When neither driver nor deity takes a hand
Allen Woodhouse v Lochs and Glens (Transport) Ltd
The Court of Session has found in favour of the defender in a test case arising from a coach crash caused primarily by high winds. An adverse decision promised to be very costly for the defender if the pursuer had succeeded given there were 51 passengers on the bus at the time of the incident. The court’s decision is also interesting for those having to make liability decisions in adverse weather-related claims.
The claim of Mr Woodhouse arose from a coach accident near the Rest And Be Thankful beauty spot near Arrochar. The coach, carrying 51 tourists, departed the road and rolled down an embankment to a nearby loch side. The driver (an employee of the defender) lost control after the coach had been buffeted by two successive gusts of wind from opposite directions. News reports at the time reported that 23 of the passengers were hospitalised whilst 20 more were described as “walking wounded.”
The above claim was the first to come before the courts and was transferred to the Court of Session given the number of other claims waiting in the wings. The value of the pursuer’s injury was agreed at £15,000 prior to the hearing leaving the court to make a decision solely on liability
The court’s decision
The pursuer alleged that the mere fact that the coach left the road gave rise to an inference, unless proved otherwise, that the defender’s driver had been negligent. The pursuer asserted that it fell to the defender to give an explanation for the incident that was non-negligent as opposed to the usual situation where the burden of proof lies with the pursuer. Whilst maintaining this position the pursuer sought to highlight the speed the coach was travelling at the time of the accident. The speed, they alleged, was too high for the weather conditions and led to the accident.
The defender denied that it was for them to prove that they were non-negligent and the burden only shifted in such cases where the cause of the accident was unknown to the pursuer. In this case all parties knew that the wind was the main factor.
Burden of proof considerations aside, the defender also argued that the pursuer could not prove that the defender’s driver had been careless, not paid attention or had driven at excessive speed. Further, if the driver had failed in her reactions to the sudden gusts of wind, she should not be judged too harshly for decisions taken in the heat of the moment. The defender also placed reliance on the police decision not to prosecute the driver.
As an alternative the defender proposed the incident be treated, in effect, as an Act of God.
Both sides made use of expert evidence from accident investigators as well as a meteorologist and a professor of experimental and applied aerodynamics.
In his decision, Lord Glennie found that the defender indeed had the burden of proving that the accident was non-negligent. Furthermore, on hearing the evidence of the driver he rejected her contention that she was travelling at 20-30 mph at the initial stages of the accident dropping to 10-15mph in the latter stages. Lord Glennie found speeds suggested by one of the accident investigation experts (40-45 mph initially, dropping to 35-40mph) to be much more convincing. Lord Glennie also placed no reliance on the police decision to take no action against the driver.
However, it was found that the defender was not negligent, there was no evidence of anything amiss with the coach itself and the driver could not have foreseen the gusts of wind that caused the accident. Lord Glennie rejected the contention that the speed of the coach had been a material factor even if the driver had underestimated the same. The conditions at the time were not exceptional for that rather inhospitable stretch of road and the driver had taken the wise measure of slowing down in response to the first gust of wind. Furthermore, the expert evidence did not support that contention that speed was a relevant factor in the accident. The claim against the defender failed.
Lord Glennie, interestingly, although it was not strictly relevant to his final decision, found that the accident was not in fact an Act of God. The guidance from previous cases indicated that the weather conditions would have had to be truly exceptional, and at the accident location this was not exceptional weather. This, to many, may seem like a rather odd conclusion when the defender had been absolved from liability, and the accident found to be caused by the wind, and Lord Glennie admitted that his decision fell between these two poles.
The outcome is, no doubt, a huge relief to the defender and their insurers given that they have now received a positive liability decision that will act as a deterrent to those potential pursuers waiting in the wings.
The outcome is also a valuable reminder that a defender cannot merely await the emergence of the pursuer’s evidence and rest on a contention that the burden of proof has not shifted. Neither should a defender place their trust in a contention that an Act of God (or some variant of the same) has effectively made the incident unforeseeable and that therefore a finding of negligence, as a result, cannot be found. Particularly in terms of public transport providers, if an accident occurs, the defender will have control of most of the relevant evidence and potentially the burden of proving that negligence did not occur. In this case, if the defender had rested on their contentions and not sought to shore up their case with alternative arguments and expert evidence, the outcome could have been potentially different.