11 September 2020
For many of us, our summer holiday this year will be spent in Millport rather than Magaluf, and holidays abroad are but a distant memory. It’s therefore easy to forget that accidents still do happen on holiday, as in the recent case Keith Fitzsimmons v Motor Insurance Bureau [2020] EDIN 22.
The pursuer was on holiday in Zante with his family and was seriously injured following a road traffic accident, which he said was caused by the fault of an untraced vehicle. He raised an action against the MIB in the All Scotland Personal Injury Court, invoking the provisions of ‘Rome II’. Greek law applied for the purposes of determining liability and quantum.
The pursuer offered to prove that the untraced vehicle, a petrol tanker, failed to leave sufficient room and collided with the rear of the quad bike he was driving. He claimed that this caused him to be thrown from the bike, to his injury. The pursuer and his wife, a passenger, had no recollection of the accident. Their daughter and her boyfriend witnessed the accident and told the pursuer and others what they saw. All four witnesses gave written statements to the Greek police. There were significant disparities between the witnesses’ oral evidence and the content of the police statements about how the accident happened and if another vehicle was involved. If the police statements were accurate, it would cast real doubt on the credibility and reliability of the pursuer’s witnesses.
Given the critical nature of the police statements, a number of tactics were employed by both sides during the course of the proof, including the use by both parties of prior statements under the Civil Evidence Scotland Act 1988; the instruction of medical experts to opine as to whether the pursuer would have been able to give or sign a statement in his injured state; and the instruction of a handwriting expert. The witnesses’ position was that they did not give statements; that the statements were inaccurate; and had not been signed by them.
Ultimately, the court held that the pursuer failed to prove that there was another vehicle involved in the accident and the defenders were granted decree of absolvitor. This notwithstanding, the court goes on to consider contributory negligence and the awards that would have been made for quantum under Greek law, had liability been established. The full decision runs to 117 pages and might make interesting pool-side reading for those of us lucky enough to find ourselves on a sun lounger any time soon. A link to the decision can be found here:
Claire White, Partner, cwh@bto.co.uk, 0141 221 8012