Thomas Weatherstone V. T. Graham & Son (builders) Limited
| Jurisdiction | Scotland |
| Judge | Lady Dorrian |
| Neutral Citation | [2007] CSOH 94 |
| Court | Court of Session |
| Published date | 07 June 2007 |
| Date | 07 June 2007 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 94 | |
| OPINION OF LADY DORRIAN in the cause THOMAS WEATHERSTONE Pursuer; against T GRAHAM & SON (BUILDERS) LIMITED Defenders: ________________ |
Pursuer: Mitchell, Q.C., Fitzpatrick; Digby Brown
Defenders: Hanretty, Q.C., Primrose; Simpson & Marwick, W.S.
7 June 2007
Background
[1] On 14 January 2004 at about 7.30am the pursuer was a rear seat passenger in a van owned by the defenders and driven by one of their employees, John McInally. The vehicle was being driven south on the A710 when, in the area of a bend in the road, it struck an oncoming vehicle being driven by a Miss Karen Kirkpatrick, after which it left the road, striking a tree stump and a dry stone dyke. The pursuer was injured in the accident and damages were agreed, subject to liability, in the sum of £75,000 subject to a 15% reduction for failing to wear a seatbelt, resulting in agreed damages of £63,750.
[2] In response to the pursuer's averments that loss of control on the part of the driver was the cause of the accident, the defenders aver that he was driving at a reasonable speed for the conditions but hit a patch of black ice. It is averred that it was dark at the time, that he had not encountered ice on the road at any prior point, that ice was only present in a small patch slightly more than a metre wide at the apex of the bend and that this had formed as a result of water running on to the carriageway from adjacent woodland. In response to that, the pursuer avers that Mr McInally ought to have been aware of the possibility of ice forming on the roads and that he was driving at an excessive speed for the road conditions.
Evidence
[3] The pursuer could offer little assistance as to the circumstances of the accident. He was in the rear of the van where there were no windows. He had no impression of either the speed of the vehicle or the road conditions although he remembers that it was very cold.
[4] The driver of the other vehicle, Miss Kirkpatrick, described the weather as very icy. About a mile south of the locus, at New Abbey, she felt her car respond to ice on the road and she had to swerve to avoid a bridge. She drove through the woods leading to the locus at about 40-50 mph but approaching the locus saw ice on the road ahead, at the bend, and slowed down. It was at this point that she saw the van coming down towards the bend from the other direction. The ice was across the road at the bend and was glistening. It extended for about 40 cms.
[5] In her opinion the van was going too fast for the road conditions as she assessed them. She said it "looked as if it was zooming towards me" which made her slow down even further. Just before she reached the bend the vehicle hit her, erHerHwithin her own carriageway. Her vehicle continued straight on, coming to rest partly on the verge and partly on the road. When she came out of the vehicle she found she was sliding about on the road and saw ice on the road. When asked if the ice would be visible to anyone she said "you couldn't miss it". Asked whether there was anything about the layout of the bend to make the ice invisible to a driver coming from the other direction, she said she would not have thought so. She was not asked to assess the extent of the ice she saw on leaving her vehicle. She explained that the ice at New Abbey was black ice. The ice at the bend was not black ice because she could see it.
[6] Mr McInally was taking colleagues to work at Southwick on the day of the accident. He had travelled the same road on the two previous days at roughly the same time. It was dark when he picked up his colleagues and he imagined it would still be dark at the time of the accident. He could not recall how cold it was but said it had not been frosty in Dumfries. The accident happened very quickly. He was going down the hill, he went to turn the corner and the van slid across the road. He saw headlights coming and wanted to get back on his side of the road to avoid a head-on collision. He assumed that he slid across the road on ice. He did not see ice but imagines it was ice which would cause the vehicle to slide and that, since he did not see it, it must have been black ice. His estimate of his speed was around 50 mph, which was what he told the police although he did not know the precise speed he was doing. He did not think he would have been going at more than 50 mph. He thought the applicable speed limit was 60 mph. He described himself as a cautious driver. He did not note the weather conditions as he was driving, for example, to notice whether there was snow on the hills. He does not know if it was above or below freezing and he did not look at his speedometer. He was simply driving as he normally would. The road was quite a windy one and he had not had any problems on previous bends. Had he seen ice, he would have gone slowly to avoid it. He did not think he was driving too fast.
[7] Kevin Dalgleish, a passenger, gave evidence but he too was in the back of the van and was able to offer little assistance. He did not feel uneasy in the back.
[8] Constable Donald Stewart was at the time on uniform mobile patrol when called to the accident. At that time he would have had about 2 years service. Responding to a 999 call, he drove to the accident, at times reaching speeds of 70-80 mph. He did not encounter any difficulty until at the end of the street leading to the locus when he could feel the ABS working and sensed ice on the road. This was on the long straight as he was slowing down towards the locus. He did not know the exact point but it was at a safe distance before the...
To continue reading
Request your trial
-
Bowes v Highland Council
...3 WLR 388; [1996] 3 All ER 801; [1996] RTR 354; 93 (35) LSG 33; 146 NLJ 1185; 140 SJLB 201 Weatherstone v T Graham & Son (Builders) Ltd [2007] CSOH 94 West Sussex County Council v Russell [2010] EWCA Civ 71; [2010] RTR 19 Yetkin v Mahmood [2010] EWCA Civ 776; [2011] QB 827; [2011] 2 WLR 107......
-
Anna Marie Bowes And Others Against The Highland Council
...that there was no non-negligent explanation for the loss of control and manner of driving (Weatherstone v T Graham & Son (Builders) Ltd [2007] CSOH 94, Lady Dorrian at para 16), and so it was an inescapable inference that the loss of control was due to driver negligence. 3 [4] The Lord Ordi......
-
Allen Woodhouse Against Lochs And Glens (transport) Limited
...to rebut the 17 inference, since drivers must drive to the conditions which they encounter: Weatherstone v T Graham & Son (Builders) Ltd [2007] CSOH 94 at para [16], MacDonald v Aberdeenshire Council 2014 SC 144 at paras [64] and [70]. The weather was not unforeseeable, and the accident cou......
-
Anne Marie Bowes And Others Against The Highland Council
...defect. There is no non‑negligent explanation for the loss of control and manner of driving (Weatherstone v T Graham & Son (Builders) Ltd [2007] CSOH 94 per Lady Dorrian at para 16). It is an inescapable inference that the loss of control was due to the negligence of the driver. Drivers mus......