Fitzgerald v Lane
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 14 July 1988 |
| Judgment citation (vLex) | [1988] UKHL J0714-2 |
| Date | 14 July 1988 |
| Court | House of Lords |
[1988] UKHL J0714-2
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Oliver of Aylmerton
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.
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.
My Lords,
For the reasons given by my noble and learned friend, Lord Ackner, I would dismiss the appeal.
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 plaintiff's 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 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 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 …'
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 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 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...
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