Jackson v Murray [2015] UKSC 5 (18 February 2015)

A 13-year-old girl was struck by a car after alighting from a school bus. The Supreme Court re-evaluated the apportionment of blame, reducing her contributory negligence from an initial 70% to 50%, emphasising the high standard of care required of drivers.

Facts

In January 2004, the appellant (then pursuer), Sabre Jackson, a 13-year-old girl, was seriously injured in a road traffic accident. She had just alighted from a school minibus on a country road in rural Aberdeenshire. The road had a 60 mph speed limit. It was winter, and dusk was approaching, but visibility was still good. After the minibus moved off, she attempted to cross the road from behind the bus. She did not look for oncoming traffic and stepped out into the path of a car driven by the first respondent (then defender), Mr Murray. Mr Murray was driving at an estimated 50 mph. Although he saw the stationary minibus, which had its hazard lights on, he did not slow down significantly until the last moment, when he saw the appellant and braked sharply but was unable to avoid the collision.

Issues

The primary legal issue before the Supreme Court was the correct apportionment of responsibility for the accident under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. Both the Lord Ordinary at first instance and the Inner House of the Court of Session on appeal had found the appellant 70% contributorily negligent. The appellant argued that this apportionment was plainly wrong and sought a re-assessment where the driver carried a greater share of the blame.

Judgment

The Supreme Court, by a 3-2 majority, allowed the appeal. The leading judgment was delivered by Lord Reed, with whom Lords Wilson and Hodge agreed.

The Majority Judgment

Lord Reed began by acknowledging that an appellate court should not interfere with a lower court’s apportionment of liability unless it is ‘plainly wrong’. However, he concluded that the prior assessments in this case had indeed been plainly wrong. The court’s task in apportionment involves considering both the ‘causative potency’ of the parties’ actions and their relative ‘blameworthiness’. Lord Reed stated:

The court has to take account of the blameworthiness of the parties and the causative potency of their acts: Stapley v Gypsum Mines Ltd [1953] AC 663, 682 per Lord Reid.

He reasoned that while the appellant was undoubtedly at fault for stepping into the road without checking for traffic, her age and circumstances had to be considered. The blameworthiness of a 13-year-old child should not be judged with the same severity as that of an adult.

Conversely, the driver’s conduct was highly culpable. He was aware he was approaching a school bus that had stopped, yet he failed to moderate his speed appropriately in anticipation that a child might attempt to cross the road. Lord Reed emphasised the driver’s failure to adhere to the expected standard of care:

A motorist driving in the vicinity of a school bus which is setting down passengers is required by the Highway Code to drive with care, and to be ready to stop… Given the presence of a bus which was or had just been stationary, and which would conceal any pedestrian who might be crossing the road, he should have been driving at a much slower speed. If he had been driving at a reasonable speed, he would have been able to stop in time to avoid the collision.

In balancing these factors, the majority concluded that the respondent’s conduct was at least as blameworthy as the appellant’s. The ‘causative potency’ of the car was also significantly greater than that of the pedestrian. Consequently, the court held that liability should be apportioned equally. Lord Reed concluded:

I am satisfied that the defender’s conduct played at least an equal role to that of the pursuer in causing the damage, and was at least equally blameworthy. Justice requires that the pursuer should be found to have been contributorily negligent to the extent of 50%.

Concurring and Dissenting Judgments

Lord Kerr delivered a concurring judgment, also finding for a 50/50 apportionment but focusing more heavily on the ‘destructive disparity’ between a vehicle and a pedestrian as a key element of causative potency. Lord Neuberger, in dissent, argued that the appellate court should be very slow to interfere with the trial judge’s assessment and that the 70% apportionment, while possibly on the high side, was not ‘plainly wrong’ and fell within the range of reasonable decisions available to the lower courts.

Implications

The decision provides important guidance on the principles of appellate review concerning findings of contributory negligence. It clarifies that while deference is owed to the trial judge’s assessment, an appellate court can and should intervene if the apportionment is outside a reasonable range and therefore plainly wrong. The case reinforces the high duty of care owed by drivers to pedestrians, particularly children, and underscores that a driver’s failure to anticipate hazards, such as a child crossing in front of a school bus, constitutes significant blameworthiness. The judgment highlights that the ‘causative potency’ of a vehicle is a critical factor in apportionment, reflecting the greater potential for harm it poses.

Verdict: The appeal was allowed. The court recalled the interlocutor of the Inner House and found the appellant to be contributorily negligent to the extent of 50%.

Source: Jackson v Murray [2015] UKSC 5 (18 February 2015)