UKSC 5
On appeal from:  CSIH 100
Jackson (Appellant) v Murray and another (Respondents) (Scotland)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 20 October 2014
Andrew Smith QC
(Instructed by Drummond Miller LLP)
Graham Primrose QC
(Instructed by BLM Glasgow LLP)
LORD REED: (with whom Lady Hale and Lord Carnwath agree)
The facts of the case
The negligence of the defender
"46. … Either she did not look to the left before proceeding across the road or, having done so, she failed to identify and react sensibly to the presence of the defender's car in close proximity. On either scenario, the overwhelmingly greater cause of this unhappy accident was the movement of the pursuer into the path of the defender's car at a time when it was impossible for him to avoid a collision.
47. One has, therefore, in my opinion, a situation in which the pursuer bears responsibility for having committed an act of reckless folly, and the defender bears responsibility for having failed to take reasonable care for the safety of a person such as the pursuer who might commit an act of reckless folly. In that situation, I consider that a very large proportion of the overall responsibility rests upon the perpetrator of the act."
On that basis, the Lord Ordinary assessed contributory negligence at 90%.
(1) "In the first place, we are of opinion that insufficient regard was had to the circumstances of the pursuer. The pursuer was only 13 at the time of the accident. While at 13 she was old enough to understand the dangers of traffic, a 13 year old will not necessarily have the same level of judgment and self-control as an adult. Moreover, in assessing whether it was safe to cross, she was required to take account of the defender's car approaching at a fair speed, 50 mph, in very poor light conditions with its headlights on. The assessment of speed in those circumstances is far from easy even for an adult, and even more so for a 13 year old."
(2) "In the second place, we are of opinion that greater stress should have been placed on the actings of the defender. He was found to have been driving at excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus. The danger was obvious because the minibus had its hazard lights on. The Lord Ordinary inferred that as he approached the minibus the defender did not address his mind to the risk that a person might emerge from behind it and attempt to cross the road. In all the circumstances we consider that the defender's behaviour was culpable to a substantial degree, and that that is a factor which should be taken into account."
(3) "In the third place, we are of opinion that the Lord Ordinary was wrong to describe the actings of the pursuer as 'an act of reckless folly'. Those actings were clearly negligent, but recklessness implies that the pursuer acted without caring about the consequences. We do not think that such a description of the pursuer's conduct is justified on the facts found by the Lord Ordinary."
(4) "In the fourth place, the causative potency of the parties' actings must be taken into account. Two factors are relevant in this connection. First, in apportioning responsibility account must be taken not only of the relative blameworthiness of the parties but also the causative potency of their acts. As is pointed out in Eagle [v Chambers  EWCA Civ 1107;  RTR 115] and Smith [v Chief Constable Nottinghamshire Police  EWCA Civ 161;  RTR 294], a car is potentially a dangerous weapon, and accordingly the attribution of causative potency to the driver must be greater than that to the pedestrian. Secondly, the Lord Ordinary held that the pursuer would have escaped the accident had she had an additional 1.12 seconds available. That suggests that the defender's excessive speed was causally significant."
"When all of these factors are taken together, we are of opinion that they clearly support an apportionment that is more favourable to the pursuer than the Lord Ordinary's apportionment. We nevertheless recognize that the major share of responsibility must be attributed to the pursuer, because her negligence was both seriously blameworthy and of major causative significance."
Was there contributory negligence?
"Where any 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 in respect thereof 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."
"A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but 'the claimant's share in the responsibility for the damage' cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness."
"The Court of Appeal recognised that the trial judge's assessment ought not to be varied unless 'some error in the judge's approach is clearly discernible.' But they appear to have thought it impossible to differentiate when both parties had a clear view of each other for 200 yards prior to impact and neither did anything about it. I am unable to agree. 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 over 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 ... In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."
Review of apportionment
"We have been referred to cases on this subject, particularly the recent case of Brown v Thompson  1 WLR 1003. Since that case it seems to have been assumed in some quarters that this court will rarely, if ever, alter an apportionment made by the judge. Such is a misreading of that case. I think that the attitude of this court was correctly stated in that case, at p 1012, by Edmund Davies LJ when he quoted from the judgment of Sellers LJ in Quintas v National Smelting Board  1 WLR 401, 409. This court adopts in regard to apportionment the same attitude as it does to damages. We will interfere if the judge has gone wrong in principle or is shown to have misapprehended the facts: but, even if neither of these is shown, we will interfere if we are of opinion that the judge was clearly wrong. After all, the function of this court is to be a Court of Appeal. We are here to put right that which has gone wrong. If we think that the judge below was wrong, then we ought to say so, and alter the apportionment accordingly." (p 1376)
In that case, the court altered an apportionment which placed 80% of the responsibility on the defendant to one which placed two-thirds of the responsibility on the plaintiff. The dictum of the Master of the Rolls has been applied in subsequent cases: see, for example, Pride Valley Foods v Hall and Partners  76 Con LR 1.
"It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed."
"An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong."
The case of Beattie concerned contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage. The dictum would apply a fortiori to apportionment under the 1945 Act, where the difficulties are more acute, for the reasons I have explained.
"Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as 'blatant error' used by the President in the present case, and words such as 'clearly wrong', 'plainly wrong', or simply 'wrong' used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."
The present case
"We nevertheless recognize that the major share of responsibility must be attributed to the pursuer, because her negligence was both seriously blameworthy and of major causative significance."
The Extra Division had however already stated, at para 27, that "the defender's behaviour was culpable to a substantial degree". They had also stated, at para 28, that "the defender's excessive speed was causally significant" and that "the attribution of causative potency to the driver must be greater than that to the pedestrian". It would appear to follow that it could be said of the defender, as well as the pursuer, that his "negligence was both seriously blameworthy and of major causative significance". Why then did the Extra Division conclude that "the major share of responsibility must be attributed to the pursuer"?
LORD HODGE: (with whom Lord Wilson agrees)
"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."
The reason for that is not hard to find: it is the vehicle's potential to injure. The Highway Code states that a vehicle driven at 40 mph is likely to kill a pedestrian if it hits her. The Extra Division recognised this and attributed greater causative potency to the defender than to the pursuer. In reaching their apportionment the Extra Division clearly thought that the pursuer's behaviour was significantly more blameworthy than the defender's. The question therefore is: "do the Lord Ordinary's findings of fact give sufficient support to that conclusion?".