McFarlane v. Thain & Ors

Factual and Procedural Background

On the afternoon of Saturday 17 July 1999, a collision occurred at the junction of Blair Drive and Townhill Road involving a Ford Orion car driven by the second defender and a Kawasaki motorcycle ridden by the first defender with the pursuer as pillion passenger. The second defender intended to turn right onto Townhill Road, travelling south, when his car collided with the motorcycle travelling north. The first defender was thrown onto the road, and the pursuer was thrown some distance, losing his crash helmet, sustaining a head injury and a broken leg.

The pursuer sued both defenders. The first defender was uninsured, so the Motor Insurers Bureau (MIB) entered the process as Minuters, disputing liability on grounds including the pursuer's knowledge of the first defender’s uninsured status and contributory negligence. The second defender also pleaded contributory negligence against the pursuer, alleging failure to wear a properly fastened helmet. The MIB additionally alleged the pursuer knew the first defender was unlicensed and had been drinking heavily before the accident, and that the helmet straps were not securely fastened.

A proof before answer was held in 2007, restricted to liability. Evidence included witness testimony, police investigation, and expert reports. The crash helmet was not produced, and parties relied on verbal descriptions. The MIB was subsequently assoilzied after the pursuer withdrew his case against them. The court heard submissions and reserved judgment without hearing evidence from either defender.

Legal Issues Presented

1. Whether the first defender was negligent in the operation of the motorcycle, including speeding and failure to maintain control.
2. Whether the second defender was negligent in driving the car out onto the main road, including issues of visibility and lookout.
3. Whether the pursuer was contributorily negligent by failing to wear a securely fastened crash helmet, affecting the extent of damages.
4. Whether the pursuer could rely on the noise of the motorcycle as a warning to the second defender, and if this formed part of the fault.
5. Whether the Motor Insurers Bureau was liable, given the first defender’s uninsured status and the pursuer’s knowledge thereof.

Arguments of the Parties

Pursuer's Arguments

• The second defender’s estimates of the motorcycle’s speed were unreliable and inconsistent; the pursuer invited the court to accept a speed of about 40 miles per hour based on eyewitness and expert evidence.
• The second defender’s sight-line was unobstructed by parked cars, supported by eyewitness evidence and lack of mention by the second defender of obstructions.
• The pursuer was entitled to rely on the noise of the motorcycle as a warning to the second defender; the objection to this line of evidence was raised too late and should be rejected.
• The second defender was negligent in failing to keep a proper lookout and in starting his manoeuvre without seeing the motorcycle.
• Contributory negligence on the part of the pursuer should be minimal (10%), as he attempted to wear the helmet and the failure to fasten the straps securely was not reckless.

Second Defender's Arguments

• The objection to the use of motorcycle noise as evidence of fault was timely and the pursuer was not entitled to rely on it as it was not averred on record.
• Evidence of parked cars obstructing the second defender’s vision was credible and should be preferred over the pursuer’s evidence.
• The motorcycle rider was primarily at fault for failing to brake or take evasive action, and an escape route was available; the second defender should be absolved of liability or have minimal contribution.
• The pursuer’s failure to fasten the helmet straps properly was a significant contributory negligence, warranting a substantial reduction of damages (75%) due to the increased blameworthiness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ross v Associated Portland Cement Manufacturers [1964] 1 W.L.R. 768	Inference against party failing to give evidence; evidential burden	The court considered the absence of evidence from the second defender and his expert, drawing favorable inferences for the pursuer where appropriate.
O'Donnell v Murdoch McKenzie & Co, 1967 S.C. (H.L.) 63	Inference and evidential principles in civil proceedings	Qualified by the Civil Evidence (Scotland) Act 1988, the court applied the principles in assessing evidence and drawing inferences.
Adamson v Roberts, 1951 S.L.T. 355	Duty of care and evidence admissibility	Referenced in support of the pursuer's entitlement to rely on motorcycle noise as part of the case, though ultimately rejected.
McGlone v British Railways Board, 1966 S.C. (H.L.) 1	Timing of objections to evidence	Used to support the court's view that the objection to noise evidence was raised timely.
Froom v Butcher [1976] 1 Q.B. 286	Contributory negligence and reduction of damages in seatbelt/helmet cases	The court adopted the principle that contributory negligence involves both causation and blameworthiness, influencing the percentage reduction in damages.
Capps v Millar [1989] 1 WLR 839	Contributory negligence in failure to secure helmet cases	Guided the court in distinguishing between unfastened helmet and no helmet, supporting a moderate reduction in damages for contributory negligence.
O'Connell v Jackson [1972] 1 QB 270	Contributory negligence and blameworthiness assessment	Referenced for principles on assessing blameworthiness beyond mere causation in contributory negligence cases.
Hitchens v Berkshire County Council (cited from Bingham's Motor Claims)	Approach to contributory negligence reductions	The court rejected this authority as inconsistent with other binding precedents on contributory negligence.

Court's Reasoning and Analysis

The court carefully examined the evidence regarding the circumstances of the collision, including witness testimony, expert reports, and physical evidence at the locus. It found that the first defender was travelling at approximately 45 miles per hour in a 30 mph zone, which was excessive given the residential area, parked cars, and a blind summit limiting visibility. This speed deprived the first defender and other road users of sufficient time to react, constituting negligence.

Regarding the second defender, the court accepted that he stopped at the junction for about five seconds and checked for traffic. Due to the blind summit and parked cars restricting his sight-line to about 50 metres, he did not see the motorcycle before beginning his manoeuvre. The court found that his driving speed (3-4 mph) and manner of emerging were reasonable under the circumstances and did not constitute negligence. The slight cutting of the corner was not found to contribute significantly to the accident.

The court rejected the pursuer’s attempt to rely on motorcycle noise as a basis for fault, holding that the pursuer’s pleadings did not support such a case and that allowing a late amendment to include this would unfairly prejudice the second defender.

On contributory negligence, the court recognized the pursuer’s failure to secure the helmet’s chin straps properly, which resulted in the helmet coming off and more serious head injury. However, the pursuer had attempted to fasten the helmet and was aware of its importance. The court applied established authorities to assess blameworthiness and causation, concluding that a 15% reduction in damages was just and equitable to reflect contributory negligence.

Holding and Implications

The court absolvied the second defender from liability and found that the first defender was primarily at fault due to excessive speed and failure to take reasonable care. The Motor Insurers Bureau was assoilzied as the pursuer withdrew the case against them.

The pursuer’s damages will be reduced by 15% to reflect contributory negligence for failure to properly fasten the crash helmet. The court reserved the question of quantification of damages and expenses for further submissions.

No new legal precedent was established; the decision applies existing principles on negligence, contributory negligence, and evidential rules to the facts of this case.