McKENZIE, MORAG McKENZIE AND OTHERS AGAINST (FIRST) ASDA GROUP LIMITED AND (SECOND) DHL SERVICES LIMITED [2018] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKENZIE, MORAG McKENZIE AND OTHERS AGAINST (FIRST) ASDA GROUP LIMITED AND (SECOND) DHL SERVICES LIMITED [2018] ScotCS CSOH_102 (23 October 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_102.html Cite as: [2018] ScotCS CSOH_102, [2018] CSOH 102

[1] A serious road accident took place near Drum in Perthshire on 9 January 2012.

Mr Robertson, an employee of DHL Services Ltd, was driving a Scania articulated lorry

(“the tanker”) along the A977 eastwards toward Kinross. His load consisted of a very large

quantity of aviation fuel. The weather and road conditions were good. Drivers had

switched on their headlights, but it was still light and visibility was also good. Shortly

before 4.28pm Mr Robertson drove through the Crook of Devon. As he left the village, the

[2] Mr McKenzie, an employee of ASDA Group Ltd, was also on the A977 that day. He

was driving a Mercedes Sprinter van embossed with ASDA livery. He was delivering goods

to a particular property. Relying on the van’s satellite navigation device, he turned first into

a cul de sac. He discovered that the house was not located there and checked his delivery

note. It provided more information about how to find the road opening that he was looking

for. He drove the van back to the main road and saw the “markers” mentioned in the

delivery note. He realised that the other opening was nearby and lay to the east of the cul de

[3] Mr McKenzie gave the following account of what happened next. He looked left at

the T-junction and saw the tanker coming toward him with a line of cars behind it. It was

not travelling very fast and was some distance away. He judged it safe to exit the cul-de-sac

and executed a right hand turn. The van was then in front of the tanker, travelling in the

same direction along the A977. Mr McKenzie accelerated, reaching in his estimate a speed

of 30mph. He scanned to see the opening into which he was going to turn to make the

delivery. About halfway between the two entrances he saw it. He then performed a

mirror – signal – manoeuvre. The van had no central rear view mirror so he used the wing

mirror. He saw the tanker positioned a comfortable distance behind him in the same

carriageway. He then put on the indicator light, braked and began the right turn. He did

make another check to see what was happening with the traffic behind him.

[4] From other evidence in the case, including the police investigations made at the time,

the following picture emerges about the sequence of events. The distance between the two

openings is 70m. After the van emerged from the cul de sac, the tanker began to overtake

the van. It was entirely in the opposite carriageway. Mr McKenzie, however, was not aware

of its position. When the tanker was almost level with the van, he began to make the right

hand turn. The nose of the van crossed the centre line of the road and entered a short

distance into the opposite carriageway. The front left wheel arch of the tanker struck the

front offside of the van. Although it was only a glancing blow, it deflected the tanker off

course. It veered off the carriageway, over the verge, down an embankment and into a

garden of a house called Blue Cedars, which is owned by Mrs Morag McKenzie.

[5] The tractor unit of the tanker detached from the trailer. Tragically, Mr Robertson

sustained serious injuries in the cab from which he died. The trailer rolled over and

thousands of gallons of aviation fuel spilled into the garden, but did not ignite. The van was

left stationary on the road facing Drum. Mr McKenzie was found by individuals who came

[6] Blue Cedars lies along a short road with three other houses. One of them was the

delivery address. At the time of the accident, Mrs McKenzie was at home with her daughter

and granddaughter, who both lived with her at the time. They each now sue for damages.

Subject to one wrinkle, quantum is agreed. Accordingly, I shall say only this. The accident

had a deep and lasting effect on their lives. Mrs McKenzie did not live in the house for two

[7] There was other relevant evidence. Prior to the accident Mr Leppard, a teacher at

Alloa Academy, had been driving behind the tanker for about 20 minutes. He said that

throughout that period it was being driven at or below the speed limit. Indeed he was

somewhat frustrated, because he was late to pick up his son from school. He did not see the

van because the tanker lorry obscured his view ahead. What he did see was this. The tanker

moved smoothly into the other lane. He described it as a sinuous movement like that of a

snake with the cab as its head. Mr Leppard’s initial reaction was “you can’t park there”. He

then noticed the trees to that side of the road beginning to shake and realised it was

crashing. His next thought was “we are all going to die”. Mr Leppard did not recollect

seeing any of the tanker’s rear light cluster come on, either prior to the overtaking

[8] The van weighed about four tonnes. It was fitted with an Isotrak device, which

tracked its location and performance. Mr Kuldip Sond, a systems integration manager with

ASDA examined the data from the device. He said that Mr McKenzie had driven normally

that day. He had driven under the speed limit, and had not engaged in harsh braking,

coasting or over-revving the engine. The data indicated that the van had travelled at a

maximum speed of 26mph on the A977 after leaving the cul de sac, and decelerated

to 19mph just before Mr McKenzie made the turn. Mr Kuldip Sond conceded that, while

these times were accurate, it was possible that the van had attained higher speeds.

[9] Mr Alick Williams of the Vehicle and Operator Services Agency (VOSPA) examined

the van on the day after the accident. He found that both the brake and indicator lights were

in working order. This evidence was led because one of the experts, Mr Taylor, queried this

[10] The tanker weighed about 44 tonnes. Its tachograph disclosed that it was travelling

at a speed of 29.2mph at 16:27:24 hours. There is no data recording the speed between that

time and the power interruption at 16:28:21 hours, which was the time of the collision. The

tanker was also fitted with a “Telematics” satellite tracking system. It showed that the

tanker had a speed of 33 mph at 16.28 and that the rollover prevention system activated

[11] Each party instructed a road traffic expert to prepare a report and I heard evidence

from two of them: Messrs Hooghiemstra and Taylor. The first defender elected not to lead

Mr Elliott, but his report was lodged in process. Although I have derived considerable

assistance from the expert evidence, I must reach my conclusions based on the facts.

[12] I begin with two observations. First, many accidents involve a combination of

various factors. Secondly, the critical sequence of events took place in a very short space of

time. The time that elapsed from the van turning into the A977 until the collision was under

[13] I am satisfied that Mr McKenzie was negligent. When he turned into the eastbound

carriageway, he knew (a) that he was entering in front of a line of traffic in a 40mph zone,

and (b) that he would be very shortly turning right. He owed a duty to take reasonable care

to ensure that he did not either come on to the A977 or turn off it before he had checked that

it was safe to do so. In particular, he needed to ascertain the position of the tanker and the

[14] I found him to be an unreliable rather than incredible witness. His account appeared

to me to be now etched in his brain as a result of thinking about it so much over so many

years. I reject his evidence that he checked his wing mirror and that the tanker was fully

established in the lane reasonably far behind him. That simply does not square with the

[15] Further, Mr McKenzie only checked his mirror once. As he himself accepted, a

second check of the mirror or a swift glance over his shoulder before making the turn would

have alerted him to the position of the tanker. In the whole circumstances of the case, that

[16] I hold that Mr Robertson could have reasonably foreseen that if he drove the tanker

negligently, it could cause harm to other road users and neighbouring proprietors. Further,

it is fair, just and reasonable that he owe a duty of care to such persons: Mitchell v City of

Glasgow Council 2009 SC (HL) 21. I therefore reject Miss Shand’s preliminary argument that

[17] I conclude that Mr Robertson breached that duty by embarking upon the overtaking

manoeuvre. A reasonable driver would have had regard to the following factors: (a) the

van was embossed with ASDA livery and travelling slowly, so it might well be making

further deliveries, (b) this was a single carriageway A class road, (c) the speed limit

was 40mph, (d) there were various road features, including openings on each side, a bus

stop, a pedestrian crossing, and a right-hand bend, and (e) the tanker was carrying a heavy

load of volatile fluid. All these features made overtaking a potentially hazardous enterprise.

I hold that Mr Robertson materially contributed toward the accident.

[18] Each defender has vicarious liability for the conduct of their drivers I must apportion

the contribution that they should make toward damages and expenses, having regard to the

degree of blameworthiness and causative potency: Downs v Chappell [1997] 1 WLR 426

at 445H. Each defender submitted that I should hold the other defender entirely

responsible, or alternatively 80 per cent to blame. The pursuer contended that they were

each equally to blame. Having regard to the whole circumstances, I apportion matters as

follows: 75 per cent to the first defender and 25 per cent to the second defender.

[19] As I mentioned above, quantum is agreed in the joint minute. It states:

“28. In the event that the first and second defender, or either of them, is

found liable to make reparation to the pursuers, quantum of damages is agreed

[20] Miss Shand argues that I should strike out the claims for the second and third

pursuers on the basis that they represent pure economic loss. I construe paragraph 28,

however, as precluding that argument. A joint minute is a contract. The form of words

chosen by the parties here does not admit of qualification. Once the condition is met,

[21] But in any event the claim by the second and third pursuers relates to outlays and

costs incurred by them as persons then occupying Blue Cedars and does not represent pure

[22] At this stage I shall make an award of damages and expenses in favour of the

pursuers, in accordance with the figures set out in the joint minute. I shall also certify the

following persons as skilled witnesses for the pursuers: Mark Hooghenstra, Road Traffic

Accident Investigator, Dr S Birrell, Consultant Psychiatrist, Dr R Howie-Davies, Consultant

[23] Meantime I shall leave over matters relating to the expenses as between the

defenders. If they are agreed, I shall reflect that in the same interlocutor. Otherwise I shall

put the case out by order.

Scottish Court of Session Decisions