Jackson v Murray
| Jurisdiction | Scotland |
| Judge | Lady Hale,Lord Wilson,Lord Hodge,Lord Reed,Lord Carnwath |
| Judgment Date | 18 February 2015 |
| Neutral Citation | [2015] UKSC 5 |
| Date | 18 February 2015 |
| Docket Number | No 7 |
| Court | Supreme Court (Scotland) |
[2015] UKSC 5
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hodge
Appellant
Andrew Smith QC
Gavin Thornley
(Instructed by Drummond Miller LLP)
Respondents
Graham Primrose QC
Steve Love
(Instructed by BLM Glasgow LLP)
Heard on 20 October 2014
(with whom Lady Hale and Lord Carnwath agree)
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 trial judge finds that the accident was caused by the driver's negligence, but that the child was also contributorily negligent. He assesses her contributory negligence at 90%, and reduces the award of damages accordingly. On appeal, the court reduces that assessment to 70%. On a further appeal, this court is invited to reduce the assessment further.
How should responsibility be apportioned in a case of this kind? What principles should govern the review of an apportionment by an appellate court? These are the central questions posed by this appeal.
The facts of the case, as found by the Lord Ordinary, Lord Tyre, are not in dispute. It should be said at the outset that he faced considerable difficulties in establishing the facts, and he exercised notable care in doing so.
The accident occurred on 12 January 2004 on the A98 road between Banff and Fraserburgh, near its junction with a private road leading to the farm where the pursuer lived with her parents and her twin sister. At that point, the A98 is 7.6 metres wide. Traffic is subject to a 60 mph speed limit. There is no street lighting.
The pursuer was then 13 years old. She and her sister travelled to and from school every day by school minibus. On the way home, the minibus dropped off the various children at or near their homes. In particular, it dropped off the pursuer and her sister on the opposite side of the road from the entrance to the farm road. They would then cross the road to the farm road.
On the day of the accident, the bus arrived at the farm road end at about 4.30 pm. It was then about 40 minutes after sunset, and the light was fading. Vehicles had their lights on. The bus stopped, with its headlights on, and signs to the front and rear indicating that it was a school bus. The driver put on the bus's hazard lights. A number of vehicles following the bus stopped behind it. The defender was driving home in the opposite direction. His lights were switched on. As he approached the scene, he saw the stationary bus on the other carriageway. He had a view of the stationary bus for at least 200 metres. He had seen the school bus on this road before. He was travelling at about 50 mph. He did not slow down. His position in evidence was that he could not remember whether he had thought at the time that the bus might have stopped to drop children off. He regarded the risk of children running out unexpectedly as irrelevant: such a risk was "not his fault", as he put it.
Partly in view of the defender's evidence about the irrelevance, to his responsibilities as a driver, of the possibility that children might unexpectedly attempt to cross the road, the Lord Ordinary inferred that he did not address his mind to the risk that a person might emerge from behind the stationary bus and attempt to cross the road in front of his car.
The pursuer and her sister got off the bus on its nearside. The pursuer passed between the rear of the bus, which was still stationary, and the car behind it. She paused briefly at the offside rear of the bus and then took one or two steps into the road, before breaking into a run. She was struck by the defender's car, still travelling at about 50 mph. She was projected into the air by the force of the impact, and the car passed beneath her. She landed on the road surface. At the point of impact, she was running across the road. The defender was unaware of her presence until the moment of impact. Since she must have been within his line of vision for approximately 1.5 seconds between emerging from behind the bus and the moment of impact, the Lord Ordinary inferred that he was not keeping a look-out for the possibility of such an event occurring. If he had had in mind the possibility that someone might emerge, he would have seen her earlier than he did.
The Lord Ordinary found that the defender had failed to drive with reasonable care. He ought in the first place to have kept a proper look-out. In the exercise of that duty, he ought to have identified the bus as being a school bus, or at least as a bus from which children were likely to alight. He ought then to have foreseen that there was a risk that a person might, however foolishly, attempt to cross the road. The defender had not done so. Either he did not identify the bus as a school bus, or he did not regard that as relevant to the manner in which he ought to drive towards it and past it. Secondly, the defender had failed to modify his driving. He did not reduce his speed from 50 mph as he approached the stationary bus. That was too high a speed at which to approach the hazard which it potentially presented. A reasonable speed in the circumstances would have been somewhere between 30 and 40 mph. He ought to have been travelling at no more than 40 mph for at least 100 metres before reaching the bus. Thirdly, the defender had failed to be vigilant for any child stepping out or running into the road. These findings are not now in dispute.
The Lord Ordinary found that the defender could not have reacted in the time available to him, after the pursuer emerged from behind the bus, so as to avoid hitting her. If, however, he had been travelling at a reasonable speed, the pursuer would have made it safely past the line of the car's travel before the car arrived at the point of impact, and the accident would not have occurred.
The Lord Ordinary considered that the "principal cause" of the accident was the "recklessness" of the pursuer in attempting to cross the road without taking proper care to check that the road was clear to allow her to do so. At the age of 13, she was fully aware of the danger of crossing a major road without taking reasonable care to check that no cars were approaching. The pursuer's own account of the critical events was unreliable, and there was a paucity of other reliable evidence. Her decision to cross could not however have been the result of a justifiable misjudgement: at the time when she emerged from behind the minibus, the defender's car could only have been about 30–40 metres away. The Lord Ordinary concluded:
"46. … Either she did not look to the left before proceeding across the road or, having done so, she failed to identify and react sensibly to the presence of the defender's car in close proximity. On either scenario, the overwhelmingly greater cause of this unhappy accident was the movement of the pursuer into the path of the defender's car at a time when it was impossible for him to avoid a collision.
47. One has, therefore, in my opinion, a situation in which the pursuer bears responsibility for having committed an act of reckless folly, and the defender bears responsibility for having failed to take reasonable care for the safety of a person such as the pursuer who might commit an act of reckless folly. In that situation, I consider that a very large proportion of the overall responsibility rests upon the perpetrator of the act."
On that basis, the Lord Ordinary assessed contributory negligence at 90%.
An appeal against that finding was allowed by an Extra Division of the Inner House (Lord Clarke, Lord Drummond Young and Lord Wheatley), for reasons explained in an opinion delivered by Lord Drummond Young. His Lordship noted that it had been said in Porter v Strathclyde Regional Council 1991 SLT 446, 449 that the Inner House would not interfere with the Lord Ordinary's apportionment of negligence except in exceptional circumstances which must demonstrate that "he has manifestly and to a substantial degree gone wrong".
The Extra Division considered that the Lord Ordinary had clearly been entitled to hold that contributory negligence existed in this case. At the age of 13, the pursuer 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. She was familiar with the location and accepted that she was aware of the potential dangers of crossing this particular road. She was aware of the risk of traffic on what was a relatively major road. In those circumstances it was difficult to imagine any reason that she might have for not checking properly for approaching cars and, if a car was approaching, not crossing the road. On that basis, the obvious course for her to take was to remain on the verge or at least to remain behind the bus until it moved off and she had a clear view of other traffic and drivers had a clear view of her. At the very most she could have stopped between the bus and the centre line of the road. The argument that these points should have been put to the pursuer in cross-examination, and had not been...
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