A bike, a boat and contributory negligence

GRAHAM JOHN DALY v (FIRST) DAVID HEEPS & (SECOND) MARKERSTUDY LTD [2018] SC EDIN 01

In this recent case the All-Scotland Personal Injury Court was asked to consider who was at fault for an accident involving a cyclist and a driver.

The Pursuer had been participating in a 10 mile cycling event which had taken the format of a team time trial. The First Defender was the driver of a motor vehicle involved in a collision with the Pursuer and the Second Defender had issued an Insurance Policy in respect of the vehicle.

While participating in the event the Pursuer was riding his bicycle along an unclassified road running between the A91 and the A997 near Kinross when he was involved in a collision with a trailer (with a boat on it) being towed by a car driven by the First Defender.

Quantum in the case was agreed at £110,000 and the Proof proceeded before Sheriff Braid on the issues of liability and contributory negligence.

Evidence was given by numerous witnesses including the Pursuer and his two teammates as well as Mr Gordon Jenkins, a Bus Driver who had been driving along the road behind the cyclists and was also an eye-witness. He had also provided video footage of the incident from his dashcam.

The Defender led evidence from his passenger, his wife, as well as Police witness evidence and evidence of an expert, Mr James McCartney who provided admissible evidence regarding a calculation of speed of the Defender’s vehicle on the basis of the dashcam footage.

Many of the facts and circumstances of the incident were uncontroversial. It was accepted that the Pursuer and his teammates were travelling in formation eastward along the road at around 24 to 25 mph. The Pursuer was at the rear of the formation. Meanwhile the Defender and his “rig” were travelling in the opposite direction downhill at approximately the same speed as the cyclists. The road itself was a narrow, single track road.

Both the Pursuer’s teammates, Mr Barclay and Mr Devlin managed to cycle between the “rig” and the verge of the road without hitting the Defender’s car or trailer. However, the Pursuer did not. He missed the car but his shoulder struck the trailer attached to the vehicle and he was thrown from his bike sustaining various injuries.

There were two key issues in dispute. Firstly it was alleged that the Defender had made no effort to slow or stop his vehicle and secondly, not only had he encroached onto the Pursuer’s side of the road but he did not pull over to the left as far as he could.

The Defender argued he had been unable to stop and in any event it made no difference because even if he had, the Pursuer was not looking where he was going and would still have struck the trailer. It was the Defender’s position that he was as far over to the left as he could reasonably be.

In his lengthy and detailed Judgment Sheriff Braid set out an analysis of the evidence. He was critical of the evidence provided by the Defender, describing his approach to giving evidence as “bombastic” and noting that he gave his evidence in an over-confident and overbearing manner, was unnecessarily argumentative and as such it was difficult to envisage him ever admitting liability for a road accident, even one which had been obviously his fault. Accordingly the Defender was the one witness that Sheriff Braid did not find credible or reliable.

Against that background Sheriff Braid did find the Defender had been negligent.

In relation to speed Sheriff Baird considered all the witness evidence including the expert evidence given by the Defender’s expert Mr McCartney and found the Defender had been traveling at around 25 mph. However in his view this was too fast for the road noting that on his own admission the Defender had been driving at a speed at which it had been impossible for him to stop his “rig” before meeting the cyclists. This was against a background where the Defender had been aware of the likelihood of oncoming cyclists given he had already passed race participants on his journey and bearing in mind the terms of the Highway Code.

Sheriff Braid accepted the issue of the Defender’s road position was more nuanced and that the duty on the Defender was one of reasonable care and not a “counsel of perfection”. A driver must be allowed some margin of error.

However, Sheriff Braid stated that the Defender’s road position must be considered with regard to the speed at which he was travelling and on that basis found his position was negligent. Putting it in a different manner, he stated that had the Pursuer been driving slower he should have been able to position himself marginally further over to the left.

However, Sheriff Braid stated the Pursuer could not escape criticism either.

He had not been looking at the road even after he became aware of the Defender’s approaching vehicle. He was also travelling at excessive speed with regard to the respective width of the road and the Defender’s rig. He should have been alerted to the narrowness of the road and he was under a duty to take reasonable care for his own safety which was not lessened by the fact he was taking part in a team trial cycling event.

On reaching a decision on contributory negligence Sheriff Braid commented that a striking feature of the case was that substantially the same criticisms could be levelled at each party. Neither party was concentrating on the road. The accident occurred because both parties approached each other at the same speed, neither hard up against the verge and leaving them a very small gap to negotiate passage.

In the circumstances Sheriff Braid stated it was difficult to avoid any conclusion other than parties had contributed equally to the accident and therefore assessed the Pursuer’s contributory negligence at 50%.

This is an interesting read for Agents acting for both Pursuers and Defenders as it shows how crucial witness evidence is when cases turn on their facts and circumstances. It is a particularly detailed Judgment produced by Sheriff Braid and sets out clearly the thought process applied by the Sheriff in reaching his decision.

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