Two ships had collided. A third itself ran aground trying to avoid them, and its ownes sought damages.
Held: The unit approach to apportionment of damages was wrong.
Lord Morris said of section 1 of the 1911 Act: ‘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 (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.’
Lord Pearce stated that it was essential to compare the fault of each with the fault of the other two; the emphasis is upon fault but not solely with the causation of damage: ‘It is axiomatic that a person who embarks on a deliberate act of negligence should, in general, bear a greater degree of fault than one who fails to cope adequately with the resulting crisis which is thus thrust upon him. This generality is subject, of course, to the particulars facts. And it may be that the initial act was so slight or easily avoidable and the subsequent failure to take avoiding action so gross that the blame for the accident falls more largely or even (if the interval and opportunity for avoidance are sufficiently great) wholly upon the person who failed to avoid the consequences of another’s negligence. Between the extremes in which a man is either wholly excused of a foolish act done in the agony of the moment as the result of another’s negligence or is wholly to blame because he had plenty of opportunity to avoid it, lies a wide area where his proportion of fault in failing to react properly to a crisis thrust upon him by another must be assessed as a question of degree. But the driver who deliberately goes round a corner on the wrong side should, as a rule, find himself more harshly judged than the negligent driver who fails to react promptly enough to the unexpected problem thereby created. For all humans can refrain from deliberately breaking well-known safety rules; but ’tis not in mortals to command the perfect reaction to a crisis; and many fall short at times of that degree which reasonable care demands.’
Lord Pearce considered how to apportion damages between several different defendants and said: ‘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.’
As to the 1945 Act he said: ‘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.’
Judges:
Lord Pearce, Lord Morris of Borth-y-Gest
Citations:
[1967] 1 AC 826
Statutes:
Maritime Conventions Act 1911 1, Law Reform (Contributory Negligence) Act 1945 1
Citing:
Cited – Davies v Swan Motor Co (Swansea) Ltd CA 1949
A plaintiff brought an action for damages for personal injury against the drivers of two cars.
Held: There are two aspects to apportioning responsibility between a plaintiff and defendant in an action for negligence, the respective causative . .
Cited by:
Not approved – Fitzgerald v Lane HL 14-Jul-1988
The plaintiff crossed road at a pelican crossing. The lights were against him but one car had stopped. As he passed that car he was struck by another in the second lane and again by a car coming the other way. The judge had held the three equally . .
Cited – Brown v Thompson CA 1968
A car driver drove into the back of a stationary lorry but was nevertheless held only 20% responsible.
Held: A court of appeal should only exceptionally interfere with a judge’s apportinment of responsibility for an accident.
Winn LJ . .
Lists of cited by and citing cases may be incomplete.
Damages
Updated: 05 May 2022; Ref: scu.267738