The family of a man who died in a road traffic accident after a car driven by his partner crashed into another vehicle are to be awarded damages.
A judge in the Court of Session ruled that the driver failed to prove that the cause of the accident was something other than her negligence.
Lord Uist heard that the late Vincent Kennedy died aged 32 in August 2013 in an accident which occurred on the A85 road at Connel in Argyll.
He was the front seat passenger in a Vauxhall Vectra being driven by the defender Veronica Mackenzie, who was his partner.
She was driving towards Oban at a left bend – the second bend in an “S-bend” – when the car began to skid to the left.
She steered the car to the right across the road into the eastbound carriageway and collided with a Honda CRV, as a result of which her partner and a passenger in the Honda were killed.
Nina Kennedy and other surviving relatives of the deceased brought an action against the defender for the loss, damage and injury suffered by them due to the death, although the claim by the first pursuer in her capacity as executrix of the deceased was settled extra-judicially.
The pursuers maintained that the accident was caused by the negligence of the defender, but she insisted that she was driving with “due care and attention”, and that she was “unable to avoid the collision”.
‘Unusually slippery’ road surface
The case proceeded to proof on the issue of liability and the issue in dispute was whether the road surface at the point where the defender lost control of her car was “unusually slippery” and that that was the “sole cause” of her loss of control.
The defender, who herself was seriously injured in the accident and was in hospital for five weeks and suffered from memory loss, had no recollection of the accident.
Counsel for the defender accepted that the burden rested on the defender to prove a “non-negligent” explanation for her loss of control upon the balance of probabilities.
The defender’s position was that she lost control of her car about 50 to 60 metres from the point of impact and that the road surface at a point where she lost control was “unusually slippery”.
It was submitted that the SCRIM values for the road were deficient and that Transport Scotland to have erected warning signs detailing the slip hazard on the road surface, which was resurfaced in or about July 2014.
The defender also claimed that she was not travelling at an excessive speed and did not carry out excessive braking having regard to the prevailing conditions.
However, the court heard evidence from a police constable who carried out skid tests and concluded that the cause of the accident was that the defender had “failed to negotiate a gradual left hand bend although the exact reason for this is not known”, but that “in the absence of any vehicle defect, road defect or involvement with any other vehicle the cause of this must be driver error”.
The court also heard evidence to the effect that it was not raining at the time of the accident, but that it had been raining earlier and the road surface was damp.
The judge noted that it was clear from the evidence that there was “no defect” in the defender’s car or “contaminant” on the road which could have caused the accident.
It was also agreed in a joint minute that the A85 was used by about 5,000 cars a day heading in each direction and that the average daily traffic flow was recorded as 7834, equating to 3917 cars a day in each direction.
But no other vehicle skidded on the left bend on 1 August 2013 causing an accident, there had been no skid at it in the previous six years causing an accident and none after the accident before the road was resurfaced in 2014.
Defender liable in damages
In a written opinion, Lord Uist said: “No other driver experienced a skid causing an accident over a period of about 15 seven years. That fact is to me is a very strong indication that, at the time of the accident, the road was not so slippery as to be the sole cause of a vehicle going into a skid there.
“In these circumstances the defender has failed to discharge the burden upon her of establishing that the cause of the accident was something other than her negligence. It follows that she is liable in damages to the pursuers.
“I shall find the defender liable to make reparation to the pursuers for the loss, injury and damage sustained by them as a result of the death of the deceased and continue the cause for a proof on quantum of damages.”