Daryl Owens v Ross Lewis

Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, apportionment is a fact-sensitive and holistic assessment of each party’s blameworthiness and the causative potency of their conduct. The court must assess responsibility for the damage, not merely responsibility for the accident.

Where several aspects of a claimant’s conduct arise from one decision, the court should not mechanically aggregate separate percentage deductions or double-count overlapping matters. A claimant’s acceptance of an obvious risk may be outweighed by the driver’s greater responsibility for creating and controlling the danger, particularly where the driver’s conduct causes the accident and materially increases the risk of serious injury.

The claimant, aged nearly 16½, suffered serious injuries, including a traumatic brain injury, when he fell from the rear rack of a quad bike driven on a public road by the defendant, then aged 15. The quad bike was designed only for the driver, the claimant was unsecured and had no helmet, and the defendant was driving at about 25–30 mph.

The defendant admitted primary liability for carrying the claimant but disputed negligence as to speed. He alleged contributory negligence based on the claimant’s decision to ride, his position on the vehicle and his failure to wear a helmet. The preliminary issue was liability, including the appropriate reduction for contributory negligence.

1. The defendant’s admitted negligence required analysis in light of the circumstances in which the claimant was carried: the quad bike was not designed for passengers, the claimant was insecurely positioned, had one hand occupied by a dog, had no helmet and was carried on a public highway. Driving at about 25–30 mph in those circumstances was a further breach of duty.

2. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the assessment required a broad, fact-sensitive and holistic evaluation of the parties’ blameworthiness and the causative potency of their acts. The exercise was inevitably approximate and had to produce a result that was just and equitable: Stapley v Gypsum Mines Ltd [1953] AC 663; Jackson v Murray [2015] UKSC 5.

3. The claimant’s conduct was properly treated as one bad decision with cumulative features, rather than three separate negligent decisions. He decided to ride a quad bike that could not safely carry him, in an inherently precarious position and without a helmet because none was available. Separate percentage reductions should not be added mechanically or used to double-count the same conduct.

4. The claimant’s age was relevant to the objective standard applicable to his contributory negligence. The defendant’s decision to carry passengers was judged by the standard of an ordinarily reasonable and prudent 15-year-old, but the manner of driving on a public highway was judged by the standard of a driver of appropriate skill, experience and care.

5. The preponderance of both blameworthiness and causative potency lay with the defendant. He proposed the ride, possessed the relevant quad-bike experience, provided and controlled the source of danger, and increased the risk by driving at significant speed. The claimant’s conduct was causally relevant, but the fact that his decision was a but-for cause did not make it equally causatively potent.

6. The joint-criminal-enterprise cases relied on by the defendant were materially different and did not provide an appropriate starting point. Looking at the matter in the round, a 30% reduction for contributory negligence was just and equitable.