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Published 24 May 2016
Our team, led by John Maillie and Lyndsey McLean instructed Craig Murray, Advocate of Compass Chambers for the trial which took place over four days in Edinburgh.
The pursuer had been out for a night out with her friends, during which time she had been drinking. At the end of the night she left the pub with friends. She entered the carriageway to hail a taxi and suddenly changed direction, into the path of our client's vehicle. There was a collision.
The pursuer sustained significant injury. She was conveyed to hospital by ambulance and was detained for 6 days. She suffered a fracture to the left knee, which was not diagnosed until some 8 weeks post-accident. By this time, the fracture had healed badly and there was no surgical intervention which could assist. It was agreed that the pursuer may need a total knee replacement in future. She sued for £250,000.
We carried our extensive liability enquiries, with eyewitnesses, police, paramedics and medical staff. It was agreed that the pursuer had consumed alcohol, although the amount which she had to drink was in dispute.
Traditionally, the Courts in Scotland have continually highlighted the heavy onus on drivers to look out for pedestrians on the road, even when they are behaving with a total disregard for their own safety, and have imposed a high burden on drivers to reflect the fact that vehicles are potentially dangerous weapons. Review of case law indicated that the driver of the insured's vehicle would be held liable to some extent. Accordingly, a tender was lodged in the sum of £15,000 to reflect the risk. The pursuer sought a jury trial. We decided to agree to this.
Following detailed evidence including a searching cross-examination of the pursuer, the jury held that the pursuer was 85% responsible for the accident, with the insured being found 15%. The jury awarded damages of £38,900, meaning that the pursuer received £5,835, which was considerably less than the sum tendered. In Scotland, expenses follow success. A tender offers the same protection as a Part 36 offer.
Civil jury trials are extremely rare in Scotland and this case has generated significant interest. With the increased risk of jury trials following their introduction into the All Scotland Personal Injury Court following the Courts Reform (Scotland) Act 2014, insurers should be aware that all jury trials are not necessarily bad for defenders. The skill is to choose the right jury trial to fight, or indeed, when, as a defender, to seek your own jury.
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Dan Prince, Claire Newcombe