Time bar

Winsborough v Mullan & CIS General Insurance Ltd February 2010

The claimant sought damages arising from a road traffic accident. The insurers admitted liability and made an interim payment. The claimant’s solicitors subsequently issued court proceedings a month after the claimant’s right of action had become time barred in terms of s.17 of the Prescription and Limitation (Scotland) Act 1973. The claimant’s solicitors admitted their negligence in not raising the court action timeously, but sought to rely upon the court exercising its discretion in terms of s.19A of the 1973 Act in the claimant’s favour and allowing the court action to proceed. At first instance, the court found in favour of the claimant and held that the prejudice to the insurers was minor and that that the time bar was a ‘windfall’ to them.

The insurers appealed to the Sheriff Principal and were successful in arguing that the claimant’s ‘cast iron case’ against his solicitors for negligence mitigated any prejudice that he may have in losing his right of action against the insurers. The claimant had also argued that the court should take into account that he would lose his right to claim interim and provisional damages, should the insurers succeed, neither of these being available in claims for professional negligence. The appeal court noted that the claimant had already received interim payments and, in any event, as his solicitors had admitted liability, his case should be capable of a quick resolution. With regard to provisional damages, the court considered that there was an insufficient basis for such a claim.  The claimant has now marked a further appeal to the Court of Session.

Scottish Whiplash Case Law Update

Simpson v Barlas September 2009 (unreported)

The claimant sustained muscular injuries to her back and neck and severe contusions over her stomach. Back and neck strains were symptomatic for around four months. Bruising to her breast was visible for around ten weeks post accident and she suffered from breathlessness for three months post accident which was expected to fully clear within nine months. She experienced travel anxiety and loss of confidence. The court awarded general damages of £3,800.

Noble v Barlas September 2009 (unreported)

The claimant sustained muscular injuries to his back and neck, bruising on his arms and legs and contusions on his chest. The back and neck strains were symptomatic for a period of four months post accident. The bruising caused tenderness over his chest, arms and legs for around two months.  The court awarded general damages of £2,700.

McKenna v Aitchieson November 2009 

The claimant sustained whiplash injuries after a road traffic accident. These injuries caused an exacerbation of an underlying cervical spondylosis condition and full recovery would take place twenty six months after the date of the accident. General damages were awarded of £3,750. 

For a link to the full judgement please click here

Skillen v NIG Ltd December 2009

The claimant sustained soft tissue injuries to her back and neck.  She made a full recovery within ten months. She had suffered from pre-existing degenerative changes of the lumbar spine. Having regard to the JSB Guidelines, the court awarded general damages at  £1,800. 

For a link to the full judgement please click here

The last two decisions are worthy of particular comment as the court clearly stated that JSB Guidelines are to be the starting point in determining general damages in preference to the selective reference to unreported authorities, as can be the practice of some claimant law firms.  It is to be hoped that these cases begin to redress the balance in such cases and reduce the level of damages awarded for whiplash claims as Scottish courts have historically awarded higher damages (as demonstrated in the Barlas cases) than the levels recommended in the JSB Guidelines.

Credit Hire

As in England, credit hire continues to be an evolving area in Scotland. Up until recently there had been little Scottish case law available. However, with the increase of such claims in Scotland, insurers have adopted a willingness to challenge these in court, albeit with mixed success thus far.

Duncan v City of Edinburgh Council November 2009

Following a road traffic accident, the claimant sought recovery for the cost of credit hire, repairs and an engineer’s report. The defendants argued that the claimant was not entitled to recover the full credit hire charges insofar as these exceeded spot hire rates.  The court held that the claimant was entitled to recover the full credit hire charges as he had not acted unreasonably in allowing himself to be guided by his insurance company when referred to the credit hire company. Nor was he obliged to engage in a wide ranging search to find an alternative hire company with the most competitive rates.

For a link to the full judgement please click here

Tkachuk v Stevenson February 2010 (unreported)

The claimant, a professional rugby player, sought to recover the cost of credit hire from the defendant after his vehicle had been damaged in a road traffic accident. The claimant had been advised by the credit hire company that he would not have to pay for the hire. The credit hire agreement did not specify the rates being charged. The court held that the claimant was entitled to hire an alternative vehicle; however, he could only do so from a credit hire company if he was impecunious and did not have the financial means to hire at spot rates. Following an analysis of the claimant’s finances, the court held that it was not too onerous for the claimant to use his savings or credit card and therefore he had not suffered a loss. The defendant also led expert evidence on spot rates which demonstrated the availability of vehicles on hire within the local market. The court found that had an award been made, the claimant would only be able to recover damages assessed by reference to the spot market rates.

Road traffic – Liability – No collision

Brookes v First Aberdeen Ltd February 2010

The claimant was driving his scooter in the opposite direction to an oncoming bus. The bus was overtaking parked cars as the claimant approached.  The claimant drove on, starting to pass the bus but fell off his scooter in the process. The claimant alleged that the accident was caused by the defendants' bus which was straddling two lanes. As the bus approached the claimant, the bus driver did not slow down or take evasive action. To avoid colliding with the bus the claimant had to swerve, which caused him to fall off his scooter. The court held that the defendants were not to blame for the accident as (a) the two drivers were able to see each other for some time before they began to pass each other, (b) when the claimant first saw the bus, it was well established in its overtaking manoeuvre, which constituted an acceptable course to follow, (c) the claimant should have slowed down and, if necessary, stopped to allow the bus to complete its overtaking manoeuvre, and (d) there was sufficient space in the gap between the offside of the bus and the pavement for the claimant to pass safely.

For a link to the full judgement please click here

Further Information

For further information on this or any other insurance litigation issue, please contact Andrew Lothian or Douglas Keir or your usual contact within the Insurance Litigation team.  

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.