Jackson v Murray (2015) UKSC 5

Facts:

The claimant was a 13-year-old girl who stepped out of a mini bus and walked onto
the road from behind the bus. The defendant was driving the car above the speed limit and
crashed into the claimant causing severe injuries. The case was claimed in negligence where
damages were assessed at 90% due to contributary negligence which was then reduced to
70% on appeal.

Appellate History

In accordance to the court of session outer house, 90% fault was deemed suitable for
the 13-year-old claimant, reason being the party was ‘overwhelmingly responsible’.
Moreover, it was stated that the appellant was of appropriate age i.e., 13 years old to have a
sense of awareness of the dangers of road crossing. Even though the driver should have
slowed down accordingly, the girl did not look properly while crossing and failed to react in
the correct manner.

The court of extra division i.e. (Lord Clarke, Lord Drummond Young and Lord
Wheatley) reversed the above judgement from 90% to a 70:30% ratio (70% for the appellant
and 30% for the claimant). They gave four main reasons for this change, first being
insufficient explanation in regards for adverse conditions hindering the appellants
perceptions. Secondly, there was a lot importance given on the speed of the driver. Thirdly,
even though there was negligence the feature of calling the appellant ‘reckless folly’ was not
correct. Last but not the least the concept of blameworthiness and causation potency were
revisited in the light of the relative attributes of the parties.

Judgement (Majority)

There was equal distribution of responsibility seen when the judgement of CSIH was
reversed by the UKSC. The leading judgement was given by Lord Reed, which caused a lot
of arguments from the CSIH, yet despite of that Lord Reed questioned the logic for the 70%
apportionment to the appellant. The parliament dictates on the concept of blameworthiness
and causative potency to be taken into account when making a decision. It is also seen as per
the acknowledgment of CSIH that the causative potency of a vehicle is more significant than
that of a pedestrian, with a vehicle having the potential of being a dangerous weapon. Lord
Reed points out that even if this factor has precedent, it alone will not dictate the greater
apportionment to the respondent.

Going back to blameworthiness, Lord Reed compared the Jackson v Murray situation
to other cases such as, the decision in Eagle v Chambers (2004) shows us that vehicles driven
at a speed head towards the concept of blameworthiness (40% contributory negligence to the
claimant). Moreover, in Ehrani v Curry (2007) it is seen a child crossed the road negligently,
while a vehicle was travelling at a normal speed (70% offered to the child). Hence Lord Reed
states that there needs to be an equal share in causation and blameworthiness in the Jackson v
Murray case as he states “As it appears to me, the defender’s conduct played at least an equal
to the of a pursuer…”
 Lord Hodge is on the same page as Lord Reed in terms of the fact that there is no
apportionment of any court, is likely to achieve an objective distribution. Lord Hodge
expresses unease in regards the court’s reinterpretation of the CSIH’s apportionment i.e.,
“There is a danger of an appellate court attaching significant to findings which they do not
carry and reinterpreting them in a way which the judge who heard the evidence, did not
intend.”

Analysis

The Jackson case raises the need for a reform in terms of contributory negligence act
1945, and it also raises issues in terms of contributory negligence of children. I believe there
is no easy fix to this issue, as reforming the ‘just and equitable’ statutory requirement to
mitigate subjectivity may contradict the doctrine of precedent to the detriment of the
appropriate application of equity in a broader aspect.

Subjective reinterpretation in Jackson is identified by Margaret Fordham: “The

subjectivity inherent in assessing a lower court’s apportionment of damages is apparent in
Jackson”. Multiple reinterpretations, coupled with the “rough and ready” nature of
apportionment, when combined with a lopsided initial apportionment by the Lord Ordinary,
exaggerates the impact of subjectivity in Jackson. This suggests a potential for reform of the
statute.

The LRA1945 mandates the court to determine the outcome which is

most “just and equitable”. As such, subjectivity is an artefact of Parliament’s mandate,
as “[judges] may legitimately take different views of what would be ‘just and equitable’
in particular circumstances”. For Fordham, Lord Hodge’s deferential approach to
appellate intervention is indicative of an approach which mitigates the exaggeration of
subjectivity, as seen in Jackson: “Lord Hodge's minority judgment against disturbing
the decision of the Inner House arguably reflects a more faithful approach”.

This deference to lower courts suggested by Fordham, however, seems to raise

a question regarding the doctrine of precedence, i.e., that a higher court should
restrain its appellate intervention, when it may genuinely see fit not to do so on the
basis of equity. For starters, had the Inner House done so, then the flagrantly
incommensurate apportionment of the Lord Ordinary might have withstood less
scrupulous reinterpretation. It is the British regime of discretionary apportionment,
active in Jackson’s appellate interventions, which provisioned reinterpretation of the
Lord Ordinary’s apportionment, to affect a more equitable outcome.

On the other hand, Lesley-Anne Barnes Macfarlane contrasts Jackson with

Probert v Moore [2012] to highlight issues with subjectivity in contributory negligence
regarding children. In Probert, a child of 13 was not contributorily negligent whilst
walking, wearing dark clothing, on a street at night when struck. Meanwhile, various
judges, spanning the appellate history of Jackson, deduced various subjective
interpretations of caselaw to discern blameworthiness and causative potency,
attempting to effect equity; all despite such precedent, including the rule in Gough v
Thorne [1966], which states a child of 13 years old cannot be guilty of contributory
negligence, regardless. With Jackson now being binding, however, according to James
Goudkamp, there is little doubt that legislative intervention would be required to
restore such leniency with respect to children in contributory negligence