The Keoghs Scotland team has successfully defended a pedestrian claim for our client Right Choice Insurance Broker on behalf of their insured client. The trial, held in the All-Scotland Sheriff Personal Injury Court at Edinburgh, lasted three days and we successfully argued that the pursuer had failed to prove that the accident was caused by the fault and negligence of the insured.
On 4 February 2020 Mr S, the first defender and insured, had finished work for the day and was leaving his work car park to return home. He exited the car park and turned right on to a side street. He was able to see over the fence of the car park and saw no moving vehicles or pedestrians, although there were some parked vehicles on either side of the street. The pursuer emerged from the insured’s right-hand side and came into contact with the offside of the vehicle; the first point of contact was around the wheel arch before striking the offside wing mirror and striking the top corner of the front windscreen, causing it to crack. The pursuer sustained a fracture of the fifth metatarsal bone in his right foot, lacerations to the scalp and was admitted to hospital. The pursuer also alleged they had suffered from a psychiatric and neurological injury as a result of the accident. Prior to the accident the pursuer had consumed alcohol and drugs, which were also found in his possession, and the pursuer was affected by both at the time of the accident.
An action was raised in November 2022, against the insured and their insurer, for £60,000.00 plus interest and proceeded to trial from 29 April to 1 May 2025.
The court heard from the pursuer and two police officers who attended the accident. The court also heard from four of the pursuer’s skilled witnesses; a forensic collision expert and three medical experts (orthopaedic, psychiatric, and neurological consultants). The defenders only called upon their insured, Mr S.
The pursuer’s case was that they were already crossing the side street when the collision occurred and so they were there to be seen. It was argued that the insured had failed to adhere to the Highway Code, drive carefully and slowly at a road junction, give way to a pedestrian, and pay attention to the road ahead. The defender’s primary position was that the pursuer was fully at fault for the accident and there was a secondary position of contributory negligence.
Having heard evidence over three days and making various findings in fact – including crucially that the insured had not breached any duties of care to the pursuer – the court found the insured was not negligent in any way and that the pursuer’s case failed.
The court’s decision was split into three parts: (i) liability, (ii) contributory negligence, and (iii) quantum.
The court found:
i. Liability
The pursuer, having no memory of the accident, was generally an incredible and unreliable witness. His evidence of only having consumed two bottles of beer was contradicted by the evidence of his intoxication and the freshly broken bottle of tonic wine found at the locus, which the court found likely to be linked to the pursuer.
In contrast, the first defender was a credible and substantially reliable witness. However, even without his oral evidence, the evidence of the police officers and photographs indicated that the accident occurred prior to the natural crossing point, where the pursuer alleged the accident occurred.
ii. Contributory negligence
Had the court found the insured had breached their duties to the pursuer, namely keeping a proper lookout, then the court would have found the insured responsible for at least 50%.
The question of contributory negligence was difficult to fix upon as the court had not heard evidence of what caused the pursuer to come out into the side road and hit the insured’s car.
Had the pursuer been keeping a proper lookout for other road users and where he was placing his feet, the accident may not have occurred.
iii. Quantum
The reporting of the pursuer’s injuries was untrue, and each medical expert had been provided with a substantially inaccurate view of the injuries he suffered, whether as a result of deliberate untruthfulness or an inability to separate fact from fiction.
The court did not accept the evidence of the pursuer’s psychiatric or neurological consultant, albeit for different reasons.
The psychiatric consultant’s evidence was that the pursuer suffered from an adjustment disorder as a result of the accident. The court found the psychiatrist was too accepting of what the pursuer had to say and too limited in exploring the pursuer’s prior psychiatric history.
Regarding the minor brain injury, the court heard evidence that the neurologist examined the pursuer some four years after the accident. Evidence was also heard that the pursuer’s low readings on the Glasgow Coma Scale were mainly ascribed to his alcohol intoxication.
The judgment shows that, while each case is dependent on its own facts and merits, pedestrian cases can be successfully defended. It also highlights the importance in properly scrutinising medical experts’ diagnoses without necessarily considering the accuracy of a pursuer’s reporting and their prior medical history.
Andrew Agnew, Solicitor, Keoghs Scotland, who ran the successful defence to trial, said:
“This is a great result for our client, Right Choice. Too often pedestrian claims are seen as being an upward struggle with little to no prospects of success. A broadbrush approach of ‘it is more economic to settle’ send the wrong message to the claimant market when you have a strong defence, as we did in this case. It’s important to consider each case on their own factual circumstances before proceeding to defend to trial. This case goes to show that the right strategy can achieve success in pedestrian cases.”
Right Choice Insurance Brokers were represented by Craig Murray KC at the trial. Claims Director at Right Choice Insurance Brokers Robert Williams added:
“This is a tremendous result for Right Choice Insurance Brokers, our insurer partner, our policyholders, and Keoghs Scotland. The judgment is significant in that it will send a message out that pedestrian cases can be successfully defended. At Right Choice Insurance Brokers, our industry-leading Validation, Claims/Indemnity Hub and working alongside solid partners such as Keoghs, equips us to ensure we protect our insurer partners and insured policyholders from an increasingly challenging insurance landscape. This result is just one example of this.”
If you would like to discuss anything mentioned above further, please get in touch.
Andrew Agnew - Solicitor
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