Scottish Personal Injury Case Update. Compiled By Julian P. Hanrahan, Associate Solicitor

February 2014

Calum McEwan v. Lothian Buses plc 2014 [CSIH12]

Inner House Appeal Decision in a road traffic case.

Appeal from Edinburgh Sheriff Court following a road traffic accident in which the pursuer is a pedestrian under the influence of alcohol who, on the evidence, is struck by the wing mirror of a bus driven by an employee of the defenders.

Following Proof the Sheriff concludes that whilst the pursuer was extremely drunk he was standing on the pavement when struck. Nonetheless she granted Decree of Absolvitor on the basis that the pursuer had moved towards the edge of the pavement before the impact and that movement was not foreseeable by the bus driver.

Thankfully the Inner House saw sense confirming that when a pedestrian is on a pavement and is struck by a vehicle there is a prima facae case of negligence which is for the defenders to lead evidence at Proof to negate.

James Currie & Others v. Esure Services Ltd. 2014 [CSOH 34]
Outer House decision of Lady Wise on assessment of loss of society in fatal cases.

This case involved a road traffic accident in which the deceased was a pedestrian knocked over whilst walking on a pedestrian crossing.

Liability was admitted and the issue was the assessment of the award for loss of society following the five Judge Bench Decision in Hamilton v. Ferguson Transport (Speanbridge) Limited 2012 SC486. In this case the claim was on behalf of the parents and the brother of the deceased, who was 25 years at the time of the accident.

The Lady Ordinary took as her starting point pre Hamilton v. Ferguson Transport judicial decision and in each case applied a 50% uplift resulting in an award of £42,000 for loss of society for each parent and an award of £22,500 for the sibling.

In her decision she made it clear that there were no comparable jury decision made after the guidance in Hamilton had been issued and accordingly relied on earlier judicial awards.

There may still therefore be benefit on taking such cases to jury trials on the basis that a jury may be inclined to award damages at the top of the brackets they are referred to.

Obviously the circumstances of any individual accident will have to be taken into account as far as jury sympathy is concerned.