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Anthony Cowling v Liverpool Victoria Insurance Company Limited [2013] CSOH 49 26/03/2013


Proof: Action for damages arising out of a road traffic accident. The defenders were the insurers of Mr Smith. Mr smith was stationary in his car at the bottom of a steep road in icy conditions on the right hand side of the road. The pursuer descended the road from the opposite direction and lost control, hitting a wall and rolling his car. The pursuer averred that he swerved to avoid Mr Smith's car. He averred that the defender was at fault for bringing his vehicle to a halt at that particular position on the road at the bottom of a steep icy road. The defenders averred that the pursuer was travelling too fast in the circumstances and that he failed to control his vehicle. Found in fact: Mr Smith had tried to negotiate the hill and had faced problems. He had reversed back and pulled his car into the right hand side of the road as far in as he could. Held: There was no lack of reasonable care on the part of Mr Smith. He made a decision which was a reasonable option, among others, to take. The position of Mr Smith was a sine qua non and not the causa causans. The defenders were assoilzied. Observed: had the defender been negligent, the pursuer would have been found 75% contributorily negligent.