In what felt like a case of déjà vu, one of our clients was recently fighting against AVIVA insurance following a road traffic accident in 2011 [2015] CSOH 153.

Mrs McCreery sought damages having been struck by a van when crossing the road. She had travelled to Liff Hospital in Dundee by bus and got off the bus which had stopped in a lay-by on the opposite side of the road from one of the entrances to the hospital. She walked to the rear of the bus and then crossed the road towards the hospital entrance when she was struck by the van which was insured by Aviva.

The insurers, throughout the action, insisted that Mrs McCreery was far more to blame for the accident as she had not kept a proper lookout for oncoming traffic. Drummond Miller (and the local solicitor firm involved, Muir Myles Laverty) strongly advised Mrs McCreery not to accept that position as the driver was at least as much to blame for travelling too fast and not paying proper attention to potential hazards.

Shortly before the evidential hearing, the insurers were advised by the pursuer’s legal representatives that this was a clear 50/50 case where both parties were, to some degree, at fault and that liability should simply be split. In other words, no party was more to blame than the other. Had the driver not been travelling too fast (as was spoken to by two eye-witnesses) and appreciated the potential hazards ahead, rather than ignoring or not paying enough attention to the signs warning of elderly and disabled people crossing to the hospital, then the accident would not have happened. Likewise, had Mrs McCreary waited for all traffic to pass before attempting to cross the road then the accident would not have happened.

The position being put to the insurers was the same as in the case of Jackson -v- Murray (see our article of 2nd April 2015) where Drummond Miller also acted for the pursuer and in which the Supreme Court awarded a 50/50 split of liability. The arguments were remarkably similar and, prior to the evidential hearing, this point was made to the insurers (it is worth noting that the same insurer was involved as in the Jackson -v- Murray case). Unfortunately, despite attempts to settle the case at a 50/50 split, the insurers remained adamant that Mrs McCreery was significantly more to blame. On our advice, Mrs McCreery could not agree with this and so a hearing on the evidence was required.

Lord Bannatyne ultimately awarded Mrs McCreery 50% of the damages and stated that this was a 50/50 case on liability. His Lordship commented that the facts were “very similar” to those in Jackson -v- Murray. He further commented that the cause of the accident depended upon the combination of the attempt to cross the road and also the defender not having proper regard to the potential dangers facing him and driving at an excessive speed in all the circumstances.

Whilst at the evidential hearing, arguments were put forward for Mrs McCreery that, in fact, the driver should be more to blame given the “causative potency” of the driver/vehicle and that a car is a potentially lethal weapon, the pursuer’s legal team are delighted with the outcome and judgement of the court has essentially agreed with the approach taken during the negotiation process and throughout the action.

As far as we are aware, this is the first case in Scotland, following the Supreme Court decision, to assess the contributory fault of a pedestrian when struck crossing the road. What is clear is that, unless the case falls into the extreme case of a pursuer stepping directly into the path of a driver travelling at reasonable speed and the driver failing to take action promptly (in which case the pursuer is likely to be held more to blame), or the case where the driver has ploughed into the pursuer who has been in sight for long enough for him or her to easily have avoided her (in which case the driver is likely to be more to blame) then the starting point where both parties are at fault will be a 50/50 split of liability.

If you have been involved in a road traffic accident and would like to speak to one of our solicitors, then please do not hesitate to contact our Litigation Team.