Rachel Davis v. (1) John Catto & (2) CIS General Insurance Limited and Stephen Skinner [2010] CSOH 93

In March 2006, the first defender was driving his vehicle at speed on the A832, lost control of the car and was involved in an accident after the vehicle overturned. The pursuer sustained serious injuries as a result of the accident. The loss of control occurred at a time when the first defender had overtaken another vehicle, driven by the third party to this action.

The second defenders were the insurers of the first defender, and had admitted liability to make reparation. A proof was conducted to ascertain whether the defenders had a right of contribution from the third party, on the basis that the third party was a joint wrongdoer under section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.

Evidence was elicited from the passenger in the back seat of the third party's vehicle, along with the evidence from the third party himself. Both were professional footballers for Ross County FC, who travelling to Inverness at the time of the incident. Accident and reconstruction evidence was additionally led from experts and the police force.

The court found both eyewitnesses to be unimpressive, noting that the third party had a clear financial motive to minimise his responsibility for the accident. The court found that the third party's evidence on a number of key factors in the accident (particularly that he was driving at less than 70mph at the time of overtake of the first defender's vehicle), to be contradicted by evidence from two expert sources, and was consequently unreliable.

While the court concluded that it was clear both vehicles were driving at excessive speeds, it was possible to infer from the evidence that the vehicles were engaged in racing or competing. The court found that the third party attempted a manoeuvre at grossly excessive speed, without slowing down, and to that extent, failed in his duty of care. Accordingly, the court found the third party must bear some responsibility for his part in the accident, and found the defenders entitled to recover a contribution of twenty per cent of any damages paid to the pursuer.