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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v. Gardiner [2005] ScotCS CSOH_156 (18 November 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_156.html Cite as: [2005] ScotCS CSOH_156, [2005] CSOH 156 |
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Morrison v. Gardiner [2005] ScotCS CSOH_156 (18 November 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 156 |
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PD147/03
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OPINION OF LORD GLENNIE in the cause GRAEME MORRISON Pursuer; against ANDREA MAREE GARDINER Defender:
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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 from the issues before me the question of whether the defender was negligent. [7] Against the background of these facts, and the admission that the defender failed to take the appropriate steps to ascertain if it was safe for her to carry out her manoeuvre, the factual issues raised by Mr Murphy in relation to the defender's plea of contributory negligence were as follows:
(i) The extent of the pursuer's knowledge that vehicles might attempt to do U-turns in this particular stretch of road;
(ii) The failure of the pursuer to use his siren or some other audible warning when proceeding on the outside of the stationary eastbound traffic;
(iii) The speed at which the pursuer was driving, having regard to his knowledge, his position and his lack of any audible warning;
(iv) The position on the road taken up by the pursuer; and
(v) Whether the pursuer was looking out with sufficient care to anticipate that vehicles might be about to carry out such a manoeuvre.
The broad principles upon which I should approach the question of contributory negligence were not in dispute. The onus is on the defender to establish that the pursuer was contributorily negligent. This onus requires to be discharged on balance of probabilities: Lewis v Dennye [1939] 1 KB 540, 554. This does not of course require the defender to lead evidence. Contributory negligence can be established on the basis of the evidence led by the pursuer: Sharpe v Southern Railway Company [1925] 2 KB 311, 319. It is enough that the pursuer failed to have proper regard to his own safety - he need not be in breach of a duty of care owed to the defender: Nance v British Columbia Electric Railway Company Limited [1951] AC 601, 611-612. The pursuer must not be "careless for his own safety". The question of the pursuer's blameworthiness has to be looked at in all the circumstances: Baker v Willoughby [1970] AC 467, 490. It was unsafe for a motorist to proceed on the basis that the ordinary prudent driver will always behave in a predictable way. The prudent man will guard against the possible negligence of others when experience shows such negligence to be common: London Passenger Transport Board v Upson [1949] AC 155, 176 and Jones v Livox [1952] 2 QB 608. Two issues were relevant: negligence and causation. It is necessary for the defender to show that the pursuer's want of care caused or contributed to the loss. It need not have contributed to the accident, but it must have contributed to the loss: Jones v Livox (supra) at 615. I was referred to a number of cases as illustrative of the approach taken by the Courts in cases which were not dissimilar, but both counsel properly accepted that they provided little direct guidance and that the question was really one of impression in light of all the evidence. The cases cited to me under this heading were: Duncan v Walshe (Inner House, unreported 17 June 2005), Dyer v Bannell 109 Solicitors Journal 216, Powell v Moodie 110 Solicitors Journal 215, Clark v Winchurch [1969] 1 WLR 69, 71-72 and Aldridge v Metropolitan Police Commissioner (Court of Appeal, unreported 6 March 1998). There was one area of disagreement between the parties relating to the question whether the same considerations applied equally to a police officer acting in the course of his duties as to an ordinary motorist placed in the same situation, but I shall return to this after I have discussed the evidence relating to the points of criticism made of the pursuer.
[8] Mr Murphy submitted that the pursuer was aware that Queen Street, particularly at this point, was a "black spot" for U-turns. U-turns were not illegal. The pursuer knew that they were commonly performed there and, indeed, he himself had of his own initiative taken to warning people of the dangers of doing them there. It is putting it too high, in my opinion, to say that this area was a "black spot" for U-turns. However, I am satisfied on the evidence that this is a road where it was not uncommon for drivers to perform a U-turn and that the pursuer was aware of that. There was a particular reason for this, apart from the width of the road. Drivers entering Queen Street from Wemyss Place were forced by the traffic system then in place to turn left, i.e. to proceed along Queen Street in an eastbound direction. If they wanted to go in the opposite direction they could turn up Frederick Street and then turn right along either George Street or Princes Street, but many drivers saw this as unnecessary and would, instead, simply do a U-turn if the traffic permitted it. [9] As the pursuer rode his motorbike on the outside of the eastbound traffic along Queen Street, he was not sounding his siren, though I accept his evidence that he used a short blast of his siren at the pelican crossing some 200 yards away. The choice of whether or not to use any audible warning system was left to the individual police officers involved in the operation. There were reasons for not sounding a siren. It appears that passengers in a convoy find the noise irritating. But there can be little doubt that the use of the siren in addition to the flashing blue lights and the flashing headlight would be more likely to attract the attention of motorists to the fact that a motorbike was coming past them. [10] The pursuer said that he was travelling at between 30 and 35 mph. He emphasised that safety, not speed, was his priority. There was no need to rush to the Frederick Street junction in order to get there before the traffic lights changed; if they changed he would simply funnel the westbound traffic into a single lane so as to allow the convoy through. Although the point was pressed by Mr Murphy in cross examination, I am not persuaded that the pursuer was particularly anxious to get there before the lights changed. A number of witnesses spoke to their impression of the speed of the motorbike as it came past them or as they saw it approaching in their wing mirrors. Mr Murphy submitted that those who simply observed the motorbike approaching them in their wing mirrors were unlikely to be able to estimate its speed with any accuracy. By contrast, he submitted, the witnesses who were stationary when the motorbike overtook them would be able to give a fairly accurate impression of its speed. The two witnesses who were in that position estimated the speed, in one case, at between 40 and 50 mph and, in the other, at 60 mph, though this latter witness had earlier told the police in a statement that she thought that the motorbike was travelling at 80 mph. For my part, having heard the evidence, I would not attach great weight to any of this evidence. But I do take from the two witnesses who saw the motorbike go past them that they had the impression that it was travelling faster than they would expect, and this inclines me to the view that the speed of the motorbike at the time of impact was at, or possibly just above, the upper range of the speed spoken to by the pursuer. [11] Quite apart from the eye witness evidence, I heard evidence from PC McBirnie, of the Crash Prevention and Investigation Unit of the Lothian and Borders Police. He put forward calculations aimed at ascertaining the approximate speed at which the motorbike would have been travelling when it first hit the road and left scrape marks on it. The motorcycle had ended up on the pavement, but had not hit the railing at the far side of the pavement. PC McBirnie's calculations involved applying a constant for the rate of deceleration through friction caused by contact between the motorcycle and the ground. The constant was arrived at for this particular type of motorcycle by experimentation. By taking the distance from the first scrape on the road until the point on the pavement where the motorcycle came to rest, and applying this constant to it, PC McBirnie was able to say that at the moment of first impact with the road (or at least the first scrape mark on the road) the motorcycle had been travelling at about 28 mph. This was subject to a margin of error of plus or minus 2 mph. I did not understand there to be any challenge to the basis of the calculation nor to the constant that was applied in working back to ascertain the speed on impact with the road. However, it became clear that PC McBirnie's calculation did not take account of any additional loss of speed caused by impact with the kerb before the motorcycle mounted the pavement. He thought that this would be small, since a motorbike of that size would mount the pavement easily. On the other hand, it had to be recognised that the impact with the kerb occurred at a point very close to the position where the motorcycle came to a halt and the sketch of the scrape marks on the road and pavement which PC McBirnie had prepared showed there to have been a marked change of direction at the kerb. PC McBirnie also accepted that there might have been some loss of speed at the point of impact with the defender's vehicle; and also between that impact and the point at which the motorcycle first left scrape marks on the road. He thought that such loss of speed would be small. He considered that the combined effect of all of these factors would be in single figures. I accept that evidence, although I would be inclined to regard the combined effect of all of these points - particularly because of the impact with the kerb - as being at the high end of the single figure range. In my opinion PC McBirnie's calculation confirms the impression I gained from the other evidence, including that of the pursuer but taking account of the other eye witnesses, that at the moment of impact with the defender's vehicle the pursuer was riding his motorcycle at between 35 and 40 mph. [12] The pursuer was clear in his evidence as to the line on which he was travelling at and just before the accident. That line was about 2 to 3 feet from the centre line of the road and about 4 to 5 feet from the line of eastbound stationary traffic. He considered that this was the safest line: he would be visible in the wing mirrors of the stationary traffic and he would be sufficiently out of the westbound carriageway so as not to be endangered by the westbound traffic when the lights changed. The evidence given by Inspector Shillito was that the optimum position for the pursuer to be in would have been further out into the westbound carriageway. He gave evidence by reference to the notional tyre tread of a car in the offside lane of the westbound carriageway. The optimum position would be approximately in the nearside tyre tread of that car. Translated into more intelligible language, he would have taken a line a further 6 foot away from the eastbound traffic than the line taken by the pursuer. He explained that being closer to the traffic exposed him to danger in that he would not have time to react if a car pulled out without looking. If he had to travel closer to the eastbound traffic he would reduce speed. I accept this evidence. I find that the position which the pursuer adopted exposed himself to greater risk of being unable to avoid an accident if vehicles pulled out without looking. [13] Mr Murphy also suggested that I should find, on the evidence, that the pursuer failed to observe that the defender was about to pull out. His main submission on this was that the defender had indicated her intention to pull out well in advance of commencing the manoeuvre. For this he based himself on the evidence given by the defender, which was supported to some extent by the fact that subsequent observation revealed the indicator still to be on after the accident. However, this supporting evidence did not, for obvious reasons, address the question of when the indicator was put on. The defender's case that she had indicated in good time was, to my mind, undermined by the admitted inaccuracy of other parts of her evidence directly relevant to the sequence of her actions. I am unable to find that she indicated well in advance of her manoeuvre. In those circumstances I cannot find that the pursuer was to blame for failing to observe the defender's indicator. Nor do I think that there is sufficient evidence of any other warning sign for me to find that any blame attaches to the pursuer in respect of his observation of the vehicles in the traffic ahead of him. [14] The individual criticisms made by Mr Murphy cannot be taken in isolation. A speed which is acceptable in one position on the road may not be acceptable in another. So also a position close to traffic may be reasonable at one speed but not another. The same considerations apply to the use of the siren. It may not be necessary if a motorcycle is well away from the line of vehicles or is going at a very slow speed; but it may be sensible to use the siren if proceeding closer to the traffic and at a faster speed. In my judgment, in his manner of riding, the pursuer failed to take sufficient care for his own safety; and he thereby contributed to his injury. Given the position he was in and the speed he was going, he ought to have sounded his siren. That would have alerted the eastbound traffic to his presence. Without sounding his siren, he should not have proceeded so close to the traffic at that speed. Without the siren there was an increased danger that a driver of one of the vehicles in the traffic might, albeit negligently, pull out in circumstances where, because of his position and speed, he had little or no time to react. That is what happened in the present case. [15] Mr Murphy contended for a finding that the pursuer was 75% to blame for the accident. I regard this as far too high. Although the pursuer was to some extent at fault, it is clear that the defender was primarily responsible for the accident through her negligence. I assess the pursuer's contributory negligence at 25%. [16] In terms of the joint minute between the parties it was agreed that the amount of the pursuer's total loss, injury and damage was £375,000, inclusive of interest to date of decree. I was given a breakdown of the heads of damage but need not record that breakdown in this Opinion. In the absence of any pleas-in-law for me to uphold, Mr Murphy suggested a form of interlocutor to reflect a finding of contributory negligence standing agreement on the full amount of the pursuer's loss. In the absence of adverse comment from Mr Mitchell, I took Mr Murphy's suggestion to be appropriate as to the form of the interlocutor, which I therefor pronounce in the following terms:"Finds in terms of section 1(1) of the Law Reform (Contributory Negligence) Act 1945 that on the evidence the pursuer's share of responsibility for the damage he has suffered is 25%, and therefore pronounces decree in favour of the pursuer, finding the defender liable in the sum of £375,000 under deduction of 25% thereof and interest on that sum at 8% per annum from the date of decree until payment".
