Contributory Negligence & Apportionment: What can you do if you are not happy?

Carwyn Cox discusses contributory negligence and apportionment.

A finding of Contributory Negligence means that damages should be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. What is the position where a party is dissatisfied with the reduction that is made by the court?

That was the position in the case of Jackson v Murray and another [2015] UKSC 5 (referred to in Case Law Update in the March 2015 Edition of the Farrar’s Building Personal Injury Update). Although a Scottish case it is clearly relevant to Practitioners in England and Wales and provides useful guidance on the circumstances in which an apportionment may be altered.

Contributory Negligence

Readers will be familiar with the basics, but it is worth a brief recap. Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945 states:

“Where any person suffers damage as the result partly of his own fault and partly the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

The burden of proving that there has been contributory negligence rests on the Defendant and it must also be proved that the alleged negligence caused the damage (Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152).

The Facts In Jackson

The Claimant was 13 years old at the date of the accident and lived on a farm. Access to the farm was gained by a Private Road that had a junction with an A-Road. The A-Road had a speed limit of 60mph. To get to and from school the Claimant and her sister were picked up and dropped off by a school minibus that had the correct markings on it to show that it was carrying school children. The Claimant and her Sister were dropped off on the opposite side of the road to the road to their home, and so they had to cross the A-Road.

The accident occurred at about 4.30pm. The light was poor and cars had their lights on. The minibus had stopped. It had its lights on, as well as its hazard lights.

The Defendant was driving in the opposite direction. The Defendant could see the stationary bus on the opposite side of the road, and had a clear view for 200 yards. He had seen the bus in this position before. At the time he was travelling at 50mph. His evidence was that he could not remember if he had thought about children getting off the bus, and regarded the risk of someone running out in front of him as irrelevant as it would not be his fault.

The Claimant emerged from the rear of the bus, took one or two steps out into the road and broke into a run. At that point the Defendant struck her. The evidence was that the Claimant was in his view for 1.5 seconds between emerging from the bus and the impact.

At first instance the Lord Ordinary found the Defendant to have been negligent by failing to keep a proper look-out. He failed to identify the bus as a school bus and therefore the risk that someone may try to cross the road. As a result he did not modify his driving by reducing his speed. It was found that the failure to slow down was causative, as if the Defendant had slowed down then the Claimant would have made it passed the car before the impact took place.

The court found that there was contributory negligence. At the age of 13 the Claimant knew the dangers of crossing the road, and that the Defendant’s car was only some 30-40 metres away. It was held that she bore the large proportion of the blame for the accident, and as a result contributory negligence was assessed at 90%.

The First Appeal

On appeal the Extra Division of the Inner House altered the apportionment to 70% for four reasons.

1. A 13 year old, whilst having an understanding of the dangers of traffic, would not have the same level of judgment and would have had difficulty assessing the speed of the Defendant.
2. The actions of the Defendant in failing to have any regard to the possible dangers that were in front of him made his culpability for the accident greater.
3. It was wrong to have described the actions of the Claimant as acts of “reckless folly” as this suggests that she acted without regard for the consequences.
4. On looking at the blameworthiness and causative potency of the respective parties actions one has to have in mind that the driver of a vehicle is in charge of a potentially dangerous weapon (Eagle v Chambers [2003] EWCA Civ 1107; [2004] RTR 115 and Smith v Chief Constable of Nottinghamshire Police [2012] EWCA Civ 161; [2012] RTR 294). As a result the causative potency to the driver is greater than to a pedestrian, and given that the finding at first instance was that if the Defendant had been travelling slower then the accident would not have occurred then the speed of the Defendant was causally significant.

The Supreme Court & Apportionment

The matter was then appealed to the Supreme Court. It was argued by the Claimant that there should not have been a finding of Contributory Negligence in the first place. That argument found no favour with their Lordships.

The real debate in this case was over the apportionment of liability. By a 3:2 majority it was held that the apportionment should be altered from 70% to 50%.

It was acknowledged that there was no guidance on apportionment in the Act. Guidance on how to carry out the task of apportionment was provided in Stapely v Gypsum Mines Ltd [1953] AC 663, 682 Lord Reid said: “A court must deal broadly with the issue of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but ‘the claimant’s share in the responsibility for the damage’cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness”.

In that case the deceased and a colleague were told to bring down a dangerous roof and to not work underneath it. They gave up on bringing down the roof and the deceased worked underneath it, and it collapsed. There was negligence on the part of the co-worker, but the Deceased contributed more to the incident, as it was his decision to work underneath the known dangerous roof. The House of Lords adjusted the apportionment from 50% to 80%.

More recently in Eagle v Chambers [2003] EWCA Civ 1107; [2004] RTR 115 Hale LJ stated that there were two aspects to the apportionment of liability. The causative potency of the action and its blameworthiness. It was in this case that the comment regarding the high burden that rests on the drivers of motor vehicles given that they were in charge of potentially lethal weapons was made. In that case the Claimant was walking in the middle of the road in an emotional state and the Defendant was driving under the influence of alcohol and failed to see her when he should have done. At first instance the Claimant was 60% to blame, on appeal this was altered to 40%. The motorist should have borne the greater share of responsibility.

In Jackson Lord Reed accepted that it was not possible to arrive at an apportionment that is demonstrably correct, and that it was necessarily a rough and ready exercise. As a result “differing views should be respected, within the limits of reasonable disagreement”.

In Baker v Willoughby [1970] AC 467 Lord Reid stated at p.490 that “The Court of Appeal recognised that the trial judge’s assessment ought not to be varied unless ‘some error in the judge’s approach is clearly discernible’.”

What is therefore important to remember is that appellate courts will interfere with findings of apportionment. In order to do so though the appellant must establish that the judge on apportionment “has gone wrong in principle or is shown to have misapprehended the facts: but, even if neither of these is shown, we will interfere is we are of the opinion that the judge was clearly wrong.” (Kerry v Carter [1969] 1 WLR 1372 per Lord Denning MR).

What does wrong mean? Lord Reed at paragraph 35 of Jackson said:

“The question, therefore, is whether the court below went wrong. In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, or the failure to take account of a relevant matter, it is only a difference of view as to the apportionment of responsibility which exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong. In other words, in the absence of an identifiable error, the appellate court must be satisfied that the apportionment made by the court below was not one which was reasonably open to it.”

Lord Reed went on to state that authorities show that apportionments are not altered on the basis that there is disagreement as to the precise figures, but rather on the basis that there is a disagreement as to the basis of the assessment of responsibility. It is therefore extremely unlikely that an appeal on the basis that someone should have been found to be 40% to blame as opposed to 25% would succeed. On the other hand, where the first instance Judge has found a party more to blame and that is wrong then an appellate court will intervene.

Lord Reed, giving the opinion of the majority in Jackson, then went on to explain given the comments of the first Appellate court in that case as set out above that the conduct of the Defendant was at least equal to that of the Claimant and that as a result, given that equal responsibility is substantially different to a party being substantially responsible that exceeded the wide ambit of reasonable disagreement and warranted a finding that the court was wrong. The Claimant was therefore 50% to blame for the accident.

Lord Hodge who gave the opinion of the minority accepted the legal principles, and also that the first instance Judge had got it wrong, but felt that he could not agree that the first appellate court was wrong.

Conclusion

It remains the case that the alteration of an apportionment of liability will not be easy to achieve in the majority of cases, and is almost certainly impossible where an aggrieved party simply disagrees by how much they have been found to blame. In instances where the court has got it wrong by blaming one party more than the other when that decision is wrong, the prospects of success are greater.

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Author: Carwyn Cox Farrars (chambers@farrarsbuilding.co.uk)

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