Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 93
PD2241/08	OPINION OF C J MACAULAY, Q.C., Sitting as a Temporary Judge in the cause RACHEL DAVIS Pursuer; against (FIRST) JOHN CATTO AND (SECOND) CIS GENERAL INSURANCE LIMITED Defenders; and STEPHEN SKINNER Third Party: ­­­­­­­­­­­­­­­­­________________

Second Defenders: Shand, Q.C., Milligan, Q.C.; Anderson Strathern, Solicitors

Third Party: Hanretty, Q.C., Springham; bto

14 July 2010

Introduction

[1] Shortly before 9pm on 18 March 2006 a black Honda Civic motor car registration number M942 DSJ driven by the first defender was involved in an accident in which the pursuer sustained serious injuries. At about that time the first defender was driving at speed on the A832 Avoch to Munlochy Road, and at a point on the road called Roskill lost control causing the Honda Civic to leave the road and overturn. The loss of control occurred at a time just after the first defender had overtaken a black Ford Focus car registration number E6 SAS driven by the third party. The pursuer was a front seat passenger in the first defender's car (the Honda Civic). Another passenger, Ian Chisholm, was in the rear of the car.

[2] I heard a proof in which the second defenders and the third party participated. The second defenders are the insurers of the first defender, the driver of the Honda Civic motor car. The defenders admitted liability to make reparation to the pursuer on 19 February 2009. The issue that arose in the proof was whether the defenders have a right of contribution from the third party on the basis that the third party is a joint wrongdoer under section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. It was not disputed that, in the circumstances of this case where liability has been admitted, to seek a finding on contribution was competent.

[3] I consider that such a finding of contribution could only be made in this case if the defenders prove either (a) that at the time of the accident the first defender and the third party were competing with each other or (b) even if no such competition can be proved, that the third party was otherwise in breach of a duty of care to the pursuer.

Background

[4] Darren Stewart was a passenger in the car driven by the third party, the Ford Focus. He gave evidence as did the third party. The pursuer did not give evidence, nor did the other passenger Ian Chisholm. Also, although the first defender did give evidence, he had little recollection of the events leading up to the accident and no recollection of the accident itself. Accordingly, apart from the third party and Darren Stewart there was no other eye witness of the actual accident, although there was evidence of the events leading up to the accident to which I shall return later in this Opinion.

Location

[5] The accident happened on the A832 Avoch to Munlochy road. The road itself, according to the subsequent police investigation, is some 5.5 metres wide, and is a two way undivided carriageway with hazard centre line markings. At the time of the accident the weather was dry. By the time of the accident it was dark. The speed limit that applied was 60mph for motor cars.

[6] At the point where the accident occurred, from the perspective of vehicles travelling from Avoch to Munlochy, the road bends to the left. As the photographs disclose, and as explained in evidence, the bend is a relatively gentle one, and one capable of being safely negotiated even at speed.

[7] The distance from the centre of the village of Avoch to the accident scene is about 3 miles. A number of points along that stretch of road were identified in evidence. The distance from Avoch to the entrance of Rosehaugh Mains was about 1.3 miles, and from the village centre to Smithy House, some 2.2 miles. The map used in evidence shows a P for parking sign, which was said to be about 250 metres short of the accident scene.

The accident reconstruction

[8] Before considering the eye witness evidence of the third party and Darren Stewart, there is some merit in first considering the accident and reconstruction evidence, which largely was not in dispute.

[9] The investigation carried out by the police into the accident was spoken to by Police Constable John Allen MacIntyre Hier. He had in excess of twelve years experience in accident investigation. His findings are contained in No 15/3 of process. His examination of the locus disclosed evidence of a 4.3 metre score mark and two locked tyre marks measuring respectively 9.3 metres and 1.6 metres. Following in line with these marks there were further gauges tracing a route up the grass verge beside a tree. The Honda Civic was found in a field on the north side of the road. It was lying on its roof. On the assumption that the Honda Civic had overtaken the Ford Focus immediately before the accident, and returned to the correct side of the road, PC Hier concluded that control of the car was then lost with the result that it crossed the carriageway, mounted the grass verge and travelled for some distance into the adjacent field.

[10] I shall consider later the role played by the third party's car in the accident, but two points are worth noting at this stage. Firstly, when subsequently examined the third party's car, the Ford Focus, was found to have been sprayed with grass and dirt. These findings showed that the Ford Focus must have been close to the Honda Civic when the accident happened. The second point is that there was no evidence of any contact having taken place between the two vehicles at the time of the accident. This second point, notwithstanding the implication from the defenders' pleadings that such contact might have taken place, was not disputed.

[11] PC Hier calculated the speed of the Honda Civic at the start of the marks on the road at "not less than 79mph". Peter Sorton, an investigation and reconstruction of road traffic accidents consultant suggested that immediately prior to skidding the Honda Civic was travelling at a speed a little over 80 miles per hour. I have no hesitation in accepting that evidence.

[12] The score mark found at the scene of the accident needed some explanation. According to Mr Sorton the score mark was caused by the rear nearside wheel trim. The Honda Civic was very badly damaged as a result of the accident. On examination three of the tyres were inflated but the rear nearside tyre was off the rim. There was grazing around the edge of this rim, with road grindings between the rim and the bead of the tyre.

[13] Graham Newland, an independent tyre consultant, prepared a report following upon his examination of the rear nearside wheel (No.15/2 of process). He explained that a tubeless tyre of the kind fitted on the Honda Civic requires a perfectly airtight seal between the internal faces of the rim at the bead seating area and the bead itself. Inflation of the tyre forces the bead to sit properly, and under normal conditions of operation, this seal remains intact.

[14] Mr Newland also explained that under certain conditions this seal can be compromised and the bead forced away from the flange. For this to happen to a properly inflated tyre, the force would have to be extreme.

[15] In the circumstances of the accident in this case, Mr Newland considered it to have been very unlikely, having regard to the type of tyre, that dislodgement would have occurred unless the tyre was already in an underinflated or even deflated condition at the time of dislodgement leading to rim contact with the roadway and the creation of the score mark.

[16] Mr Newland explained that on the hypothesis that the Honda Civic overtook the Ford Focus and returned to its correct side of the road, correction, and possible overcorrection at speed to straighten the vehicle, could result in a need for steering forces from the nearside tyres. Underinflation of the rear nearside tyre in such circumstances could result in oversteer. Oversteer would cause the vehicle to veer to the right (offside) and dislodgement of the outer bead of the rear nearside tyre.

[17] What I take from Mr Newland's evidence is that, with the forces generated by speed, oversteer, and the correction associated with that, would throw additional weight onto the rear nearside of the car at a time when the rear nearside tyre was underinflated or deflated. That was a perfectly reasonable mechanism for the failure of the nearside rear tyre, and accepting what was said by Mr Sorton, is wholly consistent with the wheel rim creating the score mark on the roadway.

[18] From the evidence of the third party and Darren Stewart which I discuss later, I accept that the first named defender must have turned sharply into the path of the third party's car at the time of the accident before he lost control of his car.

The direct eye witness evidence

[19] As I have already observed, the direct evidence of the accident comes from the third party (Steven Skinner) and his passenger, Darren Stewart. Neither witness was a particular impressive witness. They were defensive in the manner in which they gave their evidence, Darren Stewart more so than the third party. The third party had a clear motive to minimise his responsibility for what turned out to be a serious accident. Darren Stewart seemed intent on protecting a position that reduced the third party's responsibility for the accident. On the important question of speed their evidence was contradicted by credible and reliable evidence. I concluded that I could only rely upon their evidence if it was supported by independent evidence or if it was contrary to the interests of the third party.

[20] At the time of the accident, the third party (dob 25.4.88), aged 21 at the date of the proof, was a footballer with Ross County Football Club. He had obtained his full driving licence some six to seven months before the date of the accident. On the day of the accident he left his home near Forfar at about 8.20pm and travelled to Fortrose. Darren Stewart was the only passenger, a fellow footballer with Ross County Football Club. Their intention was to travel for Inverness. The third party became aware of the Honda Civic in Fortrose ahead of his car, the Ford Focus. He did not know who was driving the Honda Civic. He did know the first defender.

[21] According to the third party, having travelled through Avoch and about a 1/2 mile to a mile out of Avoch he overtook the Honda Civic on one occasion. He said that he had not overtaken the Honda Civic between Fortrose and Avoch. Under reference to the map, No 15/15 of process, the overtaking took place just after Rosehaugh Mains. He said his speed up to that point was 70-75mph. Having overtaken he said the Honda Civic seemed to be left behind but that two minutes later Darren Stewart said a car was coming. The third party said that at the P for parking sign was where Darren Stewart mentioned the approaching car. The third party said that the car came right up behind his car and that at that time he himself was travelling at 60-70mph. According to the third party, Darren Stewart saw the oncoming car in the rear-view mirror. The mirror on the nearside passenger's side was broken.

[22] I am prepared to accept the third party's evidence that he overtook the Honda Civic car shortly after leaving Avoch because that evidence can be inferred from other evidence. I also accept that he became aware of an oncoming car. What I do not accept is his estimate of speed as it is clear from other evidence that he was driving at a speed in excess of 70mph.

[23] The third party described the overtaking manoeuvre executed by the first defender at the time of the accident as one in which the first defender's car pulled sharply in front of him causing him to brake. The clear inference from his evidence is that he did not slow down during the overtaking manoeuvre itself. That inference is one that I take from his evidence, and it is an inference supported by Darren Stewart to whose evidence I propose to turn in the next paragraph. The third party's description as to what happened next is supported by the reconstruction of the accident I have set out in paragraphs [8] to [17]. According to the first defender the back of the left side third party's car "went down", the car then went "sharp right" and off the road. That description fits comfortably with the reconstruction evidence.

[24] Darren Stewart was aged 20 at the date of the proof. He sought to support the third party in relation to his speed leading up to the accident as being in the region of 60-70mph. I reject that evidence, again because it is contradicted by other evidence. Prior to the accident Darren Stewart said he was aware of the first defender's car approaching from behind. He attributed his knowledge to looking into the nearside side mirror. However, that could not be correct as the nearside side mirror was not operative at that time. I accept that he did become aware of the approaching car. He said it was going very fast when it started to overtake, and that is evidence that I accept. I also accept that he told the third party to slow down when the first defender's car was overtaking and that the third party braked when the first defender's car "started losing control". He supported the third party's position as to the first defender's car moving sharply back to the correct side of the road.

[25] It is clear that the third party's car was close to the first defender's car when control was lost as material thrown up in the accident was subsequently discovered on the Ford Focus, the third party's car. I am satisfied that immediately before the time of the accident the third party maintained a constant speed and only braked when he realised that the first defender was losing control of the Honda Civic.

[26] The third party and Darren Stewart realised that an accident had occurred. The third party stopped shortly afterwards in Munlochy. They then carried on to their intended destination, a nightclub in Inverness. At some point later the third party telephoned his father and it was decided that he would go and see the police the following day. That is what happened.

The other evidence

[27] David Cran (aged 52) was driving through Avoch on his way back to his home in Munlochy when at approximately 8.30pm he was overtaken by two cars which he described as a black Honda car followed by a green Ford Focus. He said he was overtaken at high speed, a speed he estimated to be 50-60mph. He thought some 3-4 seconds may have elapsed between each car overtaking him. This occurred at a point between Berneray and Track on the Ordinance Survey Landplan No 15/17 of process. The speed limit at this point was 30mph. He said that by the time he had reached a point to the far left of the Landplan, just beyond Station Road, the cars were out of sight.

[28] Mr Cran continued to drive along the Avoch to Munlochy Road. Unknown to him, the accident had already occurred by the time he passed the location of the accident. In that area he saw a stationary bus, facing eastwards, namely in the direction of Avoch. He did notice mud on the road. Mr Cran continued to drive into Avoch. Near the post office he saw a Ford Focus, now stationary. He said it was the same Ford Focus he had seen in Avoch. This fits in with the evidence of the third party and Darren Stewart that they did stop in Munlochy. He saw the driver speaking to someone standing outside the driver's door. He carried on home. Later he heard that there had been an accident and he gave a statement to the police. He said that when he was driving through Avoch it was dark, but that there were street lights at the point where he was overtaken.

[29] Mr Cran was a perfectly credible witness. He was clearly mistaken as to the colour of the Ford Focus car, but otherwise I considered his evidence to be perfectly reliable. It followed from his evidence that when he saw the two cars, the first defender's car (the Honda Civic) was in front of the Ford Focus driven by the third party.

[30] Some insight on what happened on the road between Avoch and Munlochy was provided by the evidence of Calum MacLennan (aged 53). He was a passenger in a car being driven by his wife and heading for Inverness. He said they were in the vicinity of the entrance to Rosehaugh Mains when they were overtaken by a white car travelling at speed followed by another white car. He told the police this occurred at about 8.47pm and that the first car was an "E" registration car. In evidence he said he had told the police the truth. He estimated the speed of that first car to be approximately 90mph, with the second car travelling at approximately the same speed. Mr MacLennan went on to say that he formed the impression that there was an overtaking manoeuvre at the point some way ahead of him around Smithy House because he had the impression of rear lights side by side on the roadway, before they went out of sight. He was unclear how far ahead of him this occurred and whether it was 1/2mile or 3/4 would be a "pure guess".

[31] As he continued along the Avoch to Munlochy road he also saw a stationary bus in the vicinity of the entrance to Roskill Farm. He said he saw straw on the road, but, as was the position with Mr Cran, no other evidence of an accident. Importantly, as his car went through Munlochy he saw one of the cars, now stationary near the post office with the driver speaking to someone outside the car. At first he said that he couldn't say whether this was the first or second car but he went on to say his impression was that it was the first car.

[32] As Mr MacLennan and his wife were travelling back along the Munlochy to Avoch road at about 11.25 pm they encountered a police block at the scene of the accident. It was at that time that he told the police about the two cars he had seen earlier and provided a statement. In that statement he told the police that he "had formed the opinion that the two cars were racing as from their lights in the distance one was overtaking the other."

[33] I shall consider later whether the inference that the cars were "racing" was a legitimate one. In any event, Mr MacLennan was a careful and credible witness, albeit that his description of the colour of the cars is not correct. What I take from his evidence is that the car in which he was a passenger was overtaken first by the car driven by the third party, the Ford Focus, at a high speed followed shortly afterwards by the Honda Civic driven by the first defender, also at high speed, both cars travelling at speeds significantly in excess of the speed limit of 60mph and approaching speeds of 90mph.

[34] The driver of the bus referred to by Mr Cran and Mr McLennan was Michael Cowie (40). He said that he was driving the service bus having just left Munlochy heading in the direction of Avoch when he saw two sets of lights coming towards him. As he put it, one set of lights passed him and the other set of lights disappeared. He saw debris on the road. He stopped the bus. He went into the neighbouring field where he found the first defender's car in an upside down position. The accident must have happened very shortly before the bus arrived at the accident location.

Discussion

[35] In her submissions Ms Shand, QC accepted that the first defender had been negligent, but she argued so had the third party. Ms Shand's primary position was that a proper inference from the evidence was that there was an element of "goading" between the two drivers and an element of competition.

[36] In her reconstruction of the events Ms Shand submitted that Darren Stewart in his statement to the police said that the third party's car (the Ford Focus) had been overtaken by the first defender's car (the Honda Civic) when entering the village of Avoch. That meant, according to Ms Shand, that since the Honda Civic had been in front of the Ford Focus in Fortrose, the Ford Focus must have overtaken the Honda Civic at some point between Fortrose and Avoch. Subsequently, on the basis of Mr Cran's evidence, the Honda Civic followed by the Ford Focus overtook him at excessive speed. Because the inference from Mr McLennan's evidence was that the Ford Focus was in front when the car in which he was a passenger was overtaken at speed at about the entrance to Rosehaugh Mains that meant that between Avoch and Rosehaugh Mains the Ford Focus must have overtaken the Honda Civic.

[37] As I have already observed (paragraph [21]) the third party did accept that he did overtake the first defender's car after leaving Avoch but insisted he did so only once. However, Ms Shand submitted that there was time for two overtaking manoeuvres after leaving Avoch and before the accident, and if so, that, together with the evidence of the prior overtaking manoeuvres and of speed, allowed the clear inference to be drawn that there was a competitive element involved.

[38] Ms Shand's approach was countered by Mr Hanretty QC's submission that there was no evidence of multiple overtaking manoeuvres such as to suggest the first defender and the third party were racing or competing. Furthermore, he submitted that the Honda Civic was a more powerful car than the Ford Focus and would have little difficulty in leaving it behind if racing was the joint intention.

[39] On the issue as to the number of overtaking manoeuvres engaged in after both cars had left Fortrose I am satisfied that after leaving Avoch the third party's car (the Ford Focus) did overtake the defender's car on one occasion shortly before the accident. Notwithstanding Ms Shand's careful interpretation of the evidence, the evidence does not persuade me that there were other overtaking manoeuvres over that three mile stretch of road before the accident. Ms Shand sought to piece together the possible positions of the cars along that stretch of road by reference to what witnesses may have said where their vehicles might have been at different points in time but I was not persuaded that a sufficiently coherent picture emerged. In relation to the period before entering Avoch, in his statement to the police, it was noted that Darren Stewart said that "Just as we were entering the village of Avoch we were overtaken by a black Honda Civic". In his evidence he did not appear to accept that such an overtaking manoeuvre had taken place. The third party insisted that he only overtook the first defender's car after leaving Avoch although he did see the Honda Civic in Fortrose. The evidence as to whether there was any overtaking just before the cars entered Avoch is far from clear and I consider that I can make no finding to that effect.

[40] I do not accept that it can be inferred from the evidence that the first defender and the third party actively engaged in competing with each other. Nor do I accept that one driver was tacitly inviting the other to compete. What is perfectly clear, however, is that in Avoch both cars were travelling at an excessive speed of 50-60mph. Furthermore, when the car in which Mr McLennan was a passenger was overtaken, first by the third party (the Ford Focus) and then by the first defender (the Honda Civic) both cars were travelling at speeds approaching 90mph on a road with a speed limit of 60mph. At the time of the accident itself, both cars were travelling at grossly excessive speeds.

[41] Mr Hanretty argued that the sole cause of the accident was the first defender's action in moving quickly in front of the third party's car and then losing control. I have set out in paragraphs [8] to [18] my conclusions on how the accident happened and I am in no doubt that the first defender must bear a significant proportion of the blame for the accident. He attempted a manoeuvre at a grossly excessive speed that involved moving quickly in front of another car that was also travelling at an excessive speed.

[42] Nevertheless, even although I have concluded that the first defender and the third party were not engaged in any form of competition, the fact remains that at the relevant time the third party was also driving his car at a speed grossly in excess of the speed limit. I find it quite telling, as I have set out in paragraph [24] that Darren Stewart asked the third party to slow down as the first defender's car approached from behind, and the third party did not brake until the first defender lost control of his car. The third party was aware that the car driven by the first defender was approaching and about to overtake. The relevant version of the Highway Code at Rule 144 envisages that a car that is to be overtaken may need to slow down for reasons of safety. In my opinion in the circumstances the third party was under a duty of care to react to the oncoming Honda Civic by slowing down and allowing the Honda Civic more scope to carry out an overtaking manoeuvre with a greater margin of safety. He failed in that duty of care. The third party must bear some responsibility for the accident.

Level of Contribution

[43] Ms Shand, QC submitted that the third party should bear 40% of the responsibility. In developing her submissions Ms Shand referred to Khana v Imran Somra [2002] EWHC 55 (QB), and Hames v Ferguson [2008] EWCA Civ 1268 to support her approach. In both these cases the respective driving behaviour of the drivers involved was more closely linked than I have found to be the position in this case. Had I found in fact that the first named defender and the third party had been racing or competing in some way then a contribution of 40% would have been justified from the third party.

[44] Mr Hanretty, QC submitted that no liability should attach to the third party. I have concluded that the third party does bear some liability for the accident. I understood Mr Hanretty's fallback position to be that, at best, only 10% of the blame should be attributed to the third party.

[45] For the reasons already expressed the major responsibility for the accident must rest with the first defender and, therefore, the defenders. By comparison, the third party's involvement is significantly less, and, exercising a broad judgement, I propose to assess his contribution to the accident at 20%.

Ex turpi causa non oritur actio

[46] The third party has pled a defence in the following terms in Article 6:

"On the hypothesis of fact averred by the defenders (which hypothesis is denied) the first defenders (sic) and the third party were engaged in an illegal activity, namely racing on a public road, the principle ex turpi causa non oritur actio bars the defenders from seeking any contribution from the third party on public policy grounds".

The illegal activity referred to in the pleadings, namely racing on a public road is no longer relevant since I have made no such finding. Although not developed in submission, the speeding engaged in by both parties which I have found was causative of the accident could also be described as illegal activity, albeit not the joint enterprise that could form part of an allegation of racing on the public highway. In any event, Mr Hanretty adopted his position on record in his submissions and it is to that issue that I now turn.

[47] Ms Shand countered the position of the third party by submitting that this was not an appropriate case for the application of the maxim. She pointed to what was said in Weir v Wyper 1992 SLT 579 as to the nature of the relevant test. On this limb of the case the following cases also were referred to by counsel: Smith, Petitioner 1979 SLT (Sh.Ct) 35; Currie v Clamp's Executor 2002 SLT 196; Toms v Royal Mail Group PLC 2006 SLT 431, and Gray v Thames Trains Ltd [2009] 3 WLR 167.

[48] In Weir v Wyper the plea of ex turpi causa was taken in circumstances where a sixteen year old passenger sustained serious injuries when the car she was in, due to the driver's negligence, left the road and overturned. The driver was convicted of careless driving and of driving unsupervised. The driver averred that the passenger knew that he held only a provisional driving licence and therefore was not being supervised at the relevant time and pled ex turpi causa as a defence. The case called on procedure roll on the pursuer's plea to the relevancy of the defender's averments in support of the plea. In allowing a proof before answer, the Lord Ordinary (Lord Coulsfield), having considered some authorities, said at 581:

"In my opinion, the Scottish authorities, far from supporting the contention of counsel for the defender that Scots law has adopted a firm rule that participation in any type of criminal conduct, however minor, disables an injured party from recovering damages, indicate that the matter is one of the particular facts". (my emphasis)

[49] In my opinion, it is perfectly clear that the focus has to be on the conduct of the pursuer in order to ascertain whether, when considering the impact of the maxim ex turpi causa, conduct can justify the application of the maxim. To seek to invoke the maxim as between two defenders, even if they have participated in some criminal activity, in my opinion, is misconceived. There is no evidence in relation to the conduct of the pursuer in this case. The conclusion from the findings I have made against the third party is that, if sued, he would have been liable to the pursuer and no question of such a plea could arise in the absence of evidence of criminal culpability on the part of the pursuer. The third party is attempting to evade his liability to the pursuer by his invocation of the maxim against a joint wrongdoer. That is not a proper application of the maxim, particularly when the maxim is rooted in public policy.

Conclusions

[50] In the circumstances I find the defenders entitled to recover from the third party a contribution of twenty per cent of any damages and expenses for which the defenders are found liable to pay in this action. In the event that there are any ancillary matters arising out of this Opinion such matters can be dealt with by the case being put out By Order.