16 October 2015

Thomas Bothwell Low (AP) v Maxi Charles Robert Duncan [2015] CSOH, 133. The Opinion in this case, issued on 13 October 2015, provides the most recent illustration of the Court’s approach when considering contributory negligence, together with its view of the weight to be attached to the written evidence of witnesses not called to give evidence in Court.

A link to the full judgment can be found here.

The facts are that the Defender and three of his friends had driven to the Parkway Inn, Aberdeen on the evening of 22 August 2008. One of the passengers in the Defender’s vehicle expressed a desire to fight with a guest at a birthday party at the Inn. On arrival, a verbal spat ensued culminating in the Defender and his friends leaving the Inn and driving back up the lane toward the main road. The judge commented that the Defender’s vehicle appeared to have been driven in a provocative manner indulging in a number of stops, or near stops, and then accelerations whilst being pursued by a group, including the Pursuer

The Defender then turned onto the main road before driving 100 yards whereupon he made a U-turn driving back towards the group who, by that point, had congregated at the side of the road, with some individuals encroaching into the road itself. The Pursuer was one of those individuals. The Defender accelerated his car in the direction of that group, making no effort to brake. He then swerved to the right. In doing so, he struck the Pursuer. He did not stop after the accident. He was prosecuted and convicted of dangerous driving. Despite this, liability was disputed in the civil claim and liability was not conceded until after all witnesses had given evidence.

The Court was tasked with determining an apportionment of liability given the Defender’s change of position. In doing so, the Court applied the principles recently expressed by the Supreme Court in Jackson v Murray, 2015 by considering the causal potency and relative blameworthiness of each party, to enable an allocation of relative responsibility in the circumstances. In the Court’s view, liability rested with the Defender. It held that the Defender did not slow his vehicle down as he approached the group at the roadside. Cognisance was paid to the fact that the Defender chose to return to the scene to place himself in a position where danger existed, together with the fact that he was in a vehicle, whereas the Pursuer was on foot. It rejected the Defender’s argument that the Pursuer moved to the right to attack his vehicle, together with his argument that he was trying to drive round the Pursuer, when the Pursuer ran across his path.

Nevertheless, the Pursuer’s behaviour had also contributed to the accident. There was evidence that the Pursuer had behaved in an aggressive manner as he ran up to the road and there was evidence which placed him in the middle of the road. There was, however, not enough evidence to find this was a hostile or aggressive act, as the Defender contended, nor was there sufficient evidence to establish that the Defender had deliberately driven his vehicle at the Pursuer. The Court apportioned liability 90/10 in the Pursuer’s favour.

The Defender did not give evidence in Bothwell despite the onus of proving that he did not commit the offence of dangerous driving being on him. The Court was unimpressed that, in advance of the Proof, no efforts had been made to take the Defender’s evidence on commission (i.e. at a separate hearing which could have been fixed prior to the proof diet (civil trial)). Against that background, the Court rejected the Defender’s Counsel’s invitation to accept, as evidence, the statement the Defender gave to the Police in advance of his criminal trial. To accept this evidence, would be dangerous and justifiable in only exceptional circumstances. The reliability and credibility of the witnesses to the case was a fact of critical importance. The inability to assess this presented a significant difficulty for the Defender, especially as there was no evidence of any impediment to his evidence being obtained on commission.

The Judgment serves as a reminder that commissions should be used if there is a difficulty in securing the attendance of a witness at Proof. In our view, whilst the Court applied a reasoned approach when considering contributory negligence, the Pursuer may have faced a greater deduction by way of contributory negligence to reflect his pursuing the Defender’s vehicle then standing in the road, in the face of an oncoming vehicle. The fact that the Defender did not give evidence can only have weakened his case, given the evidential burden incumbent upon him. The case also illustrates the evidential difficulty in establishing acts of deliberate harm.

If you require further information about this update, please do not hesitate to contact:

Mark Hastings, Associate, E: mfh@bto.co.uk,  T. 0141 221 8012