The Court of Session has granted a decree of absolvitor to a Defender following a serious collision, despite finding that the circumstances of the accident meant that the onus had shifted to the Defender to prove a non-negligent cause of the accident or at least to disprove negligence on its part.
On 26th March 2015 the Pursuer was a passenger on a coach operated by the Defender. The coach left the road and went down an embankment, rolling over and coming to a halt just short of a loch. The Pursuer was one of a number of passengers injured.
Less than one minute before the accident occurred the coach driver had pulled out of a layby and accelerated normally to a speed of 40-45mph. It is believed that she was hit by a strong gust of wind that pushed the coach towards the middle of the road. The driver immediately braked, turned her steering wheel to the left to get back onto the correct side of the road. As soon as she was back in her lane and travelling at a slower speed of 35-40mph the coach was hit by another severe gust of wind. This forced the coach off the road and onto the verge. Despite braking and a build-up of mud in front of the wheels, the coach rolled over down the embankment. It came to a rest upright at the side of a loch.
The police investigation ruled that the driver had not been going too fast and the accident was caused by the wind. A vehicle examiner concluded there were no pre-existing or latent defects with the coach.
The Pursuer argued that the mere fact the coach came off the road gave rise to a prima facie inference of negligence on the part of the driver. A well maintained, properly driven coach should not come off the road. It was then for the Defender to rebut the inference by giving a credible, reliable and non-negligent explanation for what happened. It was further argued that the weather was not unforeseeable and the adverse weather conditions were not enough for the Defender to rebut the inference as drivers must drive to the conditions they encounter.
The Defender submitted that this was not a case where the onus shifted to the defender to show that the accident had happened without its fault. This only applied where all the factors contributing to the accident were within the defender's control. Even if the burden had been shifted, in this case the Defender had provided evidence to show that the accident was not its fault but that it could be explained by the wind.
The Court of Session found in favour of the Defender, granting a decree of absolvitor.
It should be noted that Lord Glennie found the Pursuer was correct and the circumstances of this case led the burden of proof to be switched leaving the Defender to prove the accident occurred without its negligence.
Those circumstances relevant to a shift of onus from pursuer to defender were present; this case did indeed involve matters which were within the Defender's knowledge and control. Lord Glennie continued: "They are responsible for selecting a suitable vehicle for the roads and weather conditions reasonably to be expected; for maintaining the coach in a suitable and roadworthy condition; for selecting a competent driver; for giving or ensuring appropriate training for the driver to enable her to cope with road and weather conditions which she might reasonably expect to encounter; and, vicariously, for the actions of the driver in the course of the service."
Lord Glennie acknowledged that the weather was "obviously a significant factor" but the Defender was in a position to take steps to keep the passengers safe from it.
Nonetheless, after hearing the evidence Lord Glennie was persuaded that the Defender had proved the accident occurred without any negligence on its point, thus discharging the burden. The only suggestion of fault advanced by the Pursuer related to the driver's actions, in that she was driving too fast. On that basis, Lord Glennie found that the driver was not at fault for the accident and the Pursuer's case therefore failed.
What can we learn?
Lord Glennie stated the outcome of the police report (in not finding the driver as having speeded or driven dangerously) was irrelevant to his finding and "no reliance can be placed by the Defenders on the decision of the police not to charge the driver."
After finding the driver not at fault Lord Glennie did state that he was left with a concern regarding the weather conditions. He found the conditions were "unpleasant and the wind was strong" but the wind strength was foreseeable and the conditions were not exceptional. For this reason he would have rejected the defence of damnum fatale (Act of God).
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