Lord ordinary finds English law applicable to action arising from lorry driver’s death on M74 during Scottish wind warning

About this case:

• Citation:
  [2025] CSOH 119
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Uist

Lacramioara Popa, who was the widow of the late Bogdan-George Popa, raised the action along with other family members against Mr Popa’s employer, XDP Ltd, on the basis that they had negligently allowed him to drive in a yellow wind warning. Their claim was raised in Scotland on the argument that it was the “centre of gravity” of the action and his regular course of employment had him driving to Motherwell on a daily basis.

The case was heard by Lord Uist in the Outer House of the Court of Session, with Ronald-Conway, solicitor advocate, appearing for the pursuers and Murray KC for the defenders.

Not mere happenstance

In December 2019 Mr Popa, a qualified HGV driver, began working as an agency worker for the defenders, a company based in England with various depots including one in Cleland, Motherwell. In the course of his employment Mr Popa regularly drove from a depot in Skelmersdale, Lancashire, which was recorded as his place of employment, to the Cleland depot, and did not drive other routes.

On the morning of 29 January 2022, Mr Popa reported for work at the Skelmersdale depot. At around 4:00am he began driving a laden HGV containing flat pack furniture to Cleland. The trailer was lightly loaded and therefore liable to high winds. At the time, Scotland was subject to a yellow wind warning with a strong westerly wind running until 3:00pm that day. At around 7:45am, Mr Popa’s vehicle, which was travelling slowly to account for the high winds, was struck by a strong gust from an already strong side wind which caused the HGV to roll onto its offside and cross the metal barrier to the opposite carriageway, striking an oncoming vehicle.

Mr Popa suffered a serious and unsurvivable head injury in the collision. In their action, the pursuers averred that a suitable risk assessment ought to have been carried out by the defenders prior to Mr Popa’s departure, which would likely have resulted in the delivering being aborted.

In relation to jurisdiction, the pursuers’ position was that Article 4(3) of the Rome II Regulations applied as to displace the law of England in relation to the delict, as the cause of the accident related to Scottish weather conditions at a particular location known to be subject to crosswinds. Further, Mr Popa regularly drove to Scotland as part of his employment, and therefore the place of the accident was not mere happenstance.

For the defenders it was submitted that the factors relied upon by the pursuers were of limited weight considering their case on how the accident came about and why they said XDP was liable for a breach of duty. All of the preparation for the journey and instructions on the route to be taken occurred in England, and it was those decisions that formed the basis of their case on liability.

Not unusual factors

In his decision, Lord Uist began by observing: “It is accepted in this case that the person claimed to be liable (XDP) and the person sustaining damage (Mr Popa) both had their habitual residence in England at the time when the damage occurred. It follows that, in terms of Article 4(2), English law shall apply unless the pursuers can successfully invoke the provisions of Article 4(3) by showing that it is clear from all the circumstances of the case that the tort/delict is, in this case, more closely connected with Scotland than England with the result that Scots law applies.”

He added: “The factors upon which the pursuers rely in seeking to do this are set out above. In my opinion factors 1 to 9 are really saying nothing more than that the accident occurred in Scotland and the usual consequences flowing from such an occurrence occurred in Scotland. There are not, for example, the unusual factors that were present in the case of Pickard v Motor Insurers’ Bureau (2017) so as to justify the application of French law under Article 4(3).”

Considering the strength of the connection to Scotland further, Lord Uist said: “In this case both Mr Popa and XDP were habitually resident in England and his workplace was in England (although his work involved much driving to Scotland). The acts and omissions which the pursuers claim amounted to negligence on the part of XDP were all committed by them in England.”

He concluded: “In my opinion it cannot be said that there is a preponderance of factors connecting the accident with Scotland rather than England. I think that the submission for XDP was confused when it stated that there was a clear preponderance of factors in favour of the application of English law under Article 4(3) as it is not necessary for XDP to show a clear preponderance of factors in favour of the application of English law: it is for the pursuers to establish a clear preponderance of factors in favour of the application of Scots law and so override the application of Article 4(2).”

The court therefore found that English law was applicable to the issues of liability and damages and continued the case to a proof on a date to be fixed by the Keeper of the Rolls.