Jackson v Murray [2015] UKSC5

A 13-year-old child suffered serious injury when she emerged into the roadway from behind the minibus without looking.

The approaching driver failed to be vigilant for the presence of children at or near the minibus and was travelling at around 50 mph.

At first instance, the child was held to be 90% contributorily negligent. On appeal to the Inner House this was reduced to 70%. Finally in the Supreme Court liability was divided equally between the parties on a 50-50 basis.

What is astonishing is the extent of disagreement amongst the judiciary concerning what is a very frequent presentation in one format or another. Anyone who thinks litigation is predictable should think again.

As Lord Reed stated, “It is not possible for a court to arrive at an apportionment which is demonstrably correct.” 

Montgomery v The Lanarkshire Health Board [2015] UKSC 11

This was another judgement of the Supreme Court from a Scottish case. In October 1999, Nadine Montgomery gave birth to her first child who suffered severe injury and disability during the delivery. The court held that she should have been told of the risks of vaginal delivery related to her diabetes (about 10%) and should have been given the option of a cesarean section.

In a judgement which reads like a huge breath of fresh air and common sense, the court stated that a patient required to be informed of any material risk of the procedure and whether there were any alternatives available.

Campbell v Peter Gordon Joiners Ltd. [2015] CSIH 11

The pursuer was injured in an accident involving a circular saw. The defender company was insolvent and there was no employer’s liability insurance. The pursuer attempted to convene one of the directors as a second defender for failure to insure. By a majority, the Inner House dismissed the claim against the director. All practitioners in the field know that this is a real problem. There have been almost no prosecutions by the Crown office over the last 10 years for the criminal offence of failing to have employer’s liability insurance. This case is expected to go to the Supreme Court.

Young v McVean [2015] CSIH 70

The pursuer suffered psychiatric injury when told of the death of her son. She had earlier passed the scene of the road traffic accident in which he had been killed, and had an increasingly acute premonition that something terrible had happened. However, she did not see the accident and was not told of it at the scene. She, therefore, failed to satisfy the “Nearness, Hearness, and Dearness” tests which might let her recover extended damages as a primary victim. The Inner House did uphold an award of £80,000 in respect of her grief and sorrow at the loss of her son, both in general and in particular terms. 

WW v Ministry of Defence [2015] CSOH 111

The pursuer was exposed to asbestos whilst in the Royal Navy and had developed pleural plaques, with a 5% risk of mesothelioma. In one of the first cases to proceed to trial under The Damages (Asbestos-Related Conditions) (Scotland) Act 2009, the court awarded £8,500.00 in respect of provisional damages, with the opportunity reserved to return to court if the terminal condition of mesothelioma materialised.

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