Some accidents are simply nobody’s fault

Amy Cockburn v MCE Insurance Company Limited [2019] SC EDIN 75

There are often times when the Scottish Courts are faced with the difficult task of having to decide between two differing accounts of an accident without any independent witnesses or real evidence to support either version.

This is exemplified in Sheriff Braid’s recent judgment in the case of Amy Cockburn v MCE Insurance Company Limited [2019] SC EDIN 75.

Facts

On 23 July 2018, the pursuer was driving her Renault Clio on a single carriageway road in West Lothian. The road in question had no central white dividing line. As the pursuer commenced driving round a sharp bend in the road, she observed a motorcycle approaching from the opposite direction.

The pursuer contended that the motorcycle was travelling at a fast speed, that the rider lost control of the motorcycle, and as a result, the motorcycle struck the rear of her vehicle. The pursuer raised an action for damages, including personal injury, against the insurers of the motorcycle.

The court heard evidence from only the pursuer and the motorcycle rider, Mr Cochrane.

Contrary to the pursuer’s assertions, and whilst not disputing a collision occurred, Mr Cochrane alleged that the pursuer had taken the bend too sharply and had encroached onto his side of the road. His evidence was that due to the pursuer encroaching, he had to counter-steer. This caused his motorcycle to slide into the side of the pursuer’s vehicle and Mr Cochrane came off the motorcycle. Mr Cochrane gave evidence that the road conditions were greasy at the time.

Decision

With no independent witnesses, the Sheriff was left to decide between two competing accounts of the accident, which were in His Lordship’s words “both plausible”, and in a case where both witnesses were considered to be credible.

On hearing the evidence, the Sheriff preferred the account put forward by Mr Cochrane. It was considered that a car being much wider than a motorcycle, and given the sharp nature of the bend, it was more likely to encroach than a motorcycle. The Sheriff also considered Mr Cochrane provided a more detailed account of the accident and, on the balance of probabilities, his explanation was marginally more plausible. The Sheriff found it easier to visualise the accident on the account provided by Mr Cochrane rather than that of the pursuer.

The Sheriff was therefore unable to make a finding that Mr Cochrane had failed in his duty to take reasonable care, either by encroaching or by losing control of his motorcycle. The defender was therefore absolved from liability in the action. However, the Sheriff did not seek to make a positive finding that the pursuer’s vehicle had encroached onto Mr Cochrane’s side of the road, or that she was at fault for the accident. The Sheriff opined at paragraph 14 that:

It is unnecessary to make any finding in fact that the pursuer herself encroached on to Mr Cochrane’s side of the road. Although she has failed to establish that Mr Cochrane was at fault, that does not mean that she was: as I have said, some accidents are simply nobody’s fault.”

Commentary

The onus of proof is on the pursuer, on the balance of probabilities, to prove that the accident happened in the manner they allege it did and that the accident was caused by the fault and negligence of the party they pursue in court.

In this case the Sheriff, on balance, found the version of events put forward by the defender to be marginally more plausible and this was enough to make a finding that the pursuer had failed to establish negligence on the defender’s part.

As the Sheriff emphasised, sometimes there are accidents where no blame can be attributable to either party involved.

For any further information regarding any aspect of the issues raised in this case, please contact; Pamela Stevenson, Partner on 0141 375 0867 or email pamela.stevenson@weightmans.com

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