West v Wilkinson & Anor

On an appeal against an apportionment between defendants, the appellate court will not interfere unless the trial judge was plainly wrong, took irrelevant matters into account, or erred in principle. A trial judge should give reasons for the apportionment. If reasons are absent, the appellate court may review whether a sustainable reasoning process supports the result.

Under section 2 of the Civil Liability Contribution Act 1978, responsibility may be assessed by comparing relative blameworthiness and causative potency. Negligence occurring later in time is not necessarily the more causatively potent. The assessment depends on all the circumstances.

The claimant was seriously injured when his motorcycle lost control after the second defendant braked heavily to avoid the first defendant’s stationary car and caravan. The claimant’s pillion passenger was killed.

At Birmingham Civil Justice Centre, Mr Recorder Rogers found the first defendant negligent for failing to deploy a warning triangle and the second defendant negligent for excessive speed and inadequate lookout. He assessed the claimant’s contributory negligence at 60% and divided the defendants’ remaining liability equally.

Permission to appeal was refused on the finding of the first defendant’s negligence but granted on the apportionment between the defendants, because the Recorder had not given reasons for making it equal.

Appeal dismissed. Thomas LJ, with whom Buxton and Keene LJJ agreed, held that the Recorder’s equal apportionment was open to him and was not shown to be plainly wrong.

1. The ordinary appellate restraint applied. An appellate court will not disturb a trial judge’s apportionment between defendants unless the judge was plainly wrong, considered irrelevant matters, or made an error of principle. Although the Recorder had stated no reasons, that omission entitled the court to examine whether a reasoning process could sustain the result.

2. The assessment should have proceeded under section 2 of the Civil Liability Contribution Act 1978, applying the accepted approach in [1949] 2 KB 291. It required a comparison of the defendants’ relative blameworthiness and causative potency.

3. The second defendant’s excessive speed and inadequate lookout could be characterised as one act of careless driving. The first defendant had created an obvious road hazard and failed to take the simple precaution of placing a warning triangle. The Recorder could therefore regard their culpability as equal.

4. The Recorder could also regard the failures as equally causatively potent. The fact that other traffic had safely passed the obstruction did not negate the potential effect of a warning triangle on the second defendant and claimant. Nor was the second defendant’s negligence necessarily more causatively potent merely because it occurred later in time.

5. The court stressed that trial judges should give reasons for apportionment, both to explain the decision to the parties and to permit proper appellate review. Nevertheless, a sustainable reasoning process and the Recorder’s superior position in evaluating the evidence meant that there was no basis to interfere. The equal division between the defendants was upheld.

1. Court of Appeal (Civil Division): The first defendant’s appeal against the equal apportionment of liability between the defendants was dismissed.
2. Birmingham Civil Justice Centre (Mr Recorder Rogers): The Recorder found both defendants negligent, assessed the claimant’s contributory negligence at 60%, and divided the defendants’ residual liability equally.