Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 74
PD409/10	OPINION OF LORD WOOLMAN in the cause ALISON BELLINGHAM & OTHERS Pursuers; against JAMES TODD Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Milligan QC; Pugh; Digby Brown LLP, Solicitors

Defender: Mackay QC; Love; HBM Sayers, Solicitors

5 May 2011

Introduction

[1] On the morning of
25 July 2008, a group of motorcyclists set off on a journey from Ireland to Scotland. They crossed on the ferry from Larne to Stranraer. Their destination was a motorcycle rally in Lesmahagow in South Lanarkshire. At about
5.30pm, their trip ended in tragedy. One of the riders, (Clifford) Paul Bellingham, died as a result of injuries he sustained in a collision on the A71 in Ayrshire.

[2] This action arises out of Mr Bellingham's death. Members of his family seek damages from James Todd, who was another driver on the road that day. He was driving in front of Mr Bellingham's motorcycle. Immediately before the collision, Mr Todd braked hard. In order to avoid hitting his van, Mr Bellingham took avoiding action which led to the head-on collision.

[3] The family claim that Mr Todd's actions amounted to negligence, because he carried out emergency braking without adequate justification. They also say that those actions caused the accident, at least in part. They accept, however, that Mr Bellingham was riding too close to the rear of the van and that there was a degree of contributory negligence on his part.

The Issues

[4] There are three issues for determination: (a) was Mr Todd negligent? (b) if so, how should liability be apportioned between him and Mr Bellingham? and (c) what is the correct valuation of each family member's claim for damages?

The Background

[5] At the time of his death, Mr Bellingham was forty years old and an experienced motorcycle rider. He was riding a Harley Davidson motorcycle, which he had bought eight or nine years before. He was a member of the "Conductors" motorcycle group and had attended the Lesmahagow rally several times before.

[6] After the ferry crossing, the group had lunch in a village and went to a local supermarket for supplies. They then set off eastwards along the A71 toward Galston. They had been travelling for about an hour before the accident occurred. Their speed was between about 40mph and 50mph.

[7] That part of the A71 is subject to the national speed limit, which is 60mph for cars, vans and motorcycles and 50mph for goods vehicles. There is no suggestion that excessive speed played a part in the accident. It was a lovely summer day and the road surface was dry. Mr Bellingham's brother Mark was also in the group that day. He described the conditions for riding as "perfect".

[8] At a point shortly before the accident, the motorcyclists negotiated a roundabout. On their exit Mr Bellingham and another member of the group, Mark McKendry, were at the front. Mr McKendry's wife was sitting behind him on his pillion seat. The two front motorcycles were divided from the other members of the group by two vehicles. Mark Bellingham estimated that his brother was about
100 metres in front of him. Beginning at the front, the line of traffic was in the following order:

1. A blue Ford Transit pick-up truck driven by Peter Davidson.
2. The white Fiat Doblo van driven by James Todd.
3. The two motorcycles being ridden by Mr Bellingham and Mr McKendry.
4. A Mitsubishi pick-up truck driven by John Bain.
5. A Peugeot 206 car driven by Kimberley Allan.
6. The remaining members of the motorcycle group.

[9] The collision occurred on the A71 close to Hoodston Bridge, Hurlford. A minor road enters from the right about
20 metres east of the bridge ("the junction"). The approach to the junction is along a straight section of road. Eastbound drivers have a potential view of
270 metres towards the junction. Each carriageway is about
3.8 metres wide.

[10] Two of the drivers, Mr Bain and Mr Davidson, are familiar with that stretch of road. They said that it was an accident black spot. A warning sign on the left hand side of the road alerts motorists to the presence of the junction. Further on, there is also an electronic sign, but it is not clear whether it was working that day.

[11] The sequence of events leading up to the fatal collision began with Mr Davidson. He is an experienced driver and on the day of the incident he was returning to his place of work at Hamilton Tarmac, which is located about half a mile from Hoodson Bridge. His intention was to turn right at the junction. It was a manoeuvre he had carried out "thousands" of times before. Mr Davidson stated that he put on his vehicle's indicators to turn right at about the position of the warning sign.

[12] Mr Davidson wished to execute the turn without stopping his vehicle. Accordingly, as he approached the junction, he was assessing the volume and speed of the traffic in the other carriageway. He was also gauging the speed of his own vehicle. His aim was to find a safe gap in the oncoming traffic.

[13] On this occasion, there was an unbroken line of traffic travelling west towards him. Accordingly, he brought the pick-up truck to a halt. He then heard a bang behind him. He gave a number of estimates of the period between stopping and hearing the bang. They varied from four to nine seconds.

[14] Mr Todd was not called as a witness. However, on the afternoon of
27 July 2008 (two days after the incident) he gave a statement to the police, which included the following passage:

"As I approached the bridge I saw a blue pickup, maybe a Transit, stationary in the road. I can't remember if it had any lights on the back or its indicators were on. As soon as I saw the van I hit my brakes. I think I did a skid. My van came to a stop about
8 feet behind the pickup. I actually can't say for sure if the pickup was stationary or moving when I saw it. There is no reason why I didn't see the van sooner."

[15] Mr Bellingham was riding the lead motorcycle behind the Fiat van. He tried to avoid running into it by swerving to the right. His manoeuvre did not succeed. The left handlebar of his motorcycle clipped the rear offside light cluster on the van. In consequence, Mr Bellingham lost control of his machine. It was propelled into the path of an oncoming Suzuki Vitara car and Mr Bellingham was thrown from his machine. Although the emergency services arrived quickly at the scene, he was already dead.

[16] This general account of what happened was not disputed. The parties also agreed that the factual findings of the police crash investigation report are accurate. It states: (a) that none of the vehicles had a defect which caused or contributed to the accident; (b) that the skid marks of Mr Todd's van were
23.8 metres in length; and (c) that it was travelling at a maximum speed of 40mph before it braked. The fact that Mr Todd carried out emergency braking is confirmed by a number of witnesses who saw smoke coming from the tyres of his van.

Disputed Matters

[17] There were two principal matters in dispute. The first concerns the manner in which Mr Davidson brought his vehicle to a stop at the junction. The second relates to the manner of Mr Bellingham's driving before the accident.

[18] Before discussing the relevant evidence, I should say that I found all the witnesses credible. Inevitably, there were discrepancies and contradictions in their evidence. That is to be expected when individuals attempt to recall a complex event that occurred in a matter of seconds. By way of example, Mr Davidson stated that on the day in question, he was towing a heavy road roller on a trailer. The trailer was not mentioned by him in his police statement, however, nor by any other witness. I hold that he was simply mistaken in this regard.

[19] In selecting those parts of the evidence which I found reliable, I paid regard to those parts of the eyewitness evidence that could be confirmed by independent evidence. I derived assistance from the two road traffic reconstruction experts who testified in this case: Barry Seward (called by the pursuers) and Mark Hooghiemstra (called by the defender). I also took into account the weight of the evidence.

[20] The most complete account of the events leading up to the accident was provided by Mr Bain. His evidence was heavily relied upon by the defender. By contrast, the pursuers invited me to disregard his version of what occurred. It is useful to set out his account and then compare it with the other evidence in the case. Mr Bain is sixty one years old and a fleet engineering manager. In that capacity, he is responsible for maintaining a fleet of trucks and commercial vehicles. He has held a motorcycle licence since 1965 and also holds both an HGV instructor's licence and a PSV licence.

[21] Mr Bain explained that he paid particular attention to the two motorcycles travelling in front of him on the day of the incident as he is himself an enthusiast: "they were enjoying themselves and I was enjoying watching them". Further, Mr Bain recognised the blue pick-up at the front of the queue of traffic as belonging to his friend, Mr Hamilton. Mr Bain noticed that its indicators were on and thought that the pick-up was going to cut across the junction and that it stopped very quickly.

[22] On Mr Bain's account, the two motorcyclists were riding abreast and talking to one another. Shortly before the accident, they moved to the right of the carriageway to "have a look" and decide whether or not to overtake the van. On seeing the line of approaching traffic, they tucked back in. By then, however, they were too close to the van. Accordingly, when it braked they had not left themselves a sufficient opportunity to brake themselves. As Mr Bain put it, they had "eroded any safety distance".

[23] Mr Bain struck me as trying his level best to tell the truth. However, there were a number of problems with his recollection of events: (i) he estimated the distance between the two motorcycles and the van as being about two feet; (ii) he stated that both motorbikes collided with the rear of the van; and (iii) he said that the back tyre of Mr Todd's van blew off. None of these matters squares with the physical evidence.

[24] His evidence contrasts with that of Mr McKendry, Mark Bellingham and Ms Allan, who were all broadly consistent with one another. They all spoke of the two front motorcycles being ridden in a staggered formation. That is the manner in which motorcyclists are recommended to ride. Its advantage over a "side to side" formation is that it lessens the risk of the riders veering into one another when they brake. None of them spoke of the two machines pulling out to overtake or of them colliding with the back of Mr Todd's van.

[25] I prefer the evidence of those three individuals to that of Mr Bain's. I also accept Mr McKendry's evidence that he was on the right hand side of the carriageway (i.e. towards the centre of the road) about 25 to
30 metres behind Mr Bellingham immediately before the collision. Mr Bain initially placed Mr McKendry on the near side of the road and Mr Bellingham on the offside.

[26] I now come to the critical issue of the manner in which the blue pick-up came to a stop. Mr Davidson said that he approached the junction gradually, starting from an initial speed of about 40mph. In his words, immediately before the junction his vehicle was at "walking speed" and "crawling". He was closely cross-examined about this matter, but maintained his position and I prefer his testimony to that of Mr Bain. It seemed to me that I could place greater reliance on the evidence of Mr Davidson. In doing so, I took into account the fact that no other witness spoke to Mr Davidson performing an emergency stop, nor was there any physical evidence by way of skid marks.

The Highway Code

[27] Rule 126 of the Highway Code states:

"Stopping Distances

Drive at a speed that will allow you to stop well within the distance you can see to be clear. You should

·       leave enough space between you and the vehicle in front so that you can pull up safely if it suddenly slows down or stops. The safe rule is never to get closer than the overall stopping distance ...

·       allow at least a two-second gap between you and the vehicle in front on roads carrying faster-moving traffic and in tunnels where visibility is reduced. The gap should be at least doubled on wet roads and increased still further on icy roads

·       remember, large vehicles and motorcycles need a greater distance to stop. If driving a large vehicle in a tunnel, you should allow a four-second gap between you and the vehicle in front ..."

[28] The Driving Standard Agency produces a manual for motorcyclists called 'The Official DSA Guide to Riding - the Essential Skills'. It is to similar effect: "Always leave yourself enough time and space to cope with what's ahead"; and "Leave a gap of at least one metre or yard for each mph of your speed, or use the two second rule".

[29] In respect of braking, the Highway Code provides the following guidance:

"Braking

117 In normal circumstances. The safest way to brake is to do so early and lightly. Brake more firmly as you begin to stop. Ease the pressure off just before the vehicle comes to rest to avoid a jerky stop.

118 In an emergency. Brake immediately. Try to avoid braking so harshly that you lock your wheels. Locked wheels can lead to loss of control.

119 Skids. Skidding is usually caused by the driver braking, accelerating or steering too harshly or driving too fast for the road conditions. If skidding occurs, remove the cause by releasing the brake pedal fully or easing off the accelerator. Turn the steering wheel in the direction of the skid. For example, if the rear of the vehicle skids to the right, steer immediately to the right to recover."

The Legal Framework

[30] Guidance about the distance to be observed between vehicles in the context of negligence is provided by Brown and Lynn v Western SMT Co 1945 SC 31. Lord Justice Clerk Cooper stated at pages 35-36:

"The distance which should separate any two vehicles travelling one behind the other must depend on many variable factors-their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the leading vehicle, the distance within which the following vehicle can be pulled up, and many other things. The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a matter of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances."

[31] A case with some similarities is Smith v Harris [1939] 3 All ER 960. The lead rider motorcyclist in a group involved in a treasure hunt missed a turning and stopped suddenly. Another rider collided into him. The passenger on the following bike sustained injuries. It was held that the two motorcyclists were equally to blame. Because every case turns on its own facts, however, I can derive only limited assistance from such an illustration.

Was Mr Todd Negligent?

[32] In determining negligence, the key question is whether or not Mr Todd was confronted by an emergency. If there was one, then he was not negligent. He was entitled to brake as he did. But if there was no emergency, then that throws the spotlight on his actions.

[33] In my view, the onus of proof does have a bearing on the decision in this case. In many cases, when all the evidence has been adduced, the question of onus usually ceases to be important: Jenkins v Allied Ironfounders Ltd 1970 SC (HL) 37, 41 per Lord Reid; Sanderson v McManus 1997 SC (HL) 55, 62 G-H, per Lord Hope. However, a sudden and unexpected manoeuvre may call for an explanation. In Mars v Glasgow Corporation 1940 SC 202, two passengers in a tram were injured when it stopped. Lord President Normand stated at page 206:

"... the stopping of a tramway car by braking so violently as to throw passengers of their seats is evidence of negligence, and conclusive evidence of negligence if no justification is proved."

[34] In this case, the question of why Mr Todd braked has not been satisfactorily answered. I attach importance to two matters. First, as the junction was signposted, he was put on alert that he might require to stop or slow down as another vehicle might seek to turn into, or exit from, the side road. Secondly and more importantly, Mr Todd should have been aware that that Mr Davidson was going to stop his pick-up truck because (a) it was slowing down gradually; (b) its indicators were on; and (c) at some point its brake lights also came on. Against that background, I hold that Mr Todd was in part to blame for the accident. I conclude that any emergency on the road was created by his own inattention. By braking hard, Mr Todd was in breach of his duty of care to his fellow road users. He did not adhere to the provisions of the Highway Code. He did not brake early and lightly.

[35] I was invited to deal with this question as a matter of negligence. For the sake of completeness I should add that in relation to causation, I hold that the accident would not have happened, but for Mr Todd's negligence.

Contributory Negligence

[36] What is the degree of contributory negligence on the part of Mr Bellingham? Senior counsel for the pursuers invited me to attribute the blame for the collision equally between the two men. Alternatively, he suggested that the maximum blame attaching to the deceased should be two thirds. By contrast Mr Mackay on behalf of the defender submitted that the maximum blame attaching to Mr Todd should be ten per cent.

[37] In order to be a safe distance behind Mr Todd on the road, Mr Bellingham should have been observing the "two second" rule. He did not. Mr McKendry placed him about "a car, or a car and half's length" behind. Mr Seward put the distance at about 8 to
10 metres, while Mr Hooghiemstra was of opinion that it was about 51/2 metres. On any view, Mr Bellingham was far too close. He should have been about 34 to
44 metres behind the van. By being so close Mr Bellingham did not allow himself sufficient distance to come to a stop.

[38] In my view, the collision was principally caused by the negligence of Mr Bellingham. I shall attribute 80% of the blame to him and 20% to Mr Todd. I do so in light of Mr Seward's acceptance in cross examination that Mr Bellingham's conduct was reckless or verging on reckless. I think that is an accurate description of a motorcyclist riding so close to the vehicle in front. Here the matter was compounded by the fact that Mr Todd's van had the dimensions of a large 4 x 4 motor car. It would have significantly obscured Mr Bellingham's forward view. As Mr Hooghiemstra put the matter, Mr Bellingham was "tailgating".

Damages

[39] The parties have agreed all figures for loss, other than those in relation to section 1(4) of the Damages (Scotland) Act 1976. It provides that the court shall make an award of:

"... such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following-(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death; (b) grief and sorrow of the relative caused by the deceased's death; (c) the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died, and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above."

[40] I accept that Mr Bellingham's death has had a profound impact on all of the pursuers. In respect of the first pursuer, that is clear from her own evidence and from the terms of the psychiatric report detailing the effect which her husband's death has had upon her. She also gave evidence in respect of her two young children. Ben is very anxious when she leaves the house because of the experience with his father. Abbie is too young for this event to have had any impact on her. I considered short statements from the deceased's parents and from Steven Bellingham (25), who is Mr Bellingham's son from a previous relationship and who himself now has a one year old son. He describes a close relationship with his father. Mark Bellingham spoke of his loss regarding his brother, with whom he shared common interests in football, fishing and motorcycling.

[41] The competing valuations urged upon me are as follows:

Claimant	Pursuers' Valuation	Defender's Valuation
1. Mrs Alison Bellingham (widow)	£100,000	£40,000
Ben Bellingham (son)	£90,000	£20,000
Abbie Bellingham (daughter)	£90,000	£20,000
2. Clifford Bellingham (father)	£90,000	£25,000
3. Mrs Kathleen Bellingham (mother)	£90,000	£25,000
4. Mark Bellingham (brother)	£60,000	£5,000
5. Steven Bellingham (son)	£90,000	£15,000

[42] The variance in the respective valuations can be explained by the disparity between judicial awards and jury awards. The pursuers founded on a number of recent jury awards as disclosing a pattern which elevated the relevant figures well above the last judicial award. The defender urged me to take a cautious approach.

[43] In a valuable recent article, Mr Hajducki has considered this question: A Pattern of Awards - Juries and the Bereaved 2011 SLT 37. For ease of use, I set out his findings in tabular form with the approximate 2011 values as updated by the author. The full case citations are set out in the appendix to this opinion.

Judicial Awards

[44] In the last ten years, there have been a total of eleven awards made by judges in section 1 (4) cases.

Loss of a Spouse

Case	Age of Deceased	Age of Spouse	Award
Mclean	75	71	£32,000
Murray's Ex	63		£32,000
Ryan	Late 60s		£32,500
McTear	49		£28,000
Weir	34		£32,800

Loss of a Parent

Case	Age of Deceased	Age of Child	Award
Murray's Ex	63	(adult)	£11,200
Weir	34	12	£17,000

Loss of a Child

Case	Age of Deceased	Age of Parent	Award
Shaher	19		£25,000
Cruickshank	54	(elderly)	£11,250

Jury Awards

[45] Mr Hajducki notes the following jury awards since 2001.

Loss of a Spouse

Case	Age of Deceased	Age of Spouse	Award
Warnock	34		£45,000

Loss of a Parent

Case	Age of Deceased	Age of Child	Award
McIntosh		(baby)	£45,000

Loss of a Child

Case	Age of Deceased	Age of Parent	Award
Strang	21		£39,500
Gillies	24		£89,000
Young*	21	54	£90,000
Dicketts*	27	62 and 66	£98,000 each
Swarbrick*	28	53	£100,000

*These cases involved RAF officers who were killed when a Nimrod aircraft crashed in Afghanistan. Liability was admitted.

Loss of a Sibling

Case	Age of Deceased	Age of Sister	Award
Young	21	29	£60,000

[46] Mr Milligan invited me to disregard two other cases mentioned in Mr Hajducki's article, because they are both subject to motions for new trial.

[47] The issue of how to deal with the variation between judicial and jury awards has been addressed in a number of cases: Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, 24; Shaher v British Aerospace Flying College Ltd 2003 SC 540, McLean v William Denny & Bros Ltd 2004 SC 656 and Murray's Ex v Greenock Dockyard Co Ltd 2004 SLT 1104. I draw the following propositions from those decisions:

a. the assessment of damages is essentially a jury question

b. that is because such awards should reflect the expectations of society

c. the court is therefore encouraged to look for guidance to jury decisions

d. reliance can be placed upon a consistent pattern of jury awards

e. caution should, however, be exercised before (i) reliance is placed on only one jury award, or (ii) equiperating awards in respect of different classes of relative

[48] I adopt those principles in considering the proper approach in this case. I observe first that there is only one category of recent jury awards which admits of a possible pattern: that relating to loss of a child. However, that category must be looked at with care. In the three 'Nimrod' cases, the jury might be thought to be especially sympathetic to young men who had died in the service of their country.

[49] My second observation is that any judicial awards now made should be materially increased above the rate of inflation. That is because jury awards provide a surer guide to the correct level of damages.

[50] The third point is that while each claim must be viewed individually, the court does not view awards to different classes of relative in isolation. If a parent aged sixty receives damages in the region of £90,000, then in my view that would be relevant in assessing the compensation to be received by a spouse. I agree with Lord Glennie that there is "an established hierarchy of awards" and that a surviving spouse will usually receive a higher sum than surviving parents or children of the deceased: Weir v Robertson Group (Construction) Ltd 2006 Rep LR 114, para. 33. Accordingly, on this issue I do not agree with Mr Hajducki's statement that "the long held view that the loss of a spouse attracts the highest level of awards seems no longer true when the loss of adult children seem to be regarded as at least as valuable as the loss of a spouse" (at page 33). In my view there is not yet a sufficient basis in the awards which have been made to confirm this assertion.

[51] Taking into account the various factors set out above, I have formed the opinion that the correct valuations in the present case are as follows.

Pursuer	Valuation
1. Mrs Alison Bellingham (widow)	£50,000
Ben Bellingham (son)	£25,000
Abbie Bellingham (daughter)	£25,000
2. Clifford Bellingham (father)	£15,000
3. Mrs Kathleen Bellingham (mother)	£15,000
4. Mark Bellingham (brother)	£10,000
5. Steven Bellingham (son)	£15,000

[52] The figures for patrimonial loss (inclusive of interest to
4 March 2011) are agreed as follows:

a. Past loss of support £13,861.

b. Future loss of support £68,886.

c. Past services £4,305.

d. Future services £22,500.

e. Funeral Expenses £2,504.

Conclusion

[53] I shall put the case out By Order for parties to address me on the correct arithmetic following my decision.

Appendix

Judicial Awards

Shaher v British Aerospace Flying College Ltd 2003 SC 540

Mclean v William Denny & Bros Ltd 2004 SC 656

Murray's Ex v Greenock Dockyard Co Ltd 2004 SLT 1104

Ryan v Fairfield Rowan Ltd
2004 Rep LR 138

McTear v Imperial Tobacco Ltd 2005 2 SC 1

Cruickshank v Fairfield Rowan Ltd
2005 SLT 462

Weir v Robertson Group (Construction) Ltd 2006 Rep LR 114

Jury Awards

McIntosh v Findlay 2001 Rep LR 66

Strang v Le Brusq 2001 Rep LR 52

Warnock v Clark Contracts
2005 Rep LR 90

Gillies v Lynch 2006 Rep LR 138

Young v Advocate General for Scotland
27 October 2010 (unreported)

Dicketts v Advocate General for Scotland
3 November 2010 (unreported)

Swarbrick v Advocate General for Scotland
19 January 2011 (unreported)