Jackson v Murray [2015] UKSC 5

On 12th January 2004, C (aged 13) stepped out from a school minibus into the path of D’s oncoming car. It was after sunset and visibility was low. D, travelling too fast already, had seen the bus but had not slowed in case children crossed the road in front of him. Moving too fast to prevent a collision, D’s car struck C and caused considerable injuries. It was inferred that D was not keeping a look-out in case someone stepped out from behind the stationary bus. The Lord Ordinary found D liable but held that C’s damages should be reduced by 90% for contributory negligence. The Extra Division considered the Lord Ordinary’s apportionment of 90% was too high. They reduced the apportionment of damages to 70%.

• How severe should the apportionment of C’s damages be since she was the principal cause of the accident, considering all circumstances such as her age, the low visibility and D’s carelessness?

Finding for C, that it was impossible to discern a satisfactory explanation for concluding that C had the major share of responsibility. D and C were equally blameworthy for the accident. The proper assessment of contributory negligence was 50%. Baker v Willoughby [1970] AC 467 was a similar case of a pedestrian struck by a car. Lord Reid made observations about apportion of damages. He said that there are two elements to the assessment of liability: causation and blameworthiness. These causative factors need not be equal, because there is not even a presumption to that effect that could apply to blameworthiness. A pedestrian is rarely a danger to anyone by travelling at their speed, but a motorist will very likely be. Causation being equal, it is very possible that the motorist is much more to blame than the pedestrian for the aftermath of an accident. The question is whether the court below went wrong. In the absence of an identifiable error, only a difference of view regarding the apportionment of responsibility that is unreasonable that warrants such a conclusion.

Contributory negligence requires a just and equitable assessment of blameworthiness and causal potency. The claimant's age and the greater destructive capacity of a vehicle may be relevant. An appellate court can intervene where an apportionment exceeds the reasonable range of disagreement.

Jackson illustrates how apportionment is a judgment rather than a mechanical calculation. The Supreme Court reduced the child's share of responsibility to 50%, taking account of her age, the driving and the vehicle's capacity to cause harm. The percentage is not a general rule for school-bus accidents. The case is also useful on appellate restraint: a different preferred figure is insufficient unless the lower assessment is wrong within the applicable standard.