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Defences of contributory negligence and provocation rejected, in damages action arising from an assault

David Stevenson looks at the decision in McLaughlin (as Guardian of John Rennie) v Pauline Morrison and Esure Services Limited, Court of Session, 8 August 2014, in which the court considered the defences of provocation and contributory negligence in an action for damages brought on behalf of a Claimant who had been injured by the Defender’s deliberate act.


An action was raised by the guardian of the Claimant, who had been severely injured when the First Defender drove a car at him at speed. She was subsequently convicted of assault. As a result of the incident, the Claimant suffered serious brain injury and required full time care. The Second Defender was brought into the action under Regulation 3 of the European Communities (Rights Against Insurers) Regulations 2002. In September 2013, the Second Defender was found liable to pay damages to the Claimant and interim damages were awarded. The Claimant’s guardian then asked the court to fix a proof (trial) restricted to the issue of quantum. The Second Defender opposed that request on the grounds that liability was also still an issue because the Second Defender wished an opportunity to establish at proof that the Claimant’s injuries had arisen partly due to his contributory negligence and, separately, that he had provoked the assault. The Claimant contended that the Second Defender’s arguments were not relevant and the court was asked to rule on this point.  

The incident which led to the Claimant’s injuries was set against a complex background involving two rival criminal enterprises in Glasgow. The incident took place near a public bar run by the First Defender’s uncle. It was alleged that the Claimant had been in the area, along with others, with the intention of attacking the bar. Shortly before the attack, the Claimant had been a passenger in a Land Rover which had been circling the area of the bar with a view to assisting the occupants in another car (a Volkswagen) in the planned attack. The First Defender noticed the Land Rover as it repeatedly drove past the bar. Following the attack, the Land Rover drove off and stopped some distance from the bar, at which point the Claimant got out. He was then struck by a car driven by the First Defender, who had been angered by the attack on the bar. It was alleged that the Claimant had been in the area in order to engage in criminal conduct.

The arguments

On behalf of the Claimant it was contended that the contributory negligence argument was bound to fail. In order for the court to make a finding of contributory negligence, there had to be “fault” on the part of the Claimant, which was defined in Section 5(a) of the Law Reform (Contributory Negligence) Act 1945 as “wrongful act, breach of statutory duty or negligent act or omission, which gives rise to liability in damages or would, apart from this Act, give rise to the defence of contributory negligence”.  Based on decisions in cases which had been determined before the 1945 Act came into effect, the Claimant maintained that, in order for there to be a finding of contributory negligence, it was necessary to identify “the effective cause” of the incident at the moment when it occurred, rather than considering the events leading up to it. Having regard to the English decision of Co-operative Group (CWS) Ltd v Pritchard 2012 QB 320, it was also argued that the defence of contributory negligence was not available in an action for damages caused by intentional wrong, as in this case. 

The Claimant also argued that the Second Defender should not be able to maintain the defence based on provocation because the written pleadings did not give any detail about how or in what way the Claimant had provoked the First Defender into the action which had caused his injury. The Second Defender had not explained what provocative act on the part of the Claimant had led to the assault.

In response, the Second Defender argued that the 1945 Act requires the focus to be on the “culpa” or fault of each party. The Act requires that there should be culpa on the part of the Claimant which is a cause (not the cause) of the injury and that is could be argued that turning up to take part in the attack on the bar was “a cause” of the Claimant’s injury. Although the decision in Pritchard was the law in England, the law in Scotland was different as, under Scots law, provocation had been recognised as a defence to an action of damages arising from an assault and as such could form the basis for a defence of contributory negligence.

It was also argued that, in any event, The Second Defender should be able to lead evidence at proof in an attempt to establish provocation as a defence on its own, leaving aside the argument on contributory negligence. 


The Judge recognised that the arguments on contributory negligence and provocation were closely linked and, having considered those arguments, he found that both of the defences put forward on behalf of the Second Defender were bound to fail. The Judge indicated that, in light of the specific facts alleged in this case, it was not necessary to resolve the dispute as to whether the pre-1945 rules on contributory negligence, as outlined in the relevant case law, must be applied, or to determine whether the decision in Pritchard should be followed in Scotland. Whichever view was taken on the issue of causation, it could not be said that the written pleadings detailed anything that the Claimant had done which had caused or contributed to his injury. It could not be established, on the written pleadings as they stood, that the Claimant’s injury was suffered “as a result partly of his own fault”.  His injury was caused solely by the fact that he had been run over by the First Defender. On that basis, the defence of contributory negligence was bound to fail.

As regards the provocation argument, the Judge accepted that provocation by a Claimant may operate to reduce the amount of damages recoverable by him or her for an injury caused by an assault. The decisions on this point made it clear, however, that it had to be established that the Defender was provoked by something the Claimant had done or said. There had to be a causal connection between the alleged act of provocation and the action taken in response. In addition, the act of provocation had to be a wrongful act. In this case, there were no relevant details provided in the second Defender’s written pleadings. The Defender did not offer to prove that the First Defender knew that the Claimant had been in the Land Rover before or at time of attack, or that she knew that he had been acting with the others involved in attacking the bar.

On that basis, the case was allowed to proceed to proof solely on the issue of quantum.


Clearly, this decision was based on the very particular circumstances giving rise to the Claimant’s injuries, but it is also of interest in demonstrating what a Defender has to offer to prove if a defence of provocation or contributory negligence is to be argued where the Claimant’s injuries arose as a result of an assault.

In this case, the sum sued for was £8 million, and the opportunity to persuade the court to make a finding of contributory negligence or provocation, which would lead to a reduction in the damages ultimately awarded, would have been a significant advantage for the Defenders.

While it appears that the Second Defender hoped to be able to establish that the presence of the Claimant in the vicinity of the bar against the background of the attack was sufficient to allow them to argue for a reduction in damages based on contributory negligence or provocation, the decision makes it clear that this in itself was nowhere near enough to set up a relevant defence.

Read the judgement.


For further information please contact David Stevenson, Partner at david.stevenson@dwf.co.uk or +44 (0) 141 228 8124

By Catherine Hart

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.