Appeal court rules motorcyclist was more to blame for late night crash with milk tanker

The pursuer Adam Wagner was awarded more than £340,000 in damages after being seriously injured in the collision with the tanker as it reversed across a carriageway late at night, in a manoeuvre the Lord Ordinary described as “intrinsically dangerous”.

Lord Uist held that the defenders, the driver Thomas Grant and employers Arla Foods UK PLC were “negligent” in carrying out such a manoeuvre in darkness, but also held that the pursuer was partly to blame, concluding that he was 40% responsible for the accident.

The Inner House of the Court of Session upheld the Lord Ordinary’s decision that the driver of the tanker was at fault and that his employers were “vicariously liable”, but ruled that motorcyclist’s “contributory negligence” was 60%.

Lord Menzies, Lady Smith and Lord Drummond Young 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.

Mr Wagner, then a learner driver, was returning home from work at about 11pm having finished his shift at the Gretna Services Station and his uncle Alistair Pasco, also a motorcyclist, was following him.

The pursuer 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 his left leading to Nouthill Farm.

The Lord Ordinary found that all the lights (headlights, side lights, hazard warning lights, working lights and reversing lights) on the cab and on the tanker trailer were on at the time, stating that it was lit up “better than a Christmas tree”.

But he concluded that the execution of the reversing manoeuvre by the vehicle in the hours of darkness created an “unnecessary danger” to other road users and therefore held that the defenders were negligent, albeit he assoilzied the first defender from the conclusion in the summons.

On appeal, senior counsel for the reclaimers submitted that the Lord Ordinary failed to give proper consideration to the evidence when reaching his conclusion that the defenders were at fault.

It was argued that the Lord Ordinary also erred in suggesting that it would have been possible for some form of advance warning to have been given to westbound traffic, either by way of warning sign or someone appointed to provide a form of advance warning.

Further, it was submitted that the Lord Ordinary was “plainly wrong” in relying as he did on his earlier decision in the 2005 case of Cronie v Messenger when assessing blameworthiness, as there were “important distinguishing features” between the two cases, adding that in the present case the pursuer was the “author of his own misfortune” as the evidence pointed inevitably to the primary cause of the accident being the motorcyclist’s driving.

Finally, it was argued that even if the pursuer’s actions were not the sole cause of the accident, senior counsel submitted that the degree of responsibility to be shouldered by the pursuer should be considerably higher than the 40% selected by the Lord Ordinary - and should have been apportioned at “not less than 80%”.

The appeal judges ruled that there is “no basis” to interfere with the Lord Ordinary’s decision that the defenders were at fault, but on the issue of contributory negligence they concluded that he failed to give any justification or reasoning for reaching the figure of 40%, except that this was the figure which he adopted in Cronie v Messenger.

Delivering the opinion of the court, Lord Menzies said: “We consider that it will seldom be appropriate to choose a figure for contributory negligence as between two vehicles in a road traffic accident solely by reference to an assessment in another case, even if that case bears points of similarity with the case under consideration.

“In most such cases there will also be points of difference; it may be helpful to refer to another case (or cases) by way of yardstick or as a point of reference, but it will usually be necessary for a judge to state why he or she considers that the same award should be made as in another case, and to give express consideration to the causative potency and blameworthiness of the pursuer’s actions in the instant case.

“In the present case, the Lord Ordinary has not set out his reasoning on the point at all, and in all the circumstances of this case we consider that he has manifestly and to a substantial degree gone wrong.”

The judges concluded that the degree of blame attributable to the pursuer in failing to keep a proper lookout when the tanker trailer was lit up “better than a Christmas tree” and the pursuer having between 18 and 13 seconds to see it and slow down or stop must be “significantly greater than 40%”.

Lord Menzies added: “We consider that a just and equitable figure to reflect the pursuer’s blameworthiness is 60%. We shall accordingly allow the reclaiming motion to the extent of quashing the Lord Ordinary’s assessment of 40% contributory negligence, and substituting therefor 60%.”

How the ruling would affect the sum awarded would depend on whether the pursuer wished to insist on his own reclaiming motion regarding the Lord Ordinary’s approach to the cost of his prosthetics.

The case was accordingly put out by order for a further hearing to enable parties to address the judges as to further procedure.