Amy Cockburn v MCE Insurance Company Ltd

On 23rd July 2018, the Pursuer, Amy Cockburn was driving her Renault Clio south on Preston Road in Linlithgow. The Defender’s insured, David Cochrane, was riding his Aprilla RSV motorcycle north on the same road.

There are no central line road markings on this particular stretch of Preston Road. The road was wide enough to carry one lane of traffic in each direction.

The action was raised by Ms Cockburn after there was a collision between her car and the motorcycle at a sharp S bend on the road. Both driver and rider were said to be familiar with the road. As they entered the bend, both had the perception that the other was encroaching onto their lane.

It was noted that due to a period of rain and then a dry spell, the road surface was greasy. As Mr Cochrane saw the Clio heading towards him, he attempted to countersteer to avoid a collision. In doing so, the front tyre of his motorcycle went away from him and he slid into Ms Cockburn’s car.

There were no witnesses to the collision and the only individuals to give evidence during the course of the Court hearing were Ms Cockburn and Mr Cochrane.The driver alleged the motorcyclist had been on her side of the road and the motorcyclist alleged the driver had been on his side of the road.

The Sheriff dismissed the Action raised against the motorcyclist noting: “it is always difficult to choose between two competing accounts when both are plausible, appear credible and there are neither any independent witnesses nor any real evidence which supports one version as opposed to another.”

The Sherriff preferred the evidence of the motorcyclist as he gave a detailed and spontaneous account of the accident. He was willing to admit gaps in his knowledge, whereas the driver in response to questions asked of her, stated she was 100% sure she was correct.

In order for the action to succeed, it was not sufficient for the driver to prove that she was not encroaching onto the motorcyclist’s side of the road. She also had to prove either the motorcyclist had been encroaching onto her side or, by failing to properly control his motorcycle, he had breached his duty of care to her. There was no evidence of excessive speed and it could not be inferred that the motorcyclist had lost control due to any fault on his part.

The Sheriff concluded by stating he was unable to find that the motorcyclist had failed in his duty to take reasonable care either by encroaching into the driver’s side of the road or by losing control of his motorcycle. As the driver failed to establish fault, the claim against the motorcyclist failed.

COMMENT

It is up to a Pursuer to prove, on balance of probability, negligence. Despite two competing versions of events from the driver and motorcyclist, the Sheriff preferred the evidence of the motorcyclist.

The full judgment can be found here.

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