Dear Colleagues,

 

It may be of interest to note the relatively short Scots decision from the UK Supreme Court yesterday on apportionment under the Law Reform (Contributory Negligence) Act 1945: Jackson v Murray https://www.supremecourt.uk/decided-cases/docs/UKSC_2014_0070_Judgment.pdf. Lord Reed sets the scene:

 

1 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.

 

2 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.

 

3 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.

 

By a majority, the Supreme Court allows the appeal and apportions responsibility equally between the parties. There is worthwhile discussion of causative potency and blameworthiness, and also the circumstances in which an appellate court can and should review such decisions (Lord Reed again):

 

27 It is not possible for a court to arrive at an apportionment which is demonstrably correct. The problem is not merely that the factors which the court is required to consider are incapable of precise measurement. More fundamentally, the blameworthiness of the pursuer and the defender are incommensurable. The defender has acted in breach of a duty (not necessarily a duty of care) which was owed to the pursuer; the pursuer, on the other hand, has acted with a want of regard for her own interests. The word “fault” in section 1(1), as applied to “the person suffering the damage” on the one hand, and the “other person or persons” on the other hand, is therefore being used in two different senses. The court is not comparing like with like.

 

28 It follows that the apportionment of responsibility is inevitably a somewhat rough and ready exercise (a feature reflected in the judicial preference for Page 11 round figures), and that a variety of possible answers can legitimately be given. That is consistent with the requirement under section 1(1) to arrive at a result which the court considers “just and equitable”. Since different judges may legitimately take different views of what would be just and equitable in particular circumstances, it follows that those differing views should be respected, within the limits of reasonable disagreement

 

Best wishes,

James

 

 

 

--

James Lee

Senior Lecturer in Private Law

Acting Director of UG Admissions and Scholarships

The Dickson Poon School of Law
King's College London
Strand
London WC2R 2LS

 

E-mail: james.lee@kcl.ac.uk

 

Tel: +44 (0)20 7848 2363

 

Profile: http://www.kcl.ac.uk/law/people/academic/j-lee.aspx

 

 

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