RECLAIMING MOTION BY ALLEN WOODHOUSE AGAINST LOCHS AND GLENS (TRANSPORT) LTD [2020] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RECLAIMING MOTION BY ALLEN WOODHOUSE AGAINST LOCHS AND GLENS (TRANSPORT) LTD [2020] ScotCS CSIH_67 (30 October 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_67.html Cite as: 2021 SCLR 1, [2020] CSIH 67, 2021 Rep LR 2, [2020] ScotCS CSIH_67, 2020 SLT 1203, 2020 GWD 35-464

[1] The pursuer was one of several passengers on a tour bus driven by an employee of

the defenders. It was heading northwards along the A83 when it left the road and rolled

over. Although he accepted that the maxim res ipsa loquitur applied to the circumstances, the

Lord Ordinary assoilzied the defenders on the basis that negligence on the part of the driver

had not been established. The principal question is whether, on the primary facts which he

found, he was correct to do so. Subsidiary questions include whether the Lord Ordinary

misunderstood the effect of the speed of the bus on its handling capabilities and the

evidence on that and whether the Lord Ordinary failed to have regard to the evidence of a

[2] It is admitted on record that, on 26 March 2015, the pursuer was a passenger on a

Lochs and Glens tour bus which was being driven by the defenders’ employee, Elizabeth

Gallon, northwards on the A83 “Rest and Be Thankful”. The bus party had been at the

Ardgartan Hotel, near Arrochar, for lunch. The bus set off towards Inveraray. It stopped at

a viewpoint to enable passengers to take photographs. At about 2.00pm the bus was in the

vicinity of the junction with the B828 Glen Mhor road at a point where a predominantly

straight stretch of road leads to a left hand, then a right hand, “S” bend. The bus’s “nearside

wheels went (“rode”) over the roadway’s edge” and on to the sloping grass verge causing

the bus’s nearside to be “downhill of its offside”. The bus tipped and rolled over. The

pursuer pled a breach of the defenders’ duty at common law to take reasonable care for the

pursuer. As the case proceeded under the rules for abbreviated pleadings in the sheriff

court (OCR Rule 36.B1(1)), prior to it being remitted to the Court of Session, no further

specification of fault was given. In due course, although not expressly foreshadowed in his

pleadings, the pursuer was to rely on the maxim res ipsa loquitur.

[3] According to the defenders, after the departure from the viewpoint, the driver

stopped again some 500 metres further on, in order to close the bus’s door. She continued

for another 100 metres, at a maximum speed of between 34 and 42 mph, when:

“the nearside of the coach was struck by a sudden extraordinary and exceptionally

severe gust of wind, which caused the coach to drift to its offside, to the point where

the offside of the coach was just over the centre line of the road. The driver applied

the brakes and steered the coach gently back towards its normal driving position in

the centre of the northbound lane. At that point, the offside of the coach was then

struck by a second extraordinary and exceptionally severe gust of wind, the force of

which caused an overturning moment… causing the rear of the coach to drift and

yaw at an angle to the nearside. The driver unsuccessfully tried to steer the coach

back to its offside, but its nearside tyres left the road surface and went onto the

The defenders maintained that the phenomenon of the two gusts of wind could not

reasonably have been anticipated nor could the driver have taken “any reasonable or

effectual precautions” against it. The cause of the accident was damnum fatale; that is an

[4] The stop at the viewpoint had been fairly brief, because the weather had taken a turn

for the worse. Very few of the 51 passengers had ventured off the bus. After the stop to

close the door, the bus set off again; the accident occurring less than a minute later some

150 metres further on. By that time there was a very strong northerly wind, which was

hitting the bus virtually head on. The driver described the wind as quite normal for this

location. She was an experienced driver who had driven this road many times. She was

used to winds of that strength and the gusts that came with it. She had not come across

gusts from different directions. Professor Rae, who spoke to the meteorological data,

described the conditions as “a nasty blustery day… with swirling wind from any direction”.

[5] The Rest and Be Thankful weather station, which took readings every ten minutes,

indicated that the wind was generally west-north-west with a mean speed of over 20 mph

and gusts of up to 40 mph. In the vicinity of Loch Restil, where the accident occurred, the

direction was northerly. The mean wind speed over the 10 minute interval at the material

time was 18.1 mph with a maximum recorded gust of 38.3 mph. In the following 10 minutes

there was a mean of 15.9 mph with a maximum gust of 50.3 mph. The Lord Ordinary

concluded that, although the gusts were strong, near gale force, they were not so exceptional

[6] The driver maintained that she had accelerated normally from the layby. She

thought that she had reached a speed of between 20 and 30 mph when the first gust hit the

bus from the nearside, pushing it towards the middle of the road and over the centre line.

The driver braked. She estimated that her speed had reduced to between 10 to 15 mph . She

turned to the left. No sooner had she regained her proper position on the road when the

second gust hit the offside, lifting up the front of the bus and forcing it to the left and off the

road, despite her attempts to brake and steer to the right. The Lord Ordinary interpreted this

as meaning that the effect of the wind had been to take the weight off the front wheels of the

bus, causing the bus to yaw to the left, despite efforts to correct its alignment. The bus ran

along the verge, gouging into the grass and mud and slowing it down rapidly. As the Lord

Ordinary put it, once the left front wheel hit the verge, the bus “was doomed”.

[7] On speed, the Lord Ordinary accepted that, as a generality, a driver will

underestimate the speed at which he or she is driving. The experts who gave evidence had

carried out calculations which were broadly in alignment. They showed that, at the moment

when the front wheel left the road and went onto the verge, the bus must have been

travelling at in excess of 30 mph and possibly as fast as 40 mph. The Lord Ordinary held

that, taking all the evidence into account, the bus was travelling at between 35 and 40 mph

when the front wheel left the road. He reasoned that, assuming that the driver had braked

after the first gust and again after the second, the driver had been travelling at a rate

considerably in excess of 35 mph when the first gust hit. The Lord Ordinary concluded that

the bus was travelling at between 40 and 45 mph when it was hit by the first gust and

between 35 and 40 mph when it was hit by the second. On the basis of his findings on

speed, the Lord Ordinary considered that the time between the second gust hitting the bus

and the wheel striking the verge would have been “very short”. The driver could not be

criticised for failing to react in time by braking and/or steering the bus, given the estimated

[8] The Lord Ordinary held that, had the bus come to a halt even some yards before it

did so, it would have been on relatively level ground and would probably not have rolled

over. The speed at which the bus had been travelling took it further along the verge to a

point where the verge sloped down towards Loch Restil. It was leaning towards its left and

that, and the continuing wind, caused it to roll over. The driver was not charged with any

offence. The police took the view that the driver had not being going too fast. They did not

extract the data from the bus’s tachograph for what the Lord Ordinary describes as “some

[9] The driver was examined in chief by the pursuer. It is worth recording precisely

what she said about speed. She initially testified that she had been driving at 20 mph, later

modified to between 20 – 30 mph, when the first gust hit. She had then slowed down to

between 10 – 15 mph, although she was not really sure. Her normal reaction would have

been to slow down significantly. The transcription of her examination-in-chief then reads as

“… if you were hit by a gust of wind strong enough to move your coach, to drive on

after that at 34 to 42 miles an hour would be obviously dangerous, wouldn’t it? – Hm

… If you were going 34 to 42 miles an hour after you’ve already been hit by a gust of

wind that’s moved the coach and then it happens again, the accident would be your

But you’ve already said it would be silly to drive at that speed? – Yeah, but I don’t

think I was because I’d already braked so I’m going to be going slower… I don’t

think it would have been going any more than 20 mile an hour because I’d already

Yes, well I think you’ve said that but the important question is in your experience as

a very experienced coach driver, do you think that going at more than 20 miles an

hour would be sensible in those weather conditions you’ve described? – No.”

[10] Mr McArthur and his wife had left Glasgow for a scenic drive in their Citroen C3 on

what had begun as a beautiful sunny day. The weather deteriorated as they reached

Arrochar; with winds buffeting their car mostly from the offside but from the front as well.

Mr McArthur slowed to 30 mph. At one point, he had seen the bus in front of him, but its

power had enabled it to pass a set of traffic lights regulating the Rest and Be Thankful before

he had been able to follow. The bus had disappeared around a corner. When Mr McArthur

next saw it, the accident had happened. Mr McArthur commented on the power that the

bus had been able to use, especially in comparison to that of his modest C3. He had thought

that 30 mph was safe for his car, which he had kept in second gear in order to maintain the

[11] Mr McArthur had been an HGV driver in the past. The following exchange took

“Right. So you’re going about 30 miles an hour and you’re in second gear. – In

And that was because of the weather conditions. – Because of the weather

If you had been back in the day driving an HGV would you have driven faster or

slower? – Oh no, my training tells me to slow down in conditions like that. The

slower you go the heavier the vehicle becomes and there’s less wind to get

[12] Ms Holland, who was the defenders’ road traffic expert, was cross-examined in

relation to the speed of the bus at the time it left the road. She said:

“All I can say is that if [the driver] accelerated continuously at a typical rate for a bus

or coach driver to the point where the… accident occurred, where she left the road,

Yes, that’s if she accelerated continuously from start to finish. Yes. The gouge mark

and the length of the gouge mark indicates that the speed of the coach when it left

the road was 30 miles per hour or more. From that I have estimated a range of 30 to

Regardless of the speed of the bus? – No …If the speed of the coach was 30 miles per

And if the coach had been going at a significantly lower speed, say 15 miles per hour,

the accident would not have been inevitable. – It might not have been, I haven’t done

Ultimately… if the coach had been travelling at a slightly lower speed than it actually

was travelling it would still have been possible to avoid the accident by braking. –

[13] The Lord Ordinary accepted that the burden of proof had switched to the defenders

to prove that the accident had occurred without their negligence. He cited his dicta in

Morton v West Lothian Council [2006] Rep LR 7 (para [70] following Elliott v Young’s Bus

Service 1945 SC 445 at 456) that the maxim res ipsa loquitur applied when the circumstances

causing the loss were within the control of the defenders. Where the facts were eloquent of

negligence, it was for the defenders to prove at least the existence of other facts or

circumstances which may have caused the accident without their negligence (O’Hara v

Central SMT Co 1941 SC 363 at 378); or possibly that the accident was not in fact caused by

their negligence (Moore v R Fox and Sons [1956] 1 QB 596 at 614-5). The Lord Ordinary

rejected the defenders’ submission, which had been based upon a dissent in Ballard v North

British Railway Co 1923 SC (HL) 43 (at 54), that the defenders could satisfy the onus simply

by proffering a reasonable explanation of how the accident could have occurred without

[14] The Lord Ordinary accepted that the defenders could avoid liability by proving that

the accident was not caused by their negligence, notwithstanding that they could not point

“[30] … the considerations mentioned in …[Morton v West Lothian Council (supra)] all

point to the onus shifting to the defenders to prove a non -negligent cause of the

accident or at least to disprove negligence on their part. A coach travelling along an

A road in the Highlands should not ordinarily come off the road. The fact of it

having done so gives rise to a prima facie inference of negligence. It is for the

defenders to rebut that prima facie inference… I have no difficulty in holding that…

the burden shifts onto the defenders to show that the accident occurred without their

The Lord Ordinary observed that onus seldom mattered, once evidence had been led.

[15] The Lord Ordinary concluded that the defenders had discharged the burden upon

“[32] … The only challenge, the only suggestion of fault advanced by the pursuer,

was in relation to the actions of the driver. What was said, in short, was this: if she

was driving at the speed at which she said she was driving (20-30 mph before the

first gust, 10-15 mph before the second) then she had plenty of time to enable her to

react to the gust and should have been able to prevent the coach leaving the road;

whereas if she was driving faster than that (40 mph, plus or minus) then she was

driving too fast, cutting her reaction time so that she could not react in time to

prevent the accident. I have already found that the coach was being driven at a

speed of about 40-45 mph before the first gust hit it, and at a reduced speed of 35-

40 mph when the second gust struck. Accordingly the pursuer’s first alternative

criticism can be excluded. That leaves only the second alternative criticism for

[33] The pursuer’s case is that if the coach was being driven at a speed of 40-45 mph

then it was being driven too fast was not supported by any expert or independent

evidence to that effect. It was not said, by anyone, that at that speed the coach would

be less easy to handle in the prevailing conditions, or less responsive to directional

control, or in some way less stable, more vulnerable to the impact of the wind, more

prone to being deflected off course. The pursuer’s case that the coach was being

driven too fast was periled on the evidence [the pursuer’s counsel] led … from the

[16] The Lord Ordinary narrated the evidence of the driver as including the following:

“Witness: I don’t think I was going any more than 20 mph [when the first gust

Counsel: Do you think that going more than 20 mph would be sensible in those

Counsel: Your relative speeds. You were going at 30 mph, then you dropped down?

Counsel: It would be dangerous to keep going at the same speed after a gust caused

Counsel: If you were hit by a gust, to carry on at 34 – 42 would be dangerous.

[17] The Lord Ordinary interpreted the driver’s evidence as meaning only that it would

not have been sensible to maintain, or resume, a particular speed once the first gust had hit.

She was talking about relative speeds. She had considered her speed both before and after

the first gust to have been sensible and safe. The fact that she was wrong about her estimate

of speed was not to be taken as meaning that she had accepted that, now that her true

speeds had been pointed out, she had been going too fast at 40 – 45 mph, reducing to 35 – 40

“[35] … Nor is it directly relevant that driving at a certain speed means that there is

minimal time available for an effective reaction in the event of the coach being blown

off course by an unexpected and violent gust of wind. Such considerations are too

far removed. Absent any proved connection between the coach’s speed and its

vulnerability to being blown off course, absent any evidence that the particular speed

of the coach made an accident of this sort reasonably foreseeable or in some way

more likely, then the question of how to react in such circumstances, and whether the

speed of the coach allows sufficient time to react, does not arise…

[36] … I do not accept the pursuer’s case that the driver was at fault. No other fault

is raised as an issue. But I am left with this concern. My finding on the evidence is

that the weather conditions were unpleasant and the wind was strong – but there

was nothing exceptional about the conditions, winds of that strength were

foreseeable, and extreme turbulence, being a feature of the topography of that area,

could also be foreseen. For that reason I would have rejected the defence of damnum

fatale, had it been necessary to consider it. If, as I have also found, the driver was not

at fault, how can the accident be explained? It is possible that the combination of

two gusts of wind from opposite sides of the bus was unique, though the fact that

[the meteorological expert] could readily explain the phenomenon suggests

otherwise. It may be that occurrences such as this, occurring without fault on any

[19] The pursuer did not dispute any of the Lord Ordinary’s primary findings in fact, but

he did challenge the inferences which he had drawn from them. It was not necessary for the

pursuer to show that the Lord Ordinary had been “plainly wrong”, when what was

challenged was the application of the law to the primary facts (Stephen v Scottish Boatowners

Mutual Insurance 1989 SC (HL) 24 at 61; Anderson v Imrie 2018 SC 328, at paras [38]-[51]; AW

v Greater Glasgow Health Board [2017] CSIH 58, para [44]). The Lord Ordinary had

[20] The Lord Ordinary had correctly determined that the defenders’ driver was prima

facie negligent. He had then found against the pursuer because the pursuer had failed to

prove that the speed of the bus had been excessive (see para [33] quoted supra). He had

effectively required the pursuer to prove negligence twice. Had the Lord Ordinary asked

the correct question, of whether the defenders had shown that the bus had been driven at an

appropriate speed, he would have been bound to find in favour of the pursuer (Mars v

Glasgow 1940 SC 202 at 206-208; O’Hara v Central SMT Co (supra) at 375). The circumstances

required the defenders to explain why the bus could not be controlled when hit by the gusts

of wind. It should have been for the defenders to prove a non-negligent explanation (Smith v

Fordyce [2013] EWCA Civ 320, at para [61]). The Lord Ordinary’s analysis focused (at paras

[32] and [33]) on “The only challenge, the only suggestion of fault advanced” and “The

pursuer’s case”, whereas the reversal of the burden required the focus to be on the

defenders’ explanation for creating the danger; ie the speed of the bus. The Lord Ordinary

downplayed the significance of the reversal of the burden , under reference to authorities,

including Gibson v British Insulated Callenders Construction Co 1973 SC (HL) 15, which

[21] If the correct analysis had been adopted, the Lord Ordinary ought to have found

that, since the weather conditions were, as he held, foreseeable, the bus’s speed called for an

explanation. By inference, the speed was excessive for the conditions. The inference had not

been rebutted. It had been supported by Mr McArthur’s evidence. The driver had not

modified her driving for the conditions. She had taken no precautions for the prevailing

windy conditions. She had driven at the maximum speed and acceleration possible from

her last stationary point, according to the unchallenged evidence of the defenders’ expert.

The defenders had offered no justification for the driver selecting a speed which left

insufficient time for reaction. Adverse weather conditions were not sufficient to rebut the

presumption of negligence. Drivers must drive according to the conditions (Weatherstone v

T Graham & Sons [2007] CSOH 94, at para [16]; MacDonald v Aberdeenshire Council 2014 SC

[22] The Lord Ordinary erred in holding that the bus had not been driven at excessive

speed. It had been driven at the maximum possible speed. It was faster than the driver had

acknowledged to be safe. It was faster than the speed of the only other witness to give

evidence about speed, namely Mr McArthur. There was n o evidence to show that the driver

had taken any precautions to deal with the weather conditions. It was a matter of agreement

between the experts that, had the bus been driven at even a slightly lower speed, the

accident would have been avoided. The driver testified that 20 mph was the sensible speed.

The Lord Ordinary had been wrong to consider that her evidence had only been concerned

with relative speeds. Her evidence was that she had been travelling at 20 mph, but it had

been established that that was at best half of her actual speed. That discrepancy required

explanation. Even if she had been talking about relative speeds, had she realised her true

speed, on her own evidence she would have slowed down considerably. The ignorance of

her own speed could not provide a non-negligent explanation for the accident; rather, it

reinforced the implication of negligence. Forty five miles per hour was only 5 mph less than

the maximum legal speed at the locus. In order to reach that speed the driver would have

had to have accelerated at the highest rate possible. Mr McArthur, who had been driving a

small car, said that 30-35 mph was the speed at which he felt comfortable and that, as an

HGV driver by trade himself, he would not have driven faster in a larger vehicle.

[23] There was no reasoning on why these factors had been outweighed. The finding that

the driver did not know in advance that she was going to be called upon to react to anything

was inconsistent with the finding that the conditions were foreseeable. The finding that

there was no “proved connection between the coach’s speed and its vulnerability to being

blown off course” was inconsistent with the finding that the speed of the bus provided no

opportunity to react and ignored the obvious point that, by travelling more slowly, the

driver would have given herself a greater opportunity to react. Her speed led to the bus

being blown into the opposite carriageway and then off the road completely.

[24] The Lord Ordinary erred in holding that there was no evidence that the speed of the

bus made the accident reasonably foreseeable or more likely. This failed to take account of

the uncontroversial evidence that, but for the speed of the bus, the accident would not have

occurred. This did not need expert evidence, but even if it did, it was there: the defenders’

expert stated in her report that “The speed at which the coach deviates from its path is

directly proportional to the forward speed of the coach .” The reasoning is inconsistent with

the earlier finding that speed was causally connected to the ability to respond to the effects

of the wind. As one commentator (Sanders) put it (2020 Greens Rep B 153, 7-8): “It seems

difficult to conceive of how no liability could attach when a healthy driver, driving a defect

[25] The defenders submitted that the Lord Ordinary had been correct to find that the

defenders had provided a non-negligent explanation for the accident. That explanation was

the weather conditions. It was not undermined by the pursuer’s unsuccessful criticism of

excessive speed. The Lord Ordinary’s conclusion was open to him on the evidence and

based upon a correct evaluation of it. The pursuer had to show that the Lord Ordinary had

gone “plainly wrong” in his application of the law to the primary facts (Anderson v Imrie

(supra) at paras [35], [36], [98] and [99]; AW v Greater Glasgow Health Board (supra) at paras

[53] and [54]; George Mitchell (Chesterhall) v Finney Lock Seeds [1983] 2 AC 803 at 815-6; Biogen

[26] The contention, that the Lord Ordinary erred by requiring the pursuer to show that

the speed of the bus was excessive, was misconceived. The Lord Ordinary held that the

onus of proof had switched to the defenders. Thereafter he concluded that the defenders

had led sufficient evidence to establish that the accident had not been caused by their fault

and could be explained by the wind. The driver had not failed in her response to the

sudden impact of the wind. If there had been any failing, her actions and reactions should

not be judged by too high a standard. They were not negligent. The Lord Ordinary

concluded that the defenders had discharged the burden by proving that the accident

happened without any negligence on the part of the driver. This was not to place the onus

back on the pursuer, but to find that his challenges to the defenders’ non-negligent

explanation, specifically on the issue of speed, were unsuccessful. There was no expert or

independent evidence that the manner in which the driver drove had been negligent.

[27] The Lord Ordinary came to the view that the driver’s speed had been reasonable. It

was never suggested to the driver that she ought to have known that there would be

vulnerability to an accident above any particular speed; nor was there any evidence from

any other source to that effect. The assertion that the driver had accelerated at maximum

speed did not accurately reflect the evidence. The driver had been able to react to the first

gust by braking and correcting the path of the bus, bringing it under control and back into

the centre of the lane. It was only after being hit by an unexpected and violent gust from the

opposite side that the accident occurred. The driver had never before experienced the

phenomenon of two sudden, extremely strong gusts from opposite directions. The

occurrence of such an event, leading to a situation where the bus would leave the road at 40-

45 mph, was not reasonably foreseeable. The Lord Ordinary applied the correct test;

whether a reasonable driver would have had in contemplation that an accident would be

likely to result if she drove at the speed at which she did (Muir v Glasgow Corporation 1943

SC (HL) 3 at 10; Whippey v Jones [2009] EWCA Civ 452, paras 16 and 17).

[28] The Lord Ordinary did not err in holding that the driver had not been negligent. The

evidence was that she had been driving at an appropriate speed for the conditions. The

available reaction time after the second gust was such that the driver could not be criticised.

Nothing could have been done to avoid the bus rolling over. The driver was certain that she

had taken appropriate action by slowing down after the first gust and that her speed both

before and after that gust had been appropriate. The contentions that she conceded she

ought to have been travelling at 20 mph, and that this was the safe speed for the road under

the prevailing conditions, were entirely wrong. The Lord Ordinary was correct that the

driver’s evidence was about relative speeds. Whether there was a connection between

speed and vulnerability to being blown off course was a different consideration from the

reaction time after the gust had occurred. The Lord Ordinary’s reasoning did not say that

the driver’s ignorance of her own speed provided the defenders with a non-negligent

explanation. There was no evidence about any need for the driver to monitor her speed,

accelerating from a standing start over a distance of only 150 metres, or any failure by the

[29] Mr McArthur’s evidence as to the speed at which he felt comfortable did not infer

negligence on the part of the driver. He had agreed in cross-examination that: his car was

very light compared to the bus, which had a much more powerful engine; the bus was not

affected by the wind in the same way; and whether the wind affected his vehicle or not had

no bearing on the bus. He had said that the bus was being driven normally. Whilst the

wind conditions were foreseeable, the pursuer failed to lead evidence and to prove a

connection between the bus’s speed and its vulnerability to being blown off the road. In the

absence of proof that the driver ought to have known that, above a certain speed, there was

a likelihood of the bus going out of control if it was hit by an unexpected gust of wind, the

accident was not reasonably foreseeable. There was no evidence that a speed of 40-45 mph

was negligent. It was irrelevant that, if she had been driving even slightly slower, the driver

[30] The finding that the bus would probably not have rolled over had it been going

slightly slower was an issue of causation, not negligence. Negligence required to be

considered first, as the Lord Ordinary had done. The Lord Ordinary recognised the

relationship between speed and reaction time. The point he made (at para [33] (supra)) was

that there was nothing to indicate that the driver ought to have known that at a particular

speed the bus was more vulnerable to being blown off the road. The Lord Ordinary was

entitled to reach the finding that he did as to the foreseeability of the accident on the

evidence (Jolley v Sutton London Borough Council [2000] 1 WLR 1082 at 1088-9).

[31] A determination of whether an employee has been negligent is one of law. It is

nevertheless heavily dependent upon primary findings of fact. In reviewing the latter, an

appellate court must exercise appropriate caution, especially where the Lord Ordinary’s

decision has been based on determinations on credibility or reliability. Where this occurs,

the appellate court must be satisfied that the findings of the Lord Ordinary were “plainly

wrong” (Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, Lord Shaw at 37,

approved in Thomas v Thomas 1947 SC (HL) 45, Lord Thankerton at 55, Lord Macmillan at

59). These words mean that, in the view of the appellate court, the Lord Ordinary reached a

decision which no reasonable judge could have reached (Henderson v Foxworth Investments

2014 SC (UKSC) 203 Lord Reed at para [62]). This in turn is explained as meaning that the

decision cannot reasonably be explained or justified (ibid para [67]).

[32] “Plainly wrong” is not the only ground for review. The Lord Ordinary may have

“a material error of law, or the making of a critical finding of fact which has no basis

in the evidence, or a demonstrable misunderstanding of relevant evidence, or a

[33] The turns of a witness’s eyelid (Lord Shaw (supra)) may, at least in theory, be

significant in assessing credibility or reliability. Certainly the advantage, which a court of

first instance may have had in having seen and heard the testimony, should not be

underestimated (McGraddie v McGraddie 2014 SC (UKSC) 12, Lord Reed at 22). An appellate

court must have due regard to the limitations of the appeal process, with its narrow focus on

particular issues rather than the evidence as a whole (ibid). However, when the court is not

reviewing primary facts but inferences from them (secondary facts), it can more easily

reverse a first instance conclusion, especially one which has not involved a finding of

credibility or reliability (Stephen v Scottish Boatowners Mutual Assurance 1989 SC (HL) 24,

Lord Keith at 61). This is even more so when what is under review is the application of the

law to the facts; whether primary or inferential (SSE Generation v Hochtief Solutions 2018 SLT

579, LP (Carloway) at para [282]; Anderson v Imrie 2018 SC 328, Lord Drummond Young at

para [44]). In that situation, it may be that the benefits of the larger appellate bench can play

a significant part in arriving at the correct decision (ibid, citing Appellate courts parts 1, 2 and 3

2015 SLT (news) 125, 130 and 138 at 127). When engaging in the intellectual process of

applying the law to the facts, or in drawing inferences from primary facts, an appellate court

may be more objective in its approach and be less influenced by the Lord Ordinary’s

perception of, and maybe even sympathy for, the witness (AW v Greater Glasgow Health

Board [2017] CSIH 58, LJC (Dorrian) at para 44). The unitary nature of the Court of Session

as the reviewer of the delegated decisions of the Lords Ordinary is not without significance

either in relation to the traditional scope of a Division’s role (Clippens Oil Co Ltd v Edinburgh

and District Water Trustees (1906) 8 F 731, LP (Dunedin) at 750).

[34] With all these matters firmly in mind, the court has concluded that, despite the care

which he has clearly taken in his assessment of the testimony the Lord Ordinary,:

(i) misapplied the maxim res ipsa loquitur to the facts; (ii) was plainly wrong in holding that

the speed of the bus did not make it less easy to handle; (iii) failed to consider relevant

evidence; (iv) has misunderstood the driver’s testimony on speed; and (v) reached a

[35] The most problematic flaw is the Lord Ordinary’s application of the maxim res ipsa

loquitur. The use of the maxim in the context of road traffic cases is a familiar one. It was a

central feature in O’Hara v Central SMT Co 1941 SC 363. As the Lord President (Normand)

pointed out (at 377), under reference to Lord Shaw’s speech in Ballard v North British Railway

Co 1923 SC (HL) 43 (at 54), res ipsa loquitur is not a legal principle. It is a presumption of fact,

whose force depends on the circumstances of each case. When it applies, the defender must

demonstrate that the accident occurred without fault on his part. It is not enough to proffer

a possible alternative non-negligent explanation. The defender must establish facts from

which it is no longer possible to draw the prima facie inference (Smith v Fordyce [2013] EWCA

Civ 320, Toulson LJ at para [61], cited in David T Morrison & Co v ICL Plastics 2014 SC

(UKSC) 222, Lord Reed at para [37] agreeing with Lord Hodge at para [98]).

[36] The Lord Ordinary correctly determined that the maxim applied. Buses which are

driven in a safe and proper manner and at a reasonable speed do not leave carriageways of

major trunk roads in winds of the relatively common velocity present at the time of this

accident. The defenders thus required to prove, on the balance of probabilities, that the

accident had occurred without negligence on the part of their driver. Unfortunately, the

Lord Ordinary did not approach the matter in this way. A different Lord Ordinary had

declined to ordain the defenders to lead at the proof. Such an order would perhaps have

reflected with greater clarity the correct application of the maxim in the circumstances

admitted on record. Be that as it may, the Lord Ordinary, in his approach to the proof,

returned the onus to the pursuer to prove what the Lord Ordinary described (at para [32] of

his opinion) as his only suggestion of fault; that being, according to the Lord Ordinary, the

actions of the driver, and in particular the speed at which the bus was being driven. That

was not the manner in which the pursuer’s case was pled or presented. The pursuer did not

need to advance any suggestion of fault. A prima facie inference of negligence existed by

virtue of the facts admitted on record. As the pursuer submitted, the Lord Ordinary

[37] In these circumstances, the question which the Lord Ordinary ought to have asked

himself was whether the defenders had proved that the bus had been driven in a manner

which was not negligent. It was not for the pursuer to prove that the speed of the bus was

excessive for the conditions. It was for the defenders to prove that it was not and, in any

event, that the driver had not failed to take reasonable care to keep the bus on the

carriageway. Speed may have contributed to the accident, but it was the driver’s loss of

control of the bus which was the ultimate operative cause. The defenders had the task of

proving that that loss of control was not negligent. For this reason alone, the Lord

[38] A second difficulty with the Lord Ordinary’s approach is his statement (at para [33]

of his opinion) that it was “not said” that, at the speed at which the bus was travelling, it

“would be less easy to handle in the prevailing conditions, or less responsive to directional

control, or in some way less stable, more vulnerable to the impact of the wind, more prone

to being deflected off course”. There are matters that do not need to be spoken to in

evidence. Central to any consideration of negligence is the self-evident fact that a lower

speed improves vehicle handling, especially in cross winds. A static bus, or one which is

driven at a slow speed, will not be blown off a main road by these winds. The faster a

vehicle is driven, the greater the impact of the dynamic forces on it will be. The less traction

there will be on the roadway. The less reaction time will be available when an unexpected,

but foreseeable, event occurs. This is not a matter which requires expert testimony, but one

of ordinary everyday experience. The slower a bus is driven in windy conditions, the easier

it will be to keep on the carriageway. The faster it is driven, the more unstable it will

become and the less reaction time there will be. The Lord Ordinary was plainly wrong in

[39] Thirdly, the effect of speed had been described in evidence. It is what Mr McArthur

was referring to at the end of his examination-in-chief (supra). This is a further problem with

the Lord Ordinary’s reasoning. He appears to have ignored this testimony. There is no

obvious explanation for this evidence, which emanated from an experienced driver with

HGV experience and who had been subjected to the same conditions as the bus, being left

out of account. Mr McArthur had reacted to the conditions by slowing to a speed of 30 mph

which he could maintain in second gear. The discounting of Mr McArthur’s testimony also

[40] The importance of speed was also accepted by Ms Holland under cross-examination.

She had already alluded to it when mentioning speed restrictions which are imposed on

bridges when wind velocity exceeds certain limits. A bridge may only be closed to high

sided vehicles when the wind velocity exceeds 70 mph, but speed restrictions will be

imposed on vehicles when it is much less than that. There was no evidence that the driver’s

speed, and hence her ability to react, was not negligent. Such evidence as there was pointed

[41] A fourth difficulty with the Lord Ordinary’s analysis is his understanding of the

import of the driver’s testimony. He dismissed the driver’s account of her speed as

unimportant; explaining that she was simply mistaken in her underestimation of the rate of

travel and that what she had said had been in the context of a discussion of relative speeds

before and after the first gust. Although there may be some force in these considerations,

the fact is that the Lord Ordinary correctly recorded the driver as accepting that driving at

more than 20 mph in the prevailing conditions, when the first gust hit, would not have been

sensible. The question and answer according to the transcription were: “…do you think

going at more than 20 miles an hour would be sensible in those weather conditions you’ve

described? – No”. As already noted, this was a reference to the conditions that existed at the

first gust, after which the driver said that she had braked and thus reduced her speed to 10

[42] The Lord Ordinary concluded that, on the basis of the expert evidence, the bus was

actually travelling at between 40 and 45 mph, when it was hit by the first gust, and between

35 and 40 mph, when it was hit by the second. It was thus going at more than twice the

speed which the driver herself considered to be sensible when the first gust hit and possibly

even when the second gust did so too. The driver’s testimony amounted to an admission

against interest that, if the Lord Ordinary’s findings on speed were correct, she was not

driving sensibly. Her position, which was rejected by the Lord Ordinary, remained that she

was not driving at the speeds which were ultimately proved. Even when read in the whole

context of the examination, and bearing in mind the limits of an appellate review, this

admission is not capable of being glossed over in the manner adopted by the Lord Ordinary.

The bus was being driven at twice the speed which the driver maintained she was doing and

twice what she herself regarded as sensible for the conditions. It is extremely difficult, if not

impossible, to see how the driver could nevertheless be held not to be at fault when the

consequence was that she was unable to react in sufficient time to control the bus and avoid

the accident. The Lord Ordinary’s conclusion in this regard cannot be explained or justified.

[43] According to Ms Holland, the driver’s acceleration from the layby to the point at

which the first gust hit was typical. The bus accelerated to between 40 to 45 mph in the

space of 150 metres. This is at least strongly indicative of the driver adopting the rate of

acceleration which she would have applied in normal circumstances, as distinct from the

prevailing conditions. The acceleration was almost the maximum which was possible. If the

question is asked of what steps the driver took to adapt to these conditions, the answer on

the evidence would appear to be “none”. This is, as is often said when the maxim applies,

[44] The only defence put forward by the defenders was that what had happened was

damnum fatale. Since the conditions which the bus encountered were not out of the ordinary,

this defence was bound to fail. The Lord Ordinary would, had it been necessary to do so,

have rejected this defence. The problem with that approach is that it was the only defence

which was advanced to rebut the inference of negligence which followed the application of

the maxim. Once it was rejected, that inference was almost inevitable.

[45] The Lord Ordinary’s residual concern (in para [36] of his opinion) is a curiosity.

Having said that he would have rejected damnum fatale, he went on to suggest that what had

occurred had been without fault and was “inevitable”. Damnum fatale is usually defined as

loss arising from inevitable accident (Traynor’s Latin Maxims; Guthrie Smith: Reparation 410;

cf Walker: Delict (2nd ed) 331). A finding of inevitability is inconsistent with the evidence

that the wind conditions were foreseeable and could be coped with by the expedient of

reducing the speed of the bus. As Ms Holland accepted (supra), an accident was not

inevitable. It depended on the speed of the bus. If the bus had been travelling “at a slightly

slower speed than it actually was travelling it would still have been possible to avoid the

[46] For these reasons, the decision of the Lord Ordinary cannot be sustained. The

inference of negligence was not, on the evidence, rebutted. In so saying, the court is not

deciding the case on the basis of onus. As the Lord Ordinary recognised, once all the

evidence is out, onus seldom matters (SSE Generation v Hochtief Solutions (supra) LP

(Carloway) at para 45 and Gibson v British Insulated Callenders Construction 1973 SC (HL) 15,

Lord Reid at 22). Rather, the evidence, notably that of the driver, Mr McArthur and

Ms Holland, was eloquent only of negligence. The reclaiming motion must be allowed. The

interlocutor of 18 December 2019 will be recalled. The court will find the defenders liable to

make reparation to the pursuer in respect of the accident of 26 March 2015. In terms of the

parties’ agreement on quantum, this will be in the sum of £15,000, with interest thereon at the

judicial rate from the first day of the proof (30 October 2019).

Scottish Court of Session Decisions