Apprehension is not an emergency
O’Donnell v Smith and Royal and Sun Alliance Insurance PLC [18.12.18]
A recent decision from the All Scotland Personal Injury Court offers protection to road users from the unexpected and unnecessary actions of others. In doing so, the court reaffirmed that the question of contributory negligence is one of fact and that consideration of all relevant circumstances needs to be taken into account.
Leslie O’Donnell (the pursuer) was driving his motorcycle behind Lisa Smith (the defender), when she broke harshly, coming to a sudden stop. This led the pursuer to collide with the rear of the defenders car and for the pursuer to suffer significant injuries.
The defenders submission was that she was not to blame for the accident. Should the court not agree that the pursuer was entirely to blame, then the defenders submitted that the award for damages should be reduced by seventy percent. This, the defender argued, was to account for the contribution of blame of the pursuer, who was too close to the defender and travelling too fast. The defender suggested that had the pursuer left the appropriate amount of room, the accident might have been entirely avoided.
The court found in favour of the pursuer, with no deduction for contributory negligence.
The court held that the pursuer had adopted the appropriate road position prior to the accident and the defender had acted unreasonably in carrying out an emergency break when there was no emergency. Indeed, in evidence, the defender had conceded that she had been apprehensive at the sight of a motorcycle behind her but that there had been no emergency.
The mere fact of one vehicle, having collided with the rear of another vehicle in front, does not of itself, give rise to the presumption that the driver of the following vehicle has been negligent. It is necessary to look at the whole of the relevant circumstances and the decision is one to be based in fact.
On the face of it, the decision may appear obvious, however, in practice there is often a presumption in favour of the lead vehicle when a rear end collision occurs. This case confirms that there are no strict rules about the distance which one driver should keep from another and that cases will always turn on the reasonableness, or otherwise, of the drivers’ actions.