J (a child) v Wilkins

Apportionment under section 2(1) of the Civil Liability (Contribution) Act 1978 requires a just and equitable assessment of each person's responsibility for the damage, having regard to both blameworthiness and causative potency.

The guidance in Froom v Butcher remains relevant where similar facts arise, including cases in which a proper restraint would have prevented the injury altogether. Its suggested percentages are guidelines, not an absolute ceiling. Exceptional cases may justify a higher apportionment where an adult deliberately carries a child on a lap without an effective restraint, but such cases are expected to be rare.

A child suffered catastrophic injuries in a head-on collision caused by the defendant's grossly inattentive driving. She had been travelling on her mother's lap in the front passenger seat, with the lap portion of the mother's seat belt around both of them.

The defendant admitted negligence and brought contribution proceedings against the child's mother and aunt, who had been driving the vehicle. The trial judge found that they had also been negligent in failing to use an approved child restraint, but apportioned liability 75 per cent to the defendant and 25 per cent to the Part 20 defendants.

The defendant appealed, arguing that the risk to the child and the effectiveness of a proper restraint justified a greater apportionment. The central issue was whether the trial judge had applied the correct statutory approach and whether the apportionment was clearly wrong.

1. Appeal dismissed. The 75 per cent/25 per cent apportionment was within the range open to the trial judge. The order was appeal dismissed with costs, subject to detailed assessment.
2. Section 2(1) of the Civil Liability (Contribution) Act 1978 requires the court to make a just and equitable apportionment having regard to each person's responsibility for the damage. Responsibility includes both blameworthiness and causative potency, as explained in Madden v Quirke and reflected in Davies v Swan Motor Co (Swansea) Ltd.
3. An apportionment under section 2(1) will be disturbed on appeal only where it is clearly wrong, or where there has been an error of principle or mistake of fact, following Kerry v Carter.
4. Although Froom v Butcher concerned contributory negligence under the Law Reform (Contributory Negligence) Act 1945, the similarity between the statutory language justified using its guidance in contribution cases with similar facts. The suggested 25 per cent reduction where a restraint would have prevented the damage was not an immutable ceiling, although departures should be rare.
5. A higher apportionment might be justified where an adult deliberately carried a child on a lap in the front seat without an effective restraint, because the child may be especially vulnerable. That possibility was not engaged here. The child had been given the lap portion of a belt, the adults did not understand that this could increase the risk of injury, and the trial judge was entitled to find that they had not deliberately taken the risk.
6. The defendant's negligence caused the collision, while the Part 20 defendants' negligence materially contributed to the severity of the injuries. The trial judge was therefore entitled to regard the defendant as substantially more blameworthy and to adopt the challenged apportionment.

• Court of Appeal (Civil Division): appeal from the decision of His Honour Judge Rogers QC, sitting as a deputy High Court judge in the Queen's Bench Division at Chester, dismissed. The trial judge's apportionment of liability was upheld.