McKee v Tough – Trailers, Speed ​​and Social Media

McKee v Tough – Trailers, Speed ​​and Social Media

Sheriff Dixon’s Final Decision in the McKee v Tough Case and Other [2021] SC EDIN 65 is interesting not only for the detailed analysis of the evidence but also for the findings regarding contributory negligence and also the reference to the stalker’s social media posts.

Heading east from a country road, a Toyota pickup truck (driven by First Defender) was towing a trailer. Behind the truck, a Hyundai SUV (an SUV) followed. Traveling in the western direction, it was an Audi SUV (driven by the pursuer, accompanied by a passenger).

The basic facts are that, near the bend, the trailer sways on the other side of the road where the Audi was going. The Audi hit the trailer and lost control, with a punctured wheel causing road markings. Then Audi collides with Hyundai. The stalker sustained a range of injuries, particularly facial injuries. Its passenger was also injured, and the Hyundai driver was seriously injured.

The first question was the main cause of the accident. The position of the pursuer was that the trailer was swaying heavily over the center line, and the first defender had overtaken another car, causing the collision. However, it turns out that the pursuer did not see the overtaking maneuver, but may have assumed that the pickup truck had overtaken due to the location of the trailer. The defender’s first position was that the Audi passed so close and so fast that it veered to the left. Expert guides were brought in for both sides, photos were checked, and the trailer was said to have swayed on the west side of the road. This was a breach of the duties of the first defender, and damage could have been reasonably expected.

This was only part of the issue. Another question was the speed of the Audi, and whether it was speeding.

After the accident, the first defender told the police that Audi was moving “with a fair lick”, and that the speed was “80 miles per hour”. The Hyundai driver stated that Audi was “definitely speeding”. On cross-check, the stalker stated that his car could go from 0 to 60 mph in less than 5 seconds, and before that an Audi was a very fast car. Expert evidence about speed was also considered.

Posts uploaded from the stalker’s Facebook page. The stalker denied making sarcastic comments after the incident. Also referenced were previous Facebook posts, since the stalker bought the car:

[Female]: “Be sure to stick to the speed limits u😊” Stalker: “As always”

The stalker’s explanation for this was that he was talking about driving on a drag strip. There is no other comment in the Sharif’s decision on this subject.

Consider that Audi was traveling “a lot” in excess of the speed limit. On this basis, the stalker had less time to respond. So a 25% reduction was applied.

This decision highlights that driving in excess of the speed limit can cause liability for an accident that could have been avoided. In addition, it is clear that social media posts can be a potential pitfall especially when witness accounts are conflicting about credibility.


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