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On appeal from: [2012] CSIH 100

The Supreme Court allowed an appeal by a majority of 3-2 challenging the Inner House of Session’s assessment of contributory negligence lying at 70% in regards to pursuer’s accident when she was seriously injured after being struck down by the defender’s car. The Lord Ordinary had found that the defender had failed to drive with reasonable care and was negligent, however the “principle cause” of the accident was the “reckless folly” of the pursuer, considering that either she did not look to the left before crossing or, having looked, she failed to identify and react sensibly to the presence of the car in close proximity. The Lord Ordinary had assessed that in either scenario the greater cause of the accident was the pursuer’s movement into the path of the defender’s car at the time when it was impossible for him to avoid the collision and set the contributory negligence at 90%. This was brought down to 70% on appeal to the Extra Division of the Court of Session.

In allowing the appeal the Supreme Court stated that the lower court must have gone wrong: in the absence of an identifiable error, only a difference of view as to the apportionment of responsibility that exceeds the ambit of reasonable disagreement will warrant the conclusion. It stated that the Extra Division had only provided a very brief explanation of their apportionment of 70%, and although they right considered that the pursuer did not take reasonable care for her own safety, regard also needed to be had to her circumstances. She was only 13 and attempting to cross a relatively major road with a 60mph speed limit, after dusk and without street lights, was not straightforward even for an adult.

The majority concluded that overall the Extra Division’s reasoning did not provide a satisfactory explanation of their conclusion that the pursuer bore the major share of responsibility. Lord Reed considered 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. It therefore allowed the appeal and awarded 50% of the agreed damages to the pursuer.

The dissenting judge’s believed the appeal should not have been allowed as to not to look or to knowingly run into the path of the car displayed a very high degree of carelessness. Lord Hodge believed the Extra Division were entitled, because of the extent of her blameworthiness, to attribute to the pursuer the major share of responsibility.

For judgment, please download: [2015] UKSC 5
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII