Jackson v Murray and another

Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, responsibility for damage is apportioned by a broad assessment of the parties’ relative blameworthiness and the causative potency of their conduct. The assessment is necessarily imprecise, and more than one result may be just and equitable.

An appellate court may intervene where the lower court made an identifiable error. Without such an error, intervention is justified only when the apportionment falls outside the range of reasonable disagreement. In a collision between a motorist and a pedestrian, the destructive potential of a vehicle driven at speed may increase the driver’s blameworthiness. The pedestrian’s age, judgment and circumstances are also relevant.

Jackson v Murray and another concerned a 13-year-old pedestrian who suffered severe injuries after emerging from behind a school minibus and being struck by the defender’s car. The Lord Ordinary found that the defender had approached the bus too quickly and without keeping a proper look-out. He nevertheless assessed the pursuer’s contributory negligence at 90%.

The Extra Division of the Inner House allowed the pursuer’s appeal and reduced her share to 70%: [2012] CSIH 100. The pursuer appealed further. The Supreme Court had to determine whether contributory negligence had been established, how responsibility should be apportioned under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, and when an appellate court may disturb a lower court’s apportionment.

1. Appeal allowed by a majority. Lord Reed, with whom Lady Hale and Lord Carnwath agreed, held that the pursuer was entitled to 50% of the agreed damages. The finding of contributory negligence remained justified, but the Inner House’s attribution of 70% responsibility to the pursuer was outside the permissible range.

2. The Lord Ordinary’s unchallenged findings established that the pursuer either failed to look to her left within a reasonable time before entering the road or failed to react sensibly to the defender’s nearby car. Those alternatives provided a sufficient basis for contributory negligence.

3. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 requires a just and equitable reduction having regard to the claimant’s share of responsibility for the damage. The court must assess both relative blameworthiness and the relative importance of the parties’ conduct in causing the damage. These considerations are incommensurable and incapable of precise measurement. Apportionment is therefore a broad exercise of judgment within which several answers may reasonably be available.

4. An appellate court may intervene where the lower court made an identifiable error of law, considered an irrelevant matter, overlooked a relevant matter or misapprehended the facts. Without such an error, a different preferred figure is insufficient. Intervention is warranted only where the lower court’s apportionment lies outside the generous ambit of reasonable disagreement.

5. The defender’s excessive speed and failure to keep a proper look-out were at least as causatively potent as the pursuer’s attempt to cross. His conduct was also at least equally blameworthy. The destructive potential of a car driven at speed was relevant to blameworthiness. Conversely, the pursuer was 13, and her judgment and self-control could not be equated with those of an adult. The difference between equal responsibility and assigning a major share to the pursuer was sufficiently wide to justify appellate intervention.

6. Lord Hodge, with whom Lord Wilson agreed, dissented as to the application of the agreed principles. He considered that the pursuer’s very serious carelessness entitled the Inner House to assign her the greater share of responsibility. Since its assessment remained within the limits of reasonable disagreement, he would have dismissed the appeal.

• United Kingdom Supreme Court: By a majority, the court allowed the appeal in [2015] UKSC 5, displaced the 70% assessment and awarded the pursuer 50% of the agreed damages.
• Inner House of the Court of Session: The Extra Division allowed the pursuer’s appeal and reduced her contributory negligence from 90% to 70%: [2012] CSIH 100.
• Outer House of the Court of Session: The Lord Ordinary found the defender negligent but assessed the pursuer’s contributory negligence at 90%.