Marian Tytler: Your insurance claim could be heading for a fall if you have had a few

Marian Tytler is an associate with Clyde & Co
Marian Tytler is an associate with Clyde & Co
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IT’S Hogmanay, a night when we celebrate the year that has passed and welcome the new. Scotland is a fantastic place to be at this time of year with businesses adding lots of special attractions. You might be involved in hosting an event at the street party, introducing live music at your premises or ­holding a ceilidh.

You will have considered health and safety and carried out risk assessments but even with those precautions, accidents can happen. Whether it’s slipping on ice or tripping on a stair, the festive period can be marred by accidents like these, particularly when a few festive tipples have been consumed.

How exactly does a person’s ­consumption of alcohol affect his or her claim?

If an injured person can prove that someone else was at fault for the ­accident, there are situations in which their damages can be reduced if it can be demonstrated that they also contributed if, for instance, they had been drinking alcohol.

A century ago they would have been barred from recovering any ­damages – however, we are no ­longer so ­draconian. Instead the amount they are awarded might be reduced to reflect the part their negligence had to play in the accident.

The fact that someone has had a drink when they are involved in an accident does not automatically mean they have contributed to it. All facts and circumstances need to be taken into account, including the amount of alcohol consumed and whether the conduct of the individual was affected by the consumption of alcohol.

On one hand, there will be claims which will not succeed as the ­accident was caused wholly by the individual. In other cases there could be no reduction if the fact that the individual had been drinking did not have any bearing on the accident. Over the last few years, we have seen a few ­interesting cases surrounding this topic.

In the case of AB v Pro-Nation Ltd, an individual who fell on a staircase in licensed premises after consuming a quantity of alcohol was found not to have contributed to the ­accident. The fact he was in the premises to consume alcohol was taken into account but the accident was caused by an issue with the handrail and could have happened even if the ­pursuer had not been drinking.

In contrast, in the case of Dobbs v Mitchells & Butler Plc an individual fell down a well-lit staircase. His claim failed entirely as there was no fault on the part of the occupier of the property. The judge stated that if the injured party had succeeded, any damages would have been reduced by 75 per cent due to the amount of alcohol consumed which amounted to a lack of reasonable care.

If an accident does occur, take note of all the facts and circumstances when you are recording it, including whether there were any contributing factors.

Enjoy the festivities tonight, but remember to take (reasonable) care this Hogmanay.

Marian Tytler is an associate with Clyde & Co.