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Apportionment of Damages for Contributory Negligence: Appellate Review, Relative Blameworthiness and Causal Potency

Document Cited authorities 18 Cited in Related
Vincent
Author
Published date01 September 2015
Pages367-373
DOI10.3366/elr.2015.0296
Date01 September 2015
<p>Apportioning damages for contributory negligence is bread and butter work of trial courts throughout the United Kingdom.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>The apportionment provision in <span class="vid_spn">s 1(1) of the Law Reform Contributory Negligence Act 1945</span> applies throughout Britain. An identical provision exists in Northern Ireland: Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948 s 2(1).</p> </fn> Both contributory negligence and apportionment are very frequently in issue in negligence cases and, when they are, they are often key points in dispute. It is relatively rare, however, for the law in this area to be dealt with at any length on appeal. There are various possible causes of this situation, one of which is the well-established principle that appellate courts should disturb findings of a trial judge in relation to contributory negligence or apportionment only where those findings are clearly wrong. <italic>Jackson v Murray</italic> <xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p><a href="https://vlex.co.uk/vid/jackson-v-murray-818829757">[2015] UKSC 5</a>, <a href="https://vlex.co.uk/vid/jackson-v-murray-818829757">2015 SLT 151</a> (henceforth “<italic>Jackson (Supreme Court)</italic>”).</p> </fn> is, therefore, an important case. It is the first occasion on which the Supreme Court has engaged with this part of the law other than in passing. The decision casts light on several issues in the law of contributory negligence and apportionment. It also raises some questions.</p> THE FACTS AND PROCEDURAL HISTORY

The facts in Jackson were unremarkable. The pursuer, then aged 13, alighted from a school minibus on a country road on a winter's evening. The minibus's hazard lights had been activated. After exiting the minibus the pursuer moved to its rear. Intending to cross the road, she took a step or two into the carriageway and then broke into a run. The pursuer was struck by the defender's vehicle and was catastrophically injured. The defender was travelling on the opposite side of the road to the minibus. He had been driving at approximately 50 mph (the road was subject to a 60 mph speed limit) and did not reduce his speed as he approached the minibus. The pursuer had been in the defender's line of vision for approximately 1.5 seconds before the moment of impact. Had the defender slowed down as he approached the minibus, the pursuer would have made it across the road before the defender's vehicle reached the point of impact.

The Lord Ordinary, Lord Tyre, held that the defender had been negligent in failing to reduce his velocity as he neared the minibus and that the pursuer had been guilty of contributory negligence in endeavouring to cross the road when it was unsafe to do so.3

[2012] CSOH 100, 2012 SCLR 605.

His Lordship reduced the pursuer's damages by 90% and described her as “having committed an act of reckless folly”.4

Para 47.

 An Extra Division of the Inner House reduced the discount to 70%,5

[2012] CSIH 100, 2013 SLT 153 (henceforth “Jackson (Inner House)”). The court comprised Lord Clarke, Lord Drummond Young and Lord Wheatley.

 giving four reasons for intervening.6

Jackson (Inner House) at paras 27–28.

 First, it thought that insufficient weight had been given to the pursuer's age. Secondly, it considered that more stress should have been placed on the defender's failure to modify his speed. Thirdly, labelling the pursuer as “reckless” was unwarranted as it wrongly suggested that she had acted without regard to the consequences of her actions. Fourthly, too little attention had been given to the fact that a motor vehicle is a potentially dangerous weapon. The Extra Division remarked that the dangerousness of motor vehicles meant that “the attribution of causative potency to the driver must be greater than that to the pedestrian.”7

Para 28.

 THE DECISION OF THE SUPREME COURT

The pursuer appealed to the Supreme Court. She invited the court to reduce the discount further still.8

The pursuer also mounted a half-hearted challenge to the finding that she was guilty of contributory negligence. That challenge was quickly rejected (see paras 17–18).

By a three to two majority the appeal was allowed. Lord Reed, with whom Lady Hale and Lord Carnwath concurred, concluded that a 50% discount was appropriate. Lord Reed thought that the Extra Division had erred in assessing the pursuer's relative blameworthiness. His Lordship observed that, since the Extra Division had stated that the defender's conduct was more causally potent than the pursuer's, its decision to impose a 70% discount could be explained only on the ground that it thought that the blameworthiness of the pursuer's conduct was far greater than the defender's.9

Jackson (Supreme Court) at para 41.

 However, Lord Reed was unable to find any satisfactory explanation of that view in the Extra Division's reasons. He stressed the pursuer's youth and the difficulty of assessing the speed at which the defender's vehicle was travelling, and concluded that the...

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