The judgment for the case of Lesley Heather Jackson v Andrew George Murray and Aviva Insurance UK Ltd has been handed down by the Supreme Court (SC) today (18 February). BLM acted for Andrew Murray and his insurers, Aviva Insurance, which was heard before the Court in October 2014.
Facts of the case
Lesley Jackson sustained serious injuries in a road traffic accident in which she was involved when she was 13 years old. She had alighted from a school minibus and was crossing the road when she was struck by a vehicle being driven by Andrew Murray. The judge hearing the case considered that whilst Andrew Murray ought to have slowed his vehicle down upon seeing the mini bus, the greater cause of the accident was Lesley Jackson’s decision to cross the road without making sure the road was clear. He determined that there should be a 90% reduction for her contributory negligence. This was reduced on appeal to 70% by the Inner House.
The solicitors acting for Lesley Jackson appealed that decision to the Supreme Court. Their primary position was that there should be no discount for contributory negligence on the part of Lesley Jackson given her age and the fact that she did not “dart out” in front of the vehicle. Their fall-back position was that if there was contributory negligence, it was less than 50%. BLM argued that there was no justification to further interfere with the findings of the Inner House.
Supreme Court findings
The Supreme Court, on a 3:2 majority, have further adjusted the apportionment of liability to a 50/50 split between the pursuer and defender.
Lord Reed, with whom Lady Hale and Lord Carnwath agreed, rejected the pursuer’s primary position that there was no contributory negligence. That contention was said to be inconsistent with the findings in fact. Lord Reed accepted that the matter of apportionment was not a precise science and that judges may legitimately take different views. However, in justifying their departure from the previous decisions, Lord Reed highlighted the qualitative difference in finding one party more blameworthy than the other as opposed to a finding of equal blame of the parties.
Lord Reed reviewed the evidential findings and the case law on this matter. Lord Reed took the view that this was a case where the cause of the accident was a combination of the Pursuer attempting to cross the road when she did and the defender’s driving at excessive speed and without keeping a proper look-out. In light of this, his opinion was that equal blame ought to be apportioned to each party. Lord Reed took the view that this exceeded the ambit of “reasonable disagreement” and justified a departure from the lower court’s decision. He was of the view that the Inner House’s decision was flawed and insufficiently explained.
Lord Hodge dissenting highlighted the “danger of an appellate Court attaching significance to findings which they do not carry and reinterpreting them and what may have lain behind them in a way which the judge, who heard the evidence, did not intend.” He noted in particular the pursuer’s counsel’s contention that the defender failed to react appropriately to the hazard lights on the bus. Lord Hodge highlighted that there was nothing in the Lord Ordinary’s findings that sought to treat the hazard lights as anything more than being used to alert drivers to the bus being stationary on the road. Further, the pursuer’s counsel was keen to emphasise other hazards that were present for the pursuer to consider. This was not something that was covered in the evidence nor detailed in the Lord Ordinary’s findings. In light of this Lord Hodge rejected the contention that these “alternative hazards” could be used to diminish the blame laid on the Pursuer.
One matter that all of the judges agree on is that in cases such as this, each case must depend on its particular facts and case law can only assist with general principles. Therefore, the apportionment finding itself will perhaps be of limited value albeit it does reinforce the view that as the driver of a vehicle it will always be difficult to escape a relatively high finding of liability regardless of the actions of the pedestrian.
Of more significance is the fact that the decision shows that whilst the appellate courts are reluctant to interfere with decisions of the lower courts, they will, on occasion seek to do so.
This begs the question as to who is the master of the facts. In this case, the two appeal courts who heard the case saw fit to interfere with the original decision. Insurers should therefore bear in mind that even if a decision at first instance provides a favourable outcome, there is no guarantee that this will remain in place. This could lead to more cases such as this being appealed which leave both sides with a level of uncertainty which is never desirable.