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Jackson: Supreme Court allows appeal regarding contributory negligence, Andrew Smith QC for appellant

Jackson v Murray

The Supreme Court had the rare opportunity of considering the principles applicable to contributory negligence and reconsidering the apportionment of that liability. In allowing an appeal from the Inner House of the Court of Session in Scotland, the a a majority of the Justices held that the task that they had to carry out was to review the first instance decision, and not necessarily just consider the decision of the Inner House. The matter, on the findings before the first instance judge, were not challenged: and therefore it was open to the Supreme Court to reconsider the matter afresh.

The majority held that whilst there was considerable blame upon the Appellant, who crossed a roadway from behind a school minibus and was struck by the Respondent’s car, there was separate and substantial negligence on the part of the Respondent in driving towards a clear hazard at a speed that was unacceptably high when he ought to have been aware of the risk of a child emerging from behind the bus. The two types of negligence were different, and the causation of them to the loss were materially at odds. In such circumstances, the best that the court could do was equally apportion blame and therefore allowed the appeal and substituted a finding of 50% contributory negligence. At first instance, 90% was found; and on appeal 70% was found.

This case makes clear that a finding as to quantification of contributory negligence at first instance – or indeed on appeal – is not sacrosanct. If there is an error on the part of the lower court by failing to take into account material facts, or giving undue weight to facts as found, the matter can be reviewed on appeal. The principles applicable apply to all cases in the UK.

Andrew Smith QC appeared for the successful appellant.

A link to the judgment can be found here.



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