Robertson v J Sidney Smith Ltd & Anor [1998] ScotCS 104 (18 December 1998)

Robertson v J Sidney Smith Ltd & Anor [1998] ScotCS 104 (18 December 1998)

The defender's employee, Raymond Goodwill, failed to maintain a safe distance from the vehicle in front, did not keep a proper lookout for cyclists, and did not allow sufficient clearance when overtaking the incapax, resulting in the incapax being struck by the van's nearside wing mirror. The physical evidence and expert testimony established that the incapax was riding upright and close to the edge of the carriageway when struck. The defender's employee's conduct fell below the standard of care required, and the defenders are liable for the resulting injuries. There was insufficient evidence to establish contributory negligence by the incapax or fault on the part of the third party.

Citation
[1998] ScotCS 104
Parties
Pursuer: James Dawson Robertson (AP), Chartered Accountant, as Curator Bonis to Kevin McKernon; Defender: J. Sidney Smith Limited; Third Party: Andrew Berry
Jurisdiction
Scotland
Judgment Date
18 December 1998
Procedural Posture
Personal Injury/reparation / Proof on Liability (merits Only)
Outcome
Liability established against the defenders; proof restricted to merits only; damages to be determined separately.
Legal Topics
Negligence, Contributory Negligence, Vicarious Liability, Duty of Care, Standard of Care, Road Traffic Accident
Tort Personal Injury Road Traffic Law Negligence Contributory Negligence Vicarious Liability Duty of Care Standard of Care +1 more

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Parties

James Dawson Robertson (AP), Chartered Accountant, as Curator Bonis to Kevin McKernon

Pursuer

J. Sidney Smith Limited

Defender

Andrew Berry

Third Party

Procedural Posture

Personal Injury/reparation / Proof on Liability (merits Only)

Legal Issues

  1. 1 Whether the defender's employee was negligent in the manner of driving resulting in injury to the incapax
  2. 2 Whether the incapax was contributorily negligent
  3. 3 Whether the third party (coach driver) was at fault

Ratio Decidendi

The defender's employee, Raymond Goodwill, failed to maintain a safe distance from the vehicle in front, did not keep a proper lookout for cyclists, and did not allow sufficient clearance when overtaking the incapax, resulting in the incapax being struck by the van's nearside wing mirror. The physical evidence and expert testimony established that the incapax was riding upright and close to the edge of the carriageway when struck. The defender's employee's conduct fell below the standard of care required, and the defenders are liable for the resulting injuries. There was insufficient evidence to establish contributory negligence by the incapax or fault on the part of the third party.

Court Disposition

Liability established against the defenders; proof restricted to merits only; damages to be determined separately.

Orders

  • Objection by pursuer overruled.
  • Decree for liability against defenders; assessment of damages reserved.