In the case of Russell v NFU Mutual, (2014) CSOH 157 Lady Stacey issued her Opinion on 30 October 2014.
On 21 September 2012 Mr Russell, riding his motorcycle, was in collision with a vehicle and trailer. The Defenders were the Insurers of the vehicle driver.
Mr Russell came round a bend at 60 mph travelling west. Ahead of him to his right [the north] were two junctions. For access from the main road, both had right turning lanes in the centre of the carriageway. He noted a car travelling down the second road on his right, indicating a right turn ie. to go west as he was.
There was a field entrance to Mr Russell’s left (the south side of the road).
The vehicle driver pulled out of the field intending to turn right ie, to cross the westbound carriageway to go east. He said the road had been clear and he started to pull out. He had reached the other side of the road, the eastbound carriageway, when he heard the noise of a motorcycle and heard a thud as the bike hit his trailer.
The driver of the vehicle approaching the main road from the minor road gave evidence that he had checked both ways and after the motorcycle had passed, he pulled out to travel in the same direction. He said he would have seen the vehicle and trailer coming out of the field if it had been there when he looked right. It wasn’t in view.
Only once he had made the right turn to go west did he see the vehicle and trailer coming out of the field directly in front of the motorbike.
On the basis of the evidence, Lady Stacey held that the vehicle driver was responsible for the accident. She held that the vehicle driver should have seen the motorcycle but came out into its path and wasn’t persuaded on the evidence that Mr Russell was exceeding the speed limit of 60mph.
Submissions were made on contributory negligence. On behalf of Mr Russell, it was argued that although there might be several reasons for an accident happening, the Court had to decide the cause and what actions were in breach of any duty. It was argued that even if it could be said that had Mr Russell been travelling at a slower speed he would then have been able to stop, that did not allow a finding of contributory negligence. There was an alternative submission that if there was contributory negligence it was no more than 20%.
For the Defenders it was argued that the accident had been caused entirely by Mr Russell’s excessive speed. It was argued that on the basis of the Highway Code, he ought to have been travelling at a speed which would have allowed him to come to a standstill when he saw the trailer on the road ahead of him. Reliance was placed on the Highway Code to the effect that a driver should drive at a speed which would allow him/her to stop if an obstruction arose.