Drunk holidaymaker hit by motorcycle to have damages reduced due to ‘contributory negligence’

A sheriff in the All-Scotland Sheriff Personal Injury Court ruled that the driver was liable to make reparation but found that the pursuer Sharon Gilmour was two-thirds to blame after she was hit while crossing a road with a bottle of sangria in hand as she headed towards her hotel in Tenerife.

Sheriff Peter Braid said: “By crossing the road where she did, without looking, whilst under the influence of alcohol and not making use of the pedestrian crossing, the pursuer failed to take reasonable care for her own safety. She thereby materially contributed to the accident.

“The pursuer having materially contributed to the accident through her own negligence, any award of damages should be reduced. The appropriate allocation of fault as between the pursuer and insured is two thirds (66.67%) to the pursuer and one third (33.33%) to the insured.”

‘Under the influence of alcohol’

Sheriff Braid heard that the 47-year-old pursuer from Saltcoats, Ayrshire, was on holiday in Costa Adeje in September 2014 when the accident occurred.

After arriving in the resort on 21 September 2014 and checking in to her holiday apartment she went to Alex’s Bar, where she consumed four bottles of beer - each of just under one pint - before leaving the pub in the late afternoon or early evening.

When the pursuer left Alex’s Bar she was carrying a bottle of sangria in one hand and tomato juice in the other, which she had previously purchased in the adjacent supermarket.

She started to cross the Avenida de los Pueblos, the main road which runs through Costa Adeje, with the intention of returning to her apartment, but as she did she was turning behind her to speak to a man whom she had met in the bar.

One witness who was crossing in the opposite direction told the court that she shouted to the pursuer to watch where she was going, but the pursuer either did not hear her or paid no attention and continued to cross the road.

The pursuer, who appeared to be “under the influence of alcohol”, was not looking out for on-coming traffic and almost immediately she was struck by the oncoming motorcycle, which was being driven by a motorist insured by the defender Linea Directa Aseguradora.

Liability

Liability was to be determined according to the law of Spain and, under Spanish law, liability for an accident between a motor vehicle and a pedestrian is regulated by Royal Decree 8/2004 of 29 October 2004, Article 1 of which provides that the driver of a motor vehicle is responsible, as a result of the risk created by the act of driving, for damage caused to persons or property in connection with the driving.

Where injury is caused, the driver is relieved of this responsibility only when he proves that the damage or injury was due solely to the conduct or negligence of the injured.

If there is negligence on the part of both the driver and the victim, there is a fair apportionment of liability and the amount of compensation, having regard to the relevance of the fault of each.

A Spanish court will absolve a driver completely only where there is clear evidence that he was not to blame and did not cause the accident.

Contributory negligence

The sheriff, having heard eye-witness accounts as well as evidence from expert witnesses, ruled that the defender had not proved that the accident was wholly caused through the fault of the pursuer and was therefore liable to make reparation, but added that any award of damages should be reduced.

In a written judgment Sheriff Braid said: “Recognising the high standard of driving which Spanish law requires a motorist to prove in order to escape liability completely I cannot conclude that he has discharged that onus, either beyond reasonable doubt or on a balance of probabilities. Putting that another way, having heard the evidence of both experts and trying as best as I can as a Scottish judge, to follow the approach of a Spanish judge who had heard the same evidence as I have heard, I conclude that a Spanish judge would not have absolved the insured of all blame. It follows that I find that, in Spanish law, the defender is liable to make reparation to the pursuer.”

“On the other hand,” he added, “I am satisfied that the pursuer did fail to take reasonable care for her safety by not only attempting to cross the road away from the pedestrian crossing, which was only metres away, but that she did so without looking and by so doing, materially contributed to the accident. While the insured must share some responsibility under Spanish law, a greater share of blame must in my view be attributed to the pursuer. Accordingly, I assess contributory negligence at 66.67%.”