Case Reference No: A5125/04
JUDGMENT OF SHERIFF IAN C SIMPSON, QC
in the cause
MR JOHN McCARTNEY HUTCHISON,
PURSUER
against
CHARLIE BOISSEAU,
DEFENDER
Act: Thomson, Harper McLeod, Solicitors, Glasgow
Alt: Party
EDINBURGH, 26 January 2006
The Sheriff, having resumed consideration of the cause, finds in fact as follows:-
1. On 24 December 2003 between 10.30 and 10.45 pm the pursuer and his wife were going to the watch-night service at St Columba's Church on Queensferry Road, Edinburgh.
2. The pursuer parked his Nissan Micra, registration number SNO2 VJM facing east on the eastbound carriageway of Queensferry Road at a point near Forthview Terrace. At this point the eastbound carriageway, heading into the city centre, has one lane for traffic. This part of the road is subject to a 30 mph speed limit.
3. To the west of St Columba's church there is a traffic island separating the eastbound and westbound carriageways. Beside the eastbound kerb, level with and extending a short distance beyond the island, there is a thick white line as well as a single yellow line. The white line signifies that vehicles should not park there. The road lay-out was the same as today at the time of the accident.
4. At that point eastbound traffic is going slightly downhill. Traffic approaching the area has a good view of it.
5. The defender's photographs, Nos 6/1/2 A-D of process are photographs of the area and illustrate it well.
6. At the material time it was lightly raining and the road was wet.
7. The pursuer parked his car in front of the white line so that the rear bumper was about two feet clear of it.
8. After the pursuer and his wife had got out of the car he noticed that his interior light was on. He went round to the passenger's side and opened and closed the door. The light remained on. He decided to do the same with the driver's door and went round the front of the car to do so.
9. The pursuer made an automatic but cursory check to make sure the eastbound carriageway was safe for him to enter.
10. The defender was driving a people-carrier vehicle containing his parents and siblings eastbound along the Queensferry Road. They were going to a watch-night service at St Mary's Cathedral. He was adhering to the speed limit as he approached the pursuer's car.
11. The pursuer went to the driver's door of his car and opened it. He was standing to the rear of the door space and was not checking the progress of traffic approaching from the west.
12. The defender saw the pursuer opening his door. It appeared to be about level with the end of the traffic island. He did not think he could get his vehicle through the gap between an open car door and the traffic island. He made an emergency stop.
13. The pursuer heard the defender's brakes screech. He wheeled round to his right so that his back was against the offside back window of his car.
14. The defender's vehicle skidded to the left as it stopped. It clipped the rear bumper and rear offside panel of the pursuer's car and, narrowly missing the pursuer, struck the driver's door, flicking it over.
15. The defender's vehicle came to rest beside the pursuer's car with the pursuer in the narrow gap between the vehicles.
16. There had been room for the defender to steer his vehicle between the traffic island and the pursuer's car door, even if it had been fully open. He had passed his driving test some nine months earlier. He had over-reacted to the sight of the pursuer opening his car door.
17. The pursuer's actings had been such as to make the passage of eastbound traffic more difficult.
18. Members of the defender's family assisted the pursuer. He was able to drive his car home but it was uplifted for repair and he was without it until 6 January 2004. During that time he and his wife felt unable to go to Lanark for a seasonal family visit. They took buses about town. The pursuer's friends gave him lifts to his regular game of golf. After the car was returned to him he required to visit the garage for a brief visit to get a trim fitted.
19. The total cost of repairing the pursuer's car was £1,299.48. All bar £100.00, paid by the pursuer, was paid by his insurance company whom he is bound to reimburse. The said sum was reasonable. A number of parts required replacement. All the damage charged for arose out of the accident.
20. The pursuer required to make and receive phone calls, and correspond with various people including his insurers and his solicitor as a direct result of the accident. This caused him inconvenience.
Finds in Fact and in Law:
1. The defender having misjudged the situation created by the pursuer and having failed to keep his vehicle under proper control, and thus caused the accident, the pursuer is entitled to reparation.
2. The pursuer having failed to anticipate the hazard he would cause to eastbound traffic, and having made the passage of the defender's vehicle more difficult, his damages should be reduced by 30% by reason of contributory negligence.
3. The pursuer's total claim comprises £1,299.48 in respect of repairs to his car, £100.00 for loss of use of his car and £75.00 for inconvenience, totalling £1,474.48, of which 70% is £1,032.14.
THEREFORE: sustains the first plea-in-law for the pursuer and the fourth and fifth pleas-in-law for the defender; sustains to an extent the second plea-in-law for the pursuer; quoad ultra repels parties' pleas; grants decree for payment by the defender to the pursuer of the sum of ONE THOUSAND AND THIRTY TWO POUNDS AND FOURTEEN PENCE (£1,032.14) STERLING with interest thereon at the rate of eight per centum per annum from 29 March 2004 until payment; appoints parties to be heard on the question of expenses and fixes Monday 13 February 2006 at 9.45 am within the Sheriff Court House, Chambers Street, Edinburgh as a diet.
NOTE:
1. Christmas 2003 got of to an inauspicious start for both the Hutchison and Boisseau families. They were making their separate ways to different watch-night services when the Boisseau people-carrier hit the Hutchison car. Despite the fact that the pursuer ended up sandwiched between the two vehicles, he was unhurt and everyone involved has cause to be grateful that the consequences were restricted to structural damage to the vehicles.
2. The only witnesses who spoke to the circumstances of the accident were the pursuer and the defender. The defender represented himself. He was an exception to the maxim that the litigant who represents himself has a fool for a client. Though only 20, he appeared not to be short of confidence or belief in his own case, which he presented forcefully yet politely.
3. I have not found the merits of this case easy to adjudicate on. For a start, the negligence on either side was slight. Secondly, I formed most favourable impressions of both parties. They came to Court to tell the truth as they saw it. The pursuer, in particular, was a careful witness, unwilling to commit himself to a viewpoint he did not sincerely believe. But, as in most cases, viewpoint is important here, and we have two witnesses who saw events from very different standpoints. They would not be human if a bit of unconscious self-justification had not, over time, shaded their sincerely expressed recollection of what happened.
4. There were no very substantial areas of disagreement. The pursuer had his car four or five feet clear of the white line, while the defender had it almost on it. The pursuer claimed that he had opened the driver's door slightly, while the defender remembered seeing the open door ahead of him. As far as the car position is concerned, I have taken the view that it was probably half way between the two estimates. So far as the door is concerned, I am satisfied that it was sufficiently far open to cause the defender alarm.
5. The pursuer said that he had looked "automatically" to see what traffic was approaching from the west, but he cannot have properly taken account of the effect on an oncoming driver of seeing him opening his door, as such an action reduced the gap to the left of the traffic island significantly. An oncoming driver could not be expected to realise that the pursuer was intending only to open and close his door to try to extinguish the interior light.
6. The Highway Code, which I indicated that I would consult, advises drivers when parking in the following terms at paragraph 214:
"You MUST ensure you do not hit anyone when you open your door."
There follows a diagram showing a car door, a cyclist and a motorist, and the Code goes on:
"Check before opening your door."
I also considered the passages referred by the pursuer's solicitor.
7. No doubt exasperated by the troublesome light, and anxious to join his wife out of the rain at the service, I am satisfied that the pursuer did not adequately consider eastbound traffic. He should have realised that he was making the gap to the left of the island significantly narrower for traffic from the west and he should have waited till the road was clear before opening his door. His failure to do so amounted to negligence. His negligent act set the unfortunate events in motion.
8. That having been said, it is clear from the defender's own photographs, A and D, that there was room for him to pass, albeit with care, even if the pursuer had opened his door completely, which he was right to anticipate. Quite simply, this inexperienced young driver over-reacted to an admittedly awkward situation which required careful manoeuvring of his vehicle. In these circumstances he must bear the greater share of blame for the accident and I assess his responsibility as being 70%. The pursuer's damages fell to be reduced by reason of contributory negligence to the extent of 30%.
9. The defender challenged the repair bill for the car as being "an insurance job". Mr Rowan, a senior engineer for RBS Insurance, gave evidence as to why various parts required replacement rather than patching. The pursuer was entitled to have his car restored to as near the condition it was in before the accident as reasonably possible. I am satisfied that the repair bill is reasonable.
10. As regards loss of use of the car, the pursuer's solicitor referred me to Hughes -v- Taylor, a case from Birkenhead Crown Court dated 6 August 1997. The brevity of the report makes it difficult to draw any proper conclusion from it, but it appears that for most of the time he was without his car this particular plaintiff was given £10.00 per day in respect of his inconvenience. Each case turns on its own facts. Apart from the family trip to Lanark, I did not get the impression that this pursuer was greatly inconvenienced through the loss of his car. In my view a round sum of £100.00 is appropriate under this heading.
11. When it comes to inconvenience caused by correspondence etc, again each case turns on its own facts. There was nothing unusual about the pursuer's inconvenience in this case and I assess it as meriting damages of £75.00. The pursuer's solicitor referred me to the abbreviated report in Marley -v- Novak, Bolton County Court, 19 February 1996 and the full Judgment of Sheriff Croan in Brennan -v- Clark, Kilmarnock Sheriff Court, 11 April 2000.
12. I have granted interest from 29 March 2004, when it appears that the repair bill, the largest item of claim, was settled.
13. I have fixed a hearing on expenses. Relevant issues will include any offers to settle the case (and relevant correspondence should be brought along to the hearing) and the scale on which any award might be made. If the date I have fixed is grossly inconvenient to either party they should consult the Sheriff Clerk. At the hearing, the defender, if so advised, might apply for a time to pay direction under the Debtors (Scotland) Act 1987, Section 1. However, such an application would be likely to succeed only if the defender is going to have to personally pay up.