the Court that the pursuer has no recollection at all of the accident. The pursuer was in hospital for about 9 months after the accident and has suffered from physical and mental problems since the accident. The pursuer stays with his parents, being incapable of living on his own. His father has a power of attorney in respect of the pursuer's affairs.
[5]Prior to the accident the pursuer had held a driving licence for approximately 2 years. At the time of the accident he was studying at Bell College, Hamilton. He drove there daily from his home in Lanark. His father said that some days the pursuer would drive to college via the M74 and on other days he would drive on the A73. The accident took place on the A73 road near the village of Braidwood, as the pursuer was driving northwards along the A73 from Lanark in the direction of Carluke. The pursuer had left home at about 7.45am. The accident took place shortly after 8am. The locus of the accident is shown in two sets of photographs which are lodged in process as Nos. 18/1 and 20/7 of process respectively. The locus is also depicted in a series of photographs attached to a report by Mr John Manderson which is No. 23/1 of process. These photographs show a leftward bend in the road when facing northwards. Ahead of the bend, on the right, east side of the road are some buildings. One of these is a house which is known as Marksburn House. The house is accessed via a short drive leading from the road. The bend, at the time of the accident, and at the present time, is tree-lined and hedged on the near side. A low wall also runs along the road at this point.
[6]On the morning, in question, Mr Daniel McGuinness, a partner in the defenders' business, was driving a coal lorry, laden with coal, northwards along the A73 road in the direction of Marksburn House. He was planning to deliver coal to the house. At a point just opposite the entrance driveway to the house, he stopped his lorry and signalled that he was going to turn right into the driveway. There were a number of vehicles following close behind him. They all managed to stop their vehicles behind his while he waited for the oncoming traffic, on the southwards lane of the road to pass, to enable him to make the right-hand turn. The pursuer, who was driving a Ford Escort car, was approaching the bend when the other vehicles had come to a stop. As he came round the bend, he was confronted with the last of the vehicles in the queue which had formed behind the coal lorry driven by Mr McGuinness. The pursuer was apparently unable to stop in time to avoid colliding with the last of the cars in the queue and, as a result, it appears, drove his car across the road onto the other side and collided with a lorry which was travelling southwards. As a result of the collision the pursuer, it is averred, sustained very serious injuries, the consequences of which were spoken to by his father in evidence.
[7]It is the pursuer's case that the accident was caused, in part by the fault of Mr McGuinness in stopping his coal lorry on the said road, in order to turn right into the driveway of Marksburn House.
[8]The evidence of the pursuer's father was that the pursuer could well have travelled along this stretch of road a hundred times or more on his way to Bell College, which he had been attending for about 3 years prior to the accident. He would have been very familiar with the left-hand bend. The speed limit on this stretch of road is 60mph. The pursuer was a member of a rally driving crew.
[9]I heard evidence also from Mrs Pamela Brown, who had been in one of the vehicles driving behind the coal lorry and ahead of the pursuer. She was familiar with this stretch of road. On the morning in question she had been, she thought, travelling at a speed of between 50 and 60mph. Before arriving at the start of the bend she noticed several cars and vehicles in front of her. She noticed, in particular, a white van which overtook the vehicles ahead of her. She said that this worried her because of the bend in the road. As she arrived at the bend she said she proceeded to slow down because she was aware of the traffic ahead of her. She described the bend as not being "a bad bend". It did not require drivers to drive really slow but it was not a bend she would overtake on because of the fact that she would not know if there was traffic coming towards her. After she had negotiated the bend, she saw a queue of traffic ahead of her, including the white van which she had previously noticed overtaking. The queuing traffic ahead of her was stationary and she thought that it comprised two lorries and two or three cars. She was able to see that there was a high lorry at the front of the queue. It was stationary and she presumed that it was about to turn right. She slowed up, as did the car immediately in front of her. She did this without difficulty and came to a stop. Once she had stopped she noticed in her mirror another car coming up behind her and it stopped behind her. Less than a minute later, she looked into her offside mirror and saw the vehicle being driven by the pursuer moving up towards the opposite lane. She said it looked as if it were "floating" and as if it had been in a skid. Her first thought was "what on earth is that car doing overtaking us". She then heard a loud crash. Mrs Brown said that anyone, like herself, who was familiar with this stretch of road would have been aware of the existence of the house, and the entranceway leading to it which came off the southbound lane of the road. The house was more obvious when driving from Carluke to Lanark than was the case when driving in the other direction. She described the road as being at the time of the accident "moderately busy". She noted that, after the accident, a queue of vehicles formed up behind the locus of the accident.
[10]The car which was following immediately behind the car being driven by Mrs Brown was driven by Mr William Dey, who was led on behalf of the pursuer. Mr Dey was very familiar with the road in question prior to the accident. He explained that on the morning in question, just before he approached the bend, he was in a stream of traffic travelling in the direction of Carluke. He estimated that he was driving at a speed of between 45 to 50mph. He said that there was no vehicle behind him at the point at which he was just approaching the bend. The witness said that as he approached the bend he was keeping up with the stream of traffic. When he moved round the bend there was a stream of stationary traffic in front of him. He said he had to stop fairly sharply. He could not see what was causing the tail-back. He put on his brakes but it was not an emergency stop. After he had stopped he heard sliding wheels and saw, in his mirror, a car coming straight at him, from behind. Mr Dey said that he thought that the car was going to hit his car. The other car was being driven fairly fast, at about, he thought, 60mph. In the event, the other car did not collide with his. He heard skidding tyres. After it had appeared to be about to collide with his vehicle, the other vehicle disappeared from his view and Mr Dey then heard a terrible noise and realised that the other vehicle had been involved in a crash. Mr Dey said that he had travelled the road for many years but that queuing, at the bend, was "unusual". He was aware of the existence of a cottage or house on the east side of the road, just after the bend, but he had never given the entranceway to that house any particular thought.
[11]Evidence was then led for the pursuer from PC James Boyd and Sergeant William Mackie, who attended at the scene of the accident, but neither of these witnesses gave evidence which assisted materially in determining the cause of the accident. They had called in Police Constable John Bell who was, at the time, employed in Strathclyde Police Traffic Department based in Motherwell. When this officer attended at the locus of the accident he was advised that, having regard to the nature and extent of the pursuer's injuries, it was probable that the pursuer would die. In the light of that information PC Bell prepared, in draft, a manuscript note which, in the event of the pursuer dying would have formed the basis of a report to be submitted to the procurator fiscal. The draft manuscript note is 20/5 of process. Number 20/6 of process is a rough sketch made by this witness of the locus at the time of his investigation showing the positions of the vehicles involved in the collision. The sketch indicates that the road was 9.4 metres wide. It is indicated in the draft report by PC Bell that, at the time of the accident, overhead conditions were dry, although there had been heavy overnight rain leaving the road surface wet and slippy. Other witnesses spoke to there having been dampness on the road surface. Police Constable Bell said that in his experience this stretch of road was always a bit damp because of its position underneath overhanging trees which were situated on both sides of the road. The witness' attention was drawn to paragraph 105 of the current edition of...
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