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Supreme Court assesses contributory negligence in Scottish pedestrian claim

Jackson v Murray & Anor (Scotland)
Supreme Court
18 February 2015

A seriously injured girl whose contributory negligence in a car accident was assessed at 70% in a decision of an Extra Division of the Inner House of the Court of Session and whose share of damages was calculated accordingly has won an appeal against the assessment by a majority of 3-2 in the UK Supreme Court. David Caine and Caroline Coyle examine the key findings in Jackson v Murray & Anor (2015) and consider what, if any lessons can be taken from the judgment.

Background

In 2004, Ms Jackson, the pursuer, was hit by a car driven by the defender. The pursuer, who was 13 at the time, alighted from her school bus and attempted to cross the road from behind the bus. The defender was driving at about 50mph in the opposite direction from where her school bus was stopped. The speed limit was 60mph and the defender had his lights on.  The pursuer was struck by the defender while she was crossing the road, sustaining serious injuries.

At first instance the Lord Ordinary assessed the pursuer’s contributory negligence at 90%.  The court held that the defender had failed to appreciate the risk of a child running out from behind the bus, such that he was not keeping a proper lookout, and that a reasonable speed would have been 30-40mph. However, it was the “reckless folly” of the pursuer which was considered to be the “principal cause” of the accident.   In 2012 on appeal, the Extra Division of the Inner House assessed her contributory negligence at 70%.

Supreme Court

On appeal the pursuer invited the Supreme Court to reduce the assessment of her contributory negligence even further. The central questions in the appeal were defined as follows:

  1. What principles should govern the review of an apportionment by an appellate court? and

  2. How should responsibility be apportioned in a case of this kind? 

Judgment

Lord Reed, along with Deputy President of the UKSC Lady Hale, Lord Wilson, Lord Carnwath and Lord Hodge allowed the appeal by a 3-2 majority and assessed contributory negligence at 50%.

Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 does not set out how responsibility is to be apportioned. Accordingly, common law has defined two aspects to such cases of apportionment: the causative potency of each party and relative blameworthiness.

Lord Reed acknowledged that there is no exact science to apportionment. Different judges may take different views on what is “just and equitable”, and these different views should be respected within the limits of reasonable disagreement.

Before interfering, the appellate court must be satisfied either that the court below has made a demonstrable error or it has gone beyond the range of decisions reasonably open to it. All of the Justices agreed on this approach but there was disagreement on its application in this case.

The minority considered that the decision of the Extra Division was not unreasonable. Lord Reed and the majority were of the view that the Extra Division did not provide a satisfactory explanation of their conclusion that the pursuer bore a larger share of the responsibility. Instead, they considered that the defender’s conduct played at least an equal role to that of the pursuer in causing the damage, and furthermore, he was at least as equally blameworthy. Accordingly, this difference in view from that of the Extra Division, that the parties were equally responsible, exceeded the ambit of reasonable disagreement and the appeal was allowed. 

Comment

Whilst the issue of apportionment in road traffic accident claims regularly makes its way to the first tier of appellate courts, it is extremely unusual for such a case to reach the Supreme Court.  The application of the Law Reform (Contributory Negligence) Act 1945 is, as Lord Reed put it, “a rough and ready exercise” and what better example can there be than a case where the Lord Ordinary, the Inner House and even the Supreme Court’s own panel reached such remarkably different assessments?

Although the defender saw his initial success before the Lord Ordinary significantly reduced, by the standards of most child versus car cases this was by no means a bad result from his perspective. There are scant few cases where a child has been found to have been at greater fault than a driver due to the same causative potency argument which worked in the pursuer’s favour in this appeal.  Whilst the Inner House felt that the pursuer’s blameworthiness was enough to tip the scales against her, the Supreme Court disagreed and aside from rare cases such as Morales v Ecclestone (1990) CA and Willbye v Gibbons(1997) CA, both of which involved reductions of damages in the order of 75%, it is difficult to identify examples where the courts have found a child to have been more at fault than a driver.

Given the fact sensitive nature of such cases, the apportionment figures themselves are of secondary interest to the guidance on when an appellate court will interfere with a first instance decision. However, it is often said that a fair settlement is one where both parties feel they have been hard done to and this case is a helpful reminder that the same adage can be applied to decisions made at trial. Where one party walks away with a surprisingly fortuitous result, an appeal will likely follow. The fact that this first instance decision was reversed not once but twice is encouragement to both pursuers and defenders to appeal decisions which in their opinion appear particularly harsh or unusual. It is also a reminder of how long such cases can continue as, in this example, the final judgment was handed down some 11 years after the original accident.

By David Caine

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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