Veronica McCreery v Terence Letson and Others

In what has become a regular feature, this case is another in the long line of actions dealing with the problematic issue of causative potency and accidents involving pedestrians.  Whilst not wholly encouraging, the decision in McCreery, may demonstrate a slight departure from the arguably more unbalanced apportionments which we have witnessed recently towards a more pragmatic approach.    Our analysis of recent decisions can be accessed via the links below.

http://sites.dacb.vuturevx.com/53/2921/landing-pages/the-blame-game.asp

http://sites.dacb.vuturevx.com/53/2603/landing-pages/end-of-the-appeal.asp

In this case, the pursuer sought reparation for loss, injury and damage which she sustained as a result of an accident on 21 October 2011 on the Liff Hospital Road in Dundee.  Immediately prior to the accident, the pursuer had alighted from a bus which had stopped at a designated bus stop opposite one of the entrances to the hospital.  From behind the bus, the pursuer crossed the road, when she was struck by the van which was being driven by the first defender, Terence Letson.

The pursuer did not give evidence at the hearing given she had no memory of events, but it was accepted on her behalf that she was partially to blame for the accident. Her agents submitted that the appropriate finding of contributory negligence should be one third of the damages and argued that the defender's driving constituted negligence as he knew, or ought to have anticipated, that pedestrians would be crossing the road from behind the bus and should have slowed down.

The first defender's evidence was that he was travelling well below the speed limit at only 40-45mph having had regard to a sign warning that disabled people may be crossing the road. 

Lord Bannantyne found that the first defender had been driving too fast "given the potential hazards" and held that the appropriate speed - which would have prevented the accident occurring -  would have been 20-29 mph.  He added that the defender ought to have appreciated the risk "however foolishly" of a pedestrian walking out from behind the bus.

Whilst Lord Bannantyne did find that the defenders were liable to make reparation to the pursuer, he held that liability should be apportioned equally between the parties, observing that the circumstances of the case appeared “very similar” to those in Jackson v Murray [2015].  The defenders' agents argued that the pursuer must be more than 50% to blame and sought to distinguish the case from Jackson, pointing to the age of the pursuer (61) and the fact that the first defender had decreased his speed to pass the bus, as well as instinctively moving slightly to the left as he approached it.

Lord Bannatyne, however, disagreed and identified two aspects to apportioning liability, namely causative potency and the respective blameworthiness of parties. He noted that, as in Jackson, this was not a case where the pursuer stepped into the path of the first defender who was travelling at a reasonable speed and did not take action as promptly as he should.  Equally he commented that this was not a case in which the first defender had ploughed into the pursuer who has been in his sight for long enough for him to have avoided her.  Essentially he found that like Jackson, the case fell between the two extremes commenting that:.

“The causation of the injury in the present case depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender not having proper regard to the potential dangers facing him and driving at an excessive speed in all the circumstances. If she had waited till he passed she would not have been run down."

Although the Courts do appear to expect an almost untenable standard of foresight from motorists, given the decision inLow v. Duncan, in which only 10% contributory negligence was attributed to a pursuer who ran from the middle of the road and into the path of the defender's vehicle,  this is a much more favourable result. It is yet to be seen, however, if the maximum a Court will ever attribute to a pursuer in these circumstances will be 50% or if the case marks a shift towards more realistic decisions.