Motorcyclist awarded damages following late night crash with milk tanker

The pursuer, Adam Wagner, 23, will receive a “six figure sum” in damages after being seriously injured in the collision with the tanker as it reversed across a carriageway late at night in a manoeuvre Lord Uist (pictured) described as “intrinsically dangerous”.

The judge held that the defenders, the driver Thomas Grant and employers Arla Foods UK PLC were negligent in carrying such a manoeuvre in darkness, but that the pursuer was partly to blame.

The court heard that the pursuer, who was 17 at the time of the incident, sustained serious injuries including a below-knee left leg amputation following the accident in August 2009.

The pursuer, then a learner driver, was riding his Honda CB125 motorcycle, which had L plates attached, west on the unlit B7076 Gretna to Johnstonebridge Road when he collided with the milk tanker, consisting of a cab and trailer, which was reversing into the road on the pursuer’s left leading to Nouthill Farm.

The pursuer was returning home from work at about 11pm, having finished his shift at the Gretna Services Station and his uncle, also a motorcyclist, was following him.

Ahead he saw the lights of a lorry on the opposite side of the road, but continued at about 55mph believing the lorry was slow moving on the opposite carriageway.

However, the lorry was in fact an articulated milk tanker and while the cab section was on the opposite side of the road the trailer section was diagonally across his path.

The lorry was reversing into a farm entrance to collect milk and it was only when the pursuer’s headlight illuminated the trailer section that he and his uncle realised there was a trailer blocking their path.

The pursuer swerved to his left but hit the rear offside wheel of the trailer and his uncle, who had a little more time to react also swerved, hit the kerb and came off his motorcycle.

An action was raised in the Court of Session in which the pursuer sought damages from the defenders for the loss, injury and damage which he sustained. All heads of damage, apart from the cost of prosthetics, had been agreed. The case therefore went to proof only on the disputed questions of liability and the cost of prosthetics.

The broad proposition advanced on behalf of the pursuer was that the evidence established that not only were the pursuer and his uncle not able to see the trailer until very late on, but also that they were not realistically able to do so, and that the pursuer “could not have avoided the trailer”.

It was argued the driver should have done more to alert the motorcyclists of his presence, that he should not have commenced his manoeuvre, and that there was a “reasonably foreseeable risk of injury” when the vehicle was reversed across the road in darkness.

It was further argued that that the pursuer should be awarded adequate compensation and a state-of-the-art prosthetic to allow him proper mobility to embark upon a career as a motorcycle mechanic.

The submission for the defenders was that the accident was caused solely by the fault of the pursuer.

The presence and movement of the defenders’ vehicle in the course of the reversing manoeuvre would have been “obvious” to the pursuer had he been keeping a “proper lookout” on the road ahead, it was argued.

Had he been doing so he would have appreciated the presence of the vehicle, that it was engaged in a reversing manoeuvre, that it was displaying hazard, working and marker lights and obstructing the lane ahead of him and he would have slowed down and brought his motor cycle to a stand at a safe distance from the vehicle, it was submitted.

The judge observed that the fact that not only the pursuer but also his uncle failed to appreciate that there was an obstruction across their lane and failed to stop in time was “significant”.

In a written opinion, Lord Uist said: “I am satisfied that in this case the execution of the reversing manoeuvre by the vehicle in the hours of darkness was by its very nature something which created an unnecessary danger to other vehicles using the road, particularly those travelling in a westward direction…I therefore hold that the defenders were negligent in carrying out this manoeuvre in darkness.”

He added: “I find that the accident was caused partly by the fault of the pursuer and partly by the fault of the defenders and that the proportion of blame attributable to the pursuer falls to be assessed at 40.”

The judge also found that the cost of prosthetics was to be calculated on the basis of the evidence of a prosthetist who was an expert witness for the defenders, who recommended that the pursuer be supplied with two general purpose prostheses of similar build and specification capable of supporting a moderate to high activity lifestyle at a total cost of £20,000 over five years.

*Brenda Mitchell, of Motorcycle Law Scotland, who acted for Adam Wagner, said: “This is a victory for Adam, although I am disappointed that the Judge did not award the full valuation which would have given Adam the state of the art prosthetic that we think he deserves and which would have given him the mobility he really needs to pursue a career as a motorcycle mechanic.”