Facts
On 12 January 2004 on the A98 road between Banff and Fraserburgh, a 13 year old schoolgirl was struck by a car after alighting from her school bus. The car was driving along the road in the opposite direction at about 50mph, and did not slow down despite the school bus having stopped to let children get off. The light was fading and there were no street lights. The schoolgirl walked behind the bus to cross the road. She took one or two steps into the path of the car and then broke into a run. She was struck by the car and was projected into the air before landing on the road and sustaining serious injury.
Decisions and appeals
Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that where a person suffers damage partly as a result of his own fault, damages recoverable shall be reduced to such extent as the court thinks is just and equitable having regard to the that person's share in responsibility for the damage.
It was considered by the judge at first instance that the driver had shown a lack of care in driving at that speed in poor light, and a lack of regard for the possibility that school children might cross into his path. If he had been travelling at a slower speed then the schoolgirl would have been able to make it across the road and the accident would not have occurred. Despite this, the judge who heard the evidence held that the principal cause of the accident was the schoolgirl's recklessness in attempting to cross the road without checking that the road was clear. She was found to be 90% liable for the accident
On appeal, contributory negligence was reduced to 70%. It was considered that the schoolgirl was only 13 at the time of the accident and so did not have the same level of judgement as an adult. She would also have had difficulty in assessing the car's speed given the poor light. It also felt that the court at first instance had not placed enough emphasis on the actings of the driver.
The schoolgirl appealed to the Supreme Court and contended that there should be no finding of contributory negligence. That was rejected. However, the contributory negligence was reduced further, this time to 50%. It was noted that it is not possible to arrive at a "correct" apportionment of fault. Different judges will have different views of what is just and equitable in particular circumstances, and each view must be taken into account within the limits of reasonable disagreement.
The majority of judges in the Supreme Court considered that the lower court had not explained adequately why the schoolgirl bore the major share of responsibility. They felt that that the conduct of the driver played at least an equal role in causing the damage. Therefore, contributory negligence was assessed at 50%.
The opinions of the two dissenting judges are of particular interest. Although Lord Hodge referred to the original 90% assessment as being influenced by eye witness accounts, his opinion concluded that the Extra Division were entitled to reduce the contributory negligence percentage to 70% when they took into account the driver's prior failure to reduce his speed being one of the causes of the accident (therefore leaving him with a 30% share of the blame). Like the majority judges in the Supreme Court, Lord Hodge would have come to a different view than that of the judge who heard the evidence in this case.
Conclusion
This case, and its journey through the court system, highlights the differences of opinion as to fault which can arise from the same set of circumstances. There is usually more than one side to a story, and this case demonstrates that the fault attributed to each party can very much depend on the particular judge who hears the case. There is an often cited theory that it is the court of first instance, having heard the evidence, that is best placed to answer questions like the appropriate percentage of any contributory negligence, and that appeal courts will be slow to interfere with these findings. The decisions of the appeal courts in this case show a greater willingness to reach a different conclusion on the question than might have previously been anticipated. As the level of contributory negligence was revised not just once but twice, this decision may encourage others (both pursuers and defenders) to appeal decisions they consider are unjust.
