Family awarded £100,000 damages following fatal road traffic accident outside home

Morag McKenzie, her daughter, and granddaughter sued Asda and DHL as the employers of the drivers of the two vehicles which collided on a road in Drum in Perthshire in 2012.

A judge in the Court of Session ruled that van driver Tristan McKenzie was “negligent” and was 75 per cent to blame, and that tanker driver Alan Robertson - who died in the crash - was 25 per cent to blame having “materially contributed” to the accident.

Lord Woolman observed that the accident had a “deep and lasting effect” on the family’s lives and awarded the pursuers the agreed sums of £75,000, £20,000 and £5,000 respectively.

‘A glancing blow’

The court heard how the family was unable to stay at the property for two years following the incident on 9 January 2012.

Mr McKenzie was working for Asda and making a delivery in the area when he turned into the wrong street.

After he emerged from the cul-de-sac and drove back onto the eastbound A977, he then began to make a right turn to the intended destination, but the tanker had already started to overtake.

However, Mr McKenzie was not aware of its position and the front left wheel arch of the tanker struck the front offside of the four-tonne van.

Although it was only “a glancing blow”, it deflected the 44-tonne tanker off course, causing it to veer off the 40mph carriageway, over the verge, down an embankment into the garden of the property owned by Mrs McKenzie.

Lord Woolman said: “Tragically, Mr Robertson sustained serious injuries in the cab from which he died. The trailer rolled over and thousands of gallons of aviation fuel spilled into the garden, but did not ignite.”

‘Duty of care’

The judge ruled that Mr McKenzie was negligent.

In a written opinion, Lord Woolman said: “When he turned into the eastbound carriageway, he knew (a) that he was entering in front of a line of traffic in a 40mph zone, and (b) that he would be very shortly turning right. 

“He owed a duty to take reasonable care to ensure that he did not either come on to the A977 or turn off it before he had checked that it was safe to do so. In particular, he needed to ascertain the position of the tanker and the other traffic behind at both points.”

Mr McKenzie had told the court that he looked in his wing mirror and saw the tanker positioned a comfortable distance behind him and then signalled, braked, and started the right turn towards his destination.

But the judge found his evidence to be “unreliable”.

He said: “His account appeared to me to be now etched in his brain as a result of thinking about it so much over so many years. I reject his evidence that he checked his wing mirror and that the tanker was fully established in the lane reasonably far behind him. That simply does not square with the other evidence.   

“Further, Mr McKenzie only checked his mirror once. As he himself accepted, a second check of the mirror, or a swift glance over his shoulder before making the turn, would have alerted him to the position of the tanker. In the whole circumstances of the case, that would have been the reasonable thing to do.”

‘A hazardous enterprise’

The judge also rejected an argument to the effect that Mr Robertson did not owe a duty of care to the pursuers.

Lord Woolman continued: “I hold that Mr Robertson could have reasonably foreseen that if he drove the tanker negligently, it could cause harm to other road users and neighbouring proprietors. Further, it is fair, just and reasonable that he owe a duty of care to such persons. I conclude that Mr Robertson breached that duty by embarking upon the overtaking manoeuvre. 

“A reasonable driver would have had regard to the following factors: (a) the van was embossed with ASDA livery and travelling slowly, so it might well be making further deliveries, (b) this was a single carriageway A class road, (c) the speed limit was 40mph, (d)there were various road features, including openings on each side, a bus stop, a pedestrian crossing, and a right-hand bend, and (e) the tanker was carrying a heavy load of volatile fluid. 

“All these features made overtaking a potentially hazardous enterprise. I hold that Mr Robertson materially contributed toward the accident.”