Scottish Sheriff Court Decisions

Case Reference No: A5742/07

 

JUDGEMENT OF   SHERIFF J DOUGLAS ALLAN   in the cause   MR CAMERON DON, residing at 600 Dumbarton Road, Glasgow G11 6RJ   PURSUER   against   EASTERN HOLDINGS LIMITED, 1 Corstorphine Road, Edinburgh EH12 6DD   DEFENDERS   ____________

 

Act: Ms Robertson

Alt: Mr Di Paola

 

Edinburgh, 18 June 2008

The Sheriff, having resumed consideration of the cause, finds in fact:-

 

1.                  The pursuer is a 20 year old student who lives at 600 Dumbarton Road, Glasgow G11 6RJ and who, on 23 February 2007, was a student at the Craiglockhart Campus of Napier University and was driving his Citroen C2 motor car, registration number SE05 EKT.

 

2.                  The defenders have in their employment Mr Christopher William Mattocks for whose acts and omissions in respect of this case the defenders accept vicarious liability. Mr Mattocks is a 21 year old student who lives at 165/2 The Maltings, Slateford Road, Edinburgh and who, inter alia, on 23 February 2007 was a student at the said Craiglockhart Campus of Napier University and was driving his Toyata Aygo motor car, registration number GY56 EGK.

 

3.                  At about 1500 hrs on 23 February 2007 in Colinton Road, Edinburgh, a collision occurred between the two said motor cars as a result of which both vehicles were damaged.

 

4.                  At the point where the said two motor cars collided, Colinton Road runs approximately north and south and the carriageway is marked with white lines dividing it into four lanes, two being for northbound traffic and two being for southbound traffic.

 

5.                  Near to where the said collision occurred, there is a bus stop at the north side of said Colinton Road for northbound buses. Also near to where the said collision occurred, at or near the kerb along the north side of said road, traffic cones were in place indicating that there should be no parking; but said cones were of such a type and location that they did not prevent northbound traffic using both northbound lanes of the road.

 

6.                  On said 23 February 2007 at about 1500 hrs, Mr Mattocks returned to his said motor car which had been parked facing in a southerly direction at the kerb on the south side of said Colinton Road. Since he wished to proceed in the opposite direction to that in which his car was facing, Mr Mattocks began to carry out a U-turn in order to join the offside northbound lane. Said offside northbound lane was occupied by stationary traffic awaiting a change in traffic light signals controlling a nearby crossroad junction. When a gap slightly less than a car length occurred in said line of stationary traffic, Mr Mattocks continued to execute his U-turn and drove partly into said gap. This left Mr Mattocks' said motor car at an angle to the line of stationary traffic, still in the process of describing the arc of a semicircle, and with the front nearside of his said motor car protruding approximately 1.5 feet into the nearside, northbound lane.

 

7.                  At said date and time, the pursuer was driving his said motor car northwards in the nearside northbound lane and was passing the nearside of said stationary traffic in the offside northbound lane. A bus which had pulled out from the said bus stop was positioned in the offside northbound lane and the pursuer saw Mr Mattocks' car protruding as aforesaid into the nearside, northbound lane, edging slowly forward. The pursuer did not stop to allow Mr Mattocks to proceed partly because he was uncertain whether the driver of that car wished to enter the nearside northbound lane or to return wholly into the offside northbound lane and partly because the pursuer did not feel it appropriate to stop in view of the traffic which was behind him as well as the general busy nature of the road which included school traffic.

 

8.                  The pursuer continued driving in said nearside northbound lane and almost half of his said motor car had passed the front nearside of Mr Mattocks' car when Mr Mattocks' car moved forward, causing the front nearside of that car to come in contact as it passed with the offside of the pursuer's said car from near the driver's door back to the rear of the car.

 

9.                  As a result of said collision, there was slight damage to the front nearside of Mr Mattocks' said motor car, the cost of repairing which amounted to some £65. The damage to the pursuer's said vehicle involved slight denting and scratching to the offside driver's door, which became of more significance and greater moving back along the offside of the car towards the rear, including the offside wing and offside rear wheel arch. The cost of repairs to the pursuer's said motor car amounted to £1243.77.

 

10.              As a result of said collision, the loss and damage sustained by the Pursuer had been agreed at a sum of £1875 inclusive of interest.

 

 

 

Finds in Fact and Law:

 

1. That the accident in which the pursuer was involved was caused by the fault and negligence of the defenders' employee;

 

2. that the pursuer, having sustained loss and damage through the fault of the defenders' employee, is entitled to reparation from the defenders;

 

3. that the pursuer having materially contributed to said accident to the extent of 25%, the agreed damages should be reduced by that percentage in terms of the Law Reform) Contributory Negligence) Act 1945, section 1.

 

 

 

 

Therefore:

 

Sustains the First and, pro tanto, the Second Pleas-in-law for the pursuer; Repels the Second, Third and Fourth and Sustains the Fifth and, pro tanto, the Six Pleas-in-law for the defenders; Finds the pursuer entitled to decree against the defenders for payment of the sum of ONE THOUSAND FOUR HUNDRED AND SIX POUNDS AND TWENTY FIVE PENCE (£1,406.25) STERLING inclusive of interest; Appoints parties to be heard on the question of expenses within the Sheriff Court House, 27 Chambers Street, Edinburgh, on 22^nd July 2008 at 10.00am.

 

 

"J Douglas Allan"

 

 

NOTE

 

1.                  In this action of damages, the pursuer seeks reparation for loss and damage which he sustained following a road traffic accident on 23 February 2007.

 

2.                  I heard evidence in this proof on the 13 June 2008 and there was a Joint Minute (No 12 of process) which established that quantum had been agreed in the sum of £1875 inclusive of interest.

 

3.                  I heard evidence from only two witnesses: from the pursuer in his proof and, in the defenders' proof, from Mr Mattocks, the employee of the defenders for whose acts and omissions in respect of this case the defenders accepted vicarious liability.

 

Evidence

 

4.                  In the evidence of these two witnesses, there was little dispute that the general circumstances involved Mr Mattocks performing a U-turn and not having completed that manoeuvre when he reached the offside northbound lane where the front nearside of his car was protruding approximately 1.5 feet into the nearside northbound lane. In approximately that position, the witnesses were agreed that there was a slight collision between the two vehicles as a result of which both vehicles were damaged.

 

5.                  In his evidence, Mr Mattocks maintained that the traffic cones in or about the northbound edge of the nearside northbound lane were such as to require very careful manoeuvring by any car using the nearside northbound lane. Mr Mattocks maintained that no vehicle other than that of the pursuer was using that nearside northbound lane and that he, Mr Mattocks, had been stationary for some thirty seconds before the pursuer's car came down that nearside northbound lane and collided with the front nearside corner of Mr Mattocks' car. Mr Mattocks further maintained that the damage to the pursuer's car was mainly to the rear but he thought that it was scratched throughout the full offside length.

 

6.                  In his evidence, the pursuer maintained that, although there were traffic cones at or near the kerb along the north side of the northbound lane, they were of such a type and location that they did not prevent northbound traffic using both northbound lanes of the road. The pursuer said in evidence that he had seen Mr Mattocks' car in the offside northbound lane, not having completed the U-turn and with the front nearside corner protruding approximately 1.5 feet into the nearside northbound lane which the pursuer was using - and saw it slowly edging forward. The pursuer was passing the nearside of stationary traffic in the offside northbound lane and, as he was passing the rear of a bus which was stationary in that offside northbound lane, he said that he started to pass Mr Mattocks' car. When almost half of the pursuer's car had passed the front nearside of Mr Mattocks car, it moved forward, causing its front nearside to come in contact as it passed with the offside of the pursuer's car, from near the driver's door back to the rear of the car. The pursuer was insistent that the damage to his car involved slight denting and scratching to the offside driver's door, which damage became of more significance and greater moving back along the offside of the car towards the rear, including the offside wing and offside rear wheel arch. The pursuer insisted that there was no damage to the front or front offside of his car.

 

7.                  The pursuer was clear in his evidence that he saw Mr Mattocks' car edging forward into the nearside northbound lane; and he likened the movement to someone at a blind junction edging forward inch by inch to check if it was clear. The pursuer said that he had not contemplated stopping to allow Mr Mattocks to proceed, in part firstly because he was not sure whether Mr Mattocks was going to come into the nearside northbound lane in which the pursuer was or to continue forward, complete the arc of the U-turn and return wholly to the offside northbound lane ; and in part secondly because he said there was traffic behind him, the road was busy including with school traffic, and he had not felt it appropriate in these circumstances to stop.

 

Submissions

 

8.                  In the submissions which I heard from the solicitors for the parties, each invited me to hold their witness to be credible and reliable, and to prefer that evidence to the evidence of the other witness. For the pursuer, Ms Robertson submitted that the evidence of the pursuer that the nearside northbound lane was sufficiently clear for him to use it, was supported by his evidence that there was traffic stopped in front of him in that lane and that he had satisfactorily passed the stationary traffic in the offside northbound lane before he reached the point where the collision occurred. She further submitted that the overall evidence of damage to the pursuer's vehicle was consistent with that vehicle being part way past the vehicle of Mr Mattocks when it moved forward. In support of the pursuer's evidence that there was no damage to the front or front offside of his car, she drew attention to there being no evidence in the actual repair invoice (item 5/1/2 of process) of any repair being required to the front or front offside wing of the pursuer's car. She submitted that, had the evidence of Mr Mattocks been correct, one would have expected the pursuer's car to have required repair to those parts. Ms Robertson submitted that further evidence of the unreliability of the evidence of Mr Mattocks was to be found in his unwillingness to accept the likelihood or probability that his vehicle would have required to encroach further into the nearside northbound lane simply in order to complete the arc of the U-turn which he had not by then completed. Ms Robertson therefore submitted that the pursuer had shown that he was established in the nearside northbound lane and that it was clear for him to proceed in that lane up to the stationary traffic in that lane, that the front of his vehicle had passed Mr Mattocks' vehicle before Mr Mattocks moved further into the nearside northbound lane and into collision with the pursuer's vehicle. Although Ms Robertson invited the court to hold Mr Mattocks wholly responsible for the accident, if the court concluded that the pursuer was to any extent contributarily negligent, she submitted that this should be no greater than 25%.

 

9.                  For the defenders, Mr Di Paola submitted that the evidence of Mr Mattocks showed that he was aware of the circumstances of the road and the vehicles concerned. He was clear as to the circumstances of the accident, that he was executing a U-turn on the road and that his vehicle was protruding into the nearside northbound lane when his vehicle was struck by that of the pursuer. Mr Di Paola noted that the evidence of Mr Mattocks was that the damage to the pursuer's car was to the front offside wheel arch and along the offside of that car. He drew attention to the inconsistency between vehicle assessment documentation (item 5/1/1 of process) and the actual repair invoice (item 5/1/2 of process) as to any damage to the front or front offside of the pursuer's car - and submitted that the documentary evidence was unclear on this. Mr Di Paola invited the court to hold the pursuer wholly responsible for the accident; but if the Court concluded that Mr Mattocks was to any extent contributarily negligent, this should be no greater than 25%, with the pursuer held 75% responsible.

 

 

My conclusion

 

10.              I agreed with the solicitors for the parties that this matter turned upon my assessment of the credibility and reliability of the pursuer and Mr Mattocks. Having had the opportunity of observing them giving evidence and the manner in which they dealt with the questions put to them, and having considered the road layout at the scene of the collision, the manoeuvre which Mr Mattocks was undertaking, the lane in which the pursuer was travelling and such evidence as appeared established as to the damage to the pursuer's car, I concluded that I could not rely upon the evidence of Mr Mattocks in making findings in respect of the crucial events. I preferred the evidence of the pursuer that the nearside northbound lane was not so obstructed by the traffic cones as to prevent northbound traffic using both northbound lanes of Colinton Road.

 

11.              Both the pursuer and Mr Mattocks were agreed that Mr Mattocks had not completed the U-turn which he was executing when he required to stop in the gap in the line of stationary traffic in the offside northbound lane. Both were also agreed that this left Mr Mattocks' car at an angle to the line of stationary traffic, still in the process of describing the arc of a semicircle, and with the front nearside of his car protruding approximately 1.5 feet into the nearside northbound lane.

 

12.              Where parties differed, was that Mr Mattocks maintained that he was stationary in that position for some 30 seconds before the pursuer's car struck the front nearside of Mr Mattocks' car ; whereas the pursuer maintained that he had seen Mr Mattocks' car protruding as described earlier, but edging slowly forward. Having explained why he had not felt it inappropriate to stop in order to allow Mr Mattocks to complete his manoeuvre, the pursuer maintained that he had continued driving and that almost half of his car had passed the front nearside of Mr Mattocks' car when that car moved forward, causing the front nearside to come in contact as it passed by with the offside of the pursuer's car from near the driver's door back to the rear of the car.

 

13.              I preferred the evidence of the pursuer on the points in respect of which the parties differed, and I considered the pursuer to be the more reliable. His evidence was the more consistent in respect of the overall picture of events, was more consistent with what would be expected since Mr Mattocks had not completed the arc of the U-turn which he was undertaking, and, albeit not strongly, I consider that the pursuer's own clear evidence of the damage to his car received some support from the invoice setting out the actual repairs undertaken to his car.

 

14.              I therefore concluded that Mr Mattocks was primarily to blame for the collision in that he encroached further into the nearside northbound lane at a point where the pursuer was passing Mr Mattocks' car, causing damage from the offside driver's door backwards to the rear of the pursuer's car.

 

15.              However, I also concluded that the pursuer was to some extent to blame in that he contributed to the accident by not pausing or stopping to allow Mr Mattocks' car either fully to enter the nearside northbound lane or to continue forward (in the arc) and resume occupancy only of the offside northbound lane. The pursuer was clear in his evidence not only that he had seen Mr Mattocks' car protruding into the nearside northbound lane, but also that it was slowly edging forward. He had likened it to the movement of someone at a blind junction edging forward inch by inch to check it was clear. He said that his reasons for not contemplating stopping to allow Mr Mattocks to proceed were firstly because he was unsure whether Mr Mattocks was going to come into the nearside northbound lane or whether it was going to continue forward, complete the arc of the U-turn, and return wholly to the offside northbound lane; and secondly because he said that there was traffic behind him, the road was busy including with school traffic, and that he had therefore not felt it appropriate in these circumstances to stop. There was no evidence of any kind that traffic behind the pursuer would have been impeded, obstructed or inconvenienced to any significant extent if the Pursuer had paused or stopped to allow Mr Mattocks to proceed. In addition, the fact that the pursuer was unclear as to which of two alternatives was to be pursued by Mr Mattocks, should, in my view, have led the pursuer to pause or slow until the matter had become clear. Accordingly, to the extent that the pursuer drove forward without clarification, I consider that he contributed in part to the accident. On the facts which I held established, I have assessed the pursuer 25% to blame for the accident as against Mr Mattocks 75% to blame. I have therefore fixed the pursuer's element of contributory negligence in terms of the Law Reform (Contributory Negligence) Act 1945, at 25%.

 

16.              By the Joint Minute (No 12 of process), quantum had been agreed in the sum of £1,875 inclusive of interest. A reduction in that figure to the extent of 25% amounts to £1,406.25.

 

 

Expenses

 

17.              As regards expenses, both parties wished there to be a hearing on expenses; and I have accordingly appointed a hearing on which parties can be heard in that regard.