Some problems of apportionment of blame in road traffic cases, where different and difficult issues can impact on causation

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 Widdowson's Executrix v Liberty Insurance Ltd [2021] CSOH 15 (4 February 2021).

The case was raised by the widow of John Widdowson (59), who was seriously injured in a road traffic accident on 1 January 2016 and subsequently died of his injuries on 11 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 Gray's 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 80mph. 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 Gray's Hospital where he remained overnight before discharge the following day. The next evening, he was admitted to Raigmore Hospital where he underwent surgery on 8 January but suffered a cardiac arrest and died on 11 January.

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.

Missed opportunities

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 7 January. The surgical team departed from the accepted practice of urgent surgical intervention.

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

Causative potency

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 Acar [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 45 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% to the driver and 40% 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 of another driver, 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.

The Author

Thomas Mitchell is a solicitor with Road Traffic Accident Law (Scotland) LLP

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