Dave Berry | Partner

The Curious Incident of the Car in the Night-Time

On 5th January 2013, a pedestrian suffered injuries as a result as a result of being struck by a car.

While this sounds like the beginning of a standard personal injury claim arising from a road traffic accident, the judge has to consider the question of liability, i.e. whether the driver was exercising reasonable care and could have avoided the pedestrian or whether the pedestrian was the author of his own misfortune.

In this particular case, Lady Carmichael had to consider the curious circumstances of the 5th January 2013 when, shortly after midnight, the driver was on the A9 Bannockburn to Plein Road with her full-beam headlights on. The pedestrian had “placed himself in the roadway in a rural setting, in dark clothing, during the hours of darkness, on a road where the speed limit was 60 mph.” There was the question of whether or not the pedestrian was attempting suicide at the time of the accident, inferred from the afternoon preceding the accident, when the pedestrian attended hospital complaining of leg injuries sustained when he had been struck by a car the previous week. It was also noted that afternoon that the pedestrian was appeared to be drowsy and under the influence of drugs.

These contributory factors blur the case and change the boundaries of liability in respect of the car accident.

In her judgment, Lady Carmichael set aside the matter of the pedestrian’s sobriety and state of mind, stripping the case back to the essentials, i.e. on the position of the pedestrian on the road that night and whether or not the driver would have had visibility of him before the point of impact.

After hearing submissions, Lady Carmichael was not satisfied that the driver ought to have been able to observe the presence of a pedestrian on such a rural roadway, late in the evening, wearing dark clothes. Lady Carmichael noted that the driver’s vehicle “using as it was full beam headlights, would have been much more visible to the Pursuer than the Pursuer was to the first Defender.” The driver had been exercising reasonable care. Therefore, the court accordingly granted decree of absolvitor in respect of both the driver and her motor insurers. In effect, the court held that the pedestrian had not proved that the accident was caused to any extent by fault and negligence on the part of the Defender. His personal injury claim failed.

This case shows that road traffic safety is not only a concern to drivers, and that a road traffic accident is not always the fault of the person driving the car. Pedestrians using the road must also exercise reasonable care to avoid accidents.

At Jackson Boyd we regularly deal with cases on behalf of pedestrians. If you have been involved in an accident and are wondering whether you can pursue a personal injury claim then please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Dave Berry

Dave Berry

Personal Injury Team

“It may be something of a cliché but I enjoy helping my clients and guiding them through what can often be the daunting prospect of being involved in a personal injury court action, whilst also ensuring I obtain the best possible result for them.”

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