Scotland's High Court, the Court of Session, has revisited the issue of causative potency in pedestrian versus vehicle accident. 

In the case of McCreery v Letson it split liability 50:50 where it was held that the actions of each party contributed equally to the accident.


Earlier this year, the Supreme Court heard an appeal from the Inner House of the Court of Session on whether the assessment of contributory negligence in a pedestrian road traffic accident was reasonable. The judge hearing the original proof (trial) in the Outer House applied a deduction of 90% to reflect the extent to which the pedestrian (Lesley Jackson) caused her own accident. This was reduced to 70% by the Inner House and then to 50% by the Supreme Court. The issue arose again in another Court of Session case, McCreery v Letson last month.

Facts & Circumstances

The pursuer, Ms McCreery, had travelled by bus to the Royal Dundee Liff Hospital. On arrival at the hospital, the bus pulled in at a stop directly opposite the entrance and behind a parked lorry. The pursuer alighted, walked behind the bus and started to cross the road towards the hospital.

At that point she was struck by a van travelling in the opposite direction to the bus.


The pursuer did not give evidence as her injuries were such that she had no recollection of the accident; however, CCTV footage from the bus did capture her movements. Lord Bannatyne also heard from a number of other witnesses including a crash scene investigator and ultimately held that the van driver had been negligent as:

  • he did not react appropriately on seeing an earlier road sign warning of the potential of disabled persons crossing to reach the hospital entrance;
  • he did not appreciate the risk of someone, even foolishly, walking out from behind the bus and crossing the road; and
  • he did not consider these risks even though his vision of the bus stop and any persons crossing the road was limited by the parked lorry.

In failing to take account of the above, Lord Bannatyne held that the van driver did not reduce his speed as he should have. Primary liability therefore attached.

Contributory Negligence

It was accepted on behalf of the pursuer that a finding of contributory negligence was unavoidable, given she had walked onto the road from behind the bus. However, the level of contributory negligence was in dispute. The pursuer's position was that contributory negligence should be no more than one third and the defenders' position was that it should be more than 70%.

The legislation allowing for a finding of contributory negligence (the Law Reform (Contributory Negligence) Act 1945) does not offer any guidance as to how responsibility should be apportioned and the Supreme Court considered this very issue in Jackson v Murray mentioned above. Lord Bannatyne was referred to this case and, in particular, to the considerations to be had when apportioning liability between the pursuer and any defender.

In Jackson v Murray the Supreme Court reviewed the guidance in previous case law and highlighted two key aspects for apportioning liability: the respective "causative potency" of what was done and the respective "blameworthiness" of the parties.

Respective Causative Potency

Lord Bannatyne agreed with the comments in Jackson and prior cases that, when considering this issue in the context of a road traffic accident, the vastly different potential for causing destruction by a pedestrian and a vehicle driver should be taken into account.

Respective Blameworthiness of Parties

The fact that a vehicle driver will normally, however, have the potential to cause more damage than a pedestrian, is not the only matter for consideration. In this case, both the pursuer's foolish decision to cross the road at this point and the driver's decision not to slow down to account for the hazards of the road had equally caused the accident. Without both factors, the accident would not have occurred.

Lord Bannatyne held in situations like this, a finding of 50:50 apportionment was appropriate. This meant that Ms McCreery's damages would be reduced by 50%.

Key Points

  • When apportioning liability, the courts will consider the respective causative potency of what was done as well as the respective blameworthiness of parties. This means that in accidents involving pedestrians, the potential for a vehicle driver to cause more damage than the pedestrian will be a relevant factor.
  • Where both parties' actions have equally caused the accident, liability should be 50:50. Every case will, however, turn on its own facts.
  • In this case, it is important to note that even though the van driver was found to be driving within the speed limit for the road, it was held that he should have slowed down on approach to the hospital entrance in the knowledge that there may be persons crossing the road at that point.

The judge also held that a driver has a duty to take account of the potential for someone (as in Jackson v Murray) doing something foolish, like walking out from behind a bus.


Gemma Nicholson

Senior Associate