Betts v Tokley

On an appeal against the apportionment of responsibility for contributory negligence, the appellant must establish an error in principle or that no reasonable judge could have reached the challenged conclusion. Once contributory negligence is established, the proper proportion of responsibility involves a broad measure of judicial judgment. A claimant who proceeds through a pitch-dark area despite a real risk of falling, where a safe alternative route exists, may properly bear the greater share of responsibility. A 60 per cent reduction was within the trial judge’s permissible judgment.

Wenda Betts appealed from a decision of the Colchester County Court. His Honour Judge Brandt found Anthony Tokley liable after Betts fell on unlit steps at premises operated by Tokley. The liability finding was based on common-law negligence, the common duty owed under the Occupier's Liability Act 1997, and the Work Place (Health, Safety & Welfare) Regulations 1992. Betts accepted that she was partly at fault but challenged the reduction of her award by 60 per cent. The central issue was whether that apportionment was plainly wrong or outside the trial judge’s permissible judgment.

Appeal dismissed with costs. Latham LJ gave the first judgment and Buxton LJ agreed.

1. The appeal concerned the apportionment of responsibility for contributory negligence. To succeed, Betts had to show that the judge had erred in principle or that no reasonable judge could have reached the conclusion under challenge.
2. The trial judge was entitled to find Betts contributorily negligent. She proceeded into an area which she knew was pitch dark and where there was a real risk of tripping or falling. She could have returned through the lit building to the front door. Her earlier use of the entrance steps also provided some warning that steps might need to be negotiated from the paved area.
3. Once contributory negligence had been established, the trial judge had a broad measure of judgment in determining the proper proportion of responsibility. The allocation of 60 per cent was entirely open to him on the facts and could not be criticised on appeal.
4. Buxton LJ emphasised that the trial judge’s assessment involved judgment rather than, in his preferred terminology, discretion. There was no basis for saying that the judge had erred in principle or that his conclusion was unavailable on the evidence.

The appeal was dismissed with costs.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 52, Latham LJ and Buxton LJ dismissed the appeal with costs.
• Colchester County Court: His Honour Judge Brandt found liability against the respondent but reduced the claimant’s award by 60 per cent for contributory negligence.