REDUCTION OF DAMAGES FOR CONTRIBUTORY NEGLIGENCE

Publication Date01 July 1955
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00306.x
AuthorDouglas Payne
REDU(CTIO1N
OF
DAMAGES
FOR
CONTRIBUTORY NEGLIGENCE
THE Law Reform (Contributory Negligence) Act,
1945,
provides
that the damages of a plaintiff guilty of contributory negligence
“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 this article
I
propose to consider the mode
by which, in a case of contributory negligence, the appropriate
amount of the reduction is determined.
BASIS
OF
APPORTIONMENT
It
is generally said that the effect of the Act is that damages should
be apportioned between the parties
on
the basis
of
comparative
culpability,2 subject to the qualification that no fault should be
taken into account which did not contribute to the a~cident.~
On
this view, the court should assess the comparative blameworthiness
of the parties and apportion the damages accordingly. This view
is, however, open to serious objection.
In the first place,
it
does not seem to allow for the fact that
liability in the law of tort frequently arises without any moral cul-
pability
on
the part of the defendant. What is the effect of contri-
butory negligence
on
the part of the plaintiff in an action of strict
liability, such as breach of statutory duty
or
under the
scienter
rule, when the defendant has not in fact been negligent
?
If
damages
are to be apportioned
on
the basis of comparative culpability, the
slightest degree of contributory negligence will in effect defeat the
1
8.
1
(1).
2
Williams,
Joint Torts and Contributory Negligence,
para.
98.
Writing in
1950,
the learned author was of the opinion that in all the cases reported
up to that time the basis
of
apportionment had been assumed to be fault
or blame
(op. cit.,
p.
390);
S.
Chapman
(1948) 64
L.Q.R.
26;
Winfield,
Law
of
Tort,
6th
ed., p.
516;
Salmond,
Torts,
11th
ed., p.
533,
note (a);
Davies
v.
Swan Motor
Co.
,[1949] 2 K.B. 291,
at
326,
per
Denning
L.J.
Cf.
the Admiralty rule: The liability to make good the damage or
loss
shall be
in
proportion
to
the degree in which each vessel was in
fault
(Maritime Conventions Act,
1911,
s.
1
(1)).
Evershed
M.R.
has
expressed the hope that there will be
no
divergence
sf
principle
in
the
application
of
the two contributory negligence Acts:
in
substance the
intention
of
the two Acts
i;,
the same,
so
that similar principles should
be applied
in
the same way
;
Davies
v.
Swan Motor
Co.
[1949] 2
K.B.
291,
at
319.
But the authorities are not unanimous. Charlesworth,
Negl,igence,
2nd
ed.,
p.
495,
and Landon
(Pollock,
Torts,
15th
ed., p.
352)
think that
damages should be apportioned
on
the basis
of
causation,
not
fault. But
they do not explain how degrees
of
causation can possibly be assessed.
The difficulties in the way
of
accepting this view are discussed below.
s
See
Jones
v.
Livos Quarries
[1952] 2
Q.B.
608.
844

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