Scottish Whiplash Case Law Update

Tennant v Direct Line Insurance 2010 SLT (Sh Ct) 71

The claimant sustained injury to her neck, arms and body following a road traffic accident. She made a full recovery after thirteen months. The court considered the disruption to her work and social life as a result of her injuries and awarded £2,000 in general damages. In so doing, the court stated that the authorities cited could do little more than set parameters in connection with an injury of this type as the injuries sustained may give rise to a variety of consequences relative to the circumstances and lifestyle or commitments of each individual claimant.

Pollock v Westall July 2010

The claimant sustained a soft tissue injury to her lower back, exacerbating her pre-existing chronic back pain. The claimant made a recovery to her pre-existing level of symptoms within nine months of the accident. The claimant also experienced mild anxiety and hyper-vigilance whilst driving for eighteen months. The court held that the claimant’s injury fell within the minor category of back injuries in the JSB Guidelines and, although the psychological effects were minor, it was appropriate to take them into account. The court awarded general damages of £2,750.

The full judgment can be read by clicking here.

Liability – Road Traffic

Davis v Catto & others [2010] CSOH 93

The claimant was a passenger in the defendant’s car which left the road and crashed into a field. She sustained serious spinal injuries. Prior to leaving the road, the defendant (Catto) had been driving his car at speed and had just completed an overtaking manoeuvre of a car driven by the third party (Skinner). The court heard evidence from independent witnesses that both drivers had been seen driving at “grossly excessive” speeds in the lead up to the crash. Both drivers had also pled guilty to separate road traffic offences in earlier criminal proceedings. The defendant had admitted liability to the claimant and the trial was concerned solely with the issue of the apportionment of liability as between the two drivers.

The defendant’s primary position at trial was that the two drivers had been engaged in “competitive” driving as they drove along the road, with both drivers driving at excessive speeds and also carrying out repeated overtaking manoeuvres. The third party maintained that no such overtaking had taken place and that the sole cause of the accident was the defendant’s loss of control as he completed the final overtaking manoeuvre. In addition, the third party sought to rely on the principle whereby a party cannot benefit by relying on his own illegal conduct (in this case, racing on a public road). The court held that there was insufficient evidence to support a finding of competitive driving. Nevertheless, focusing on the conduct of the third party at the point when the defendant was carrying out his final overtaking manoeuvre, the court held that he had been aware of the defendant’s approach and overtaking manoeuvre, yet failed to take any action to address his own grossly excessive speed. The court held that the third party had breached his duty of care to the defendant. His contribution was assessed at 20%.

It is interesting to note that if the court had found there to have been competitive driving, it would have been prepared to make a finding of 40% contribution, in line with the English authorities of Khana v Somra and Hames v Ferguson. The court dispensed with the third party’s illegality argument on the basis that this would be more properly targeted at the conduct of the claimant who, in this case, was blameless. An appeal has been marked by both the defendant and third party, with the hearing expected to take place later next year.

The full judgment can be read by clicking here.

Sim v Strathclyde Fire Board [2010] CSOH 63

The claimant sought damages for serious injuries following a road traffic accident. The claimant had been travelling on a motorcycle and, as he reached the crest of a hill, he saw a fire engine travelling towards him on his side of the road. The fire engine was responding to an emergency call and was overtaking two vehicles which had slowed to allow the overtake. The motorcycle struck the offside of the engine. At the trial, evidence was heard that the claimant was under the influence of alcohol and had been travelling at excessive speed. His vision was obscured by the blind summit. The court considered that the driver of the engine was acting with due care and attention when he carried out the overtaking manoeuvre and made no finding of fault against the defendants.

The full judgment can be read by clicking here.

Andersen v Hameed and another [2010] CSOH 99

The claimant, a rear seat passenger, suffered injuries when the underage, uninsured and unlicensed first defendant crashed his parent’s car. The road traffic insurers joined the action and argued that they were not liable under Section 151 of the Road Traffic Act 1988 to satisfy any award of damages in favour of the claimant because their liability was ‘an excluded liability’, the claimant having known or having had reason to believe that the car was stolen or unlawfully taken. The court accepted that, at the time of the accident, the claimant was participating in a joint criminal activity with the driver as he was aware that the driver was underage and driving without the permission of his parents, and as a result made no finding of fault against the defendant.

The full judgment can be read by clicking here. 

Alan Law v Frank Ronald and another [2010] CSOH 53

The claimant sustained injuries as a result of a road traffic accident and sought damages from the first defendant who was an uninsured driver. The claimant also sought judgment from the court that the second defendant, the MIB, would be liable to satisfy any sum awarded against the first defendant. The MIB argued that the claimant had allowed himself to be carried in the vehicle at a time when he knew or ought to have known that the driver did not have insurance. The court accepted the witness evidence that the claimant had actual knowledge of the lack of insurance when he agreed to be driven by the defendant. The court held that, in those circumstances, there was no obligation on the MIB make payment with regard to an unsatisfied judgment.

The full judgment can be read by clicking here.

Costs and Pre-litigation Offers

McIlvaney v A. Gordon & Co Limited [2010] CSOH 118
In pursuing a claim for personal injury arising out of an accident at work, the claimant was offered the sum of £6,000 net of CRU pre-litigation. This offer was rejected. Court proceedings were issued and the defendant made a Part 36 offer of £6,000 net of CRU together with costs. This offer was accepted by the claimant. On acceptance of the offer, the defendant argued that the claimant’s costs should be modified to nil on the basis that a pre-litigation offer in the same terms had been made to the claimant. In exercising its discretion, the court held that the action was raised to obtain a favourable award of costs rather than to increase damages. As such, the claimant’s costs should be modified to nil where settlement was agreed after proceedings were issued but at the same level as a pre-litigation offer.

The full judgment can be read by clicking here. 

Credit Hire

Allardice v Direct Line Insurance plc August 2010

The claimant sought damages for vehicle repair and credit hire for a period of ninety-one days following a collision with a vehicle driven by the defendant’s insured. Whilst the claimant failed to establish liability, the court went on to state that, in any event, the period of hire was excessive and held that the claimant would have only been entitled to recover hire charges for a period of thirty-five days. The court considered that, in the circumstances of this case, fourteen days was a fair period within which to investigate the claim and make a decision on repairs. Thereafter, a period of twenty days was reasonable to have the repairs carried out.

The full judgment can be read by clciking here. 

For further information on the issues raised in this ezine, please contact Douglas Keir, Andrew Lothian or your usual contact within the Insurance Litigation Unit.


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