Liability update – April 2015

Liability update – April 2015


CategoryArticles Author James Todd Date

This article was taken from the Personal Injury Newsletter – April 2015.

Contributory negligence of a child injured in an RTA: Some rare high level guidance on an issue that personal injury practitioners have to grapple with regularly is to be found in the Supreme Court decision in Jackson v Murray1.The injured appellant was a 13 year old girl who stepped out from behind her school minibus into the path of a driver proceeding at what had been found to be an excessive speed (50mph in a 60mph limit) that he did not modify to take into account the obvious potential danger presented by the minibus, which had its hazard lights on. At first instance, the Lord Ordinary found for the pursuer but reduced damages by 90% for her ‘recklessness’ in attempting to cross the road without proper care. On appeal, this was reduced to 70% but the pursuer pressed on to the Supreme Court. There, a five judge court found by a majority of 3:2 that the correct apportionment was 50/50. The court recognised that a 13 year old girl would not necessarily have the same level of judgment and self-control as an adult. Also, that the level of danger created by the speed of the car pointed to a very considerable degree of blameworthiness on the part of the driver. Perhaps the most memorable expression of juridical wisdom from the Supreme Court’s judgment is that no court in a case like this can reach an apportionment that is ‘demonstrably correct’. However, the dissenting minority struggled with the notion that the decision at the first appeal had been the reverse of that and hence susceptible to alteration.

Standard of care when supervising child swimmers: In >Woodland v Maxwell & Essex County CouncilBlake J had to consider whether a teacher and a lifeguard failed in their duty of supervision when a 10 year old child almost drowned during a school swimming lesson at a local authority pool. In what was clearly a highly fact sensitive decision, the judge found that neither had been paying sufficient attention and as a result both had failed to observe the claimant in difficulties within a reasonable time and rescue her. The child’s treatment when rescued was not the subject of criticism; it was the fact that the claimant was in the water in difficulty for at least 50 seconds and that no good explanation was given for the failure to recognise that for as long as 30 seconds, those seconds, sadly and crucially, having been causative of the claimant’s brain damage.

Using a vehicle as a weapon, even in supposed self- defence: In a case that brings to mind scenes from an action film, the claimant in NA v Notts County Councilwas injured when he was thrown from the bonnet of a moving car which, on the defendant driver’s account, he had been clinging to while also punching the windscreen and screaming abuse at the driver after an argument. The claimant had been drinking and had a history of aggressive behaviour (albeit one that was unknown to the defendant). He had been responsible for starting the altercation. The defendant claimed that he was in genuine fear of his life and was trying to dislodge the claimant from the bonnet of his car. Edis J rejected that part of the defendant’s account, finding that it was the claimant, hanging on to the bonnet of a moving car that was trying to shake him off, who was in real danger. The claimant may have started the confrontation with his aggressive conduct, but he had proved that he had been injured by the defendant’s deliberate acts. That amounted to a battery that was actionable subject to any justification on the grounds of reasonable self-defence

At the outset, the defendant could have just reversed away, rather than drive towards the claimant and force him onto the bonnet. That was not a defensive action and it was not reasonable for the defendant to believe that he needed to use force to defend himself. The claimant’s actions were no justification for the defendant’s actions and a party who responded to provocation to a degree that was far in excessive of what was reasonable (and amounted itself to a crime) could not be absolved from liability on public policy grounds. The claim succeeded.

Causation in a six-pack breach case: Lastly, some light relief in the form of a common sense decision on the Management of Health and Safety at Work Regulations 1999. The claimant in Fuller v West Sussex Council3 was a receptionist who was asked to deliver post around the office. No risk assessment of this potentially dangerous task was carried out and, in the course of making her deliveries, the claimant tripped up a staircase and fell, spraining her wrist. She alleged that the failure to risk assess the task was a breach of duty and that as a result she suffered her injury. The trial judge felt compelled to allow the claim on that seemingly logical basis. The Court of Appeal disagreed, finding that there was no causal link between the breach and the injury. Tripping up some stairs was an accident that could have happened to the claimant at any time while in the offices and it was not a risk that fell within the ambit of the duty. Appeal allowed.

This article was written by James Todd.


1 [2015] UKSC 5
2 EWHC 273
3 [2015] EWCA 189


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