Fitzgerald (Appellant) v. Lane and another (Respondents)
(First Appeal)
Fitzgerald (Appellant) v. Lane and another (Respondents)
(Second Appeal)
(Consolidated Appeals)
JUDGMENT
Die Jovis 14° Julii 1988
Upon Report from the Appellate Committee to whom was
referred the Cause Fitzgerald against Lane and another (First
Appeal) and Fitzgerald against Lane and another (Second
Appeal) (Consolidated Appeals), That the Committee had heard
Counsel on Tuesday the 14th day of June last upon the
Petitions and Appeals of Simon Peter Fitzgerald, of
“Brambles”, 23 Broomfield Ride, Oxshott, Surrey, praying that
the matter of the Orders set forth in the Schedules thereto,
namely Orders of Her Majesty’s Court of Appeal of the 6th day
of March 1987, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Orders might be
reversed, varied or altered or that the Petitioner might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet (which said Appeals
were by Order of the House of the 15th day of June 1987
consolidated) ; and due consideration had this day of what was
offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty’s Court of
Appeal (Civil Division) of the 6th day of March 1987
complained of in the said Appeals be, and the same are
hereby, Affirmed and that the said Petitions and Appeals be,
and the same are hereby, dismissed this House: And it is
further Ordered, That the Appellant do pay or cause to be paid
to the said Respondents the Costs incurred by them in respect
of the said Appeals, the amounts thereof to be certified by
the Clerk of the Parliaments if not agreed between the
parties.
Cler: Asst. Parliamentor:
Judgment: 14.7.88
HOUSE OF LORDS
FITZGERALD
(APPELLANT)
v.
LANE AND ANOTHER
(RESPONDENTS) (FIRST APPEAL)
FITZGERALD
(APPELLANT)
v.
LANE AND ANOTHER
(RESPONDENTS) (SECOND APPEAL)
(CONSOLIDATED APPEALS)
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Oliver of Aylmerton
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Ackner. I agree with it and for the reasons he gives I would dismiss the appeal,
LORD BRANDON OF OAKBROOK
My Lords,
For the reasons given in the speech to be delivered by my
noble and learned friend, Lord Ackner, I would dismiss the appeal.
LORD TEMPLEMAN
My Lords,
For the reasons given by my noble and learned friend, Lord
Ackner, I would dismiss the appeal.
– 1-
LORD ACKNER
My Lords,
On the afternoon of 21 March 1983 the appellant (“the
plaintiff), then aged 22, was involved in a tragic accident when
crossing Esher High Street, Surrey. The plaintiff was at the time
employed by a well known firm of estate agents and surveyors as
a trainee negotiator at their Esher branch. Esher High Street has
a carriageway which is 30 feet wide and runs approximately north
south. It has service roads on both sides separated from the
carriageway by footpaths and, fronting the service roads, are shops
and offices. The plaintiff’s employers have premises on the
eastern side of the service road, about 50 yards from a pelican
crossing. At about 3.50 p.m. the plaintiff was asked to go to a
house a mile or so away to meet a prospective purchaser. As his
car was parked in the service road on the north western side of
the High Street, he walked to the pelican crossing. The traffic
was heavy. There were two lanes of traffic moving south. The
nearside lane had been travelling slowly and a car had stopped just
before the studs of the crossing. The second line was travelling
fairly freely. Although the traffic lights were green to the road
traffic and red against the pedestrians, the plaintiff, without
stopping, walked at a brisk pace across the pelican crossing. He
passed in front of the stationary car and into the path of the first
respondent’s (“the first defendant”) car. As a result he was struck
by the offside front corner of the car, thrown up onto the bonnet,
came into contact with the windscreen which shattered, and was
then thrown forward and onto the offside of the road, where he
was struck by the second respondent’s (“the second defendant”) car
which was being driven in the opposite direction, that is in a
northerly direction. As a result of these collisions the plaintiff
sustained multiple injuries and, in particular, a discloation of the
cervical spine resulting in partial tetraplegia.
Sir Douglas Frank Q.C., sitting as a deputy judge of the
Queen’s Bench Division, in a reserved judgment found that all
three parties had been negligent. He assessed the total damages
in the sum of £596,553.67. Having concluded that both defendants
were responsible for the plaintiffs tetraplegia he then said:
“As to the apportionment of the liability, on the facts I
have recited I find that it is impossible to say that one of
the parties is more or less to blame than the other and hold
that the responsibility should be borne equally by all three.”
At the conclusion of his judgment he observed:
“In view of my findings, one third of the amount of the
award will be paid by each of the defendants.”
Following submissions made by Mr. Robin Stewart Q.C. for
the plaintiff, the judge entered judgment for the plaintiff against
the defendants for two-thirds of the total damages.
Both the defendants appealed to the Court of Appeal [1978]
Q.B. 781, each contending that the judge was wrong in finding
negligence against them, alternatively, that the plaintiff should
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have been ordered to bear a greater share of the responsibility.
The second defendant further contended that the judge was wrong
in equating his share of the responsibility with that of the first
defendant, further that his collision with the plaintiff did not
cause the tetraplegia, since it had already been caused by the first
defendant. Additionally he challenged the validity of the judge’s
decision on certain items of damage, which he had awarded in
favour of the plaintiff. The Court of Appeal affirmed the judge’s
decisions on all the matters raised by the respective notices of
appeal. However, during the course of the appeal, Sir Edward
Eveleigh queried whether the order giving the plaintiff judgment
against both defendants for two-thirds of the total damages did
truly represent the judge’s decision, that no one of the parties was
more or less to blame than the other. After hearing further
argument on this issue, the Court of Appeal allowed the appeal to
the extent of varying the judge’s order, so that it provided that
the plaintiff should have judgment against each defendant for 50
per cent, of his claim. The Court of Appeal gave leave to appeal
to your Lordships’ House.
The Basis of the Court of Appeal’s Decision
Sir Edward Eveleigh, giving the first judgment said, at pp.
793-794 said:
“The judge’s finding indicates that he thought that each of
the three parties was equally at fault. That being so, the
correct form of judgment should be ‘judgment for the
plaintiff for 50 per cent, of his claim against each
defendant.’ There would then follow an order for
contribution between the two defendants on a fifty-fifty
basis. Subsection (1) of section 1 of the Law Reform
(Contributory Negligence) Act 1945 reads:
‘Where any person suffers damage as the result partly
of his own fault and partly of 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 damage
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 . . .’
In applying this subsection, I have always understood that
the court should consider the position between the plaintiff
and each defendant separately. In The Miraflores and The
Abadesa [1967] 1 A.C. 826 Lord Pearce said, at p. 846:
‘To get a fair apportionment it is necessary to weigh
the fault of each negligent party against that of each
of the others. It is, or may be, quite misleading to
substitute for a measurement of the individual fault
of each contributor to the accident a measurement of
the fault of one against the joint fault of the rest.’
The case was concerned with apportionment under section 1
of the Maritime Conventions Act 1911, but the observation
of Lord Pearce, which I have quoted, related to the
– 3 –
hypothetical facts of a factory accident case which he had
postulated. Later, referring specifically to the Law Reform
(Contributory Negligence) Act 1945, section 1, he said, at p.
846:
‘Its intention was to allow a plaintiff, though
negligent, to recover damages reduced to such an
extent as the court thinks just and equitable, having
regard to his share in the responsibility for the
damage (section 1(1)). But that share can only be
estimated by weighing his fault against that of the
defendant or, if there are two defendants, against
that of each defendant. It is true that apportionment
as between the defendants comes theoretically at a
later stage (under the Law Reform (Married Women
and Tortfeasors) Act 1935). But as a matter of
practice the whole matter is decided at one time and
the court weighs up the fault of each in assessing
liability as between plaintiff and defendants
themselves. And I see nothing in the Act of 1945 to
show that it intends the court to treat the joint
defendants as a unit whose joint blameworthiness
could only, one presumes, be the aggregate
blameworthiness of its differing components’
Let us assume that the first defendant had suffered injury
from the flying glass of his windscreen and that he had
counterclaimed against the plaintiff for damages. Would he,
too, have been entitled to two-thirds of his damages against
the plaintiff? The illogicality of two parties equally to
blame being found liable for two-thirds of each others
damages is too obvious. I would allow the appeal of each
of the defendants in relation to the apportionment and order
judgment for the plaintiff against each defendant for 50 per
cent, of the plaintiff’s claim and order contribution between
the defendants on a fifty-fifty basis.”
Slade L.J., having earlier in his judgment dealt with (1) the
liability of the first defendant; (2) the liability of the second
defendant; (3) causation, then said [1987] Q.B. 812-814:
“At the trial the plaintiff’s counsel conceded that he was
guilty of contributory negligence. In these circumstances,
the judge, having decided issues (1), (2) and (3) above in
favour of the plaintiff, had two further decisions to make,
apart from those relating to the quantum of damage. First,
he had to decide the extent to which the damage
recoverable should be reduced by reason of the plaintiff’s
own fault under section 1(1) of the Law Reform
(Contributory Negligence) Act 1945. Secondly, he had to
decide how great a contribution in respect of the damage
each defendant should recover from the other under section
1(1) of the Civil Liability (Contribution) Act 1978. The
judge dealt very briefly with the questions of contributory
negligence and contribution together in the passages cited or
referred to by Sir Edward Eveleigh in his judgment. As Sir
Edward Eveleigh has said, the judge’s finding indicated that
he considered each of the three parties to be equally at
fault. Section 1(1) of the Act of 1945 requires the damages
– 4 –
recoverable to 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.’ Counsel on
behalf of each of the respective defendants has submitted in
effect that on any footing the plaintiff’s share in the
responsibility for the damages was, on the facts, greater
than that of his client and the judge should have applied the
subsection accordingly.
“I have considerable sympathy with this submission.
There can be no doubt that the plaintiff was, to a
significant extent, the creator of his own great misfortune.
It was he who set in motion the whole train of events, by
carelessly and unnecessarily hurrying into a busy road at a
pelican crossing at a time when the lights were red for
pedestrians and green for traffic, and when a line of more
or less stationary traffic in the nearside lane increased the
risk of injury from traffic approaching from the offside
lane. In contrast, each of the defendants, as a result of
the plaintiff’s negligence, found himself confronted by a
quite unexpected emergency. If hearing the case at the
trial, I might well have held that the plaintiff’s share in the
responsibility for his injuries must be regarded as larger
than that of either of the defendants. However, this court
is always slow to interfere with the decision of a judge of
first instance on a question of apportionment such as this,
and subject to what is said below, I see no sufficient
grounds to interfere with the decision of the judge in this
context.
“Nevertheless, I do not think that the form of order
actually made by the judge gave effect to his clear
conclusion that the plaintiff’s responsibility for the injury
was no less (though no greater) than that of either of the
defendants. If only one of the defendants had appeared
before him, this conclusion must, more or less inevitably,
have led to a ruling that the damages recoverable by the
plaintiff against that defendant should be reduced by 50 per
cent, (not 33 1/3 per cent.) under section 1(1) of the Act of
1945. I can see no possible grounds in principle or logic
why the amount of the reduction should be less, merely
because two defendants were parties to the action instead
of one. On the issue of contributory negligence, the judge,
with respect to him, was, in my opinion, led into error by
considering the share of the responsibility of the plaintiff
for his injury vis-à-vis the defendants conjunctively instead
of individually; ‘that share can only be estimated by
weighing his fault . . . against that of each defendant’: see
The Miraflores and The Abadesa [1967] 1 A.C. 826, per Lord
Pearce at p. 846. (The emphasis is mine.) If the judge had
taken the latter course, it seems clear that he would have
regarded the responsibility of the plaintiff vis-à-vis each
defendant as being 50 per cent.
“Section 2(1) of the Act of 1978 requires that, as
between the two defendants, the amounts of their respective
contributions ‘shall be such as may be found by the court to
be just and equitable having regard to the extent of that
person’s responsibility for the damage in question.’ I see no
– 5 –
sufficient grounds for differing from the judge’s conclusion
that the responsibility of each of the two defendants for
that part of the injury for which the plaintiff was not
responsible was equal. I therefore agree that the appeal of
each of the defendants should be allowed on the limited
issue of apportionment, and that the judge’s order should be
varied by giving judgment for the plaintiff against each
defendant for 50 per cent, (instead of two-thirds) of the
plaintiff’s claim and by ordering contribution between the
defendants on a fifty-fifty basis.”
Nourse L.J. agreed with the views of Sir Edward Eveleigh and
Slade L.J. as set out above [1987] Q.B. 781, 800.
The Correct Approach to the Determination of Contributory
Negligence, Apportionment and Contribution
It is axiomatic that whether the plaintiff is suing one or
more defendants, for damages for personal injuries, the first
question which the judge has to determine is whether the plaintiff
has established liability against one or other or all the defendants
i.e. that they, or one or more of them, were negligent (or in
breach of statutory duty) and that that negligence (or breach of
statutory duty) caused or materially contributed to his injuries.
The next step, of course, once liability has been established, is to
assess what is the total of the damage that the plaintiff has
sustained as a result of the established negligence. It is only
after these two decisions have been made that the next question
arises, namely, whether the defendant or defendants have
established (for the onus is upon them) that the plaintiff, by his
own negligence, contributed to the damage which he suffered. If,
and only if, contributory negligence is established does the court
then have to decide, pursuant to section 1 of the Law Reform
(Contributory Negligence) Act 1945, to what extent it is just and
equitable to reduce the damages which would otherwise be
recoverable by the plaintiff, having regard to his “share in the
responsibility for the damage.”
All the decisions referred to above are made in the main
action. Apportionment of liability in a case of contributory
negligence between plaintiff and defendants must be kept separate
from apportionment of contribution between the defendants inter
se. Although the defendants are each liable to the plaintiff for
the whole amount for which he has obtained judgment, the
proportions in which, as between themselves, the defendants must
meet the plaintiff’s claim, do not have any direct relationship to
the extent to which the total damages has been reduced by the
contributory negligence, although the facts of any given case may
justify the proportions being the same.
Once the questions referred to above in the main action
have been determined in favour of the plaintiff to the extent that
he has obtained a judgment against two or more defendants, then
and only then should the court focus its attention on the claims
which may be made between those defendants for contribution
pursuant to the Civil Liability (Contribution) Act 1978, re-enacting
and extending the court’s powers under section 6 of the Law
Reform (Married Women and Tortfeasors) Act 1935. In the
contribution proceedings, whether or not they are heard during the
– 6 –
trial of the main action or by separate proceedings, the court is
concerned to discover what contribution is just and equitable,
having regard to the responsibility between the tortfeasors inter
se, for the damage which the plaintiff has been adjudged entitled
to recover. That damage may, of course, have been subject to a
reduction as a result of the decision in the main action that the
plaintiff, by his own negligence, contributed to the damage which
he sustained.
Thus, where the plaintiff successfully sues more than one
defendant for damages for personal injuries, and there is a claim
between co-defendants for contribution, there are two distinct and
different stages in the decision-making process – the one in the
main action and the other in the contribution proceedings.
The Trial Judge’s Error
Mr. Stewart accepts that the judge telescoped or elided the
two separate stages referred to above into one when he said:
“I find that it is impossible to say that one of the parties is
more or less to blame than the other and hold that the
responsibility should be borne equally by all three.”
The judge, in my judgment, misdirected himself by thinking in
tripartite terms, instead of pursuing separately the two stages –
phase 1: was the plaintiff guilty of contributory negligence and, if
so, to what extent should the recoverable damages be reduced,
issues which concerned the plaintiff on the one hand and the
defendants jointly on the other hand; and phase 2: the amount of
the contribution recoverable between the two defendants having
regard to the extent of their responsibility for the damage
recovered by the plaintiff – an issue which affected only the
defendants inter se and in no way involved the plaintiff.
The vice of this misdirection is that it can, and, in my
judgment for reasons which I shall explain, in this case it did,
result in the judge taking into account the proportions in which
the defendants between themselves were liable for the plaintiff’s
recoverable damages, in deciding on the degree of contributory
negligence of which the plaintiff was guilty. He allowed his
judgment on the issue of contributory negligence to be coloured by
his decision as to the proper apportionment of blame between the
defendants. While stating in substance on the one hand that the
plaintiff’s responsibility was no more and no less than of either of
the defendants, his ultimate conclusion, as mirrored in his order,
was that each of the defendants was twice as much to blame as
the plaintiff. This could not be right on the facts. Sir Edward
Eveleigh [1987] Q.B. 781, 792H, had difficulty in seeing where the
second defendant was to blame at all and, as stated above, Slade
L.J. said, at p. 813D, he had considerable sympathy with the
submission made on behalf of each of the defendants “that on any
footing the plaintiff’s share in the responsibility for the damage
was, on the facts, greater than that of his client.” As previously
stated, this was a case in which at the trial Mr. Stewart, with
characteristic sense of reality, conceded that his client was guilty
of contributory negligence. As the trial judge observed:
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“There is no doubt that the plaintiff failed to heed the
obvious advice given in the Highway Code, namely, ‘When
the red man signal shows, don’t cross. Press the button on
the box and wait.'”
Clearly the plaintiff ought to have known that the lights were
showing green in favour of the traffic approaching the crossing and
that the vehicles in the outer of the two lanes going south were
travelling freely. That he was substantially the author of his own
sad misfortune cannot be gainsaid. The negligence found against
the first defendant was that at 30 miles per hour he was
travelling too fast and that he was not keeping a proper lookout
for pedestrians trying to cross the road, albeit against the traffic
lights. The negligence found against the second defendant was
that he too was travelling too fast or failing to keep a proper
lookout. In my judgment, to rate the negligence of either of the
two defendants as being twice as bad as that of the plaintiff is
clearly wrong and must have resulted from the judge misdirecting
himself in the manner which I have described.
Such being the situation the question as to what is the just
and equitable deduction to make from the plaintiff’s damages is at
large for your Lordships’ consideration. Like Slade L.J., if I had
had to try the case at first instance, I might have well have held
that the plaintiff’s share in the responsibility for his injuries was
larger than that of either of the defendants. There may therefore
be, I hope, some small comfort for the plaintiff that I view the
order of the Court of Appeal, that he is to have judgment against
each defendant for 50 per cent, of his claim, as achieving, in the
circumstances, a generous award from his point of view.
My Lords, in view of the opinion which I have expressed
above, there is a strong temptation to say no more. However, out
of deference to Mr. Stewart’s able argument I feel I should
express my view as to his main criticism of the judgment of the
Court of Appeal and, because it raises a point of some
importance, comment on the dictum of Lord Pearce in The
Miraflores and The Abadesa [1967] 1 A.C. 826, 845, 846 upon
which the Court of Appeal strongly relied.
The Court of Appeal’s Interpretation of the Judge’s Decision
In the quotation from Sir Edward Eveleigh’s judgment [1987]
Q.B. 781, 793 set out above there is to be found the statement
“The judge’s finding indicates that he thought that each of the
three parties was equally at fault. That being so, the correct
form of judgment should be ‘judgment for the plaintiff for 50 per
cent, of his claim against each defendant.'” With respect I cannot
agree. I concur in the view expressed by Moffitt P. in the Court
of Appeal of New South Wales in Barisic v. Devenport [1978] 2
N.S.W.L.R. 111 at 121-122 that:
“In ordinary language, if three persons are severally and
equally responsible for an event ‘the share of the
responsibility’ for the event of any one would be one-third,
not one-half.”
Nor, with respect, can I agree with Slade L.J. [1987] Q.B. 781, 813
that “the form of the order actually made by the judge [did not
– 8 –
give] effect to his clear conclusion that the plaintiff’s
responsibility for the injury was no less (though no greater) than
that of either of the defendants.” If there was any doubt as to
the true construction of what the judge said initially in his
judgment as to the apportionment of the liability, it was
subsequently made clear, not only by his statement at the end of
his judgment, “one-third of the amount of the award will be paid
by each of the defendants,” but also by his acceptance of Mr.
Stewart’s submission that the proper form of the judgment was,
judgment for the plaintiffs against both defendants for two- thirds
of the total damages. Indeed, as previously stated, no suggestion
was made either in the notices of appeal or in their initial
submissions by counsel for the defendants in the Court of Appeal,
that the order he made was inconsistent with the true
interpretation of the judge’s decision. I am quite satisfied that
the judge, as a result of the misdirection to which I have made
reference above, did intend to reduce the damages recoverable by
the plaintiff by only one-third, a decision which I have already
characterised as being clearly wrong.
The Miraflores and The Abadesa [1967] 1 A.C. 826
The claim in that case arose out of a collision between two
ships, the steam tankers Miraflores and the Abadesa. In avoiding
becoming involved in that collision, the steam tanker George
Livanos ran aground and sustained damages. The owners of the
George Livanos brought an action against the owners of both the
Miraflores and the Abadesa in respect of her grounding. In a
separate action the owners of the Miraflores had brought an action
against the owners of the Abadesa in respect of their collision.
The actions were heard together by Hewson J. who held in respect
of the collision action that the Miraflores had been one-third and
the Abadesa two-thirds to blame for the collision. In respect of
the grounding action he held that the George Livanos had herself
been negligent. However, he treated the negligence which led to
the collision as “one unit,” in respect of the grounding and the
negligence of the George Livanos as the other unit. He found it
impossible to distinguish between the degrees of fault of the two
units and therefore held that the George Livanos was 50 per cent.
to blame for the grounding and entitled to recover the remaining
50 per cent, from the Abadesa and the Miraflores in the
proportion of two-thirds and one-third respectively. The House of
Lords held that the “unit approach” was wrong, having regard to
the terms of section 1 of the Maritime Conventions Act 1911
which provides:
“Where, by the fault of two or more vessels, damage or loss
is caused to one or more of those vessels, to their cargos
or freight, or to any property on board, the liability to
make good the damage or loss shall be in proportion to the
degree in which each vessel was in fault . . .”
In his speech Lord Morris of Borth-y-Gest said, at p. 841-
842:
“The section calls for inquiry as to fault, and inquiry as to
damage or loss, and inquiry as to causation. As applied to
the claim made by the George Livanos it becomes necessary
to decide whether the damage or loss to the George Livanos
– 9 –
(or her cargo or freight) was caused by the fault of two or
more vessels. The decision of the learned judge being that
such loss or damage was caused by the fault of all three
vessels, that is, the fault of herself, the fault of the
Miraflores and the fault of the Abadesa, it followed that
the liability to make good the damage or loss had to be ‘in
proportion to the degree in which each vessel was at fault,’
which I think means the degree in which the fault of each
vessel caused the loss or damage. Consequently three
inquiries were involved. To what extent as a matter of
causation did the fault of the Abadesa bring about the
grounding of the George Livanos? To what extent as a
matter of causation did the fault of the Miraflores bring
about the grounding of the George Livanos? To what extent
as a matter of causation did the fault of the George
Livanos bring about her grounding? The liability to make
good the damage or loss caused by the grounding would be
in the proportions shown by the answers to those questions.
“In performing the task directed by section 1, I think
that it may lead to confusion if it is sought to link the
faults of two separate vessels into one ‘unit.’ I think that
it is preferable to follow the wording of the section without
introducing the complication of ‘units.’ As applicable in the
present case, once it was established that there was fault in
each one of the three vessels and also that the damage or
loss of the George Livanos was caused to some extent by
the fault of each one of the three vessels, then it became
necessary to apportion the liability for the damage or loss
by deciding separately in reference to each one of the three
vessels what was the degree in which the fault of each one
caused the damage or loss to the George Livanos. The
process necessarily involved comparisons and it required an
assessment of the inter-relation of the respective faults of
the three vessels as contributing causes of the damage or
loss. If the faults of two vessels out of three are being
grouped together there may be risk of making it difficult to
make separate comparisons and assessments as between the
three.”
It is thus clear that section 1 of the Act of 1911
contemplates the individual assessment of the fault of each vessel
liable for the damage. It makes no provision for contribution
over, since ex hypothesi, the extent to which each vessel must
contribute to the loss has already been determined. That,
however, is not the scheme of the Law Reform (Contributory
Negligence) Act 1945 which by section 1(3) specifically provides
that section 6 of the Law Reform (Married Women and
Tortfeasors) Act 1935 shall apply in any case where two or more
persons are liable or would, if they had been sued, be liable by
virtue of section 1(1) of the Act of 1945 in respect of the damage
suffered by any person. Indeed, it is specifically provided by
virtue of section 3 that the Act shall not apply to any claim to
which section 1 of the Maritime Conventions Act 1911 applies.
Lord Pearce, with whom Lord Reid and Lord Hodson agreed,
also concluded that the “unit approach” was wrong. He said, at p.
844:
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“First, it does not accord with section 1 of the Maritime
Conventions Act 1911, which requires that liability shall be
assessed ‘in proportion to the degree in which each vessel
was at fault’ For on the ‘unit approach’ there is not an
assessment of the degree in which each vessel was at fault.
Secondly, and in consequence, the judge assessed at too high
a figure the fault of the George Livanos in proportion to
the respective individual faults of the Abadesa and the
Miraflores.”
That part of Lord Pearce’s speech, at p. 846, which Sir
Edward Eveleigh and Slade L.J. quoted [1987] Q.B. 781, 794, 813,
is obiter since it was directed to the Law Reform (Contributory
Negligence) Act 1945.
Although the decision of the Court of Appeal in Davies v.
Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291 was referred to
in the course of argument, Lord Pearce makes no reference to it
in his speech. In his judgment Denning L.J. in Davies’s case when
considering how the Law Reform (Contributory Negligence) Act
1945 operated, where a plaintiff brought an action against the
driver of two vehicles said, at p. 325:
“If they were both found guilty of ‘fault’ which caused the
damage, could it possibly be said that the plaintiff’s
damages were to be reduced as against one and not as
against the other? And even if that were possible, what
would be the proportions as between the two drivers?
Would contributions be assessed on the higher or lower
figure of damages? If the Act of 1945 were to involve
such questions, it would introduce many complications into
the law. The Act seems to contemplate that, if the
plaintiff’s own fault was one of the causes of the accident,
his damages are to be reduced by the self-same amount as
against any of the others whose fault was a cause of the
accident, whether he sues one or more of them, and they
bear the amount so reduced in the appropriate proportions
as between themselves.”
Clearly the two dicta cannot stand together. Further, I have
difficulty in following why the claimant’s share in the
responsibility for the damage which he has suffered can only be
estimated by weighing his fault against each of the defendants,
where there is more than one defendant. Nor am I aware that, as
a matter of practice “the court weighs up the fault of each
(original emphasis) in assessing liability as between the plaintiff
and defendants themselves.” Where liability is established against
joint tortfeasors, judgments are entered against each of them in
respect of the same sum – the total recoverable damages reduced
by the appropriate sum to reflect the plaintiff’s share, if any, in
the responsibility for the damage. This course is wholly consistent
with the words of section 1(1) of the Act of 1945 which provides
that the “damages recoverable” by the plaintiff are to be reduced
by his share in the responsibility for the damage, thus
contemplating one sum of damages as the subject matter of a
number of judgments, and not a number of judgments in respect of
different sums. As stated above section 1(3) of the Act of 1945
expressly applies the contribution procedure provided by the Act of
1935 to cases of multiple defendants liable by virtue of section
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1(1). If the responsibility of each party at fault is to be weighed
against each of the others and several judgments in different sums
are to be entered, there would be no call for contribution
proceedings, because the responsibility for the damage would have
been directly apportioned amongst all parties at fault, as under
section 1 of the Maritime Conventions Act 1911.
In my judgment, in order to assess the “claimant’s share in
the responsibility for the damage” which he has suffered as a
result of the defendants’ established negligence, the judge must ask
himself to what extent, if at all, the plaintiff has also been part
author of his own damage. This obviously requires careful
evaluation of the plaintiff’s conduct in the light of all the
circumstances of the accident and those circumstances, of course,
include the conduct of all the defendants who have been found
guilty of causative negligence. Circumstances will, naturally,
differ infinitely. In the instant case the plaintiff’s conduct set in
motion the chain of events that led to the accident. If the
plaintiff had not ignored or failed to observe that the lights were
against him and in favour of the traffic, when he decided to cross
the pelican crossing, then the accident would never have happened.
It was the negligent response of each of the defendants to the
dangerous situation thus created by the plaintiff which established
their joint and several liability.
In other situations it might be the defendants, who, for
example, through their negligent driving, or negligent operation of
a factory or building site, create the initial danger and it is then
the response of the plaintiff to that dangerous situation that has
to be assessed. What accounted for the reduction in the damages
awarded to the plaintiff was his degree of culpability in setting
the scene for the collision. In different circumstances, where the
initial danger of injury is created by the negligence of the
defendants, then it is the plaintiff’s response to that situation
which has to be assessed. In neither event does the exercise of
assessing the plaintiff’s share in the responsibility for the damage
which he has sustained necessitate the determination of the extent
of the individual culpability of each of the defendants, once the
judge is satisfied that the defendants each caused or materially
contributed to the plaintiff’s damage. While the plaintiff’s conduct
has to be contrasted with that of the defendants in order to
decide to what extent it is just and equitable to reduce the
damages, which would be awarded to him if the defendants were
solely liable, it does not involve an assessment of the extent to
which the fault of each of the defendants contributed to that
damage. What is being contrasted is the plaintiff’s conduct on the
one hand, with the totality of the tortious conduct of the
defendants on the other. As previously stated, the determination
of the extent of each of the defendants’ responsibility for the
damage is not made in the main action but in the contribution
proceedings between the defendants, inter se, and this does not
concern the plaintiff.
I accordingly take the view that the dictum of Denning L.J.
in Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291,
325, cited above is correct and that the observations made by
Lord Pearce in The Miraflores cited above as to the practice and
procedure which should be adopted in relation to the Law Reform
(Contributory Negligence) Act 1945 and the Law Reform (Married
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Woman and Tortfeasors) Act 1935 (now the Civil Liability
(Contributions) Act 1978) should not be followed.
I should add that in reaching my decision, I have derived
considerable assistance from the judgment of Samuels J.A. in the
Australian case of Barisic v. Devenport [1978] 2 N.S.W.L.R. 111
referred to above.
I accordingly would dismiss this appeal with costs.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Ackner. I agree
with it and would dismiss the appeal for the reasons which he has
given.
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