My colleagues have previously written articles about the hard line approach taken by judges in the Court of Session recently in cases where contributory negligence has been an issue. This is essentially where the defenders argue that the pursuer is, to some extent, responsible for some of the injuries that he/she has sustained.
A further recent decision in this area - Smith v Bluebird Buses Ltd [2014] CSOH 75 - was handed down by Lord Boyd and deals with a case where the Pursuer was hit by a bus in Aberdeen.
The parties had agreed the value of the case and Lord Boyd was tasked with hearing and assessing the facts to determine whether the driver of the bus was responsible for the accident and, if he was, then if it could be said that the pursuer had in any way contributed to the accident.
The accident occurred on Lang Stracht which is a four lane road (two lanes in either direction) in Aberdeen. There is a junction with Stronsay Drive and this is controlled by lights. At the time of the accident, a car, driven by an Aberdeen Councillor, was stopped at these lights in the offside lane. The car was being used as a campaign vehicle by the SNP and was decorated with saltire flags. The pursuer, Mr Smith, had seen the car and had crossed the road to speak to the occupants and to ask if he could have a flag. It appears from the judgment that there was a bit of a "carry on" had by the Pursuer and the occupants of the car but eventually the lights turned green. The Pursuer turned quickly away from the car and made his way to the pavement with his flag but, to do this, had to cross the nearside lane. He did this, according to the evidence, in a diagonal fashion and without much regard for the oncoming traffic. It was at this point he was struck by a bus.
It is clear from the judgement that Lord Boyd viewed the driver of the bus as responsible for the accident. He says, in terms, that the driver ought to have been able to see the pursuer. The driver of the bus also accepted that if he had applied the brake when he had first seen Mr Smith he would not have hit him. Lord Boyd goes on to say that there is a "heavy onus on drivers to look out for pedestrians on the road when they are behaving with a disregard for their own safety".
So far, so good for the Pursuer, but what about contributory negligence on the part of the Pursuer?
Lord Boyd clearly thought that the Pursuer was part author of his own misfortune. Although there was a heavy onus on the driver, there was clearly a much higher one for the pedestrian, at least on the facts of this case. Contributory negligence was assessed at 85% i.e. Lord Boyd found Mr Smith was 85% to blame for his own accident. As a consequence, the amount of agreed compensation his case was worth was reduced by 85% and he was only awarded 15% of the agreed sum.
This reversal of fortune seems to be based on the evidence given that Mr Smith had turned away from the car quickly, did not appear to have seen the bus and had, in effect, walked into the path of the oncoming bus. He had also been in the middle of the road in the first place which Lord Boyd described as "inherently dangerous".
By his own admission, Lord Boyd does recognise that it is a rare case where a pedestrian is found to be more responsible than a driver for an accident resulting in the pedestrian being hurt but, it does appear to be becoming more and more common in these types of cases. Pedestrians have to take responsibility for their own safety.
No doubt the Pursuer may be considering an appeal on the issue of contributory negligence but, as we have seen in other cases, this might not be the end of the matters.
Watch this space……!