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The varied dangers of being a vulnerable road user – Scottish legal insights on road traffic accident claims

17/12/21. Motorcyclists are generally more at risk on the roads than a person travelling a car, van or lorry. They are more exposed on the open road.

Cars have airbags which are built in that will come into force if there is a collision. A person travelling in a car, van or lorry are protected by a solid structure which could significantly reduce the risk of injury if they are involved in a collision.

For example, if a road traffic accident occurred between a large SUV and a motorcyclist, you would anticipate that the motorcyclist would suffer from more severe injuries. There is a greater risk to victims of a road collision to sustain greater harm if they are not at the time of the accident travelling a vehicle such as a car or a van.

The concept of contributory negligence is set out in 
Section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

The onus of providing that contributory negligence ought to apply will lie with the Defender. Generally, the decision will be based on the facts and circumstances of the case. In addition, whilst the above section describes the general idea of where contributory negligence would apply, it does not discuss how the responsibility should be apportioned between the parties. 

Common law has generally clarified two aspects of how to apportion the blame. These are: -

"causative potency" of each party and the "relative blameworthiness".


Causative potency and relative blameworthiness

Cases where causative potency and relative blameworthiness has been considered:-

Jackson v Murray

In this case, these two components were considered when apportioning causative potency and relative blameworthiness and were used to reduce a previous decision which found a pedestrian 90% liable for the accident, down to 50%.

This case concerned a 13-year-old schoolgirl, who alighted from a clearly marked school bus and proceeded to cross a rural two-way road from behind the school bus. As she began to cross the road, she was struck by a car.

She was thrown over the roof of the vehicle and landed behind it. The driver advised that at the time of the accident, he had been driving at around 50mphand had failed to slow down when he was approaching the minibus.  He had not thought that there would be children crossing the road at the time of the incident.

Hernandez v Acar   

Another case in which causative potency and relative blameworthiness was considered was the case of Hernandez v Acar. In this case, Mr Acar, his vehicle, which drove into the path of a motorcyclist.

The motorcyclist was thrown some 12 to 30 metres forward as a result of the collision. Tragically, Mr Hernandez suffered such severe injuries, he has been left paraplegic.

The motorcyclist had been travelling at 50mph in a 30mph zone, whilst Mr Acar had emerged from a junction when it was unsafe to do so.  The Highway Code states that extra care at junctions must be sought to watch out for motorcyclists, among other road users.

Both drivers were held at fault for the incident. Causative potency was considered to tip the case in favour of the motorcyclist. In collisions with other motor vehicles, it is the motorcycle who is more likely to suffer more severe injuries.

The motorcyclist was found 40% to blame, so he, was awarded 60% of the true value of his injuries, despite the fact that he had been travelling 50mph in a 30mph zone.

It is encouraging to see Courts recognising that motorcyclists and more vulnerable road users being supported by causative potency and relative blameworthiness. Previous cases have failed to recognise these components. Goad v Butcher which saw a speeding motorcyclist held entirely at fault for an accident, despite the fact that a tractor had cut a corner, resulting in his view of oncoming traffic being restricted.

These recent cases, in particular Jackson and Hernandez, highlight the Court’s acknowledgement of vulnerability of some road users and appropriately balance liability in the causative potency of accidents.

However, it is always important to take into consideration that each case is assessed on a case by case basis, and no two accidents are the same.

Jamie McGill is a Solicitor in the Personal Injury team at Calio Claims, based in Edinburgh. He has experience of litigating matters, including road traffic accident claims and accident at work claims, for pursuers in the Sheriff Courts, All-Scotland Personal Injury Court, and the Court of Session.

You can read more about road traffic accident claims law in Scotland in this guide here.

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