• This year is the 70th anniversary of the Law Reform (Contributory Negligence) Act 1945.

    The Supreme Court in a Scottish child’s road traffic claim of Jackson –v- Murray (2015) provided some useful guidance as to the application of the principles of this very important piece of legislation.

    Prior to this act coming into force, contributory negligence acted as a complete defence to any personal injury claim. This led to the rather perverse position of an injured person being deprived of any compensation from a claim because they were partly responsible (often by a very small percentage).

    S.1(1) Law Reform (Contributory Negligence) Act 1945 provides that where a person suffers damage as a result partly of his own fault and partly the fault of another(s), a claim shall not be defeated by reason of the fault of the person suffering damage. Thus contributory negligence henceforth operated as only a partial defence to a personal injury claim.

    There have been some historic attempts to revert to the” good old” pre-1945 days. At first instance in Pitts v Hunt [1990] 3 All ER 344 the court used S.1 (1) to find that the Claimant was 100% contributory negligent to defeat his personal injury claim. However, on appeal this was held to be illogical and inconsistent with the wording of the Act which requires the damage to be partly the fault of both parties.

    By what percentage blame should be apportioned in any personal injury claim is often fact sensitive. By and large appeal courts have tended not to substitute their own judgment for that of the lower courts. They will only address issues of apportionment if they were plainly wrong. Therefore it is rather unusual for an issue of contributory negligence in any personal injury claim to reach the highest court in the land.

    The facts in Jackson were that a school minibus stopped at a country road at approximately 4.30pm in winter. Two children got off and one of them attempted to cross the road. This child stepped out behind the minibus into the path of an oncoming car. The driver was driving too fast – he accepted he saw the bus but made no allowances for the possibility that a child might attempt to cross in front of him. He was not keeping a proper look-out, and did not see the child. He was going too fast to have stopped in time, even if he had seen her. His car hit the child, causing her to sustain serious injuries.

    At the Trial the Judge found that the road traffic accident was caused partly by the driver’s negligence. If he had been driving at a reasonable speed and had been keeping a proper look-out he would not have hit and injured the child. However, he also found that the child, who was 13 at the time, was contributory negligent as to 90% and reduced her personal injury compensation accordingly. On appeal the court reduced this to 70%.

    The Supreme Court by a majority of 3-2 allowed the appeal, reducing contributory negligence further and awarded the child 50% of her agreed personal injury compensation.

    Lord Reed gave the leading judgment and in their reasons the Supreme Court stated Section 1(1) of the 1945 Act does not specify how responsibility is to be apportioned. Decided cases show two aspects to apportionment: the respective causative potency of the parties’ acts and their respective blameworthiness. The courts consistently imposed a high burden on drivers to reflect the potentially dangerous nature of driving.

    There is no demonstrably correct apportionment. Since different judges may legitimately take different views of what is “just and equitable” in particular circumstances, those differing views should be respected, within the limits of reasonable disagreement. In the absence of an identifiable error, only a difference of view as to apportionment that exceeds the ambit of reasonable disagreement will warrant that conclusion.

    Apportionments are not altered because of disagreement as to the precise figure. However, appellate courts have intervened on the basis of disagreement as to whether one party bore much greater responsibility than the other: there is a qualitative difference between a finding of a 60% contribution and a finding of 40%.

    The Extra Division (Scotland’s Court of Appeal) provided only a very brief explanation of their apportionment of 70%. Given their conclusion that the causative potency of the defender’s conduct was greater than that of the pursuer, the result can only be explained on the basis that they considered the pursuer far more blameworthy. They rightly considered that she did not take reasonable care for her own safety, but regard has to be had to her circumstances. She was only 13. An assessment of the defender’s speed in the circumstances was far from easy. Attempting to cross a relatively major road with a 60mph speed limit, after dusk and without street lighting, is not straightforward, even for an adult. The Extra Division considered that the defender’s behaviour was “culpable to a substantial degree”, Lord Reed agreed with that, but overall the Extra Division’s reasoning did not provide a satisfactory explanation for their conclusion that the pursuer bore the major share of responsibility. Lord Reed considered the defender’s conduct played at least an equal role to that of the pursuer in causing her personal injury and he was at least equally blameworthy.

    As stated at the start, this case does not create new law or fundamentally change the 1945 Act. It is a welcome reminder of how apportionment should be approached in all personal injury claims.

    As highlighted in this unfortunate case, children (even or especially teenagers) will not necessarily have the same level of judgment and self-control as an adult.

    At Brachers, we sadly see too often cases involving children being hit and injured by cars outside schools or playgrounds where the primary cause has been the driver not adjusting their speed according to the risk that a child may run out into the road.

    Mark is an Associate in the Personal Injury team, for more information please contact him on 01622 680409 for free advice.

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