Issues involved in Jackson-v-Murray
Jackson-v-Murray, which has been recently reported at  PIQRP 249 deals directly or indirectly with three important issues: (1) the extent to which a higher court can interfere with an assessment of contributory negligence by the trial judge or by an appeal court; (2) the assessment of contributory negligence of children; (3) the assessment of the proportions of liability of drivers of vehicles and pedestrians with whom they come into collision.
The facts of the accident in question are quite simple. The scene was the A98 road between Banff and Fraserburgh in North Scotland at dusk on a January evening. The pursuer (claimant) was a 13 year old girl who lived on a farm off that road. The school minibus, clearly labelled as such, dropped her off on the opposite side of the road from the entrance to the farm road. The defender, travelling in the opposite direction to the bus, although he saw the bus there, continued at about 50mph. The pursuer attempted to run across the road in front of him and she was flung into the air and severely injured. The trial judge found that the principal cause of the accident was the recklessness of the pursuer in attempting to cross the road when it was dangerous to do so. On the other hand, the defender, seeing the school bus stationary, ought to have foreseen that a child might attempt to cross the road; secondly, he had failed to slow down as he approached the bus; thirdly, he ought to have watched out for a child stepping out or running into the road. But, said the trial judge, as the car was only 30 to 40 metres away when the pursuer stepped out from behind the bus, contributory negligence should be fixed at 90%. On appeal, it was held that one had to take into account the lack of experience of a 13 year old child, who would not necessarily have the same level of judgment and self-control as an adult. Furthermore, it was clear that if only the car had been travelling at a lower speed, the accident would not have happened. They reduced the responsibility of the pursuer to 70%. On a further appeal to the Supreme Court, that court, by a majority of three to two, reduced the element of contributory negligence to 50%.
The basic approach to this kind of accident was provided by Lord Reid in the House of Lords decision of Baker-v-Willoughby  AC467. That case is more frequently cited because the unfortunate Claimant suffered injury to the identical part of his body in two successive accidents. However, Lord Reid dealt first with the problem arising from the fact that the Claimant was crossing quite a wide road without looking sufficiently and the Defendant was also failing to keep a proper lookout and both had some 200 yards distance to see each other. The trial judge had said that the contributory negligence should be 25%, but the Court of Appeal said that the two parties were equally negligent and so increased the contributory negligence figure to 50%. The House of Lords said that the trial judge was right and Lord Reid said, rejecting the view of the Court of Appeal, “There are two elements in an assessment of liability, causation and blameworthiness. I need not consider whether in such circumstances the causative factors must necessarily be equal, because in my view there is not even a presumption to that effect as regards blameworthiness. A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways, though he may have to observe a wide angle ahead: and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous”.
Those words are, to some extent, reminiscent of the observations of Denning LJ in Davies-v-Swan Motor Co (Swansea) Ltd  2 KB 291, 326:
“Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be “just and equitable”, having regard to the plaintiff’s “share in the responsibility” for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also its blameworthiness”.
Denning LJ went on:
“Speaking generally, therefore, the questions in road accidents are simply these: What faults were there which caused the damage? What are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault”?
The issues were considered again by the Court of Appeal in Eagle v Chambers  RTR 115. The Claimant was a 17 year old girl who was walking down the middle of a well-lit road late at night in what was described as an emotional state. She was shouted at by nearby witnesses to get off the road but continued on her obviously dangerous way. The Defendant motorist ran her down because he failed to see her because he had taken drink. The trial Judge held that she was 60% to blame for the accident but the Appeal Court changed that to 40%. It was there held that there were two aspects to apportioning liability between the Claimant and the Defendant, (a) the respective causative potency of what they had done and (b) their respective blameworthiness. The potential destructive disparity between the parties could be taken into account as an aspect of blameworthiness. Hale LJ said “It is rare indeed for a pedestrian to be found more responsible than a driver, unless the pedestrian has suddenly moved into the path of an oncoming vehicle”.
Indeed, in Hughes-Jukes v Etti  RTR 12, where a 37 year old man was trying to cross a dual carriageway after stepping out from behind a bus, and tried to run across the front of an oncoming motorcar, the Court (Holland J) followed Eagle v Chambers and held that the driver of the car was 60% liable for the injuries suffered by the Claimant.
By way of contrast in Aehrari v Curry  RTR 521, a 13 year old girl stepped out from behind a parked car on Brentford High Street and collided with the near side wing mirror of a vehicle being driven past the parked vehicle. The driver of the vehicle failed to see the Claimant. It was held that he ought to have seen the Claimant and would probably have been able to swerve to his right and so avoid the collision. The Judge found that the Claimant was 70% to blame for the accident and the Court of Appeal upheld that.
The majority of the Supreme Court, in following this line of decisions, and coming to the conclusion that the parties were equally responsible for the damage suffered by the pursuer, thus carried out a double assessment in that it was not simply an assessment of the degree of respective responsibility for the actual accident, but also an assessment of the degree of blameworthiness. This does involve both objective assessment of the actual events of the accident and, to some extent, a subjective assessment by the judge of his or her impression of the extent to which he or she would blame the respective parties. A similar issue arises in connection with employers’ liability since, just as the motorist has to watch out and seek to avoid colliding with a pedestrian, the employer has to bear in mind his duty of care to the employee and the court has to bear that in mind in assessing the respective responsibilities for an injury to the employee from either the employer’s system of working or machinery. The matter goes further: take the example of a public footpath crossing a golf course. A pedestrian on the footpath fails to heed or hear the cry of “fore” or to pay attention to whether any persons are likely to be striking a ball in his direction and is hit on the head by a golf ball. In apportioning liability, does the judge simply assess the respective responsibilities for the accident, or is there an additional factor of investigating the blameworthiness in particular of the golfer?
I will try to tackle these and some of the other problems brought to light in Jackson-v-Murray in a further blog to be published shortly.
JOHN M. COLLINS
10 Park Square