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Jackson v Murray
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1 User Commentary

Melanie Davidson (In-house lawyer) 28 September 2015

Case Digest: Jackson v Murray and Another (Scotland) [2015] UKSC 5

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Whether the decision of the Extra Division of the Inner House, as to the apportioning of responsibility between pursuer and defender, was wrong.

Judgment was handed down in the case of Jackson v Murray and Another (Scotland) [2015] UKSC 5 on 18 February 2015. Lord Reed, with whom Lady Hale and Lord Carnwath agree, handed down the leading judgment and held that the decision of the Extra Division of the Inner House to attribute responsibility 70:30, in favour of the defender, was wrong. This was an interesting case for the court to hear because a question of apportionment would not usually raise an arguable point of law of general public importance meeting the criteria for permission to appeal to the Supreme Court; see Lord Denning's speech at page 1376 in Kerry v Carter [1969] 1 WLR 1372.

Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that where any person suffers damage as the result of their own and another person's fault, reduced "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". It does not specify how responsibility is to be apportioned. Guidance on this was drawn from Stapley v Gypsum Mines Ltd [1953] AC 663, 682 and Baker v Willoughby [1970] AC 467. After considering these cases, Lord Reed said at paragraphs 27 and 28 that "it is not possible to arrive at an apportionment which is demonstrably correct", as "[a] variety of answers can be given as to the amounts of responsibility apportionated on each party, and these views should be respected, within the limits of reasonable disagreement" (emphasis added).

In his decision Lord Reed held that it was the difference of view as to the apportionment of responsibility in the Extra Division that exceeded the ambit of reasonable disagreement. The Extra Division did not provide any satisfactory explanation of their conclusion that responsibility should be apportionated in a 90:10 split, the major share being arributed to the pursuer. The defender's conduct played, at least, an equal role in causing the damage and was at least equally blameworthy. This finding is substantially different from that of the Extra Division, warranting the conclusion that the Court was wrong.

In a dissenting opinion Lord Hodge, with whom Lord Wilson agreed, disagreed with the application of the test for apportionment. The Extra Division were entitled to share the Lord Ordinary's view that the pursuer was more responsible, supported by findings of fact from the Lord Ordinary's apportionment and established principles drawn from case law which favor the pursuer.

Appeal allowed. 50% of damages awarded to the pursuer.

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