Tagged: [2017] CSOH 20

0

Motorist convicted of careless driving fails in damages claim against other drivers

Lord Armstrong

A motorist who admitted careless driving after crashing into a stationary bin lorry but claimed he was trying to avoid another oncoming vehicle has had a damages action against the other drivers dismissed.

A judge in the Court of Session held that the pursuer was “entirely at fault” for the accident as he was driving too fast round a blind bend and was unable to stop.

Lord Armstrong heard that the road traffic accident occurred on 6 May 2010 on a stretch of the A835 Ullapool to Inverness road, approximately 1.5 miles north of the Braemore junction, when the pursuer Steven Paterson was driving a Mazda motor car towards Inverness.

Having rounded a blind bend his vehicle collided with a refuse lorry, which had stopped at the side of the opposing carriageway to collect the bins from Braemore Square Country House.

At around the time of the collision, the refuse lorry was being overtaken by another vehicle, a yellow Scania flatbed lorry.

Following the accident the pursuer was charged with dangerous driving, but on the advice of his solicitor he pleaded guilty to the reduced charge of “driving without due care and attention or without reasonable consideration for other road users by driving at inappropriate speed and colliding with the refuse lorry” – in contravention of section 3 of the Road Traffic Act 1988 – for which he was fined £350 and received five penalty points on his licence.

However, afterwards he felt he had “done the wrong thing” in pleading guilty and he contacted a solicitor with a view to appealing his conviction on the basis of “defective representation”, but having been advised of the cost he decided to raise a civil claim.

The pursuer claimed damages from the driver of the refuse lorry David Macleod (the first defender) and his employers Highland Council (the second defenders), as well as from the driver of the Scania lorry William Fraser (the third defender) and from his insurers AXA (the fourth defenders), but following the death of the first defender prior to the proof the action in so far as directed against him was abandoned.

The pursuer’s position was that his vehicle collided with the stationary refuse lorry as a consequence of “necessary evasive action taken” by him in order to avoid the oncoming Scania lorry, which was “blocking his lane”.

However, the defenders all denied liability and insisted that the accident was caused by the pursuer’s “sole fault” or “contributory negligence”.

The judge agreed and ruled that the collision did not result from the pursuer’s reaction to events beyond his control, caused by the fault of others, but because of events for which he was “entirely responsible”.

In a written opinion[1], Lord Armstrong said: “I determine that on an objective review of the whole evidence, the factors which emerge as proven to my satisfaction are that (1) on his approach to the blind bend, the pursuer was driving at speeds in excess of the 60 miles per hour speed limit; (2) that he decided to brake in advance of the apex of the blind bend; (3) that, in the absence of any other explanation, it is reasonable to infer that he did so on the realisation that he required to reduce his speed in order to negotiate the bend; (4) that his wheels locked on the apex of the blind bend; (5) that on emerging from the bend he was immediately confronted with the flatbed lorry in the course of overtaking the stationary refuse lorry; (6) that he braked almost continuously to the point of impact with his wheels locked at the very least when crossing the centreline and when making the straight skid mark which led to the impact point; and (7) that given the assumed speed of his vehicle at impact, and the extent of his braking, his speed on negotiating the blind bend was far in excess of that appropriate to the road conditions.”

He added: “In these circumstances, where I am satisfied that the pursuer was driving carelessly, at the very least, at inappropriate speed, and that the collision was caused by his fault, I find that the pursuer has not discharged the reverse onus of proof imposed on him by section 10(2)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 in relation to his conviction in respect of section 3 of the Road Traffic Act 1988.”

In relation to the second defenders, the judge held that their adopted policy against refuse collection vehicles entering private premises was “appropriate” for the reasons given, but not least because of the size of the vehicle involved and the issues of health and safety associated with that.

The judge explained: “Against that background, I do not accept that by collecting the bins from Braemore Square Country House as they did, the second defenders were in breach of regulation 26 of the Traffic Signs Regulations & General Directions 2002.”

Nor did he consider that the stationary refuse lorry itself constituted a hazard, “given its size, its bright yellow colour, its flashing lights which were operating at the time, the presence of council employees wearing high visibility clothing, and the distance between its stationary position and the blind bend”.

He said: “I consider that the everyday possibility of the presence of a stationary refuse lorry at the roadside, in the vicinity of residential buildings, is something of which any appropriately careful motorist ought to be aware. In such circumstances, I also find, given these factors, that no question of fault at common law arises.”

In relation to the third and fourth defenders, the judge accepted the evidence of the third defender that when he was alongside the refuse lorry he saw the pursuer rounding the bend, but when he began his overtaking manoeuvre the road ahead was “clear” and “a vehicle travelling within the relevant speed limit and being driven by a driver paying due care and attention could have stopped”.

Lord Armstrong concluded: “In these circumstances, I am not persuaded that any liability in respect of these defenders arises. In the result, for the reasons I have stated, I find that the pursuer was entirely at fault in causing this road traffic accident. That being so, I shall pronounce decree of absolvitor in favour of the defenders.”

[2] February 14, 2017

References

  1. ^ opinion (www.scotcourts.gov.uk)
  2. ^ (www.scottishlegal.com)
  3. ^ Tweet (twitter.com)
  4. ^ Pin it (pinterest.com)