(Contributory Negligence - Supreme Court decision -  Jackson -v- Murray & Aviva)

In our article of 5th February 2014 - "Litigation Jackson -v- Murray -  the Saga continues" - we explained that in order to achieve the best possible result for our client we had marked an appeal to the Supreme Court in London. The decision of the Supreme Court has now been handed down and the Pursuer was successful (by a 3:2 majority) in having the apportionment of liability further reduced to a 50/50 split between her and the negligent driver. We have therefore, through our persistence, been able achieve a seven figure sum of damages for our client!

Our client, the pursuer (13 years of age at the time) had alighted from a school minibus and proceeded to cross the road behind the bus. The road had a 60mph speed limit and she was struck by a car being driven in the opposite direction travelling at 50mph. The original decision found that the driver was at fault but also that the schoolgirl was 90% to be blame (ie contributory negligent) - meaning that she would only receive 10% of any damages for losses that she sustained.

It is extremely difficult to overturn a decision of the court on an issue such as contributory negligence but we strongly advised our client to mark an appeal (to be heard before three Judges). The original decision considered that the "principal" cause of the accident was the "recklessness" of the pursuer. We felt this was very unfair hence our advice to appeal.

The Appeal Court (Inner House of the Court of Session) agreed with us and reduced the finding of contributory fault from 90% to 70%, stating that greater stress should have been placed on the actings of the driver and that he was culpable to a substantial degree. They agreed with our argument that the original Judge was wrong to describe the actings of the pursuer as "reckless" as such a description could not be justified. The Appeal Court advised that, when apportioning responsibility, both blameworthiness of the parties and causative potency must be assessed. Despite accepting these arguments, the Inner House still found that the major share of responsibility should be attributed to the pursuer and so only reduced the finding of contributory fault to 70%.

At this stage, many lawyers would have advised the pursuer that, having successfully appealed and, in turn, achieved a significant six figure sum, this was an excellent result and should be the end of the matter. However, our advice was that, although this was a step in the right direction, we still felt that, in the circumstances, there was no reason why our client should be found more to blame than the driver. Given the findings of the Inner House it was difficult to understand the conclusion that she should still bear the majority of responsibility when the driver had been at fault and that a car is a potentially lethal weapon (the causative potency of the driver was much higher). An appeal was marked to the Supreme Court.

At the Supreme Court Hearing (in October 2014) we presented very similar arguments as those in the first appeal. Lord Reed, with whom Lady Hale and Lord Carnwath, agreed accepted our arguments and questioned why the Inner House had concluded that the major share of the responsibility should be attributed to the pursuer, particularly in light of their findings/comments that the defender's behaviour was "culpable to a substantial degree", the excessive speed was causally significant and the attribution of caused potency to the driver must be greater than that to the pedestrian. Causative potency seemed to play an important part as Lord Reed explained that, even leaving out the potentially dangerous nature of a car being driven at speed, he would not have assessed the causative potency of the conduct of the driver as being any less than that of the pursuer/pedestrian. The causation of the accident/injury depended upon a combination of the pursuer attempting to cross the road and the defender driving at speed without keeping a proper look out. The Supreme Court felt that the only reason to explain the finding of 70% contributory negligence was that the Inner House considered that the pursuer was far more blameworthy but such a finding was difficult to understand in the circumstances. Ultimately, the Supreme Court held 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.

This was a major success given that, up until that point, the pursuer was found to have been more than double at fault than the driver (something we had always argued was manifestly unfair). The Supreme Court further commented that to find parties equally responsible is substantially different from the view that one party is much more responsible than the other. They therefore further adjusted the apportionment of liability and found the pursuer entitled to 50% of the agreed damages of £2.25M.

So where does this decision leave us in terms of advising clients about the prospects of success?

The concept of contributory negligence can be difficult to explain and trying to assess what any Court is likely to award can be even more difficult. Concepts such as "causative potency" and "blameworthiness" are likely to play a key role in apportionment of the blame but each case will, to a certain extent, depend on its own facts.

One of the reasons that we were particularly clear in our advice to take this matter to the Supreme Court was that, having reviewed the case law, it seemed to us that someone getting struck by a car in England appeared to achieve more by the way of damages than someone in Scotland - which surely cannot be fair! The Scottish decisions and the application of contributory negligence in the Scottish courts appeared to be out of kilter with the rest of the UK and something we were keen to remedy. We have now, hopefully, brought Scottish cases on contributory negligence back into line with those in the rest of the UK, giving pursuers north of the border a similar starting point for a higher/fairer award. Those commenting on the initial decision in Jackson v Murray expressed surprise at such a high finding of contributory fault and a 50/50 split does appear to us to be a much more reasonable outcome.

The decision may also give pursuers seeking to appeal confidence in that there is a qualitative difference (as Lady Hale observed in Eagle -v- Chambers) in finding one party to be more responsible for the damage than the other.

We should also commend Miss Jackson for her bravery in taking this matter not only to the Inner House but also to the Supreme Court when many would have walked away. Thankfully, the saga for her is now over, having achieved success each step of the way. Her case has also assisted in providing a more just approach to contributory negligence for pursuers north of the border. 

If you have been involved in a road traffic accident and wish to speak to one of the members of our litigation team, please contact our Darren Deery on 0131 226 5151 or ask for any member of the litigation department.