Scottish man injured in quad bike crash in Greece unsuccessful in obtaining damages

Keith Fitzsimmons claimed he was injured when the quad bike came into contact with a tanker whilst on the road. As the driver could not be located, the action was raised against the Motor Insurers Bureau, with Greek law being the applicable law for the purpose of liability.

The case was heard in the All-Scotland Sheriff Personal Injury Court in Edinburgh by Sheriff Kenneth McGowan.

Tanker-like vehicle

The pursuer was on holiday with his wife Michelle and daughter Rebecca, as well as his daughter’s boyfriend Dylan, on the Greek island of Zakynthos (Zante) in July 2016. The pursuer and Dylan hired two quad bikes on 17 July 2016. He was offered the use of a crash helmet but declined the offer.

At around 13:30 the pursuer was driving the smaller of the two quad bikes along a country road that was untarred but wide enough for two cars. As he approached a bend, a larger vehicle like a tanker was approaching in the opposite direction. The other quad bike, driven by Dylan, passed it without incident.

Either shortly before or when the tanker was adjacent to the pursuer’s quad bike, the front offside wheel of the quad bike left the road surface and went into a ditch. The quad bike went out of control, collided with the rock face and rolled over.

The pursuer was admitted to a local hospital at 14:00. During this time, the family had statements taken by Greek police with the help of an interpreter. None of them mentioned the presence or involvement of another vehicle in the accident to the police. An account of the accident was also given to a representative of the UK government by the pursuer’s wife, who again did not mention another vehicle.

The pursuer was rendered unconscious at the scene and suffered amnesia about the circumstances of the accident or events at the hospital. The extent of his injuries included a front skull fracture, spinal injuries, and injuries to his arms including complex fracture dislocation of one elbow. It was not possible to quantify the extent to which a crash helmet would have reduced his head injuries given the number of variables involved.

The pursuer submitted that the tanker did not leave him enough room to pass and collided with the rear of the quad bike. Applying Greek law, the driver of the untraced vehicle was at fault, and in their absence the MIB was sued pursuant to the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003.

The defender submitted that the pursuer had failed to prove that an untraced vehicle had caused the accident, and that this account was originated by Rebecca in the days following the accident. Esto there was an unidentified vehicle there was an insufficient basis upon which to find that the driver had breached Greek law.

No satisfactory description

In his decision, Sheriff McGowan regarded the statements given to the police by the family after the accident as “crucial”, saying: “The most contemporaneous recorded accounts of the accident in the statements contained in the police report should be accepted as the most reliable accounts of the accident. They are consistent with each other and with the first recollection of Mrs Fitzsimons (sic).”

He continued: “Neither Rebecca nor Dylan could offer any satisfactory description of the other vehicle they allege was involved in the accident. Nor, on their own accounts, could they offer a satisfactory description in the hours following the accident. That is implausible.”

Of the origin of the pursuer’s version of events, he said: “The accounts given by the pursuer and Mrs Fitzsimons that the accident involved or was caused by another vehicle originated with Rebecca. There is no record of precisely when she told the pursuer and Mrs Fitzsimons of the involvement of another vehicle. The earliest documentary record of the involvement of another vehicle is a Facebook message, dated 22 July 2016.”

On the evidence of the Greek interpreter, who the pursuer suggested may have collaborated with the police to forge statements, he said: “Mr Repapis’ memory was faulty in some respects. For example, his recollection was that there were only two police officers present at the hospital but it seems clear that there were three. Nevertheless, he was able to give evidence about matters of detail. He correctly described the group. He remembered that there had been a road accident.”

He continued: “I consider that the statements were obtained in the manner described by him and thus, as far as they go, contain an accurate record of the account given at the time.”

He concluded: “If there was another vehicle at the locus at the time of the accident (which I accept there was, on the testimony of Rebecca and Dylan), why was it not mentioned at all to the police if it was relevant to the accident circumstances? In addition, there is Mrs Fitzsimons’ account to the British government representative; the absence of evidence about any damage to the pursuer’s quad bike consistent with a collision with a large vehicle travelling in the opposite direction; the pursuer’s accounts given on return to Scotland which in all likelihood originated with Rebecca; Mrs Fitzsimons’ account of the accident itself; and the disparities in the accounts of Rebecca and Dylan.”

For these reasons, decree of absolvitor was granted in favour of the defender.