Contributory negligence: precedents unlikely

How contributory negligence should be assessed was considered by the Inner House in Wagner v Grant and Arla Foods UK plc [2016] CSIH 34, following an appeal by the defenders against the decision at first instance to hold them liable for a road traffic accident. They argued that, even if they were liable, the assessment of contributory negligence at 40% had been too low. The pursuer’s motorcycle had collided with a milk tanker driven by the second defenders’ employee as it reversed into a farm road. The accident occurred at night on a B class road. On his approach to the locus, the pursuer had had an unobstructed view of the farm road entrance for several hundred metres.

The Inner House confirmed that the Lord Ordinary had been entitled to find the defenders liable as the manoeuvre carried out by the tanker had been inherently dangerous. However, his decision on contributory negligence did not give any indication that he had assessed the causative potency or blameworthiness of the pursuer’s actions. The pursuer’s failure to keep a proper lookout, to see the tanker and to slow down or stop was significantly greater than 40% and a figure of 60% was substituted.

The court further suggested that it would rarely be appropriate in RTA cases to assess contributory negligence by reference to previous decisions, and that causative potency and blameworthiness must both be considered in the context of each case.