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Scotland this month and looking ahead

Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.

May 2017


Interesting cases this month

Motorcyclist – defective surface – successful defence for local authority 

Quantum agreed at £250,000 with liability in dispute.  The pursuer alleged that the accident was caused when he lost control of his motorcycle due to the defective road surface.  He claimed that the eroded area constituted a hazard that gave rise to a significant risk of an accident to a careful road user. The defenders denied that they were at fault.  They say that they had a reasonable system of road inspection and that the road was properly inspected and maintained. 

The road surface was worn away along a length of some 15 to 20 metres adjacent to the edge of the road.  The width of the damaged strip varied along its length, but was approximately 25 to 40cm from the edge of the road into the carriageway. 

Whilst the defenders accepted that there was some erosion of the carriageway surface at the roadside, they contended that this was not of sufficient severity to warrant repair under and in terms of their maintenance and repair policy.  The defenders’ position was that the road was not dangerous to a motorcyclist, so long as he exercised reasonable care.

The defenders' position and expert evidence was preferred and there was therefore no negligence established on behalf of the road inspector for the council.

Pedestrian – successful repudiation

The defender was driving her vehicle on a rural road shortly after midnight on 5th January 2013.  She was in fifth gear and using her full beam lights when she encountered the pursuer in the road and struck him.  He was wearing dark clothing. Evidence suggested the defender had not been speeding. The pursuer failed to establish that if exercising reasonable care the defender would have been able to avoid colliding with him.

Lady Carmichael made the following observations:

While it cannot be literally true that the pursuer 'came out of nowhere', I am not prepared to accept that, on the balance of probabilities, the pursuer must have been visible to the defender at a time such as to permit her to avoid the collision. The accident happened at night in the hours of darkness. The pursuer was wearing dark clothes and it was not clear which way he was facing at the time of impact. The presence of a pedestrian on a rural roadway, late in the evening, would have been unexpected.

Counter Fraud Scotland – fundamental dishonesty rejected

Liability was admitted in this "fiercely disputed" case and the issue before the court was that of causation.  Further, at the outset the defenders asked the court to dismiss the action - the basis of their submission being allegations of fundamental dishonesty. 

Unlike England and Wales, Scotland has no statutory basis for the application of fundamental dishonesty.  We have been monitoring this case in the hope it would provide some guidance on its potential incorporation into Scottish jurisprudence. 

Lord Kinclaven rejected the defender's submissions on fundamental dishonesty stating they were "not well founded in fact" and that the "pursuer's conduct did not merit such a course"

The pursuer sought damages of £182,880.80 and was ultimately awarded £7,321.32.

Useful Observations:

  • While the pursuer was not accepted as credible and reliable on all things, that was not sufficient to establish fundamental dishonesty

  • The judge was critical of defence witnesses who were held to be neither credible nor reliable (but whose witness statements had no doubt informed the defender's decision to fight the case)

  • He was also critical of the approach to skilled witnesses, as at least one expert witness had changed his opinion on the basis of evidence which was not placed before the court

  • The judge said that a finding of fundamental dishonesty would be an "extreme conclusion"

ASPIC - First Jury Trial 

Karen Blakely v North Ayrshire Council, ASPIC, 09/05/17

This case was the first reported decision in respect of civil jury trial from the All Scotland Personal Injury Court (ASPIC).  Prior to the passing of the Courts Reform (Scotland) Act 2014, civil jury trials did not exist in the Sheriff Court.  The 2014 Act introduced these in actions raised in ASPIC.  This case was presided over by Sheriff Mackie.

The pursuer claimed damages for injuries suffered by her son while playing in his primary school playground.  Damages were agreed at £15,000 on full liability, and while it was admitted that the child had had an accident in which he suffered an injury to his leg, the local authority denied liability.

The jury returned a verdict in favour of the pursuer, but they found the child to have contributed to the accident to the extent of 96.5%.  The pursuer was therefore awarded £525 but also received 100% of her judicial expenses.

Counter Fraud Scotland

DWF's award winning Scottish Counter Fraud team will hold its next pioneering ‘Disrupt to Progress’ Forum in Glasgow on 5 July to discuss ways of combating insurance fraud. Attendees will include IFED, the ABI, Police Scotland, the Forum of Scottish Claims Managers (FSCM) and The Law Society of Scotland.

We had a great feedback from all attendees at the previous forum and hope for the same level of interaction and a good debate about the issues. View press release >

Please get in touch with Jill Sinclair if you would like to attend future events or wish bespoke training for your teams.



New legislation

28 March - Discount Rate

The Damages (Personal Injury) (Scotland) Order 2017

A public consultation is underway - 30 March 2017 until 11 May 2017

The Faculty of Advocates has told the consultation “We have no reason to think that the existing legal framework does not justify the new discount rate but the effect of this abrupt and huge change is to create real injustice for both pursuers and defenders.

There is a significant difference between what pursuers would have received and what defenders would have had to pay out before and after the change, and that will be most striking for those whose settlements were closest in time either side.


On the horizon

Scottish Civil Justice Council (SCJC)

Scottish Civil Justice Council (SCJC)

Personal Injury Committee

Compulsory Clinical Negligence Pre-Action Protocol – trials underway

Compulsory Disease Pre-Action Protocol – trials underway

SCJC Working Group - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

New rules modernising how Fatal Accident Inquiries (FAIs) are carried out will come into force on 15 June 2017.

View legislation >

Other notable activity

DWF Scottish Annual Personal Injury Conference 2017

We will be hosting our annual Scottish Personal Injury Conference at our offices in Glasgow in September.  The topics covered will include personal injury litigation in Scotland and in particular the operation of the Compulsory Pre-Action Protocol, the All-Scotland Personal Injury Court, and the likely content of the Expenses and Funding of Civil Litigation Bill.  For those reasons the theme of the conference will be “Personal Injury Claims in Scotland: a changing landscape”.

We have lined up a host of really exciting speakers and will be sending invites out soon. 

Scottish Child Abuse Enquiry

The Inquiry has now added the timetable for Phase 1 of the hearings. This first phase of hearings will begin next week and run until 12 July 2017.

News and updates can be viewed on the Scottish Child Abuse Inquiry website as the enquiry progresses.

For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate on 0141 228 8132 or Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.