As most will be aware, a finding of contributory negligence means that any damages awarded to a Pursuer will be reduced by such an extent as the court considers is "just and equitable" having regard to the Pursuer's share in the responsibility for the damage.
The concept of contributory negligence is enshrined in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 which states:
"Where any person suffers damage as the result of his own fault and partly 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 an extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."
The onus of providing that contributory negligence ought to apply will rest with the Defender. In general, the decision is one based on the facts and circumstances of the case. Further, whilst the above section sets out the genera concept of when contributory negligence will apply it does not set out how the responsibility is to be apportioned between the parties.
The common law has generally defined two aspects of how to apportion the blame namely the "causative potency" of each party and the "relative blameworthiness".
The recent case of Jackson v Murray and Another (Scotland) Supreme Court - 18 February 2015 considers in detail, the operation of these two concepts of "causative potency" and "relative blameworthiness". This is a relatively unusual case as it is firstly a Scottish case decided by the Supreme Court and secondly it is one focusing on the relative merits of contributory negligence as applies in a road traffic accident.
Briefly, the circumstances of this accident were that the Pursuer was a 13 year old girl at the date of the accident. The Pursuer and her sister were dropped off by a school minibus on the opposite side of the road to their home and therefore required to cross a busy road to get home. The accident occurred at about 4.30 pm. The light was poor and most of the cars had their headlights on. The minibus having stopped, had its headlights as well a its hazard lights on.
The Defender was driving in the opposite direction to the minibus. He could see the stationary bus on the opposite side of the road and had a clear view for 200 yards. At the time he was travelling at around 50 miles per hour in a 60 mile per hour zone.
The Pursuer emerged from the rear of the bus, took one or two steps onto the road and broke into a run. She was then struck by the Defender. The evidence was that the Pursuer was in the defender's view for about 1.5 seconds between emerging from the bus and the impact.
It was established at the first instance from the evidence that the Defender had failed to keep a proper lookout. He hadn't identified the bus as a school bus and therefore it didn't occur to him that there was a risk of anybody crossing the road. As a result, he did not modify his driving by reducing his speed.
However, in light of the pursuer's actions in running across the road, the court considered that she was 90% responsible for her injuries. This was appealed to the Inner House in which the apportionment of the blame was reduced to 70%. The case was again appealed to the Supreme Court. When the matter came before the Supreme Court, they had to consider the apportionment of blame taking account of the two above concepts of "causative potency" and "relative blameworthiness".
By a majority of 3 to 2, the court considered that the relative apportionment of blame ought to be 50/50.
Lord Reed considered that
"A court must deal broadly with the issue of apportionment and considering what is just and equitable must have regard to the blameworthiness of each party but the claimant's share in the responsibility of the damage cannot I think be assessed without considering the relative importance of his acts in causing damage apart from his blameworthiness".
The court considered the high burden that rests on drivers of motor vehicles particularly in areas where there would be an increased heightened risk such as the presence of the school buses at or around the time when it is likely that school children will be coming home from school.
It is often said that, when considering the apportionment of contributory negligence, a fair settlement is one where both parties feel they have been hard done to as opposed to perhaps the situation in this case at first instance and on appeal where the Defender considered that they had walked away with a surprisingly favourable result to them. Given the circumstances of this case, one could not be criticised for taking the view that, in circumstances where a child is knocked down on a busy road after having alighted from a stationary school bus at a time which is at or around the end of the school day, a court is likely to hesitate to apportion too much blame on the child even in the circumstances where the child's action in running onto the road have resulted in the Defender driver having very little opportunity to avoid the accident. One could argue that it really has to be that way to send a clear message to all motorists that, in circumstances where there is a heighted risk of "something unusual" happening, drivers have to be extra especially vigilant to all the possibilities. Failing to do so, is just not an option.
It is of course, an area of law which is evolving and it perhaps will not be too long before the Supreme Court must again consider what is "just and equitable" in a case perhaps another area of personal injury law.
The Personal Injury team here at Calio Claims has extensive experience in working with clients on all aspects of road traffic accidents involving cars, cycles and motorbikes, and we recently settled a case involving a 50/50 split settlement. We can also assist in relation to recovering substantial damages and providing rehabilitation, care requirements and loss of livelihood.