With thanks to Lauren Sutherland QC for drawing atention to an interesting apportionment decision involving a motor accident insurer and two hospitals: Widdowson & Ors v Liberty Insurance Limited, NHS Grampian & NHS Highland [2021] CSOH 15 (available on the Scottish Courts website).
Mr Widdowson was seriously injured in a road traffic accident and later died. The proceedings named the insurer for the negligent driver and also the National Health Services responsible for two hospitals to which Mr Widdowson had been taken for care. The insurer and the two NHS organisations admitted liability and damages were agreed, so the Court was called upon only to deal with apportionment as between the three defendants.
The parties were not in dispute as to the correct approach to be taken, described in an earlier Court of Appeal decision of Downs as follows: “The extent of a person’s responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance”. ([45]).
The court held ([46]) that ultimately it is indisputable that issues of relative blameworthiness and causal effect are essentially matters of fact, direct or inferred. If the court finds itself unable to apportion with reasonable precision, it has been said that the burden should then be shared equally.
Absent the negligent omissions of the second and third defendants, Mr Widdowson would on balance have survived his serious injuries ([54]). However the first defendant’s insured acted in a way that was by far the most culpable and which the Court categorised as extremely reckless ([59]).
The Court apportioned 70% to the first defendant (the insurer for the negligent driver) and 15% to each NHS.