McKee v Tough – trailers, speeding and social media

The recent decision of Sheriff Dickson in McKee v Tough and another [2021] SC EDIN 65 is interesting not just for the detailed analysis of the evidence but because of the findings in relation to contributory negligence and also the reference to the pursuer’s social media postings.

In the eastbound direction of a country road a Toyota pick-up truck (driven by the first defender) was towing a trailer.  Behind the pick-up, a Hyundai SUV (sports utility vehicle) was following.  Travelling in the westbound direction, was an Audi SUV (driven by the pursuer, and accompanied by a passenger).

The basic facts are that, close to a bend, the trailer swing out onto the other side of the road where the Audi was travelling.  The Audi struck the trailer and lost control, with a punctured wheel making gouge marks in the road.  The Audi then collided with the Hyundai.  The pursuer suffered a range of injuries, in particular facial injuries.  His passenger was also injured, and the driver of the Hyundai was severely injured.

The first question was the primary cause of the accident.  The pursuer’s position was that the trailer had swung out significantly over the centre line, and that first defender had overtaken another car, causing the collision.  It emerged, however, that the pursuer had not seen an overtaking manoeuvre, but had perhaps assumed the pick-up had been overtaking due to the position of the trailer.  The first defender’s position was that the Audi had passed very close and at speed, so that he had swerved to the left.  Expert evidence was led for both sides, photographs examined, and it was held that the trailer had swung out onto the westbound side of the road.  This was a breach of the first defender’s duties, and it was reasonably foreseeable that harm would be caused.

This was only part of the case, however.  The other question was the speed of the Audi, and whether it had been speeding.

Following the accident, the first defender told police that the Audi had been moving at “a fair lick”, and the speed was “80mph plus”.  The driver of the Hyundai had stated that the Audi was “definitely speeding”.  On cross examination the pursuer stated that his car could go from 0 to 60 mph in under 5 seconds and he accepted that the Audi was a very fast car.  Expert evidence about speed was also considered.

Posts from the pursuer’s Facebook page were lodged.  The pursuer denied that he made mocking comments following the accident.  Earlier Facebook posts were also referred to, from when the pursuer had bought the car:

[Female]: “Mind keep to the speed limit u😊”
Pursuer: “As always😂”

The pursuer’s explanation for this was that he was talking about driving on a drag strip.  There is no further comment in the Sheriff’s decision about this.

It was held that the Audi had been travelling “significantly” in excess of the speed limit.  On that basis, the pursuer had less time to react.  A reduction of 25% was therefore applied.

This decision highlights that driving in excess of the speed limit can bring about responsibility for an accident that may otherwise have been avoided.  In addition, it is clear that social media postings could be a potential pitfall especially where witness accounts conflict and credibility is in question.

Barry Berlow-Jackson, Associate Solicitor, Walker Laird Solicitors