Ogden & Chadwick v Barber & Higgs

Appellate review of an apportionment of liability is highly restrained. Where the trial judge has taken the same view of the law and facts, the allocation is an evaluative judgment concerning degree, balance, blameworthiness and causative potency. The appellate court should interfere only in exceptional circumstances and should not substitute its preferred percentage. Concise reasons may suffice where the judgment, read as a whole, discloses the factual basis for the allocation. A driver who deliberately obstructs an overtaking manoeuvre approaching a blind brow and bend may bear substantially greater responsibility than the driver who negligently attempts a second overtake. An 80:20 apportionment was within the permissible range.

Two related negligence claims arose from a collision between Mr Chadwick’s motorcycle and Mr Barber’s motorcycle, followed by a collision involving Mr Ogden. The trial judge found Mr Higgs, driving a Subaru ahead of Mr Barber, and Mr Barber responsible for the injuries. Responsibility was apportioned 80 per cent to Mr Higgs and 20 per cent to Mr Barber.

Mr Higgs appealed, arguing that the reasons for apportionment were inadequate and that the judge had underweighted Mr Barber’s conduct, including his speed and second overtaking attempt. The central issue was whether the Court of Appeal should interfere with the allocation on the accepted and unchallenged findings.

1. Appeal dismissed. The Court of Appeal unanimously held that the trial judge was entitled to apportion responsibility 80 per cent to Mr Higgs and 20 per cent to Mr Barber.
2. Rix LJ held that the judge’s findings, read as a whole, showed that he had accepted Mr Barber’s account of the second overtaking manoeuvre. Mr Barber had begun the manoeuvre before the solid white line and would probably have returned behind the Subaru but for Mr Higgs’s acceleration and subsequent deceleration. The judge nevertheless found Mr Barber negligent because, after the first obstruction, he should not have attempted to overtake again.
3. The comparison required an assessment of relative fault, comprising both blameworthiness and causative potency. Mr Higgs’s deliberate conduct in keeping Mr Barber on the wrong side of the road near a blind brow and bend was very serious and substantially more blameworthy and causatively potent. Mr Barber’s conduct remained negligent and causative, but was comparatively less serious.
4. The rule stated in British Fame (Owners) v MacGregor (Owners), The MacGregor [1943] AC 197 was applied. Apportionment is a matter of degree, balance and evaluative judgment. Where the appellate court shares the trial judge’s view of the law and facts, it should interfere only in very exceptional circumstances. The brevity of the reasons did not justify intervention because the factual basis for the apportionment could sufficiently be obtained from the judgment.
5. Auld LJ agreed, while considering that 20 per cent might appear low given Mr Barber’s serious shortcomings. That reservation did not establish an exceptional basis for interference. Sir Anthony Clarke MR agreed that the apportionment fell within the permissible range.

Order: Appeal dismissed.

• Manchester County Court: HHJ Tetlow found Mr Higgs and Mr Barber responsible for the injuries and apportioned responsibility 80 per cent to Mr Higgs and 20 per cent to Mr Barber.
• Court of Appeal (Civil Division): dismissed Mr Higgs’s appeal against the apportionment in [2008] EWCA Civ 1113.