Thomas Mitchell

As a personal injury lawyer, specialising in representing those injured in road traffic collisions, I read with interest the decision of Lady Wise in the recently reported decision of Widowsons Executrix V Liberty Insurance Limited [2021] CSOH 15, OH.

The case was raised by the widow of John Widdowson, 59, who was seriously injured in a road traffic accident on the 1st January 2016 and who subsequently died of his injuries on the 11th January 2016.

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 Grays Hospital, Elgin and Raigmore Hospital, Inverness respectively.

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 Grays Hospital in Elgin where he remained overnight before discharge the following day. The next evening, he was admitted to Raigmore Hospital where he underwent surgery on the 8th of January 2016 but suffered a cardiac arrest and died on the 11th of January 2016.

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

To determine where liability for the deceased’s death would lie, Lady Wise looked at the relative blameworthiness and causative potency of each defender. The undisputed facts of the case were the high degree of blameworthiness of the driver who had caused the collision through his 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 the 7th of January. The surgical team departed from the accepted practice of urgent surgical intervention. 

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

The apportionment of liability between different parties in road traffic collisions is not always a simple matter.  Each case is assessed on its own 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. For example, in the case of Hernandez v Arkar [2019] EWHC 72(QB), 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 between 45mph and 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’ 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. 

In conclusion, when it comes to the question of who’s to blame in a road traffic incident, sometimes it is not entirely clear. We have all heard that if you run into the back on another driver, then you are to blame, but there may be other factors which lead to a different conclusion. 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 is a solicitor at Road Traffic Accident Law (Scotland) LLP