Jackson v Murray [2015] UKSC 5

An appeal from assessment of contributory negligence of 70% against a 13 year old pedestrian who has stepped out from behind a school mini bus into the path of an oncoming car.

The appellant, who was, at the time of the accident, 13 years old, stepped out from behind her school mini bus and into the path of the respondents car.  The accident occurred at 4:30pm when the light was fading.

At first instance the Court assessed contributory negligence at 90%.

On appeal the Extra Division reduced her contributory negligence to 70%.

The Claimant appealed to the House of Lords.  The House of Lords stated the apportionment of responsibility under the Law of Reform (Contributory Negligence) Act 1945 s 1 (1) was inevitably a somewhat rough and ready exercise.  It was only a difference of view as to the apportionment of responsibility which exceeded the ambit of reasonable disagreement which could warrant a decision that the lower court had gone wrong.

It was the decision of the House of Lords that the Extra Division had gone wrong.  They had rightly considered that the appellant did not take care for her own safety, i.e. she did not look left before stepping out or failed to make a reasonable judgment of the risk posed by the Respondents car.  However, regard had to be taken of the fact the Claimant was only 13 years old, and did not necessarily have the same judgment and self-control as an adult.  The assessment of speed in the circumstances was far from easy.  A pedestrian crossing a road in these circumstances (relatively major road, with a 60mph speed limit, after dusk without street lighting) was not straightforward, even for an adult.

However, the respondent’s behaviour was culpable to a substantial degree.  He had to observe the road ahead, keep a proper look out, adjust his speed to potential hazards.  He was found not to have adjusted his speed to take into account the presence of the mini bus.  He should have heeded the Highway Code which states ‘at 40mph your vehicle will probably kill any pedestrians it hits’.

The House of Lords found the respondent’s conduct played at least an equal part in causing the damage and that a proper assessment of contributory negligence was 50%.

Annie Rachel Woodland (A Protected Party represented by her Father & Litigation Friend Ian Woodland) v (1) Deborah Maxwell (2) Essex County Council [2015] EWHC 273 (QB)

A swimming teacher and life guard both fell below the standard of care reasonably to be expected when they failed to notice a drowning incident involving a 10 year old child during a school swimming lesson at a public authority swimming pool.

The Claimant was attending a school swimming lesson at a public pool.  Shortly after she entered the pool she was seen by the swimming teacher to be floating vertically, she did not respond to questioning or physical touch. On the evidence the Claimant was in the water for around 50 seconds and was in trouble, taking in water for at least 30 seconds.  The Claimant’s fellow pupils had encountered her in the water in an advanced state of difficulties and had attempted to rescue her.  The Claimant was rescued and placed in the recovery position where she was noted to have erratic breathing, so mouth to mouth and cardio-pulmonary resuscitation were administered.  The Claimant suffered a cardiac arrest and serious brain injury due to lack of oxygen.

A claim was brought against the life guard who was on duty at the time of the lesson, and the local authority on the basis they had a non-delegable duty to take care of the Claimant in her school swimming lessons.  The claimant’s case was that the life guard and/or the swimming teacher failed to exercise reasonable care, failed to keep the pupils under observation when in the water, failed within a reasonable period of time to observe that the claimant was in difficulties, raise the alarm and effect a rescue.  Her treatment after she was rescued was not in issue.

HELD: The Claimant’s injuries were as a consequence of the near-drowning episode.  The probability was if she had been spotted and rescued earlier she would not have suffered the injury she did.  No good explanation was given as to why they failed to spot the Claimant for as long as 20-30 seconds, as the Claimant’s fellow pupils had seen her.  It was found that a failure to notice a pupil in difficulties in the water for more than 30 seconds fell below the standard of care reasonably expected of a teacher.  Both the lifeguard and the teacher were found to be liable, and the local authority was in turn liable for their negligence. 

Oliver Flint v (1) Elliott Tittensor (2) Motor Insurers Bureau [2015] EWHC 466 (QB)

Where a Claimant had committed minor criminal damage against the Defendant’s car sustained serious injuries when the Defendant deliberately drove his car at him.

The Claimant had been out for the evening and had become separated from his group.  His mobile phone was out of battery and he approached the Defendant to attempt to borrow a phone in order to make a call.  The Defendant was in his parked car outside a restaurant.  The Claimant had been drinking and had a history of aggressive behaviour.

The Claimant’s case was that the Defendant was aggressive when he refused use of his phone, whereupon the Claimant slammed his hand on the bonnet of the Defendant’s car, causing a dent.  The Defendant then drove forwards forcing the Claimant onto the bonnet.  The Defendant then reversed and drove forwards again, shaking the wheel to throw the Claimant off the bonnet.  The Claimant fell to the ground and sustained severe head injuries.

The Defendant’s account was that the Claimant had approached him in an aggressive manner and challenged him to get out of the car.  The Claimant put his hand on the bonnet and started punching the windscreen while screaming abuse.  The Defendant stated he had a genuine fear for his life.  He reversed before driving forwards in an attempt to dislodge the Claimant from the bonnet.

HELD: The Defendant had deliberately overstated the effect on him of the Claimant’s behaviour to try and hide the truth of his own response.  When the Defendant decided to drive forwards at speed towards the Claimant, the Claimant was in more danger than the Defendant was.  Although the Claimant had started the confrontation, he had not behaved in a way which caused the Defendant to either fear for his life or that he was in danger of suffering a really serious injury.  The Defendant had not explained why he did not simply reverse away, driving towards the Claimant was not a defensive action and was therefore, not reasonable or proportionate, therefore, the defence of self-defence failed.

The denting of the Defendant’s car amounted to minor criminal damage, however, the Defendant was guilty of a far more serious offence. Where a person responded to provocation in a way which far exceeded what was reasonable and was a serious crime, he was not absolved from liability on public policy grounds. The Defendant’s action of using the car as a weapon broke the chain of causation. 

Julie Shorter v Surrey and Sussex Healthcare NHS Trust [2015]

The claimant claimed damages for nervous shock following the death of her sister as a result of the admitted negligence of the defendant NHS Trust.

The claimant’s sister had collapsed with a severe headache and had been admitted to hospital. A CT scan was performed and she was told that she had not suffered a subarachnoid haemorrhage. She was discharged after two days. Seven days later she was readmitted with head and neck pain and a review of the CT scan showed that she had suffered a haemorrhage a week earlier. The sister’s husband telephoned the claimant to inform her that there had been an undetected haemorrhage, and that her sister’s condition had worsened. The claimant was a senior sister in a neuro-intensive care unit and was aware of the seriousness of her sister’s condition and the possibility of a further haemorrhage. She attended the hospital accident and emergency department and claimed that she saw her sister rolling around on a trolley, crying with pain, clutching her head and saying that she was in agony. The claimant returned home some hours later. She received a call from her sister’s husband informing her that her sister has suffered a seizure, and then later another call to say she had started fitting. She attended the hospital and saw her sister on life support and was told by the sister’s husband that she had “gone”. The sister died shortly afterwards. The claimant suffered from a major depressive disorder and sought damages from the Trust. The Trust admitted that the sister would probably have survived had it not negligently failed to diagnose a haemorrhage, and accepted that the close relationship between the claimant and her sister was such as to bring her within the class of persons eligible to bring a claim as a secondary victim. 

The claimant argued that she had been exposed to a seamless single horrendous event which she had directly witnessed and/or which she had directly and immediately been involved, whether by direct sight or by sound. The Trust argued that the claimant did not have the required degree of proximity to a specific and shocking event because the realisation of the danger to her sister had been gradual.

It was held that, on the balance of probabilities, the incidents over the two days of the second hospital admission had all contributed to the development of the claimant’s psychiatric disorder. However, she had to show that her psychiatric illness had been caused by the sight or sound causing an assault on her senses. She had to establish sufficient proximity to the event, a sudden and direct visual impression on her mind of witnessing the event or its aftermath. There had been no physical proximity when the claimant had been informed by telephone of the Trust’s negligence. When she saw her sister on the trolley she had not been in such a condition that to see her could be described as a horrifying event or cause violent agitation of the mind.

It was necessary to be cautious in finding that the claimant's professional expertise made the sight of her sister more horrifying than it would have been to a person without that knowledge. The event had to be one that would be recognised as horrifying by a person of ordinary susceptibility; in other words, by objective standards. After the claimant left the hospital, all the information she gained over the following nine hours had been by telephone, she had not seen her sister and had not been proximate to the unfolding events. It was not until she saw her sister on life support that the reality had become clear, but it was not a sudden or unexpected shock. There had not been a seamless single horrifying event; there had been a series of events over a period of time. The claimant had been proximate to some of those events, but most of her fear, panic and anxiety had been caused by information communicated to her by telephone, or face-to-face by her sister's husband when he told her that her sister had gone. None of the individual events within the series actually witnessed by the claimant had given rise to the sudden and direct appreciation of a horrifying event. Even when she had witnessed her sister on the life support machine, her perception had been informed by the information she had been receiving over the previous 15 hours and by her own professional knowledge.