Donald Robertson v Inspirations East Limited - Court of
Session, 14 February 2007
This action was raised by Mr Robertson and five other pursuers,
all of whom were legally aided, as a result of a coach crash in
Turkey in June 1995. It was decided that the outcome of Mr
Robertson's case would determine liability in all six cases and
after hearing evidence on that basis, the court found in favour of
the defenders. This may not have come as a huge surprise due to the
earlier case of Ellison v Inspirations East Limited which concerned
the same accident and evidence as in the Robertson case. In
Ellison, the defenders were successful. The pursuer proceeded to
appeal the decision. However in December 2003, the Appeal Court
upheld the decision.
Briefly, the crash occurred in a rural setting between Dalaman
and Marmaris when a lorry driver, driving a lorry in the opposite
direction, encroached into the coach's path and ultimately caused a
collision. The lorry driver and three passengers on the coach were
killed, the coach driver survived and numerous passengers were
injured. The basis of all the claims was a breach of contract
between the pursuers and defenders. The pursuers relied on the
allegedly negligent actings of the coach driver, which amounted to
an improper performance of the defenders' obligations. The
defenders' argument was that the improper performance of the
contract was attributable to the lorry driver.
Witnesses' recollections of the accident were at best vague due
to the passage of time and the trauma of the accident. As the judge
noted, "the search for credible and reliable evidence, especially
in relation to speed, times, distances and vehicle movements, is
for obvious reasons extremely difficult." Matters were further
complicated by the disappearance of the coach driver. The best
evidence of his version of events was a hand-written note by an
English Solicitor of a statement taken from him shortly after the
accident.
The case does raise two important points. The first is the
Scottish Legal Aid Board's (SLAB) decision to fund the pursuers
through this fresh action against the defenders, having already
lost their arguments twice before. While the decision to grant
legal aid again might be surprising it may be that the Board were
influenced by the fact that there were four fatalities and this was
a test case.
Secondly, and more for the pursuers, the case highlights the
necessary progression of cases from accident to proof. It was clear
from the evidence that witness recollections had changed or
diminished since the accident and the first proof. The imprecise
evidence could not allow the Court to reach any conclusion as to
whether the coach driver could have reacted earlier, and thus
attach liability to him.
As regards the future of this case, it may still see the courts
again as the appeal procedure has been actioned.
Contributed by Jennifer Gammell