To Mr Dour Maclean, WS.
Case ref: OMGKDR-160920015
Client Mr Kenneth Dale-Risk
This is a personal injury and damages claim. The client is 40-year-old male. He works as a free-lance opera critic and journalist. The claim concerns a car accident. On the 18th August 2014 a car driven by the defendant Dr. Lesley-Anne Macfarlane hit him. Mr. Dale-Risk was cycling up Colinton Road in Edinburgh. The weather conditions were poor with a wet surface on the road. Witness report states that the car swerved due to the sudden appearance of a dog and two children on the road. When the accident occurred Mr. Dale-Risk was on his way to an interview with a celebrity who does not give interviews often. Unfortunately, due to these circumstances, he did not manage to attend the interview and due to that he lost an important career opportunity, as well as commission for the article in question. His commission amounted to £1,000. Resultant injuries were: abrasions to forehead and left cheek, fractured collar bone, painful left arm and limited movements in left hand, fracture to left arm orbit. His bike was damaged.
The pursuer’s claim is based on the defenders breach of common law duty to take reasonable care for the safety of other road users, to keep their vehicle under control, and to prevent their vehicle from colliding with other vehicles. Summary cause case will be raised as a personal injury claim caused by defender’s contributory negligence1. The presence of the dog and children on the street is the causal link. Generally children should not be expected to consider taking the same level of precautions as an adult but may be held liable.2In regards to the dog, there is a strict liability on damage caused by animals under Animals Act 1971 c. 22. The owner is fully liable for any damage caused by the animal. Dog’s owner was clearly negligent, given the children could not control the animal. As a result the dog’s escaped into the road causing the vehicle loss of control and the injuries.3
In regards to the driver, to a certain extent a prudent driver would have noticed other road users, including cyclists. There is not obligation to be prepared for every possible scenario that can happen on the road. It is expected, however, that a driver will notice when another person creates a potential danger. Otherwise, he or she fails to exercise reasonable control4. The defender made an error of judgment that was outside of the range of reasonable responses when she maneuvered her car in such a way as to cause Mr. Dale-Risk to fall off his bike.5 There was a range of possible reactions to the presence of the dog on the road. The defendant could have used the horn to scare the dog and make the cyclist aware of the hazard or make an emergency stop etc. This may qualify under Road Traffic Act 1988 s. 3 - careless and inconsiderate driving.
Lack of helmet is considered to be contributory to a cyclist's head injury. There is a direct causal link between the head injury and lack of helmet. There is the possibility that there would be no concussion if the client were wearing a helmet.6 That is despite there being no legal requirement for cyclists to wear helmets. It is obvious that lack of head protection is exposing the cyclist to greater injury. Any such injury sustained may be the cyclist's own fault. Mr. Dale-Risk however, suffered only a mild concussion. The accident still would have happened if he were the wearing the helmet so the remaining abrasions still stand as the result of negligence of the driver, and the dog owner.
The application will include claim for damages, loss of congenial employment, loss of earnings and damage to property. Solatium will aim to cover aspect of remuneration for pain, abrasions, and fractures. Loss of congenial employment will be claimed as the client missed on an important job opportunity due to the accident. There will also be loss of £1,000 commission, which would have been earned on the submission of the interview that the client was on his way to. Lastly, the client should be reimbursed for loss of clothing and his bike. This will be claimed at the value at the time of the accident rather than retail price.
I would strongly advise the client to determine the identity of the dog owner as the payment awarded, if any, from the claim against Dr. Lesley-Anne Macfarlane of the vehicle may not be as great as expected. It is clearly a case of contributory negligence with the main cause being the unpredictable animal. Also, it should be explained to the client that there is no strict liability in Scotland on accidents involving cyclist.
Summary cause will be submitted to the Sheriff Court in Edinburgh outlining details of the case. Lodging a summons action for sums of money over £200 will cost the pursuer £73. Appeal costs £56. Service of summons to the defender costs £11 on top of the sheriff officer’s fee. There might be additional charges depending on the sheriff clerk office. Fees are outlined in Scottish Statutory Instruments (referred to as Fee Orders). It is possible to apply for fee exemption providing the client or his spouse is in receipt of one of the state benefits outlined by the court. The unsuccessful party must pay the expenses.
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