THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT, 1945

Published date01 July 1946
AuthorGlanville L. Williams
Date01 July 1946
DOIhttp://doi.org/10.1111/j.1468-2230.1946.tb01003.x
105
THE
LA\\*
REFORM
(CON'I'RIBIJTORY
X'EGLIGENCE)
ACT,
19-19
Thus
Was justice ever ridiculed in Rome:
Such be the double verdicts favoured here
Which send away both parties to a suit
Nor
puffed up nor cast down-for each a crumb
Of right, for neither of them the whole loaf.
(The
Ring
and
the
Book,
ii,
747-752).
Thus Robert Browning
:
and from his lines we may perhaps
gather what he would have thought of the Law Reform (Con-
tributory Xegligence) Act,
1945.
But then, Browning
was
not
a
lawyer,
or
he could not have supposed that one party to
a
suit must necessarily be wholly in the right and the other
wholly in the wrong. The new Act endeavours to reflect in
terms of legal result the fact that in the world as we know
it damage may be caused by the fault of both parties.
It
thus relieves the hardship caused by the common-law rule
under which one of two negligent parties might emerge from
the accident penniless while the other went unscathed. Even
if nature left the loss equally distributed between the parties,
the result of the last-opportunity rule at common law might
be to pile the whole upon one of them; and perhaps the Act
remedies this too. The advantage of the Act is not only that
it enables the loss to be apportioned in accordance with
ordinary ideas of fairness, but also that, by rendering possible
the division of loss between two pairs of shoulders, it makes
the
loss
in appropriate cases easier to be borne.
The present note will fall into two parts.
It
will first
discuss the question whether the Act has delivered us
from
the last-opportunity rule, and will then make some specific
comments upon the wording of the Act.
I
In general terms the object
Judge in cases of contributory
damages between the parties
degrees
of
responsibility for the
of the Act is to enable the
negligence to apportion the
according to the respective
damage. Thus if either sues
106
MODERN
LAW
REVIEW
VOL
9
the other he will get such damages
as
are attributable
to
the
other party’s portion of the responsibility.
Suppose that
A
and
B
are involved in an accident, through the negligence
of both, and A suffers
2500
damage while
B
suffers
flOO
worth of damage.
It
is held that
A’s
responsibility for the
damage amounts to four-fifths and
B’s
to one-fifth of the
total, that
is
to say, that A’s responsibility is four times that
of
B‘s.
Then
A
will recover from
B
one-fifth of his damages,
amounting to
f100,
and
B
will recover from A four-fifths of
his damages, amounting to
280.
Thus on balance
B
will owe
A
f20
in respect of damages. Reviewing the situation, and
leaving costs out of account,’
it
will be seen that A suffers his
original
f5OO
damage less the
f20
received from
B,
=
f480,
while
B
suffers his original
f
100
damage plus the sum of
f
20
paid to A,
=
2120.
Thus A’s loss is four times that of
B,
which reflects the -Court’s assessment of the responsibility for
the situation.
In cases where the Court cannot assess the degrees of
responsibility-cases of inscrutable fault ’-there will probably
be equal apportionment.
The operative provision of the Act is in the first part of
section
1
(l),
which runs as follows
:-
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.
The construction of this provision is
a
matter of some
difficulty, chiefly on account of the state of the common law
before the Act.
It
is proposed to examine the common law
very briefly in order to explain how the difficulty arises.
The general principle of the common law established by
Butterfield
v.
Forrester
(1809)’
was that
if
the damage was
caused by the fault of both parties, neither could recover
from
the other.
In
the p1,ace where the tree falleth, there
it
shall be.’ This may be called for convenience the stalemate
rule, because it resulted in
a
drawn game.
A simple illustration will make this clear.
1
See
as
to
costs
Jay
d
Son
v.
Vcctcrs,
Ltd.,
[1946]
1
All
E.R.
€146.
2
11
East
60.
Ji-i.Y.
1956
THE
LAW
REFORM
ACT
1945
107
The stalemate rule worked hardship where one of the two
negligent parties had sustained the whole of the loss although
his negligence was not the major cause of the accident.
Accordingly the rule was modified by a second rule, known
as
the doctrine of last opportunity-in the United States as the
doctrine of the last clear chance and in Canada as the
doctrine of ultimate negligence-under which the plaintiff was
allowed to
recover,
notwithstanding his own negligence, if upon
the occasion of the accident the defendant could have avoided
the damage while the plaintiff could not. This rule is usually
attributed to
Davies
v.
Mann
(1842),’ though it had been laid
down four years before, in rather careless language, in
Bridge
v.
Grand
Junction
Ry.
(1838).4 In course of time it came to
be modified in certain ways, particularly by the doctrine of
Loach’s Case
;
indeed, it seems that
Loach’s Case,
on one
interpretation, wholly supersedes the last-opportunity rule in
favour of
a
rule of
greater fault
’.6
In the following discus-
sion we shall let these complications pass, and the rule will
be considered as
a
rule of last opportunity and nothing else.
As
we have seen, the last-opportunity rule was designed
to
mitigate the hardship of the stalemate rule, and it needed no
justification other than that. But unfortunately, in order
to
relate it to existing legal principles Judges sometimes spoke
as
though it rested on the law of causation
or
remoteness
of
damage. Thus Lord Denman, in his dissenting judgment in
the Exchequer Chamber in
Radley
v.
London and North
Western Ry.
(1875),’ said:
‘I
think it was quite open to
contend that the plaintiffs, through their servants, were guilty
of negligence i.n leaving that wagon unattended during so
long a time as they did, but it
. .
.
was not negligence which
in any sense caused the accident
.
.
.
[The cause of the
accident] was entirely the affirmative act
of
the defendants’
servants, in charging the bridge as they did.’ Regarded as a
proposition of fact (that is to say, interpreting the word
’cause’ in its ordinary popular and scientific sense) this is
untrue.
It
will be remembered that in
Radley’s Case
the facts
were that the servants of the plaintiffs, whom we will
designate by the symbol N1-indicating that they were
3
10
M.
&
W.
546.
4
3
M.
&
W.
244.
5.
119161
1
A.C.
719.
6
V.
M.
MacIntyre, ‘The Rationale
of
Last Clear Chance’ (1910),
53
H.L.H.
1225,
reprinted
in
(1940j,
18
Can.B.Rev.
665.
Xevertheless
Lord
Sumner,
in Loach’s
Case
(at p.
727),
said
that
the question
is
not one
of
desert
or
the lack
of
it,
but
of
the cause legally responsible for the injury
’.
7
L.H.
10
Ex.
at 108.9.

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