STEVEN PATERSON AGAINST (FIRST) DAVID MACLEOD; (SECOND) HIGHLAND COUNCIL; (THIRD) WILLIAM FRASER AND (FOURTH) AXA CORPORATE SOLUTIONS ASSURANCE SA

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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 20

 

PD812/13

OPINION OF LORD ARMSTRONG

In the cause

STEVEN PATERSON

Pursuer

against

(FIRST) DAVID MACLEOD; (SECOND) HIGHLAND COUNCIL;

(THIRD) WILLIAM FRASER; and

(FOURTH) AXA CORPORATE SOLUTIONS ASSURANCE SA

Defenders

Pursuer:  Bain; QC, L Milligan; Digby Brown LLP

Second Defenders:  Clarke QC, Clelland; Ledingham Chalmers LLP

Third and Fourth Defenders: Hanretty QC, Marney; BLM

 

10 February 2017

Introduction
[1]        This case concerns a road traffic accident which occurred on 6 May 2010, on a stretch of the A835 Ullapool to Inverness road, approximately 1.5 miles north of the Braemore junction.

[2]        The pursuer was driving a Mazda motor car towards Inverness.  Having rounded a blind bend, his vehicle collided with a refuse lorry which was stationary at the side of the opposing carriageway.  He claimed damages from the driver of the refuse lorry (the first defender) and his employers, the local authority (the second defenders).  At around the time of the collision, the refuse lorry was being overtaken by another vehicle, a yellow Scania flatbed lorry.  The pursuer also seeks damages from the driver of that lorry, (the third defender) and from his motor vehicle insurers (the fourth defenders).  Following the death of the first defender, prior to the first diet of proof, the action in so far as directed against him was abandoned.  The Record does not reflect that.  For clarity, therefore, consistent with the pleadings in the case, I refer to the parties as they are designed above.

[3]        The pursuer’s position is that his vehicle collided with the stationary refuse lorry as a consequence of necessary evasive action taken by him in order to avoid the oncoming Scania lorry which was blocking his lane.  The defenders all deny liability and assert that the accident was caused by the pursuer’s sole fault or contributory negligence.  The second defenders also assert that the accident was caused or materially contributed to by the third defender.  The third and fourth defenders assert that the accident was caused or materially contributed to by the first defender.

[4]        Following the accident, the pursuer pleaded guilty to a contravention of section 3 of the Road Traffic Act 1988 (driving without due care and attention or without reasonable consideration for other road users), by driving at inappropriate speed and colliding with the refuse lorry. 

[5]        The parties reached agreement as to the appropriate level of damages, and the case proceeded only in relation to liability and contributory negligence. The principal issues in the case concerned the evaluation of the pursuer’s speed at the relevant time and the nature and timing of his reactions to the events which confronted him on rounding the blind bend.  The proof, which comprised, in all, 15 days, was heard over three diets between February and November 2016.  In all, I heard the evidence of 12 witnesses.

 

The Evidence
Mrs Val Booth
[6]        Mrs Booth, who lived in Ullapool, had known the pursuer for some time.  On the day of the accident, he had arranged to give her a lift in his Mazda motor car from Ullapool to Inverness.  The weather on the day was generally good.  Having set off on the A835 towards Inverness, at about 11am the pursuer approached a blind left hand bend leading to a straight on which Braemore Square Country House is situated.  In advance of the blind bend there were solid white lines in the centre of the road and a “Slow” warning sign.  She estimated the pursuer’s speed to be about 55-60 miles per hour.  Prior to the bend the pursuer had overtaken a Porsche motor car and two cyclists.  As the pursuer was exiting the blind bend, Mrs Booth saw two lorries, one stationary on the other side of the road, and another on their side of the road, overtaking it and coming towards them.  The refuse lorry, which was stationary on the other carriageway, was positioned on the roadway at or near the entrance of Braemore Square Country House.  Her impression was that the pursuer was going to attempt to pass through the gap left between the two lorries once the oncoming flatbed lorry had completed its overtaking manoeuvre.  Events happened very quickly.  The pursuer’s vehicle collided with the refuse lorry.  Prior to the collision with the refuse lorry, the pursuer had crossed onto the opposing Ullapool-bound carriageway.  Her impression was that the pursuer had braked when he realised that he would be unable to move through the anticipated gap between the two lorries.  She said that she had heard him braking, although, later, her evidence was that she had no recollection of hearing the sound of screeching tyres. He had crossed to the oncoming carriageway and had braked before colliding with the refuse lorry.  In the aftermath of the collision she was in a lot of pain and was removed from the vehicle by others.  Her husband was contacted and attended at the scene of the accident.  Subsequently, when she was in hospital, he told her that he had had a conversation, while at the scene of the accident, in which the driver of the Scania flatbed lorry had told him that he had been waved on by the driver of the refuse lorry.

[7]        In cross examination, she accepted that she herself was not a driver, but maintained that she could tell whether someone was a good driver or not.  She had not been looking at the speedometer of the pursuer’s vehicle, but felt able to judge the speed at which they had been travelling.  To her it felt like 60 miles per hour.  Her evidence, consistent with her statement to the police, was that, as they came round the blind bend, she had seen both lorries simultaneously.  The pursuer had braked and then moved over to the other carriageway.  When she had seen the two lorries she had been frightened, and had thought there was going to be a crash.   On the issue of whether or not there would have been sufficient time for the pursuer simply to have brought his vehicle to a halt, she accepted that she had no driving experience personally and did not know the necessary stopping distance from a speed of 55–60 miles per hour.  Although at the time she had thought that the pursuer was attempting to pass through the gap between the two lorries which would have been left once the overtaking manoeuvre had been completed, she had been told subsequently by him that in fact what he was attempting to do was to turn his vehicle to the left in order that the driver’s side collided with the front of the refuse lorry, for the reason that he was aware that there was no safety air-bag on the passenger side of his vehicle and that he had wanted to protect her from the impact.  She had seen the two lorries when the pursuer’s car came round the blind bend.  She thought that the pursuer had first applied his brakes once he was in the opposing carriageway.  She did not think that the car had skidded, but it had slowed down before hitting the refuse lorry.  She thought that the pursuer was driving under control and was attempting to pass through the gap between the lorries.  She had discussed the accident with the pursuer in the days following the accident, while he was in hospital, and in the subsequent years.    On the basis that the typical stopping distance from 60 miles per hour was 73 metres, and in circumstances where the distance from the blind bend to the position of the stationary refuse lorry was 145 metres, she was unable to say how it was that the pursuer failed to bring his vehicle to a halt before colliding with the stationary refuse lorry.  She was aware that on the approach to the blind bend there was a sign indicating the need for caution on account of slow lorries approaching in the opposite direction.  She was unaware whether the pursuer had modified his driving after having passed that sign.  She agreed with the proposition that she had probably seen both lorries simultaneously.  

 

Alan Booth
[8]        He had received a phone call from his wife immediately after the accident and had gone immediately to the accident scene.  When he arrived, the flatbed lorry was parked on the Ullapool-bound carriageway some distance in front of the refuse lorry.  The pursuer was still in the driving seat of the Mazda.  His wife was also still in the car and a fire crew was present.  Shortly afterwards, an air ambulance arrived.  The refuse lorry was parked slightly to the Ullapool side of the entrance to Braemore Square Country House.  The flatbed lorry was parked not more than 25 metres ahead of the refuse lorry.  Mr Booth recounted a conversation which he had had with a man who identified himself as the driver of the flatbed lorry.  Mr Booth had asked him what had happened, and the man had said that the driver of the refuse lorry had waved him on.  Mr Booth identified the various road markings and warning signs around the accident site, as shown on photographs.  In particular, he identified the fact that, at the accident site, solid white lines at the edge of the roadside indicated a prohibition on stopping.  In cross examination, he was referred to Rule 129 of the Highway Code, in terms of which it is permissible to cross double white lines in the centre of the road, provided the road is clear, in order to pass a stationary vehicle. 

 

Steven Paterson (the Pursuer). 

[9]        At the time of the proof, the pursuer was aged 42 years. He had lived in Ullapool for some years.  He is a potter, specialising in ceramics.  He was a social acquaintance of Mr and Mrs Booth.  At the date of the accident, 6 May 2010, he owned a Mazda 323, with an engine capacity of 1.4 litres, which was 14 years old, having been registered in 1997.  He considered it to be an old car. It had a recorded mileage of approximately 160,000 miles.

[10]      On the day of the accident, he had picked up Mrs Booth, who did not drive, and had set off from Ullapool to Inverness.  They were under no pressure of time and the weather was good.  He maintained that he always drove within the speed limit, which, on the relevant stretch of road, was 60 miles per hour.  Before reaching the straight on which the accident took place, he had found himself following a Porsche 911 motor car which, in turn, was following a slow moving camper van.  He had overtaken both of these vehicles on a straight stretch of the road prior to the blind bend which led to the accident site. He had also overtaken two cyclists before reaching the blind bend.  He estimated that the camper van had been travelling at about 40 miles per hour, that he had overtaken the Porsche and the camper van at a speed of about 50-55 miles per hour, and that he had overtaken the cyclists at about 60 miles per hour.

[11]      When overtaking the cyclists he had given them a wide berth and had pulled back to his own side of the road before entering the blind bend which led to the stretch of the road on which the accident occurred.  As he exited the blind bend, he saw the stationary refuse lorry parked on the opposite side of the road at the entrance to Braemore Square Country House.  He checked his rear view mirror and, when he looked back at the road ahead, saw another vehicle, the Scania flatbed lorry, approaching him on his side of the road.  When he had first seen the refuse lorry he had braked slightly, but had not considered that there was any emergency.  When he saw the second lorry, he was shocked and had felt that he had nowhere to go.  In emergency mode, he “slammed on the brakes much harder”.  When he saw the second lorry approaching on his side of the road he had been travelling at 55 miles per hour.  He had not “slammed on” the brakes until he had seen the second lorry. His wheels had locked and the Mazda travelled across the centre line of the road.  He had considered the safer option to be that of colliding with the stationary refuse lorry.  The entire incident had taken only a few seconds.  He described his reaction when seeing the approaching lorry on his own side of the road as being that of shock, and realisation that he would have to do something if he and his passenger were to survive.  He had not considered the refuse lorry itself to be an obstacle.  The emergency had been caused by the Scania flatbed lorry coming towards him on his own side of the road. 

[12]      He had crossed the white centre line of the road, onto the carriageway on which the refuse lorry was stationary, in the hope that he could drive through the gap which would emerge when the oncoming lorry had overtaken the refuse lorry.  The last thing which he did was to turn his own vehicle, driver’s side on to the front of the refuse lorry. As he was doing so, the tailgate of the oncoming flatbed lorry had not yet passed the refuse lorry. 

[13]      On first seeing the refuse lorry, his initial thought had been “What a really silly place to park”.  He described the position of the refuse lorry as being right on the blind bend, and too close to the corner.  He had checked his mirror because, in any situation, that was what he always did.  The order of events had been that he had seen the refuse lorry, checked his rear view mirror, looked back to the road ahead, had seen the oncoming flatbed lorry, noting that it appeared that the two lorries were both beside one another and were blocking the road ahead.  He had applied his brakes very hard and had heard the screeching of tyres.  His wheels had locked up.  The screeching noise had begun as he crossed the white centre line.  He had been hoping that the oncoming lorry would pass the refuse lorry in time to leave a gap through which he could pass by returning to his own side of the road, and thereby avoiding a collision with the refuse lorry. 

[14]      He maintained that, because he knew that his passenger did not have the benefit of an airbag, but that he did, he had deliberately turned his car, side on, at the last minute in order that his side, the driver’s side of the car, would collide with the front of the refuse lorry, in circumstances where he, at least, would have the protection afforded by an airbag.

[15]      He described the aftermath of the accident.  He had been dazed and was trapped in the car.  His door could not be opened and he was unable to exit through the window or the sunroof.  He recognised that he had a broken leg and that his feet were trapped under the pedals of the car.  Curiously, he was not in pain at that time.  His recollection was that it took about half an hour before the fire services arrived.  Once he had been cut out of the car, he was taken by air ambulance to Raigmore Hospital at Inverness.  Whilst in hospital, approximately one month later, he had given a police statement.  He had been subsequently charged with a road traffic offence.  In all, he was in hospital for approximately three months.

[16]      Once served with a complaint, he had consulted a solicitor who had recommended that he consult instead the firm of Chapman & Co, of Inverness.  Although he had initially been charged with dangerous driving, at excessive speed, contrary to section 2 of the Road Traffic Act 1988, he eventually pleaded guilty to careless driving, at inappropriate speed, and to colliding with the refuse lorry, contrary to section 3 of that Act.  His solicitor, Mr Chapman, of that firm, advised the pursuer that it was in his interests to do so.  In terms of his extract conviction, dated 6 January 2012, the pursuer was fined £350 and his driving licence was endorsed with 5 penalty points.  Prior to his court appearance, Mr Chapman had instructed Mr Jack Marshall, a road traffic reconstruction expert.  Mr Chapman, Mr Marshall and the pursuer had all attended the accident site.  The case against the pursuer had been based on tyre marks on the road which were said to indicate that the pursuer had been driving at excessive speed.  A friend of the pursuer’s, James Elliot, had taken photographs of the tyre marks on the road at the accident scene, and these photographs had been passed to both Mr Marshall and Mr Chapman.  Although Mr Chapman had strongly advised the pursuer to plead guilty in the terms which he ultimately did, the pursuer had been reluctant to do so and had wanted to defend himself against the charge.  He had ultimately accepted the advice tendered to him, on the basis that by doing so his sentence would be much reduced.  He had also discussed the plea with Mr Marshall.  The reporting officer in the case had calculated the pursuer’s speed, prior to the accident, to be about 86 miles per hour.  The pursuer indicated that he had pleaded guilty in order to bring the matter to an end.  As he put it, he had “given in”.  Afterwards, he had felt that he had done the wrong thing. 

[17]      When referred to the third defender’s police statement to the effect that when the third defender had come alongside the refuse lorry he had seen the pursuer’s vehicle exiting the blind bend, the pursuer’s response was to agree with its content, in that, when he had seen the two lorries, they had been side by side.  He denied that his vehicle, the Mazda, had clipped the roadside verge, but agreed that he had braked and skidded.

[18]      Under reference to a sketch drawing, prepared by the pursuer, and which included hand-written text to the effect that “The flatbed lorry overtook illegally on the blind bend with the solid white line on his side of the road.  I had only about 10 seconds to react.”, he disagreed with the suggestion that he had 10 seconds in which to react.  He had made the drawing whilst still in hospital.  The true position was that there had been less than 5 seconds between him going round the blind bend and colliding with the refuse lorry. 

[19]      Following his conviction, the pursuer had spoken to Mr Marshall who had recommended to him a solicitor in Dumfries for the purposes of a civil claim.  After having pleaded guilty, he had been advised by Mr Marshall that it was not necessarily “all over”, and that it would be possible to take the matter further.  Mr Marshall had disagreed with the calculations advanced by the police.  Mr Marshall had thought that the pursuer had not been at fault. The pursuer contacted a solicitor in Aberdeen with a view to appealing his conviction on the basis of defective representation.  However, he had been advised that no funding had been available.  Although the pursuer was not working at that time and had no money, he had been told that he would not be eligible for legal aid, and that the cost of the appeal would be £1600 plus VAT. 

[20]      The reason the pursuer had braked initially was because he had seen flashing lights on the refuse lorry.  It had not occurred to him that another vehicle would overtake the refuse lorry, although he had seen that it was stationary. 

[21]      It was put to the pursuer that in his police statement, made under caution, there was no mention of him looking in his rear view mirror.  His response was that he now thought that he had not mentioned that to the policeman taking the statement.  However, the terms of his police statement were: “I then noticed the second lorry neck and neck with the bin lorry”. He had first seen the refuse lorry and had then noticed the second lorry, neck and neck with it.  He had looked in his mirror as an automatic response, even although he had known there was nothing behind him.  The two lorries had been neck and neck when he noticed the second lorry, which led to his emergency braking.  He had been braking lightly before then.  He accepted that his speed must have been reducing to some extent during the light braking. 

[22]      When he had first seen the second lorry, he had already travelled around the sharpest part of the blind bend, and was at the start of the straight which led to the accident site.  He thought that his speed would have been less than 55 miles per hour at the point when his emergency braking had begun.  He had been unable to stop before colliding with the refuse lorry.  When asked why he had not begun his emergency braking earlier, his response was that he had first to decide “where to go”.  He accepted that he had applied his brakes before the beginning of a straight skid mark, noted as being 26 metres long, the beginning of which was said to be 34 metres from the impact point.  In circumstances where the stopping distance of a vehicle travelling at 60 miles per hour was less than 150 metres, and where, on the pursuer’s account, when he first saw the second lorry approaching, he was about 150 metres distant from it, the pursuer’s position was that he had not begun emergency braking immediately because he first had to make a choice in order to save his life and that of his passenger.  The pursuer accepted that, as he exited the blind bend, he had not begun braking as soon as he saw the two lorries. 

[23]      It was put to the pursuer that the driver of the Porsche had commented that the pursuer, when overtaking him, had been driving at a speed of about 75-80 miles per hour.  It was also put to the pursuer that the two cyclists which he had overtaken had commented that the pursuer was driving too fast and too close to them, when he overtook them.  The pursuer disagreed with these comments.

[24]      In relation to pleading guilty to careless driving, the pursuer accepted that by doing so, he had not been disqualified from driving, and that not being able to drive in the area of Ullapool, and in the Highlands generally, would have been inconvenient for him.

[25]      The pursuer accepted that when he entered the blind bend, having been driving at 60 miles per hour on the straight before it, he would have negotiated the bend at the maximum speed permissible within the prescribed limit, or only slightly less than it.  His evidence was that he had taken it for granted that travelling at the maximum speed would not be problematic.

[26]      Under reference to his sketch drawing of the accident site, in which he had stated “The flatbed lorry was overtaking illegally on the blind bend”,  he accepted that that was not a true description of the events.  The overtaking had happened some 150 metres from the blind bend.  He said that he had been confused at the time when he had made the drawing.  He had been in hospital at the time.  He said that he had thought that the description was true at the time, but he now knew that it was not accurate. 

[27]      It was put to the pursuer that, before giving evidence, he had never mentioned having looked in his rear view mirror.  When asked if he had mentioned it earlier, his response was that he couldn’t remember.  When asked to whom he had mentioned it earlier, his response was that he did not know.

[28]      The pursuer claimed to suffer from dyslexia which affected his memory.

He also maintained that he suffered from depression.  However, notwithstanding his complaints of depression when in hospital, the discharge notification, dated 17 July 2010, and forming part of his medical records from Raigmore Hospital, Inverness, indicated that, despite frequent review by the hospital mental health team, no objective evidence of depression had been found.  He maintained that both conditions had been diagnosed before the accident.

[29]      The pursuer accepted that when in the company of his girlfriend, while driving at 45 miles per hour, he had photographed the speedometer of his Mazda car, to record its mileage of 160,000 miles.  He maintained however that he was a careful driver and had not thought that, by doing so, he was taking an unnecessary risk.  He accepted that his normal driving speed on the road from Ullapool to Inverness was 60 miles per hour.  When asked why he had driven into the blind bend at the maximum permissible speed, he accepted that having driven on that road for some 14 years, he had become blasé about it.  He explained that, prior to the accident, he had never realised that the blind bend was such a critical corner, and that he had never expected to find his path completely blocked by oncoming traffic.  Prior to the accident, he had not considered the blind bend to be a particularly bad or dangerous corner.  When referred to his police statement, he accepted that he had told the police that he knew “that section (meaning the stretch from Inverlael to Braemore junction, including the accident site) (had) a bad reputation for being dangerous”. He subsequently accepted that his understanding, at the time of the accident, had been that that part of the road, including the blind bend leading to the accident site, was dangerous.  His final position was that he now considered the blind bend in question to be extremely dangerous. 

[30]      The pursuer was referred to a document entitled “Steven’s accident description” prepared by him in hospital on his computer.  In his description of the accident, the pursuer had noted, in the third paragraph, the following:  “Effectively the two lorries were side by side as I came round the blind corner”.  Having read the paragraph, he accepted that description of events.   That had been his perception.  The description was correct.

[31]      He was referred to a following passage:  “At this point, I braked harder, with my front tyres locking, still on the correct side of the road”.  Although he initially confirmed that that description was true and accurate, his subsequent position was that, on reflection, he did not think it was a true description, despite the fact that he had admittedly revised the document several times. He maintained that the most accurate description of events was to be found in his police statement. 

[32]      When referred to his police statement, made under caution,:  “My wheels locked up and my car started to go over the white line on the centre of the road”, he accepted that the statement in his description of the accident, prepared by him in hospital,:  “At this point I braked harder, with my front wheels locking, still on the correct side of the road”, was indeed correct.  He accepted that when he braked harder, and the wheels were locking, he was on his own side of the road, at the beginning of the straight which began immediately after the blind bend, or at the end of the bend before the straight commenced.

[33]      The pursuer maintained that the two cyclists whom he had overtaken were mistaken when they described his driving as having appeared to be too fast and uncontrolled and that, having overtaken them, he had entered the left hand blind bend on the wrong side of the road. 

[34]      In the context of possible road hazards at or around the accident site, he accepted that, not least because Braemore Square Country House comprised of holiday accommodation, there might have been horses or walkers on the road, or slow lorries, approaching in the opposite direction. 

[35]      Under reference to the content of his police statement, made under caution, he accepted that his wheels had locked on his own carriageway, that he had thereby lost the ability to steer, that when his wheels had locked his car had crossed the centre white line, and that, accordingly, he had been skidding over the centre white lines.  With hindsight, he thought that he must have chosen to cross the centre lines of the road before the wheels had locked.  He thought that now to be the case because Mr Marshall had subsequently advised him that once his wheels had locked he would be unable to change direction.  He accepted that, until he had known that, having been advised by Mr Marshall, he had never suggested that he had steered to the right, before his wheels had locked up, in order to cross the centre line.  He accepted that, until Mr Marshall had told him, his position had been that he had steered to the right while his wheels were locked.  He maintained, nevertheless, that he had crossed the white lines because he had actively decided to collide with the refuse lorry.  He accepted that his position in that regard, that he had made a conscious decision to steer to the right, and had then lost control of his vehicle, was not consistent with what he had told the police when giving his police statement under caution.  On the whole issue of the timing of his decision-making process, his initial position, as set out in the description of the accident, prepared by him in hospital and subsequently revised by him, had been that he had made a decision, actively deciding to collide with the refuse lorry, when crossing the white lines.  He accepted, in cross-examination, however, that that could not have been possible, since at the time when he was crossing the white lines he could not have had control of his vehicle.  That was consistent with his police statement made under caution.  Ultimately, his position was that he had decided to cross onto the other carriageway when it was clear to him that the flatbed lorry was approaching on his side of road.  He had not, however, made that movement when the lorry was 145 metres away.  He had needed time to make the necessary decision and to react.  He had not braked as soon as he had seen the approaching lorry, but had delayed the decision.  He had “slammed on the brakes” after deciding where to go.  His final position was that his brakes had been locked for the whole time from when he was on his own side of the road, crossing the centre line, until he finally turned the car, driver’s side on, to meet the impact with the refuse lorry.

[36]      He confirmed that he could not actually recall his speed of travel when negotiating the blind bend but, based on how he normally drove, his estimate was that he would have been travelling at 60 miles per hour.  He accepted that he could not exactly recollect his speed.

[37]      He confirmed that as he had come round the blind bend, he had been confronted with the stationary refuse lorry and the flatbed lorry overtaking it.  He accepted that the flatbed lorry had been in the process of overtaking the refuse lorry as he had rounded the bend.  Reference was made to several documents in that regard.  Those facts were consistent with the description of the accident which he had given to (1) Mr Angus MacLean, consultant trauma and orthopaedic surgeon, for the purposes of his report, dated 12 July 2013; (2) Mr I H Annan, consultant orthopaedic surgeon, for the purposes of his report, dated 22 October 2013; (3) Dr Colin Rodger, consultant psychiatrist, for the purposes of his report, dated 11 November 2013; and (4) Mr Coggins, consultant surgeon, for the purposes of an undated report prepared by him.

[38]      He was referred to a report, dated 5 January 2012, by Mr Marshall, the road traffic accident reconstruction expert, at para. 9.15, in which it was stated that, allowing for a reaction time of 1.4 seconds, (it being generally accepted that an alert driver, taken by surprise, would react within 1.4-1.9 seconds), a driver would have been able to stop from 60 miles per hour within a distance of 145 metres.  Even allowing for a reaction time of 2.5 seconds, a driver travelling at 60 miles per hour would require only 119.4 metres to stop, and at a speed of 65 miles per hour, a distance of 134 metres.  On that basis, the pursuer accepted that if his vehicle had been travelling at approximately 60 miles per hour or even 65 miles per hour, it would have been possible to stop within 145 metres, before impact.  In that context, and on that basis, he accepted that, since he had been unable to stop within the distance, it was reasonable to suggest that he had been travelling at a speed of about 70 miles per hour or greater.  Consistent with Mr Marshall’s observations at paragraph 10.5 of his report, the pursuer accepted that he had been travelling at such a speed that he had been unable to stop in the distance which he could see to be safe.

[39]      He accepted that it had been his decision to plead guilty to the contravention of section 3 of the Road Traffic Act 1988, but maintained that he had done so on the basis of the strong advice he had received.  Subsequently, another solicitor had indicated that he disagreed with the advice given at the time of the plea.  There had been some discussion about an appeal, but the pursuer had been unable to fund it.  Legal aid had not been available.  He felt demoralised by the legal proceedings.  He felt wrongly blamed for the accident and thought that it had contributed to his adjustment disorder.  He was preoccupied with a sense of injustice, and had accepted that he had overthought things. 

[40]      He confirmed that his position at the time of the proof was as set out in his police statement, given under caution:  that is, that he had seen the lorries neck and neck, had applied his brakes, his wheels had locked and his vehicle had then started to cross over the centre line.  He accepted that the distance to the refuse lorry, when he had first been able to see it, was about 145 metres.  He had checked his mirror, noticed the second, overtaking, lorry, looked for an escape route, decided the best option was to collide with the stationary refuse lorry, had slammed on his brakes, and had moved to the other side of the road.  He did not accept the suggestion that he may have negotiated the blind bend at a speed of about 80 miles per hour.

 

Mr Iain McArthur
[41]      Mr McArthur gave evidence as a forensic analyst who specialised in photographic and video enhancement techniques.  In particular, he had enhanced the available images of the two tyre marks found on the road at the accident site.  Having done so and having analysed the magnified images, his view was that each of the two tyre marks had been created by a different tyre.  He also carried out a process by which the trajectory of each tyre mark could be demonstrated, the result of which, in his view, was that one tyre mark, the second in relation to the pursuer’s direction of travel, was straight and the other, the first and nearest to the blind bend, was curved.  He maintained that in all of the procedures adopted by him, perspective had been preserved and that the original images had not been distorted.  He accepted that whether the line produced by a tyre mark looked straight or curved might be affected by the impact of distance and perspective.  In some of the available photographic images, a line which he knew to be curved, appeared to be straight.  If viewed from the side a tyre mark might appear to be straighter than if viewed from the end. 

 

Mr Steven Parkin
[42]      Mr Parkin gave evidence as an expert in road traffic accident reconstruction.  In his report, dated 6 June 2015, a synopsis of what he was being asked to consider, was set out at paragraph 2.1. It was that the pursuer had “proceeded round a left hand bend, and was confronted with a stationary Highland Council refuse lorry in the northbound lane and a flatbed lorry travelling north, which was overtaking the refuse lorry”.

[43]      He noted that in making the calculations of speed which they had, the police had taken into account both tyre marks, which had been measured as being of a combined length of 95 metres.  Having viewed the left hand blind bend and having considered all aspects of its depiction in the available photographs, he considered that it would have been safe to negotiate the bend at a speed of 60 miles per hour.  He personally would not have attempted to negotiate it at 80-90 miles per hour as, in his view, the level of danger, and the risk of leaving the road, would be increased significantly. 

[44]      He was familiar with the manner in which police investigations of road traffic accidents were conducted. The extent of the police investigation in this case, (carried out by PC MacAskill, together with PC Findlater), was not what he would have expected, although he subsequently accepted that, in Scotland, the police do not generally carry out a full road traffic investigation unless there has been a fatality.  He was critical of the reference in a police statement by PC Findlater to “rough measurements”, made in relation to the tyre marks found at the accident site.

[45]      On the basis of the photographic images available to him, his view was that, of the two tyre marks to be seen on the road surface, one was straight and extended to the point of impact, and the other, which was nearest the blind bend, was curved.  His view was that the line of travel of the curved tyre mark did not coincide with any projected extension of the straight tyre mark.  In other words, the line of the curved tyre mark would take a vehicle in a different direction from that of the straight tyre mark.  His concluded view was that it would not be possible for the same vehicle to have made both tyre marks.  In particular, the curved tyre mark could not have been made by the Mazda vehicle.  That view was reinforced by the different patterns of the two tyre marks.  The tread patterns of the tyres which had caused each tyre mark were different.  To that extent he agreed with Mr McArthur’s findings. 

[46]      He concluded that on the basis that the curved tyre mark could not have been caused by the Mazda, the speed calculations which have been carried out by the police must necessarily have been wrong. 

[47]      On the basis of the extent of the damage caused to the Mazda, it was reasonable to conclude, as PC McAskill had done, that the impact speed had been about 30 miles per hour.  Contrary to PC McAskill’s calculation, made on the basis of a total tyre mark of 95 metres, that the initial speed of the Mazda would have been 86 miles per hour, Mr Parkin’s own view, having considered the calculations by other expert witnesses in the case, was that the initial speed of the Mazda would have been of the order of 60 miles per hour. 

[48]      He accepted that, as a matter of generality, an average driver will tend to brake if he perceives danger ahead.  He accepted that from a distance of 145 metres, that being the distance from the exit of the blind bend to the stationary refuse lorry situated outside Braemore Square Country House, if travelling initially at 60 miles per hour or slightly less, and by simply braking, the pursuer’s vehicle would have been brought to a halt within that distance and prior to collision with the refuse lorry.

[49]      As to whether the first of the two tyre marks was curved or straight, in his view the best approach was to look at the line from one end to the other, rather than from the side.  The recorded appearance of a tyre mark, as to whether it was curved or straight, could also be affected by the details of the photography employed, such as the height of the camera or the distance of the camera from the tyre mark.  His impression was that the first tyre mark, nearest the blind bend, was curved.  The divergence of the two tyre marks meant that it was not possible for them to be related.  He accepted that the fact that the first tyre mark was curved could be influenced by the camber or superelevation of the road surface. 

[50]      He was referred to Rule 146 of the Highway Code: “Do not treat the speed limit as a target. It is often not appropriate or safe to drive at the maximum speed limit. Take the road and traffic conditions into account. Be prepared for unexpected or difficult situations, for example, the road being blocked beyond a blind bend …”.

[51]      In determining what the pursuer’s reaction time must have been, the suggested context was that he had reduced his speed from 60 miles per hour, when exiting the blind bend, to 30 miles per hour at the point of impact.  Mr Parkin accepted that in these circumstances, a calculation which involved taking into account the length of the vehicle’s resulting skid, and allowing for the distance of the line of sight to the stationary refuse lorry, on emerging onto the straight from the blind bend, as 145 metres, then, deducting the length of the skid from that distance of 145 metres, would indicate a reaction time distance of 98 metres.  At 60 miles per hour, that was equivalent to an available reaction time of 3.65 seconds.  On that basis, given the accepted normal range of reaction times, it was reasonable to conclude that the driver, the pursuer in this case, had either not been paying attention or had been driving initially at a speed in excess of 60 mph.  Mr Parkin agreed that, on the same basis, an initial speed of 70 miles per hour would produce an available reaction time of 3.13 seconds, a speed of 75 miles per hour would produce an equivalent reaction time of 2.92 seconds, and a speed of 80 miles per hour would produce one of 2.74 seconds, all of these times being in excess of the normal range.

 

Christopher Jason Harris
[52]      The evidence of Mr Harris, a witness for the third and fourth defenders, was interposed in the course of the pursuer’s case.  He had been on a cycling holiday with his brother-in-law and had left Ullapool, travelling towards Inverness, on the day of the accident.  As they had approached the blind bend immediately prior to the accident site, the two cyclists had been overtaken by two cars travelling at speed and passing close to them.  One of the cars had been a Porsche.  He adopted the content of his police statement, to the effect that a Mazda and Porsche had gone speeding past, passing very close to the cyclists as they did so, at around 70 miles per hour. 

[53]      Mr Harris had been a driver since 1997.  His quoted speed of the two vehicles, as being 70 miles per hour, was his best estimate.  He had no reason to change that.  The Mazda had braked late as it approached the blind bend and had entered the opposite side of the road.  He had particularly noticed that the Mazda’s brake lights had not become illuminated until very late as it approached the corner.  When the two cyclists had rounded the blind bend, the collision had happened.  As the cars had been entering the blind bend, the Mazda had been ahead of the Porsche.  Both of the cars had braked late.  He thought that both of the cars had entered the bend from the wrong side of the road, and that it appeared as if they were racing.  They had been tailgating each other at extreme speed.  Both cars had entered the corner in the same manner.  

[54]      He was unwilling to accept that he may have overestimated the speed of the two vehicles.  When referred to calculations which indicated the initial speed of the Mazda, on exiting the blind bend, to be 55-60 miles per hour,  he thought it possible that the two vehicles, having overtaken him and his brother-in-law at about 70 miles per hour, may well have slowed down to 50-60 miles per hour in order to negotiate the bend.  He maintained his position that the vehicles were travelling at 70 miles per hour when they overtook the two cyclists. 

 

Dr John Searle
[55]      On resuming the pursuer’s case, Dr Searle gave evidence as an accident reconstruction expert.  He had visited the accident site, had taken photographs of his own, and spoke to the road layout, the road markings and their significance. 

[56]      He calculated the length of the second, straight, tyre mark leading to the impact point, as 27.4 metres.  In his view it had been formed by the offside wheel of the Mazda vehicle.  That was consistent with the small frontal overlap apparent in the collision between the Mazda and the refuse lorry.  At impact, only the offside front of the Mazda had collided with the front of the refuse lorry. If the mark had been caused by the nearside wheel of the Mazda vehicle then the impact would have been fully frontal.  It was as a consequence of the narrow small frontal overlap between the two vehicles that the Mazda had swung around in the way that it did it immediately on impact. 

[57]      In so far as the first, curved, tyre mark was concerned, that had been caused by the nearside wheel of a vehicle.  Were that not the case then nearly half of the vehicle which had caused it would have been on the verge by the roadside.  He had noticed no tyre marks or track marks on the verge.  That first tyre mark was less than a metre from the verge on the Inverness-bound carriageway.  He concluded that this first tyre mark had not been made by the Mazda since the point of direction at its end was inconsistent with the line of direction of the second, straight, mark.  He also considered that there was nothing otherwise to suggest that the two tyre marks were related.  It was improbable that the first could have been made by the nearside wheel, and the second by the offside wheel, of the same vehicle.  Further, in order for them to have been created by the same vehicle, it would have been necessary, having regard to the different direction of travel of each, for the vehicle to have been manoeuvred accordingly. The S-shape manoeuvre which would have been necessary would only have been possible at low speed, considerably less than the 60 miles per hour initial speed under consideration.  Since the first tyre mark had not been caused by the same vehicle as the second, any calculation deriving an initial speed based on the combined length of the two tyre marks was unlikely to be accurate.  The two tyre marks had been caused by two different vehicles. 

[58]      Although he recognised that in circumstances where only one wheel was locked there may be some residual steering capacity, he did not think it likely that the pursuer would have been able, deliberately, to steer the driver’s side of the Mazda on to impact with the refuse lorry in the last seconds of the incident.  In his view, as a consequence of the nature of the impact between the two vehicles, the reality was that the Mazda was always going to be positioned in that way, in any event.  The direction of travel of the tyre mark which led to the impact point gave no indication of any deviation from a straight line. It might have been possible to steer the vehicle immediately prior to impact, when the pursuer had stopped braking, but the minimal period of time involved would have made that unlikely. 

[59]      Dr Searle was also critical of the speed calculations carried out by PC MacAskill.  His own calculation indicated a vehicle speed, at the start of the second, straight, skid mark of 53-55 miles per hour.

[60]      Dr Searle’s view was that the driver of the overtaking lorry would not have required to carry out that manoeuvre if the refuse lorry had not been stationary where it was .  He was aware that, in the past, there had been the opportunity to collect the bins from Braemore Square Country House by leaving the road completely.  In his report, dated 13 January 2014, at  paragraphs 10.2-10.3, he summarised the relevant constraints, subject to exception, in terms of  regulation 26(2) of the Traffic Signs Regulations and General Regulations 2002:

“Stopping alongside a double white line is in general prohibited …. .  However sub-paragraphs (3) and (4) provide an exception, in that a vehicle may stop to enable goods to be loaded or unloaded, but only if the vehicle cannot be used for such a purpose without stopping alongside the double white line”.

 

[61]      He accepted that when the driver of the flatbed lorry was situated behind the refuse lorry, prior to overtaking it, he would have had a view of the road ahead as far as the blind bend.  That was consistent with the third defender’s police statement, to the effect that, having been waved through by the men working on the refuse lorry, he was alongside the refuse lorry when he saw the Mazda emerging from the blind bend.  He agreed that the third defender’s statement was consistent with that of the pursuer who, in terms of his police statement, had indicated that when he first saw the flatbed lorry it was neck and neck with the refuse lorry.  

[62]      In his opinion, the Mazda had collided with the front of the refuse lorry just as the tailgate of the flatbed lorry was passing it. He considered that the distance between the point where the flatbed lorry had stopped after the accident, and the impact point, suggested an overtaking speed of 20 to 30 miles per hour. 

[63]      Under reference to judicial observations in the cases of Cronie and Ors. v Messenger and Kelly, Outer House, Court of Session, 25 June 2004, and Little v Glen 2013 CSOH 153, Mr Searle accepted that, in his role as an expert witness, he had been the subject of criticism in the past, in relation to matters bearing on his credibility and objectivity, and in relation to adopting the role of advocate in his client’s cause.

[64]      He accepted that if the first tyre mark was not made by the Mazda, but that the pursuer had been braking before the second, straight, tyre mark, any calculation of his initial speed would depend on the intensity of that initial braking.

 

Edwin Hughes
[65]      Mr Hughes was the previous owner of Braemore Square Country House.  Following the accident, he had spoken to the men who worked on the refuse lorry and suggested to them that they could drive their vehicle through the entrance of his property into the driveway, in order to collect and empty the wheelie bins.  He had done so because he had been concerned about the speed of vehicles passing on the stretch of road outside his property, and because he had a related concern for the safety of the refuse operatives who required to stand in the road.  Some four to five years later however, in January or February of 2016, the local authority had stopped the practice and had reverted to the collection of the wheelie bins while the refuse lorry was stationary at the roadside.  Prior to the change following the accident, the bins had been left at the entrance to his property.  In general, as was now again the case, it took only about one minute for the bins to be emptied.

[66]      He explained that when returning from Ullapool he routinely simply lifted his foot from the accelerator as he rounded the blind bend.  By doing so, and without braking, his speed would drop to that appropriate to turn into the entrance of Braemore Square Country House.

 

James Elliot
[67]      Mr Elliot was a retired policeman and was Mrs Booth’s elder brother.  When the accident happened she had contacted him, and he had travelled to visit her in hospital, in Inverness.  At that time she had described the accident to him, as she recollected it.  Two days later he himself had visited the site of the accident.  He had taken photographs.  She had told him that the pursuer had rounded the blind bend, and had seen the refuse lorry stationary on the other side of the road.  The pursuer had realised that another vehicle, the flatbed lorry, was overtaking the refuse lorry on his side of the road.  She had been shocked.  The pursuer had tried to avoid the oncoming flatbed lorry but had been unable to avoid hitting the refuse lorry.  There had not been enough time for him to stop. 

 

Leslie Ross
[68]      Mr Ross was a waste management foreman, employed by the second defenders, and based in Alness.  He was responsible for the day to day running of refuse collection and for the safety of the crews of the refuse lorries used for that purpose.  He supervised the drivers and refuse collectors.  His principal responsibility was that their duties should be carried out safely and, to that end, risk assessments had been developed and were applied generally to all routes.  In the first place, the crews carried out risk assessments and, in the event of any concern, Mr Ross or other managers of his seniority would inspect and assess the particular situation.  After review, all assessments were maintained with council records.  He had 10 years’ experience as a foreman and was familiar with the stretch of road between Ullapool and Inverness where the accident had taken place. 

[69]      On the day of the accident he had gone immediately to the accident scene and had arrived some two hours after the impact.  The refuse lorry had stopped at the kerbside in order to collect the bins which were presented for collection there.  There was a recommendation in place to the effect that use should be made of any “pull-in” or lay-by, where available.  It was recognised that the recommendation was in place because it was safer for a collection to take place off-road.  Against that, there was a clear direction to crews not to enter private property.  Although, after the accident, it had become the practice for the refuse lorry serving the needs of Braemore Square Country House to pull into the driveway in order to collect the bins, that practice had ceased at the beginning of 2016.  The terms “pull-in” and lay-by had technical meanings.  The access to the driveway of Braemore Square Country House did not fall within the ambit of either a pull-in or a lay-by.  Rather, it involved accessing private property which the council would not authorise.  In terms of their technical meaning, neither a pull-in nor a lay-by could be part of private property.  The practice of accessing the driveway was stopped, following an assessment, because of the difficulty in the refuse lorry accessing the driveway, or leaving it, without crossing the centre line of the road onto the opposing carriageway.  On an objective risk assessment, the safer option was for the bins to be collected at the roadside.  As a matter of course, council refuse lorries stopped at the roadside on all routes.  The practice at Braemore Square Country House had been changed when the council became aware of what had been happening in the intervening period since the accident.  Mr Ross had previously worked on the route that served Braemore Square Country House.  In the past, he too had stopped on the roadside at the entrance of the property in order to collect the bins, and had never had any concern about the practice.  There was sufficient room before the blind bend for drivers to see a refuse lorry and be safe to pass.

 

Jack Marshall
[70]      Mr Marshall, of Incinalysis Ltd., gave evidence as an expert in the investigation and reconstruction of road traffic accidents.  He had been instructed by Mr Chapman, the pursuer’s solicitor in Inverness in connection with the prosecution.  He had been concerned from the outset that not all the relevant information had been made available.  There had been an absence of police photographs and an absence of any scale plan of the accident locus.  As a result, it had not been possible to have a proper overview of what had happened and to make appropriately accurate calculations.  There had been an absence of physical evidence on which he could provide advice.  He had indicated his concerns in that regard.  His advice had been that the speed calculation carried out by the police, producing an initial speed of 86 miles per hour, should be challenged vigorously in court. 

[71]      In early 2012, he had been present at Dingwall Sheriff Court when the pursuer’s plea had been tendered, and had spoken to the pursuer afterwards.  The pursuer had been fined £350 and his licence had been endorsed with 5 penalty points.  There had been some discussion about an appeal.  His view had been that the police investigation had been incomplete.  Although there had been a benefit in securing the acceptance of a reduced plea, the pursuer had been upset about the outcome. 

[72]      In considering the question of an appropriate reaction time, he had accounted for two hazards which had confronted the pursuer.  The first hazard was that of the stationary refuse lorry, and the second had been the overtaking lorry, when he became aware of it. 

[73]      He confirmed that in a situation where a vehicle’s wheels were locked, it would not be possible to steer.  In that regard, in so far as the pursuer maintained that, in the very last seconds before impact, he had turned his vehicle driver’s side on, to collide with the front of the refuse lorry, that simply could not have happened if full braking was being undertaken at the time.  

[74]      Resuming his evidence in chief, at the second continued diet, he confirmed that, because at the time of the impending trial, he had not had sight of the photographs now available, he had been unable to locate the tyre marks when visiting the locus, to identify the start and end point of each mark, to take measurements, and thereby to calculate a vehicle speed based on the tyre mark evidence.  He had been otherwise unable to assess the police investigation findings.  He was critical of the police investigations carried out at the time.  He would have expected PC MacAskill to have produced a sketch plan indicating all relevant positions of the physical evidence, including the tyre marks.  Having seen PC MacAskill’s notes, as set out in his notebook, he was critical of the methodology employed, the fact that, expressly, only “rough measurements” had been taken, and that, in particular, although speed had been calculated on the basis of both tyre marks, the position of the tyre marks, relative to the impact point, had not been recorded for that purpose.  Apart from the length of the two tyre marks taken together, and an assumed collision speed of 30 miles per hour, PC MacAskill had not taken any other factors into account.  On that basis PC MacAskill had calculated speed at the beginning of the first tyre mark to be 86 miles per hour.  Mr Marshall’s view was that, for a front seat passenger, such a speed would be “quite noticeable”.  There would be a definite impression of speed. 

[75]      Viewing available photographs of the two tyre marks, he confirmed his view that they had not been produced by the same wheel.  He considered the first, curved, mark to have been produced by a nearside front wheel, and the second, straight, tyre mark to have been produced by the offside front wheel of the Mazda.  The two marks had not been created by the same vehicle.  They were unconnected. 

[76]      Under reference to Dr Searle’s report, he agreed generally with the calculation methodology employed by Dr Searle, and with the resulting calculation of an initial speed of 55 miles per hour.

[77]      He confirmed that a driver’s reaction time to a normal non‑emergency situation would be different to his reaction time in an emergency situation.  Further, a chain of priority decisions might extend the reaction time.

[78]      On the hypothesis that the pursuer had rounded the blind bend at a speed of about 60 miles per hour, had noticed the stationary refuse lorry and that it was parked, and had looked in his rear view mirror, his recognition of that situation would constitute a first reaction, probably at the quicker end of the scale.  Thereafter, when the pursuer noticed the oncoming flatbed lorry, that would constitute a second reaction.  Throughout that process, the pursuer’s vehicle would be travelling forwards, given a speed of 60 miles per hour, at a rate of 27 metres per second.  The total distance available to him from first sight of the bin lorry to the impact point was 145 metres.  Mr Marshall considered that noticing the bin lorry and then looking in the rear view mirror would not constitute an emergency situation.  On that basis, if, in that respect, his total reaction time was 1.5 seconds, his vehicle would have covered a distance of 40.5 metres.  His sight of the second, overtaking, lorry would have extended the initial reaction time.  Thus extended, his reaction time would have been greater than 1.4 seconds, up to about 1.9 seconds, or possibly longer than 1.9 seconds.  There was no hard and fast rule.  Reaction time depended on the personal characteristics of the individual concerned, the level of attention being paid, and the possibility of other distractions inside the vehicle.

[79]      Under reference to his own report, dated 5 January 2012, he confirmed that, from an initial speed of 60 miles per hour, and factoring in a reaction time of 1.4 seconds, the pursuer could have stopped within the available distance of 145 metres.  An increased reaction time, however, would increase the minimum stopping distance, since the vehicle would take longer to stop.  If, for instance, the driver was not paying full attention, he would take longer to stop.  The matter was entirely dependent on the prevailing circumstances.  In terms of his report, at paragraph 9.16, he had noted that a reaction time of 2.5 seconds was not an unreasonable one for a driver who required to make a double decision.  On that basis, from an initial speed of 60 miles per hour, the pursuer’s vehicle could have been brought to a halt within 119.4 metres. 

[80]      On the basis that the refuse lorry had been stationary at a point beyond the entrance to Braemore Square, on the Ullapool side of it, rather than adjacent to it, Mr Marshall’s view was that, in the context of the accident, (1) the overtaking distance of the flatbed lorry had been reduced, and (2) there was less distance within which the pursuer could come to a halt.  Equally, he conceded that if the refuse lorry had been stationary beyond Braemore Square, and nearer to the blind bend, the pursuer would have seen it earlier as he rounded the bend. 

[81]      Being stationary on the solid white line on the edge of the carriageway had constituted a hazard.  In Mr Marshall’s view, the refuse lorry should have left the road in order to collect the bins from Braemore Square. 

[82]      When shown video footage of a refuse lorry entering Braemore Square, he indicated no concerns about the manoeuvre.  There was no danger arising from the manoeuvre so far as he could see.  On that basis, turning into Braemore Square was a safer option than stopping on the carriageway edge.  When shown footage of a refuse lorry turning into Braemore Square, but in doing so encroaching onto the oncoming carriageway, he indicated that he could understand why it was that a driver would approach the manoeuvre in that way, but in his view that approach was unnecessary.  The manoeuvre could be carried out without encroaching on the oncoming carriageway and that was the safest option of the alternatives available.  In cross-examination, on further examination of the video footage of the refuse lorry turning directly into Braemore Square, he conceded that the offside rear of the lorry might have crossed the centre line, and that it was possible that, as part of the manoeuvre, the refuse lorry had crossed part of the pavement.  He did not consider that a long reversing manoeuvre, necessary in circumstances where the refuse lorry was within the grounds of Braemore Square, was a dangerous manoeuvre in circumstances where children might be present.

[83]      Shown video footage of a refuse lorry exiting from Braemore Square, in the course of which the lorry required to cross the centre line of the road and encroach onto the oncoming Inverness-bound lane, he conceded that the manoeuvre constituted a hazard.  The danger was increased by the fact that the manoeuvre required to be carried out by the refuse lorry at slow speed. 

[84]      Under reference to his own report, he confirmed that emergency reaction times for an alert driver, lay in the range 1.4 – 1.9 seconds.  At 75 miles per hour, employing a reaction time of 1.4 seconds the vehicle would stop within 132 metres where maximum breaking was achieved.  At 60 miles per hour, on the same basis the relevant distance was 92.56 metres.  Of all the examples set out by Mr Marshall in his report, by way of illustration of stopping distances and their correlation with reaction time and speed, he conceded that in the situations considered by him, the pursuer would only have failed to stop before the impact point if he had been driving at 70 miles per hour and had a reaction time of 2.5 seconds.  If he had been driving at 60 miles per hour, on the same basis, the pursuer would have stopped within 119.4 metres, in advance of the impact point of the accident.  He confirmed that in his view, in the circumstances of the accident, a reaction time of 2.5 seconds was a reasonable estimate. 

[85]      In relation to the curved skid mark, he conceded, that on analysis, the lateral movement involved in the creation of the mark had been small.  The extent of the arc of the curved tyre mark was small, possibly less than 1 metre.  He conceded that the tyre mark, if viewed from above, would look straighter than it did in the available photographs.  The image was affected by the type of lens used and the resultant impression of perspective.

[86}      In relation to reaction times, he confirmed that there were a number of variables to be taken into account, including (1) the initial perception, (2) the perception of the situation as a hazard or not, (3) the physical reaction, and (4) the time taken in braking until the wheels locked.  The state of the driver’s alertness was highly relevant.  Despite being challenged on the matter, he maintained that the gravity of the danger had an impact on reaction times.  Every situation was different, and individuals varied in their responses.  He considered that the stationary refuse lorry, as the pursuer approached it travelling towards to Inverness, had not presented a hazard to him.  It was not a danger in itself, but rather a potential hazard.  The danger had been created by the overtaking flatbed lorry. 

[87]      He considered the curved tyre mark to be unusual.  It was mark which could not normally be created by a locked tyre.  A curved skid mark was an unlikely phenomenon.  The curve mark did not line up with the straight tyre mark.  The two tyre marks were not connected. 

[88]      On the basis that the stationary refuse lorry had not itself constituted a hazard until the subsequent overtaking manoeuvre, involving the flatbed lorry, had commenced, Mr Marshall conceded that the likely reaction time referable to perception of the overtaking lorry, would have been very fast, because an alert driver would have been anticipating the possible hazard constituted by such a manoeuvre.  He conceded that if the pursuer had rounded the blind bend at a speed of about 55-60 mph and, at that point, had seen the two lorries “neck and neck”, he could have applied his brakes and stopped before the impact point, even allowing for a relatively long reaction time.  Even at 70 miles per hour, with a reaction speed of 2.5 seconds, the effect of the accident would have been minimal because, on the basis of the appropriate calculation, by the time of impact, the speed of the pursuer’s vehicle would have reduced to a level which was comparatively low.

[89]      In agreeing with the calculations by Dr Searle, which had produced an initial speed of 55 miles per hour, he confirmed that an impact speed of 30 miles per hour had been taken into account.  He also confirmed, however, that if an impact speed of 45 miles per hour was taken into account, then, on the same basis, the corresponding initial speed would be 70 miles per hour.

[90]      In the context of the illustrations of stopping distances for given speeds and reaction times, set out in his own report, he accepted that, travelling from Ullapool at a speed of, say, 55 miles per hour, if, at the blind bend, a driver had simply taken his foot off the accelerator and allowed the incline of the road to slow his vehicle down to a speed appropriate to turn into Braemore Lodge, then, on the basis that the appropriate speed for that manoeuvre would be 5‑10 miles per hour, there would be a reduction in the vehicle speed of 45-50 miles per hour.  On that basis, if a driver also braked when exiting from the blind bend, then to be travelling at a speed of about 5 to 10 miles per hour at the entrance to Braemore Lodge, the initial speed must have been more than 55 miles per hour and probably more than the legal limit.

[91]      Although Mr Marshall was critical of the driver of the refuse lorry for allowing his vehicle to be stationary where it was, he was prepared to accept the evidence of Mr Parkin, to the effect that when he himself drove round the blind bend at 60 miles per hour, he was able to stop without difficulty within the available distance to Braemore Lodge. 

[92]      In relation to the intended prosecution of the pursuer, he confirmed that he had had concerns about the case and that he had thought that the pursuer had not been treated fairly by the police.  He considered that others should also have been reported to the procurator fiscal.  He was critical of the police.  He had considered that the police had not properly investigated the case and had not reported it appropriately.  Notwithstanding that, in relation to the plea in fact tendered by the pursuer, it had been significant that in Mr Marshall’s opinion, the pursuer had been unable to stop in the distance which he could see to be safe.

[93]      Under reference to past criticisms which had been made of him as an expert witness notably in the case of McCusker v Cunningham and Glen 2008 CSOH 32, and in an English case, Akehurst v Balfour Beattie Power Networks Limited & ABB Limited (Claim No. 7AL00061), heard in Carlisle County Court, he accepted that he had been described in the past as becoming too involved, contrary to the standards expected of an expert witness, to the extent of becoming an advocate for his client’s cause.  He disagreed that in this case, he had allowed his former experience as a policeman to come to the fore to the extent that, through sympathy for the pursuer, he had taken on the role of his advocate.  He maintained that his criticisms of the police were justified.

[94]      He confirmed that at the time of the intended prosecution, he had considered the pursuer to be guilty of at least a contravention of section 3 of the Road Traffic Act 1988 on the basis that he had not been able to stop in the available distance which he could see to be safe.  In that respect, the outcome of the prosecution had been consistent with his analysis of all the available evidence.

[95]      He accepted that given the warning signs in place on the approach to the blind bend, including a hazard sign indicating the presence of a bend, the word “SLOW” painted on the road surface, and a hazard sign indicating the possible presence of slow lorries approaching, the combined nature of those advance warnings was such that a driver ought to have been particularly attentive.  In circumstances where the pursuer had indicated that he appreciated, at the time, that the blind bend had a reputation for being a dangerous one, Mr Marshall accepted that it was reasonable to assume that the pursuer would have taken reasonable care and could have been expected to pay heed to the warnings, not least since he knew of the dangerous aspect of the bend. 

[96]      He confirmed that, when at the accident site, the pursuer had told him that his speed, at the blind bend, had been less than 60 miles per hour.  He also confirmed that if he had had the information which was available to Dr Searle, then he probably would have arrived at the same initial speed figure, 55 miles per hour, on the basis of the same calculations as Dr Searle had employed.

[97]      He also confirmed that, when at the accident site, the pursuer had informed him that his wheels had first locked on the apex of the blind bend, while he was in his own lane,

Inverness-bound.  On that basis, Mr Marshall conceded that the pursuer must have contemplated braking at a point in advance of the apex of the blind bend.  At an assumed speed of 60 miles per hour, and employing a reaction time of 1.4 seconds, the pursuer must  have reacted at a point 40 metres in advance of the apex of the bend.  That would have been the point at which the pursuer must have taken his first steps to commence braking.  Under reference to a scale plan of the accident site, including the blind bend and its approach, Mr Marshall conceded that at that point, 40 metres in advance of the apex of the blind bend, it would not have been possible for the pursuer to have seen the stationary refuse lorry.  Although Mr Marshall was of the view that the scale plan gave a false impression of the arc of the blind bend, in that it had in effect straightened it out beyond the reality of the situation on the ground, he conceded that had the arc of the bend been accurately depicted on the scale plan, then, on that basis, it would have been even less likely for the pursuer to have been able to see the stationary bin lorry at the point where he commenced braking.  On this hypothesis, the pursuer had begun to brake in relation to something which he could not yet see.  That situation, however, was consistent with what the pursuer had told Mr Marshall at the accident site, and with what the pursuer himself had stated, in relation to his wheels locking first on his own side of the road, in the written description of the accident prepared by him in hospital, and in his statement to the police, made under caution.

[98]      Under reference to a photograph taken 175 metres towards Ullapool from the impact point, it was not possible from the position of the photographer to see the entrance to Braemore Square.  On the basis of what the pursuer had told Mr Marshall, the point at which the pursuer had first begun the process of braking was 10 metres even further towards Ullapool.

[99]      He accepted that in circumstances where the stationary refuse lorry did not, itself, constitute a hazard, and where a driver was alert to the possibility of another possible hazard, that the period involved in noting the overtaking flatbed lorry could have been of the order of 0.3 seconds, equivalent to the time it would take to blink.  On that basis, he confirmed that in contemplating a scenario of a double decision-making process for the purposes of his own report, his selection of a reaction time of 2.5 seconds had really been simply an illustration of the extension of reaction time.  Applying a second reaction time of 0.3 seconds to the generally accepted range of a first reaction to an emergency situation (1.4 – 1.9 seconds), would produce an overall reaction time in the range 1.7 – 2.2 seconds.

[100]    On the basis that total stopping distance was the sum of the effect of reaction time and braking distance, Mr Marshall was asked to calculate the reaction times apparent from his own calculations in his report.

[101]    On the basis of these calculations, and allowing for a distance of 145 metres from the point of first perception of the bin lorry to the impact point, if the pursuer had begun braking at a speed of 60 miles per hour, then in order to reduce his speed over that distance to the assumed impact speed of 30 miles per hour, the pursuer’s reaction time would have been 3.84 seconds. 

 

Mark Di Rollo
[102]    Mr Di Rollo had a brother who lived at Leckmelm, whom he had been visiting in May 2010.  On the morning of 6 May 2010, he had set off from his brother’s home, driving on the A835 road to Inverness.  He was driving a Porsche 911. After only two or three minutes, by the time he had reached a point approximately halfway between Leckmelm and Braemore, near the entrance to the Beinn Dearg walk, he had overtaken two or perhaps three vehicles and was conscious of another vehicle, a Mazda, following him as he did so.  At that point he had found himself following a camper van, probably travelling at about 55 miles per hour.  He was aware that the driver of the Mazda behind him appeared to have the intention to overtake his vehicle.  Mr Di Rollo, at that point, was travelling at a speed which was as fast as he thought appropriate. In view of the road conditions at that point, he had not felt comfortable, and did not consider it safe, to overtake the camper van.  Accordingly he remained behind it.  However, at that point, the driver of the Mazda then overtook him, and, as he subsequently stated to the police, kept going, at speed. 

[103]    He denied having been racing, or tailgating the Mazda.  He had been aware of the Mazda following him as he moved through the traffic in the direction of Inverness.  The Mazda had been travelling quite close to his car.  At that time, Mr Di Rollo was travelling at 60-70 miles per hour, sometimes faster.  He estimated that, when the Mazda had overtaken his vehicle, it was travelling at about 80 miles per hour.  Once the Mazda had overtaken his car, it pulled away.  At one point, he no longer had sight of it. 

[104]    Having himself overtaken the camper van, Mr Di Rollo was travelling at a speed of 65-70 miles per hour, and sometimes more.  As he approached the accident scene the Mazda was not in sight in front of him.  As he rounded the blind bend, the accident scene was before him.  He saw the stationary refuse lorry on the other side of the road, and the flatbed lorry parked in front of it.  The Mazda had slewn into the stationary refuse lorry.  At the bend, his speed had been about 55-60 miles per hour.  He had required to brake hard in order to bring his vehicle to a stop. 

[105]    He positioned his car on the same carriageway as the stationary refuse lorry, between it and the flatbed lorry.  Two of the council workers from the refuse lorry appeared to be attempting to assist the driver of the Mazda, who was the only person in the car, but his door appeared to be jammed shut.  At that time there were no police at the scene.  He phoned his brother to come, as he knew him to have first-aid expertise.  In due course a helicopter arrived, and then the police, who subsequently took statements from those present.

[106]    At the point when Mr Di Rollo rounded the blind bend, the accident had already happened.  His estimate was that it appeared to have happened two to three minutes before. 

 

PC George MacAskill
[107]    PC MacAskill had 29 years’ service as a police officer, 19 years of which was in the traffic department, and the last 8 years in the collision investigation division.  He had undergone training in the reconstruction of road traffic accidents, and had acted as an instructor in that regard.  On arrival at the accident scene, he had been briefed by local officers as to the circumstances of the accident.  At that time, in 2010, the police carried out a full road traffic accident investigation only in fatal cases, or in cases likely to prove fatal as the result of life‑threatening injuries having been sustained. 

[108]    His role had been to measure the tyre marks apparent on the road surface and to calculate the speed of the Mazda.  He had noted that the tyre marks commenced on the Inverness-bound lane on the blind bend, and continued to the position of the Mazda at the impact point.  He was very clear, based on his experience and the clear marks on the road, that the tyre marks had been caused by the Mazda.  There were skid marks and shadow marks, the latter being faint tyre marks to be found either prior to a skid mark or after its end, and caused by a tyre scrubbing the road surface before sufficient heat was built up to cause a skid mark.  The marks he noted comprised both tyres marks and shadow marks, but the marks ran continuously, from their commencement at the blind bend, to the Mazda at its position at the impact point.  He had considered that the curved tyre mark had been caused by the nearside rear wheel of the vehicle, and that the straight tyre mark had been caused by its front offside wheel. 

[109]    He had taken photographs of the accident scene with his mobile phone.  He had measured the distance of the tyre marks, from their commencement, to the rear of the Mazda where it rested after impact and then, after the Mazda had been removed, he had added the length of the car.  In order to measure the tyre marks, he had located the point of their commencement and had measured them with a 100 meter tape, assisted by PC Graham Findlater.

[110]    The resultant calculations on the basis of his measurement of the tyre marks, produced an initial vehicle speed, in respect of the Mazda, of 86 miles per hour.  He confirmed that he stood by that calculation as an accurate one.

[111]    In his estimation, it would have been possible to negotiate the blind bend travelling on the Inverness-bound lane, at a speed of about 100 miles per hour, in dry conditions, without losing control. 

[112]    He confirmed that he had measured the length of the sight line of a driver negotiating the blind bend, on the Inverness-bound lane, to the stationary refuse lorry, as being 145 metres. 

[113]    He confirmed that the tyre marks which he had measured were continuous, running from their commencement at the blind bend to the position of the Mazda at the impact point.  The photographs which he had taken, with his mobile phone, were not intended to record the position or nature of the tyre marks, but rather simply to provide images of the whole accident scene.  He had recorded the tyre marks by using a tape measure. 

[114]    He accepted that, although he had looked closely at the skid marks on the road, he had not taken close-up photographs of any of them.  He had not plotted the tyre marks on a scale plan.  He had not checked to see if the pattern of the skid marks matched the tyre tread of the Mazda’s tyres.  He had not considered any of that to be necessary, as there had been continuous tyre marks which ended at the rear of the Mazda.

[115]    Under reference to other photographs of the scene, he conceded that there did appear to be an obvious gap between the curved tyre mark and the straight tyre mark. 

[116]    He explained that the reference in his police statement to the accident having occurred “head on”, was a reference to the fact that the two vehicles had been travelling in opposite directions, rather than as a measure of the frontal overlap of the two vehicles. 

[117]    He explained that the starting point from which he had taken his measurements was a shadow mark not depicted in the available photographs.  It was put to him that, in his police statement, he had not included the fact that his measurements had included shadow marks.  His response was that he had not recorded everything in his police statement.  When it was put to him that he had not properly and accurately collated all the available evidence at the accident scene, he responded that his role had been simply to calculate the initial speed of the Mazda.  He had collated the evidence necessary to support a calculation of speed.  He did concede that he had not properly recorded the nature of the tyre marks, and that had he done so it would have been of assistance to others considering the available evidence.  He was not prepared to concede that he may have made a mistake in his conclusion that the straight tyre mark and the curved tyre mark had been caused by the same vehicle.  He maintained that his recordings of the tyre marks had been accurate.  In that regard he explained that PC Findlater’s statement to the effect that he had taken “some rough measurements” was a reference to the fact that a measuring tape had been used rather than a laser theodolite.  He accepted that, on the photographs which he was shown, there appeared to be a clear gap between the two skid marks, but did not accept that they had been caused by different vehicles.

 

Discussion
[118]    Counsel for each of the parties lodged written submissions which, together with the submissions made at the bar, I have taken fully into account in what follows.

 

The Evidence of the Pursuer
[119]    My impression of the pursuer as he was giving evidence, now confirmed on review of his evidence in the context of the whole evidence in the case, was that, throughout the three and a half days which he spent in the witness box, he was at pains to put forward only a version of events designed, in the context of his conviction, to exonerate him from blame, and to provide an explanation for his failure to stop over a distance which, on the face of it, was adequate to allow him to do so.  Whether that was deliberate on his part, or excusable in the light of his own personal circumstances, I regard the pursuer’s account of the accident, given the evidence from other witnesses, as one involving a significant degree of historical revisionism.  In the course of submissions for the defenders, he was described as being melodramatic, narcissistic, self-centred and delusional.  He described himself at various times as having learning difficulties, being stupid, being an alcoholic, and suffering from dyslexia which affected his memory.

[120]    In my assessment, he was not forthcoming as a witness, and indeed at times his answers could be described as having been evasive.  He frequently did not answer questions directly.  His evidence was often confused and self‑contradictory.  He came very close to prevarication.  My clear impression was that, throughout his evidence, he tailored his answers to questions so as to give what, in his assessment, was the response best suited to his interests.  He adjusted what was his apparent initial recollection to take account of information subsequently given to him.  In answering questions put, he appeared to substitute assumption for direct recollection.  More generally his evidence appeared not to comprise his primary recollection, but rather a set of purported facts and assumptions based on information received by him since the date of the accident, which bore on the outcomes of attempts to reconstruct aspects of the accident in the course of the preparation of his case.  I regret to say that, at the very least, I found him to be lacking in objectivity, somewhat self‑centred in his interpretation of the relevant events, and selective in putting forward a narrative which he thought it appropriate to present.  At one point, he volunteered that inconsistencies in his evidence were due to the fact that in the years since the accident he had been “over-thinking” what had taken place.  In relation to the version of events given by him in the course of his evidence in court, I did not find him to be a reliable witness. 

[121]    A significant part of the pursuer’s case was the explanation of his failure to bring his vehicle to a halt before impact with the refuse lorry, in circumstances where the available stopping distance should have been sufficient, had he been travelling at his claimed speed of about 55 miles per hour.  That explanation was based on a structured analysis, by the pursuer, as to what he saw and how he reacted on rounding the blind bend.  On his account, he first saw the refuse lorry, stationary on the opposite carriageway, braked slightly, looked in his mirror, then saw the flatbed lorry overtaking the refuse lorry, and then reacted to effect emergency braking which resulted in his vehicle crossing the centreline of the road onto the opposing carriageway.  On the basis of that structured analysis, expert evidence was led on his behalf as to the likely total reaction time which would have elapsed before his braking took effect.  The fact that the analysis identified multiple events, involving various degrees of perception and reaction, provided a basis on which it could be said that the resulting cumulative delay before emergency braking took effect, and the corresponding distance travelled by his vehicle during that time, reduced the stopping distance available to him to the extent that he was still travelling at 30 miles per hour at the point of impact. 

[122]    That analysis, however, was not consistent with other evidence in the case.  When it was put to the pursuer that, prior to giving evidence, he had never mentioned to anyone, not least the police, that he had looked in his mirror, the pursuer was unable to explain convincingly how that might be.  More particularly, there was a significant body of evidence to the effect that, as the pursuer rounded the blind bend, he was confronted immediately by the flatbed lorry already in the course of overtaking the stationary refuse lorry.  That was the effect of the evidence of Mrs Booth.  Additionally, there was evidence of the pursuer himself describing events in that way, on a number of earlier occasions, much closer to the time of the accident than the diet of proof.  That account, that on rounding the blind bend the pursuer was confronted immediately by the two lorries, in effect side by side, and blocking his path, was given by the pursuer to Mr MacLean, Mr Annan, Dr Rodger and Mr Coggins, for the purposes of their reports.  When asked about the accounts set out in these reports, the pursuer confirmed in evidence that they were correct.  That account was also set out in the document prepared by the pursuer himself, entitled “Steven’s accident description”.  That account was also consistent with the content of the third defender’s police statement, to the effect that his vehicle, the flatbed lorry, was alongside the refuse lorry when he saw the pursuer’s car come round the blind bend.

[123]    On this significant aspect of the pursuer’s case, I reject his evidence of seeing first the refuse lorry, braking slightly, looking in his mirror, and only then seeing the flatbed lorry.  Rather, I find that, as the pursuer rounded the blind bend, he was immediately confronted by both lorries positioned side by side. 

[124]    The pursuer’s evidence as to the nature of the blind bend was internally self‑contradictory.  In the context that his normal driving speed on that stretch of road was 60 miles per hour, that being the relevant speed limit, he initially conceded that he had driven into the bend at the maximum speed limit on the basis that prior to the accident he had never considered the blind bend to be a particularly dangerous corner.  However, when referred to his police statement, which was to the contrary effect, he accepted that, at the time of the accident, he had indeed considered the blind bend to be a dangerous one.

[125]    The pursuer maintained that his wheels had first locked when his vehicle was still on his own side of the road.  Initially, the pursuer had maintained that, at the time of braking in response to the oncoming flatbed lorry, he had made a conscious decision, then, that to collide with the stationary refuse lorry was the safest option.  His initial position had been that he had deliberately steered to the right, crossing over the centre line in the direction of the stationary refuse lorry.  That position changed when it was explained to him, by Mr Marshall, that once his wheels had locked, he would have no control over the vehicle’s steering.  Thereafter, the pursuer accepted that when crossing the centreline he had been skidding, having lost the ability to steer.  Ultimately he accepted that he could not have made an active decision to collide with the refuse lorry while crossing the centreline, since, by that time, he had lost control of his vehicle.  That position was consistent with the content of the document “Steven’s accident description” and his police statement, made under caution.

[126]    The pursuer also maintained that the last thing he had done, before the impact, was to turn his vehicle driver’s side on to the impact, in order to save his passenger.  Dr Searle’s analysis of the impact was that, rather than the pursuer manoeuvring his vehicle to hit the refuse lorry in that way, the car had moved that way as a result of the dynamics of the collision, which involved only a narrow frontal overlap between the two vehicles, whereby the offside front of the pursuer’s vehicle collided with the offside front of the refuse lorry.  Contrary to the pursuer’s position, as a consequence of the nature of the impact, the resting position of his Mazda would always have been as it in fact was. 

[127]    The pursuer’s evidence as to his speed of travel prior to negotiating the blind bend was contradicted by other evidence.  Both Mr Harris and Mr Di Rollo, whose evidence in that regard I accept as credible and reliable, spoke of the pursuer travelling at speeds of in excess of 60 miles per hour. 

[128]    At the point where Mr Di Rollo was overtaken by the pursuer, he was behind a camper van approximately half way between Leckmelm and Braemore.  He estimated that by that time he had travelled 2-3 miles and had done so within about 2-3 minutes.  That would have been consistent with an average speed of about 60 miles per hour.  At that point, on assessing the road conditions, and despite driving a high performance car, Mr Di Rollo did not consider it safe to overtake the camper van.  At that point, however, the pursuer overtook both Mr Di Rollo and the camper van.  Having himself overtaken the camper van, Mr Di Rollo continued at speeds of 65-70 miles per hour, and sometimes more.  After a further 2-3 miles, he came upon the accident, the scene of which indicated that it had happened 1-2 minutes before.  On that basis, it would appear likely that, having overtaken the camper van, the pursuer had been travelling at a speed in excess of that of Mr Di Rollo.  Such a conclusion is consistent with the evidence of Mr Harris, who assessed the pursuer’s speed, prior to the blind bend, as being about 70 miles per hour.  He had seen the pursuer’s vehicle brake late as it approached the blind bend, and noted that, in doing so, it encroached on the opposite side of the road.  On this aspect of the case, I attach greater weight to the evidence of Mr Harris and Mr Di Rollo than that which I attach to the evidence of Mrs Booth, whose absence of experience as a driver I consider to be a relevant consideration in assessing what she had to say about the pursuer’s speed and the quality of his driving.

[129]    Mr Marshall’s evidence included the fact that, when they were viewing the accident site for the purposes of the pursuer’s defence to the charge libelled against him, the pursuer had told him that his wheels had first locked on the apex of the blind bend.  On that basis, it is reasonable to assume that the pursuer began to decide to brake at a point in advance of the apex of the bend.  Even at an assumed speed of 60 miles per hour, allowing for a reaction time of 1.4 seconds, that point would have been 40 metres in advance of the apex of the bend.  At that point, because of the curvature of the bend, the stationary refuse lorry could not yet have come into the pursuer’s view.  On that analysis, the pursuer braked, at that point, in response to something other than the presence of the stationary refuse lorry. 

 

The Tyre Marks
[130]    A significant amount of evidence was led in relation to the tyre marks noted after the accident, on the road surface at the accident scene, in relation to their shape, whether they could be ascribed to the same vehicle, and how the initial speed of the pursuer’s vehicle, as it rounded the blind bend, should in consequence be calculated. 

[131]    It became clear that assessment of the shape of the tyre marks, the extent of their curvature, if any, and their trajectories, based on the available photographic evidence, was dependant on a number of variables which included the extent to which perspective over distance might distort the image, the position of the photographer relative to the marks, whether they were viewed from the side, the end, or at an angle, and the height of the camera and the type of lens used. 

[132]    Mr McArthur’s view was that the curved skid mark, on the Inverness-bound lane, and the straight skid mark on the Ullapool-bound lane, had been caused by different tyres.  Mr Parkin agreed with that, and also considered that the two skid marks had not been formed by the same vehicle.  Dr Searle calculated the initial speed of the pursuer’s vehicle on the basis that only the straight tyre mark, leading to the impact point, could be ascribed to it.  Mr Marshall agreed generally with Dr Searle’s conclusion in relation to the two skid marks, and with his methodology in the calculation of the pursuer’s speed. 

[133]    All of that analysis, however, proceeded without taking into account the evidence that the pursuer’s wheels first locked at the apex of the blind bend, whilst on his own side of the road, and that his wheels were locked as he crossed the centreline onto the opposing carriageway.  In that regard, I accept Mr Marshall’s evidence that the pursuer had told him that his wheels had first locked at the apex of the blind bend, and I assess what he was told as being the pursuer’s best efforts to give a candid account, at the accident site, to the expert witness on whom he was relying in his defence to the criminal charge which he then faced.

[134]    That account, involving locked wheels from the blind bend, on the pursuer’s own side of the road, coupled with his evidence that his wheels were locked as he crossed the centreline, and the uncontroversial recognition of the straight skid mark as having been caused by his vehicle, is broadly consistent with the evidence of PC MacAskill.  Of all of these witnesses with some experience in the matter of appropriate assessment, who were asked to consider the significance of the tyre marks, he alone was present at the accident scene in the immediate aftermath of the accident.  His evidence, which I accept, was that he noted a continuing line of tyre marks, comprising shadow marks and skid marks, extending from the blind bend on the Inverness- bound lane to the point of impact.  Both PC MacAskill and Dr Searle accepted in evidence that such shadow marks, or tyre scrubbing, were caused under heavy braking, either prior to, or following, the formation of a skid mark, in circumstances where the heat generated through friction was insufficient to cause what would commonly be recognised as a skid mark. 

 

The Expert Evidence
[135]    That evidence, taken together, which I accept and which indicates continuous braking on the part of the pursuer from the apex of the blind bend to the impact point, in effect superseded what otherwise was the effect of the evidence of Mr McArthur, Mr Parkin, Dr Searle and Mr Marshall.  Although the provenance of the curved skid mark loomed large as a significant factor in the presentation of the proof, given my assessment of the whole evidence as I have set it out, I do not consider the expert evidence bearing on that issue to be determinative.  What is more significant, in my assessment, is the persuasive evidence indicating continuous braking from the apex of the blind bend.  In that context, calculation of the pursuer’s speed on the basis that his wheels locked for the first time at the commencement of the straight skid mark which led to the impact point, does not assist in determining the nature of the pursuer’s driving in negotiating the blind bend and thereafter. 

[136]    Both Dr Searle and Mr Marshall were criticised in relation to the performance of their responsibilities as expert witnesses.  Both had been the subject of such criticism in the past.  For the purposes of this case, each was, in effect, asked to consider matters from the particular perspective that the calculation of the pursuer’s initial speed by the police was wrong, a context no doubt reasonably influenced by the pursuer’s structured analysis, as I have termed it, of how he reacted on rounding the blind bend.  In that regard, it can fairly be stated that each of Dr Searle and Mr Marshall strove to support the pursuer’s case but, as I have indicated, on the particular evidence which I find persuasive, I do not accept the pursuer’s account as to the nature of his driving immediately prior to the accident.  From that starting point, I was not persuaded by the expert evidence in support of the pursuer’s case. 

 

Decision
The Pursuer’s Responsibility for the Accident
[137]    For the reasons I have set out, I determine that on an objective review of the whole evidence, the factors which emerge as proven to my satisfaction are that (1) on his approach to the blind bend, the pursuer was driving at speeds in excess of the 60 miles per hour speed limit;  (2) that he decided to brake in advance of the apex of the blind bend;  (3) that, in the absence of any other explanation, it is reasonable to infer that he did so on the realisation that he required to reduce his speed in order to negotiate the bend;  (4) that his wheels locked on the apex of the blind bend;  (5) that on emerging from the bend he was immediately confronted with the flatbed lorry in the course of overtaking the stationary refuse lorry;  (6) that he braked almost continuously to the point of impact with his wheels locked at the very least when crossing the centreline and when making the straight skid mark which led to the impact point;  and (7) that given the assumed speed of his vehicle at impact, and the extent of his braking, his speed on negotiating the blind bend was far in excess of that appropriate to the road conditions.  To put the matter another way, and as was accepted by Mr Marshall, he drove in such a manner that he was unable to stop within the distance which he could see to be safe. 

[138]    I do not accept that the pursuer never drove at more than 60 miles per hour, or that, on rounding the bend, he acted according to the structured analysis of events which he put forward.  In particular, I do not accept that there was any delay between his first sighting of the stationary refuse lorry and the execution of the overtaking manoeuvre carried out by the third defender.  I accept that the two lorries were indeed neck and neck as the pursuer rounded the blind bend.  I consider that the relative movement of the pursuer’s vehicle and the flatbed lorry is explained by the fact that the pursuer’s vehicle was decelerating from what was, in all the circumstances, an excessively high speed.  The evidence of Mr Hughes that, routinely, on rounding the blind bend, even without braking and simply by lifting his foot from the accelerator pedal, he was able to slow to a speed appropriate to turn into the grounds of Braemore Square Country House, and of Mr Marshall that, even allowing for a reaction time of 2.5 seconds, braking from an initial speed of 70 miles per hour over the available distance would have resulted in a minimal speed at impact, serves to cast the likely speed of the pursuer’s vehicle, as it rounded the blind bend, into sharp focus.

[139]    Further, I do not accept that the agony rule has any application in this case. On the facts accepted by me, the collision did not result from the pursuer’s reaction to events beyond his control, caused by the fault of others, but rather because of events for which he was entirely responsible. 

[140]    In these circumstances, where I am satisfied that the pursuer was driving carelessly, at the very least, at inappropriate speed, and that the collision was caused by his fault, I find that the pursuer has not discharged the reverse onus of proof imposed on him by section 10(2)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 in relation to his conviction in respect of section 3 of the Road Traffic Act 1988. 

 

The Case against the Defenders
[141]    In relation to the second defenders, I consider that their adopted policy, against refuse collection vehicles entering private premises, was appropriate for the reasons given by Mr Ross, but not least because of the size of the vehicle involved and the issues of health and safety associated with that.  On the basis of the available video evidence of such a vehicle negotiating entry to, and exit from, the grounds of Braemore Square Country House, I am satisfied that such a manoeuvre was itself capable of constituting a road safety hazard by virtue of the consequence, in executing the manoeuvre, of at least part of the vehicle moving over the centre line onto the opposing carriageway.  Against that background, I do not accept that by collecting the bins from Braemore Square Country House as they did, the second defenders were in breach of regulation 26 of the Traffic Signs Regulations & General Directions 2002.  I find that the operation legitimately fell within the ambit of regulation 26(3) and (4)(b).  As to whether the stationary refuse lorry constituted a hazard, I do not consider that it did, given its size, its bright yellow colour, its flashing lights which were operating at the time, the presence of council employees wearing high visibility clothing, and the distance between its stationary position and the blind bend.  I consider that the everyday possibility of the presence of a stationary refuse lorry at the roadside, in the vicinity of residential buildings, is something of which any appropriately careful motorist ought to be aware.  In such circumstances, I also find, given these factors, that no question of fault at common law arises.

[142]    In relation to the third and fourth defenders, the evidence which I have accepted in relation to the relative positions of the flat bed lorry and the refuse lorry, as the pursuer rounded the blind bend, is consistent with the content of the third defender’s police statement to the effect that when he was alongside the refuse lorry he saw the pursuer rounding the bend, and with the reasonable inference that, consequently, when he began his overtaking manoeuvre, the road ahead, extending to the blind bend, was clear, that being a distance within which a vehicle travelling within the relevant speed limit, and being driven by a driver paying due care and attention, could have stopped.  In these circumstances, I am not persuaded that any liability in respect of these defenders arises. 

 

Disposal
[143]    In the result, for the reasons I have stated, I find that the pursuer was entirely at fault in causing this road traffic accident.  That being so, I shall pronounce decree of absolvitor in favour of the defenders. 

[144]    I reserve meantime all questions of expenses.