Issue 39 October 2021 - Journal - Page 64
any point time there was as a matter of fact a sightline
available to the driver of the van to the pursuer lying
on the roadway.”
Lord Carloway found that “the locus of the libel was the
place at which the pursuer was injured. It is wide enough to
encompass the nature of the first defender's driving as he approached that point”. Driving too close to the taxi “was
one aspect falling within the general libel of driving without
due care and attention and failing to notice the pursuer”.
The pursuer appealed the judgment on the grounds
1, The reverse onus of proof was flawed; the charge in
fact focused on the quality of the defender’s driving
rather than the driving at the location of the incident.
Driving so close behind another vehicle in the early
hours of the morning, in an area of town and at a time
when drunk pedestrians may be using the road was
not reasonable behaviour when such hazards might
be harder to spot and therefore need more time to
react to. To that end, “drivers are not entitled to assume
that other users of the road will do so with reasonable care”.
2, The Lord Ordinary had made material errors of
fact; failed to record and to consider relevant evidence; and set out evidence which had not been led at
The appeal was allowed. The Court held that the “the
accident was caused by the fault and negligence of the first
defender and that the second defenders are vicariously liable
Lord Carloway criticised the lack of comparison
between the two key witness’ accounts as well as the
lack of consideration for the defender’s driving behaviour while following the taxi as part of his duty of
care as a driver.
Through a misunderstanding of evidence and failure
to consider relevant witness evidence, the Lord Ordinary had “reached a conclusion which cannot reasonably be
explained or justified”.
Concluding, Lord Carloway discussed the issue contributory negligence, which had not been addressed
previously by the Lord Ordinary. The Court apportioned 65% fault to the pursuer and 35% to the defenders, as there was “no difficulty in holding that the
greater fault lay with the pursuer”.
There had been a failure to pay enough attention to
the guilty plea and account coming from the first
defender himself. “The tendering of a plea of guilty…
amounted to a clear and unequivocal judicial admission that
his negligence had been the cause of the injuries to the
Mr Francis Morris
What can we learn?
- Facing a reverse onus of proof remains “an uphill
task”, the court will address inconsistencies in key
FRCEM, FRCP, FRCS.
Expert in Emergency Medicine
Francis Morris is an Expert in Emergency Medicine (A & E) living and working Sheffield specialising in clinical negligence work.
He qualified in 1982 and has over 30 years experience in Emergency Medicine. He was Clinical Director in Sheffield from 1997 to 2016 and
oversaw the Emergency Department, Minor Injuries Unit, the Major Trauma Centre and the department of Acute Medicine.
In April 2017, his role as a Consultant changed to focus exclusively on clinical governance and risk. He was responsible for investigating all
clinical incidents, claims and some complaints and reducing risk in the Emergency Department and Major Trauma Centre at Sheffield Teaching
Hospitals. This role involved interviewing staff and patients to identify the root cause of errors allowing the completion of Serious Untoward
Incident (SUI) reports for families and the Coroner. Mr Morris retired from the NHS in 2021 but has an ongoing role teaching ED clinicians and
has been preparing clinical negligence reports for the past 29 years and estimates that he has produced over 4000 reports to date. Francis
Morris is the author of seven books on Emergency Medicine and regularly talks at medico-legal conferences.
He has participated in multiple Case Conferences and has prepared many joint statements with other experts and given evidence in the County,
High and Coroners court as recently as September 2021.
The reports he has completed over the last 29 years include:
Most frequent (20 plus)
Cauda Equina/back pain
Soft tissue infections
Acute knee injuries (especially ACL rupture)
Deep venous thrombosis
Achilles tendon rupture
Frequent (10 plus)
Contact: Francis Morris
Alternate Email: email@example.com
Address: 145 Rustlings Rd, Sheffield, S11 7AB
Area of work: UK and Ireland
EXPERT WITNESS JOURNAL
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