McCluskey v. Wallace [1998] ScotCS CSIH_120 (14 May 1998)

McCluskey v. Wallace [1998] ScotCS CSIH_120 (14 May 1998)

The Lord Ordinary's findings on fact and apportionment of liability were supported by the evidence and not vitiated by error. The pleadings permitted a finding of contributory negligence. The apportionment of 80% liability to the defender and 20% to the child was justified given the respective blameworthiness.

Citation
[1998] ScotCS CSIH_120
Parties
Pursuer: McCluskey; Defender: Wallace
Jurisdiction
Scotland
Judgment Date
14 May 1998
Procedural Posture
Reclaiming Motion (appeal) in Civil Damages Action / Appeal Against Interlocutor (judgment) of Lord Ordinary
Outcome
Appeal dismissed; interlocutor of Lord Ordinary affirmed.
Legal Topics
Contributory Negligence, Apportionment of Liability, Road Traffic Accident, Child Claimant, Standard of Appellate Review
Delict Personal Injury Road Traffic Contributory Negligence Apportionment of Liability Road Traffic Accident Child Claimant Standard of Appellate Review

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Parties

McCluskey

Pursuer

Wallace

Defender

Procedural Posture

Reclaiming Motion (appeal) in Civil Damages Action / Appeal Against Interlocutor (judgment) of Lord Ordinary

Legal Issues

  1. 1 Whether the Lord Ordinary erred in finding contributory negligence on the part of the child claimant
  2. 2 Whether the apportionment of liability (80:20) between defender and child was justified
  3. 3 Whether the Lord Ordinary failed to properly assess the evidence and witness credibility

Ratio Decidendi

The Lord Ordinary's findings on fact and apportionment of liability were supported by the evidence and not vitiated by error. The pleadings permitted a finding of contributory negligence. The apportionment of 80% liability to the defender and 20% to the child was justified given the respective blameworthiness.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary affirmed.

Orders

  • Interlocutor of Lord Ordinary affirmed
  • No change to apportionment of liability (80:20)