Fitzgerald v Lane

Where a claimant’s damage results from the claimant’s fault and the fault of several defendants, contributory negligence and contribution between defendants are separate questions. The claimant’s share of responsibility is assessed by contrasting the claimant’s conduct with the defendants’ tortious conduct as a whole. It is not assessed separately against each defendant.

The resulting reduction produces one recoverable sum for which each jointly and severally liable defendant is answerable. Only afterwards is contribution determined between the defendants according to their respective responsibility for that recoverable damage.

The claimant suffered partial tetraplegia after negligently entering a pelican crossing against the pedestrian signal. He was struck successively by cars driven by the two defendants. The deputy judge found all three parties equally blameworthy, assessed damages of £596,553.67 and entered judgment against the defendants for two-thirds of that sum.

The Court of Appeal, reported at [1987] Q.B. 781, upheld the findings on negligence, causation and damages. It varied the order by awarding the claimant 50 per cent of his claim against each defendant and ordering equal contribution between them.

The consolidated appeals concerned the proper relationship between contributory negligence under the Law Reform (Contributory Negligence) Act 1945 and contribution between multiple defendants under the Civil Liability (Contribution) Act 1978.

1. The appeals were dismissed unanimously. Lord Ackner delivered the leading speech. Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman and Lord Oliver of Aylmerton agreed with it. The Court of Appeal’s orders awarding the claimant 50 per cent of his claim against each defendant, with equal contribution between the defendants, were affirmed.

2. Per Lord Ackner, the court must first decide whether liability has been established against one or more defendants and assess the claimant’s total damage. The defendants bear the burden of establishing contributory negligence. Only when it is established does the court reduce the recoverable damages under section 1 of the Law Reform (Contributory Negligence) Act 1945.

3. Contributory negligence in the main action must be kept separate from contribution between defendants. The claimant’s share in responsibility is assessed by considering whether, and to what extent, the claimant was the author of the damage. That requires comparison between the claimant’s conduct and the totality of the causative tortious conduct of all defendants. It does not require separate assessment of the claimant’s fault against each defendant.

4. Once the claimant’s share has been assessed, the same reduced sum is recoverable against each jointly and severally liable defendant. The respective proportions ultimately borne by the defendants are determined afterwards in contribution proceedings under the Civil Liability (Contribution) Act 1978. Those proportions have no necessary relationship with the reduction made for the claimant’s contributory negligence.

5. The trial judge misdirected himself by combining these two stages and apportioning responsibility among all three parties in tripartite terms. That approach allowed the allocation between the defendants to influence the assessment of the claimant’s contributory negligence. The issue was therefore at large. A 50 per cent reduction was generous to the claimant but justifiable on the facts.

6. Lord Pearce’s observations in The Miraflores and The Abadesa, [1967] 1 A.C. 826, concerning the 1945 Act were obiter and should not be followed. That maritime decision concerned a statutory scheme requiring the fault of each vessel to be assessed individually. Lord Ackner instead approved Denning L.J.’s dictum in Davies v Swan Motor Co. (Swansea) Ltd., [1949] 2 K.B. 291, that a claimant’s damages are reduced by the same amount against every causally responsible defendant.

1. House of Lords: The consolidated appeals were dismissed unanimously. The orders of the Court of Appeal were affirmed, and the appellant was ordered to pay the respondents’ costs.
2. Court of Appeal: In [1987] Q.B. 781, the court upheld the findings on negligence, causation and damages. It varied the judgment by awarding the claimant 50 per cent of his claim against each defendant and ordering equal contribution between them.
3. Queen’s Bench Division: A deputy judge found the claimant and both defendants negligent and equally blameworthy. He assessed total damages of £596,553.67 and entered judgment against the defendants for two-thirds of that amount.