PA AGAINST RK
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FORFAR
[2017] SC FOR 6
Case No: PD13/15
JUDGEMENT OF SHERIFF PINO DI EMIDIO
in the cause
PA
Pursuer
against
RK
Defender
UK INSURANCE LIMITED T/A DIRECT LINE having a place of business at The Wharf, Neville Street, Leeds, LS1 4AZ
Party Minuters
Act: Mohammed, Advocate; Brodies LLP, Glasgow
Alt (Party Minuters): J. Thomson, Advocate; BLM, Glasgow
Forfar 29 November 2016
The Sheriff, having resumed consideration of the cause, grants decree of absolvitor in favour of the defender; finds the pursuer liable to the party minuter in the expenses of the cause; sanctions the cause as suitable for the instruction of junior counsel and certifies Mr. Alan Bathgate as an expert witness who gave evidence for the party minuters.
Finds in fact
1. The pursuer is PA.
2. The defender is RK.
3. The defender was married in about April 2014.
4. The pursuer attended the defender’s wedding reception as a guest along with his partner and young son.
5. On about 20 April 2014, the defender posted photographs of the wedding on his Facebook page.
6. Two of the photographs are reproduced in number 6/4 of process. They show the pursuer at the wedding. He is dressed in a similar outfit to other men who appear to be part of the groom's party. Each man is wearing a similar traditional short jacket, black shirt and white cravat. They are all wearing kilts although they each have different tartan.
7. The pursuer and defender were known to each other as at the date of the wedding.
8. The pursuer is the owner of Black Honda Accord motor car registered number V757 HDS.
9. As at 18 August 2014 the defender was the owner of Nissan Skyline motor car registered number M55 XTM which is a two door sports car. It was an imported car of some vintage that had been the subject of some refurbishment prior to 18 August 2014.
10. On the evening of 18 August 2014 the pursuer attended at Ninewells Hospital, Dundee, complaining of pain in his right leg.
11. Productions 6/2.1 and 6/2.2 are photographs that show damage to the front of the pursuer's Honda Accord motor car registered number V757 HDS. This is concentrated on a narrow area below the offside front headlight.
12. Productions 6/1/7, 6/1/8, 6/1/9, 6/1/10 and 6/1/11 are photographs that show damage to the area of the front passenger wing of the defender’s Nissan Skyline motor car registered number M55 XTM. There is little or no damage to the near side front wheel.
Finds in fact and law that the pursuer has failed to establish that the defender breached any duty of care incumbent on him at common law on 8 August 2014.
Note
[1] The subject matter of this action arises out of a road traffic accident said to have occurred on 8 August 2014 at around 8.30 pm when the pursuer was driving vehicle registration number V757 HDS, a black Honda car, in a southerly direction on Balmachie Road between the A92 and Carnoustie. The pursuer avers that the defender who was then driving vehicle registration number M55 XTM exited from an unclassified side road located to the right of the carriageway on which the pursuer was travelling and collided with his car. The claim is for reparation for solatium, vehicle recovery costs, car hire charges and associated losses and the sum sued for is £10,000 with interest from 8 August 2014 at 8% p.a.. Quantum has been agreed at £6,048.96 inclusive of interest on the basis of 100% liability on the part of the defender, as recorded in the Joint Minute number 22 of process. The issue hotly contested at proof by the party minuter relates to liability to make reparation.
[2] The defender did not enter the process but the party minuters have done so for their interest as his insurers. The proof took place before me on 8 September and 14 October 2016. The pursuer gave evidence himself. The other witnesses for the pursuer were the defender and Mr. Charles Welsh, motor engineer, who was called as an expert. The party minuter called Mr. Alan Bathgate as an expert witness. Both motor engineering expert witnesses who gave evidence were given permission to sit in on the oral evidence of the pursuer and defender.
[3] For the reasons set out on below, I am not prepared to make findings in fact about the matters spoken to by the pursuer and defender in relation to the alleged accident but I thought it right to provide a full summary of the evidence led from them at proof in light of the conclusion I have reached.
The pursuer
[4] He described himself as a roofer aged 35 living in Dundee. In cross-examination it emerged that he had not worked as a roofer for over 12 years. He knew he had come to court to give evidence in the proof in which he was claiming damages arising from the car accident he had been involved in some time ago. He did not recall the date of the accident or the name of the road on which it had occurred. He thought it might have occurred in the month of October 2014.
[5] He stated that he was driving in his Black Honda Accord motor car registered number V757 HDS on the evening in question. He had been travelling on the A92 road from Dundee in order to visit his sister who resides in Carnoustie. At about 8.30 pm it was dark, foggy and raining heavily. He left the main A92 road and thought he may have become lost as he did not know the area well. He may have taken a wrong turning. Although the speed limit was 60 mph he was doing about 30 mph because the weather conditions were so bad. He was travelling on a straight country road. He thought it was a single track road.
[6] When he was about 10 or 15 feet away from a T-junction on the driver's side of the road he saw another car at the junction. He could not see if it was indicating but it was stationary. The other car started to pull out into his path. The other car was attempting to turn right, that is, to proceed to travel in the same direction as that in which the pursuer was headed. He had expected the car to wait until he had passed as he was on the main road. When he realised that there was the danger of a collision, he hit the brakes but could not prevent his car sliding into and colliding with the other car.
[7] The point of impact on his car was between the front passenger wing and the driver's door of the defender's car on the near side. He thought he was doing about 20 to 25 miles per hour at the point of impact. The other car had pulled out in front of him as if the driver had not seen him. He recalled having been quite dazed and having a sore neck after the collision. The two cars had come to a halt in the middle of the road. He got out and saw that the front bumper of the Honda was hanging off. He pushed it back on and then moved the car to the side as it was blocking the road.
[8] The other driver got out and the two men spoke. The defender said he was sorry, that it was his fault and he had not seen the pursuer coming because his passenger window was steamed up. The pursuer called the police using his mobile phone. The person who took the call asked if anyone had been hurt and if he could smell alcohol from the other driver. The pursuer answered no to each question. In reply he was informed that there was no need for police to attend and that he should exchange details with the other driver. He did that and remembered that the other driver identified himself at the time as Mr. Richard King. He had never met him before.
[9] The pursuer then secured his front bumper and drove his car home. Although he was in some pain he could drive his car. He thought that the other car was not drivable owing to the damage it had sustained in the collision. Later he began to experience bad pain in his right leg. At about 10 pm he went to Ninewells Hospital where he was examined and offered painkillers.
[10] He subsequently made a claim on his insurance. He understood that Mr. King was insured with Direct Line. His claim related both to the personal injury he had sustained and the damage to his car. In response to a question from his counsel, he said it was ridiculous to suggest that he had agreed with the defender to pretend that an accident had taken place for the purposes of this claim.
[11] In cross on behalf of the party minuter, he accepted that on 9 September 2014 he had told Dr. Ian Kerss of the Alba Clinic, Dundee that he had had several back operations and that he had not actually worked as a roofer for more than 10 years. He was sure that he had not met the defender before the night in question. He was given a warning by the court at this stage. After that he appeared to be less sure that he had not previously met the defender. He was sure that he had not been at the defender’s wedding in about April 2014. When he was told that the party minuter had online photographs showing him at the defender's wedding, he asked to see them. I allowed a short adjournment to allow the pursuer to reflect on his position. When the court resumed I reminded him of the earlier warning I had given him. At this point the party minuter was granted leave to lodge a fresh production, number 6/4 of process, for use in cross examination. The pursuer accepted that he was in the two photographs of guests at what appears to be a formal event that are reproduced in that production. He then vaguely remembered having attended a wedding with his girlfriend. He was one of a group of men similarly dressed except for the tartan of their kilt. Despite this he did not accept that he was part of a group even though he was one of seven adults in similar garb. He did not know the groom very well and he did not know many people at the wedding. He recalled that the bride was a friend of his girlfriend. It was a pure coincidence that the groom happened to be the defender in this case. He had had no idea whose wedding it was, as his partner had invited him to accompany her.
[12] He had not spoken to the defender since the accident except that he had met him by chance at a gym on a couple of occasions. The defender had told him that his car had only just been refurbished prior to the accident and that he had been devastated by the damage caused by the collision. Although the accident and the insurance claim had been mentioned they had not discussed these matters in any detail. He denied speaking to the defender before the proof started. He denied that there had been raised voices between them in the witness room during the adjournment that had been allowed during the course of his evidence in chief.
[13] He put his inability to recall the date of the accident to the amount of time that had passed since it happened. He ascribed his lack of knowledge of the locus to having been unfamiliar with the area. His sister had only moved to Carnoustie a few weeks earlier. He remained sure it was a single lane road. He had been in the middle of the road with little room on either side. He could not recall if he had his headlights on though he said it was dark. He did not recall if the other car had its lights on. He had had no reason to think the other car would pull out when he was so close and he had instinctively tried to brake to avoid a collision. He thought his speed had reduced from about 30 to 5 mph at the point of collision. His car had just skidded in a straight line. He claimed to have taken photographs on his mobile phone at the time but these were no longer available.
[14] He gave a visual demonstration of the way the accident had happened. He stated that most of the impact had been with the area where the front passenger door and the front near side wing of the defender's car meet. The other car had been pushed to its right hand side, though not by far, perhaps 10 or 20 inches. He was very unclear at this point in his evidence. He did not reply to a question suggesting that he knew the defender far better than he was prepared to admit. He said it was ridiculous to suggest that he had got together with the defender in order to pursue a concocted claim in this case.
[15] On inspection of the Honda, he saw that the front bumper was hanging off, the bonnet was creased and the driver's headlight pushed in. The offside corner of the bumper was crumpled upwards. His mother had taken out a bank loan to help him buy the car. He was devastated at the damage to his car. He had not thought to take measurements. The damage to the defender's car shown in productions numbers 6/1/8 & 6/1/9 of process fitted with his recollection. The defender's car was badly damaged, especially the area of the front passenger wing. The defender had said he was all right. The pursuer was referred to Mr. Bathgate's report number 6/2/1 of process. He disagreed with the suggestion that it was more likely that the damage to the Honda had been caused by something like an impact with a pillar.
[16] In re-examination he confirmed that on 9 December 2014 he had told Mr. Fitzpatrick, Consultant Neurosurgeon, who interviewed him for the report 5/2 of process that he had not worked for some 10 years prior to that date. He had not claimed for loss of earnings in this action as he was not working at the time. He had not tried to hide that he was unemployed at the time.
The defender
[17] The defender is 47 years old and works as a personal trainer. He has been in this line of work for about 5 years. Prior to that he had served 3 years in the Army and 9 years in the RAF. His service had included deployment in the Gulf War and various other locations. Although he had not taken legal advice, he had considered defending this action when it was intimated to him but had failed to pay the requisite fee to lodge a notice of intention to defend.
[18] He described travelling in his Nissan Skyline car registration number M55 XTM in the area near Carnoustie on the night of 18 August 2014. This was a refurbished sports car. His recollection of the accident was limited owing to the passage of time. At about 8.30 or 9 pm that evening, it was still light, though it was on the verge of getting dark. He could not recall if his headlights were on at the time. It was raining heavily. He was on his way home to Carnoustie. At the junction he was on the minor road and had to give way. He was coming on to the two lane road with a lane for traffic travelling in each direction. There was sufficient space for vehicles to pass one another. This road led towards Monikie Country Park. There was no centre white line on the main road as it was a minor B road. He did not recall the name of it. There was room for cars to pass each other though it was quite narrow. He had intended to turn right, thereby crossing the oncoming carriageway so that once he had completed his manoeuvre he would be travelling in the same direction as the approaching pursuer. He had stopped at the junction. There was a high hedge to his left hand side. He had looked both ways but did not see anything coming before he entered the main road. He got to the centre line when he was hit from the side by the pursuer's car. He had driven out straight onto the nearest carriageway and had just started his right turn manoeuvre when the collision happened. He was going very slowly. The Nissan is an automatic car but he would have, in effect, been in first gear. The front of his car had passed onto the further away carriageway in which the pursuer was travelling. He was sure he didn't see the other car before it hit him.
[19] The front of the Honda struck the front passenger side of the Nissan to the front of the door pillar and forward of that area. The shock of the impact caused him to brace. He had knocked the car into neutral and had inadvertently revved the engine at the limit for about 10 seconds. He could not recall if his car was shunted forward. He got out, inspected the damage and spoke to the other driver. He said he was sorry and that it had been his fault. There was damage to the front of the pursuer’s car. The photographs 6/1/7, 6/1/8, 6/19 and 6/1/10 of process show the damage to his car. He accepted that he was solely to blame for the accident.
[20] He did not know the other driver. He had not met him before. He did not recollect his having been a guest at his wedding. His wedding had taken place in about April 2014. There were about 150 guests. He had not known most of the guests. He had spent most of the time with a small number of his family who had travelled from England for the wedding. The rest of the guests were friends and “friends of friends”. His wife is Scottish. When pressed he conceded that the pursuer’s partner is a friend of his wife. He had only met her in passing a few times. He did not recall whether he had met her before the wedding. He did not know her boyfriend (the pursuer) before the wedding. The suggestion was made that he had made up the story of the alleged accident in league with the pursuer. At this point I warned him that he did not require to answer a question that might involve him in admitting a criminal offence. He acknowledged that it might look like this had happened, but he denied it. He did not recollect having spoken to the pursuer before the crash.
[21] In cross examination, he denied that there had been a groom’s party at the wedding. He had had a number of conversations with the pursuer since the accident, perhaps three in number. They had met from time to time at a local gym that they both frequented. These had been short conversations with no substantive content relating to the accident claim. When shown number 6/4 of process he confirmed that on about 20 April 2014 he had posted nine new photographs of his wedding including those that were reproduced in this production. The pursuer’s partner is a friend of his wife. Around April 2014, this was a casual friendship. He disagreed with the suggestion that he had known the pursuer quite well before the date of the alleged accident.
[22] He accepted that he had had the pursuer’s phone number stored in the contacts list of his mobile phone. He had deleted the entry for the pursuer from the contacts list that morning, i.e. just prior to being called to give evidence and after his arrival at court. He explained that he had done so to distance himself from the whole matter. When asked why he had decided to delete the pursuer’s entry from his contacts list, he confirmed that he had understood the question but he declined to answer it citing my warning to him that he did not require to answer a question that might lead to his self-incrimination. He denied having spoken to the pursuer on the morning of the proof in the court house, by phone or by text. There had been only a few texts between them prior to the date of proof which were concerned with having been given a date for the proof.
[23] On the evening of 18 August 2014 he was taking the Nissan car for a run to charge the battery. The car had been heavily modified and did not have air conditioning. The weather worsened while he was on his journey. He had been in course of turning right when the accident happened. He had had no warning of the collision. The collision was a big one and had disorientated him. He recalled having been in a state of shock. He could not recall if his car had been shunted forward following the impact. He had taken some photographs at the scene but these had since been lost.
[24] He had seen Mr. Bathgate’s report number 6/1.1 of process before as it had been sent to him. Notwithstanding Mr. Bathgate’s conclusion, it was preposterous to say that the accident had not happened in the way described. Mr. Bathgate had noted the terms of a statement supplied by the defender on 16 December 2014. He agreed that he had said in that statement that his car had been shunted forward after the collision; that he had knocked the car out of gear when he pushed his feet to the floor; that his right foot was on the accelerator so that the engine was revving at the limiter for up to 10 seconds; and that his car was pushed along the road about a car’s length and turned a little further to the right. He could not actually recall the last of these matters now. This is a matter of some significance given the conclusions of the expert engineers. He did not know that Nissan cars like his were fitted from new with an ignition cut out to prevent the engine revving over 8000rpm. His reaction to this last point was to say that even at 8,000 rpm damage could have been done to his engine.
Mr. Charles Welsh
[25] Mr. Charles Welsh, motor engineer assessor, Cambuslang, Glasgow was called as an expert witness on behalf of the pursuer and gave evidence about the mechanism of the accident. He has worked as a motor engineer since the late 1980’s after undertaking various courses. He has significant experience as an expert witness in road traffic accident cases for both pursuers and insurers. His was a “desktop” exercise which involved reviewing documents and photographs. His report is number 5/7 of process and it also included comment on Mr. Bathgate’s report.
[26] He considered that the accounts given by the pursuer and the defender in evidence were consistent with his observation of the photographs of the damage sustained by the Honda and Nissan cars. The damage to the Honda to be seen in photographs numbers 6/2.1 and 6/2.2 of process was below the headlamp on the front offside (drivers' side). It would have occurred in this way if the steering wheel of the Nissan was on full lock so that following impact the near side front wheel of the Nissan would be pointing out at a sharp angle and dug into the front of the Honda. He accepted that similar damage could be caused by driving the Honda into a lamppost. The damage was concentrated across a narrow part of the front of the Honda on the offside. The damage to the front near side alloy wheel of the Nissan was also consistent with this scenario, on the assumption that the defender had made a hard turn to the right immediately before the collision. Photographs 6/1/8 and 6/1/10 showed damage to the front near side alloy wheel of the Nissan. Photograph 6/1/11 showed significant damage to the nearside track rod of the Nissan. In cross examination he was challenged as to the extent of the damage to the front wheel of the Nissan and as to the exact nature of the defender's evidence as to the way in which the collision had occurred. He disagreed with paragraph 8.4 of Mr. Bathgate’s report which stated that “The cause of the steering damage to the Nissan cannot not be identified as it is inconsistent with the damage to the bodywork and the lack of significant damage to the outer rim of the nearside front wheel on this vehicle.” He agreed that the collision must have caused a heavy impact but he did not think this meant that significant damage would be caused to the outer rim of the nearside front wheel.
Mr. Alan J.G. Bathgate
[27] Mr. Alan Bathgate was called as an expert witness for the party minuters. He is the sole principal of T & T Services, consulting engineers and accident claims assessors, Edinburgh. He has extensive experience as an expert witness in road traffic accident cases. His report is number 6/1/1 of process. He had inspected the Nissan Skyline car in October 2015 and had taken some photographs of it which had been produced and were referred to at the proof. There was only rather slight damage to the lacquer coat on the rim of the relatively fragile nearside front alloy wheel of the Nissan. This was consistent with kerbing damage. Had the accident happened in the way described in the evidence, then the nearside front alloy wheel of the Nissan would have been rotating. There was no evidence of damage consistent with that mechanism. Damage to the spokes or the rim and heavy scuffing was to be expected from such an impact along with cuts in the wall of the tyre as the wheel failed. The protruding wheel would have protected the wing to some extent yet the heaviest damage was to the wing. The steering track rod was seen in photograph 6/1/11 to be in a “v” shape. It should be straight. It had been damaged in an impact that would have rendered the Nissan undriveable as the two front wheels were no longer in alignment but set at different angles from one another. One possible cause of that would be a heavy impact to the nearside front wheel but a lot of force would have been required to cause such damage. The steering track rod would become bent because it is the weakest link in the structure. As stated in paragraph 8.4 of his report, the damage to the track rod and the damage to the nearside front wheel were not consistent with one another. Turning to the Honda car, the damage to the front on the offside was concentrated to a narrow area. In a low speed impact up to 5mph the bumper would have absorbed the energy of the collision. The Honda had been in a heavier collision which displaced the offside headlight and broke the mountings. He suspected that the Honda had been driven at some sharp or narrow fronted object. The out-turned front nearside wheel of the Nissan, assuming full lock, would not have caused this damage without the wheel of the Nissan sustaining heavy damage as well. He was quite clear that the two cars had not been in an accident together.
Submissions of the parties
Pursuer
[28] The pursuer's counsel, who appeared without an agent, invited me to award decree in favour of the pursuer for the agreed sum of quantum, inclusive of interest, on the basis that the defender bore 100% responsibility for the accident. He submitted that if the pursuer and defender were found to be credible and reliable then the pursuer should be successful. He accepted that Mr. Bathgate was an eminent expert in the field, but his opinion could not prevail in the face of the evidence of the eye witnesses, if that was accepted by the court. He urged me to find both the pursuer and defender to be credible witnesses. There were divergences in the evidence of the two drivers. These divergences tended to support the conclusion that they were credible and reliable. The evidence of a visit by the pursuer to Ninewells Hospital, as well as the evidence of Mr. Walsh, also independently bolstered the evidence of the eye witnesses. It beggared belief that the pursuer and defender would fabricate the evidence of an accident for such a paltry sum. He submitted that both experts were working on limited information. This consideration, in turn, limited the assistance they could provide to the court. Mr. Bathgate had appeared to be rather dogmatic in his approach. Counsel contrasted his evidence with what, he submitted, was the more flexible approach of Mr. Walsh in that he was more prepared to consider an alternative conclusion.
Party Minuters
[29] The party minuters’ counsel provided a written submission prepared after the first day of evidence. This is with the process and I will not repeat its terms here. He supplemented this with brief oral submissions which focused mainly on the evidence of Mr. Bathgate which was heard on the second day of the proof. He described the pursuer and defender as “Runyonesque” characters. In his response to the pursuer’s counsel’s submissions, he referred to an observation of the eighteenth century Italian economist Abbe (Ferdinando) Galliani (1728-1787):“la ricchezza e una ragione tra due persone”. Attention had been drawn recently to this maxim by the author John Lanchester, in his work “How To Speak Money ” (2014), who used a translation of this observation as “richness is a ratio between two people”. The maxim is about the idea that the idea of having plenty of money is not an inherent state, nor an absolute one. Both the pursuer and the defender had told out and out lies to get money. The conspiracy between them had broken down in the course of the proof. In the end, the defender had tried to distance himself from the potential consequences by saying as little as possible in the witness box. He commended Mr. Bathgate’s approach which he submitted persuasively analysed and drew conclusions from the minutiae of the damage to the two cars. He invited me to grant decree of absolvitor with expenses in favour of the party minuters, to certify Mr. Bathgate as an expert and grant sanction of the employment of junior counsel. Further, he submitted I should award expenses in favour of the party minuters on the solicitor and client scale on the basis that there were exceptional circumstances to justify this.
Discussion and assessment
[30] The party minuters allege that the pursuer and defender have collaborated to seek to establish an invalid claim. Each of the pursuer and the defender was given a warning in the course of his evidence about his right not to incriminate himself. The defender invoked that right and opted to decline to answer a particular question in cross examination, as narrated above. I can readily understand that in any particular (relatively quiet) locality two people who are previously acquainted with one another might quite by chance come to be in a road traffic collision with one another. It is a strange circumstance in this case that each of the pursuer and defender initially strongly denied ever having met the other. The party minuters point to a Facebook posting which shows pictures posted by the defender after his wedding. He accepts that he posted them. These photographs caused both the pursuer and the defender separately to admit in the witness box that they knew each other prior to the date of the alleged accident.
Problems with the pursuer’s evidence
[31] The pursuer’s evidence was very problematic in a number of respects. Initially he denied even knowing the defender, as discussed in the preceding paragraph. He claimed that he had only attended the wedding along with his partner who knew the bride. Eventually he came to accept that two of the posted photographs showed him at the defender’s wedding only some four months prior to date of the “accident”. He was one of a group of male guests dressed in formal traditional Scottish clothing. One Facebook photograph showed the Pursuer and other men dressed in kilts and each wearing a black shirt and white tie of similar style. He denied being a close associate of the defender but they were sufficiently well known to each other for him to have participated in the male guest outfit colour co-ordination scheme for the defender’s wedding.
[32] There were other significant problems with the pursuer’s evidence. The pursuer was vague in the extreme about when and how the accident happened. He could not recall the date of the accident. He could not state the precise location. His description of the locus was that it took place on a single track road. The defender stated it took place on a two lane single carriageway road i.e. one lane in each direction. His demeanour in court as his evidence progressed indicated significant discomfiture when he was challenged. He was visibly perspiring and uncomfortable when he began to realise the extent of the challenge to his evidence. Overall, for these various reasons, I did not consider him to be a credible or reliable witness.
Problems with the defender’s evidence
[33] The defender appears to have taken some steps to lodge a notice of intention to defend but did not pay the requisite fee. It was not clear from his evidence on what basis he had considered defending the action, given that his position was that he had been solely at fault. Obviously there was ample scope to defend the action on the issue of quantum. The defender’s account of the alleged accident is not consistent with the mechanism of impact initially spoken to by the pursuer’s expert as he accepted that he did not brace because he was not aware of the collision until it actually happened. His description of the accident in court omitted significant details that he had spoken to in an earlier statement. His demeanour when he gave evidence did not inspire confidence in the veracity of his account. He was reluctant to acknowledge he knew the pursuer prior to 18 August 2014. He declined to answer a question that might, if truthfully answered, have incriminated him in an attempted fraudulent claim. While the defender was quite entitled not to answer the question if he might have incriminated himself, his refusal to do so is a factor that I can take into account in my assessment of him as a witness in this case. I did not consider him to be a credible or reliable witness having regard to these various matters.
Other evidence
[34] There is evidence that the pursuer sought medical treatment for an injury shortly after the time of the “accident”. Although this agreed evidence can support the other evidence for the pursuer in that it is consistent with the accident described, it does not establish when, where and how the accident actually happened.
[35] Given my conclusion on the evidence of each of the pursuer and the defender, it is not necessary for me to reach conclusions on the technical and expert evidence that was led in the proof but it is appropriate that I give some indication of my views in relation to that evidence. While I have no doubt whatsoever that Mr. Welsh was trying his best to assist the court, and is properly qualified to give expert evidence in a case of this kind, his evidence is of limited value given the major issue as to credibility and reliability of eye witness evidence that arose in this proof. Mr. Welsh's evidence might have been capable of bolstering the evidence of the pursuer and defender had I been willing to consider them credible witnesses but found myself in some doubt as to reliability. His evidence cannot assist where there is so much difficulty with the oral evidence of the main protagonists. Even aside from these considerations, there are other problems with his evidence. His conclusion was initially based on the assumption that the defender had braced at the point of collision so that the protruding front nearside wheel of the Nissan would have presented a narrow point of collision that would have accounted for the narrow focus of the damage to the front of the Honda. When reminded in cross that the defender's evidence was that (a) he had not made a sharp right turn; and (b) he did not become aware of the collision until it happened, Mr. Welsh continued to maintain his conclusion. I did not find his suggestion that the wheel might have flown from the defender's hand to be persuasive. The defender's evidence was not consistent with the mechanism necessary, on the assumptions made by Mr. Welsh, for the Nissan to have caused the damage that was sustained to the Honda. Mr. Welsh's conclusion does not follow from the other evidence in two main respects. First the defender's account of the accident means that it is not likely that a sharp protruding edge would have been maintained in relation to his front nearside wheel. Second, had the collision happened in the way described by the "eye witnesses", there would have been considerably more than the minimal damage to the front nearside alloy wheel observed by Mr. Bathgate.
[36] Had I required to reach a firm conclusion on these matters, I would have preferred the evidence of Mr. Bathgate. At times he was a rather dogmatic witness in that he was not, initially at least, willing to make what appeared to be reasonable concessions. Despite this, his analysis of the vehicle damage sustained by both cars was knowledgeable and impressive. He provided a far more detailed and plausible set of explanations of the vehicle damage he was asked to consider. He also had the advantage of having physically inspected the Nissan Skyline, in contrast to Mr. Welsh. There is no technical evidence that I was willing to accept that would allow me to conclude that it has been proved on the balance of probabilities that the Honda and the Nissan cars were actually in a collision with one another on 18 August 2014. Had it been necessary for me to do so, I would have concluded that the damage sustained by the Honda was caused in a very different way from that described by the alleged eye witnesses in this case. Either the front of the Honda struck a solid object like a traffic pole or it was struck by a moving vehicle from which there protruded a solid attachment that was capable of causing damage focused on a narrow point of contact to the front of the Honda below the headlight on the driver's side. The damage to the Honda could not have been sustained in an accident of the kind described by the pursuer and the defender. Furthermore I consider that the nearside front alloy wheel of the Nissan did not have significant damage of the kind that would have been sustained if the Honda had collided with it in the way described by the pursuer and the defender and had sustained the damage seen in the photographs produced at proof.
Conclusion
[37] I am not prepared to make findings of fact of the kind required to establish the claim. For the reasons stated, I do not consider that either the pursuer or the defender was a credible or a reliable witness. The onus is on the pursuer to establish on the balance of probabilities when and how the accident happened. In my view, he has failed to establish any material facts pertinent to this issue. Both the pursuer and the defender gave evidence in an unsatisfactory manner.
[38] Having regard to my findings and conclusion, I propose to instruct the Sheriff Clerk to send a copy of this Judgment to the Procurator Fiscal at Forfar. The circumstances described in this Note give rise at least to the suggestion that an attempt has been made to obtain compensation by means of deception. The criminal evidential standard did not apply in this case, so I express the matter no higher than that. It is for others to decide whether any further action requires to be taken.
Disposal
[39] Therefore I propose to grant decree of absolvitor in respect of the principal crave. Parties were agreed that expenses should follow success and so I have made an award of expenses in favour of the party minuters. I will also certify Mr. Bathgate as experts who prepared a report and gave evidence at proof. I will grant sanction for the employment of junior counsel having regard to the statutory test in section 108 of the Courts Reform (Scotland) Act 2014. I conclude that it is reasonable for me to grant sanction for junior counsel. The cause is one that is of obvious importance to the party minuters as it raised an issue of whether an account of an accident had been fabricated. There was good reason in this case to think that the alleged accident may have been fabricated. The pursuer was also represented by counsel. With regard to section 108(3)(b) of the 2014 Act, there is no question of any unfair advantage having been gained by the party minuter by the grant of sanction in this case.
[40] I refuse to award expenses on a solicitor and client basis, notwithstanding having been urged to do so by the party minuter. The argument made was that there were exceptional circumstances that justified this course of action under reference to Plasticisers Limited v William R. Stewart (Hacklemakers) Limited 1972 S.C. 428 and McKie v The Scottish Ministers 2006 SC 528. The circumstances of this case are perhaps somewhat unusual, but I do not consider that there is anything in the work that required to be done that makes it appropriate to award expenses on a solicitor and client basis.