Steven Sim v Strathclyde Fire and Rescue [2010] CSOH
63
A fire appliance, en route to a fire, approached a village along
a single carriageway road. The national speed limit applied. The
road climbed a hill and then curved around a bend. To one side,
there was a children's play park. As the road reached the village,
there were 30 mph speed limit signs. Two vehicles ahead of the
appliance reacted to his blue lights and siren by stopping next to
the kerb. The driver of the fire appliance then had a decision to
make: should he move out to pass these vehicles, crossing the
centre line of the road?
The driver chose to overtake. He knew that any oncoming vehicle
leaving the village should be travelling at 30 mph. From his
position high up in the cab, he was satisfied that he had space and
time to move out, pass the vehicles and move in again before he
would interfere with oncoming traffic. Looking over the fence into
the park, he could see no children, so he saw no risk of anyone
running out.
The driver pulled out and passed the vehicles. As he was pulling
back in, he saw a motorcycle ridden by Mr Sim coming towards him at
speed. He braked heavily and continued to pull hard towards the
kerb, but the bike veered across the road. It struck the side of
the appliance and its rider and pillion passenger - father and son
- both sustained significant injuries.
Mr Sim sued the defenders, who were vicariously liable for the
actions of the driver of the appliance. The question raised was
this: did the overtaking manoeuvre breach the driver's duty of care
for other road users?
The defenders took a firm line. The driver had an excellent
vantage point. He knew approaching traffic should be travelling at
no more than 30 mph. There was ample time for him to complete his
manoeuvre - or for approaching traffic to stop. There was no breach
of duty.
Two other points were key. First, expert evidence and, more
importantly, the evidence of eye witnesses put the speed of the
motorcycle at over 60 mph. Secondly, police testing immediately
after the accident showed Mr Sim's alcohol level at almost twice
the legal limit.
Mr Sim denied travelling at excessive speed. He argued that he
was simply confronted with the appliance blocking his path.
Unfortunately for him, that was contradicted by the evidence of an
off duty police sergeant. She had been standing in front of her
house and had seen his bike roar past, followed immediately by a
high-performance car. Having heard the evidence, Lord Malcolm
concluded the car and bike had been racing.
Mr Sim also denied that he was under the influence of alcohol.
He argued that, given difference in cholesterol levels between the
post-accident blood sample and other samples of his blood, the
blood tested was unlikely to be his. At the close of
cross-examination, Mr Sim was asked to give a mouth swab for DNA
testing - perhaps the only occasion on which the final question has
been, "say 'aah'". The Scottish Police Services Authority then
carried out a DNA analysis, comparing samples from Mr Sim and his
son against the post-accident sample. They concluded the blood did
indeed belong to Mr Sim.
The reason for Mr Sim's surprise at his alcohol level became
clear during his own evidence. The accident happened in the middle
of the afternoon. The previous evening, he had bought a bottle of
Buckfast and six cans of lager. He could not recall how much he had
drunk. His family gave evidence that he did not appear to be under
the influence of alcohol on the day of the crash. A toxicologist
gave evidence that Mr Sim's perceptions might have been affected by
alcohol, and that, if he had consumed the Buckfast and lager, his
blood alcohol level by the time of the accident would have been in
line with the blood test results.
Mr Sim's claim failed. There was ample time for him to stop his
bike, if he had been driving at a reasonable speed. His speeding,
allied to his intoxication, caused him to lose control. The driver
of the appliance was acting with due care when he commenced his
manoeuvre. It was unrealistic to suggest he should have brought the
appliance to a halt behind the parked cars, even when there was no
traffic approaching.
We are particularly proud of this Simpson and Marwick case. A
firm decision was taken by the defenders and agents, including
Michael Jones QC and Graeme Watson, solicitor advocate, to test the
evidence that their driver was blameless. We are delighted that the
court agreed.
Contributed by Lesley Allan