UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

The opening paragraph of Lord Reed’s leading judgment allowing the appellant’s appeal in Jackson v Murray sets the scene for what follows:

“A school minibus draws up on a country road on a winter’s evening. Two children get off. One of the children tries to cross the road. She steps out from behind the minibus, into the path of an oncoming car. The driver is driving too fast: he has seen the bus, but has made no allowance for the possibility that a child might attempt to cross in front of him. He is not keeping a proper look-out, and does not see her, but he is going too fast to have stopped in time even if he had seen her. His car hits the child, causing her to sustain severe injuries. If he had been driving at a reasonable speed, and had been keeping a proper look-out, he would not have hit her.”

The child involved was the pursuer and appellant, Ms Jackson. The driver was the defender, Mr Murray. When the case came to proof in the Court of Session before Lord Tyre the pursuer was successful in establishing liability on the part of the defender. However, the Lord Ordinary found Ms Jackson contributorily negligent to the extent of 90%. When Ms Jackson appealed to the Inner House that figure was reduced to 70%.

Further details and a summary of the decisions by the Lord Ordinary at first instance and the Inner House on appeal can be found in the Case Preview on this Blog.

The appeal

Ms Jackson appealed the decision of the Inner House to the Supreme Court. By the time of the appeal the value of her claim had been agreed at £2.25m so the sums at stake were substantial.

On appeal it was argued for the appellant that there should have been no finding of contributory negligence on the part of Ms Jackson at all or, alternatively, that the finding by the Inner House was still too high. The defenders originally cross-appealed on the basis that the Inner House had not been entitled to interfere with the Lord Ordinary’s original decision, but it seems that the cross-appeal was not insisted upon.

The Supreme Court allowed Ms Jackson’s appeal by a majority of 3-2. Lord Reed (with whom Lady Hale and Lord Carnwath agreed) gave the lead judgment allowing the appeal while Lord Hodge (with whom Lord Wilson agreed) would have dismissed the appeal.

Lord Reed identified the two questions which the Supreme Court was required to answer:

1. How should responsibility be apportioned in a case of this kind?
2. What principles should govern the review of an apportionment by an appellate court?

There was no real difference of opinion amongst the Justices as to the answers to those general questions but the application of the law to the facts of this specific case proved more troublesome. The differing views of Lord Reed and Lord Hodge as to which party should bear the greater share of the blame highlight the difficulties which practitioners face when advising clients as to the likely outcome of this kind of claim.

Should there have been any finding of contributory negligence?

The pursuer attempted to argue before the Supreme Court that the circumstances were such that there should have been no finding of contributory negligence against the pursuer at all. That was based on a suggestion that the pursuer had more than just traffic from her left to worry about and she may have looked left at an earlier stage but simply not appreciated the speed at which the defender was actually travelling.

The Supreme Court had little difficulty rejecting this argument. The unchallenged findings in fact of the Lord Ordinary stated that the pursuer either did not look to her left at all or failed to identify and react sensibly to the presence of the defender’s car. In any event, the Lord Ordinary had concluded that the defender was 30-40m away from the pursuer when she emerged from behind the bus and in those circumstances had she looked left within a reasonable time prior to stepping out she should have appreciated that it was unsafe to cross.

That left the two issues identified by Lord Reed to be considered.

The approach to apportionment

In his judgment Lord Reed reviews and approves some of the well-known authorities on s.1(1) of the Law Reform (Contributory Negligence) Act 1945 which deal with the proper approach to assessing the extent to which an injured party’s damages should be reduced.

He points out that the Act itself merely directs the court to have regard to a claimant’s share in the responsibility for the damage and to reduce the damages to such extent as the court thinks just and equitable. He approves the views expressed by Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663, 682 that, while the blameworthiness of the parties must be taken into account, it is also necessary to consider the relative importance of the claimant’s actions. In Baker v Willoughby [1970] AC 467 the House of Lords had confirmed that causation and blameworthiness were the two elements in any assessment of liability under the Act. It was in that case that Lord Reid stated that it was quite possible for a motorist to be very much more to blame than a pedestrian due to the fact that a pedestrian while crossing a road has to look left and right as well as forwards while a driver does not. In addition, the pedestrian is generally not posing a danger to anyone else whereas the consequences of a driver travelling at considerable speed relaxing his observation may be disastrous.

The more recent development of that approach by Hale LJ in Eagle v Chambers [2003] EWCA Civ was also cited approvingly by the Court. In that case Hale LJ found that the respective causative potency of the parties’ actions and their respective blameworthiness had to be considered when apportioning liability. In particular, the potential “destructive disparity” between a pedestrian and the driver of a vehicle meant that the courts placed a higher burden on drivers. That reflected the potentially dangerous nature of driving.

The Supreme Court’s decision now confirms that these cases, and perhaps most significantly the views of Hale LJ in Eagle v Chambers, set out the proper approach to apportionment.

Rough and ready apportionment and the ambit of reasonable disagreement

In recent judgments the Supreme Court has emphasised the limited role of a court of appeal when asked to review a judgment from a court below (see for example McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203). In the present case, the findings of the Lord Ordinary were not challenged. It was not suggested that he had made any identifiable error in his approach to the evidence nor had he made an error in law. How then should the Supreme Court deal with appeals on apportionment?

Lord Reed did point out that this situation would rarely arise in the Supreme Court. Permission to appeal was unlikely to be granted since such cases do not generally raise an arguable point of law of general public importance. This however was a Scottish case and (at least until s.117 of the Courts Reform (Scotland) Act 2014 is brought into force) permission is not required to appeal to the Supreme Court from the Inner House. In these circumstances Lord Reed accepted that the Supreme Court should approach the matter in the same way as any other court of appeal. Relying in particular on the views of Lord Fraser of Tullybelton in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 Lord Reed concluded:

“The question, therefore, is whether the court below went wrong. In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, or the failure to take account of a relevant matter, it is only a difference of view as to the apportionment of responsibility which exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong. In other words, in the absence of an identifiable error, the appellate court must be satisfied that the apportionment made by the court below was not one which was reasonably open to it.” [emphasis added]

Lord Reed is keen to make it clear that, as Lord Fraser of Tullybelton pointed out in G v G, it is not a question of whether the court below has “manifestly and to a substantial degree gone wrong” as was suggested by the Inner House in McCusker v Saveheat Cavity Wall Insulation Ltd 1987 SLT 24, 29. Any additional words of this kind merely add emphasis and do not modify the substance of the test.

The Supreme Court was acutely aware that that there is no way of arriving at a “demonstrably correct” apportionment in any case of this nature. Lord Reed explains that the difficulty is that the blameworthiness of a pursuer and defender are incommensurable. A defender has acted in breach of a duty owed to the pursuer while a pursuer has acted with a lack of regard for her own interests. As a result, “fault” in s.1(1) of the Act is being used in two different senses. Apportionment will inevitably be a “rough and ready” exercise and “a variety of possible answers can legitimately be given.” Different judges will take different views of the same facts.

When are the limits of reasonable disagreement exceeded?

The approach taken in Eagle v Chambers once again supplies the answer. The Supreme Court held that in an ‘absence of an identifiable error’ type of case an appeal court must focus not on the precise apportionment figure arrived at by the court below but on the question of whether the court has correctly identified the party who should bear the greater share of responsibility. The views of Hale LJ are expressly approved by the Supreme Court when Lord Reed confirms in his judgment that:

“…a finding as to which of the parties, if either, was the more responsible for the damage was different from a finding as to the precise extent of a less than 50% contribution. There was a qualitative difference between a finding of 60% contribution and a finding of 40% which was not so apparent in the quantitative difference between 40% and 20%.”

Assessing the Inner House decision

Clearly, in order to decide whether or not the Inner House had gone wrong in this particular case, the Supreme Court first had to reach its own view on apportionment. Only then could the court decide whether it was entitled to intervene. It is at this stage that the views of the majority and the minority part company.

Lord Reed found the Inner House’s choice of 70% puzzling given that they had considered that the defender’s behaviour was both “culpable to a substantial degree” and “causally significant”. They had rightly adopted the Eagle v Chambers view of a car as a potentially dangerous weapon. They had relied on this aspect to attribute greater causative potency to the driver whereas the Court of Appeal in Eagle had taken it into account when assessing blameworthiness but Lord Reed did not think that the overall assessment of responsibility should be affected by the heading under which this factor is taken into account. In any event:

“Even leaving out of account the potentially dangerous nature of a car being driven at speed, I would not have assessed the causative potency of the conduct of the defender as being any less than that of the pursuer.”

This was neither a classic ‘stepping out’ type of case (like Ehrari v Curry [2007] EWCA Civ 20) nor was it an Eagle v Chambers type case where the pedestrian was in the driver’s line of vision for long enough to have easily avoided her.

“In the present case, the causation of the injury depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender’s driving at an excessive speed and without keeping a proper look-out. If the pursuer had waited until the defender had passed, he would not have collided with her. Equally, if he had slowed to a reasonable speed in the circumstances and had kept a proper look-out, he would have avoided her.”

Since the Inner House had concluded that the causative potency of the defender’s conduct was greater than the pursuer’s then, logically, in arriving at their figure of 70%, they must also have concluded that the pursuer was far more blameworthy than the defender. Lord Reed found it difficult to understand that assessment given that there were a number of factors which the Inner House (and Lord Reed) accepted had to be taken into account when judging Ms Jackson’s actions including the pursuer’s age, the light conditions, difficulties (even for adults) of estimating speed and the general difficulty crossing a major road.

As against that, the Inner House had noted that the defender was travelling at excessive speed and had chosen not to adjust his speed to take account of the obvious potential danger of a minibus with hazard lights on; he had continued to drive at 50 mph. For Lord Reed the fact that the Highway Code indicates that pedestrians will probably be killed by a car travelling at 40 mph pointed to a “very considerable degree of blameworthiness” on the part of the defender.

Beyond the ambit of reasonable disagreement

In the circumstances there was no satisfactory explanation from the Inner House for their conclusion that the major share of responsibility had to be attributed to the pursuer. Lord Reed’s view was that “…the defender’s conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy.”

The conclusion that the parties were equally responsible for the damage suffered by the pursuer was substantially different from the Inner House’s view that the pursuer was much more responsible than the defender. That wide difference of view exceeded the ambit of reasonable disagreement and led the majority in the Supreme Court to the conclusion that the Inner House had gone wrong. An assessment of contributory negligence at 50% was held to be appropriate and, accordingly, the appeal was allowed.

The dissenting view

The minority would have refused the appeal on the basis that the ambit of reasonable disagreement had not been exceeded. Lord Hodge accepted that the test had been satisfied in the original appeal to the Inner House since the Lord Ordinary seemed to have been overly influenced by the views of eye-witnesses who focused only on the immediate circumstances of the accident and not on the defender’s actions leading up to it. Nevertheless, the Inner House had been entitled to share Lord Tyre’s view that Ms Jackson was more responsible for the accident. They had attributed greater causative potency to the defender because they recognised the principle that a vehicle can be a dangerous weapon but considered that the pursuer’s behaviour was significantly more blameworthy. In Lord Hodge’s view that conclusion was justifiable on the basis of the Lord Ordinary’s unchallenged findings in fact. Had Lord Hodge been deciding on apportionment he would have assessed contributory negligence at two-thirds and accordingly the Inner House decision could not be said to fall outside the limits of reasonable disagreement.

Comment

Practitioners who have to wrestle with contributory negligence in pedestrian/driver claims on a regular basis will no doubt welcome confirmation of the approach to be adopted. It is particularly useful to be able to read detailed analysis from the Supreme Court of issues surrounding causative potency and blameworthiness in a factual situation which resulted in a split court.  It seems likely that the issue of “destructive disparity” will become more clearly focused in future pedestrian/driver claims and will be accompanied by  a renewed reliance on the dangers presented to vulnerable road users by vehicles travelling at speed. The decision is also an important reminder of the need to carefully consider the “qualitative” impact of a proposed apportionment before reaching a decision on the precise figure to be deducted. Finally, the Supreme Court have produced very clear guidance for courts of appeal as to how challenges to apportionment at first instance should be dealt with and the circumstances in which appeals can be allowed in the absence of an identifiable error. Of course, with Lord Reed and Lord Hodge having reached very different conclusions on the same facts, Ms Jackson’s case also neatly illustrates the extent to which the level of any finding of contributory negligence in pedestrian/driver cases remains dependent not only upon the facts of a specific case but also upon the views of individual judges. Hopefully this decision may help encourage a more consistent approach to the issue.