Court Success: Loser pays, but for how much longer? Highland Council successfully recover £228,000 from at fault motorist

Steven Paterson v Highland Council & Others (Court of Session)

Circumstances
This road traffic accident occurred on 6 May 2010. The pursuer having rounded a blind bend (after approaching it at a speed in excess of 60 mph) collided with a Highland Council refuse lorry, which was stationary at the side of the opposing carriageway, whilst operatives were collecting bins from a nearby dwelling. At the time of the collision, the refuse lorry was being overtaken by another vehicle.

The Pursuer (represented by Digby Brown) claimed damages from the driver of the refuse lorry, Highland Council (his employers), the driver of the other vehicle, and from his motor vehicle insurers (Axa).

Background
Following the accident the pursuer was charged with dangerous driving, but on the advice of his solicitor he pleaded guilty to the reduced charge of “driving without due care and attention or without reasonable consideration for other road users by driving at inappropriate speed and colliding with the refuse lorry” – in contravention of Section 3 of the Road Traffic Act 1988 – for which he was fined £350 and received five penalty points on his licence.

However, afterwards he felt he had “done the wrong thing” in pleading guilty and he contacted a solicitor with a view to appealing his conviction on the basis of “defective representation”, but having been advised of the costs involved he decided to raise a civil claim against the defenders.

Legal Arguments
The pursuer alleged that the Council were in breach of Regulation 26 of the Traffic Signs Regulations & General Directions 2002, in that their policy in relation to refuse collection vehicles entering private premises was inappropriate. It was also argued that the stationary refuse vehicle constituted a hazard.

The defenders all denied liability and insisted that the accident was caused by the pursuer’s “sole fault” or “contributory negligence”.

Proof (Trial)
The case proceeded only in relation to liability and contributory negligence. The principal issues in the case concerned the evaluation of the pursuer’s speed, and the nature and timing of his reactions to the events which confronted him on rounding the blind bend. 15 days of evidence was heard. In total, the evidence of 12 witnesses was heard (11 led by the pursuer, and 1 led by the defenders).

The pursuer’s position was that his vehicle collided with the stationary refuse lorry as a consequence of “necessary evasive action taken” by him in order to avoid the oncoming Scania lorry, which was “blocking his lane”.

Decision
Upon conclusion of all of the evidence Lord Armstrong held that the defenders were not liable to any extent stating that the pursuer was “entirely at fault”. No criticism was directed at the defenders in the Court’s decision. It was held that the Councils policy was entirely appropriate, and that the stationary refuse lorry itself did not constitute hazard “given its size, its bright yellow colour, its flashing lights which were operating at the time, the presence of council employees wearing high visibility clothing, and the distance between its stationary position and the blind bend”.

In relation to the third and fourth defenders, the judge accepted the evidence of the third defender that when he was alongside the refuse lorry he saw the pursuer rounding the bend, but when he began his overtaking manoeuvre the road ahead was “clear” and “a vehicle travelling within the relevant speed limit and being driven by a driver paying due care and attention could have stopped”.

Expenses
Given the outcome of the litigation, we sought recovery of our legal expenses. Following negotiation, the pursuers solicitors agreed to pay us £228,000 in reimbursement of a large proportion of the legal expenses incurred in defending the claim from their client. It is likely that Axa, who represented the driver of the Scania flatbed, will be seeking a similar recovery in respect of their expenses.

Commentary
Zurich fully defended liability from the outset of this claim. The importance of the case to our customer, Highland Council, could not be overstated. The Pursuer had every opportunity to abandon the claim in the years before it reached court, but chose not to do so.

It would be hoped that grave financial repercussions such as this would deter claimants and their solicitors from pursuing meritless claims. Unfortunately however, recovery of expenses may be a thing of the past for faultless defenders. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill is currently being considered by the Scottish Parliament’s Justice Committee. This seeks to introduce “Qualified One-way Costs Shifting”, which basically means that anyone pursuing a personal injury case in court will not be liable for their opponent’s costs, even if they lose. The full impact of this remains to be seen, but with the risk to pursuers being removed, we are expecting more claims of this nature to be pursued in the future, and it will be defenders that will have to bear the cost of them.

This claim was handled by Julie Watson and Suzanne O’Donoghue. Claims Technicians in our Glasgow Motor Claims Team. Victoria Leslie, Partner at Ledingham Chalmers, represented us throughout the litigation.