NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1937.tb00031.x |
| Date | 01 March 1938 |
| Published date | 01 March 1938 |
318
MODERN LAW REVIEW
March,
1938
NOTES
OF
CASES
Contributory
Negligence--Last
Opportunity
The development of the law of Contributory Negligence
is
in many
ways typical of the development of the Common Law. From
a
case
decided on particular and somewhat unusual facts
(Davies
v.
Mann)
a
general rule
is
derived which proves increasingly unsuitable for other
cases
and, in particular, for the changed conditions of an industrial age.
liventually, some Law Courts proceed to qualify and finally substantially
to alter the old rule, while keeping up the appearance
of
continuity. Such
judicial law-making in the face of precedent must needs be
a
slow and
painful process. The situation of an ass tied on the highway, perhaps not
frequent even in
1842,
is
like an idyllic dream of the past, in the England
of
1938.
But the rule of
Davies
v.
Mann
can only work with facts of a
similar
type.,
namely where the time interval between the two acts
is
clearly marked. That
is
not the case in the greater number of collisions
between modern fast moving vehicles,
on
land even less than on the sea.
The chief stages in successive judicial attempts to adapt the rule in
Davies
v.
Mann
to modern conditions, appear to be the following-
I.
Loack’s
case.
[1916]
A.C.
719,
where the responsibility test was
introduced into the test of the last opportunity, which, until then, had
predominantly turned on causation.
To
miss the last opportunity had
meant to give the decisive cause for the injury.
2.
In
Admiralty Commissioners
v.
S.S.
Volute,
[1922]
A.C.
129,
where
a
ship collision occurred during combined operations, the House of Lords
decided that two acts, although not synchronous, may yet come
so
closely
together and be
so
mixed up that
it
is not possible to decide who had the
last opportunity, and the question resolves itself into an apportionment
of
blame. This decision marked
a
great progress in showing
(I)
that for
many cases the causation test underlying
“
last opportunity
”
does not
work, and
(2)
that in such cases the decision must turn on responsibility,
not on causation, since the injury is caused by both parties. This applies,
of course, not only to Admiralty cases, but Admiralty Courts alone can
draw the logical conclusion and apportion damages in proportion to guilt.
3.
The line indicated in the
VoZute
Case
was taken up by Lord Wright
in
McLean
v.
Bell
(~gp),
147
L.T.
262,
a common law case where a girl
was overrun by
a
tramcar, when the learned judge stated that “decision
must turn
on
responsibility, not simply on causation.”
4.
Swadlirtg
v.
Cooper,
[I9311
A.C.
I
exploded, to all intents and
purposes, the doctrine of the last opportunity for collisions between fast-
moving vehicles on land, but
it
did
so,
without open break with legal
precedent, in the form
of
a
direction to the jury. A motor car and a
motor cycle collided at a junction; the time limit between the moment
when the negligent car driver could have seen the negligent motor cyclist,
and the collision was one second. The direction to the jury was:
Who
substantially caused the accident? In an Admiralty case, the result
would probably have been an apportionment.
The decision
of
the Court
of
Appeal in
The
Eurymedon,
[rg38]
I
All
E.R.
122,
an Admiralty case, is a further important contribution to the develop-
ment of the law. There was a collision in the Thames between the plaintiff’s
steamship
Eurymedon
and the defendant’s steamship
Corstar.
It
was
found by Bucknill,
J.,
that both vessels were to blame, the
Corstar
in that
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