Tour bus company ordered on appeal to make reparations to man involved in accident  

The pursuer and reclaimer, Allen Woodhouse, argued that the Lord Ordinary had erred in finding that negligence could not be established on the part of the driver, who was an employee of the defenders, Lochs and Glens (Transport) Ltd.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Woolman and Lord Pentland.

Sudden gust of wind

The accident occurred on 26 March 2015, when the pursuer was a passenger on a bus being driven by the defenders’ employee northwards on the A83 heading towards Inveraray. At about 2pm the bus tipped and rolled over while trying to negotiate an S-bend in the vicinity of the B828 Glen Mhor road.

The position of the defenders was that the nearside of the coach was struck by “a sudden extraordinary and exceptionally severe gust of wind” which caused the coach to drift. While the driver was steering the coach back towards its normal driving position it was struck by another severe gust that caused the rear of the coach to drift, leading to the overturn.

It was argued in the Outer House that the phenomenon of the two gusts of wind could not have reasonably been anticipated, and the cause of the accident was damnum fatale. The driver, who had driven the road many times before, stated in her evidence that the wind was quite normal for the location.

The evidence of the driver was that she had been travelling at between 20 and 30 mph when the first gust hit. However, the Lord Ordinary found that the coach was being driven at between 40 and 45 mph at that time.

Evidence was also heard from a Mr McArthur, a former HGV driver who was driving behind the bus in his car at the time of the accident. He was the only other witness who spoke about speed, stating that he was driving at about 30mph in his own car and would not have driven faster than that in an HGV under the conditions.

The Lord Ordinary held that the defenders’ driver was prima facie negligent. However, he found against the pursuer because he had failed to prove that the speed of the bus had been excessive, and the speed of the bus did not make it less easy to handle.

On appeal, the pursuer submitted this effectively required him to prove negligence twice. Had the Lord Ordinary asked the correct question, namely whether the defenders had shown that the bus was being driven at an appropriate speed, he would have been bound to find in favour of the pursuer.

Plainly wrong

The opinion of the court was delivered by Lord Carloway. Noting that the court must exercise appropriate caution when reviewing findings of fact, he said: “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.”

He continued: “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 effectively required the pursuer to prove negligence twice.”

Regarding the Lord Ordinary’s finding that the bus would not have been more difficult to handle at higher speeds, he said: “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 holding that this had not been established.”

Lord Carloway then addressed the effect of Mr McArthur’s evidence, saying: “[The Lord Ordinary] 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.”

On the defence of damnum fatale, he said: “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.”

He concluded: “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. Rather, the evidence […] was eloquent only of negligence.”

For these reasons, the appeal was allowed. The defenders were found liable to make reparation to the pursuer in the sum of £15,000.