Damages claim over coach crash caused by ‘freak’ gust of wind dismissed
A passenger on a coach which careered off a road and down an embankment at the “Rest and Be Thankful” has had a personal injury action for £15,000 damages rejected.
A judge in the Court of Session dismissed the negligence claim after ruling that the accident was caused by a strong gust of wind which blew the vehicle off the road and was therefore not the driver’s fault.
‘Severe gust of wind’
Lord Glennie heard that the pursuer Allen Woodhouse was one of 51 passengers on a Volvo coach owned and operated by the defenders Lochs and Glens (Transport) Ltd, who were enjoying a “7-day Spring Ceilidh Break” in the Highlands, based at the Loch Awe Hotel and embarking on day trips each day.
On 26 March 2015 they had stopped for lunch at a hotel a few miles south of Rest and Be Thankful, after which they set off at about 1.45pm, heading northwards on the A83.
The coach then pulled in at the Rest and Be Thankful viewpoint, but the stop was fairly brief because the weather had turned for the worse and very few passengers got off the coach.
After setting off from the viewpoint, the driver Elizabeth Gallon noticed that the front passenger door did not seem to be fully shut, so she stopped to close it properly.
The driver’s evidence was that she pulled out of the lay-by at about 2pm and accelerated normally, reaching a speed of approximately 20-30 mph, when the coach was hit by a strong gust of wind from the left, which pushed the vehicle towards the middle of the road and over the central white line.
She immediately braked and managed to reduce her speed to about 10-15 mph before turning her steering wheel to the left to regain her position on the correct side of the road.
But the coach was immediately hit by another severe gust of wind, this time from right side, which seemed to “lift up” the front of the vehicle and force it to the left, off the road and onto the verge, despite the driver applying the brakes and attempting to steer the coach to the right.
The went down an embankment towards Loch Restil, rolling over once in the process, and came to halt in an upright position just short of the loch.
A number of passengers were injured, including the pursuer, as was the driver of the coach, who was an employee of the defenders.
The pursuer sued for damages in the Sheriff Court, alleging that the accident was caused by the “negligence” of the defenders.
Quantum had been agreed in the sum of £15,000, and while the sum sued for was relatively modest, because of the wider significance of a decision on liability in the resolution of claims by others who were injured in the accident, the action was transferred to the Court of Session.
For the pursuer, it was argued that the mere fact that the coach came off the road at that point gave rise to a “prima facie inference” of negligence on the part of the driver, and it was for the defenders to rebut this inference by giving an explanation for the accident which was “credible and reliable” and “non-negligent”.
It was submitted that weather was “not unforeseeable” – it was was not a damnum fatale or “Act of God” – it was simply a severe gust on a windy day on a windy stretch of road.
The accident could have been avoided by slowing down or steering away from the edge: if the driver was going at the speed she thought she was going – 20-30 mph, reducing to 10-15 mph after the first gust and before the second – then she had “plenty of time” to react and could have avoided the accident.
If, on the other hand, she was driving at a greater speed – possibly in excess of 40mph before being hit by the first gust – that was too fast for the conditions, and it left her with insufficient time to react to the impact of the second gust; which meant the coach was propelled forwards onto the part of the verge which sloped downhill and caused it to roll over.
On either view, it was submitted that the defenders had failed to discharge the onus on them of showing that the accident happened without their negligence.
‘Not reasonably foreseeable’
For the defenders, it was argued that this was not a case where the onus shifted to the defenders to show that the accident happened without their fault - that rule only applied where all the factors contributing to the accident were within the control of the defenders.
It was submitted that the defenders were not required to prove a particular non-negligent cause of the accident – the authorities established only that the defenders had to show that there were circumstances which might have caused the accident without involving their negligence.
But even if the pursuer’s submission on shifting the burden of proof were correct, the defenders had led enough evidence to establish that the accident was not caused by their fault.
The accident could be explained by the wind; the coach was blown off the road by an “exceptional gust”, following on from a strong gust from the opposite side.
The pursuer had led “no evidence of carelessness, lack of attention or excessive speed”.
In summary, the defenders’ case was that the combination of the two severely turbulent gusts of wind from directly opposite directions, on an otherwise windy day, were of such a magnitude as to render their occurrence “not reasonably foreseeable as a realistic possibility”.
The conjunction the wind and the gusts at that particular moment and at that particular spot, with its particular topographical features, coinciding with the coach passing that spot at that time, meant that the accident was “not caused by the fault of the driver” but by “freak conditions”.
‘Driver not at fault’
The judge 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, but he rejected the pursuer’s case that the driver was at fault.
In a written opinion, Lord Glennie said: “In my judgment the pursuer is correct in his argument that in the circumstances of this case the burden of proof switches to the defenders to prove that the accident occurred without their negligence.
“I am persuaded on the evidence that the defenders have discharged the burden on them of proving that the accident happened without their negligence.
“The evidence that the coach was well maintained and did not suffer from any relevant pre-existing defect was not challenged; indeed it was a matter of agreement in the Joint Minute lodged in process by the parties. The only challenge, the only suggestion of fault advanced by the pursuer, was in relation to the actions of the driver.
“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.
“Negligence depends on reasonable foreseeability – it does not require steps to be taken in advance to meet a situation the occurrence of which is not reasonably foreseeable. In these circumstances I do not accept the pursuer’s case that the driver was at fault.
“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.”
© Scottish Legal News Ltd 2020