SCOTTISH CASES – CASE UPDATE

CASE UPDATE: MAY 2014

Kyle Russell v. Bank Lee Limited

Unreported decision of Sheriff Principal Kerr – April 2014.

This was a case of our own Peter Crooks. The pursuer was successful after Proof. The defenders had lodged a Tender. The Tender was beat after Proof but only with the addition of interest. The Sheriff awarded expenses down to the date of Tender and no expenses due to or by either party after that (on the basis that the amount of damages which exceeded the Tender was de minimus).

At appeal the pursuer was unsuccessful in an attempt to persuade the Sheriff Principal to increase the solatium award but nevertheless successful in being awarded the full expenses of the cause including those post date of Tender.

The Sheriff Principal effectively confirmed the usual rule on expenses, namely if a pursuer is awarded a penny more than the amount tendered he is entitled to his expenses in full.

Burns v. Royal Mail Group Limited

Unreported decision of Sheriff Principal Stephen at Edinburgh – May 2014.

Another appeal in relation to expenses in a PI action, courtesy of Mr. Crooks

By way of background the claim was intimated, letter of intimation acknowledged by the defenders’ insurers and thereafter no decision given on liability by the insurers. The pursuer raised a Summary Cause action. Almost immediately the defenders, through their solicitors, made an offer of £750 plus undefended Summary Cause expenses. This was rejected with counter-proposals put forward. Thereafter the defenders tendered in the sum of £750 which was accepted together with an Incidental Application seeking expenses. By that stage the case was a defended action. The defenders opposed the Incidental Application seeking expenses on the undefended Summary Cause scale. The Sheriff found in favour of the defenders.

Following appeal Sheriff Principal Stephen overturned the Sheriff and awarded full defended Summary Cause expenses essentially on the basis that there was nothing in the conduct of the pursuer which could be criticised.

It is generally a very helpful case on expenses for pursuers.

Kyle Smith v. Bluebird Buses Limited

25th April 2014 [CSOH 75]

Pedestrian road traffic accident.

Interesting case where the pursuer was, quite frankly, a drunk pedestrian who partially crossed a dual carriageway, approaching a vehicle canvassing for the SNP, ripped off a saltire flag and turned to walk back the way he came and was struck by a bus. Notwithstanding his conduct, he was successful at Proof albeit found 85% contributory negligent. It was held that there remains a heavy onus on drivers to look out for pedestrians on the road even when they are behaving with a disregard for their own safety. In this case the bus driver here should have stopped rather than simply slowed down and tried to move around the pursuer.

Helpful case on liability for pursuers and I think inevitably a case where a high degree of contributory negligence was found on the specific facts.

Cathie Kelly v. Riverside Inverclyde (Property Holdings) Limited

[2014] CSOH 86

Decision of Sheriff Arthurson sitting as a Temporary Judge in the Outer House.

This is a well publicised case of the pursuer who stumbled sustaining injury when attempting to turn and avoid a swooping gull. Perhaps, not surprisingly, on those basic facts the pursuer fails and absolvitor is granted.

Essentially the case fails on the basis that the pursuer fails to prove that (1) the gull that attacked her had come and had been nesting on the roof in the building in which she was working (2) any previous incidences of gulls attacking were or ought to have been known by her employers.

Consideration of the decision shows that had Sheriff Arthurson accepted on the facts that the gull had been nesting on the building the pursuer worked in and that there was a history of such gulls swooping and attacking people working in the building, the pursuer may well have succeeded.