A question that will often be asked by clients is if they are partly to blame for their accident, can they still claim damages? In law, this is known as contributory negligence.
Contributory negligence is determined on a case-by-case basis. If there is a finding of contributory negligence, there is a deduction made to the pursuer’s settlement award.
The recent case of Dick v Merrick, [2024] CSOH 39 is one such case where contributory negligence was considered by the Court.
This case involved two cyclists who were travelling on a shared pedestrian/cyclist path between Linwood and Johnstone when they collided. Both parties were injured, however, the pursuer was very seriously injured as a result.
The pursuer alleged that the collision occurred because of the defender attempting to overtake a third-party cyclist at speed.
The defender alleged the pursuer suddenly emerged from a junction and caused the collision. He stated that when he overtook the third-party cyclist, the path ahead was clear.
There was an independent witness who was not familiar with the road and could not recall the accident in detail. He could however say that the accident occurred “just seconds” after the defender overtook him.
Photo of the accident location
The court held that the pursuer was liable for his injuries to the extent of 50%. This meant the pursuer’s settlement would be reduced by 50% to reflect his share of fault for causing the accident.
When considering whether the pursuer should be held liable, wholly or partially, for the accident, the court stated that, whilst the injury suffered by the pursuer was caused by the defender, the pursuer in fact materially contributed to the collision and neither party could be held more at fault than the other given the differing versions of events, the damage to the bikes and lack of evidence to the contrary.
In summary, while a pursuer may be held to blame for the injuries they sustained in an accident, the deduction made is determined by the court which considers the evidence with reference to the circumstances of the accident and the different versions of events.
However, each case turns on its own set of facts and two similar cases may result in different outcomes. If you have any doubts over whether you have a claim, even if you think you have contributed to the accident having happened, you can contact us to get advice on 0800 988 8082 or complete our online enquiry form.
