[1] The pursuer, in this action, sues the defenders for injuries he sustained in a road accident, which occurred on 25 August 1994, when the pursuer was 20 years of age.

[2] At the time of the accident the pursuer was a student of electronic and electrical engineering. The defenders are a firm of coal merchants.

[3] The case came before me for a proof before answer restricted to the question of liability.

[4] The pursuer, himself, did not give evidence. His father, Mr James Smith, did. He told the Court that the pursuer has no recollection at all of the accident. The pursuer was in hospital for about 9 months after the accident and has suffered from physical and mental problems since the accident. The pursuer stays with his parents, being incapable of living on his own. His father has a power of attorney in respect of the pursuer's affairs.

[5] Prior to the accident the pursuer had held a driving licence for approximately 2 years. At the time of the accident he was studying at Bell College, Hamilton. He drove there daily from his home in Lanark. His father said that some days the pursuer would drive to college via the M74 and on other days he would drive on the A73. The accident took place on the A73 road near the village of Braidwood, as the pursuer was driving northwards along the A73 from Lanark in the direction of Carluke. The pursuer had left home at about 7.45am. The accident took place shortly after 8am. The locus of the accident is shown in two sets of photographs which are lodged in process as Nos. 18/1 and 20/7 of process respectively. The locus is also depicted in a series of photographs attached to a report by Mr John Manderson which is No. 23/1 of process. These photographs show a leftward bend in the road when facing northwards. Ahead of the bend, on the right, east side of the road are some buildings. One of these is a house which is known as Marksburn House. The house is accessed via a short drive leading from the road. The bend, at the time of the accident, and at the present time, is tree-lined and hedged on the near side. A low wall also runs along the road at this point.

[6] On the morning, in question, Mr Daniel McGuinness, a partner in the defenders' business, was driving a coal lorry, laden with coal, northwards along the A73 road in the direction of Marksburn House. He was planning to deliver coal to the house. At a point just opposite the entrance driveway to the house, he stopped his lorry and signalled that he was going to turn right into the driveway. There were a number of vehicles following close behind him. They all managed to stop their vehicles behind his while he waited for the oncoming traffic, on the southwards lane of the road to pass, to enable him to make the right-hand turn. The pursuer, who was driving a Ford Escort car, was approaching the bend when the other vehicles had come to a stop. As he came round the bend, he was confronted with the last of the vehicles in the queue which had formed behind the coal lorry driven by Mr McGuinness. The pursuer was apparently unable to stop in time to avoid colliding with the last of the cars in the queue and, as a result, it appears, drove his car across the road onto the other side and collided with a lorry which was travelling southwards. As a result of the collision the pursuer, it is averred, sustained very serious injuries, the consequences of which were spoken to by his father in evidence.

[7] It is the pursuer's case that the accident was caused, in part by the fault of Mr McGuinness in stopping his coal lorry on the said road, in order to turn right into the driveway of Marksburn House.

[8] The evidence of the pursuer's father was that the pursuer could well have travelled along this stretch of road a hundred times or more on his way to Bell College, which he had been attending for about 3 years prior to the accident. He would have been very familiar with the left-hand bend. The speed limit on this stretch of road is 60mph. The pursuer was a member of a rally driving crew.

[9] I heard evidence also from Mrs Pamela Brown, who had been in one of the vehicles driving behind the coal lorry and ahead of the pursuer. She was familiar with this stretch of road. On the morning in question she had been, she thought, travelling at a speed of between  50 and 60mph. Before arriving at the start of the bend she noticed several cars and vehicles in front of her. She noticed, in particular, a white van which overtook the vehicles ahead of her. She said that this worried her because of the bend in the road. As she arrived at the bend she said she proceeded to slow down because she was aware of the traffic ahead of her. She described the bend as not being "a bad bend". It did not require drivers to drive really slow but it was not a bend she would overtake on because of the fact that she would not know if there was traffic coming towards her. After she had negotiated the bend, she saw a queue of traffic ahead of her, including the white van which she had previously noticed overtaking. The queuing traffic ahead of her was stationary and she thought that it comprised two lorries and two or three cars. She was able to see that there was a high lorry at the front of the queue. It was stationary and she presumed that it was about to turn right. She slowed up, as did the car immediately in front of her. She did this without difficulty and came to a stop. Once she had stopped she noticed in her mirror another car coming up behind her and it stopped behind her. Less than a minute later, she looked into her offside mirror and saw the vehicle being driven by the pursuer moving up towards the opposite lane. She said it looked as if it were "floating" and as if it had been in a skid. Her first thought was "what on earth is that car doing overtaking us". She then heard a loud crash. Mrs Brown said that anyone, like herself, who was familiar with this stretch of road would have been aware of the existence of the house, and the entranceway leading to it which came off the southbound lane of the road. The house was more obvious when driving from Carluke to Lanark than was the case when driving in the other direction. She described the road as being at the time of the accident "moderately busy". She noted that, after the accident, a queue of vehicles formed up behind the locus of the accident.

[10] The car which was following immediately behind the car being driven by Mrs Brown was driven by Mr William Dey, who was led on behalf of the pursuer. Mr Dey was very familiar with the road in question prior to the accident. He explained that on the morning in question, just before he approached the bend, he was in a stream of traffic travelling in the direction of Carluke. He estimated that he was driving at a speed of between 45 to 50mph. He said that there was no vehicle behind him at the point at which he was just approaching the bend. The witness said that as he approached the bend he was keeping up with the stream of traffic. When he moved round the bend there was a stream of stationary traffic in front of him. He said he had to stop fairly sharply. He could not see what was causing the tail-back. He put on his brakes but it was not an emergency stop. After he had stopped he heard sliding wheels and saw, in his mirror, a car coming straight at him, from behind. Mr Dey said that he thought that the car was going to hit his car. The other car was being driven fairly fast, at about, he thought, 60mph. In the event, the other car did not collide with his. He heard skidding tyres. After it had appeared to be about to collide with his vehicle, the other vehicle disappeared from his view and Mr Dey then heard a terrible noise and realised that the other vehicle had been involved in a crash. Mr Dey said that he had travelled the road for many years but that queuing, at the bend, was "unusual". He was aware of the existence of a cottage or house on the east side of the road, just after the bend, but he had never given the entranceway to that house any particular thought.

[11] Evidence was then led for the pursuer from PC James Boyd and Sergeant William Mackie, who attended at the scene of the accident, but neither of these witnesses gave evidence which assisted materially in determining the cause of the accident. They had called in Police Constable John Bell who was, at the time, employed in Strathclyde Police Traffic Department based in Motherwell. When this officer attended at the locus of the accident he was advised that, having regard to the nature and extent of the pursuer's injuries, it was probable that the pursuer would die. In the light of that information PC Bell prepared, in draft, a manuscript note which, in the event of the pursuer dying would have formed the basis of a report to be submitted to the procurator fiscal. The draft manuscript note is 20/5 of process. Number 20/6 of process is a rough sketch made by this witness of the locus at the time of his investigation showing the positions of the vehicles involved in the collision. The sketch indicates that the road was 9.4 metres wide. It is indicated in the draft report by PC Bell that, at the time of the accident, overhead conditions were dry, although there had been heavy overnight rain leaving the road surface wet and slippy. Other witnesses spoke to there having been dampness on the road surface. Police Constable Bell said that in his experience this stretch of road was always a bit damp because of its position underneath overhanging trees which were situated on both sides of the road. The witness' attention was drawn to paragraph 105 of the current edition of the Highway Code, which is lodged as 23/3 of process. Paragraph 105 states as follows:

"Stopping Distances

• leave enough space between you and the vehicle in front so

• Allow at least a two second gap between you and the

• remember, large vehicles and motor cycles need a greater distance to stop".

PC Bell was involved in road traffic investigation and accident reconstructions for 5 years. He also holds a City and Guilds qualification in relation to these matters and is the holder of an HGV licence. He expressed the opinion that, if the pursuer had been driving at about 60mph, in approaching the bend and there was a stationary queue of vehicles just after the bend the pursuer, as he came round the bend, might have instinctively reacted to avoid what he perceived the immediate risk of colliding with the last vehicle in the queue, by driving his car onto the other side of the road.

[12] Under reference to the photographs lodged as productions, PC Brown pointed out that at the locus of the accident there was a central white line with gaps indicating unspecified hazards. The Highway Code provided that such lines should not be crossed. PC Bell said that he had had no reason to be concerned with the position of the coal lorry driven by Mr McGuinness. He, in fact, did not even have any recollection of having seen it. When asked about what a coal lorry requiring to deliver coal to the house in question should do to gain access to the house, he said that if the lorry was travelling from Lanark, the driver would require to make a right-hand turn into the driveway of the house by using his mirror and signalling. The driver of the lorry might require to stop depending on the existence, or otherwise, of oncoming traffic. The witness' attention was drawn again to the Highway Code, this time at para. 155 where it is stated as follows:

• use your mirrors to make sure you know the position and

• give a right-hand signal
• take up a position just left of the middle of the road or in the space marked for traffic turning right
• leave room for other vehicles to pass on the left, if possible,"

The witness was of the view that there would have been no room left for vehicles to pass on the left of the coal lorry, having regard to the width of the road and the width of the lorry itself. If, however, the lorry driver had, otherwise, followed the provisions of the Highway Code, just referred to, he would have had no criticism of the lorry driver having done what he did, that is effecting a right-hand turn to gain access to the house to which he was to deliver the coal, even though that required him to stop and that traffic following might have to queue up, temporarily, while the manoeuvre was completed. The witness said that that is how he himself would have driven the lorry into the entranceway in question. It was put to him, however, that a safer way to take access to the house, in the circumstances, would have been for the coal lorry to have been driven further northwards on the road, past the entranceway to the house and then to have turned back, at a suitable point, and made a left-hand turn into the entranceway to the house. The witness was, however, firmly of the view that that would have been a more hazardous thing to do since it would have required the coal lorry to be driven onto the opposite lane, because of the turning circle involved, having regard to the narrowness of the entranceway in question and the width of the lorry. It was Police Constable Bell's view that encroaching onto the other lane, in the face of possible oncoming traffic, coming from a bend in the road, was particularly hazardous. If it proved necessary to stop the manoeuvre, because of oncoming traffic, that would itself present a fresh hazard to traffic, following, which might assume that the lorry had broken down and try to overtake it. This witness said that there was always a constant stream of traffic on this road throughout the day. HGV drivers were faced with driving dilemmas day-in day-out. In the present case, however, the witness clearly thought that turning right into the entranceway was the safest and most appropriate option for the coal lorry driver to choose. PC Bell did not hesitate in saying that, as between the pursuer and the driver of the coal lorry the accident was caused by the fault of the pursuer, who had driven onto the wrong side of the road. He had done so, apparently, by swerving to avoid colliding with the queue of vehicles in front of him because he was unable to stop in time. PC Bell stated that there was never any question of anyone involved in the accident being prosecuted.

[13] The other witnesses, as to fact, were Mr Daniel McGuinness, the driver of the coal lorry and Mr John Stoakes the driver of the lorry, with which the pursuer's vehicle collided. Mr McGuinness explained that he operated a coal merchant's business along with his brother and his mother. The business delivered coal within a twelve mile radius of Lanark. In 1994 he had been the person in the business who drove the lorry, which was a Bedford ten ton gross lorry. The witness is now aged 50 and has held an HGV licence since he was 21. He explained that he had delivered coal to Marksburn House for about ten years prior to the accident and did so twice or three times a year. His routine was to load up the lorry the night before any deliveries so that he could set off first thing in the morning. In making his deliveries to Marksburn House, he would approach it from Lanark driving northwards on the A73. On occasions he would require to stop opposite the entranceway and wait before turning right because of oncoming traffic. On the morning of the accident he was aware, as he approached the entranceway, that there was traffic behind him. He said that after he had come round the bend he was looking in his mirrors to the left and to the right. He put on his indicator to turn right and slowed down as he approached the entranceway. He found he had to stop because of oncoming traffic. He waited for the oncoming traffic to pass him. His intention was to drive the lorry into the entranceway and then to reverse round what he described as the gable end of the house and unload the coal bags into a coal bunker and set off again. After he had stopped, to allow the oncoming traffic, to pass he was aware that there were two or three vehicles stationary behind him. He thought that there were about three vehicles passing on the other side of the road and that they took about a minute to pass him, perhaps less. There were, he thought, two cars followed by a lorry. The lorry was an HGV tipper truck used for carrying sand and gravel. Mr McGuinness said that while he was stopped, he continued to indicate to traffic behind him that he intended to turn right. Just after the tipper truck passed him he heard a screech of brakes and looking back he saw a Ford Fiesta vehicle, which had been travelling up behind him, cross onto the wrong side of the road. He heard a smash and knew that the car had hit the tipper lorry. He then drove his lorry off the road into the entranceway. Mr McGuinness thought that the tipper lorry was not travelling at all fast. He estimated its speed to be approximately 40mph. Because of the screeching of the brakes of the Ford Fiesta, he reckoned that it had been driven fairly fast. He said that it had had to brake "very very quickly". His estimation was that the car must have been driven at about 60mph. He got out of his lorry, walked back and saw that the car had been knocked back onto the side of the road it had originally been travelling on. He informed the driver of the tipper truck, Mr Stoakes, that if he, Mr Stoakes required a witness to speak to the driver of the car being on the wrong side of the road he would be willing to do so. Mr McGuinness remained for approximately 10 minutes at the locus of the accident. The police arrived. He said he spoke to them but he was never contacted by them thereafter. He delivered the coal to Marksburn House and continued, thereafter, on his way. He said that he always approached Marksburn House from the same direction when delivering coal to it. It was his impression that to approach the entrance to the house by making a left-hand turn he would have had to drive further northwards on the road to a garden centre, to drive into the car park, which was dedicated to the garden centre, and then turn back southwards. The car park was, he thought, exclusively for use of customers and employees of the garden centre. It was put to him that there was a petrol station further on where he could have legitimately, and safely, turned back southwards. He accepted that that was, perhaps, the case. His point, however, was that whether one turned back, having turned into the garden centre car park, or having turned back via the filling station, the left-hand turn into the entranceway of the house would have been hazardous because of the width of the lorry and the width of the entranceway. He would have required to drive the lorry onto the wrong side of the road. He would not have wished to do this in case a car travelling northwards came on and hit him. He was asked if he might have used a smaller lorry. He did not think it would have been possible to obtain a smaller lorry, suitable for carrying the amount of coal he required to carry at that time. He could not envisage any lorry suitable for his purposes which would be any narrower than the one that he used on the day in question. Any suitable lorry would not have allowed traffic to pass on the left-hand side while it was making a right-hand turn. In conclusion, in his examination in chief, the witness said that he did not think he had done anything wrong on the day in question and he could not think of any safer way of taking the vehicle into the premises.

[14] In cross-examination Mr McGuinness said that if the vehicles travelling behind him had been driven at a reasonable speed they could have stopped in time. He had carried out the manoeuvre in question three times a year for ten years, always at approximately the same time of day, without incident. He had never contemplated delivering the coal at any other time of the day.

[15] The driver of the tipper truck involved in the accident, with the pursuer's car, Mr John Stoakes, said in evidence that he was driving a Mercedes eight wheel, 20 ton tipper lorry. At the time of the accident it was not loaded. As he approached the entranceway to Marksburn House, from the north, there was no traffic immediately in front of him. On the other side of the road, he noticed two cars and a lorry, like his own, and in front of these vehicles, there was a coal lorry. The driver of the coal lorry was indicating that he was going to turn right. The coal lorry was stationary, allowing Mr Stoakes' lorry to pass. Mr Stoakes said that as he passed the coal lorry he was driving at a speed of about 35mph. He thought that the road conditions were dry and could not remember any dampness. He said that, having made his way past the queue of traffic behind the coal lorry, the car driven by the pursuer "just came right out behind the last car and hit me from the front". "He just seemed to jump from the sky in front of me". Mr Stoakes said that he thought that the pursuer was attempting to brake. There was a screeching noise and then a huge bang. He thought that the pursuer must have been driving at, at least, 60mph. As an HGV driver, the witness said that he had to make right-hand turns regularly every day. If there was oncoming traffic that might mean that he would require to stop his lorry with traffic queuing up behind it. He saw nothing strange or odd in what the coal lorry driver had done on the day in question.

[16] In cross-examination Mr Stoakes said that the pursuer's vehicle must just have been on the bend when it swerved out.

[17] Both sides led expert witnesses. For the pursuer there was led Mr John Manderson of the Traffic Accident Investigation Division of Messrs Burgoynes, Consulting Scientists and Engineers. He had produced a report, dated 26 August 2003 which is No. 23/1 of process. He has a particular expertise in accident reconstruction, with a particular interest in the phenomena of friction and skidding. He did not examine the locus until 15 August 2003. At para. 19 of his report he states:

In evidence the witness said the bend was well designed. He accepted that the engineers in designing the bend would have taken into account the presence of stationary vehicles queuing just beyond it. It was a good design and it was not a sharp bend. Mr Manderson's report was predicated on the road conditions, at the locus, at the time of the accident being dry. The witness was, standing the lapse of time since the accident, and the absence of physical evidence, unable to carry out any reconstruction of the accident. His report and opinion were based on precognitions he had had sight of, PC Bell's manuscript draft report and sketch, and his own examination of the locus. A good part of the witness' evidence was taken up with a consideration of stopping distances. Mr Manderson's evidence was that in driving at a speed of about 60mph, as he approached the bend, the pursuer would have found it impossible to stop in time to avoid colliding with Mr Dey's car at the end of the queue and his reaction would have been to take avoiding action, by driving over to the wrong side of the road. This witness also considered that even when driving at 50mph the pursuer would have had difficulty in stopping in time. As Mr Manderson put it "I would have taken my foot of the gas if I had knowledge of this bend" As it turned out, however, the most significant part of this witness' evidence was, perhaps, his opinion that it would have been safer for Mr McGuinness to have sought to take access to the entranceway to Marksburn House by making a left-hand turn, notwithstanding the fact that he agreed that it would not be "a simple left turn" and that it would itself create a hazard. His preference for a left-hand turn was due to the fact he said that he preferred a vehicle to keep moving rather than be stationary. In cross examination the witness said that he had carried out his examination of the locus on a Sunday and that the traffic was busy at that time.

[18] The expert witness, led for the defenders, was Mr Peter Sorten of Peter Sorten and Associates. He produced a report, which is No. 20/1 of process. He attended at the locus on 21 June 2001, and again on 20 August 2003, and had carried out certain measurements on these occasions. He is an expert on road traffic accidents and holds an HGV licence. He described the bend, at the locus, as moderate and not severe. It was his view that the rear of Mr Dey's car would have been visible to following drivers, on the northbound carriageway, as they approached and took the bend. Both Mr Sorten and Mr Manderson had carried out their investigations under reference to Police Constable Bell's manuscript draft report and under reference to the sketch he had prepared, which sought to show the location of the actual impact, under reference to a fixed point, which was a fire hydrant positioned on a pavement, which runs alongside the southbound carriageway. Both witnesses took photographs of the locus. The photographs taken by Mr Manderson formed part of his report, No.  23/1 of process. The photographs taken by Mr Sorten are No. 20/7 of process. It was a matter of agreement that the photographs marked "3" in each of these bundles had been taken from approximately the same position looking northwards towards the point of collision. The evidence of Mr Manderson was that, from the photographer, to the point of collision was a distance of some 75 metres. The evidence of Mr Sorten, however, was that the distance was 100 metres. Mr Sorten said that a conscious decision had been taken to take a photograph at a distance of 100 metres, south from the collision point, as indicated from PC Bell's sketch plan. He accepted that either he or Mr Manderson must have been wrong in measuring the distance from the photographers in the photographs, marked number "3" to the position of the collision. Mr Sorten sought to satisfy the Court that his measurement was the correct one by reference to the length of the broken white lines shown on the roadway and the distance between them. He did so by reference to what he considered to be the relevant statutory requirements relating to the length of the broken white lines and the distance between them on a road of this kind. Mr Manderson's understanding of what the statutory requirements in this regard was different. It subsequently emerged that neither witness was correct in this respect.

[19] Mr Sorten's evidence was that the coal lorry, in question, was no wider than a Range Rover. His view was that the pursuer had lost control of his vehicle as he took the bend. It was his opinion that the pursuer was driving his vehicle "well in excess of 60mph". It was, furthermore, his opinion that, had the pursuer been driving at 50mph, even though the road surface was wet, he could have safely stopped in time to avoid collision with Mr Dey's car. Mr Sorten disagreed flatly with the suggestion that it would have been safer for Mr McGuinness to have made a left-hand turn into the entranceway. He considered that such a manoeuvre was inherently more dangerous than taking a right-hand turn because, in the first place, it could have involved the coal lorry being driven onto the wrong side of the road, in the face of oncoming traffic and secondly, following traffic might not have anticipated such a manoeuvre being made. In addition, to enable a left-hand turn to be carried out the driver of the coal lorry, would have either required to do a U-turn on the road or would require to reverse into some space further along the road, before turning back. The witness contended that the majority of accidents in which lorries were involved were associated with reversing movements. It would always be preferable to make a right-hand turn in a situation like the one Mr McGuinness found himself in rather than a left turn involving, as it was likely to do, in the circumstances, the crossing of the centre white line.

[20] Mr Sorten went on to say that as far as the pursuer was concerned the hazard line on the road should have put him on notice to take particular care. It was this witness' opinion that there generally would be lines of traffic building up behind commercial vehicles on this road, except in straight stretches, where it was possible to overtake. In para. 108 of his report Mr Sorten states "I do not accept that the limitation on the field of view through the left-hand bend was such that the presence of stationary traffic created a serious danger". Although he gave evidence, and stated, at para. 111 of his report, that the pursuer was driving well in excess of the 60mph speed limit, Mr Sorten conceded that that view had been predicated on the road conditions being totally dry at the time of the accident. He was prepared to revise that view, in the light of the other evidence, that the road was wet or damp and said that in that case, the pursuer would have been driving well in excess of 55mph. The witness pointed out that there were no signs prohibiting a right-hand turn into the entranceway of the house, though the roads authority would have had the right to make such a restriction, if certain conditions were fulfilled. He did not consider that the conditions, in question, arose in this case.

[21] In cross-examination Mr Sorten accepted that if Mr Dey's car was positioned just ahead of the point of collision then depending on where the pursuer was on the road, at a distance of 100 metres from the rear of Mr Dey's car, the pursuer may just have had a glimpse of it.

[22] At the conclusion of the evidence, and before commencing submissions senior counsel, under reference to the relevant regulations, brought to my attention that, as previously noted, both experts were wrong in their view as to the length of the white lines and the length of the space between them, which were required on the road in question. Their respective views, therefore, as to the distance from the photographer to the point of collision in each of their photographs marked number "3", could not be supported by their contentions as to how their respective measurements might be checked by reference to the length of the white lines and spaces between shown on those photographs, as they had both proceeded on erroneous assumptions as to these matters. I am bound to say that I found it somewhat remarkable that neither of these gentlemen who came to give evidence, as experts, in relation to such questions, was able to provide accurate information in relation thereto and had the question of the distances shown on the photographs and the question of stopping distances been, in the context of this case, material to my decision, I would have some difficulty in reaching a concluded view on the topic. As it happens, however, I do not consider that such questions were, ultimately, material which, indeed, was reflected in the fact that, in their submissions neither senior counsel for the pursuer, nor senior counsel for the defender, sought to make much, if anything, of this chapter of the evidence.

[23] I should say that I consider that all the witnesses, as to fact, were both credible witnesses, and subject to the obvious allowances that require to be made in respect of the very considerable passage of time since the accident, were to be regarded as reliable witnesses.

[24] In opening her submissions, senior counsel for the pursuer contended that the defenders were liable to the pursuer because the accident, which had occurred, had occurred because there was fault on part of both the pursuer and Mr McGuinness. She accepted that the pursuer had contributed to the accident, by failure, on his part, to take reasonable care and that, as she put it, the best she could argue for in respect of a split of liability, as between the pursuer and the defenders, was 60% to the pursuer and 40% to the defenders. The pursuer, senior counsel accepted, had failed to deal adequately with a difficult situation. He was not, however, the author of it. Every driver, in the position of someone like Mr McGuinness, on the day in question, had, she contended, to carry out manoeuvres with an eye to the safety of others. Such drivers had to take into account that other drivers might not be careful and might drive too fast. Mr McGuinness had accepted that the right-hand turn created a potential hazard. The question was whether Mr McGuinness had, to any extent, been negligent in doing so. Negligence, in this context, meant conduct falling below the standard demanded to protect others against unreasonable risk of harm. The risk had to be an unreasonable risk before a person had to subordinate his interest to the interest of others when he was about to carry out a hazardous act. A balancing exercise was required to be undertaken, involving the weighing up of the significance of risk of accident happening and the seriousness of the consequences of any such accident, against the difficulty, expense or other disadvantage of taking certain precautions or not doing the act in question at all. As the present case was concerned with the driving of a coal lorry on a busy road, it was obvious that there was the possibility that a hazard created by Mr McGuinness had the potential of bringing about very serious consequences, such as death, or serious injury to persons. Senior counsel accepted that the evidence of Mr McGuinness was that he had carried out this particular manoeuvre at the locus at about the same time in the day, on very many occasions. So a question arose as to the likelihood, rather than the possibility, of such consequences arising. Senior counsel for the pursuer also accepted that there was a real dispute as to the difficulty and efficacy of Mr McGuinness doing anything else on the morning in question. At this point in her submissions senior counsel referred me to various authorities for support of the proposition that drivers, in the exercise of their duty of reasonable care for other road users, had to anticipate that other drivers might not drive carefully. Reference, was in the first place to the cases of Rousev Squires (1973 ) 1 QB 889 and London Passenger Transport Board v Upson (1949) AC 155. Reliance was also placed upon the speech of Lord Edmund-Davies in Chop Seng Heng v Thevannasan and Others (1975) 3 All ER 57, particularly at pages 574-575 and pages 576-577. Senior counsel for the pursuer recognised that there fell to be a distinction drawn, in law, between negligent conduct, on the one hand, and an error of judgement on the other. In that respect she referred me to the case of Morris v Pirrie 1985 SLT 365 where the circumstances were that a driver of a car, which had broken down on the bend of a main road, early on a winter's morning, when it was raining heavily, had pushed the car some distance from the apex of the bend but had not sought assistance to push the car some yards further and onto a grass verge. The car was visible for about 99 metres. The driver of a following lorry, travelling at about 55mph, swerved to avoid the car and, in doing so, collided with an oncoming vehicle and was killed. The driver of the car was convicted of a contravention of Section 24 of the Road Traffic Act 1972 by permitting his car to remain on the road while causing a danger to other users. The lorry driver's widow and children sought reparation from the car driver. On the facts found, in that case, it was established that the driver of the car left it unattended for over an hour. The Lord Ordinary, Lord Stewart, held that the car driver had failed in his duty not to leave the car parked in a position where, as he knew or ought to have known, it would cause danger to oncoming vehicles. In so doing his Lordship said this, at page 366, "I cannot accept that the failure even to try to enlist aid to move the car to a place where it would not be likely to cause danger to other road users was merely a misjudgement." The Lord Ordinary, in the result, in that case, held the car driver to be 40% liable and the deceased lorry driver to be 60% at fault. Reference was also made to the facts and circumstances in the case of Ammeen v Hunter 2000 SLT 954, as demonstrating that a road user, who finds himself in an unexpected difficulty, may be held to have been, in part, to blame for an accident which results from a decision taken on the moment to meet the unexpected difficulty. In that case the pursuer had been forced to stop her car in the outside lane of a dual carriageway due to a flat tyre. The defender ran his car into the back of the pursuer's car and was found to have been at fault in doing so. Nevertheless, the pursuer was held to be 50% contributorily negligent, since the Lord Ordinary found that it should have been clear to the pursuer, for some miles beforehand, that there was something wrong with her car and that she had not stopped to check, nor had she moved her car off the carriageway or put on her hazard warning lights after the vehicle had been brought to a halt. In Harrington v Milk Marketing Board 1985 SLT 342, at 344, the Lord Ordinary expressly accepted the proposition, in the context of a road traffic accident, that a mere error of judgement will not infer negligence. In McLeod v Cartwright 1981 SLT 54, a car driver had driven his vehicle into the back of a gritting lorry which had been stopped to enable the gritting container to be replenished with salt and grit from the lorry. The pursuer had been one of the crew on the lorry and had been checking the rear of the lorry when the other vehicle was driven into it. The pursuer was injured. The car driver, as defender to the action, blamed the pursuer's employers for a failure of the lorry driver to park in a lay-by or to switch on the hazard warning lights and for the employers' failure to instruct that this be done. The Lord Ordinary, Lord Stewart, in relation to the case sought to be made against the pursuer's employers said this:

Senior counsel for the pursuer maintained that the circumstances of that case were a long way from the circumstances of the present case, particularly with regard to the Lord Ordinary's finding that the lorry was parked in a straight stretch of road with ample room available for other vehicles to pass it. The last authority I was referred to by senior counsel for the pursuers was the decision of the Court of Appeal in Goke v Wilett 1973 RTR 422. Senior counsel referred to that case as an illustration of conduct, by the appellant driver, stigmatised as negligent, which, senior counsel contended, at first blush might not have appeared to have involved the driver doing anything untoward.

[25] Drawing on those authorities, senior counsel for the pursuer made the following further submissions. In the first place she said that both parties' experts and Mr McGuinness himself agreed that the right-hand turn at the particular locus was potentially a hazardous movement. The particular hazard was the risk of traffic banking up behind the lorry while it was stationary and queuing round the bend. There was a critical point approaching the apex of the bend when it was difficult for northbound drivers to see any traffic ahead. On the evidence, at best for the defenders, the pursuer could have seen a small part of the rear of Mr Dey's car as he approached and took the bend. The broken white lines showed that this stretch of road was considered hazardous by the road authority. The road was wet in the day in question. There was a duty on both the pursuer and Mr McGuinness, it was submitted, to take into account all of these factors. Mr McGuinness' action in stopping where he did to turn right, put the pursuer in a difficulty with regard to stopping in time, if he was driving at 50mph or above. That involved a serious risk against which Mr McGuinness required to take precautions. At best for the defenders, on the evidence, the position was that the pursuer was put in a position that, at 100 metres from the rear of Mr Dey's car, he would have seen a small part of the rear of it. He then required not only to see it but to realise it was stationary and a hazard to him. He then had to put his brakes on in a controlled manner and to refrain from doing what would be instinctive in some drivers, namely steering away from the obstruction. If the pursuer was to fail in any of these respects there would be an accident. Senior counsel for the pursuer accepted that the evidence established that, had the pursuer been driving at about 50mph, he could have got physically round the bend and stopped without colliding with Mr Dey's car. Accordingly, she accepted that the pursuer must have been driving at a speed on a road, where, having regard to the requirements regarding stopping distances, he could not stop within his seeing time. She also accepted that the evidence, taken as a whole, pointed to the pursuer not paying proper attention at the time. Senior counsel accepted that had it been the occupier of Marksburn House who, driving his car, had stopped to drive into his home by turning right, rather than Mr McGuinness stopping his coal lorry to do so, the same accident may have occurred, because of the evidence that there was at least one lorry in the queue behind Mr McGuinness' lorry, which would have caused queuing of stationary vehicles to take place, whether the vehicle seeking to make the right turn was a coal lorry or the occupier's car. Nevertheless, she contended that Mr McGuinness should not have made a right-hand turn, on the morning in question, having regard to all the circumstances, and that in doing so, he was negligent. There were other options open to him, namely, making a left-hand turn or he should not have gone out at that time of the day to make the delivery in question but should have done so at a time when the traffic was likely to be less heavy.

[26] In reply senior counsel for the defenders submitted that the defenders should be assoilzied. Mr McGuinness, it was contended, was entitled to assume that traffic following his lorry would conduct itself in such a way as to deal with ordinary situations on the road which they would find themselves in. As far as the authorities relied upon by the pursuer were concerned they were all distinguishable from the present case in one very material respect, at least. That was that each of them involved the driver, found liable, as having been involved in creating both an unexpected and unusual situation on the highway because of something in the nature of his having lost control of his vehicle or his vehicle having broken down. The "manoeuvre" was held to involve negligence in each of the cases was not part of a continuing normal journey or something which, standing on its own, could be regarded as "legitimate". The conduct, in question, in each example, was held, in the circumstances to involve what might be described in common parlance as "bad driving". In the present case, by contrast, what Mr McGuinness did was legitimate, not surprising, nor to be held to be totally unexpected or unusual. In the case of Rowse USE, McKenna J, described the jack-knife position of the lorry in question as being "unusual" (at page 899). In the present case the house and the entranceway was visible to road users travelling in both directions. It would be reasonable for them to foresee that vehicles would seek to drive into the entranceway, if travelling from the south, by making a right-hand turn. The pursuer was, on the evidence, very familiar with the road. Mr McGuinness had himself carried out this particular manoeuvre many many times ,without incident.

[27] Senior counsel for the defenders referred me to the dictum of Lord Dunedin in the case of Fardon v Harcourt-Rivington (1932) 146 LT 391 at 392 cited by Lord Du Parcq in London Passenger Transport Board v Upson at page 176. That dictum was to the following effect:

While the pursuer, in the present case, pled, and sought to establish, other options open to Mr McGuinness, other than making the right-hand turn, which he did, there was, in fact, no safer or practicable alternative for him. The suggestion that Mr McGuinness could have chosen to deliver the coal to this particular address at a different time of the day simply ignored the practicalities of the business in question and more importantly, perhaps, the clear evidence that this was a busy road throughout the day. The suggestion that a smaller lorry might have been used by Mr McGuinness also ignored the practicalities of the business and ignored the fact that the queue of traffic, behind Mr McGuinness, had, itself, included at least one following lorry which would have been unable to pass even a smaller lorry, had such been available to, and used by, Mr McGuinness. As to what appeared to be the pursuer's primary position, namely that Mr McGuinness should have elected to take access to the entranceway by making a left-hand turn, it was of considerable significance that PC Bell said that such a manoeuvre was more dangerous than making a right-hand turn, evidence which was entirely in line with what the defenders' expert said and what Mr McGuinness himself maintained in his own evidence. The Court should, accordingly, hold that there was no safer or practicable alternative to what Mr McGuinness did on the morning in question. Moreover what he did was nothing out of the ordinary - it did not involve any careless driving by him. The defenders should be assoilzied.

[28] Ultimately there was no material dispute of fact in relation to how the accident in question occurred. The long-term consequences of this accident to the pursuer, who at the time was a very young man, with apparently a bright future ahead of hem, as spoken to, in evidence, by his father have clearly been tragic and one can only feel sympathy for him and his family. It is clear also that, but for Mr McGuinness having stopped his lorry on the road, in order to make the right-hand turn, this particular accident would not have occurred. As has been seen, however, it was conceded, quite rightly, by senior counsel for the pursuer that the accident was largely caused by the negligent driving of the pursuer himself. The question remaining for me to decide is whether or not the accident was, to any extent, caused by the fault of Mr McGuinness, for whose actings the defenders are responsible.

[29] I reach the conclusion, without any real difficulty, that, in no sense, can Mr McGuinness be held to have been at fault. While his stopping of the vehicle, in the circumstances, was clearly part of the causal chain leading to the accident that is a far cry from saying that the stopping of the vehicle was in itself negligent in the circumstances. What Mr McGuinness did that morning was something he had done, as a matter of course, on many occasions over many years without incident. It is, in my judgment, something which anyone, including the owner and occupier of the house itself, would naturally have done when travelling northwards, on the road from Lanark to Carluke, when seeking to have access to the entranceway to the house. It is the type of manoeuvre which drivers of vehicles, including drivers of lorries and other heavy goods vehicles, do day-in day-out with the consequence that there may be behind them a queue of traffic in a stationary position until the manoeuvre is completed. There was no suggestion that Mr McGuinness in preparing to make the right-hand turn acted in anything other than an exemplary fashion, by signalling his intention to make the turn and waiting for the oncoming traffic to pass before turning into the driveway. That factor, in my judgment, distinguishes the present case significantly from the cases which senior counsel for the pursuer sought to rely upon in that, in those cases, the actings or omissions of the drivers in question could be seen to have involved either bad driving or the creation of both an unusual and an unexpected hazard. What was being rejected in those cases was the suggestion that because the accidents, in question, came about, at least in part, because of the proven, or admitted, negligence of the victim of the accident, himself, the driver responsible for the bad driving or the creation of the unusual and unexpected hazard, could be relieved from any liability in respect of his conduct. In the present case, however, to adapt the language of Lord Stewart in the case of McLeod v Cartwright I cannot see that Mr McGuinness did anything unreasonable or, in itself, unsafe, in adhering to his normal practice in stopping on the road in order to make a right-hand turn into the driveway of Marksburn House to deliver his coal there. The presence of his lorry, in a stationary position, for the very short period required to make the turn, presented no hazard to other road users if they themselves were driving carefully. While the case, as pled, against the defenders, in the first place, contends that it was the duty of Mr McGuinness to have continued further along the road and turned and travelled back southwards along it to effect a left-hand turn, I am satisfied that that was not a safer alternative means of effecting access to the house. In this respect I accept, in particular, the clear evidence of PC Bell, who had considerable experience in investigating road accidents, and dealing with road traffic matters, as well as being the holder of an HGV licence, that such a left-hand turn would have been a more hazardous manoeuvre than a right-hand turn. His evidence, in this respect, was entirely consistent with that of the defenders witness, Mr Sorten, which evidence I found much more persuasive on this matter than that of Mr Manderson. The evidence is wholly consistent also with what Mr McGuinness himself had to say on the matter. I am also satisfied that the pursuer's alternative case which is that Mr McGuinness should have "taken reasonable care to deliver the coal at a time when traffic volumes were lower and a lengthy queue of stationary traffic would not form behind the coal lorry as it waited to turn right" is removed from reality. The evidence, in this case, was that this stretch of the road was busy throughout the day. Indeed the pursuer's own expert witness, Mr Manderson, gave evidence that it was a busy stretch of the road on the Sunday when he carried out his investigations. It is, in my judgment, unreal to suggest that the defenders, in carrying out their business, within a twelve mile radius of Lanark, should have programmed that to take into account all the possible hazardous turns that a driver of the lorry may have from time to time to take. While the pursuer also avers that a smaller pick-up truck could have been used to deliver the coal, this aspect of the case was ultimately, and not surprisingly, not relied upon by senior counsel for the pursuer, in the light of the evidence.

[30] I am, accordingly, satisfied that there was no other reasonably practicable and safer way for Mr McGuinness to carry out his perfectly legitimate task of delivering coal to Marksburn House on the morning in question. While he himself accepted that the manoeuvre was potentially hazardous, that is true of many manoeuvres which drivers are obliged to make while driving their vehicles. But the test, in my judgment, as I think, senior counsel for the pursuer herself accepted, at one point in her submissions, is not that he should have foreseen that the hazard was such that it was a possibility that a queue of vehicles would form behind him, stretching back to the bend and that a driver, in the position of the pursuer, would be driving in such a careless way, as to be unable to stop his vehicle in time, when faced with that queue and would drive his vehicle onto the other side of the road into the face of oncoming traffic. The test is rather, whether he should have, in the circumstances, foreseen all of that as a likely or probable consequence of his stopping to make the right-hand turn as, at a result, should have taken extraordinary measures (compare Lord Dunedin in the case of Fardon cited above). There simply was no evidence, in this case, in my judgment, to suggest that that test has been met by the pursuer. In my judgment the accident, to the extent that it was caused by the fault of anyone, was caused solely by the fault of the pursuer in driving his vehicle at a speed, which was excessive in the circumstances, as a result of which he lost control of the vehicle when he came upon the queue of stationary vehicles and his car, crossed onto the wrong side of the road, colliding with the oncoming lorry being driven by Mr Stoakes. The accident was not caused by any fault on the part of Mr McGuinness. I shall, accordingly, assoilzie the defenders.