[2011] CSOH 77


in the cause







Pursuer: Christine; Thompsons, Solicitors

Defenders: R. Henderson; Biggart Baillie LLP

12 May 2011


[1] In this action the pursuer seeks reparation for loss and damage which she sustained as a consequence of a road traffic accident which occurred on Sunday 8 February 2009. Damages were agreed at £11,000 inclusive of interest to 15 February 2011, and the proof accordingly proceeded only on the issues of the fault of a driver employed by the defenders and of the sole fault or contributory negligence of the pursuer.

Locus of the accident

[2] The accident happened on the westbound carriageway of the A90 dual carriageway trunk road between Dundee and Perth. As one travels in a westerly direction from Dundee, shortly after the second of two exits signposted to Longforgan, the road begins to go slightly downhill, the decline becoming more pronounced as the road takes first a long left-hand bend and then a long right-hand bend. In the course of the left-hand bend there is a blue and white sign ("P 1/2 mile") indicating the presence of a lay-by half a mile further down the road. As the road straightens out and flattens out after the right-hand bend, one reaches the lay-by whose presence is again indicated by a blue sign with a white letter "P". The lay-by is an unusually long one, measured by Mr James McCartney, a road accident investigator who gave evidence, as 223 metres in length. Shortly after the lay-by the road crosses a small bridge with a stone wall.

[3] A continuous white line runs along the nearside of the inside lane of the carriageway, indicating the limit of the driveable carriageway. Alongside the carriageway there is a footpath with a kerb. At the location of the accident, the distance between the white line and the kerb was measured by Mr McCartney as 1.3 metres.

Circumstances of the accident

[4] At around 11.15 a.m. on 8 February 2009, the pursuer was driving westward along the dual carriageway towards Perth in her Peugeot 207 motor car. The weather was dry and bright; road conditions were reasonably clear. At about the time when she was passing the second of the two exits signposted to Longforgan, the pursuer overtook a large articulated Leyland Daf lorry which was being driven by Mr Ronald Speirs in the course of his employment by the defenders. As she was beginning to complete her overtaking manoeuvre, the pursuer became aware that there was smoke coming from the rear of her car. She had had no previous problems with the car and was very alarmed by the sight of the smoke. She was afraid that the car might be on fire and realised that she would have to stop. She appreciated that the smoke would be obscuring the visibility of drivers in the vehicles behind her and was afraid that if she stopped on the carriageway, the lorry which she had just overtaken would run into the back of her car. The density of the smoke issuing from her car increased. She drove on for a distance which she estimated to be about another half mile and was by now in a panic regarding the need to stop. She failed to notice either of the two signs indicating the presence of the lay-by - or indeed the lay-by itself - which would have afforded her a safe stopping place. Eventually, she stopped on the carriageway a short distance beyond the stone wall after the end of the lay-by. There was conflicting evidence as to whether the nearside wheels of the car were on the footpath, but it is not in dispute that the offside of the car protruded over the white line into the inside lane of the carriageway. The pursuer switched off her engine and immediately afterwards her car was struck on the offside by the defenders' lorry.

[5] Mr Speirs had held a Class 2 HGV licence since 2000 and had been driving trunker lorries regularly for about a year prior to the date of the accident. His account of the incident was as follows. He noticed some grey smoke coming from the pursuer's car as it overtook him but the car continued to travel faster than he was travelling and he lost sight of it ahead of him. As he descended the hill, travelling at approximately 30 miles per hour, he suddenly encountered a wall of smoke at the left hand bend, just before the "P 1/2 mile" sign, which reduced visibility to practically zero. He likened the situation to driving into a thick bank of fog. Prior to encountering the smoke he had already been driving with side lights on, which he did as a matter of course. He began to slow down, taking care not to brake too rapidly and thereby risk either causing his lorry to jack-knife across the carriageway or causing vehicles behind to collide with his lorry. He estimated that he drove through the fog-like smoke for quite a long time - more than a minute, at least - while attempting to slow down. Throughout this time he could only see a foot or at most two feet ahead of him and could not see the eastbound carriageway at all. He maintained his position in the inside lane as he continued to slow down. Eventually he heard a bang and realised that he had struck something in the carriageway. He did not see anything ahead of him before the bang. He estimated that he was travelling at 10-15 miles per hour when he heard the bang. He stopped his lorry partly on the carriageway with hazard lights on and walked back to where the pursuer's car was sitting at the side of the road. He ascertained that the pursuer had not sustained serious injury.

[6] I heard evidence from Mr Barry Cameron, a motorist who was also travelling towards Perth and who gave an account which differed somewhat from that of Mr Speirs. He first noticed the pursuer's car shortly after the Longforgan junction, at which time it appeared to be emitting smoke from underneath the rear bumper though clearly not from the exhaust. He commented to his travelling companion that it looked like a serious problem and that the driver ought to pull over to find out what was wrong. The smoke soon became thicker and although it was not yet obscuring visibility it was becoming a hazard. As Mr Cameron descended the hill through the left and right-hand bends, the smoke steadily increased in density. He turned on his lights. He could see the rear lights of Mr Speirs' lorry ahead of him and concentrated upon trying to maintain a constant distance of about 40-50 metres behind the lorry. He too was concerned about being struck by a vehicle from behind. By now he had reduced his speed to about 20 -25 miles per hour. As he passed the lay-by he noted that the pursuer had failed to take refuge in it. At this point the smoke became so thick that he lost sight of the lorry in front and a few seconds later he heard the collision ahead. He immediately pulled out into the outside lane. As he passed the lorry the smoke suddenly cleared. He stopped further up the carriageway and walked back to give his name and address to the lorry driver. He did not approach the pursuer's stationary car.

[7] After the accident, PC Chris Boyle attended at the scene. He was at that time a beat officer based at Longforgan and his task was to assess the accident scene prior to arrival of other officers. He confirmed that he found the pursuer's car straddling the white line marking the edge of the carriageway. His recollection was that the nearside wheels were on the footpath, but he confirmed that it would in his view have been possible to stop the car in a position where no part of it was protruding over the white line into the inside lane of the carriageway.

Arguments for the pursuer

[8] On behalf of the pursuer it was submitted that the accident was caused by the fault of Mr Speirs, for whose negligent actings in the course of his employment the defenders were responsible. I was invited to find him to have been an unreliable witness. His evidence on various matters, including the point at which the pursuer's overtaking manoeuvre began, the presence of vehicles behind him, the lights he had on, the speed at which he was travelling, and the time that he spent driving through smoke, fluctuated as he was questioned and he should not therefore be regarded as having given a reliable account of the incident. His concern regarding jack-knifing his lorry sounded like an ex post facto rationalisation of his failure to slow down and stop more quickly than he did. On his own evidence, he was driving through the smoke at a speed that did not allow him to stop well within the distance that he could see to be clear. He had thus failed to comply with Rule 126 of the Highway Code. Reference was made to section 38(7) of the Road Traffic Act 1988, which provides that a failure on the part of a person to observe a provision of the Highway Code may be relied upon by any party to civil or criminal proceedings as tending to establish or negative any liability which is in question in those proceedings. Mr Speirs also appears to have failed to comply with Rules 234 and 235 (which concern driving in fog) as he was unable to pull up within the distance that he could see clearly. In failing to use his headlights in circumstances of seriously reduced visibility, he also failed to comply with Rule 226. He knew there was something wrong with the pursuer's car and that it was a potential hazard. He entered the bank of "fog" at 30 miles per hour which he had said would have been his speed down the hill in any event. He could not see the pursuer's car ahead yet continued to drive through dense smoke until he collided with it. He drove his lorry at a speed and in a manner which was not appropriate for the prevailing conditions and therefore caused the accident.

[9] As regards the pursuer, she had been faced with a very frightening situation of which she had had no previous experience. Her decision-making was coloured by and affected by her fear which was easily understandable; it would be wrong to assess her decision-making, and in particular her failure to make use of the lay-by, "in the cold light of day". Her evidence that in her panic she simply did not see the lay-by should be accepted. She stopped the car as close to the edge of the carriageway as she could, and indeed only a small part of it protruded into the inside lane. She should not therefore be found to have been at fault. If, however, she was found to have been contributorily negligent, the greater part of the responsibility should rest with Mr Speirs. His failure to take appropriate action to avoid a collision between his large lorry, which required a greater distance to stop, and the pursuer's stationary car was more "potently causative" of the collision than the pursuer's temporary panic (cf Eagle v Chambers [2004] RTR 115 (CA) at paras 13-17).

Arguments for the defenders

[10] On behalf of the defenders it was submitted that the accident was caused by the sole fault of the pursuer. She accepted that she was aware that the smoke was creating a hazard for other drivers, yet she did not exercise reasonable care by removing her car from the road. She failed to see the lay-by or the signs advertising its presence because she panicked. It would have been reasonably practicable for her to stop safely in the lay-by which was long and conveniently located. Having failed to use the lay-by, she ought not to have stopped her car in a position which straddled the white line marking the edge of the inside lane of the carriageway. It would have been reasonably practicable, as confirmed by PC Boyle, for her to have stopped without any part of the car protruding into the inside lane. She failed to put on her hazard lights or any other lights. By all of these failures she caused the collision.

[11] So far as Mr Speirs was concerned, I was invited to find him credible and reliable and to accept his evidence in preference to that of other witnesses where there was any conflict. He was an experienced HGV driver who had fulfilled all duties incumbent upon him. He had reacted appropriately to the smoke obscuring his visibility by trying to bring his vehicle gradually to a halt, balancing the danger from traffic behind with the possibility of danger ahead. He continued to slow down after reaching the "wall of smoke". His reasons for not attempting to stop more quickly should be accepted. At the time of the collision, visibility was zero, so the conditions were highly unusual. In these circumstances the provisions of the Highway Code should not be applied literally. In the event that he was found to have been at fault, the pursuer should be found to have been contributorily negligent with the major part of the blame attributed to her. Whereas Mr Speirs had had good reasons for reacting to the developing situation in the way he did, the pursuer simply panicked and made bad decisions which were primarily responsible for the occurrence of the collision.


[12] It is necessary to begin by considering the extent, if any, to which the accident was caused by the fault of Mr Speirs. If I had been minded to accept his evidence as reliable in its entirety, I would have found him substantially to blame for the collision which occurred. It would, in my opinion, have been obviously negligent to continue to drive at a speed of up to 30 miles per hour for more than a minute through smoke which reduced visibility to 1-2 feet, as described by Mr Speirs. But it seems inherently unlikely that anyone would have done so and I do not regard this account as reliable. I am much more inclined to accept the version of events provided by Mr Cameron. He gave a clear and detailed account which was not challenged by cross-examination. He painted a picture of gradually deteriorating visibility as he and the lorry in front of him, driven by Mr Speirs, travelled down the incline. According to Mr Cameron's description, the smoke became thick enough to cause him to put his lights on about half a mile before the lay-by. The lorry in front did not disappear from view in the smoke until he had reached the straight road at the bottom of the hill. During the intervening period both Mr Cameron and the lorry in front gradually reduced their speed but were still travelling at around 20 - 25 miles per hour. I am happy to accept this version of events as accurate and to assess the culpability of Mr Speirs on the basis that this is what happened. In my judgment it was reasonable for Mr Speirs to slow down gradually instead of trying to stop as quickly as possible. He was right to be concerned that the presence of a stationary lorry on the carriageway - especially one which had jack-knifed - risked causing a serious accident. Indeed, Mr Cameron's view was that Mr Speirs was not in any way to blame for the collision with the pursuer's car. I do not, however, entirely share that view. It does appear to me that there came a time when Mr Speirs did not react appropriately to the thickening smoke through which he was driving. At the point where Mr Cameron lost sight of Mr Speirs' lorry in front of him, it seems that Mr Speirs continued to drive at a speed which was too fast for the conditions, even if that speed was only about 20 miles per hour. With the smoke as thick as it was by then, it seems to me that he ought to have been more concerned about hazards in front of him than about those behind him and should have reduced his speed even further in order to ensure that he was able to stop within the distance which he could see to be clear, as required by the Highway Code. He failed to do so and was therefore, in my opinion, at least partly to blame for the collision which occurred shortly afterwards.

[13] So far as the pursuer is concerned, I find no reason to reject her account of the period leading up to the collision, viewed from her perspective. I accept, in particular, that she was very frightened by the prospect of her car catching fire and that as a consequence she panicked and failed to notice the lay-by which would have afforded her a safe stopping place. There is no reason why she should have known that this was a particularly long lay-by, but the fact that it was as long as 223 metres gave her ample opportunity to notice it (since, of course, her vision was not obscured by smoke) and to pull in. Her panic may explain her failure to get her car off the road into safety before stopping but it does not, in my opinion, excuse it. Even when she did stop, it appears that she did not stop as safely as she might have done: PC Boyle's evidence (which I accept) was clear that it would have been possible to stop the car in a position where no part of it protruded over the white line into the carriageway. I therefore find that she too must bear a share of the responsibility for the accident which occurred.

[14] Having found both the pursuer and Mr Speirs to have been at fault with regard to the accident, it is necessary to reach a view as to their respective blameworthiness. In my opinion a significantly greater proportion of the blame must fall upon the pursuer. Her failure to remove her car from danger was, in my view, a much more significant contributory factor than Mr Speirs' failure to slow down sufficiently in the thickening fog of smoke. In these circumstances I apportion one-third of the blame to Mr Speirs and two-thirds to the pursuer. I therefore find the defenders liable to make payment of one-third of the agreed damages.

[15] Parties were agreed that interest would continue to run on the agreed sum during the period from 15 February 2011 to the date of decree. Since I do not know what the principal sum was prior to the addition of interest to 15 February, I am unable to calculate the sum for which decree now falls to be granted. I would propose to put the case out By Order to hear submissions on the appropriate order, but it may be that this can be agreed by parties in the meantime, thereby obviating the need for any further appearance.