Opinion of Lord
Macphail
Donald Robertson
(Pursuer)
against
Inspirations East
Limited (Defenders)
Summary
14th February 2006
This action
of damages for personal injuries concerns holidaymakers who were involved in a
road accident in Turkey on 17 June 1995. In all, six actions were brought against
Inspirations East Ltd., the company with which the holidaymakers had contracted
for their holidays. It was agreed that
the decision in Mr and Mrs Robertson's action would determine the question of liability
in all six actions.
Lord Macphail
decided that the pursuers had not established on a balance of probabilities
that the coach driver was to any extent to blame for the accident, and absolved
Inspirations East Ltd.
This is one of six actions of damages for personal
injuries which arise from a road accident in Turkey on 17 June 1995. A number of
holidaymakers flew from Scotland to Turkey on package holidays. They arrived at Dalaman Airport in Turkey and were on their way by
coach to their hotels in the holiday resort of Marmaris when the coach collided
with a lorry. Three of the coach
passengers and the driver of the lorry died in the accident. The pursuers in these six actions either
suffered the loss of a relative or were seriously injured themselves as a
result of the accident. In these six
actions they sued Inspirations East Ltd., the company with which they had
contracted for their holidays. It was
agreed that the decision in Mr and Mrs Robertson's action would determine the
question of liability in all six actions.
Although the accident took place in Turkey, the parties agreed that
the Court of Session had jurisdiction to hear the case and that the law of Scotland applied. While the action arose from the alleged
negligence of the coach driver, its legal basis was that his negligent driving
was a breach of the contract between the pursuers and the defenders. The contract was a "consumer contract", and
the Civil Jurisdiction and Judgments Act 1982 allows a consumer to bring an
action concerned with matters relating to such a contract in the courts of the
place in which the consumer is domiciled.
The pursuers are domiciled in Scotland. The law of Scotland applied because in a civil
case the law of another country is presumed to be the same as the law of Scotland if, as in this case,
neither party alleges and proves that it is different.
Another passenger in the coach, Ms Linda Ellison,
brought a similar action against Inspirations East Ltd. which was heard by Lord
Hardie in 2002. Lord Hardie held that
the coach driver was not to blame for the accident, and his decision was
affirmed by the First Division.
The accident happened in darkness in the early hours
of the morning. Lord Macphail found that
the lorry was travelling towards the coach when it swerved into the path of the
coach three times, colliding with it on the third occasion. Lord Macphail said that the time between the
coach driver's first sight of the lorry and the impact was probably no more
than about 13 seconds.
The accident had occurred more than 11 years ago and
had been a traumatic experience for the coach passengers who gave
evidence. Some had been injured, while
others had seen their friends or fellow-passengers injured or dying. In these circumstances the search for
trustworthy evidence, especially in relation to speed, times, distances and
vehicle movements was extremely difficult.
Lord Macphail found that the coach driver had braked
and swerved to the right before the impact, but the evidence was much too
imprecise to enable him to reach any conclusion as to whether the coach driver
had had time to react earlier than he did and so avoid a collision.
Lord Macphail therefore held that the pursuers had
not established on a balance of probabilities that the coach driver was to any
extent to blame for the accident, and absolved the defenders.
NOTE
This summary is
provided to assist in understanding the Court's decision. It does not form part of the reasons for that
decision. The full report of the Court
is the only authoritative document.
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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 30
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A1602/01
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OPINION OF LORD MACPHAIL
in the cause
(FIRST) DONALD
THOMAS ROBERTSON (AP)
and
(SECOND) JUNE
ROBERSTON (AP)
Pursuers;
against
(FIRST)
INSPIRATIONS EAST LTD
and
(SECOND) RAMSAY
WORLD TRAVEL LTD
Defenders:
________________
|
Pursuers: A. Smith, Q.C., A.E. Smart; H.B.M. Sayers
First Defenders: Mitchell, Q.C., R.G. Milligan; Simpson &
Marwick
Second Defenders: No appearance
14 February 2007
Introduction
[1] This
is the leading action of six actions of damages which are to be conjoined. In
each case the pursuer or pursuers sue Inspirations East Ltd. In this action and in three of the other
actions another company is called as the second defender, but none of these
second defenders has compeared. All six
actions arise from a road accident which occurred in Turkey
as long ago as 17 June 1995.
The pursuers had set out on package
holidays from Glasgow to Turkey
and had flown from Glasgow Airport
to Dalaman Airport
in Turkey. Having arrived at Dalaman
Airport they were being conveyed by
coach from the airport to their hotels in the holiday resort of Marmaris. On
the journey to Marmaris, the coach collided with a lorry. Three of the coach passengers and the driver
of the lorry died in the accident. The
pursuers, and others, were seriously injured. In this action the pursuers blame the coach
driver for the accident and sue Inspirations East Ltd, with whom they had
contracted for their holidays, and Ramsay World Travel Ltd, who are the travel
agents through whose agency the contracts were made. Inspirations East Ltd are the only compearing
defenders and are referred to hereafter as "the defenders".
[2] Although
the accident took place in Turkey,
the parties are agreed that this Court has jurisdiction and the law of Scotland
is applicable. This Court has
jurisdiction in this way. While the
action arises from the alleged negligence of the coach driver, its legal basis
is an alleged breach of the defenders' obligations under a contract between
them and the pursuers. It is agreed that
there is a contract between the defenders and the pursuers which relates to a
package holiday within the meaning of the Package Travel, Package Holidays and
Package Tours Regulations 1992 (S.I. 1992, No. 3288) ("the Regulations"). Regulation 15(1) makes the defenders liable
to the pursuers for the proper performance of the obligations under the
contract; and the pursuers say that the allegedly negligent actings of the
coach driver amounted to improper performance of the defenders' obligations
under the contract. The contract is a
consumer contract, and the action is concerned with matters relating to that
contract. When this action was raised in
1998, the rules as to jurisdiction over consumer contracts were set out in
articles 13 to 15 of Schedule 4, and rule 3 of Schedule 8, to the Civil
Jurisdiction and Judgments Act 1982. (The
rules now in force, which so far as material are to the same effect, appear in
paragraphs 7 to 9 of Schedule 4, and rule 3 of Schedule 8, all as substituted
by the Civil Jurisdiction and Judgments Order 2001 (S.I. 2001, No. 3929),
articles 1(b) and 4, and Schedule 2.) Rule 3 allowed the consumer to bring
proceedings against the other party to the contract in the courts for the place
in which the consumer himself was domiciled.
The pursuers in the present actions are the consumers and are domiciled
in Scotland. This
Court accordingly has jurisdiction. As
to the law to be applied, in this case the law of Turkey is presumed to be the
same as the law of Scotland since neither party has maintained the contrary
(Macphail, Sheriff Court Practice (3rd
edn, 2006), paragraph 9.18 and cases there cited).
[3] I
have now heard a proof before answer restricted to issues of liability only. The pursuers blame the coach driver for the
accident and found on regulation 15(1) of the Regulations, as I have explained.
The defenders say that the coach driver
was blameless and the accident was caused entirely by the fault of the lorry
driver. They rely on regulation 15(2),
the effect of which is that they will avoid liability if the improper
performance of the contract was attributable to a third party unconnected with
the provision of the services contracted for and was unforeseen or unavoidable,
or was due to unusual and unforeseeable circumstances beyond the defenders'
control, the consequences of which could not have been avoided even if all due
care had been exercised.
The factual dispute
[4] Many
of the material facts are not in dispute.
On record, the following facts are averred by the pursuers and admitted
by the defenders. Each of the pursuers
contracted with the defenders for a holiday in Marmaris, which included travel
between Glasgow and Marmaris. They
arrived at Dalaman Airport
on 17 June 1995. It had been arranged that they would be
conveyed by coach from the airport to their accommodation in Marmaris. The coach was a Mitsubishi Marathon coach
with the registered number 42 S 4494. The
driver's name was Dirgan Ucar [named elsewhere, and hereafter in this Opinion,
as "Uçar Dirgan"]. The coach uplifted
the pursuers and others, left the airport and was being driven in a
north-westerly direction towards Mugla, on the Dalaman to Mugla road. [It is common ground that in Turkey
vehicles drive on the right.] The weather was fine and visibility was good. [It is also common ground, however, that it
was early in the morning and it was still dark.] The road was a single
carriageway, with unmade hard shoulders on both sides of the road. At the same time, a Fiat 50NC motor lorry was
being driven on the road in a south-easterly direction towards Dalaman. The driver was Huseyin Termelez. As the lorry approached the coach, it began
to swerve and encroached into the northbound carriageway. [The pursuers aver that it did so "on two
occasions": the defenders aver that it did so "on at least two occasions".] The coach driver noted the danger and flashed
the headlights of the coach to warn the lorry driver. The coach continued to drive in the northbound
carriageway towards the approaching lorry.
A collision occurred between the lorry and the coach. The front of the coach and the left front of
the lorry collided, with the vehicles overlapping by about a third. The coach left the road and entered a ravine. The coach driver was subsequently convicted
of an offence within the 10th Division of Istanbul Criminal Court
and was found to be 25% responsible for the accident taking place. It should be added that the defenders believe
and aver that the lorry driver had fallen asleep at the wheel.
[5] The
following facts relative to the accident are agreed by joint minute. Following the accident, the resting positions
of the coach and the lorry were approximately 70 metres apart. The horizontal distance across the ravine was
approximately 5 metres. The depth of the
ravine at the point where the coach came to rest was approximately 3.65 metres. The point of collision between the front
nearside of the coach and the side of the ravine is shown by the circled area
on a photograph of the ravine (No. 13 of No. 6/17 of process). The latter "fact" is clearly wrong, as I
shall explain later.
[6] On
record, the following issues of fact are in dispute. First, as I have already noted, the pursuers
aver that the lorry encroached into the northbound carriageway "on at least two
occasions", while the defenders aver that it did so "on two occasions", prior
to the accident. The defenders' account
on record is that on the first occasion the lorry returned to its own carriageway
immediately; on the second occasion, the coach driver flashed his lights at the
lorry; the lorry then returned to its own carriageway; as the two vehicles
reached each other, the lorry suddenly and without warning swerved back into
the coach's carriageway.
[7] Secondly,
as to the speed of the coach, the pursuers aver that the coach driver, after
flashing his headlights, continued to drive towards the lorry at a speed of
about 45 mph in the northbound carriageway.
He had an opportunity to reduce speed but he failed to do so. At impact, the coach was being driven at a
speed in excess of 40 mph. The
defenders, on the other hand, say that after the coach driver flashed his
headlights the coach continued to drive in the northbound carriageway towards the
approaching lorry, but it reduced speed.
It was travelling at about 60 kph (37.5 mph) and reducing in speed.
[8] Thirdly,
as to the direction of the coach, the pursuers say the coach driver had an
opportunity to reduce speed and steer to the right, away from the crown of the
road, but he failed to do so. The
defenders say that when the lorry suddenly and without warning swerved back
into the coach's carriageway, the coach started to swerve to the right but did
not have time to avoid the lorry.
[9] Fourthly,
the pursuers aver that the limited overlap in the collision between the
vehicles indicates that, had the coach been steered to the right shortly before
the collision, or had the speed of the coach been reduced, a collision would
have been avoided. In their averments of
fault, to which I shall refer later, the pursuers go on to blame the coach
driver for the accident and, in particular, they blame him for failing to
reduce speed and failing to steer to the right.
The defenders, on the other hand, aver that the coach driver had no
reasonable opportunity to take evasive action.
In their averments relative to liability they say that the accident was
caused entirely by the fault of the lorry driver. They also say, in their averments of fact,
that it would have been dangerous and unreasonable to drive on to the area of
hard standing next to the road. That
area, they say, was about 15 centimetres below the road surface; it contained
many loose stones, its surface was not stable and it was not safe to drive on,
even at low speeds. It narrowed
considerably just prior to the scene of the accident, and beyond it was a grass
area that sloped away to the top of the ravine.
The evidence
Previous
judicial investigations
[10] An unusual feature of this case is that reference has been made
in the evidence to two other judicial investigations into the accident. The first was an inquiry by a Turkish court a
few days after the accident. There are
produced in this case the accident report compiled by the Turkish police (No.
6/1 of process) and the site investigation record related to that inquiry (No.
6/2 of process). Translations of these
documents are contained in No. 6/3 of process.
It is agreed by joint minute that these documents are what they bear to
be. One of the witnesses in this case,
Mr Andrew Blair, gave evidence to the Turkish inquiry, and a version of what he
then said is included in the site investigation record. I shall refer to these documents later.
[11] Secondly, in 1998 one of the passengers in the coach, Ms Linda
Ellison, raised an action in this Court against the present defenders,
Inspirations East Ltd. The proof was
heard by Lord Hardie over four days in May 2002. The interlocutor which his Lordship
pronounced after proof was reclaimed. I have
not studied Lord Hardie's Opinion or the Opinions of the Judges of the Inner
House except to the extent that these have been referred to at the hearing on
evidence. The transcripts of the
evidence in Ellison have been lodged
(No. 7/7 of process) and are agreed by joint minute as a true and accurate
record of the evidence of the witnesses in that proof. I have read only those parts of the
transcripts to which reference has been made at the proof and the hearing on
evidence in this case.
[12] It is also agreed by joint minute that the evidence of three of
the witnesses in Ellison should be
treated as their evidence in the present case.
The first is Ms Marion Caryn MacKenzie, a solicitor who is a partner in
the firm of Field Fisher Waterhouse, London. In December 1995 Ms MacKenzie travelled to Turkey
and had a meeting with the coach driver, whose name she recorded as Uçar Dirgan. She communicated with him through an
interpreter, made handwritten notes during the meeting (No. 7/8 of process) and
thereafter composed a statement (No. 7/5 of process). It is agreed in paragraph 3 of the joint
minute that No. 7/5 of process is a true and accurate record of the terms of
his statement to Ms MacKenzie and that Ms MacKenzie's notes are No. 7/8. By the date of the proof in Ellison the whereabouts of Mr Dirgan
were no longer known. The second of the
three witnesses, Mr Douglas Russell, a partner in Simpson & Marwick, gave
evidence before Lord Hardie to the effect that Mr Dirgan could not be found and
all reasonable steps had been taken to find him. Ms MacKenzie gave evidence before Lord
Hardie about her meeting with Mr Dirgan and about the contents of her note and
the statement. That evidence was read
out in court in the present case. I have
read the evidence of Mr Russell. Mr
Russell gave further evidence before me, to which I shall briefly refer later.
[13] The third witness is Mr James Borland, who was a passenger in
the coach. The defenders have lodged a
soul and conscience certificate certifying that he is seriously ill and unable
to appear in court at the proof (No. 7/9 of process). I have also read Mr Borland's evidence.
[14] Several of the witnesses in Ellison
also gave evidence at the proof in the present case, as will appear from my
assessment of the witnesses in the following paragraphs.
The
scene of the accident
[15] Before discussing the evidence of the witnesses it will be
helpful to provide as a framework a brief outline of the scene and the basic
facts of the accident. It will become
apparent, however, when I review the evidence later in this Opinion, that it is
impossible to determine certain matters with precision. It will suffice to say at present that the
accident occurred after the coach had negotiated a right-hand bend in the road.
Thereafter the road, as seen from the
coach, was comparatively straight for a considerable distance. It went downhill at first and then became
level. The accident occurred when the
coach was going downhill and the lorry was going uphill. There is no acceptable evidence about the
speed of the lorry. There is no precise
evidence identifying the whereabouts of the point of impact. It is agreed, as I have already noted, that
as the lorry approached the coach, it encroached into the northbound
carriageway, the number of times it did so being a matter of dispute; that the
coach driver noted the danger and flashed his headlights to warn the lorry
driver; that the coach continued to
drive in its own carriageway towards the lorry; and that a collision occurred
between the two vehicles, their left fronts overlapping by about a third, after
which the coach left the road and entered a ravine.
Evaluation
of the eye-witness evidence
[16] It is important to appreciate, when evaluating the evidence of
the eye‑witnesses, that those events must have occurred within a very
short space of time. The acceptable
evidence, to which I refer later, indicates that the interval of time between
the eye-witnesses' first sight of the lorry and the impact between the two
vehicles was probably no more than about 13 seconds. It is also important to note that it was dark
and early in the morning: the time of the accident is not precisely
established, but it appears to have been at some time between 2.00 am and 4.30
am. The coach passengers had
travelled by air from Glasgow. For them
the accident was a traumatic experience: some were injured, while others saw
their friends or fellow‑passengers injured or dying. And the accident occurred more than eleven
years ago, on 17 June 1995. The proof in this case took place from 17 to 27 October 2006. In all these circumstances the search for
credible and reliable evidence, especially in relation to speed, times,
distances and vehicle movements, is for obvious reasons extremely difficult.
The
coach driver
[17] I shall begin by discussing the information given by the coach driver,
Uçar Dirgan, to Ms MacKenzie. I
have already noted at paragraph [12] above that Ms MacKenzie composed a
statement (No. 7/5 of process) after meeting him in Turkey
in December 1995, communicating with him through an interpreter and making
handwritten notes (No. 7/8 of process); and that it is agreed that the
statement is a true and accurate record of the terms of his statement to her,
and that her evidence in Ellison should
be treated as her evidence in the present case.
[18] At the hearing on evidence the pursuers' counsel nevertheless
submitted that the statement No. 7/5 of process was inadmissible. Reference was made to Young v National Coal Board 1960
SC 6. It was argued that the statement
was not a spontaneous statement of Mr Dirgan's position but was self-serving
and had been taken by a solicitor in circumstances that were post litem motam. It was plainly a precognition. In any event it was hearsay and its weight was
negligible or zero. The information had
been communicated to Ms MacKenzie by an interpreter who was in effect a taxi
driver and not a qualified interpreter who had taken the oath de fideli administratione; and the Court
had had no means of assessing his ability.
The Court also had had no means of assessing Ms MacKenzie and
considering how much care she might have exhibited; and crucially, the Court had
had no means of assessing Mr Dirgan himself as a witness.
[19] The defenders' counsel countered these submissions. He argued that the objection to the
admissibility of the statement should have been taken when the transcript of Ms
MacKenzie's evidence in Ellison was
about to be read. It came too late at
the hearing on evidence. A timeous
objection had been taken at the proof before Lord Hardie when the defenders had
tendered Ms MacKenzie as a witness, and the matter had been properly considered
then. Lord Hardie had repelled the
objection. (I note that Lord Hardie's
decision is reported: Ellison v Inspirations East Ltd 2003 SLT 291.) Ms MacKenzie had then been examined in chief
about the quality of the interpreter and about the manner in which she had
taken the statement. There had been no
cross-examination by counsel then appearing for the pursuer. In the present case her evidence had been the
subject of the agreement in the joint minute.
If the pursuers had wished to hear her evidence in court, she had been
available and could have been called as a witness.
[20] I have decided to repel the pursuers' objection on the ground
that it was not timeously stated. I
would add, however, that I find it curious that the pursuers should have
entered into the joint minute relative to the statement and Ms MacKenzie's
evidence if it was their intention to object to the admissibility of the
statement. A reader of the joint minute
would have reasonably assumed that there was no issue as to the admissibility
of the statement and Ms MacKenzie's evidence.
[21] It is necessary, however, to evaluate the weight of the information
attributed to Mr Dirgan by Ms MacKenzie.
I have decided to examine Ms MacKenzie's original contemporaneous
handwritten notes which she made at the meeting, and not the statement which
she subsequently composed, notwithstanding the agreement in the joint minute. I have noted that (1) the information is
presented in the form of hearsay evidence; (2) Mr Dirgan did not give the
information on oath; (3) he was not subjected to cross-examination; and (4) the
information has been mediated through an interpreter and (5) through a
solicitor who was acting for the defenders.
I have re-read the transcript of Ms MacKenzie's evidence, and her
manuscript notes, with these important considerations in mind. I am satisfied that Ms MacKenzie was an
experienced solicitor who was well accustomed to taking statements from
witnesses. She was carefully examined as
to the ability of the interpreter and the mental state and demeanour of Mr
Dirgan, and I am also satisfied that Mr Dirgan understood her questions and that
the interpreter translated her questions and his answers accurately. Her manuscript notes run to 15 pages. Considered together with her evidence, they
give me the clearest impression that she questioned Mr Dirgan in a thorough and
impartial manner. I am therefore
satisfied that her notes give an unvarnished account of what Mr Dirgan said.
[22] There remains, however, the important question whether the
information Mr Dirgan gave, although properly elicited and accurately
recorded, is credible and reliable. I
have taken into account, as considerations in favour of its trustworthiness,
the facts that he gave the information only some six months after the accident,
and that he did not know what the other witnesses would say. On the other hand I have been very conscious
of the disadvantages of having been unable to observe Mr Dirgan's
demeanour and to take account of any answers he might have given in
cross-examination. In this case, where
some witnesses have been critical of Mr Dirgan's driving, and all the
witnesses have been speaking to their perceptions over a very short period of
time prior to a disastrous accident which took place eleven years ago, the
benefits of seeing the witnesses in court and attending to what they said under
careful cross-examination have been very distinct. I have reached the conclusion that, at risk
of unfairness to Mr Dirgan, I should not rely on his unsupported word on any
material issue but should accept from him only information which is
corroborated by another witness or other witnesses. In so deciding I do not suggest that Mr
Dirgan's unsupported word is incredible or unreliable: I say only that in the
absence of corroborative evidence I consider it unsafe to affirm positively
that his word on a material issue is to be preferred where he stands alone or
is contradicted by other witnesses.
[23] In his account of the journey Mr Dirgan speaks of having to
slow down at a portion of the road which had been destroyed by a flood shortly
before he arrived at the stretch of road where the accident occurred. Mr Dirgan goes on to say that 100 metres
after that bad bit of road he changed up to fourth gear. He saw a lorry zigzagging up the hill 200
metres or more away. He could not guess
its speed but thought it was fast enough because it was approaching quickly. His own speed was 50 to 60 kph (31 to 37 mph).
He would have gone up to 70 to 80 kph
(43 to 50 mph), but he did not do so because he saw the lorry. The lorry's lights were on high beam and the
driver did not change his lights at all.
The lorry entered the coach's lane and returned to its own lane twice. Mr Dirgan had dipped his own lights, and he
tried to flash them quickly, four times or more. The lorry went straight for a very little
time then re-entered the coach's lane before the impact. Mr Dirgan moved the coach sideways to the
right and braked hard. He did whatever
was possible before the accident. He was
knocked unconscious by the impact, which was on his side of the coach, and he
lost control of the coach. He did not
hear anyone saying anything or screaming.
He denies that he was given any tea before the accident.
[24] I consider that Mr Dirgan is probably right in saying that he
slowed down to cross the bad bit of road, although none of the passengers remembers
it. The pursuers' counsel suggested that
he was wrong or lying about this matter, but it would seem to be a strange
mistake or a pointless invention. Mr
Dirgan is supported by the evidence of the defenders' skilled witness Mr
Mighall who saw and photographed such a portion of road when he visited the
accident scene some three weeks later (photograph No. 6/17/1 of process) and
saw coaches slowing down as they crossed it.
I consider, however, that Mr Dirgan's estimate of 200 metres or more as
the distance between the coach and the lorry when he first saw the lorry is
incorrect. Measurements taken by Mr
Mighall, to which I shall refer later, indicate that the distance from the
point where Mr Dirgan could reasonably have first seen the lorry and the point
of impact (although the latter point cannot be precisely determined) was over
200 metres. On the other hand the expert
evidence is consistent with Mr Dirgan's evidence in so far as it indicates
that there was time for two incursions by the lorry prior to the pre-impact
incursion. As to the lorry, there is
other evidence, to which I shall refer later, that its headlights were on full
beam, which supports Mr Dirgan on that point. As to the speed of the coach, the acceptable
evidence from the passengers, which I shall also discuss later, indicates that
its speed was about 40 mph, that is, a little above the upper end of Mr
Dirgan's estimated range. It is agreed
that he flashed his lights. There is
acceptable evidence which supports his testimony that he braked and swerved to
the right before the impact and, as I shall indicate, I accept that he did so. I think he is wrong, however, when he says
that no one brought him any tea before the accident. Several passengers speak to this, and I am
satisfied that Mr Dirgan's evidence is incorrect. I do not regard this discrepancy as sinister,
but rather as a failure to recollect a matter of detail. There is no reference in the pursuers'
pleadings in this action to his having any tea, and thus there is no suggestion
there that that had any bearing on the accident. Against his evidence that he did not hear
anyone shouting or screaming, there is evidence which I accept as truthful that
certain passengers shouted before the impact.
It appears to me that the likely explanation of Mr Dirgan's failure to
hear them is that his attention was fully occupied by the scene on the road
ahead of him.
The
coach passengers
[25] I shall now consider the evidence of the passengers in the
order in which they gave their evidence in the witness box. It was generally accepted that each of them
was doing his or her best to tell the truth as he or she remembered it. The issue in each case is not whether the
witness is credible, but whether his or her evidence is reliable. It will become clear that the passengers'
estimates of speed, times, distances and movements were frequently unreliable.
[26] The first witness was Mr Andrew Laughland. The pursuers attached great importance to his
evidence. He was sitting with his wife
in the front seats on the right hand side, across from the driver. Mr Laughland was an experienced driver, and
he estimated the speed of the coach as between 35 and 40 mph. He said that the lorry made two incursions
into the coach's lane, and hit the coach on the second incursion. On the first incursion it had stayed in the
coach's lane for three seconds, then returned to its own lane and stayed there
for five or six seconds before it came over half way into the coach's lane. It was in the coach's lane for 10 to 20
seconds before the impact. The coach
driver did not brake or take action to get out of the way of the lorry although
he had plenty of time to do so. He
thought the coach driver should have turned to the left. Before the impact, his wife had time to say,
"He's gonna hit us, Andy," and he had time to stand up and try to cover her and
say, "You'll be all right."
[27] While Mr Laughland's estimates of times cannot be relied on,
his estimate of the speed of the coach is consistent with the statement of the
coach driver. The significance of Mr
Laughland's evidence, if accepted, is that he saw the danger of the approaching
lorry on the final incursion and had time to react by trying to protect his
wife whereas, according to him, the coach driver did not react at all. I accept that he and his wife reacted as he
described. However, Mr Laughland's
opinion that the coach driver should have swerved the coach to the left casts
doubt on the accuracy of his appreciation of the situation. His opinion on that matter was not supported
by any of the skilled witnesses, and it is obvious that such a swerve would
have taken the coach more nearly into a head-on collision with the lorry. Mr Laughland sustained severe head injuries
in the accident, and he said that since the accident his memory had been "not
great". His evidence is not consistent
with the evidence of other witnesses that the coach driver braked and swerved
to the right, and I am satisfied that their evidence is to be preferred.
[28] Mr Laughland was referred to a document (No. 7/1 of process)
which bore to be a statement in manuscript that had been signed by Mr and Mrs
Laughland on 22 July 1995. It was suggested by counsel that the
statement had been composed in a Glasgow
solicitors' office, but its provenance was not proved. Mr Laughland could not remember anything
about it. The statement bears to be in
the words of Mrs Laughland, although it begins, "I Sandra Laughland and
Andrew Laughland of 70 Sycamore Court, East
Kilbride G75 9JT
hereby state ...". Mr Laughland could
not say if it was in his wife's handwriting.
It seems not impossible that it was some kind of joint statement
composed by a third party. In any event
the evidence about this document was unsatisfactory and I disregard it.
[29] Mrs Laughland's evidence was generally to the same effect as
that of her husband. She said that the
speed of the coach was not more than 40 mph, which is consistent with her
husband's evidence and the coach driver's statement. She also recollected, however, that the lorry
had come round a corner, while the coach had not come round a corner: that is
not correct. She spoke to her
exclamation that the lorry was going to hit them, and to her husband's standing
up to cover her: I accept that on these matters she is correct. She also said, however, that the coach driver
did nothing at all: he did not brake or go to the right. She would have gone to the left. The latter observation, together with her
evidence as to which vehicle had come round a corner, appears to me to cast
doubt upon the reliability of her evidence.
In addition, her evidence about no braking or swerving by the coach,
like her husband's evidence to that effect, is contradicted by the evidence of
other witnesses who I am satisfied are trustworthy on this point.
[30] The third witness was Mr Andrew Blair, aged 64, a retired
fork-lift truck and lorry driver. He had
held an HGV licence for over 20 years. He
gave evidence before the Turkish court and before Lord Hardie. He was a tall man of 6 feet 4 inches, and he
was sitting rather uncomfortably in the fourth or fifth row in the window seat
on the left hand side, slouched over the seat in front of him, with a good view
through the windscreen of the road ahead.
He estimated the speed of the coach as between 40 and 45 mph, which he
said was pretty fast for the road but not as fast as some drivers do. The coach had been in its correct lane. When he first saw the lorry it was in its
wrong lane. His evidence as to the
number of incursions by the lorry before the impact was uncertain, but he
eventually said that there were two. After
the second one, he ceased to pay attention to the lorry and he did not see the
impact. Before the impact he heard
someone saying, "Oh no, we're going to hit something". He was not aware of the driver braking or
turning the steering wheel. That was the
essence of his evidence in court in the present case.
[31] He was referred to the statement attributed to him in the
translation of the report of the Turkish proceedings. He is there quoted as having said, amongst
other things:
"Before the
crash, I saw our driver putting the brakes on, actually I felt it. Our driver was cruising normally in the right
hand lane, at a normal speed. But the
lorry was going fast. [ . . . ] The driver of our bus did whatever he could do
before the crash."
[32] I consider that I cannot have regard to this statement because
it is not proved that Mr Blair made it. It
is agreed by joint minute only that the accident report No. 6/3 of process
is a translation of the original Turkish police document No. 6/1 of process and
"is what it bears to be". It is not
agreed that the report contains an accurate account of what Mr Blair told the
Turkish court. It is therefore of no
consequence that Mr Blair said in the present case that if he said what was
attributed to him in the statement, it would be truthful, because he had no
accurate recollection of what he said, and what he said has not been proved. In any event I would not have been inclined
to accept the statement in the report as an accurate record of what Mr Blair
said. Mr Blair said in the present case
that his evidence had been elicited by question and answer; but the statement
is recorded in narrative form. Mr Blair
also said that the statement attributed to him information which he did not
have, when it quoted him as saying, "I gave the same statement to the Police in
Marmaris Hospital,
as did my friends", and "The other witnesses stated the same". Mr Blair said in
the present case that he had had no idea what other people had told the Police. He also added that the interpreter had been
very poor; he (Mr Blair) had just come out of hospital and was all strapped up
and dosed up; he was the only British subject there; it was a very trying
experience and he wanted out as quick as he could. In all these circumstances I would not have
accepted as reliable the statement attributed to him in the report.
[33] Mr Blair was also referred to passages in the transcript of his
evidence before Lord Hardie. The
transcripts (No. 7/7 of process) are agreed by joint minute to be a true and
accurate record of the evidence of the witnesses at that proof. In some respects Mr Blair's evidence in the
present case differed from his evidence in 2002. Thus in 2002 he said he had been talking to
his partner in the final seconds before the impact, whereas in the present case
he said that she had been sleeping. In
2002 he was clear that there had been two incursions by the lorry before the
incursion that preceded the impact. In
2002 he said that there had been a car behind the coach, but he could not
remember that when he gave evidence in the present case. In 2002 he had no reservations about the
speed of the coach: he agreed that the driver had been driving along in his correct
lane at about 45 mph, which he described as a normal speed. Having seen and heard Mr Blair in the witness
box, I am satisfied that where his evidence before me differs from what he said
in 2002, his evidence before me should not be accepted as accurate. Accordingly I do not accept his evidence that
the coach driver's speed was "pretty fast for the road". His evidence about the number of incursions
was too uncertain to be acceptable. I do
not consider that his evidence that the coach driver did not brake can be
accepted. Mr Blair's attention was no
longer on the coach and the lorry shortly before the impact, and his evidence
on this point differs from that of other witnesses whose recollection on this
point I am satisfied is reliable.
[34] Ms Linda Ellison, who was the pursuer in Ellison, was travelling with her boyfriend, who died in the
accident. Very understandably, she was
uncertain in various parts of her evidence.
She saw lights flashing and heard a horn or horns sounding, but she was
not sure from which vehicle. She did
say, however, that she thought there would be a crash and she thought some one
would have done something to avoid a head-on collision, but she did not think
anything happened to avoid the collision.
To her, the bus was going fast, but she could not say that it was
speeding. She did not drive. Her evidence indicates that in her view there
was time for something to be done before the collision. However, her view that nothing was done is at
variance with the evidence of other witnesses whose testimony on this point I
regard as trustworthy.
[35] Mrs Karen McKendry was snoozing. She heard horns sounding and people shouting
that they were going to crash. Her
husband put her head between her knees, but she did not know if he achieved
that before the impact. Thus she
indicates that there was time for some reaction by the passengers, and the
driver, before the collision.
[36] Ms Pauline Anderson was dozing.
She had a fleeting thought that they were going quite fast, but she had
no perception of anything until the impact.
Her evidence is accordingly unhelpful.
[37] Ms Anne Allen said she was trying to relax when headlights lit
up the bus and a man stood up and shouted, "They're going to f---ing crash". There was no swerving or braking by the bus. The lights, the shouting and the impact all
happened very quickly. I have no doubt
that she saw headlights and that the latter part of her evidence is true, but
again, I prefer the evidence which indicates that the bus did indeed swerve and
brake. She had understandably not been
paying attention to the road before the lights, the shouting and the impact,
and I do not think it would be safe to rely on her impression that there had
been no swerving or braking.
[38] Mrs Agnes Allen, Ms Allen's mother, said the first thing she
was aware of was of the man standing up and shouting. She then put her head down. She did not feel the bus slowing down. She would have been aware of hard braking:
she would have been jerked forwards, but she was not. I accept that she had time to react before
the impact, but in view of the other evidence which I regard as trustworthy, I
reject as unreliable her evidence that there was no braking.
[39] Mrs Margaret Reilly was in my view the most impressive of the
passenger witnesses. She impressed me
favourably as an alert, intelligent and careful witness.
She admitted that her memory had
been a lot clearer when she gave evidence before Lord Hardie, and that eleven
years after the accident she was "struggling".
In the present case she was able to remember that the coach had been on
a dual carriageway and then on a winding road before it reached the scene of
the accident. She was sitting in the
central seat on the bench at the back of the coach, and she had a clear view
down the aisle and through the front windscreen. She had felt a bit uncomfortable with the
coach's speed, which she thought was maybe 50 to 60 mph (I note that no
other witness speaks to a speed of this order, and here I consider Mrs Reilly
to be mistaken.) Her first recollection
of something not right was when she saw headlights in the path the coach was
travelling. She thought the lorry
encroached into the coach's path at least once; but if she had said to Lord
Hardie that it did so two or three times (as she did: No. 7/7 of process, pages
101-102), that was what happened. She
had time to ask a friend what side of the road they drove on in Turkey. The coach braked and moved to the side. The move was as if the driver had taken a
fork in the road at the point of impact.
However, while she was positive that the coach brakes had been applied,
she would have braked before she felt the driver brake. The coach slowed almost on impact. She felt the coach had tried to move out of
the way of the oncoming vehicle. The
braking began before the move to the side.
She thought the coach had just managed to avoid the lorry. But in her view, the driver should have been
assessing the situation and braking and moving across out of the path of the
vehicle. She knew as a driver that there
was time for that to have been done. She
felt the driver had still been wanting to travel at the same speed in line with
the oncoming vehicle, and was only giving way when he had to. She assented to the suggestion that it had
been like a game of "chicken", an expression used by Mrs Laughland in her
evidence. While I reject Mrs Reilly's
evidence of speed, I accept from her that the coach braked and moved to the
side before the impact. Whether the
coach driver should have braked and swerved earlier than he did is a matter
which I shall discuss later.
[40] The last passenger to give evidence was Mrs Shona Sopel. She saw the lights coming towards them, and
she had a sense that the coach driver was slowing down, but she did not really
remember. There was no violent braking. I am not satisfied that Mrs Sopel had a clear
recollection of the events of the accident, and I do not consider that reliance
should be placed on her evidence.
[41] I have read the evidence of Mr James Borland, the passenger who
gave evidence before Lord Hardie but was too ill to give evidence before me. Mr Borland told Lord Hardie that the first he
became aware of was a huge flash of light when the headlights of another
vehicle lit up the inside of the coach, and a loud explosion. The coach had been driving in a normal
fashion: he had no recollection of the driver driving in what he would term an
unsafe manner. He could not give any
indication of its speed. Neither counsel
referred to Mr Borland's evidence at the hearing on evidence, and I have not
found it helpful.
The
expert witnesses
[42] I heard the evidence of three expert witnesses: Mr Peter
Sorton for the pursuers; and Mr Steven Parkin and Mr George Mighall for the
defenders. Although the examination of
these witnesses occupied much time at the proof, the assessment of their
material evidence may be fairly shortly stated.
[43] Mr Sorton had given evidence at the proof before Lord Hardie,
but later had revised his views to some extent in the light of information
which he had not been afforded before he appeared before Lord Hardie. He was a witness with much relevant
experience, and he gave his evidence in a careful and measured manner. He did not visit the scene of the accident,
however, until 27 April 2002,
almost seven years after the accident. He
took a number of photographs, but by that time the layout of the road had been
altered from a two-lane to a three-lane highway, and the ditch where the coach
had come to rest had been filled in. Some
of his evidence was based on an assumption that a circled white mark in one of
the photographs (No. 13 of No. 6/17 of process), said to indicate the
place where the front of the coach had struck the side of the ditch after the
collision, was on the same level as the roadway. That assumption is clearly incorrect because,
as Mr Sorton himself said, for the coach to proceed horizontally across the
ditch after leaving the road it would have had to be going at an extraordinary
or even impossible speed.
[44] It is convenient to mention here that the parties had agreed in
paragraph 7 of the joint minute that the circled area in the photograph showed
"the point of collision between the front nearside of the coach and the side of
the ravine". It emerged in the course of
the evidence, however, that that would have been impossible. The experts said that if that had been so,
the speed of the coach would have been "infinite" (Mr Parkin), or "200 mph"
(Mr Mighall) or simply impossible to estimate (Mr Sorton). The pursuers' counsel nevertheless submitted
that the Court could not reject the fact agreed in the joint minute. I am unable to accept that submission. The pursuers' proposition must be that the
Court is obliged to try to reach a just conclusion on the basis of a state of
matters which has been shown to be nonsense, simply because it has been
incautiously agreed to be true in a joint minute. But the contract represented by paragraph 7
of the joint minute was obviously made in error. I therefore disregard paragraph 7. Having done so, I find that the circled white
mark is of no significance. Even if it
marks approximately where the front of the coach eventually came to rest, it is
not, in my view, possible to infer from it any precise information either as to
the point of impact between the vehicles or as to the manner of driving of
either vehicle before the accident.
[45] Mr Sorton's evidence was of value, however, because he was able
to show, as was Mr Mighall, that the coach must have moved to the right before
it collided with the lorry. That is
consistent with the evidence of Mr Dirgan and Mrs Reilly.
[46] I considered Mr Mighall to be a conscientious witness who was
trying to be helpful. He visited the
scene of the accident in July 1995 and made industrious investigations. He made many measurements and took numerous
photographs of the scene of the accident and of the vehicles. I shall refer to some of his measurements
later. Mr Mighall saw the portion of the
road which had been destroyed by a flood, as described by Mr Dirgan, and said
that vehicles had to go over it at a slow speed, as Mr Dirgan said he had
done. Mr Mighall also obtained a lorry
similar to the one in the accident and drove it along the road in the same
direction as the lorry was driving at the time of the accident, to see how fast
it could travel on that road in that direction.
[47] Counsel for the pursuers made a strong attack on Mr Mighall's
evidence. He maintained that Mr Mighall
was a wholly unsatisfactory witness who had changed his evidence on material
matters while in the witness box and who had engaged in wild speculation. Suffice it to say that while on occasions Mr
Mighall was diffuse in his answers and offered differing responses to the same
question, it was clear to me that he was doing his best to help the Court in
relation to an investigation he had made some 11 years before. Some of his evidence was not acceptable: he
offered an opinion that the lorry had been travelling faster than the coach,
which did not survive cross-examination; and his evidence as to the circled
area in the photograph, and as to the difference in height between the road
surface and the adjacent rough ground (referred to as "the hard shoulder"), was
confused. While his evidence on matters
on which he was shown to be wrong or inconsistent must of course be set aside,
I do not accept the very serious criticisms made on behalf of the pursuers.
[48] The third expert was Mr Parkin, who was the other skilled
witness for the defenders. I considered
his evidence to be less impressive than that of Mr Sorton and Mr Mighall. His report (No. 7/11 of process) contained a
number of small but important slips, such as the use of the word "lorry"
instead of "coach" at several points, which did not inspire confidence. He had not amended his report after attending
a meeting at which he had obtained further information. He had read the reclaiming print and the
Opinion of the Inner House in Ellison,
and his reading of these documents seemed to have influenced his views. In the event, neither counsel relied on his
evidence to any great extent. The
pursuers' counsel relied on his concession that the coach driver had had a
clear opportunity to brake. In my view
the acceptable evidence is that he did in fact brake. The defenders' counsel relied on Mr Parkin's
evidence that it would have been unsafe for the coach driver to drive the coach
on to the hard shoulder. Mr Mighall's
evidence on that point was to the same effect.
I accept the evidence of both witnesses.
At the end of the day, however, the pursuers did not contend that the
coach should have been driven on to the hard shoulder. Accordingly Mr Parkin's evidence turned out
to be of little importance.
Burden of proof
[49] Before making my findings in fact, I shall notice an argument
by the pursuers that a passenger in a vehicle which is subjected to violent
movement is entitled to say that there is a prima facie case of negligence
which calls for an explanation. This was
not, the pursuers' counsel emphasised, a submission that this was a case of res
ipsa loquitur. Their submission was that
a passenger in a motor transport vehicle who is subjected to an accident
involving a sudden swerve and a consequent crash in a ditch, causes, by proving
these basic facts, the onus to move to the defenders to explain why that
occurred without negligence on the part of the driver. The pursuers relied on O'Hara v Central SMT Co
Ltd 1941 SC 363, Lord President
Normand at 375-379; Elliot v Young's Bus Service Ltd 1945 SC 445, Lord Mackay at 458-459, Lord Stevenson at
468; Sutherland v Glasgow Corporation 1949 SC 563 (affirmed, 1951 SC (HL) 1); and Doonan v SMT Co Ltd 1950 SC 136. Counsel
also referred to Ellison v Inspirations East Ltd (First Division,
12 December 2003, unreported), the decision of the Inner House in the pursuer's
reclaiming motion against Lord Hardie's interlocutor, where Lord Marnoch,
delivering the Opinion of the Court, said (at paragraph [6]):
"[6] We have, of course, reached our decision
in this reclaiming motion on the basis that the onus of proof in this case was
throughout on the pursuer. Under
reference to Doonan v SMT 1950 SLT 100 and certain of the
authorities there cited counsel for the reclaimers did submit that as the coach
had gone off the road the onus switched to the defenders to show how that had
occurred without negligence on the part of the coach driver. In our opinion, however, the authorities to
which reference was made are very clearly distinguishable and have no
application to a case, such as the present, where the primary cause of the
accident is known to be fault on the part of the driver of another vehicle
involved in a collision."
Counsel for the pursuers, who had
been among the counsel acting for the reclaimer at the hearing before the First
Division, stated that he did not recollect reference having been made to
authorities other than Doonan, and he
submitted that O'Hara, on which he
particularly relied, was not limited to the extent indicated by Lord Marnoch. Counsel also referred to McAtear v Lewis (Second
Division, 18 December 1992, unreported).
[50] Counsel for the defenders maintained that the pursuers'
submissions were misconceived. The
authorities on which the pursuers relied had no application where the primary
cause of the accident had been indisputably due to the fault of another, in
this case the driver of the lorry which was on its wrong side of the road at
the time of impact. In that situation no
presumption of negligence on the part of the coach driver arose. The issue was whether the driver of the coach
had failed to take reasonable care and so failed to avoid an accident. The decision of the First Division in Ellison was binding. The defenders' counsel, who had also appeared
at the hearing of the reclaiming motion, stated that the earlier authorities
had been considered. The Court had
unanimously rejected the reclaimer's argument.
[51] In my opinion the submissions for the defenders are to be
preferred. The decision of the First
Division in Ellison is inescapably
binding on this Court. Even if it were
not, I would reach the same conclusion. In
O'Hara the pursuer averred only that
the bus in which she was travelling suddenly and without warning swerved
violently, causing the pursuer to be thrown from the bus to the street. The defenders introduced the explanation that
the bus driver had swerved to avoid a pedestrian who had run across the road. (The averments are reported verbatim in the
report in 1941 SLT 202 at 202-203.) Lord
President Normand observed that the facts were, or ought to have been, within
the driver's knowledge, whereas the passengers had no duty to know them and
generally knew nothing of them. In the
present case there is no suggestion that the cause of the movement of the coach
was unknown to the pursuers: the pursuers themselves have averred that the
lorry had encroached into the coach's carriageway before the collision, and
have led evidence to that effect. Thus
the pursuers have known from the outset that the primary cause of the accident
was the fault of the driver of the lorry.
This is not a case where some material fact of which the pursuers are
necessarily ignorant is within only the defenders' knowledge. Accordingly there is no need to look to the
defenders for an explanation, and no room for any presumption.
[52] The pursuers' counsel went on to submit that the defenders had
failed to discharge the onus which, according to his argument, was incumbent
upon them. They had failed to produce
material evidence. The pursuers
criticised the defenders' reliance on the statement by Mr Dirgan, a matter with
which I have already dealt, and maintained that he should have been brought to
give evidence. Given the terms of
paragraph 3 of the joint minute, to which I have already referred, I found that
a somewhat curious submission. The
pursuers also submitted that the defenders should have led the evidence of
Zehra Gurbuz, a tour representative, who was present on the coach; and of a
passenger in the lorry, from whom Ms MacKenzie had taken a statement. They cross-examined the defenders' solicitor,
Mr Russell, about these witnesses and submitted at the hearing on evidence that
an adverse inference should be drawn from their absence. Reference was made to Morrison v J Kelly & Sons
Ltd 1970 SC 65 and McLaren v Caldwell's Paper Mill Co Ltd 1973 SLT
158. Since, however, there was in my
view no onus on the defenders such as was contended for by the pursuers, these
matters are in my opinion of no significance.
I need only note that I was satisfied with the evidence of Mr Russell.
Findings in fact
[53] It is unnecessary to repeat the undisputed facts which I have
set out in paragraphs [4] and [5] above.
It should be added that at the hearing on evidence counsel were agreed
that at the time of the impact the lorry was pointing towards its own
carriageway. It will be recalled that
the joint minute records that the front of the coach and the left front of the
lorry collided, with the vehicles overlapping by about a third. I shall now state some further undisputed
facts relative to the dimensions of the road and the respective weights of the
two vehicles. I shall then deal with the
matters in dispute: (1) the speed of the coach before the impact; (2) the
number of times the lorry encroached into the coach's carriageway before the
impact; (3) whether the coach braked and swerved before the impact; and (4)
whether the coach driver had any reasonable opportunity to take action which
would have avoided the accident.
[54] Mr Mighall gave unchallenged evidence that the overall width of
the road at the accident scene was 6.7 metres, each carriageway being 3.335
metres wide. The coach was 2.4 metres
wide: thus, if centrally placed on its own lane, it would leave about 0.475
metres on either side between the coach and the edge of the lane.
[55] The coach was about three times heavier than the lorry.
[56] As to the speed of the coach before the impact, the pursuers
aver that the coach continued to drive at a speed of about 45 mph, the coach
driver failed to reduce speed, and at impact the coach was being driven at a
speed in excess of 40 mph. The defenders
aver that after the coach driver flashed his headlights, the coach was
travelling at about 60 kph (37.5 mph) and was reducing in speed. The coach driver, Mr Dirgan, said that his
speed was 50 to 60 kph (31 to 37 mph). Mr
Laughland said the speed of the coach was between 35 and 40 mph. Mrs Laughland said that it was no more than
40 mph. Mr Blair said it was between 40
and 45 mph, and Mrs Reilly said it was between 50 and 60 mph. I reject the evidence of Mrs Reilly on this
point, where she stands alone. Having
considered the evidence of the other witnesses, I have concluded that the speed
of the coach before the driver braked was approximately 40 mph.
[57] There is no satisfactory evidence as to the speed of the lorry
before impact. Mr Mighall expressed the
view that it had been travelling faster than the coach, but the foundations for
his view were effectively undermined in cross-examination and it was not adopted
by the defenders.
[58] As to the number of times the lorry encroached into the coach's
carriageway before the impact, the pursuers say on record that it did so "on at
least two occasions", the impact occurring on a further, final, encroachment. The defenders aver that it did so "on two
occasions", and the impact occurred on its third encroachment. Here also, the witnesses are at variance. Mr Dirgan spoke to two encroachments prior to
the impact, which took place after a third encroachment. Mr Laughland spoke to one encroachment and a
second, final, encroachment. Mrs
Laughland was to the same effect. Mr
Blair's evidence on this point was too uncertain to be reliable. Before Lord Hardie, however, he had said that
there had been two incursions by the lorry before the incursion that preceded
the impact. Mrs Reilly adopted her
evidence to Lord Hardie that the lorry encroached into the coach's path two or
three times. I accept Mrs Reilly as the
most reliable of the coach-passenger eye-witnesses, and I note that her
evidence and that of Mr Dirgan point to there having been more than one
encroachment before the final encroachment.
I reject the evidence of Mr and Mrs Laughland and of Mr Blair.
[59] Some light is thrown on this matter by expert evidence as to
the time it would have taken for the coach to travel from the point where the
driver first saw the lorry, to the point of impact. It must be emphasised, however, that there is
no precise evidence as to the whereabouts of either of these two points, and
accordingly the distance between them cannot be ascertained with accuracy. There is some evidence from Mr Mighall about
the extent of the coach driver's view ahead.
That view may be seen in photographs 3 and 4 in No. 6/17 of process,
which like No. 6/18 contains photographs taken by Mr Mighall. I accept that Mr Mighall took the photographs
from a point which he considered to be the point where the coach driver could
reasonably have seen the lorry, and I accept his opinion on that matter. Mr Mighall also made a measurement from the
road sign in photograph 3, but unfortunately there is now some doubt as to the
whereabouts of the point to which Mr Mighall made his measurement: whether it
was to the point where the coach left the roadway, or to the point where it
entered the ravine, or to the rear of the coach in its resting position. The various distances are 757 feet, 770 feet
and 794 feet. If one takes the distance
of 757 feet as the nearest of the three to the point of impact, and if one
assumes that the coach was travelling at a speed of 40 mph, it would have taken
the coach 12.9 seconds to travel from the point where the driver could first
see the lorry and the point where the two vehicles collided. There was some evidence from the expert
witnesses as to how long it would have taken the lorry to move from its own
side of the road to the coach's side of the road and back again. Mr Sorton said that that would take a total
of 6 seconds, while a partial change of lane which would be noticeable would
take 4.6 seconds. Mr Parkin said
that a "swerve" from one lane to the other would take 1.75 seconds.
[60] It is not possible to accept as scientifically accurate the
assumed distance of some 757 feet; the coach's speed of about 40 mph is only a
probable and imprecise speed; it is not possible to say whether the
encroachment or encroachments preceding that which ended in the impact was or
were complete or partial; the word "partial" was undefined; and it is not
possible to tell how much time elapsed between one encroachment and another. Keeping in view all these caveats, and the
acceptable evidence of Mr Dirgan and Mrs Reilly that there was more than one
incursion before the fatal incursion, I have reached the view, after much hesitation, that it is probable that in
the space of some 13 seconds the lorry partially encroached into the coach's
carriageway twice before making a third incursion which ended in the impact;
and that on the third incursion the whole or a substantial part of the lorry
was initially in the coach's carriageway, but it moved to the right, towards
its own carriageway, before the impact. It
is agreed, as I have already noted, that on impact the front of the coach and
the left front of the lorry collided, with the vehicles overlapping by about a
third.
[61] As to whether the coach braked and swerved before the impact,
the pursuers aver that the driver had an opportunity to reduce speed and to
steer to the right, but he failed to do so.
The defenders say that the coach was reducing in speed before the
impact, and that when the lorry swerved back into the coach's carriageway, the
coach started to swerve to the right but did not have time to avoid the lorry.
[62] Mr Dirgan said that when the lorry re-entered his carriageway
he moved the coach sideways to the right and braked hard. Mr and Mrs Laughland said he did neither. Mr Blair was not aware of the driver braking
or turning the steering wheel. Ms
Ellison did not think anything had been done to avoid the collision. Ms Allen said there was no swerving or
braking, and her mother said there was no braking. Mrs Sopel had a sense that the coach
driver was slowing down, but I consider her evidence to be too imprecise to be
reliable. Mrs Reilly, on the other hand,
was clear that the coach had braked and moved to the side: the braking began
before the move to the side. She
strikingly described the coach's change of direction "as if the driver had
taken a fork in the road". I was
favourable impressed by Mrs Reilly's evidence when I heard it, and I note that
she corroborates Mr Dirgan. Finally, and
very significantly, the expert evidence of Mr Sorton and Mr Mighall, which I
accept as convincing, was to the effect that the coach must have been angled to
the right prior to impact. In my
judgment the weight of the evidence supports the view that the coach driver did
indeed brake and swerve to the right before the impact, and I so find.
[63] Finally, should the coach driver have done more than that?
Should he have taken action which would have avoided the accident
completely? At the end of the day there
was no suggestion that he should have driven the coach on to the unstable hard
shoulder: there was clear evidence that that would have been a perilous
manoeuvre. The question is whether it is
established on a balance of probabilities that he had an opportunity to brake
and swerve earlier than he did, and whether, if he had done so, the accident
would not have taken place. It is clear
that various passengers had an opportunity to react physically to the final
incursion of the lorry into the coach's carriageway. Mrs Laughland had time to exclaim to her
husband, and he had time to stand up and try to cover her. Mr Blair heard some one saying, "Oh no, we're
going to hit something". Mrs McKendry's
husband put her head between her knees. Ms
Allen and her mother witnessed a man standing up and shouting. Mrs Reilly considered that the driver should
have taken action sooner than he did.
[64] It is also clear, however, that the final incursion of the
lorry into the coach's carriageway can have lasted for only a very few seconds. In addition to the calculations of time made
above, there is acceptable evidence from some of the passengers that the final
sequence of events was very quick (e.g. Mrs Laughland, Ms Allen). The coach driver was aware of the previous
incursions of the lorry: it is agreed that he had flashed his headlights to
warn the lorry driver. It is clear that
when the lorry made its final incursion, he had very little time to observe,
think and react. He did react by braking
and swerving, and Mrs Reilly initially thought that the coach had just managed
to miss the lorry. There was evidence
from Mr Parkin and Mr Mighall to the effect that if he had reacted a
second earlier than he did, the collision would not have occurred. No doubt that is so, but I do not find it
possible to affirm that the coach driver had time to brake and swerve earlier
than he did. As I have indicated, the
time available to him was extremely short.
The evidence of the reactions of the passengers, which also must have
taken place in an immeasurably short space of time, and Mrs Reilly's impression
that the driver could have reacted more quickly, are much too imprecise to
enable me to reach any conclusion as to whether the coach driver had time to
react earlier than in fact he did. The
state of the evidence about times and distances and the movements of the lorry
is also so inexact that, in my judgment, it cannot be said that on a balance of
probabilities it is established that the coach driver had a sufficient
opportunity to take any action which would have avoided a collision.
Liability
[65] I shall clear the ground by considering in the first place the
conviction of the coach driver in Turkey. The pursuers aver that he was convicted
"within the 10th Division of Istanbul Criminal Court" and "was found
to be 25% responsible for the accident taking place." The defenders admit that he was convicted in
that court and aver "that according to Turkish law, the surviving driver of a
fatal road traffic accident is always prosecuted. Responsibility for the accident is
apportioned in terms of one-eighths. The
coach driver was held to be two-eighths responsible. The lorry driver was held primarily
responsible. It is unusual in such cases
for either driver to be absolved of guilt entirely."
[66] I did not hear any evidence about this matter. Accordingly the only information available to
this Court consists of the admitted facts that the coach driver was convicted
of some unspecified offence and was held to be 25% responsible for the accident
taking place. I know from the documents
referred to in paragraphs 1 and 2 of the joint minute, and from the
evidence of Mr Blair, that some official investigation was carried out. I do not know, however, what offence the
coach driver was charged with, what court procedure was followed, what evidence
was led, what facts were found proved and what reasons, if any, the court gave
for its decision. I note that the
document No. 6/3 of process states that the accident happened when the coach
went into the lane of the lorry. I
accordingly find the decision of the Turkish court wholly unhelpful, and I
disregard it.
[67] The parties are agreed that the contract between them relates
to a package holiday within the meaning of the Package Travel, Package Holidays
and Package Tours Regulations 1991 (S. I. 1992, No. 3288) ("the Regulations"). The pursuers found on regulation 15 of the
Regulations, which provides:
"(1) The other party to the contract [the defenders]
is liable to the consumer [the pursuers] for the proper performance of the
obligations under the contract, irrespective of whether such obligations are to
be performed by that other party or by other suppliers of services but this
shall not affect any remedy or right of action which that other party may have
against those other suppliers of services."
The pursuers aver:
"The negligent
actings of the coach driver in the circumstances amounted to improper
performance of the defenders' obligations under the contract."
The pursuers' first two
pleas-in-law are in these terms:
"(1) The pursuers having suffered loss, injury
and damage through the fault and negligence on the part of the said coach
driver for which the defenders are liable is entitled to reparation therefor.
(2) The pursuers having suffered loss,
injury and damage through the improper performance of the contract condescended
upon are entitled to reparation therefor."
[68] The defenders found on regulation 15(2) of the Regulations,
which is in these terms:
"(2) The other party to the contract [the
defenders] is liable to the consumer [the pursuers] for any damage caused to
him by the failure to perform the contract or the improper performance of the
contract unless the failure or the improper performance is due neither to any
fault of that other party nor to that of another supplier of services, because:
[ . . . ]
(b) such
failures are attributable to a third party unconnected with the provision of
the services contracted for, and are unforeseeable or unavoidable; or
(c) such
failures are due to
(i) unusual and
unforeseeable circumstances beyond the control of the party by whom this
exception is pleaded, the consequences of which could not have been avoided
even if all due care had been exercised; [ . . . ]"
The defenders aver:
"The defenders
were the other party to the contract. The
improper performance of the contract was not due to the fault of the other
party nor to that of another supplier of services. The coach driver fulfilled all duties incumbent
upon him. [ . . . ] The accident was caused entirely by the fault
of the third party, the lorry driver, who was unconnected with the provision of
services contracted for. The accident
was caused by unusual and unforeseeable circumstances beyond control of the
defenders, the consequences of which could not have been avoided even if all
due care had been exercised by the driver of the coach."
The defenders' second and third
pleas-in-law are as follows:
"(2) The pursuers' averments so far as material
being unfounded in fact, decree of absolvitor should be pronounced.
(3) The pursuers not having suffered any
loss, injury or damage through any fault on behalf of the defenders or their
employees, decree of absolvitor should be pronounced."
[69] The question therefore comes to be whether the pursuers have
succeeded in proving any degree of fault on the part of the coach driver. The pursuers aver that he failed in the
following duties of reasonable care:
"In particular
it was his duty to take reasonable care for the safety of passengers in said
vehicle. It was his duty to keep a good
lookout on the road ahead. It was his
duty to drive at a reasonable speed in the circumstances. It was his duty to pay attention to the
presence of other vehicles on the said road such as the lorry. In the event that a vehicle, such as the
lorry, encroached onto his carriageway, it was the coach driver's duty to take
reasonable care to brake and reduce his speed immediately. It was his duty to steer to the right, to
avoid the oncoming lorry. It was his
duty to keep control of the vehicle. It
was his duty not to collide with the said lorry."
The defenders, for their part, aver
that the coach driver fulfilled all duties incumbent upon him: he drove with
due care and attention; he was travelling at a reasonable speed; he was driving
within his own carriageway at the time of the collision; it would have been
dangerous and unreasonable to drive onto the area of hard standing; the
accident was caused entirely by the fault of the lorry driver. Before the impact, say the defenders, the
coach was reducing in speed; as the lorry and the coach reached each other, the
lorry suddenly and without warning swerved back into the coach's carriageway;
the coach started to swerve to the right but did not have time to avoid the
lorry.
[70] It follows from my findings in fact that I am satisfied that
the coach driver was keeping a good lookout on the road ahead and was driving
at a speed which was reasonable in the circumstances. He was well aware of the presence of the
lorry on the road. He flashed the
headlights of the coach to warn the lorry driver. When the lorry made its final incursion into
his carriageway, he braked and steered to the right. He kept control of the vehicle up to the moment
of impact.
[71] The issue is whether the coach driver is nevertheless to be
held to be negligent. The final
incursion of the lorry, which was plainly negligent, placed the coach driver in
a position of emergency. I do not
consider that the action he then took, in braking and steering to the right, is
open to criticism. I have found that it
cannot be said that on a balance of probabilities it is established that the
coach driver had a sufficient opportunity to take any action which would have
avoided a collision. Even if, contrary
to my opinion, it could be said that he could have braked and steered to the
right a very short time earlier than he did, his failure to act more quickly
could not in my opinion be characterised as negligent. The defenders referred to Wallace v Bergius 1915 SC 205 and Laird
Line v U S Shipping Board 1924 SC
(HL) 37. In my opinion Wallace v Bergius is particularly apposite.
In that case it was held that the driver of the defender's car could not
be said to be negligent "merely because, when he saw the danger, he did not
take the wisest course, but in the agitation of the moment took an unwise
course in endeavouring to escape from it" (Lord Guthrie at 211). In the present case the coach driver could
not, in my view, be criticised as negligent if it were the fact that in the
emergency confronting him he had an opportunity to follow a counsel of
perfection and take avoiding action a second, or a fraction of a second,
earlier than he did. In my opinion,
accordingly, the pursuers have failed to prove that the driver of the coach was
negligent to any extent. I am satisfied
that the accident was wholly caused by the fault of the driver of the lorry.
Further procedure
[72] The proof before answer was restricted to issues of liability
only. The parties are agreed by joint
minute that this action is to be conjoined with the following actions:
Andrew
Blair (AP) v Inspirations East Ltd
and Ramsay World Travel Ltd (A252/01);
John
Kuncaitis v Inspirations East Ltd and
Going Places Leisure Travel Ltd (A1468/01);
Anne
McIntyre (AP) v Inspirations East Ltd
and Ramsay World Travel Ltd (A1535/01);
Margaret
Anne Reilly (AP), Mark John Reilly and Cheryl Marie Reilly v Inspirations East Ltd (A1601/01);
Rachel
Ann Quinn v Inspirations East Ltd
(A1605/01).
[73] The joint minute further records that the parties to the
present action are also agreed:
"2. That the pursuers in the present action
("the Robertsons") shall lead all of the evidence at the proof, with the other
pursuers in the above list and their witnesses being called as the Robertsons'
witnesses;
3. That in the event of any tender being
made of a sum in settlement of any of the claims, the defenders will apportion
any such sums amongst the relevant pursuers;
4. That the decision of the Court (whether
at first instance or on appeal, including appeal to the House of Lords) in this
case in respect of liability shall be determinative of the dispute on liability
as between the other pursuers in the above list and the defenders;
5. In the event that the Robertsons are
unsuccessful at any stage, but decide not to appeal, the other pursuers in the
above list may nevertheless appeal, in which event the evidence led in the
Robertsons' action shall be accepted as being the evidence in whichever other
action is concerned.
6. That copies are equivalent to
principals."
[74] In these circumstances I shall pronounce an interlocutor
conjoining this action with the five actions listed, sustaining the second and
third pleas-in-law for the defenders, repelling the first and second
pleas-in-law for the pursuers, and putting the case out by order for a
discussion of further procedure.
[75] The parties are owed an apology and explanation for the delay
in the production of this Opinion. I
made avizandum on 27 October 2006
and asked for transcripts of the evidence of the expert witnesses. Owing to a most regrettable administrative
error, the volumes of transcripts were not delivered to me until 6 February 2007.
