• In the case of Jackson v Murray [2015] U.K.S.C. 5, it was held that when assessing how much damages should be reduced for contributory negligence, both the blameworthiness of C’s and D’s conduct and their causative potencies of their circumstances are relevant factors.

Facts of the Case

  • 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%.

Issues

  • 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?

Held by the Supreme Court (Scotland)

  • 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%.

Lord Reed

  • 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.
  • A similar approach was taken in Eagle v Chambers [2003] EWCA Civ 1107. Hale LJ noted that a car can do more damage to a person than a person can usually do to a car, and that the ‘destructive disparity’ between the parties could be taken into account when determining blameworthiness.
  • Apportionment is inevitably a rough and ready exercise, and multiple possible answers can be given. The court is also required to reach a conclusion considered ‘just and equitable.’ Different judges may legitimately take different views of what would be just and equitable in particular circumstances. Those differing views should be respected within the limits of reasonable disagreement.
  • 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.
  • “Given the Extra Division’s conclusion that the causative potency of D’s conduct was greater than that of C’s, their conclusion that ‘the major share of the responsibility must be attributed to C,’ to the extent of 70%, can only be explained on the basis that C was considered to be far more blameworthy than D. I find that difficult to understand, given the factors which their Lordships identified…A 13-year-old will not necessarily have the same level of judgment and self-control as an adult. As they also pointed out, she had to take account of D’s car approaching at speed, in very poor light conditions, with its headlights on. As they recognised, the assessment of speed in those circumstances is far from easy, even for an adult, and even more so for a 13-year-old. It is also necessary to bear in mind that the situation of a pedestrian attempting to cross a relatively major road with a 60-mph speed limit, after dusk and without street lighting, is not straightforward, even for an adult” [41].
  • I cannot discern from the Extra Division any satisfactory explanation for why C must bear the major share of the responsibility. D’s conduct played at least an equal role in causing the damage and was equally blameworthy.
  • The view that parties are equally responsible for the damage is substantially different from the view that one party is much more responsible than the other. Such a wide difference of view exceeds the ambit of reasonable disagreement, and so I conclude that the court below has gone wrong. The correct apportionment for equal causation and blameworthiness is 50%.

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