[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLachlan Or Coats As Curator Bonis To Adrian Coats v Bowie & Ors [2000] ScotCS 107 (20 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/107.html Cite as: [2000] ScotCS 107

[New search] [Help]

[1] This action of reparation arises out of a road traffic accident, which occurred as long ago as 7 August 1991. On that date the incapax, on whose behalf the pursuer sues the action, was a pillion passenger on a Honda C.B. 400-4 motor cycle, of registration number KSJ 922P, then being driven by the third party on the A761 road at Linwood. The third party and the incapax had met in Houston, Renfrewshire, and were travelling towards Paisley at the material time. As the motor cycle approached the junction between the A761 road and Melrose Avenue, Linwood, it came into collision with a Ford Sierra motor car, of registration number G753 VGE, then being driven by the defender. As a result of this collision, both the third party and the incapax were thrown from the motor cycle. The incapax sustained grievous injuries, which have had very serious consequences upon him. The third party himself sustained serious injuries. In particular, both of his legs were broken and he suffered a fracture of the right ankle. He also suffered certain injuries to his right hand. As a result of these injuries, certain medical complications developed. In consequence, the third party was detained in hospital until November 1991.

[2] At the outset of the proof, at which only the defender and the third party were represented, I was informed that a decree had been pronounced in favour of the pursuer for £1.955 million against the defender. The only remaining controversial issue was that raised by the defender's plea-in-law 4, which embodied a claim by the defender for relief against the third party, in terms of section 3(2) of the Law Reform (Miscellaneous Provision) (Scotland) Act 1940. No issue of damages arose and accordingly only the third party's pleas-in-law 2, 3 and 4 remained alive. The defender's case against the third party is set forth in answers 2 and 3 for the defender, at pages 5, 6 and 8 of the Closed Record, as amended, No 30 of process. However, I was informed by counsel for the defender that he was not insisting in the averment made at page 8C-D of the Closed Record, to the effect that it was the third party's duty to switch on the headlamp of his motor cycle. The position of the third party is set forth in answers 2 and 3 for the third party at pages 6, 7, 8 and 9 of the Closed Record.

[3] In support of his own case, the defender himself gave evidence. He explained that, during the evening of 7 August 1991, he had been out with his brother and father. He had been driving the car which was involved in the accident. Just before the accident occurred, he had dropped his father and brother off at Belmar Court, a block of flats where the family home was situated. Thereafter the defender intended to proceed by way of Langholm Drive into Melrose Avenue, from which he intended to turn right into the A761 and thereafter travel westwards in that road. The defender agreed that the locus of the accident, the junction between Melrose Avenue and the A761, known locally as the perimeter road, was shown in a set of photographs, No 40/1 of process, and also on a scale plan, No 49/4 of process. The defender said that he was very familiar with the area and used the road system daily. At the locus of the accident the A761 was a dual carriageway road with a central reservation. At the junction with Melrose Avenue, there was a break in the central reservation to enable traffic emerging from Melrose Avenue to turn right into the A761 and to enable traffic on that road to turn right into Melrose Avenue. The conformation of the central reservation could be seen on the plan, No 49/4 of process.

[4] Describing the events leading up to the accident, the defender said that, after dropping off his passengers, he had returned to Melrose Avenue. The headlights of his car were on, but dipped. He approached the junction between Melrose Avenue and the A761, making a signal of his intention to turn right. He said that he had stopped at the give-way lines at the junction. At that point, he said that he had had a view to the west, as shown in the photograph 7 in No 40/1 of process. The street lights in the area were illuminated and it was a clear and dry evening. The defender said that he had stopped, or had virtually stopped, at the junction when he had looked to the right and had seen no traffic approaching from that direction. He had intended to cross the eastbound carriageway to the central reservation. Thereafter he had moved towards the central reservation. He explained that it was possible to get a car into that reservation at an angle in such a way as to avoid impinging upon either carriageway. However, on this occasion, the defender said that he had had to stop just before he had got to the central reservation; that had involved his car being in the outside lane of the eastbound carriageway. He explained that he had done this because, on looking to the left he had seen two cars approaching, going westwards. These cars had been side by side at the material time, one of them being engaged in passing the other. The defender said that he had thought that, if he had taken his car into the central reservation, the driver of the westbound car in the outside lane might have thought that the defender was going to enter that lane; had that occurred, a crisis could have been created. He said that he had not considered that there was anything wrong in stopping where he did, since any eastbound vehicle could have passed behind his vehicle in the nearside lane of the eastbound carriageway. Having stopped in this position to allows the westbound cars to pass and having been at rest for about 5 seconds, the defender said that he had been on the point of moving off when there was what he described as an almighty crash. He was stunned and dazed by it. He had found that he was unable to open the driver's door of his vehicle. Accordingly he had climbed out of his own car on the driver's side. It was then that he had observed a motor cycle lodged in the area of his car where the front wheel arch was situated. He had also observed two persons lying on the surface of the road to the east of his vehicle. He had also observed that his own car was pointing slightly to the left, having been moved a foot or two in that direction by the force of the collision. As regards the two people who were lying on the road, the defender said that they had not been close to each other. He thought that the person nearest to his car was about 20 feet from it and the person who was further away from his car was about 40 feet from it. Thereafter persons who had been in properties nearby and had heard the collision came out onto the road. He himself was "ushered" off the roadway into Melrose Avenue. Police officers and an ambulance arrived fairly soon after the accident. The defender emphasised that he had not been aware of the presence of the motor cycle before the crash actually occurred. He had not been aware of any headlights showing from it. The two westbound cars had just passed the gap in the central reservation when the collision occurred. The defender's recollection was that those cars drove on without stopping. In the view of the defender, there was sufficient room behind his car to enable another vehicle to have driven past it in safety.

[5] In cross-examination, the defender was taken through the circumstances of the collision once again. In general, he reiterated the account which he had already given of the accident. Once again he acknowledged that there would have been sufficient room for his vehicle to be accommodated in the gap in the central reservation. He had stopped before going into that gap because of the fact that two westbound cars were approaching the location moving side by side. When he first saw them, they had just passed the Gulf garage which could be seen in photograph 10 of No 40/1 of process. The defender said that he had stopped his vehicle just as he was about to enter to central reservation. Asked why he had decided to go out from Melrose Avenue at all in these circumstances, he said that he could not have foreseen that the two westbound cars would come into a position in which they would be abreast of one another. Had they not been in that position, the defender asserted that he would have taken his vehicle into the gap in the central reservation. The defender said that in the short period of time before the collision, he had been looking eastwards and had been unaware of what had been happening on his right hand side. When it was put to the defender that he had in fact driven out in front of the motor cycle concerned, which he had not observed, he denied that that had happened; he was not fabricating evidence.

[6] Police Constable Maurice Wells next testified on behalf of the defender. He said that he had been on duty throughout the evening of 7 August 1991 and had become aware of the accident concerned at about 10.40pm. He had been instructed to attend the locus along with Woman Police Constable Caroline Scott, which he did. He estimated that he had arrived there about five minutes after hearing of the incident. It was dark, the street lighting was illuminated and visibility was good. He stated that, on arrival, he had seen the wreckage of the two vehicles which had been involved in the collision. The Ford Sierra was situated on the eastbound carriageway on the road in question, in the outside lane. It appeared to have been turned anti-clockwise to some extent on account of the force of the impact; when he saw it, it was facing roughly southeast. The motor cycle was lodged against the front off-side wing of the car. Constable Wells said that a person whom he took to have been the pillion passenger from the motor cycle was lying on the roadway in the offside lane to the east of the car involved in the accident. This witness said that the drivers of the vehicles concerned identified themselves to him. Constable Scott had spoken to the car driver; the witness stated that he had spoken to the motor cycle driver, who was not significantly injured. The pillion passenger, on the other hand, was unconscious during the whole time when this witness was at the locus. The witness had made a sketch of the situation which he had found, but unfortunately his notebook covering the event had been destroyed on account of the passage of time. He explained that his main concern had been for the injured pillion passenger. An ambulance had been summoned and also officers from the traffic department, on account of the severity of the injuries which the pillion passenger appeared to have suffered. This witness explained that, at the material time, he had been about to go off duty and was at the locus for a relatively short period of time. He did not recall the arrival of colleagues from the traffic department, but thought that he had been relieved by them. The photographs of the scene of the accident, No 21/1 of process, had not been taken by him, but by other police officers. However, his recollection of the scene accorded with them. This witness, under reference to the photographs of the vehicles involved, went on to describe the damage which the vehicles concerned had sustained. Constable Wells said that he had no recollection of seeing any skid marks on the road surface; however liquid of some kind from one of other or both of the vehicles had been spilled on the road.

[7] Constable Wells went on to explain that he had spoken to the motor cycle driver, who had been walking about at the time. This man had told him the identity of the pillion passenger. The witness had taken basic details from the motor cycle driver, but not a full statement. Constable Wells was then questioned as to whether he had encountered any independent witnesses of the incident. He said that none had identified themselves as such. He was then asked specifically about one Craig Brisbane. The witness said that, at the material time, he had known this man, on account of his criminal activities. He explained that Mr Brisbane had a criminal record, involving convictions for the theft of motor vehicles, drugs offences and other crimes. The witness said that Mr Brisbane was a regular stealer of cars; police officers had almost had a head-on collision with a car driven by Mr Brisbane, which he had stolen. Mr Brisbane had served custodial sentences of months, if not years in duration. The witness said that Craig Brisbane had definitely not been at the locus of the accident. The witness was referred to the police Abstract of Road Occurrence, relating to the accident, No 42/3 of process; he pointed out that no independent eye-witnesses were referred to in that document. It was then suggested to Constable Wells that he had had an altercation with Craig Brisbane at the scene of the accident when he was there following upon it. Constable Wells riposted that that was an incredible suggestion. Craig Brisbane had not been present at the locus of the accident at any time that night.

[8] In cross-examination, Constable Wells claimed that his memory of the incident was reasonably good. He had made notes of the details in his notebook, now unfortunately destroyed, and had given two precognitions in relation to the matter. He said that, so far as he was concerned, there were no pedestrians in the vicinity of the accident scene. The driver of the motor cycle, according to the witness, was not apparently seriously injured; he was certainly not screaming with pain having suffered two broken legs. It was the understanding of this witness that the vehicles involved in the accident had not been moved following its occurrence prior to the arrival of the police.

[9] Woman Police Constable Caroline Scott next gave evidence. She recalled attending at the locus; she was new to the police service at that time. She confirmed the state of the street lighting and the conditions. She agreed that she had been the reporting officer in relation to the incident. She said that she had found one injured person at the locus, for whom an ambulance was called. The traffic department police officers were also called. She had a vague recollection of the arrival of the ambulance and of the road traffic department police officers. She suffered from the disability that her notebook, in which details of the matter had been recorded, had been destroyed in accordance with normal police practice after a period of five years from the date of events recorded in it. She said that no person had identified themselves to her as an independent witness.

[10] In cross-examination, this witness declared that she could not remember about the motor cycle driver; however the pillion passenger was seriously injured. Had the motor cycle driver been lying on the road with two broken legs, this witness said that she would have remembered that. She recalled only one person lying on the road. Asked whether there had been an altercation between a member of the public and either her or Constable Wells, the witness said that she did not know what counsel was talking about; no other person had been there.

[11] Police Constable Jane Gamble at the material time had been an officer in the traffic department of Strathclyde Police at Govan. Along with Police Constable Lachlan McLeod, he had gone to the locus of the accident. By the time he arrived there, the time was about midnight. He had been met at the locus by Police Constable Maurice Wells and Woman Police Constable Caroline Scott. On his arrival the casualties had been removed, that is to say the motor cycle driver and the pillion passenger; the car driver was still at the locus. The purpose of the attendance of this witness was to search for evidence as to what had occurred. The vehicles involved were still in the position which they had taken up immediately following the collision. Photographs, Nos 21/1 of process, were taken by Police Constable McLeod; they showed the location of the vehicles and the damage which they had sustained. The recollection of this witness accorded with what could be seen in the photographs. The witness recollected that measurements were taken at the locus, but had no record or recollection of what they were. The witness was unable to identify the point of impact, although he stated that he would have looked for evidence of its position. It was evident from the photographs and from what the witness saw that the Ford Sierra car was very extensively damaged. The witness was unable to furnish any estimate of the possible speed of the motor cycle at the time of the collision. He said that he would have looked for marks on the road. This witness had spoken to the motor cycle driver in hospital. The belief of the witness was that there had been no independent witnesses of the accident; had there been such, he would have expected that their details would have been recorded by police officers.

[12] In cross-examination, this witness elaborated his evidence concerning his interview with the motor cycle driver in the Alexandria Hospital, Paisley. He recollected that he was seriously injured and was detained in hospital. This witness considered that the Ford Sierra motor car might have been pushed eastwards at the front by the force of the collision. He considered that, looking at the apparent point of impact between the vehicles, just before the collision, the motor cycle must have been quite close to the dotted white line to be seen at the central reservation gap in photograph 6 of No 40/1 of process. The witness considered that the normal manoeuvre for drivers turning right into the A761 from Melrose Avenue would have been to go into the gap in the central reservation, before entering the main road in a westerly direction. The witness did not consider that such a vehicle would have halted in the eastbound carriageway of the road before entering the gap in the central reservation.

[13] Police Constable Lachlan McLeod next gave evidence. He had been a member of Strathclyde Police Traffic Department in 1991. He had gone to the locus with Constable Gamble at about 11.30pm on 7 August 1991. Constables Maurice Wells and Caroline Scott were present at the locus on the arrival of this witness. By that time, the casualties had been removed; only the motor car driver was still present. This witness confirmed that the damaged vehicles were in the location shown in the photographs No 21/1 of process, which the witness had taken. He had also taken measurements at the locus, which he could not now recollect; he had no record of them now. It was plain from the damage to the motor car that it has been struck with considerable force by the motor cycle. The witness said that he had not attempted to separate the damaged vehicles; that had been done by recovery contractors. Examination of the motor cycle indicated that it had suffered extensive damage at the front. Asked if the witness had formed any impression of the speed of the motor cycle at the time of the collision, he stated that, in his opinion, it would have been well in excess of the 40 mph speed limit. This witness had been unaware of the existence of any independent witnesses at the accident.

[14] In cross-examination the witness said that his estimate of the speed of the motor cycle was based upon the damage which he had observed and upon his experience. His opinion was that the motor cycle had struck the car at right angles and had caused it to move round into the position seen in the photographs No 21/1 of process. In the opinion of the witness, it might have been possible that the car had been moving forward slowly at the time of the collision, although he had thought it more likely that it would have been stationary.

[15] At this point in the evidence, senior counsel for the third party moved the Court to allow the evidence of a witness for the third party to be interponed within the defender's case, for practical reasons. There being no objection to that course, I allowed it to be followed. In consequence, the next witness was Craig McDonald Brisbane. He testified that on 7 August 1991 he had been present as the front seat passenger in a motor car going in the direction of Linwood on the perimeter road there. The car, in which he had been a passenger, had been coming from the Paisley area. He had witnessed the accident. At the time in question, the car in which he was a passenger had been going westwards on the perimeter road. He had seen a motor cycle in front, with its headlights on, coming in the opposite direction to that of the car in which he had been a passenger. He had seen the Sierra motor car pull up to the junction between Melrose Avenue and the perimeter road. He said that he had seen the car come out of Melrose Avenue without stopping; it had then entered the eastbound carriageway of the dual carriageway where it had stopped in the inside lane. A moment later, it moved forward and to the right. The motor cycle had moved from the inside lane, in which originally it had been travelling, to the outside lane, in order to pass the car, prior to the collision. However, because of the movement of the car, a collision occurred. The witness said that thereafter the car in which he had been travelling had stopped and he had alighted from it. He had approached the scene of the accident. He had spoken to a person there. Adrian Coats had been lying unconscious on the roadway at a distance which the witness estimated at 50-60 yards away from the motor car involved in the accident. The driver of the motor cycle, Gerald Houton, was also present, although this witness did not know him at that time. He was on the ground in a lot of pain. He had asked the witness how Adrian was. The witness said that two police officers had arrived at the scene about five minutes after the occurrence of the accident, to whom the witness had spoken. The witness said that a male police officer had approached him saying: "Where's your stolen car?" The witness said that this remark had caused him to lose his temper and to swear at the police officer and to make a complaint about the fact that an ambulance was not present at the scene. The witness went on to explain that, at the material time, he had a number of past criminal convictions and also criminal cases outstanding against him. He agreed that he had a considerable criminal record. Asked whether he considered that the motor cycle rider had had an opportunity to avoid the collision, he stated that he had indeed tried to do so, but that the car had moved forward in circumstances which rendered the collision inevitable. He had moved from the inside to the outside lane of the eastbound carriageway. The motor cycle rider did not have a chance to avoid the accident. The witness said that he was telling the truth about these matters; he had no reason to tell lies in relation to them. In answer to a question by myself, the witness said that he had told the police that he had seen the accident occur.

[16] In cross-examination, the witness frankly agreed that he was not a stranger to the criminal courts. He had convictions for theft by housebreaking in relation to garage premises, theft of cars, drug dealing and reset. He stated that one of the police officers at the locus had seemed to know him as a car thief, judging from the remark which he had passed. The witness said that he had told that police officer that he, the witness, had seen the accident take place. He explained that he had spoken to the driver of the motor cycle and had re-assured him that the pillion passenger was all right, although in fact, at that time, he was lying unconscious on the ground gurgling. His purpose was to comfort the driver of the motor cycle. The witness said that he had told numerous people about the accident. A firm of solicitors had got into contact with him concerning it. He was not sure for whom they acted. Some time after the accident, he had seen the third party and had given to him his name and address. He had got the third party's address from a Stuart McGregor. The witness had gone to the house of the third party, where he was recovering from his injuries. The third party had thanked the witness for his involvement. The witness agreed to see the third party's solicitors. In that conversation, the witness had not discussed the circumstances of the accident with the third party; rather they had discussed the very serious injuries which Adrian Coats had sustained. The witness said that he had been embarrassed by being thanked so much by the third party for having come forward as a witness. The witness said that he had seen Adrian Coats go through the air immediately following the collision. He had been under 200 yards away from the locus at the moment of impact. The Sierra motor car had had its front wheels in the outside lane and its rear wheels in the inside lane of the eastbound carriageway of the A761, when the collision actually occurred. Shown photographs No 21/1 of process and, in particular photograph B, the witness said that it showed the car involved within a foot or so of the position which it had occupied at the moment of impact. He considered that it had move slightly forward after the impact by about a foot or 18 inches. The impact had occurred in the outside lane of the eastbound carriageway. This witness explained that he had been in employment up to the day before the accident in his father's business. As regards the conditions at the time of the accident, the witness said that it had been a fine August summer's night and not as dark as was shown in the photograph B. There had still been some light in the sky.

[17] Shown the document No 42/4 of process, an Accident Enquiry-Questionnaire, the witness agreed that he had signed it. As that document indicated, the witness had first noticed the motor cycle when he was about 500 yards away from it. The witness said that he was not now sure what the position had been regarding the car's headlights. He was questioned in detail about his answer to question 3 in the Questionnaire. The witness insisted that the crash had actually happened in the middle of the road, but that the car had moved a foot or two further on before coming to rest. The witness had drawn a sketch which appeared on page 2 of the questionnaire. The witness agreed that, in that sketch, he had appeared to show the collision occurring in the inside lane of the eastbound carriageway; he stated that that was incorrect, for which he apologised. The account of events which he was now giving in evidence was in accordance with his recollection. The witness agreed that he had visited the Coats family. Mrs Coats had been most grateful for the witness having come forward. He explained that his attention had been attracted to the motor cycle because his own brother was the owner of a motor cycle. This witness agreed that he had spoken to the third party, as described, prior to the making of a public appeal for witnesses to the accident.

[18] The last witness for the defender was Mr Peter Sorton of Peter Sorton and Associates, Road Traffic Accident Reconstruction Consultants. This witness had served 21 years in the Metropolitan Police and had specialised in road traffic accident reconstruction. For the last 16 years he had been in private practice in the same field. He had extensive qualifications in road traffic engineering. He also possessed advanced qualifications in driving motor vehicles and motor cycles. He was extensively involved in instruction of drivers and in lecturing at the University of Manchester in relation to subjects within his expertise. He had undertaken theoretical research in relation to road traffic accidents. Currently he acted in criminal and civil cases for any party from whom he received instructions. He frequently gave evidence in courts of law in relation to such matters. In the present case he had been instructed on behalf of the Eagle Star Insurance Company, who were the insurers of the defender, in relation to the accident concerned.

[19] The witness had made certain investigations in connection with the present matter and had prepared a report thereafter, which was No 40/1 of process, dated 5 May 1993. He had visited the locus of the accident in December 1992 in darkness and again on 31 March 1993 in daylight. He had taken the series of photographs which were produced as No 40/1 of process. He had also prepared the scale plan of the locus No 49/4 of process. The witness agreed that the only witness to the accident whom he had been able to interview was the defender. However, he had obtained certain information from the police. It was a matter of agreement in the present case that the pillion passenger on the motor cycle, following the collision, had been projected in an easterly direction for a distance described by the investigating police officer as being 24.1 metres. The witness had had the benefit of examining the photographs of the accident scene taken by police officers. This witness was taken in detail through the photographs which he himself had taken of the locus, No 40/1 of process, describing the positions from which they had been taken. Photograph 7 showed the view which a driver of a car leaving Melrose Avenue would have to the west. There was a clear field of view of 250 metres in that direction.

[20] The witness explained that the plan No 49/4 of process was to scale. The eastbound carriageway, at the mouth of Melrose Avenue was 7.45 metres or 24.45 feet wide, which was sufficiently wide to accommodate two lanes of traffic. The central reservation at the same point was 4.4 metres or 14.45 feet wide. The length of a Ford Sierra motor car was 4.468 metres, that is to say marginally greater than the width of the central reservation at the point concerned. The westbound lane of the A761 at the locus of the accident was 5.7 metres or 18.7 feet in width. The width of the break in the central reservation was 12.8 metres, or 42 feet. All of these matters were described in detail in the report No 40/1 of process.

[21] This witness had endeavoured to calculate the speed of the vehicles at the moment of impact. The methodology and results of this exercise were set out in paragraphs 61 to 69 inclusive of the witness's report. The calculations were based upon the agreed distance of 24.1 metres between the motor car and the pillion passenger from the motor cycle following the collision and the physical appearance of the scene, as shown in the police photographs No 21/1 of process. As a result of this exercise the lowest speed at which the motor cycle could have been travelling at the moment of impact was 34 mph. It was possible that the speed was greater than that, depending upon the degree of restraint of the pillion passenger and the angle at which he had been projected from the motor cycle.

[22] The witness gave evidence concerning the apparent point of impact and its significance. He concluded that the motor car was probably at rest or moving very slowly at the moment of impact. It appeared that the car had been rotated in an anti-clockwise mode by a foot or two in an easterly direction by the force of the impact. If the car had been moving at a greater speed, one would have expected its momentum to have carried it further forward following the collision. At paragraphs 70 to 78 of the report of the witness, he dealt with reaction times and the time available to the rider of the motor cycle in which to take action. This treatment was based on the account which the defender had given to the witness of his actions immediately before the impact. In paragraph 74 of the report, upon the assumptions made by the witness, the initial speed of the motor cycle would have been around 68 mph. As I understood it, these calculations were based upon the assumption, inter alia that the defender had looked westwards and seen nothing prior to moving out of Melrose Avenue. The fact that he had seen nothing indicated that, at that time, the motor cycle must have been in excess of 250 metres away. However, having explained these calculations, the witness agreed that they were "all very speculative", which was a problem. In paragraphs 79 to 85 inclusive of the report, the witness set forth his reasoning and conclusions, based upon the various assumptions which he had made and the material available to him.

[23] In cross-examination, Mr Sorton made clear that it would have taken 3.3 seconds for the car accelerating normally or going at a constant speed of 5 mph to travel from the junction point in Melrose Avenue to the point of impact. The figure would have been 4 seconds if the driver of the car had actually halted at the impact point. The figure of 68 mph postulated by him as a speed for the motor cycle was arrived at by assessing the 3.3 seconds and taking into account heavy breaking down to a speed of 34 mph at impact and also assuming a one second reaction time. The witness had assumed that heavy braking by the motor cycle took place following reaction time, although he acknowledged that heavy braking was not the only option to a motor cycle rider available in the face of a crisis. Steering out of the area of danger was also a possibility. To move from one lane of a carriageway to another would take 2 seconds on a motor cycle; that would require to be increased to 3 seconds if one second of thinking time was taken into account. The time involved could be even more, particularly if the rider was to arrive at a position near the central reservation. Further, it was acknowledged that swerving and braking could be undertaken simultaneously, although it was never prudent to brake heavily when swerving a motor cycle. It was possible that one driver could make an assumption regarding the intended course of another driver and steer in an appropriate way, based on that assumption, but it might also be prudent to reduce speed as well, in order to deal with the possibility that the assumption made was wrong. Following the evidence of this witness the defender's case was closed and the Joint Minute of Agreement, No 51 of process was lodged.

[24] The third party, Gerald Houton, was led as a witness on his own behalf. He stated that he had a recollection of the events of 7 August 1991. He himself had sustained extensive injuries in the accident. Both of his legs had been broken, as had his right ankle; he had also sustained a number of other less serious injuries. These injuries had been followed by certain medical complications and, in consequence of his condition, he was detained in the Royal Alexandra Hospital, Paisley, where he remained until November 1991. Immediately after the accident, the witness stated that he was incapable of walking. He was found on the road on the east side of the Sierra motor car.

[25] Prior to the accident he had been riding the Honda motor cycle with Adrian Coats as a pillion passenger. He had met Coats in Houston, where they had spent some time together. Thereafter he intended to visit his sister in Paisley. Adrian Coats wished a lift, which the witness agreed to provide. The witness was unable to say exactly what was the time when the accident occurred; however it was quite dark. The headlights of the motor cycle had been illuminated. The route being followed took the motor cycle into the so-called perimeter road, along which it was travelling in an eastwards direction. This road was partly dual carriageway. Each carriageway was wide enough to accommodate two lanes of traffic.

[26] The witness explained that when he came to the section of the A761 which was dual carriageway, in the vicinity of Melrose Avenue, he was travelling in the inside lane of the eastbound carriageway. He stated that his speed at that stage had been in the region of 35-40 mph, certainly not over 40 mph. As he approached the junction with Melrose Avenue, the Sierra motor car appeared at the junction. It hesitated, that is to say it slowed down or stopped completely, the witness was not sure which. He took that to show that the driver of the car had seen the motor cycle. At that stage and in those circumstances, the witness did not regard the Sierra car as a hazard. He assumed that the driver of that car was waiting in order to perform the manoeuvre of turning right. However, that situation changed. The witness said that just as he was about to pass the junction, the car began to emerge from Melrose Avenue. In consequence, the witness was confronted with an emergency and had to make a decision as to what to do. He decided to move to the outside lane, in order to go in front of the Sierra car. The witness moved into the outside lane and came quite near to the central reservation. The movement which he executed was a sudden movement necessitated by the behaviour of the driver of the Sierra. The turn which the motor cycle required to undertake meant that the passengers lent right over. The witness said that he did not brake since that would have hindered the manoeuvre which he was attempting to undertake. Asked why he did not decide to go around the back of the Sierra car, he said that he had been assuming that the driver of the Sierra would brake in order to let the motor cycle pass in front. In any event, the witness said that he had gone for the only gap in front of him which he could see. Unfortunately the collision occurred. It was the impression of the witness that it was only at the moment of the collision that the driver of the Sierra car first saw the motor cycle. Under reference to the photographs, No 40/1 of process, and in particular photograph 6, this witness said that he considered that, when the Sierra car began to emerge from Melrose Avenue, the motor cycle would have been in a position aligned with the photographer but in the inside lane. The witness said that the situation which developed gave him no time to avoid an accident. Following upon the collision, he found himself lying on the tarmac of the road to the east of the Sierra car. He was incapable of walking. He lay there for a while and took his helmet off. Thereafter he sat up and looked at his legs, seeing that they were both broken and "in a knot". He succeeded in untangling them but thereafter became affected by pain and nausea, collapsing back onto the road. The defender had appeared and stood beside him. This witness said that the defender had said to him: "Sorry mate, I didn't see you." The witness said that thereafter he heard footsteps approaching and the person whom he knew to be Mr Brisbane appeared. He had asked after the witness, who, in turn, had asked him as to the condition of the pillion passenger. According to the witness he did not reply directly to that enquiry. He gave him some comforting words. Following these events, the witness said that he became increasingly shocked and began to lapse into unconsciousness, although he remembered the arrival of police officers and an ambulance, in which he was removed from the scene. The witness said that police officers were present at the locus when Craig Brisbane was there. He did not know whether any conversation had passed between them.

[27] In cross-examination the witness said that he had never met Craig Brisbane before the accident. He had met him once after it, possibly in 1992. He understood that Craig Brisbane was acquainted with Adrian Coats. On the occasion of his meeting with Craig Brisbane after the accident, he had been in the company of Adrian Coats. There had been a very general discussion concerning the accident. The witness thought that the Sierra car had begun to emerge from Melrose Avenue when the motor cycle was about 25 metres from the locus of the accident, travelling at 35-40 mph. The Sierra car had come out of Melrose Avenue fairly quickly. The witness was emphatic that, when the car began to move out, he had not braked but swerved into the outside lane of the carriageway near to the central reservation, in order to pass the car. At this point, the witness was referred to the document No 50/1 of process, a report, dated 24 September 1999, by Graham Leicester, a specialist traffic accident investigation and reconstruction consultant. In paragraphs 16 to 21 inclusive of that report there was a narrative of statements said to have been made by the witness to the author. In paragraph 20 of that report it was narrated that the witness had said to the author that he believed he had braked, but the car had continued to come out. He braked harder, but could not avoid a collision. The witness agreed that he had met the author of the report in the company of senior counsel. As regards paragraph 20, the witness said that, if he had braked as narrated, the motor cycle would have gone out of control. He could not say why the author of the report had recorded the passage quoted as representing his position; it did not. I should explain that no evidential status was accorded to this report by any witness, or by agreement. The witness was further questioned about the speed at which he was travelling immediately before the accident. He insisted that he was not breaking the speed limit of 40 mph. The witness had the distinct impression that the defender had not seen the motor cycle until the moment before the collision occurred. If the Sierra car had been stopped in the outside lane of the eastbound carriageway just at the entrance to the central reservation gap, then the witness said that he would simply have driven round the rear of it in the inside lane. No other evidence was led on behalf of the third party.

[28] In the light of the evidence led and produced in this case, in my opinion, certain facts have been clearly established. In particular, it appears to me that there is little doubt at all that the point of collision between the motor cycle and the Sierra motor car was within, at most, a foot or two of the positions of those vehicles shown in the photographs, No 21/1 of process, taken shortly after its occurrence by Police Constable Lachlan McLeod. It was a matter of general agreement in the evidence that the motor car must have been forced a foot or two to its right at the front by the force of collision out of the line which it had been following towards the gap in the central reservation. That was the effect of the evidence given by Police Constable James Gamble, Police Constable Lachlan McLeod and Mr Sorton. There was no suggestion that the vehicles involved in the accident had been moved following upon it, prior to the taking of the photographs in question.

[29] Another matter which appears to me to be clearly established is the minimum speed of the motor cycle at the moment of collision, as calculated by Mr Sorton. His calculations had two bases, first of all the agreed distance between the motor cycle in its position shown in the photographs, No 21/1 of process, and the point at which the pillion passenger came to rest, of 24.1 metres and, as explained in paragraph 65 of his report, No 40/1 of process, the distance through which the motor car was displaced in an easterly direction by the force of the collision. While that distance was estimated at not more than 3 feet, whereas the distance of 24.1 metres was the product of measurement, the calculations based upon those figures brought out almost identical figures. As Mr Sorton observes in paragraph 66 of his report, the two bases of calculation bring out consistent figures of 34 and 36 mph. He was prepared to accept the figure of 34 mph.

[30] A further matter which appears to me to be clearly established is that, at the moment of collision, the Sierra car was either moving very slowly or had actually come to rest. That was the view of a number of witnesses, which was not contradicted by any evidence. Had the car been moving at anything other than a very slow speed, its momentum could have been expected to carry it forward into the gap in the central reservation, which of course did not occur.

[31] It is, in my view, a matter of rather greater difficulty to reach a conclusion relating to the events which led up to the collision between the two motor vehicles. Direct eye-witness evidence was, of course, available from the defender himself and from the third party himself. Adrian Coats, the incapax, is agreed, in paragraph (1) of the Joint Minute of Admissions, to have no recollection of the accident; accordingly he is not a source of evidence regarding it. Craig Brisbane was adduced on behalf of the third party as an independent eye-witness of the events concerned, indeed, the only one. As will be apparent from my summary of the evidence, a dispute emerged as to whether he was an eye-witness at all, as he claimed. That question plainly raises the issues of his own credibility as a witness, that of the third party, who testified to the effect that he was present immediately after the accident, and that of Police Constable Maurice Wells, who was emphatic that, at no time during his presence at the locus that evening, did Craig Brisbane appear. So far as Woman Police Constable Caroline Scott is concerned, the position is less clear-cut. So far as her recollection went, no person other than those whom she mentioned appeared at the scene. However, her evidence appeared to leave open the possibility that she either did not notice his presence, or had forgotten about, it in consequence of the passage of time.

[32] Dealing first with the evidence of Craig Brisbane himself, I was impressed by the frankness with which he readily acknowledged that he had numerous criminal convictions for, inter alia, crimes of dishonesty. Having done so, he gave a detailed and lucid account of what he said he had seen and what had transpired following the accident. He appeared to me to be understandably indignant at the way in which he said that he had been treated by a police officer present at the locus, when he had presented himself there and indicated that he was an eye-witness to the accident. Following those events, the witness had taken the trouble to complete the Accident Enquiry-Questionnaire, No 42/4 of process, at the request of one of the firms of solicitors involved in this case. In that form he answered a considerable number of detailed questions about the circumstances and drew a detailed plan of the locus of the accident. I find it quite impossible to conclude that these circumstances are consistent with this witness having concocted his evidence and thereafter having committed perjury before the Court. A suggestion was made, which I had difficulty in following, that, in some way, because of the acquaintance existing between Craig Brisbane and Adrian Coats, the witness had a motive to commit perjury. Having regard to the fact that the claim of Adrian Coats was almost certainly bound to be satisfied by either the defender, or the third party, or both, it appears to me that that acquaintance does not in fact constitute a motive for telling lies. It was not suggested that Craig Brisbane had any relationship with the third party which might have furnished him with such a motive.

[33] Part of the attack on the credibility of Craig Brisbane was based upon the evidence of Police Constable Maurice Wells. In my opinion, important parts of the evidence of that witness were incredible. As I have narrated, he claimed that, after the accident, the driver of the motor cycle was walking about and was not significantly injured. He said that there was no question of that individual having been in pain with two broken legs. That evidence is plainly in conflict with indisputable fact. Furthermore, when it was put to him in cross-examination that Craig Brisbane had been present at the scene and had had an altercation with him, he denied the suggestion with what appeared to me to be rather more indignation than the situation warranted. In these circumstances, I regret that I find myself unable to believe his evidence in relation to these matters. In my assessment of the evidence, Craig Brisbane was indeed an eye-witness of the accident and presented himself at the locus immediately following its occurrence. I accept his testimony, to the effect that his reception by a police officer, who must have been Police Constable Maurice Wells, was hostile and inappropriate. I conclude that, thereafter, Constable Wells was simply unprepared to recognise that the witness could have had any useful information about the accident to impart. Accordingly, his existence was not even recorded in the relevant documentation, No 42/3 of process.

[34] A further reason for my regarding Craig Brisbane as a credible witness lies in the fact that, as regards crucial matters, his evidence appears to me to coincide with that of the third party, with whose credibility I shall deal below. A particular point of criticism was made against Craig Brisbane, based upon the fact that, at the locus, he had misled the third party concerning the condition of Adrian Coats. He himself acknowledged that he had done this, but explained that he was anxious to reassure the third party, who was himself seriously injured, concerning the pillion passenger, rather than distress him by giving an accurate account of the very serious injuries which the latter appeared to have sustained. I do not regard this criticism as a serious obstacle to my acceptance of Craig Brisbane as a credible witness.

[35] Having decided, for the reasons which I have given, that Craig Brisbane was indeed an eye-witness of the accident and, moreover, an independent one, it is now necessary to consider the whole evidence available concerning the events leading up to the collision, with a view to deciding what in fact occurred. Dealing first with the evidence of the defender, while I have no serious criticism to make of his demeanour as a witness, certain features of the evidence which he gave appear to me to cast doubt upon its credibility and reliability. In particular, the defender gave evidence to the effect that, having driven out from Melrose Avenue across the eastbound carriageway of the perimeter road, he stopped his car before entering the gap in the central reservation and remained in that position for a period estimated at 5 seconds. It appears from paragraph 34 of Mr Sorton's report, No 40/1 of process, that the defender said something different to him concerning the period concerned. It is there narrated that the period was 10 seconds. However, in addition to that, I had great difficulty in understanding and accepting the point made by the defender as to why he said he stopped in a position where his car was blocking the outside lane of the eastbound carriageway. In evidence he said that his reason for so doing was a fear that he might create a crisis for the two on-coming cars which were then proceeding westwards on the road in question. However, he also acknowledged that it was quite possible to get a car at an angle into the cut in the central reservation without impinging on either carriageway. The measurements furnished by Mr Sorton plainly confirmed that. He measured the depth of the gap in the central reservation at 4.4 metres. The length of the Sierra motor car was stated to be 4.468 metres. Thus, for all practical purposes, there would be no difficulty in safely accommodating the car within the gap in the central reservation. In these circumstances, I find it impossible to accept the evidence of the defender as to his stopping his car in the position described.

[36] So far as the evidence of Craig Brisbane is concerned, I have already explained why I consider that, in its essentials, it is credible and reliable. Turning to the evidence of the third party himself, I have no criticisms to make of his demeanour as a witness. In its essentials, it appears to me that his evidence coincides closely with that of Craig Brisbane. None of the criticisms made of the evidence of the third party have had the effect of undermining my confidence in the evidence which he gave. Accordingly, I find that he is a credible and reliable witness.

[37] Since the report of Mr Sorton, No 40/1 of process, contains certain calculations designed to show the speed at which the motor cycle was travelling some little time before the collision, as opposed to its speed at the point of collision, it is appropriate that I comment upon those matters. It is plain from the report concerned that Mr Sorton's calculations and deductions were based upon an acceptance of the account of matters given to him by the defender. Furthermore, Mr Sorton had no opportunity to consider the account of matters which was available from the third party. In addition, he was unaware of there being any independent witnesses to the accident, as appears from paragraph 28 of his report. In these circumstances, taking the view which I do of the whole evidence, I am unable to accept the parts of the reasoning of Mr Sorton concerned. I have of course already indicated those parts of his evidence which I do accept. It is right to say that he himself recognised that the various speed calculations to which I refer were very speculative. In these circumstances, I am unable to give weight to those particular parts of his report.

[38] I now turn to consider the precise terms of the case for relief which the defender seeks to establish in accordance with the onus which lies upon him to do so. In Answer 2 for the defender, he avers that:

Against that background, the averments of duty upon which the defender relies, as set forth in his Answer 3 are as follows:

[39] In my judgement, the defender has failed to prove that, prior to the accident, the third party was driving at an excessive speed. In my opinion, there is no acceptable evidence to the effect that he was driving at a speed in excess of 60 mph. Indeed, I am prepared to accept the evidence of the third party himself as to the speed at which he was driving. So far as taking notice of the defender's car on the eastbound carriageway is concerned, I find that there was no breach of a duty of reasonable care on the part of the third party. While the defender's car may have been either moving very slowly or even at rest at the moment of the collision, I am not prepared to hold that it had been at rest for any significant period of time, such as described by the defender. In my judgement, based on the evidence of the third party and Craig Brisbane, which I prefer to that of the defender, the circumstances were that that car, having stopped or hesitated at the entrance to the junction, pulled forward towards the gap in the central reservation, at a time when the third party had no reason to expect that that would happen. Against that background, I consider that the third party, in the crisis of the moment, took action, which appeared to him to be reasonable and which I do not think can be criticised, of moving into the outside lane, with a view to passing the defender's car in front of it. In my opinion the fact that he failed to achieve that end is not attributable to fault on his part. I consider that there was a slowing down or stopping of the defender's car at or near the mouth of the junction with Melrose Avenue. It appears to me that the third party acted reasonably in supposing from that occurrence that the defender had seen the approach of his vehicle. In these circumstances, I see no reason why the third party should, at that stage, have braked or reduced the moderate speed at which he was travelling. However, it is quite apparent that the defender had not in fact seen the oncoming motor cycle, since he emerged from the junction when it was but a short distance away. In that respect I am prepared to accept the third party's estimate of that distance. Faced with that crisis, I do not consider that the third party's actions can be criticised; as Craig Brisbane put it, he did not have a chance. In any event, no duty of care is pled formulated upon the basis that the third party acted in some inappropriate way in the circumstances of a crisis. In all these circumstances, I consider that the defender's case for relief against the third party fails. Accordingly I shall repel the defender's plea-in-law 4, sustain the third party's pleas-in-law 2, 3 and 4 and grant decree of absolvitor in favour of the third party.