Thursday 19 February 2015

Contributory negligence ~ Supreme Court decision

Here is an interesting case from Scotland.  The legal principles involved will be much the same for England and Wales.   


The facts of the case arose 11 years ago - in 2004.  A collision took place on an "A" road near the junction of that road with a private road leading to a farm where the "pursuer" (claimant) - then aged 13 - lived with her family.  The "A" road had a 60 mph limit and was unlit.  It was about 40 minutes after sunset.   


The claimant had just got off the school bus which had parked on the opposite side of the "A" road to the private road to the farm.  The "respondent" (defendant) was driving home in the opposite direction and travelling at around 50 mph.  His car lights were on.  The pursuer walked behind the bus, got into the path of the respondent's car and she suffered serious injuries.  The judge (the Lord Ordinary) held that the pursuer was mainly to blame though the driver was also negligent.  The Lord Ordinary decided that the pursuer was 90% responsible though, on an appeal, this was reduced to 70%.

The Supreme Court allowed the pursuer's appeal by a majority of 3 to 2 and held that she was 50% responsible for her injuries. 


At one time, a finding that a claimant was also negligent could defeat the claim.  The essential unfairness of that common law rule was removed by the Law Reform (Contributory Negligence) Act 1945 which provides that:


"Where a person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable ... shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."


In passing this Act, Parliament actually borrowed a rule from Admiralty Law (Shipping) where contributory negligence had long been recognised.*


A judge having to apportion responsibility for an event that has caused injury or other damage often faces a difficult task.  This appeal will be of particular interest because of the statement that only a difference of view as to apportionment that exceeds the ambit of reasonable disagreement will warrant an appellate court finding that a lower court was wrong.


Should compensation for road accidents be governed by claims in tort (negligence)?  In the 1970s a Royal Commission under Lord Pearson examined that question and recommended a no fault compensation system to be paid for by a levy on fuel.  The recommendation was not implemented.  New Zealand has operated a compensation scheme since the 1970s - Accident Compensation Corporation.  See the Corporation's website


18 February 2015

Jackson (Appellant) v Murray and another (Respondents) (Scotland)

* For the historical perspective, the law student might be interested in reading The Volute [1922] 1 AC 129 - speech of Lord Birkenhead.  (It may be that the speech was actually written by Lord Phillimore).

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