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The mcgregor_douglas_0Supreme Court has a rare opportunity to consider the proper approach to the assessment of contributory negligence after hearing the parties’ appeal and cross-appeal from the Inner House of the Court of Session in the case of Jackson v Murray & Another.

The respondents seek to overturn a finding of contributory negligence of 70%. The cross-appeal relates to the question of whether the Inner House was entitled to interfere at all with the Lord Ordinary’s assessment of contributory negligence at 90%. It appears that damages have now been agreed at a full value of £2.25m so the level of deduction is of considerable significance.

Note that although there are two respondents named in the action, the second respondent (Aviva) is the insurer of the first respondent. For ease, the first respondent is simply referred to as the “respondent” throughout.

The factual background

At about 4.30pm on 12 January 2004 the appellant Lesley Jackson, who was then aged 13, and her twin sister were travelling home from school. They were dropped off by school minibus opposite the entrance to the private road leading to the farm where they lived. The sun had set some 40 minutes earlier and vehicles were using headlights. The minibus stopped at the verge of the A98 Fraserburgh to Banff Road with its hazard lights on. Following vehicles stopped behind it. To get home the two girls had to cross over the road which is an unlit rural two-way road with a speed limit of 60mph. They went to the rear of the minibus and, while crossing the road, Ms Jackson was hit by a car driven by the respondent, Andrew Murray, which was travelling in the opposite direction to the minibus. Ms Jackson suffered extremely serious, life changing injuries and accordingly brought a claim against Mr Murray in negligence.

The Outer House decision

In 2012, after proof, the Lord Ordinary, Lord Tyre, held that some degree of liability on the part of the Mr Murray had been established (Jackson v Murray [2012] CSOH 100).

Mr Murray was driving at approximately 50mph. The minibus would have been visible to him for over 200m. He had not reduced his speed and, when called as a witness, had given evidence that he considered the risk of children running out unexpectedly was “irrelevant” and “not his fault”. Lord Tyre found that in order to fulfil their duty of care any driver coming across the stationary minibus should have reduced their speed so that they were:

“… driving sufficiently slowly and carefully to give himself or herself a reasonable opportunity to react and take action to prevent a collision should the foreseeable event occur of a child or other person attempting to cross the road.”

Lord Tyre held that Mr Murray should have been driving at between 30-40mph and found that had he done so the collision would probably not have occurred.

However, Lord Tyre then turned to the question of contributory negligence. He found that the principal cause of the accident was the recklessness of Ms Jackson in attempting to cross the road without taking proper care to check that the road was clear to allow her to do so. She either did not look or she failed to identify and react sensibly to the presence of the defender’s car. In his view the overwhelmingly greater cause of the collision was Ms Jackson’s movement into the path of the defender’s car at a time when it was impossible for him to avoid a collision. Lord Tyre stated that this was an act of “reckless folly” which was not excused by Ms Jackson’s age (Ehrari v Curry [2007] EWCA Civ 120 distinguished). He therefore found Ms Jackson to be 90% contributorily negligent.

The Inner House decision

Ms Jackson appealed in relation to the finding of contributory negligence and Mr Murray cross-appealed on liability. Mr Murray’s appeal was rejected by an Extra Division of the Inner House but the court held that they were entitled to interfere with the Lord Ordinary’s finding of contributory negligence and, to that extent, allowed Ms Jackson’s appeal (Jackson v Murray [2012] CSIH 100).

Although it is not explicitly stated in the opinion of the court the Inner House must be taken to have concluded that the Lord Ordinary had “manifestly and to a substantial degree gone wrong‘ in his assessment of contributory negligence (Porter v Strathclyde Regional Council 1991 SLT 446). It remains to be seen whether the Supreme Court will agree.

The Inner House accepted that Lord Tyre was entitled to hold that there had been contributory negligence in the circumstances. At the age of 13 Ms Jackson must have been fully aware of the danger of crossing a major road from behind a bus without taking reasonable care to check for approaching cars. Safe alternatives were available to the pursuer which did not need to be put to her in cross-examination because they were “too obvious”. The real issue for the Court was the apportionment exercise.

The Inner House found that the finding of 90% was too high and reduced it to 70%.

The Court considered that it was entitled to interfere with the original finding because the Lord Ordinary had erred in giving insufficient regard to the age of the Appellant and the difficulties involved in crossing in poor light conditions. A 13 year old would not necessarily have the same level of judgement and self-control as an adult. It would have been difficult even for an adult to assess speed. The Court stressed that Lord Tyre was wrong to describe her attempt to cross the road as an act of “reckless folly”.

Greater stress should have been placed on the actions of Mr Murray whose behaviour was culpable to a substantial degree. The principle of ’causative potency’ as well as simple blameworthiness should have been considered. As suggested in the cases of Eagle v Chambers [2003] EWCA CIV 1107 and Smith v Chief Constable Nottinghamshire Police [2012] EWCA Civ 161, a vehicle is potentially a dangerous weapon and the attribution of causative potency to the driver must be greater than to the pedestrian. Put simply, drivers are held to a higher standard than pedestrians due to the much higher potential damage which a car can cause. Mr Murray’s excessive speed was causally significant because of the finding that the collision would have been avoided entirely had he reduced his speed.

Eagle v Chambers

The reference to Eagle v Chambers (above) is of particular interest of course because the judgment of the Court of Appeal in that case was delivered by Lady Justice Hale (as she then was). The case is frequently cited in cases involving injuries to pedestrians and other vulnerable road users where contributory negligence is an issue. The Court of Appeal did however accept that, in cases where a pedestrian moves suddenly into the path of an oncoming vehicle, it may be appropriate for the pedestrian to be found more responsible than the driver. It may be of considerable assistance for practitioners to see how the Supreme Court addresses these issues in the circumstances of this particular case.

The Supreme Court

The appeal was heard by Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath, and Lord Hodge on 20 October 2014. Judgment is awaited.