BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just ยฃ5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mccusker v. Cunningham & Anor [2008] ScotCS CSOH_32 (20 February 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_32.html
Cite as: [2008] ScotCS CSOH_32, [2008] CSOH 32

[New search] [Help]

 

OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 32

 

A858/04

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD CLARKE

 

in the cause

 

MRS ROSEMARY CATHERINE McCUSKER

Pursuer;

 

against

 

DAVID CUNNINGHAM

 

First Defender:

 

And

 

ALAN CAMERON GLEN

 

Second Defender:

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuer: Armstrong, Q.C., Hodge, Campbell Smith W.S., (for Holmes Mackillop, Glasgow)

First Defender: Bell, Q.C., Milligan, Anderson Solicitors LLP

Second Defender: Stuart, Q.C., Brodie, HBM Sayers

 

20 February 2008

 

Introduction

 

[1] On 18 May 2001 members of the Glasgow University Geological Association were travelling, in two minibuses, northwards on the A9 road near Calvine, Perthshire. They were on their way to a geological field trip. At about 11.40 am the front minibus collided head-on with an ex-military Land Rover driven by the first defender. Four of the occupants of the front minibus, including its driver, Mr David Wilkinson, were killed. Others, including the pursuer in the present proceedings, were seriously injured. The first defender himself was very seriously injured.

[2] The second defender was the driver of a Honda CRV vehicle, which had been previously travelling behind both of the minibuses, and, shortly before the accident, had overtaken the rear minibus.

[3] In the present proceedings the pursuer sues both defenders for damages for the injuries caused to her, on the basis of the fault and negligence of either or both of them. The matter came before me for proof. At the outset of the proof it was explained to me that it was agreed among all the parties that the issue was one, as between the two defenders, as to who should pay the pursuer the appropriate sum of damages, and that she was not required to be put to the proof on the matter. The pursuer's counsel, in the light of this, sought the court's leave to withdraw, which request was granted. It was further explained to the court, by those representing the defenders, that the court was not to be invited to reach a view that the accident had been, to any extent, caused by the joint fault of the first and second defender. The first defender had assumed the onus of showing that the accident was caused by the sole fault of the second defender.

[4] Part of the background to the present proceedings is that the first defender was charged, on indictment, with having caused death by dangerous driving under section 1 of the Road Traffic Act 1988. He went to trial, at Perth Sheriff Court, in January 2004 and was, in the event, found not guilty. A transcript of the evidence given at the trail was lodged as production in the proof (25/12/1 of process) and was referred to, at the proof, by both parties.

[5] The issue between the parties, at the proof, in essence was whether, on the one hand, the accident was caused by the first defender, who was travelling southwards on the A9 on the day in question, driving his vehicle onto the wrong side of the road and into the path of the minibus due to having failed to control his vehicle, or having fallen asleep at the wheel or, alternatively, whether the accident had been caused by the second defender in overtaking the front minibus at a time when it was unsafe to do so because of oncoming traffic in the shape of the first defender's vehicle and that the first defender was forced to take avoiding action to seek to prevent a collision between his vehicle and the second defender's vehicle.

[6] The locus of the accident and its immediate aftermath are well illustrated by a set of photographs, 7/1 of process to which reference was made at the proof. Other photographs of the locus taken on 19 July 1007 by Peter Sorton and Associates were also referred to at proof.

[7] The locus is a stretch of the Perth to Inverness A9 road and is a notorious accident black spot. At the locus the road runs in a general north to south direction and comprises of a single carriageway approximately 9 metres wide, with two lanes, which are divided, at the locus, by hazard warning lines. There is a lay-by situated on the west side of the road at the locus which is 3.5 metres wide. When approaching the locus from the south the road is straight and level and then inclines slightly forming a long sweeping right hand bend which then straightens and levels just south of the locus. There are raised rock formations on either side of the road. When travelling northwards, the locus is visible for about 144 metres to the south. When approaching the locus from the north the dual-carriageway terminates 4.5 kilometres from the locus. There are signs warning of the end of the dual-carriageway, positioned 800 metres before the dual-carriageway ends. There is a further warning sign of the end of the dual-carriageway, a sign indicating two way traffic and return arrows on the road just before the end of the dual-carriageway. North of the locus, the road forms a left hand bend and then a slight right hand bend and is then straight leading to the locus.

 

The Evidence

[8] The foregoing description of the locus is taken from the crash investigation report prepared by police officer John McKay, (25/1 of process) which was spoken to by him in evidence at the proof. As that report also reveals, while there had been showers of rain earlier on the day of the accident, the road surface was mainly dry with some damp patches. The road surface was in a good state of repair. There was no indication that the road or weather conditions had contributed in any respect to the accident. This witness also had prepared a plan of the locus showing, inter alia, the respective positions of the vehicles after the collision (25/2 of process).

[9] Both defenders gave evidence. At the proof, there were, however, considerable difficulties in relation to each of the witnesses' evidence. The first defender, who is now 32 years of age and was 26 at the time of the accident was, as has been noted, very seriously injured in the accident and now has no recollection, at all, of the events leading up to the accident, far less of the accident itself. He sustained very serious injuries to his head which have resulted in him having no memory of a period of five days leading up to, and including, the accident itself. The second defender is now 73 years of age. He is, unfortunately, suffering from Alzheimer's disease, having first been diagnosed with that condition in November 2005. There was produced to the court a soul and conscience certificate from his general practitioner (7/10 of process) who certified that in the opinion of the writer the second defender was not fit to attend court and give evidence. The consultant psychiatrist, Dr G Stephenson, who first diagnosed the second defender as suffering from his present condition, and who is treating him for it, however, gave a report, 7/11 of process which indicated, on soul and conscience, that the second defender was fit to attend court and give evidence "if due time and consideration is given to the questioning of Mr Glen". Dr Stephenson added that "the court should be mindful of the cognitive limitations and tendency to increase word finding and hesitancy at times of stress". The first defender chose to follow the advice of Dr Stephenson and led Mr Glen as a witness at the proof. Dr Stephenson, who sat in court while Mr Glen gave his evidence, himself gave evidence in supplement to his report. In the event, the second defender clearly had considerable difficulty, in my opinion, with regard to answering some questions and became somewhat confused at times. He had particular difficulty when being asked questions under reference to documents. I have absolutely no doubt that he was doing his very best, given his present condition, to assist the court but it was somewhat doubtful, as I shall explain later, to what extent, his evidence, given at the proof, can be regarded as reliable, standing his condition.

[10] The first defender at the date of the accident, was working as an engineer with Caledonian McBrayne on a vessel known as "Isle of Lewis" which plied the route between Ullapool and Stornoway. On the morning of the accident he was travelling to his family home in Edinburgh. The previous day, 17 May, he had worked the following shifts - from 8.00 am to 12.00 noon and from 5.00 pm to 10.45 pm. On the morning of the accident, before leaving for home, he had been at work from 5.30 am to 8.00 am. The Land Rover which he was driving was 17 or 18 years old. It was designed for military use. The first defender said that it was well maintained by him and was, mechanically, in excellent condition. Prior to the accident the first defender was a fit young man who engaged in hill walking and mountain biking as hobbies. He told the court that he had not found his work, prior to the accident, to be exacting. He had recently joined the ship in question. He was not over familiar with the A9 road, but he was aware that it was, in part, a single carriageway. He understood that his vehicle had a maximum speed of 60 miles per hour. He said that he generally drove it at a speed of between 50-55 miles per hour. It was, he said, a "very physical" vehicle which required to be controlled. It was also a noisy vehicle. The first defender's father, George Cunningham, confirmed, in evidence, that his son had been fit and healthy before the accident and that his vehicle had been in good condition. Dr Susan Campbell is a neuro psychologist who had been involved in the care of the first defender when he was a patient at the Astley Ainslie Hospital in Edinburgh. She confirmed, in evidence to the court, that it was not unusual for a person, such as the first defender, who had sustained the kind of head injuries which he had sustained, to have amnesia as to events up to five days prior to the trauma which had caused the injuries. She did not expect the first defender to regain his lost memories.

[11] The court heard from Ian Purdie, who is a police officer. He was driving, off duty, on the day of the accident, southwards, on the stretch of road in question. He observed the Land Rover driven by the first defender in front of him and had overtaken a bus and a transit van which had been travelling behind the Land Rover. He then overtook the Land Rover. As Mr Purdie got to the section of the road where the dual-carriageway ended, he noticed that the Land Rover pulled out and overtook the bus. The Land Rover was then immediately behind Mr Purdie's vehicle. Mr Purdie estimated that, at that stage, he himself was driving at between 60-70 mph. He continued to see the Land Rover in his mirror for about a mile. Mr Purdie's attention was not attracted to any vehicles travelling northwards. He discovered about the accident the next day when an appeal was made in the media, for witnesses to come forward.

[12] Mr Allan Kidd was a witness to the accident. He had been driving southwards on the A9 road, on the day in question. He was driving a Mitsubishi Shogun vehicle which is a large 4x4 vehicle. In examination in chief he said that he saw the Land Rover in front of him. He overtook it. He was driving at no more than 60 miles per hour. The witness said that the reason for his overtaking of the Land Rover was that it was being driven slowly at one time and then it speeded up and it was "weaving about". Mr Kidd said that he made a subconscious decision to get out of its way. Once past the Land Rover, the distance between his vehicle and the Land Rover continued to increase. There was a bend in the road beyond the point at which he had overtaken the Land Rover and then the road went downhill. In his rear view mirror Mr Kidd then saw that a collision had taken place. Prior to that his attention had not been attracted to any vehicles travelling on the north bound carriageway, although he was aware that there were a few vehicles on that carriageway. He phoned the police from his car to alert them about the collision. He subsequently gave evidence at the trial of the first defender. At the trial he said that his attention had been particularly drawn to the Land Rover because he himself had a particular interest in that type of vehicle. He accepted that he had given a statement to an accident investigator Mr William Jamieson, on 16 March 2003 and that neither at the trial, nor in that statement, had he said anything about the Land Rover "weaving about". He was, however, when pressed, prepared to say that what he had said at trial, and in his statement, were more likely to be accurate than what he was now saying to the court, some years later. In cross-examination the witness said that he had been driving his vehicle between 50 and 60 mph. He thought that, at one point, the Land Rover had overtaken him and that he, himself, then caught up with it and overtook it. Once he stopped his vehicle, after having seen steam rising from the crashed vehicles, the accident locus was no longer in his line of view. He had not seen the moment of impact itself. He said that he distinctly recalled that he overtook the Land Rover because it was not "moving at a steady pace, not a consistent pace". His clear memory was that he had said to himself "right get past it". While he had referred, in examination in chief, to the Land Rover being driven in an "erratic fashion" he conceded in cross-examination that that might not be the right word to describe the Land Rover's movements. The witness went on to repeat, however, that the Land Rover's speed was not consistent. He could not explain why he had not said that in his evidence at the trial. But his evidence now was that the Land Rover was speeding up and slowing down and that "frustrated me and moved me to overtake".

[13] In re-examination, the witness accepted that while it was in his line of view, the Land Rover was keeping to its own side of the road.

[14] The pursuer, in the present proceedings, Mrs Rosemary McCusker gave evidence. She was one of the passengers in the front minibus and sustained serious injuries in the crash. She was the secretary of the Geological Society at the time of the accident. She had been responsible for the hiring of the two minibuses for the trip. The two drivers were members of the society. There were seven persons in the front minibus. There was a driver and an assistant driver sitting in the front. The witness was sitting behind the assistant driver. Just immediately before the accident the assistant driver, who himself was killed in the crash, had turned round to speak to the witness. Mrs McCusker said that she was not paying any attention to other vehicles on the road. She had just been enjoying the scenery. She suddenly heard a scream or screams from another person or persons in the minibus. She then said "I just saw the car coming straight at us. It was just so sudden, everyone was so shocked". She could not describe the vehicle which collided with the minibus but said it was only about 6 yards away when she first saw it. The front of it hit the front of the minibus. She was not aware of any sideways movement by the minibus. She was not aware of any other vehicle, which had been overtaking the minibus, being involved. She was still conscious when she was helped out of the vehicle by emergency services.

[15] Mrs McCusker advised the court that the deceased driver of the minibus was a "wonderful" driver, as was the assistant driver. That was why they had been chosen to drive the vehicle. She did not think that the minibus was going at a fast speed. She could not say how far the other minibus was behind the front one at the time of the collision. She was not aware of the driver of the front minibus braking before the collision. She simply remembered a scream or shout and the vehicle stopping "after we were hit". Her assumption had been that the Land Rover had come from the other side of the road. It had been coming at them from that side.

[16] Dr Colin McFadyen is a geologist, who was part of the group outing, on the day in question. He was there as an expert. He was travelling in the rear minibus, sitting behind the driver. He had a clear view of the road ahead. There was general chatting going on among those in the rear minibus. Before the collision Dr McFadyen had been reading some texts and generally looking around. Immediately before the collision he had heard someone make an exclamation which drew his attention to the road in front. At that particular moment he himself had been looking down at his books. He looked up. The front minibus was about 100 metres ahead. The rear minibus was a safe distance behind to brake and to drive onto the lay-by, which it did. Dr McFadyen said that he had a very clear view ahead when he looked up. He was not aware of the presence of any other vehicle, apart from the two colliding vehicles. He was not aware of the front minibus braking. For example, he saw no brake lights. To the right hand side of the front minibus he could see the vehicle which had collided with it. He specifically said that he did not see a Honda vehicle in an overtaking position, but reminded the court that he had been reading texts. He did not, he said, see any vehicle between the two minibuses pulling out and overtaking as the collision happened.

[17] The driver of the rear minibus was Mr John Convery. He was, said Dr McFadyen, a safe driver. He thought that both minibuses were travelling within the legal speed limit but were possibly going as fast as 60 mph at times. He was not concerned about the speed at which the minibus was travelling.

[18] The driver of the rear minibus, John Convery, gave evidence at the trial of the first defender. Unsuccessful efforts had been made to trace him in order that he might give evidence at the proof. His evidence, at the trial, was referred to by both sides at the proof. At page 234 of the transcript which records his evidence the following appears:

"Q. What was it that made you first aware that something was wrong?

A. I was looking straight ahead most of the time. I think we came into a single part of the road, and within the peripheral vision that I had I had seen another vehicle on our side of the road. I didn't see it completely, but I seen a part of it, because obviously my view would be obscured by the minibus in front of me but I just caught a glimpse and I called out and then everything went into slow motion after that, time seemed to slow down.

Q. Well, what kind of other vehicle was this that you saw?

A. It appeared to be a jeep - exactly what type of jeep I couldn't say at all.

Q. Can you say as exactly as possible where it was on the road when you saw it?

A. Yes, it was very close to the verge on our side of the road.

Q Which direction was it pointing in?

A Coming heading - well, if we were heading north, then it was coming south on our side.

Q What position did it appear to be holding on the road in regard to its movement?

A Well it was coming straight ahead, and it was close to the verge, going straight

Q And what did you see happen?

A. Em, what happened was that the two vehicles came together. They weren't exactly head on. Obviously the jeep was offset to the minibus because it was closer to the verge, and then both vehicles rose into the air, came down, the minibus more or less stopped dead and the jeep was facing east and west.

Q. You say the jeep was disaligned?

A. Yes"

Q. To the point of the minibus?

A. Yes

Then, at page 239 of the transcript, the following appears:

Q. "Were you aware of whether there was any southbound traffic passing you on your right at this time?

A. Vehicles had been passing me, but during the time of the collision and just before it I wasn't aware of any.

Q. And do you have any memory of a car on your side passing the first minibus about the time of the collision?

A No

Q. If I suggested to you that a Honda CRV?

A. It wouldn't mean anything to me

Q. Have you any memory of that?

A. It wouldn't mean anything to me."

[19] In cross-examination at the trial, as recorded at pages 240-241 of the transcript, Mr Convery confirmed that he had no recollection of seeing the Honda CRV passing his vehicle, nor did he have any recollection of the Honda CRV accelerating away from behind the minibus in front of him and away down the road.

[20] I have indicated already that the second defender gave evidence at the proof, and for the reasons already alluded to, there is a serious problem with regard to the reliability of a good deal of his evidence given at the proof. Dr Stephenson, however, gave evidence that at the time of the trial Mr Glen had not been suffering, to any extent, from his present condition and that his memory and recollection would have been normal for someone of his age at that time. The second defender's wife, as will be seen, gave evidence at the proof and she confirmed that, at the time of the trial, the second defender's memory would have been good and its deterioration had not commenced.

[21] At the trial, the second defender gave evidence that he passed the rear minibus and then remained for some time behind the front minibus at a distance of about 50 yards. He was not intending to pass it. He said that he, at some time, became aware of two vehicles driving southwards, the second of which was a Land Rover. The second defender, at the trial, said that these two vehicles were 200 or 300 yards or more away from his vehicle when he first saw them. He then said that when he first saw them they could have in fact been 4 or 5 miles away (page 150-151 of the transcript) but they then escaped from his view and when he saw them next he would have been at least 300 yards away. At pages 151-152 the following passage of his evidence appears in the transcript:

Q. "Now, when you saw them at that stage was there anything about the movements of either of them that gave you cause for concern?

A. Well, at the point the second vehicle, which was the - the Land Rover - it appeared from the back of the first vehicle. Now, I couldn't tell at that time how far back or near the van he was, but all I could see was the Land Rover coming out, very slowly, and I thought 'He shouldn't be passing here'. That was the first thought that went through - because of the vehicles coming towards him, and - em - he just kept coming, and I got quite perturbed about that, because whenever I saw the first vehicle, or the vehicles, I thought 'well now is my chance to get past', etc. So I waited and the first one passed, and I had a look to see where the second one - and I just moved out a wee bitty and I couldn't see it, and I went forward a bit and I had another look and I couldn't see it, and it came to me that 'I am going to be in a lot of trouble here if he doesn't - em - appear, he is going to hit the vehicle in front' - I mean the minibus".

At page 153 the second defender continued:

"And I had another look and I didn't see him, so then I thought 'it is time for me to go', and I went out and as soon as I got out and passed the tail-end of the minibus he was there, and he was coming straight at the mini van."

Later on at page 153-154 the second defender said:

"I mean, I was so close to it I got - a shower of glass went over my vehicle."

At both the trial and at proof, the second defender agreed that, having driven on, he then stopped and looked back and saw that there had been a serious collision. He did not, however, go back to assist, but drove on to his destination even though his wife had said to him that he should go back. He did not contact the police to inform them of what he had witnessed until the following day. His explanation for that course of conduct was that he had been so shocked by what he had just witnessed he just wanted to get away from it. The witness, at the trial, was adamant that he had no intention of passing the front minibus before it was safe to do so. The second defender, at the trial, said that his wife had been sleeping and that she woke up when he shouted something on seeing the Land Rover. He also said that she was awakened when the glass from the colliding vehicles hit his car. He was adamant that the Land Rover was proceeding on the wrong side of the road before he himself consequently sought to pass the front minibus.

[22] A statement was taken from the second defender on the 11 April 2003 by Mr William Jamieson, an accident investigator acting on behalf of the first defender. That statement forms part of 25/7 of process. William Jamieson was a witness at the proof and spoke to taking the said statement (together with other statements from other witnesses). He explained, however, that what he had done was to interview the second defender at his home and then he himself, had subsequently typed up the statement at his own home. This statement was put to the second defender at the proof and it was clear that because of his condition he found it very difficult to both read the statement and answer questions under reference to it. It was consequently impossible to reach any firm conclusions as, to what extent, if any, he was confirming what was said in the statement or departing from it. The statement records the second defender having said inter alia the following:

"There was a straight stretch of road just after the House of Bruar and I overtook the rear most minibus there. As there was no opportunity to overtake the first minibus I fell into position about 50 yards behind it until I could overtake. On checking my mirror I saw the second minibus about 75 yards behind me. We passed a road junction and entered a cutting between the rock walls where the road was rising and bending very slightly to my right. As I crested the rise I got a good look ahead. I saw, in the distance, the road angling towards us from the left. The road then disappeared from view to my right before re-appearing in a right hand bend from my viewpoint. I clearly saw two vehicles, one behind the other, travelling towards me (south) on the angled section of road. They were not motor cars, nor were they large vehicles. I thought at the time they were possibly Transit van sized vehicles. The front one seemed slightly larger than the second. I thought that I would wait until those two vehicles had passed going the other way and then the roadway would be clear for me to overtake the minibus as I had clearly seen that there were only two approaching vehicles. I don't know how long it was before the vehicles reappeared. It seems like ages but everything surrounding the accident appeared to me to happen in slow motion. The whole event possibly took no more than 30 seconds but it seemed like minutes to me.

I was still driving at about 50 mph approximately 50 yards behind the front minibus. We were going round a gentle right hand bend, which meant that I had a clear view up the offside of the minibus, including the whole of the opposite side of the road (the southbound lane). I saw a dark coloured, quite bulky vehicle travelling towards me on the other side of the road. I then saw a Land Rover start to move out from behind it. I would describe the movement as a continual drift. It did not seem to be accelerating as if to overtake, although there was neither the time nor space for it to overtake. The Land Rover continued to drift until it was half way towards the centre white line of the road. Before I saw the Land Rover starting to drift across the road, I had started to accelerate to close the gap to the front minibus until I was about 10 to 15 yards behind it. My intention was to overtake as soon as both southbound vehicles had passed. The first southbound vehicle passed my car but the Land Rover, which should have been right behind it, was missing. I pulled my car over until about half the width of it was over the white line to get a better view of the road ahead as I could not see the Land Rover coming towards me at all. I saw the Land Rover travelling towards the minibus in the wrong lane. It was heading straight for the minibus. It appeared to still be travelling at the same speed as when I first saw it and there was no sign of it slowing or swerving to avoid the minibus. At that point I thought that the driver of the Land Rover must be asleep. That's the only explanation I could think of for its slow drift to the wrong side of the road and its continued course towards the minibus.

I cannot understand why the driver of the minibus had not reacted to the danger. At no time was I aware of it braking, swerving or taking any other avoiding action. If I had seen the Land Rover drifting over the road and driving on the wrong side of the road, the driver of the minibus should have had a far better view, as my view was partially obstructed by the minibus. I realised that a collision was inevitable and that if I stayed where I was I would be unable to avoid colliding with the back off the minibus. I accelerated as hard as I could and swerved completely onto the other (southbound) side of the road, hoping that I could avoid the collision.

My car was alongside the minibus when the Land Rover collided head-on with it. I was shouting and woke up my wife who did not know what was happening. I saw the Land Rover rear up off the road and then my car was being showered with broken glass and other debris."

One common feature of the evidence given by the second defender, at the proof, and what he is recorded as having said in his evidence at the trial, was his use of the word "drift" or "drifting" to describe the movement of the first defender's vehicle. At the proof he also said that he first saw the Land Rover when he was about 50 yards behind the rear minibus. In examination in chief at the proof the witness said a car in front of the Land Rover had not passed him before he had overtaken the rear minibus. After passing the rear minibus he couldn't see "the one that had been drifting away" but he said he thought he could get passed it. He "took a wee peek. I couldn't see anything. I went out and 10 or 12 yards I saw him again right in front of the first minibus". He said he, then, pulled out to overtake at what he thought was the right time and then he saw "him" i.e. the Land Rover collide with the minibus. The second defender said that he was side by side when the minibus and the Land Rover collided.

[23] In examination in chief of the second defender, senior counsel for the first defender put it to him what was the first defender's case on record, at that stage, namely that second defender had overtaken both minibuses, in a single overtaking manoeuvre. The witness was clear in his recollection that this definitely was not the case. As will be seen, in the light of other evidence led, the first defender sought to amend his pleadings to the effect that prior to the collision the second defender had overtaken only the rear minibus. Notwithstanding the difficulties which the second defender had, at times, in giving his evidence it was, to my mind, noteworthy that on this aspect of the case his memory was absolutely correct and what had been averred on behalf of the first defender was accepted to be clearly wrong.

[24] The second defender said that his wife had been asleep and only woke up when he was seeking to pass the front minibus and then there was the smash and he swore.

[25] In cross-examination the second defender said that as he was "taking off" to get past the first minibus, the Land Rover was making straight for the minibus. If he had stayed put behind the front minibus and had not succeeded in getting past it he felt that he would have been killed. He took what he described as "avoiding action" to avoid a crash involving his own vehicle.

[26] During cross-examination the witness appeared to become very tired and confused and I granted a motion that he should be allowed to have a break in giving his evidence. On resuming giving his evidence, the following day, the witness confirmed that he had difficulty with dealing with questions relating to his previous statement. In re-examination the witness said that, after having passed the rear minibus, he moved forward to close the gap with the front minibus. He felt that the man in the car (by which I took it he meant the first defender) was going to crash with the minibus and that was why he moved his vehicle out. He accepted that, immediately prior to the accident, the driver of the front minibus would have had a better view ahead than he had. He couldn't explain why the minibus driver took no avoiding action. The witness was adamant that it was absolutely wrong to suggest that it had been the Land Rover which had had to get out of the path of his vehicle. He considered that he was 30 yards back from the front minibus when he first saw the Land Rover in its drifting movement.

[27] The second defender explained that he had taken the decision not to stop after the accident to go back and assist, or to report events that day, on the basis that he had been extremely shocked at what he had see happen and simply wanted to drive on to his destination.

[28] The second defender's wife Mrs Jean Glen gave evidence at the proof. She gave her evidence in a clear and confident fashion. In examination in chief she said that she had been asleep in the car before the collision because her husband was not good company when driving, as he concentrated entirely on his driving. Her first recollection after having fallen asleep was hearing her husband shout, with great anxiety, "Jesus Christ". "He was accelerating to pass a vehicle in front of us. He managed to pass the vehicle and there was a great explosion." It was not true, the witness said, that she had woken up after the collision had occurred. The accident, she said, did not take place until a second after her husband exclaimed "Jesus Christ". She did not accept that the Land Rover had to drive out of her husband's way.

[29] After her husband had driven on she had said to him that they would have to go back to the accident scene. He had replied "I can't". He was very shaken. Both of them had got a terrible fright. She, nevertheless had felt that they ought to go back and help "those poor people". There seemed, however, to be already a lot of people helping, so her husband did, in the event, drive on.

[30] The witness said that she herself never saw the Land Rover at any time but when she woke she saw the minibus in front of her. Her husband was at that point accelerating to get past it. She couldn't see anything in front of the minibus. Her re-collection was of seeing the other (i.e. right hand) side of the road. Her husband had anticipated the danger that was just emerging of a collision of two vehicles in front of him. That was why he had shouted when he was still behind the minibus.

[31] Mrs Glen and her husband had read about the accident, on the day following its occurrence, and had phoned the police to say that they had been witnesses. He later called in to the police station at Perth to report what they had seen. The police had taken a statement from her husband but not from her. Mrs Glen said that she and her husband, in their own minds, did not consider that he had caused any accident, rather they had avoided an accident to themselves. She had not attended the trial of the first defender. It was not correct to say, as her husband is recorded as saying in the transcript of his evidence given at the trial, that she had only woken up as a result of noise of shattering glass. She was adamant that, when she woke up, her husband's vehicle was behind the minibus. She had wakened up when he had shouted "Jesus Christ". Her view was that he obviously thought he had to get out of the way to avoid the accident. Her husband was steering his vehicle away to the right and she had a recollection of seeing a wall of rock on the right hand side of the road. She and her husband had discussed the event many times together. He said to her that he had seen two vehicles coming southwards for some way before the accident. One of these vehicles had passed his car but the other car "drifted" to the other side of the road towards the minibus. Her husband had realised that if he stayed where he was he would be in a crash. That was his reason for seeking to get out of the way. The way she put it was "he saw the Land Rover drifting across the road and he realised it was going to hit the minibus and he had to get out of the way". Mrs Glen agreed that she had declined to give a statement to those representing the first defender. Her explanation for this was that she did not see that it would do her husband's illness any good. That was, perhaps, an odd justification for her refusal. Be that as it may, I was left with the impression that this witness was seeking to tell the truth and also that her memory of what had occurred remained very good and was vivid. The fact that she had contradicted her husband's evidence regarding when she woke up was noteworthy since it is clear they have been discussing the matter regularly over the years and this, at the very least, demonstrated that they had not sought to settle a story between them so that their positions would not be contradictory.

[32] I heard evidence from Police Constable Colin Laing, a traffic officer who attended at the locus of the accident, some 40 minutes after its occurrence. He spoke of the photographs, 25/11 of process, as having been taken shortly after the accident. His job was to collate statements taken from witnesses. There was no suggestion, at the time of the accident, that it had been, in any way, caused by a vehicle trying to overtake the minibus. Had there been, enquiries relating to such a suggestion would have been made. There was no physical evidence at the locus of any such factor.

[33] The witness had identified a tyre mark coming from the minibus which can be seen in photograph (P) of 25/11 of process. There was no physical evidence, however, of any skidding by the minibus. The suggestion, from the evidence available at the time, was that the minibus driver had had a very late realisation as to what was happening and that there had been very minimal braking before impact. There were gouge marks found on the road in front of both vehicles which the witness considered were made by some forcing down of the vehicles onto the road.

[34] Evidence was also led from Police Constable Bruce Hope, a member of the traffic department of Tayside Police at Perth, who had carried out an examination of both the minibus and the Land Rover, after they had been recovered from the locus of the accident. There had been, he said, massive frontal impact on the minibus. It appeared to have been hit "square on" because of (a) the extent of the damage, (b) the fact that the other vehicle was a Land Rover and (c) from the angle of the damage it appeared to the witness that the vehicles had collided head-on. Similar massive impact had been sustained by the Land Rover which confirmed that the collision had been head-on. The witness had been able to examine the mechanics of both vehicles and he had formed the view that there was no defect in either vehicle which could have contributed to the accident. He had no note of the doors of the Land Rover having been removed. His inspection of the vehicles had included an inspection of their brakes and they had been found to be in good working order. Although the crash was, in his opinion, a head-on one, he would not exclude the possibility that the two vehicles had finished up at a slight angle between them.

[35] The first defender led, as an expert witness, Dr Andrew Ninham. He prepared a report which is 25/6 of process, which he spoke to in evidence. His company, Hawkins Associates Limited, is what he described as a technical adviser to the insurance industry and the legal profession. Over a period of ten years the witness has gained an expertise in investigating the causes of road accidents and, in particular, in giving expert opinion on accident reconstruction, although his own academic qualifications were in another field i.e. erosion in metals. In preparing his report, the witness had had regard to the transcript of the evidence given at the trial, witnesses' statements and the Closed Record. Dr Ninham also attended at the locus, along with a colleague, and took measurements and photographs. Dr Ninham recorded a video showing the view from the car he was driving, on the day on which he inspected the locus, as it drove through the locus from both directions. In paragraph 5.1.3 of his report Dr Ninham states

"Irrespective of whether Mr Cunnigham entered the northbound lane in a sharp manoeuvre in response to Mr Glen's vehicle, or in a more gentle manoeuvre unrelated to the presence of Mr Glen's vehicle, the whole sequence must have begun several seconds before impact. At 6 seconds before impact (assuming speeds of 55mph) the vehicles involved in the collision would have been separated by a distance of about 300 metres and, very roughly, equidistant from the point of impact. At 55 mph for each vehicle the available visibility of about 400 metres, i.e. some 200 metres either side of the point of impact, would take approximately 8 seconds to cover".

Then again at paragraph 5.2.2. the witness states that

"the vehicles came to rest close to each other and either side of the gouge marks indicates that the momentum of each was similar in magnitude (but essentially opposite in direction) to the other. Momentum is simply the product of mass and speed in a given direction. I do not have precise figures for the masses of the vehicles but Mr McKay reported that enquiries of their manufacturers indicated that the unladen weight of the Land Rover was 382 kg less than that of the Transit minibus. With assumptions concerning the mass of the minibus' passengers and luggage, the vehicles having similar momentum suggest that the Land Rover's speed was approximately 60% higher than that of the minibus, at impact."

At paragraph 5.2.3 Dr Ninham continues:

"The Police photographs show that both vehicles were very extensively damaged. That is consistent with the apparent speed of the minibus shortly before the accident as described by witnesses including the driver of the following minibus, and the very short skid mark (although there would have been some speed lost by braking before skidding commenced)."

Dr Ninham, in modelling the impact, had used commercial accident reconstruction software PC Crash (Version 7.2). He reached the view that, in the moments before impact, as indicated by the alignment of the skid mark that it left, and its position on Mr McKay's plan, the minibus was heading slightly towards the right (the east). The position and orientation of the minibus at impact was well defined. The impact was biased towards the near side of the minibus - the front off-side wing was relatively undamaged compared to the front near side wing. The witness was, for reasons explained at para 5.2.7, however, not in a position to say what the precise orientation of the Land Rover was at impact. In particular he had not taken into account the possibility that the final stage of its movement, it had turned eastwards.

[36] Dr Ninham in his report goes on to address the issue of driver perception/response time having regard to the two competing versions of how the accident occurred. He sets out in tabular form what he describes as plausible timings on the basis of each of the two scenarios. At para 5.3.5 he opines:

"In both scenarios the separation of the Honda from the Land Rover at the start of the sequence is likely to be less than 400 metres because the scenarios involved times less than 8 seconds, although in both cases I have erred towards making the sequences shorter rather than longer. Thus it is more likely that I have under estimated rather than over estimated the times for the sequences. Depending on the position of intervening vehicles there would probably have been mutual visibility of Mr Cunnigham's Land Rover by Mr Glen and of Mr Glen's Honda by Mr Cunnigham at the start of each sequence unless the sequence of events that occurred were rather longer than I have suggested (more than about 8 seconds in total). I would emphasise that the two sequences are illustrations of the possible circumstances. There is no physical evidence which can assist with the relative positions of the vehicles (and in particular their positions across the width of the road) other than very shortly before the accident; and there is only Mr Glen's evidence of the position and movement of his vehicle."

In paragraph 5.3.7 Dr Ninham states the following:

"Because of the curvature of the road it would be difficult for a driver looking at an approaching vehicle that was about 300 metres away to determine that it was moving on to the 'wrong' side of the road. If the approaching vehicles were only about 200 metres away there would probably not have been time for the different stages of the sequence described by Mr Glen to have occurred before the impact. Mr Glen also described edging out to see where the Land Rover was whereas the sequence detailed in the Table is associated with Mr Glen responding promptly by swerving when the Land Rover was still only part way across the road."

Dr Ninham was not able to assist with the matter of the time for which the Land Rover was on the "wrong" side of the road before impact. Moreover his position was that there was no physical evidence which could assist with the question as to whether the sequence of events leading to collision was begun by Mr Glen or Mr Cunnigham. His conclusion, in his report, was that it was equally plausible, on the one hand that the first defender had been driving on the wrong side of the road and, on the other hand, that the first defender had taken avoiding action when he was faced with the second defender overtaking the minibus.

[37] As noted above, the witness had considered the terms of the Record in preparing his report. In cross-examination his attention was drawn to the first defender's averments in answer 4 which were to the following effect:

"The second defender pulled out into the southbound carriageway and began to overtake both minibuses when it was unsafe to do so. He pulled out into the southbound carriageway and began to overtake both minibuses when the first defender's vehicle was travelling near to the locus in a southbound direction. Had the second defender been maintaining a proper lookout, the presence of the first defender's vehicle travelling southbound and the space and time available to him to safely overtake the minibuses ought to have been obvious. He did not pull back behind both minibuses after he began to overtake them."

Dr Ninham accepted, after some careful questions put to him by senior counsel for the second defender, that he could not support those averments, having regard to the evidence he had considered, in particular the evidence regarding the speed of the Shogun vehicle being driven by Mr Kidd, and the speed of the minibus. Because of that evidence, Dr Ninham agreed that had the second defender sought to overtake both minibuses there would have been a different accident. The second defender's vehicle would have collided with Mr Kidd's vehicle. In the light of that evidence, senior counsel for the first defender sought to amend the pleadings of the first defender by removing the references to the second defender having overtaken the two minibuses and substituting therefor averments that the second defender had overtaken only the rear minibus. I allowed this amendment to be made.

[38] In cross-examination Dr Ninham said that, on the evidence, taken as a whole, his opinion was that the first defender's vehicle was being driven at its maximum speed at point of impact. He was of the view that, if the second defender's wife's evidence was accepted, it was consistent with the second defender facing an emergency and pulling out to avoid it. The manoeuvre of the car over to the right, which she spoke to would, he said, have been an unusual manoeuvre for someone seeking to overtake the front minibus. One of the difficulties in the case was that it was impossible to know when the driver of the front minibus first saw the Land Rover. It was possible that he saw it only after one or more of the passengers did.

[39] I found this witness to be impressive. He clearly understood the proper role of an expert witness and, candidly, accepted that he was ultimately unable to say, from his expertise, applied to such evidence as was made available to him, which of the two competing scenarios was the more likely.

[40] The second expert witness led on behalf of the first defender was a somewhat different kind of witness. Mr John Marshall is chairman and managing director of a company known as Incinalysis Limited. He previously worked as a police officer. He produced a report, 25/7 of process, which sought to provide a reconstruction of the accident. He had been instructed to advise those acting for the first defender in relation to the criminal proceedings. On 20 January 2003 he examined the first defender's vehicle and took photographs of it. By that time, however, the minibus had been destroyed. Mr Marshall was able to examine photographs of the damaged minibus. In addition, he considered the content of various documents including statements and precognitions taken from witnesses. He inspected the locus and recorded a video of both approaches to the collision site. He took measurements at the site. In his report at para 9.4 Mr Marshall states:

"The only mark at the locus indicating that some form of emergency reaction took place was the locked wheel tyre mark which Mr MacKay attributed to having been made by the front offside wheel of the minibus. If correctly attributed, that tyre mark indicated that the minibus driver applied emergency braking only a very short time before impact occurred."

At paras 9.14 - 9.16 the witness states

"In this case, as can be seen from the police photographs, the line of sight for the minibus driver would have been several hundred metres. That he would appear to have reacted so close to the impact point indicates that he either had very little warning indeed of the danger of the Land Rover or that he was not paying attention or that he froze at the wheel. That there were no marks left by the Land Rover as not indicative of its driver taking no action - it is simply indicative of there having been no emergency braking sufficient to lock the wheels and create tyre marks as previously described. Again, as can be seen from the police photographs, the line of sight for the Land Rover driver would have been several hundred metres."

These findings and views are consistent with those of Dr Ninham's. At para 10.1 Mr Marshall explains:

"Having considered the topography of the locus in detail on the position and extent of the damage sustained by the vehicles involved, I used our computer reconstruction software, PC - Crash, to examine and reconstruct the impact and vehicle movement on top of the scale plan prepared by the police accident investigator."

He continues at para 10.2:

"Taking account of all the information available to me in this case and using the available technology, wholly objectively but to its full extent, a computer analysis confirmed that the front aspect of the southbound Land Rover collided with the front aspect of the northbound Ford Transit in the northbound lane of the A9 at the specified locus."

In para 10.3:

"On impact, the fronts of both vehicles were forced downwards towards the road surface."

Mr Marshall at paras 10.9 - 10.10 of his report is to the following effect:

"From the police accident investigator's sketch, it was calculated that the locked wheel tyre mark ran from south to north and towards the centre line of the road at an angle of approximately 71/2 degrees to the centre line. Consequently, it would appear that, immediately before impact into the Land Rover, the minibus was deviating gradually towards the centre of the road. However when examining the impact between the vehicles on PC - Crash, it was apparent that the reasonable deviation of the minibus alone was not, in itself, sufficient to create the angle that occurred between the vehicles at impact. When examining the movement of the vehicles from impact through maximum engagement to separation and rest, the results from the computer indicated that the Land Rover was turning through a gradual left-handed arc when it struck the minibus."

In paragraph 10.11 Mr Marshall states "principally because of not having been able to examine and measure the actual extent of the damage sustained by the Ford Transit minibus and obtain the necessary crush and intrusion data, and having had to make an objective assessment of the weight of the vehicle occupants, it has not been possible to reconstruct the impact between the vehicles in this case and obtain the data which flows from that to a level of accuracy with which I am professionally satisfied." Nevertheless he was able to say, at paras 10.12-10.13 the following:

"However, from the extensive work carried out on PC-Crash, it was and is possible for me to say that, prior to the collision, both vehicles were likely to have been travelling at about the same speed and that their speeds were highly unlikely to have been above 55 mph. Had the vehicles' speeds been significantly different and had they been above 55 mph, the post impact movement and rest positions would have been quite different. From the marks left on the road surface, it appeared likely that the Ford Transit minibus experienced greater braking and, therefore, a greater reduction in its speed, prior to the impact with the Land Rover".

[41] After having produced a preliminary report of the accident Mr Jamieson had been provided with, inter alia, the transcript of the evidence given at the criminal trial. In the conclusion sections of his final report prepared for the proof in this case the witness concludes as follows (at para 13.3):

"As previously stated, the weight of evidence indicates that this road accident occurred because Mr Cunningham's vehicle crossed the carriageway and into the path of the oncoming vehicle driven by Mr Wilkinson."

The witness then continues at para 13.2 to state:

"Why it did so remains critical to this case but the reason for its movement cannot be explained by any of the physical evidence obtained from the locus and the vehicles. Neither can its movement be explained with any certainty by the witness evidence"

[42] Mr Marshall confirmed that immediately prior to the actual impact the Land Rover had been making its way back to its own lane i.e. the South bound lane.

[43] Mr Marshall then, however, in his report, seeks to set out certain reasons as to why one can discount the cause as being driver fatigue on the part of the first defender. His view was that, in such cases, deviation is normally slow and gradual and a slow and gradual deviation did not match the minibus driver's apparent last minute reaction. Moreover, given the nature of the Land Rover it was not capable of sudden deviation without the driver applying a considerable amount of steering and "if sudden, harsh and excessive steering to the right had been applied to it, it would most probably have rolled anti-clockwise over its longitudal axis as it turned, if it had been travelling any faster than about 40 miles per hour" Mr Marshall was also of the view that none of the descriptions as to how the first defender had been driving his vehicle indicated a fatigued driver. He accepted, however, that the apparent lack of reaction from the minibus driver in the last minutes was unexplained. On this matter, he, nevertheless, opined that the lack of reaction was "indicative of the recognition of sudden hazard rather than reaction to a problem developing gradually but it could also be that Mr Wilkinson was either not paying attention or that he froze at the wheel". Ultimately, Mr Marshall states in his report "Again there is no firm evidence to explain his actions or lack of them" At paras 13.7 and 13.8 the witness states:

"The transcript of the criminal trial at Perth Sheriff Court records the evidence given in Court by Mr Glen and, as a result of that, I remain firmly of the opinion that Mr Glen's actions set this whole incident in motion and that he is liable for what occurred.

Mr Cunningham was acquitted of causing death by driving dangerously by the Jury at Perth Sheriff Court and, whilst there is no doubt of the presence of his vehicle on the northbound lane of the carriageway resulted in his collision with the Ford Transit minibus driven by Mr Wilkinson and the subsequent deaths, in my opinion there is considerable evidence to believe that Mr Cunningham's action was a reaction to the actions of Allan Cameron Glen"

[44] That fairly stout opinion, is, in my view, somewhat surprising, given the remaining contents of Mr Marshall's report. It became absolutely clear from the evidence, given at the trial by this witness, that his conclusion was largely driven by his disapproval of the second defender having failed to stop after the accident and return to its scene and to seek to report the matter at that stage. It was clear, to my mind, that this witness had difficulty in doffing his police officer garb in addressing this matter and had allowed his role as an expert witness to be undermined by this fact.

[45] In cross-examination he frankly accepted that Dr Ninham was justified in saying that, on the evidence available, both scenarios, were equally plausible but that "using my legal and professional experience, this man didn't stop, that raises a suspicion that there is a prima facie case against him and I say that he has not discharged the onus upon him" In that response the witness, in my view, had clearly, and illegitimately, crossed the boundary between acting as an expert in relation to the matters he was instructed for, on the one hand, and acting as an advocate on the other.

[46] Mr Marshall pointed out that the report of the expert witness, instructed on behalf of the second defender, Mr Peter Sorton, had incorrectly stated the weight of the Land Rover and that, he said, had undermined that witness's conclusions with regard to the speed of the vehicles at the time of the collision. The witness said that, on the information before him, he had envisaged a sudden and intentional deviation by the first defender. He accepted that he had given as his opinion that it was possible that the second defender had been attempting to overtake both minibuses. As has been seen the first defender had to disclaim such a case. Mr Marshall gave his opinion that the last thing which an experienced driver of the Land Rover would have done was to brake, unless travelling in straight line, because of the danger of toppling his vehicle over. He was, therefore, not surprised at the lack of evidence of braking by the first defender. While the driver of the Land Rover should have been aware of a grass verge to his left, as a means of escape from the path of an overtaking vehicle, there was still a risk of his toppling over the vehicle if he did so, so it was more likely that his reaction would be to drive away from the second defender's vehicle. He accepted that it would have been feasible that the second defender had become wrong sighted with regard to where the Land Rover had first moved over onto the northbound lane. The witness concluded, somewhat remarkably and gratuitously, by advising the court that he brought a certain amount of legal understanding to this matter. He said that he had experience of investigating a large number of serious crimes. "There was fishy smell about Mr Glen and he hasn't exculpated himself" was his comment. The witness thereby, in my view, compounded his blatant failure to observe his proper role in the proceedings.

[47] The only witness led, on behalf of the second defender, was Mr Peter Sorton. Mr Sorton has been acting as a consultant regarding reconstructions of traffic accidents since 1983 and has frequently appeared as an expert witness in court proceedings. He prepared a report which was lodged, as 7/4 of process. He had had regard to witness statements given to him and the physical evidence recovered at the locus of the accident and he had regard also to the expert reports lodged on behalf of the first defender. He himself had inspected the locus along with a colleague on 1 March 2007 and he took detailed measurements and prepared a scaled plan 7/6 of process and also took photographs 7/5 of process.

[48] In his report Mr Sorton sets out at pages 11 and 14, on the one hand, the field of view of a driver travelling along the A9 from Perth towards Inverness and the locus and, on the other hand, the field of view of a driver travelling along the A9 from Inverness south towards Perth and the locus. As previously noted, just before the point of impact, there is an eastwards bend in the road. At paragraph 53 of his report Mr Sorton states:

"On the distant approach to the accident scene from either direction it is possible to obtain a view essentially across the bend, of opposing vehicles. Those vehicles then go out of site (sic) before coming back into view at a later stage"

At paragraphs 98-101 of his report Mr Sorton opines:

"When two vehicles collide head on travelling on parallel but opposing courses and with an offset to the offside of the vehicles, they commonly rotate in a clockwise direction (assuming speeds and masses to be similar). Conversely when two cars collide front nearside to front near side, they will rotate in an anti-clockwise direction.

In the case under investigation, the Land Rover rotated in an anti-clockwise direction. If as is indicated by the Police vehicle examiner's evidence the damage was more severe to the front offside of the Land Rover, then the only explanation for the anti-clockwise rotation would be that the Land Rover was moving towards the nearside of the carriageway at the moment of impact and that as the vehicle was pushed backwards over a short distance, this generated the anti-clockwise rotation.

The mini-bus also rotated in an anti-clockwise direction although to a smaller extent. That in turn suggests that the force applied to the mini-bus was predominately to the front nearside as against the front offside of that vehicle. This is supported by the nature of the damage sustained by the mini-bus."

Having been referred to the first defender's case made on record, Mr Sorton, in his report, at paras 122-123 states:

"I accept that in the agony of the moment drivers facing in an emergency can behave in variety of ways. Sometimes the reaction appears illogical. It is however very difficult to understand why a driver such as Mr Cunningham faced with an overtaking vehicle and in a similar position shown by the photographer in our photograph 14, would elect to steer towards an oncoming mini-bus, a narrow verge on the offside and a rock wall when there was a wide open verge on the nearside of the road.

If the Land Rover was centrally positioned in the south-bound lane on the approach to the point of impact then the time required to swerve towards the nearside of the carriageway would have been substantially shorter than the time taken by the Land Rover to move completely to the wrong side of the road."

[49] At paragraph 141 of his report Mr Sorton observes that since there was no physical evidence to pinpoint the second defender's Honda vehicle at any time in relation to the accident, he was entirely reliant upon the second defender's account of being alongside the minibus when the Land Rover and the minibus collided. At paras 155-159 of his report the witness states:

"It may seem remarkable that Mr Glen elected to overtake the mini-bus when faced with the Land Rover on the wrong side of the road.

It may be suggested that the more obvious alternative would be to brake and pull towards the nearside of the carriageway.

Much depends upon the separation distance of the leading mini-bus and Mr Glen's Honda, at a time when Mr Glen perceived the need to take action.

Mr Glen has also said that he had already positioned his vehicle out towards the crown of the road, in anticipation of overtaking the mini-bus when it was clear to do so. He has also said that he closed the gap between the two vehicles to between 10 and 15 yards.

There can be no question that if the separation distance was so short at the moment of impact, then Mr Glen's vehicle would have collided with the mini-bus before he had had the opportunity to apply the brakes"

Later at paras 165-168 Mr Sorton states:

"It is suggested that the Land Rover may have been positioned very close to the western kerb shortly before impact occurred. This would have had to have been the case, given the (sic) that the Land Rover was moving at a shallow angle back towards the crown of the road at the moment of impact.

In my opinion, this evidence is at odds with Mr Cunningham having simply swerved to his right at the last moment in an effort to avoid an overtaking vehicle.

Whilst I accept that drivers behave in a different way in the agony of the moment, it is difficult to understand why Mr Cunningham should have elected to swerve to the offside of the road and directly into the path of the mini-bus when he had available to him a very wide verge at the nearside of the carriageway.

Taking into account the width of the A9 it would probably have been unnecessary for Mr Cunningham to have steered completely clear of the carriageway in order to avoid the opposing Honda"

Mr Sorton's conclusions in his report are as follows, at paras 180-182:

"Looking at both the physical and the witness evidence in the absence of Mr Glen's evidence, an investigator would never conclude that a third vehicle played any part in causation.

In conclusion, there are some obvious difficulties with the evidence in this case, in terms of resolving the issue as to the primary cause of the accident.

In my opinion the physical evidence points towards the Land Rover being established on the wrong side of the road for a greater period of time than would have been the case had Mr Cunningham simply swerved to his right at the last moment to avoid an impact. This, together with the illogical action taken by Mr Cunningham in swerving directly into the path of the mini-bus as against towards the wide grass verge at the nearside, suggests that he did not take action in response to the overtaking Honda"

[50] The witness adopted the terms of his report, in his evidence in court, subject to certain modifications which did not ultimately alter his conclusions. Having considered the evidence of the other experts, Mr Sorton said that there appeared to be a shared assumption between them and himself that the limit of mutual visibility of the first and second defenders was 400 metres and that they had been travelling at about 50 metres per second. Maximum time for the sequence of events to have unfolded would have been 8 seconds. When the witness had prepared his report he had not known what Mrs Glen's evidence was to be. Having heard it, it was his view that it was entirely at odds with the first defender's case, that he had swerved to avoid the second defender's vehicle, which was on its wrong side of the road. Mr Sorton accepted that Mr Marshall was correct in pointing out that he, Mr Sorton, had got the weight of the particular Land Rover wrong. He accepted also that its maximum speed would be 60-65 miles per hour. However if the vehicle was lighter than he had thought then that simply reinforced his conclusions. As regards the respective speeds of the Land Rover and the minibus, if, as seemed to have been the position, both vehicles had come to rest together, the speed of the Land Rover must have been 60% more than the minibus. He considered that as it seemed that the minibus had continued to move for a short distance after impact, as evidenced by the gouge marks, 60% perhaps fell to be reduced a little. His evidence now was that the minibus's speed must have been reduced below 47 miles per hour at impact. The witness considered that the Land Rover was being driven between 55 and 64 mph and probably toward the lower end of that range. He ultimately, reached the view that the Land Rover had been driven close to 60 miles per hour, at the point of impact, because of the damage sustained by the minibus and where the vehicles had come to rest. Such a speed would indicate no braking by the first defender, which was confirmed by the absence of skid marks from his vehicle. Had the Land Rover braked for more than one second it was probable that there would have been a visible skid mark. If the Land Rover was being driven near enough its maximum speed that would seem to be at odds with the driver taking any avoiding action.

[51] The witness said that he would have expected a person swerving, to reduce speed to mitigate any impact. Accordingly, as it seemed to be the position that there was no material reduction in the Land Rover's speed, the movement of the Land Rover can not be seen as an emerging response to something. Had it been so there would have been braking and potential for a very considerable loss of speed. Mr Sorton confirmed that it was absolutely impossible, standing Mr Kidd's evidence, that the second defender had been seeking to overtake the two minibuses.

[52] Had the Land Rover swerved to the wrong side to avoid Mr Glen's overtaking manoeuvre and had remained crossing the road diagonally, the first point of contact with the minibus would have been with the front nearside of the Land Rover. That would, the witness said, have caused damage across the minibuses front offside to front nearside and more severe damage to the Land Rover at the front nearside and it was known from Mr McKay's evidence and Mr Marshall's evidence that more severe damage had occurred on the offside of the Land Rover. The Land Rover could not have been moving left to right and must have been moving right to left, when the vehicles came together. In other words it was moving back towards its correct side of the road. Having regard to the rest position of the Land Rover it had clearly rotated in the opposite direction from what one would have expected if it had swerved from left to right. These conclusions were arrived at having regard to the reports of the damage to the vehicles, Mr McKay's report and the photographs of the position of the vehicles and the angles at which they came to rest. Mr Sorton also noted that Mr Marshall had agreed that the evidence pointed to the Land Rover having a final movement which involved a shallow arc to the left.

[53] Mr Sorton agreed with Dr Ninham that on the basis of the reaction times both explanations of the accident were plausible. But he found the explanation put forward on behalf of the first defender less satisfactory because, if someone was swerving out of the path of a vehicle it was entirely illogical to swerve back towards that vehicle, as the Land Rover appeared to have done in this case. Such a movement was, however, consistent with the Land Rover having drifted to the west and a sudden awareness then by the first defender of his having strayed onto the wrong side of the road and an attempt then to put matters right. A failure to steer properly round a bend when it was preceded by a straight section of road is a common cause of accidents. If the first defender had simply failed to turn the steering wheel to the left to take the bend, his vehicle would have moved in a straight line straight into the path of the oncoming minibus. What was perceived as a "drift" might simply have been a failure to steer the vehicle on the bend. Such a "drift" would have begun no more than about 100 metres before the impact. The bend, itself, was little more than 80 metres before the point of collision. On this scenario, the second defender would not have seen the initial manoeuvre from the centre line to the other lane. Neither would the minibus driver. The second defender would have had a clear view of both carriageways ahead until he was pretty well square behind the minibus by which time he would have lost his view of the northbound carriageway. By that stage the first defender's vehicle would have been in "the dead space" in front of the minibus. This had been consistent with Mrs Glen's evidence.

[54] Had the accident been caused by the second defender seeking to overtake the minibus, at a point when it was unsafe to do so, then having regard to the position of the first defender's vehicle, the witness said, he would have expected the first defender to have driven his vehicle to the near side. The road was a wide one and the first defender would not even have had to drive right onto the verge to avoid colliding with the second defender. He could have halved his speed, in the time available. In the scenario of the second defender's version i.e. "drifting" of the Land Rover because of a failure to steer the vehicle on the bend, the driver of the minibus would have had about three and a half seconds to react. The suggestion to be taken from some of the evidence of the second defender, given at the trial, and again at the proof, that the "drifting" of the Land Rover may have been visible for 8 seconds could not be reconciled with the driver of the minibus reacting as late as he clearly did. Again if the second defender's evidence to that effect was correct, Mr Sorton found it inexplicable as to why the second defender did not, in that situation, slow down and distance himself from the minibus, or, perhaps, even stop his vehicle altogether. The position would be different, however, if the second defender had only seen the Land Rover on the wrong side of the road some 3 seconds before the accident. The possibility that the second defender only saw the first defender on the wrong side of the road some 3 seconds before the collision was given support from Mrs Glen's evidence, that is, that she was wakened up by the exclamation "Jesus Christ" followed by a swerve. Moreover, it was consistent with the position being that the first defender had failed to steer his vehicle round the bend.

[55] Mr Sorton said that he had no confidence at all in the second defender's evidence that he had been conscious of the first defender's vehicle drifting across to the wrong side of the road for the time and for the distances he spoke of. If this evidence was correct there was other avoiding action the second defender could have, and should have, taken. On the other hand, if he became aware of the Land Rover on the wrong side of the road some 3 seconds before the accident and when his own vehicle was, say, some 15 yards behind the minibus, then, the only thing he could do was to swerve to the right, otherwise he would have collided with the minibus.

[56] In cross-examination the witness said that if the first defender had been faced with the second defender's vehicle coming straight at him on the southbound lane, he must have decided to collide with the minibus when the immediate danger was the second defender's vehicle. In that scenario it seemed illogical for him to have tried to get back over to the left. There was no way in which, as the second defender in evidence had said, the Land Rover, having been in his view, had then been lost from his view in the time he had claimed in his evidence. If that evidence had been correct then it would have been hazardous for him to move out not knowing where the Land Rover was. Mr Sorton said that, in his experience, it was not uncommon for drivers who had been involved in or had been close to an accident not to stop because of the trauma of the event. It was, however, unusual, in his experience, for someone in that situation to stop and then simply to drive on. The witness said that, even if the evidence of the second defender that he had had three sightings of the Land Rover before his view of it became obscured was disregarded, that would not effect his conclusions as to the probable cause of the accident.

[57] In re-examination Mr Sorton said that he would have expected the first defender normally to use the same foot for both accelerating or braking. At the moment of impact he was apparently travelling at virtually his maximum speed with his foot hard on the accelerator. It was improbable that his other foot was on the brake. So he was travelling into the minibus at maximum speed. The natural response would have been to brake. It was an improbable reaction to put his foot on the accelerator to avoid an oncoming overtaking vehicle. It was more probable that the first defender had either fallen asleep, or otherwise had been inattentive, and then realised where he was just shortly before the impact.

[58] I found the evidence of this witness to be given with considerable care and to be obviously based on his experience and expertise in relation to accident reconstruction. In so far as it differs from the evidence from Mr Marshall I have no hesitation in preferring it.

Submissions

[59] Senior counsel for the first defender invited me to hold that, on the balance of probabilities, the accident had been caused by the fault and negligence of the second defender. Both he and senior counsel for the second defender were, ultimately, agreed that whatever my findings might be, I should have the case put out By Order for discussion as to the appropriate interlocutor to be pronounced.

[60] Senior counsel for the first defender invited me to hold that all witnesses were credible and reliable apart from the second defender and his wife. The evidence given as to the fitness of the first defender prior to the accident, the nature of the work that he was doing before the accident and the condition of his vehicle made the likelihood of his having become sleepy or inattentive, unlikely, though it was accepted that that was a possibility. In reviewing the evidence senior counsel referred to the evidence of Mrs McCusker, in particular her evidence that a shout went up from passengers in the minibus before the minibus driver braked. This evidence was important, it was said, because it meant that the other passengers must have been looking straight ahead and did not react until shortly before the impact. That was supportive of the position, advanced on behalf of the first defender, that he only pulled over when faced with the emergency of the second defender overtaking. Senior counsel invited me to hold that the evidence of the second defender, given at the proof, was unreliable and as I understood him, that so, too, in part, was the evidence of the second defender given at the criminal trial. Senior counsel reminded the court of what the second defender is recorded as having said in evidence at the trial viz, that having placed his vehicle behind the front minibus, he came out to look ahead three times and was aware of two vehicles travelling southwards. Initially he had formed the opinion that he should wait behind the minibus until both southbound vehicles had passed him. For some reason he was unaware of where the first defender's vehicle was, perhaps, because of the layout of the road and had, in that state of ignorance, chosen to overtake the minibus in a situation where it was dangerous to do so. There was really no hint in his evidence, that on coming from behind the minibus, he faced a danger which he needed to react to. It was clear from the photographs of the locus and other evidence that a driver behind the minibus, at a time when the Land Rover was behind the Shogun vehicle, could not have had a view that the Land Rover had crossed onto the northbound lane. Senior counsel invited me to reject the second defender's evidence of having seen the first defender's vehicle in a "drifting" motion for some considerable distance.

[61] I was reminded that Mrs Glen had not given evidence at the criminal trial. She was now being asked to recollect events that had occurred more than six years ago. She had declined to give a statement to those representing the first defender. Her evidence should be rejected because it was inconsistent with the second defender's own evidence, and on any fair reading, with what he had said in his statement in April 2003 and in his evidence at the trial. He had always maintained that his wife only awoke as the crash occurred at the sound of him swearing and glass showering onto their vehicle.

[62] While Dr Ninham had said that, on the evidence which he was asked to consider, both explanations for the accident were plausible, his evidence was at least supportive of the possibility of the accident having occurred in the way advanced on behalf of the first defender. Senior counsel accepted that Mr Marshall's approach to matters had been very much driven from the standpoint of an experienced police man. Nevertheless his opinion, as to the likely cause of the accident, was supported by the second defender's own evidence which really amounted to describing a driver who elected to overtake, just before a bend, when not aware of the presence of a vehicle that he had previously seen coming in his direction. As far as the evidence of Mr Sorton was concerned, senior counsel accepted what he described as his "unquestionable ability" in relation to such matters. Some critical remarks were, however, made about the witness's failure to supply an appendix to his report setting out precisely the material he had relied upon. I was satisfied that such criticism did not detract from the care and expertise which the witness had applied to his consideration of the material which was available or put to him. Mr Sorton did accept that if Mr Glen's evidence, given at the trial, was correct he had acted in a dangerous fashion.

[63] In concluding his submissions senior counsel contended that for the second defender to succeed in these proceedings would require the court to reach the view that three drivers had been driving without due care and attention. First the first defender, secondly, the driver of the minibus who should have reacted differently and thirdly, the second defender himself. While it was a great puzzle that the evidence of the driver of the rear minibus, Mr Convery, at the trial, had been that he never saw the second defender's vehicle at all, the import of his evidence was that he saw the brake lights of the front minibus coming on for only a short time before the collision which was inconsistent with the minibus driver having been in a position to see the first defender drifting on the wrong side of the road as the second defender's evidence would have it.

[64] In reply senior counsel for the second defender commenced by pointing out that what was undisputed was that the immediate cause of the collision was the presence of the first defender's vehicle, on the wrong side of the road, in the path of the minibus. Accordingly there was a prima facie case for the first defender to answer. The evidence, senior counsel submitted, had established that the accident was, indeed, caused by the sole fault of the first defender. In any event, it had not been proved, on that balance of probabilities, that the accident had been caused to any extent by the second defender. Even if there had been some dangerous driving on the part of the second defender, that was in the agony of the moment and there was no evidence that that, in itself, caused any collision.

[65] The evidence of the experts was that the first defender's vehicle was travelling at, or near, its maximum speed and it did not appear to have braked or taken any other avoiding action. The likely explanation for the first defender's vehicle coming into collision with the minibus on the wrong side of the road was inattention for some reason on the part of the first defender. None of the eye witnesses attributed the accident to any acts or omissions on the part of the second defender. Mr Convery, indeed, had no recollection of even seeing the second defender's vehicle, which was allegedly responsible for the accident, by undertaking a dangerous manoeuvre before his eyes. Even if the court found the second defender's evidence unreliable in respect of what he did and saw before the impact it did not prove the opposite. Senior counsel reminded the court that the only accident reconstruction evidence which attributed responsibility to the second defender came from Mr Marshall. His report, however, 25/7 of process, proceeded from what facts of the incident are known to a conclusion, without any intervening analysis or reasoning. He had proceeded from A-C on the basis of a presumption against the second defender. His contribution had been an inappropriate one for a skilled witness to adopt and was of no assistance to the court. Moreover his position was seriously undermined by the fact that at para 13.10 of his report he posited as a possible cause of the accident a double overtaking manoeuvre by the second defender. Both Dr Ninham and Mr Sorton had demonstrated that that had been an impossibility. Mr Marshall's conclusions also did not take any account of Mrs Glen's evidence.

[66] Dr Ninham, the first defender's second expert, at best for the first defender, accepted that it was a possibility that the accident was caused by the second defender but, ultimately, his position was that both the competing versions of how the accident occurred were equally plausible, as far as the evidence available to him went. If both versions were equally plausible then the case against the second defender had not been proved on the balance of probabilities. Dr Ninham's conclusions had to be qualified, in any event, because he had accepted in cross-examination that in reaching his views he had not taken any account of the evidence from the damage to the vehicles which pointed to the Land Rover having made a final movement to the left. Moreover, his conclusion took no account of Mrs Glen's evidence. Both of those pieces of evidence pointed towards the first defender having been responsible for the crash. Both Mr Marshall and Mr Sorton were in agreement about the final position of the vehicles. Mr Sorton's firm evidence was that having regard to those positions it was more plausible that the accident had been caused by the first defender than by the second defender and this, in the event, had not been seriously challenged. The strength of his report was that it did take account of all the material factors that were known, including the final direction from which the first defender's vehicle had been travelling. Mr Sorton's evidence had demonstrated his expertise which had been applied in a logical fashion.

[67] The main points which Mr Sorton had relied on in reaching his conclusion, were first that, at the moment of impact, the Land Rover was travelling at its maximum speed and there was no apparent braking, secondly, the path the Land Rover was travelling in i.e. right to left rather than left to right, did not support the proposition that he was taking action to avoid the second defender's overtaking vehicle, thirdly, the time interval over which the incident occurred was insufficient for the first defender to have perceived the danger, reacted to it, turned right and then turned left, fourthly, on the other hand, the path travelled by the Land Rover by way of a straight line deviation on the bend from a point about 100 metres north of the accident locus was consistent with the speed of the vehicle, timings and with a final realisation of danger at the very last fraction of a second resulting in the Land Rover's move to the left. The reconstruction of the accident preferred by Mr Sorton and having involved inattention on the part of the first defender was, to some extent, supported by the evidence of the witnesses Kidd and Purdie, who had spoken to the variable speed of the Land Rover. Moreover the first defender was a young man who worked irregular shifts and had risen very early that morning.

[68] Senior counsel went on to submit that the reconstruction evidence and the conclusions of Mr Sorton were supported by reliable witness evidence. It was accepted, however, that the evidence given at the proof by the second defender could only be accepted with considerable qualifications. He was, however, attempting to tell the truth. There were also details of the evidence which the second defender gave, at the trial, which could not be relied upon and reference in that respect was made particularly to the evidence recorded at pages 149-151 of the transcript. Having said all of this, however, there were features of the second defender's evidence which remained consistent, namely, that he saw the first defender's vehicle "drifting" from the correct side of the road and that he himself had to take avoiding action in an emergency situation. Reference was made to page 173 of the transcript and the statement which the second defender had given in April 2003.

[69] Senior counsel for the second defender invited the court to hold Mrs Glen's evidence to be both reliable and credible. She was clearly an honest witness and was adamant that the second defender had made a sudden swerve to the right, heading towards the rocks on that side of the road. It was a wholly compelling piece of testimony and it had been vividly recalled by the witness. Both Dr Ninham and Mr Sorton were in agreement that her evidence, if accepted, was wholly consistent with the second defender having taken action to avoid an emergency initiated by the first defender. Senior counsel for the second defender urged me not to accept what had been said by senior counsel for the first defender to the effect that Mr Sorton's evidence pointed to the reaction of the minibus driver as not being consistent with the second defender's version of events. What Mr Sorton had said was that the reaction time of the minibus driver was within the normal range of what one would expect of a careful driver who was not fixated on the possibility of some developing emergency.

 

Decision

[70] This catastrophic accident, which had such devastating results, must have traumatised all those immediately involved in it. The first defender has made a remarkable recovery from extremely serious injuries, no doubt, in part, due to his own personality and courage and by reason of having a very supportive family. He and they are to be admired for that. He has, however, as has been seen, been left with no recollection of events leading up to the collision. The driver of the minibus died in the accident. The second defender's evidence, given at the proof, was affected by his Alzheimer's disease. None of the evidence from those who survived the accident, and in the other of the minibuses, in my view, assist the court to any great extent, on its own, in providing an explanation as to how and why the accident occurred. Mrs Glen's evidence, however, if accepted is wholly consistent with the version of events put, ultimately, on behalf of the second defender, if not in detail, then certainly in its essential elements, namely that the second defender was at the moment of the collision taking avoiding action to get out of the way of an emergency caused by the first defender's vehicle. It was not suggested on behalf of the first defender that she was lying. It was sought to suggest her evidence was, however, unreliable on the basis that it did not coincide with the second defender's own evidence as to their respective reactions at the point of collision. Comment was made about her refusal to provide a statement to those acting for the first defender. I have considered these points anxiously but, having heard, and seen, the witness give her evidence I am unable to reach the conclusion that her evidence is to be disregarded as either being unreliable or incredible. The fact that it did not coincide with her husband's might be said to point to its reliability and not to undermine it, in a situation where they had obviously discussed the tragic events together many times over the years. I do not consider that her failure to give a statement to the first defender's agents, of itself, did anything to undermine the clear impression I formed that she was telling the truth, as she saw it and the manner in which she gave the evidence, and the way she stuck to it, persuaded me that it could be considered to be reliable. There is, on the other hand, great difficulty with the second defender's evidence, both given at the trial and at the proof. His own expert witness Mr Sorton ruled out, as unreliable, the evidence of the second defender that he had seen the Land Rover "drifting" for some distance before the crash and had done so by moving out from behind the front minibus and moving back in on three occasions. Nevertheless I do not accept that the second defender is to be regarded as an incredible, as opposed to an unreliable witness in certain respects, and there were, as his counsel pointed out, some aspects of his evidence which have remained consistent throughout, namely his reference to a drifting movement on the part of the first defender's vehicle and that he himself was involved in having to take avoiding action because of an emergency caused by the first defender's vehicle. Some support, at least, for the first defender's vehicle being driven erratically before the accident comes from the witnesses, Kidd and Purdie. Although I did not understand the position of senior counsel for the first defender ultimately to be that he was saying that the second defender was incredible, nevertheless, a good deal was made of the fact that the second defender did not return to the locus of the crash, after having stopped some distance ahead and the fact that he did not immediately report what he had witnessed but instead drove on to his destination and did not make a report to the police until the following day. The second defender now accepted that he should have gone back and, indeed, that was what his wife had urged him to do. But he gave an explanation for not doing so, which I accepted, namely, that he was so shocked by his own "near miss" that he felt that he could not do so on the moment. While that was not, perhaps, a very commendable attitude, it does not turn him per se, in my judgement, into an incredible witness. Persons do react differently in such situations. In all the circumstances I do not consider that the second defender was involved in concocting a story in this case.

[71] In the state of the evidence of the eye witnesses which I have just referred, it was not surprising that both sides, ultimately, were driven to focus on the expert evidence, given at the proof, under reference to the real evidence found at the locus and of the state of the vehicles themselves when examined and photographed after the event. I have set out in some detail that evidence and do not intend, at this stage, to go over that ground, again, in any detail. The evidence of the first defender's first expert, Dr Ninham, does not support the proposition that, on the balance of probabilities, the accident was more likely to have been caused by the second defender rather than the first defender. Both explanations for the accident were equally plausible to him, on the evidence made available to him. I have already discounted, largely, the evidence of Mr Marshall for the reasons already referred to. He failed, in my view, to perform his proper function in this case, which was simply to give objective expert evidence on accident reconstruction, based on the real evidence and eye witness statements, made available to him. Instead he reached a conclusion, as a former policeman, that the second defender was in some way "guilty" because he had failed to stop and return to the scene of the accident and to report it immediately. That leaves the evidence of Mr Sorton. His evidence I found to be persuasive. He clearly understood and performed, properly, his role as an expert witness. He did so carefully and logically. His ultimate conclusions required him having to regard a significant part of the second defender's own evidence as unreliable. But he provided comprehensible reasons why the real evidence, some of the evidence of the eye witnesses, and Mrs Glen's evidence supported his preferred reconstruction of how the accident happened. His evidence was not, in my view, in any material way, displaced by the evidence led on behalf of the first defender. I remind myself that the first defender, at the beginning of the proof, disclaimed any alternative case based on joint fault and, indeed, amended his pleadings to make that clear by removing a plea-in-law to that effect. Accordingly, in the whole circumstances, on the material led at the proof, I arrive at the conclusion that the first defender has failed to discharge the onus, which he assumed, namely of proving, on the balance of probabilities, that the accident, however it occurred, was caused by the sole fault of the second defender.

[72] I shall, in the circumstances, accede to the suggestion of both defenders and have the case put out By Order for discussion as to what interlocutor should be pronounced in the light of my decision.

 

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_32.html