Supreme Court assesses contributory negligence in Scottish pedestrian claim
Jackson v Murray & Anor (Scotland)
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.
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%.
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:
What principles should govern the review of an apportionment by an appellate court? and
How should responsibility be apportioned in a case of this kind?
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.
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