Bankhead v McCarthy
| Jurisdiction | Scotland |
| Judgment Date | 08 February 1963 |
| Date | 08 February 1963 |
| Docket Number | No. 29. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Walker.
Reparation—Negligence—Contributory negligence of passenger in car—Alleged duty not to travel with driver who had been drinking—Relevancy.
A passenger in a car was injured when the driver of the car was involved in a collision with a stationary car. The driver had, to the passenger's knowledge, been drinking before he drove the car. The passenger brought an action of damages against the driver founded on negligence. The defender pleaded contributory negligence on the footing, inter alia, that, if the defender's drinking caused the accident, the pursuer, being aware that he had been drinking, had a duty not to travel in a car driven by him. The pursuer pleaded that these averments were irrelevant.
Held by the Lord Ordinary (Walker) that the pursuer's alleged knowledge could not have contributed materially to cause the accident which he suffered, since his accident would have been due to exactly the same causes irrespective of his state of knowledge; and accordingly that these averments of contributory negligence were irrelevant.
Andrew Bankhead, with the consent and concurrence of his father as his curator, brought an action of damages against John Francis M'Carthy for negligence arising out of an accident in which the pursuer was injured while a passenger in a car driven by the defender.
The circumstances are summarised in the rubric and are fully set forth in the opinion of the Lord Ordinary (Walker).
The defender's averments included the following:—(Ans. 3) "…Esto that the defender's consumption of alcohol had in any way caused or contributed to the said accident, which is denied, the injuries to the pursuer were materially contributed to by his own fault and negligence. It was his duty to have regard for his own safety. He was aware that the defender had been drinking alcoholic liquor. He was, or ought to have been, aware that the defender's control of the car was liable to be affected thereby. He should not have travelled with him in such circumstances. By his own failure in duty he materially contributed to any damage which he suffered."
The pursuer pleaded, inter alia:—"(1) The pursuer having...
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Winnik v Dick
...to give an opinion on the law on the subject; and appeal refused. Dann v. HamiltonELR [1939] 1 K.B. 509, Bankhead v. M'CarthySC1963 S.C. 263, M'Caig v. LanganUNK1964 S.L.T. 121, Wallace v. Culter Paper Mills Co. Ltd.UNK (1892) 19 R. 915, Smith v. Baxter & SonsELR [1891] A.C. 325, Stewart's ......