Bankhead v McCarthy [1963] ScotCS CSOH_2 (08 February 1963)

Bankhead v McCarthy [1963] ScotCS CSOH_2 (08 February 1963)

The defender's averments regarding the pursuer's knowledge of the defender's intoxication and decision to travel with him do not materially contribute to cause the accident and are therefore irrelevant to the issue of contributory negligence.

Citation
[1963] ScotCS CSOH_2
Parties
Pursuer: Bankhead; Defender: M'Carthy
Jurisdiction
Scotland
Judgment Date
08 February 1963
Procedural Posture
Delict Reparation / Plea in Law—relevancy of Averments
Outcome
Defender's averments found irrelevant; pursuer's third plea sustained; issues approved; defender's averments from 'esto' in answer 3 to end deleted.
Legal Topics
Contributory Negligence, Volenti Non Fit Injuria, Passenger Liability
Tort Personal Injury Contributory Negligence Volenti Non Fit Injuria Passenger Liability

Case Brief

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Parties

Bankhead

Pursuer

M'Carthy

Defender

Procedural Posture

Delict Reparation / Plea in Law—relevancy of Averments

Legal Issues

  1. 1 Whether the defender's averments are relevant to infer contributory negligence by the pursuer
  2. 2 Whether knowledge of the driver's intoxication by the pursuer constitutes contributory negligence

Ratio Decidendi

The defender's averments regarding the pursuer's knowledge of the defender's intoxication and decision to travel with him do not materially contribute to cause the accident and are therefore irrelevant to the issue of contributory negligence.

Court Disposition

Defender's averments found irrelevant; pursuer's third plea sustained; issues approved; defender's averments from 'esto' in answer 3 to end deleted.

Orders

  • Sustain pursuer's third plea
  • Approve issues for jury