[2007] CSOH 94


in the cause







Pursuer: Mitchell, Q.C., Fitzpatrick; Digby Brown

Defenders: Hanretty, Q.C., Primrose; Simpson & Marwick, W.S.

7 June 2007


[1] On 14 January 2004 at about 7.30am the pursuer was a rear seat passenger in a van owned by the defenders and driven by one of their employees, John McInally. The vehicle was being driven south on the A710 when, in the area of a bend in the road, it struck an oncoming vehicle being driven by a Miss Karen Kirkpatrick, after which it left the road, striking a tree stump and a dry stone dyke. The pursuer was injured in the accident and damages were agreed, subject to liability, in the sum of £75,000 subject to a 15% reduction for failing to wear a seatbelt, resulting in agreed damages of £63,750.

[2] In response to the pursuer's averments that loss of control on the part of the driver was the cause of the accident, the defenders aver that he was driving at a reasonable speed for the conditions but hit a patch of black ice. It is averred that it was dark at the time, that he had not encountered ice on the road at any prior point, that ice was only present in a small patch slightly more than a metre wide at the apex of the bend and that this had formed as a result of water running on to the carriageway from adjacent woodland. In response to that, the pursuer avers that Mr McInally ought to have been aware of the possibility of ice forming on the roads and that he was driving at an excessive speed for the road conditions.


[3] The pursuer could offer little assistance as to the circumstances of the accident. He was in the rear of the van where there were no windows. He had no impression of either the speed of the vehicle or the road conditions although he remembers that it was very cold.

[4] The driver of the other vehicle, Miss Kirkpatrick, described the weather as very icy. About a mile south of the locus, at New Abbey, she felt her car respond to ice on the road and she had to swerve to avoid a bridge. She drove through the woods leading to the locus at about 40-50 mph but approaching the locus saw ice on the road ahead, at the bend, and slowed down. It was at this point that she saw the van coming down towards the bend from the other direction. The ice was across the road at the bend and was glistening. It extended for about 40 cms.

[5] In her opinion the van was going too fast for the road conditions as she assessed them. She said it "looked as if it was zooming towards me" which made her slow down even further. Just before she reached the bend the vehicle hit her, erHerHwithin her own carriageway. Her vehicle continued straight on, coming to rest partly on the verge and partly on the road. When she came out of the vehicle she found she was sliding about on the road and saw ice on the road. When asked if the ice would be visible to anyone she said "you couldn't miss it". Asked whether there was anything about the layout of the bend to make the ice invisible to a driver coming from the other direction, she said she would not have thought so. She was not asked to assess the extent of the ice she saw on leaving her vehicle. She explained that the ice at New Abbey was black ice. The ice at the bend was not black ice because she could see it.

[6] Mr McInally was taking colleagues to work at Southwick on the day of the accident. He had travelled the same road on the two previous days at roughly the same time. It was dark when he picked up his colleagues and he imagined it would still be dark at the time of the accident. He could not recall how cold it was but said it had not been frosty in Dumfries. The accident happened very quickly. He was going down the hill, he went to turn the corner and the van slid across the road. He saw headlights coming and wanted to get back on his side of the road to avoid a head-on collision. He assumed that he slid across the road on ice. He did not see ice but imagines it was ice which would cause the vehicle to slide and that, since he did not see it, it must have been black ice. His estimate of his speed was around 50 mph, which was what he told the police although he did not know the precise speed he was doing. He did not think he would have been going at more than 50 mph. He thought the applicable speed limit was 60 mph. He described himself as a cautious driver. He did not note the weather conditions as he was driving, for example, to notice whether there was snow on the hills. He does not know if it was above or below freezing and he did not look at his speedometer. He was simply driving as he normally would. The road was quite a windy one and he had not had any problems on previous bends. Had he seen ice, he would have gone slowly to avoid it. He did not think he was driving too fast.

[7] Kevin Dalgleish, a passenger, gave evidence but he too was in the back of the van and was able to offer little assistance. He did not feel uneasy in the back.

[8] Constable Donald Stewart was at the time on uniform mobile patrol when called to the accident. At that time he would have had about 2 years service. Responding to a 999 call, he drove to the accident, at times reaching speeds of 70-80 mph. He did not encounter any difficulty until at the end of the street leading to the locus when he could feel the ABS working and sensed ice on the road. This was on the long straight as he was slowing down towards the locus. He did not know the exact point but it was at a safe distance before the vehicles which were stopped at the locus. Other vehicles were parked at the locus, having come upon the accident.

[9] He examined the roadway at the locus and found it icy and slippy underfoot on the bend. Asked about the extent of the coverage he replied "It was noticeable. It was covering the whole road some distance before the corner and right the way through it". He did not measure it. It was visible at the bend, but he could not say if it would have been visible to a driver as he did not approach that part of the road in a vehicle. His view was that the driver slipped going round the corner and the police "did not deem the driver wholly responsible for the accident as a contributing factor was that the road was slippy". He meant simply that in some part the driver was responsible. He thought 50 mph seemed reasonable for that road.

[10] The pursuer called a road traffic expert, Mr James Brown, who had served as a Police Traffic Patrol Officer with responsibilities including investigation of road traffic incidents, from 1979 to 1994. Since 1994 he has been a qualified accident investigator and is the editor of "Impact", a technical journal on accident investigations. He has attended standard and advanced courses in accident investigation. The circumstances of the accident meant that it was impossible to carry out a reconstruction, to identify the exact point of the collision or to draw any conclusions from the resting points of the vehicle. The van had travelled a sufficient distance to hit the tree and the wall and demolish part of the wall so he could say that it was not going at only 30 or 40 mph. The maximum speed limit for the van on that road was 50 mph, although that does not mean that it is safe to negotiate the road at that speed in the winter and in the dark. One can't see to react as well in the dark and there is always the risk of ice in Scotland in winter. One should reduce speed at a bend and not proceed at maximum speed. The speed for the van is lower than for a passenger vehicle because of the different handling characteristics of the van.

[11] For the time of the day and the time of the year, with darkness prevailing, he thought that 50 mph was not a safe speed to negotiate the bend. The approach to the locus is a fast straight stretch of road and had the bend been negotiated at a lower speed, it is likely that it would have been negotiated safely. The fact that he lost control suggests he was travelling too fast. If ice had formed in the way suggested by the defenders on Record, it was not likely to be black ice. Running water normally forms a furrow-like surface. Had the ice only stretched for a half a metre or a metre, the loss of traction would have been insufficient to explain the accident.

[12] The defenders called Mr John Alexander, a traffic investigator. He had served for 31 years with Perth and Kinross Police and had completed the standard course in accident investigation. His evidence was very brief and was really of no assistance to me. He said that there was nothing remarkable about the bend and that under "normal circumstances" 50 mph would be a safe speed to negotiate it. By "normal circumstances" he meant without the driver being aware of slippy road conditions. His opinion was given on the basis of the photographs of the bend, that there was good visibility and on the assumption that road conditions were favourable. There was no reference to or discussion of the actual conditions prevailing on the day and how it would affect driving. There was no discussion of whether one should adapt one's driving approaching a bend, the effect of darkness or the significance of winter.


[13] Counsel for the pursuer submitted that the bare facts of the accident were indicative of fault on the part of the driver. The van went into the wrong carriageway and collided with Miss Kirkpatrick's car in circumstances in which an explanation inconsistent with fault had not been offered. The defenders' theory on Record has not been established. There was no evidence of any black ice at the locus. Moreover, the amount of visible ice as spoken to by Miss Kirkpatrick could not have caused the accident since it would have been insufficient to cause the van to lose traction to that extent. For whatever reason - speed, lack of attention - the driver lost control and is accordingly at fault. His estimated speed of 50 mph was too fast.

[14] The evidence of the police officer as to the extent of ice at the locus, which had been objected to and allowed under reservation, could not be relied on as it went beyond the averred defence. Whether the ice at the locus would have been sufficient to effect the performance of the van was not established. In any event, if the high point for the defenders is that there was extensive ice, they need to explain why it should not have been visible to the driver. They need to show that it was black ice which the evidence does not support. There was visible ice and once that is established it follows that there was fault on the part of the driver.

[15] Counsel for the defender drew attention to the lack of evidence of weather forecasts or weather reports and the fact that the police vehicle had no difficulty until approaching the locus. To ignore the fact that there was ice at the locus would be unjust. Stewart did not see the ice to which his ABS reacted. There was no evidence to suggest that the ice at the apex was visible for any distance. The accident was wholly consistent with the driver coming upon a stretch of ice and being unable to control the vehicle. There was no reason for him to see the ice and he did not see it. There had been nothing untoward about the journey nor anything to suggest excessive speed or presence of a risk to which he ought to have responded. He was driving at about 50 mph towards the bend and there was undoubtedly ice there. There is no indication of what speed would have avoided an accident, so on the issue of causation the pursuer fails.

Discussion and conclusions

[16] I am satisfied that the pursuer is entitled to decree. In the first place, the accident, involving a violent swerve into the wrong carriageway, the striking of another vehicle and the van leaving the road, is indeed one which calls for an explanation inconsistent with fault and in my view no such explanation has been provided. I consider that the speed of the van, at around 50 mph, was excessive for the conditions. I was impressed by the evidence of Miss Kirkpatrick that she thought, immediately prior to the accident, that the van was going too fast for the conditions. At the time that she made that assessment she had already given consideration herself to the appropriate speed for the conditions and adjusted her driving accordingly. Her assessment was therefore made from a considered and informed basis and I accepted it. She impressed me as a cautious and careful driver. Not only did she take care to adjust her speed to the driving conditions as she saw them, she had taken the precaution of obtaining a weather forecast before setting out. Mr. NcInally described himself as a "cautious driver" but I beg to differ. He did not even know the speed limit applicable to the vehicle he was driving. He was in fact driving at about the maximum speed limit for that vehicle whilst going into a bend in dark and wintry conditions. He paid no attention at all to the prevailing weather conditions nor even showed any interest in them. He did not look at his speedometer. I also accepted the evidence of Mr. Brown that 50 mph was not a safe speed to negotiate the bend and that had the bend been negotiated at a lower speed, it is likely that it would have been negotiated safely. Mr Brown impressed me as a careful and thoughtful witness who was not seeking to draw conclusions which went further than the facts could justify. The evidence of Mr. Alexander and Constable Stewart on this matter was so general as to be of no assistance. Although I accepted Constable Stewart's evidence as to the presence of ice at the locus, he did not impress as a witness. His memory seemed quite poor, his evidence was vague and he did very little in the way of investigation. I did not feel that he had given the issue of the appropriate speed for the prevailing conditions thoughtful consideration. In fairness, all of this is perhaps explained by the fact that he was a relatively new constable at the time. I have already referred to the limitations of Mr. Alexander's evidence.

[17] In any event the only explanation offered is that the van driver "assumed" that he hit black ice because he did not see it. I am satisfied that the ice at the locus was not black ice and no reasonable explanation has been offered for the driver failing to see it. Ice was seen by Miss Kirkpatick and was clearly visible to the police officer on examination of the locus.

[18] Accordingly I shall pronounce decree in favour of the pursuer in the sum of £63,750 with interest from 22 May.