Duncan v. Walshe & Anor [2005] ScotCS CSIH_49 (17 June 2005)

Duncan v. Walshe & Anor [2005] ScotCS CSIH_49 (17 June 2005)

The Lord Ordinary was entitled to accept the evidence of Mrs. Findleton that the lorry turned across the path of the deceased's motorcycle when it was unsafe to do so. The defenders failed to prove excessive speed or contributory negligence on the part of the deceased. The appellate court found no basis to disturb the trial judge's findings of fact or conclusions on liability.

Citation
[2005] ScotCS CSIH_49
Parties
Pursuer and Respondent: Susan Jemima Duncan, Executor dative of the late Peter Grant Duncan; First Defender and Reclaimer: Mark Martin Walshe; Second Defender and Reclaimer: Whittle Movers Limited
Jurisdiction
Scotland
Judgment Date
17 June 2005
Procedural Posture
Reclaiming Motion (appeal) / Inner House, Court of Session (appeal From Lord Ordinary)
Outcome
Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to with modification to award interest.
Legal Topics
Motorcycle Accident, Right Turning Vehicle, Contributory Negligence, Assessment of Witness Credibility, Appellate Review of Fact Finding, Damages for Personal Injury
Personal Injury Road Traffic Law Negligence Motorcycle Accident Right Turning Vehicle Contributory Negligence Assessment of Witness Credibility Appellate Review of Fact Finding +1 more

Case Brief

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Parties

Susan Jemima Duncan, Executor dative of the late Peter Grant Duncan

Pursuer and Respondent

Mark Martin Walshe

First Defender and Reclaimer

Whittle Movers Limited

Second Defender and Reclaimer

Procedural Posture

Reclaiming Motion (appeal) / Inner House, Court of Session (appeal From Lord Ordinary)

Legal Issues

  1. 1 Whether the first defender was at fault in performing a right turn when it was unsafe to do so
  2. 2 Whether the deceased was contributorily negligent in the accident
  3. 3 Whether the Lord Ordinary erred in accepting the evidence of a key eyewitness

Ratio Decidendi

The Lord Ordinary was entitled to accept the evidence of Mrs. Findleton that the lorry turned across the path of the deceased's motorcycle when it was unsafe to do so. The defenders failed to prove excessive speed or contributory negligence on the part of the deceased. The appellate court found no basis to disturb the trial judge's findings of fact or conclusions on liability.

Court Disposition

Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to with modification to award interest.

Orders

  • Refusal of reclaiming motion (appeal) by defenders
  • Adherence to Lord Ordinary's interlocutor awarding £727,027 in damages to the pursuer