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Dale McFarlane v. Barry Thain & James Campbell & The Motor Insurers Bureau [2007] CSOH 176


Personal Injury - Proof Before Answer:- On 17 June 1999 the pursuer was the pillion passenger on a motor cycle being driven by is friend, the first defender, who was uninsured. The motor cyle collided with a motor car being driven by a 67 year old man, the second defender. Due to the first defender not being insured the Motor Insurers Bureau entered the proceedings as minuters. As a result of the crash the pursuer was thrown some distance from the motor cylce, his crash helmet came off and he suffered a head injury and a broken leg. The MIB disputed liability on the ground that the pursuer had known that the motorcyclist was uninsured, unlicensed and had been drinking before the accident. Further, both the second defender and the MIB plead contributory negligence on the part of the pursuer as the pursuer failed in his duty to wear a properly fastened crash helmet. A proof before answer took place on the issue of liability. Here the court considered the evidence that was led and formed the view that the primary cause of the accident was the speed at which the motor cycle was travelling having regard to the particular circumstances and inherent hazards at the locus at the time of the accident. In addition, the court considered what, if any, blame was to be attributed to the second defender. The court also considered the issue of contributory negligence particularly in light of the evidence that was led in relation to the pursuers unfastened crash helmet.