Road traffic accident victim to be awarded damages after judge rules driver was ‘90 per cent responsible’

A judge in the Court of Session ruled that the driver of the vehicle, who was sentenced to nine months imprisonment and banned from driving for three years after being convicted of dangerous driving following the incident, was 90 per cent to blame for the accident.

Lord Brailsford heard that the Alfred Low was knocked down by Maxi Duncan outside the Parkway Inn at Bridge of Don, Aberdeen, after attending a friend’s 18th birthday party on 23 August 2008.

The defender had driven to the party with four other friends who were uninvited, one of whom wanted to have a fight with one of the invited guests.

Following a “verbal altercation” in the car park, the defender drove away from the hotel, but was followed on foot by a group of guests from the party, including Mr Low, who was said to be in a “state of rage” as he pursued the car.

However, the defender then performed a u-turn and drove towards the group, a number of whom had encroached onto the road, including Mr Low, who was standing in the middle of the street.

Lord Brailsford said: “The defender then accelerated his motor vehicle in the direction of this group of persons. As he approached the junction of Balgownie Road and the lane to the Parkway Inn, he swerved to his right and in so doing, struck Alfred Low causing him to sustain injury.”

After the impact the defender failed to stop and proceeded in the direction he was travelling before returning to his home address.

As a consequence of the accident, the defender was convicted at Aberdeen Sheriff Court on 29 April 2010 of an offence under section 2 of the Road Traffic Act 1988 and Mr Low raised an action for damages, which called as a proof restricted to the issue of liability.

Following the conclusion of the evidence and during his submission senior counsel for the defender accepted that “primary liability” for this accident rested with the defender, but said there were three possible scenarios.

First, the defender trying to drive around Alfred Low who “deliberately ran at the car in an attempt to attack it”.

The second scenario was of the defender trying to drive around Mr Low and other people in the middle of the road, but Mr Low ran in front of the defender and was struck.

The third possible scenario was of the defender deliberately driving at Mr Low with the intention of harming him, but having regard to the preceding events there was “no evidence” of an intention on the part of the defender to cause injury.

The primary submission of senior counsel was that the judge should accept the first scenario, failing which he should accept his second scenario.

The position was therefore that there was accepted to be liability for the accident resting with the defender and the function of the court resolved to determining if there was any degree of contributory negligence attributable to Mr Low.

But senior counsel for the pursuer argued that the defender had “failed to discharge the onus” of proving that he did not commit the offence of dangerous driving which caused the loss, injury and damage to Mr Low.

It was submitted that having regard to the evidence it was established “on the balance of probabilities” that the defender conduct was “reckless” and that as a matter of law was essentially “identical to causing an assault”.

Having regard to the recent decision of the UK Supreme Court in Jackson vMurray, senior counsel for the pursuer argued that there was “no evidential base” for any finding of contributory negligence, but that if there was it was “minor” and accordingly any reduction in damages should be “very small”.

The judge held that the accident was caused by the defender’s “negligent driving”.

In a written opinion, Lord Brailsford said: “Having regard to all these circumstances I have concluded that I cannot properly infer that there is evidence of a deliberate intention to harm Alfred Low to be taken from the evidence I have described. It follows that I reject the pursuer’s primary submission that the accident was caused as a result of a deliberate act by the defender.”

In relation to contributory negligence, the judge noted that the defender having put himself in a position to avoid any confrontation with the pedestrians then chose to return and was driving “above the speed limit” as he approached the group.

But he also found that Mr Low could not “entirely avoid blame” for the accident, as there was evidence that he was “angry and behaving in an aggressive manner” as he ran up the lane from the Parkway Inn and onto the middle of the road.

Lord Brailsford added: “Having regard to all these considerations, I am of the view that the greater degree of blameworthiness rests with the defender but that a small portion of blame for the accident must lie with Alfred Taylor. So far as causative potency is concerned…I require to have regard to the important fact that the defender was in charge of a motor vehicle, with all the potential danger that can imply, and that Alfred Taylor was on foot and as a consequence thereof far more vulnerable. Having regard to all these features, I have concluded that the defender is 90% responsible for this accident and that Alfred Taylor should bear 10% of the responsibility.”