The question of who’s to blame for a road accident is never black and white - Thomas Mitchell

As a personal injury lawyer, specialising in representing those injured in road traffic collisions, I read with interest the recent decision of Lady Wise in Widowsons Executrix V Liberty Insurance Limited (2021).

Thomas Mitchell, Solicitor, Road Traffic Accident Law (Scotland) LLP
Thomas Mitchell, Solicitor, Road Traffic Accident Law (Scotland) LLP

The case was raised by the widow of John Widdowson (59), who was seriously injured in a road traffic accident on 1 January 2016 and died of his injuries ten days later.

The first defender was the motor insurer of the late Daniel Gordon who caused the collision. The second and third defenders were NHS Grampian and NHS Highland having responsibility for Dr Gray’s Hospital, Elgin and Raigmore Hospital, Inverness respectively.

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Daniel Gordon lost control of his vehicle on a bend. It was likely he attempted to negotiate the bend in excess of 80 mph. He crossed over the carriageway and collided with a car driven by Elizabeth McPhee. Mr Widdowson was a passenger in that vehicle. He was taken by ambulance to Dr Gray’s, where he remained overnight before discharge the following day. The next evening, he was admitted to Raigmore Hospital where he underwent surgery on 8 January 2016 but suffered a cardiac arrest and died on 11 January.

All three defenders admitted liability to some extent and the quantification of damages was agreed. The remaining contentious issue was the apportionment of blame.

Lady Wise looked at the relative blameworthiness and ‘causative potency’ of each defender. The undisputed facts were the high degree of blameworthiness of the driver who caused the collision through reckless driving. The negligent act admitted by NHS Grampian was the failure to perform a CT scan to investigate internal injuries and the admitted negligence of NHS Highland was that of adopting a conservative course of management until 7 January. The surgical team departed from accepted practice, urgent surgical intervention.

Lady Wise concluded that the deceased’s life-threatening injuries had been caused by the fault of the driver, but there were opportunities thereafter to save his life. Had surgery been performed on 4 January, on balance, the deceased would have survived. She found the first defender liable for 70 per cent of agreed damages, with the second and third defenders each liable for 15 per cent.

The apportionment of liability between different parties in road traffic collisions is not always simple. Each case is assessed on its merits and the attribution of fault to any one party is arrived at by consideration of blameworthiness and the respective causal potency.

The vulnerability of a particular category of road user is also relevant in apportionment of blame. In Hernandez v Acar [2019], the claimant suffered life-changing injuries after a driver pulled out of a junction into his path. Hernandez was riding his motorcycle at a speed of 45-50mph in a 30mph zone in Hackney, London. The case was very balanced with regard to blame, as Hernandez was there to be seen. Hernandez’s speed was relevant when assessing blameworthiness, but the effect of his causative potency, being a vulnerable motorcyclist capable of bringing much less harm to the collision, tipped the balance in his favour. The judge apportioned blame 60 per cent to the driver and 40 per cent to the motorcyclist.

When it comes to the question of who’s to blame in a road traffic incident, sometimes it is not entirely clear. People often look to the law for a clear black and white answer, but in reality, these matters are often more finely-balanced shades of grey.

Thomas Mitchell, Solicitor, Road Traffic Accident Law (Scotland) LLP

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