David McKinney | Partner

Woman injured in fall wins damages after appealing against sheriff’s ‘volenti non fit injuria’ ruling

The Sheriff Appeal Court has issued its decision in the case of Diane Raybould v T&N Gilmartin (Contractors) Limited. This was an appeal from a case that was heard in the All Scotland Personal Injury Court.

On 3 February 2015 when returning to her front door, Ms Raybould fell when crossing an excavation on the pavement outside her home. T&N Gilmartin were the contractors who were working on the pavement outside her home.

The case proceeded on the basis that there were no footway boards and as a result, no safe access across the excavated trench to Ms Raybould’s front door. The Defender’s position was that  the accident happened as a result of Ms Raybould stumbling and not as a result of the excavation.

The Sheriff at the original hearing found that Ms Raybould knew there was no board to cross the excavation. It was held that she put herself in a position which she knew to be hazardous, and decided not to take the alternative option of using her back door to enter the property. The conclusion of the Sheriff was that the maxim of volenti non fit injuria applied. Translated from Latin, that roughly means that “to a willing person, injury is not done”; in legal terms, if someone puts themselves in a position that the know may harm them, they cannot bring a claim for injury if that does indeed happen. Given the finding, Ms Raybould’s case failed, and the court made no award in her favour. The decision was then appealed.

The Sheriff Appeal Court noted  the Defenders in the action had not raised volenti non fit injuria in their written case. The Sheriff was said to have “introduced this legal proposition into his judgment when he was considering his decision.” It was also noted that “ To decide the issue between the parties on a legal maxim not supported by the evidence; not argued for and of which no notice had been given is simply not appropriate. Accordingly we have little hesitation in finding that this is not a case in which the maxim volenti non fit injuria applies.”

The Appeal Court then heard submissions on contributory negligence, and found that the Defender’s had breached the duty of care owed to Ms Raybould, but also found that Ms Raybould’s actions had contributed to the accident. She therefore received an award for payment from the court, reduced by 50% to reflect her contributing actions.

David McKinney

David McKinney

Personal Injury Team

"It is a privilege to act for our clients at a difficult time in their lives. I always aim to provide them with clear, practical advice in an approachable way.”

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