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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Fitzgerald v Lane [1988] UKHL 5 (14 July 1988)
URL: http://www.bailii.org/uk/cases/UKHL/1988/5.html
Cite as: [1989] AC 328, [1989] 1 AC 328, [1988] UKHL 5, [1988] 2 All ER 961

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/248

    Fitzgerald (Appellant) v. Lane and another (Respondents)

    (First Appeal)
    Fitzgerald (Appellant) v. Lane and another (Respondents)

    (Second Appeal)
    (Consolidated Appeals)

    JUDGMENT

    Die Jovis 14° Julii 1988

    Upon Report from the Appellate Committee to whom was
    referred the Cause Fitzgerald against Lane and another (First
    Appeal) and Fitzgerald against Lane and another (Second
    Appeal) (Consolidated Appeals), That the Committee had heard
    Counsel on Tuesday the 14th day of June last upon the
    Petitions and Appeals of Simon Peter Fitzgerald, of
    "Brambles", 23 Broomfield Ride, Oxshott, Surrey, praying that
    the matter of the Orders set forth in the Schedules thereto,
    namely Orders of Her Majesty's Court of Appeal of the 6th day
    of March 1987, might be reviewed before Her Majesty the Queen
    in Her Court of Parliament and that the said Orders might be
    reversed, varied or altered or that the Petitioner might have
    such other relief in the premises as to Her Majesty the Queen
    in Her Court of Parliament might seem meet (which said Appeals
    were by Order of the House of the 15th day of June 1987
    consolidated) ; and due consideration had this day of what was
    offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Orders of Her Majesty's Court of
    Appeal (Civil Division) of the 6th day of March 1987
    complained of in the said Appeals be, and the same are
    hereby, Affirmed and that the said Petitions and Appeals be,
    and the same are hereby, dismissed this House: And it is
    further Ordered, That the Appellant do pay or cause to be paid
    to the said Respondents the Costs incurred by them in respect
    of the said Appeals, the amounts thereof to be certified by
    the Clerk of the Parliaments if not agreed between the
    parties.

    Cler: Asst. Parliamentor:

    Judgment: 14.7.88

    HOUSE OF LORDS

    FITZGERALD
    (APPELLANT)

    v.

    LANE AND ANOTHER
    (RESPONDENTS) (FIRST APPEAL)

    FITZGERALD
    (APPELLANT)

    v.

    LANE AND ANOTHER
    (RESPONDENTS) (SECOND APPEAL)

    (CONSOLIDATED APPEALS)


    Lord Bridge of Harwich

    Lord Brandon of Oakbrook

    Lord Templeman

    Lord Ackner

    Lord Oliver of Aylmerton

    LORD BRIDGE OF HARWICH


    My Lords,


    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Ackner. I agree with it and for the reasons he gives I would dismiss the appeal,


    LORD BRANDON OF OAKBROOK

    My Lords,

    For the reasons given in the speech to be delivered by my
    noble and learned friend, Lord Ackner, I would dismiss the appeal.

    LORD TEMPLEMAN

    My Lords,

    For the reasons given by my noble and learned friend, Lord
    Ackner, I would dismiss the appeal.



    - 1-


    LORD ACKNER

    My Lords,

    On the afternoon of 21 March 1983 the appellant ("the
    plaintiff), then aged 22, was involved in a tragic accident when
    crossing Esher High Street, Surrey. The plaintiff was at the time
    employed by a well known firm of estate agents and surveyors as
    a trainee negotiator at their Esher branch. Esher High Street has
    a carriageway which is 30 feet wide and runs approximately north
    south. It has service roads on both sides separated from the
    carriageway by footpaths and, fronting the service roads, are shops
    and offices. The plaintiff's employers have premises on the
    eastern side of the service road, about 50 yards from a pelican
    crossing. At about 3.50 p.m. the plaintiff was asked to go to a
    house a mile or so away to meet a prospective purchaser. As his
    car was parked in the service road on the north western side of
    the High Street, he walked to the pelican crossing. The traffic
    was heavy. There were two lanes of traffic moving south. The
    nearside lane had been travelling slowly and a car had stopped just
    before the studs of the crossing. The second line was travelling
    fairly freely. Although the traffic lights were green to the road
    traffic and red against the pedestrians, the plaintiff, without
    stopping, walked at a brisk pace across the pelican crossing. He
    passed in front of the stationary car and into the path of the first
    respondent's ("the first defendant") car. As a result he was struck
    by the offside front corner of the car, thrown up onto the bonnet,
    came into contact with the windscreen which shattered, and was
    then thrown forward and onto the offside of the road, where he
    was struck by the second respondent's ("the second defendant") car
    which was being driven in the opposite direction, that is in a
    northerly direction. As a result of these collisions the plaintiff
    sustained multiple injuries and, in particular, a discloation of the
    cervical spine resulting in partial tetraplegia.

    Sir Douglas Frank Q.C., sitting as a deputy judge of the
    Queen's Bench Division, in a reserved judgment found that all
    three parties had been negligent. He assessed the total damages
    in the sum of £596,553.67. Having concluded that both defendants
    were responsible for the plaintiffs tetraplegia he then said:

    "As to the apportionment of the liability, on the facts I
    have recited I find that it is impossible to say that one of
    the parties is more or less to blame than the other and hold
    that the responsibility should be borne equally by all three."

    At the conclusion of his judgment he observed:

    "In view of my findings, one third of the amount of the
    award will be paid by each of the defendants."

    Following submissions made by Mr. Robin Stewart Q.C. for
    the plaintiff, the judge entered judgment for the plaintiff against
    the defendants for two-thirds of the total damages.

    Both the defendants appealed to the Court of Appeal [1978]
    Q.B. 781, each contending that the judge was wrong in finding
    negligence against them, alternatively, that the plaintiff should

    - 2 -

    have been ordered to bear a greater share of the responsibility.
    The second defendant further contended that the judge was wrong
    in equating his share of the responsibility with that of the first
    defendant, further that his collision with the plaintiff did not
    cause the tetraplegia, since it had already been caused by the first
    defendant. Additionally he challenged the validity of the judge's
    decision on certain items of damage, which he had awarded in
    favour of the plaintiff. The Court of Appeal affirmed the judge's
    decisions on all the matters raised by the respective notices of
    appeal. However, during the course of the appeal, Sir Edward
    Eveleigh queried whether the order giving the plaintiff judgment
    against both defendants for two-thirds of the total damages did
    truly represent the judge's decision, that no one of the parties was
    more or less to blame than the other. After hearing further
    argument on this issue, the Court of Appeal allowed the appeal to
    the extent of varying the judge's order, so that it provided that
    the plaintiff should have judgment against each defendant for 50
    per cent, of his claim. The Court of Appeal gave leave to appeal
    to your Lordships' House.

    The Basis of the Court of Appeal's Decision

    Sir Edward Eveleigh, giving the first judgment said, at pp.
    793-794 said:

    "The judge's finding indicates that he thought that each of
    the three parties was equally at fault. That being so, the
    correct form of judgment should be 'judgment for the
    plaintiff for 50 per cent, of his claim against each
    defendant.' There would then follow an order for
    contribution between the two defendants on a fifty-fifty
    basis. Subsection (1) of section 1 of the Law Reform
    (Contributory Negligence) Act 1945 reads:


    'Where any person suffers damage as the result partly
    of his own fault and partly of the fault of any other
    person or persons, a claim in respect of that damage
    shall not be defeated by reason of the fault of the
    person suffering the damage, but the damage
    recoverable in respect thereof shall be reduced to
    such extent as the court thinks just and equitable
    having regard to the claimant's share in the
    responsibility for the damage . . .'

    In applying this subsection, I have always understood that
    the court should consider the position between the plaintiff
    and each defendant separately. In The Miraflores and The
    Abadesa
    [1967] 1 A.C. 826 Lord Pearce said, at p. 846:

    'To get a fair apportionment it is necessary to weigh
    the fault of each negligent party against that of each
    of the others. It is, or may be, quite misleading to
    substitute for a measurement of the individual fault
    of each contributor to the accident a measurement of
    the fault of one against the joint fault of the rest.'

    The case was concerned with apportionment under section 1
    of the Maritime Conventions Act 1911, but the observation
    of Lord Pearce, which I have quoted, related to the

    - 3 -

    hypothetical facts of a factory accident case which he had
    postulated. Later, referring specifically to the Law Reform
    (Contributory Negligence) Act 1945, section 1, he said, at p.
    846:

    'Its intention was to allow a plaintiff, though
    negligent, to recover damages reduced to such an
    extent as the court thinks just and equitable, having
    regard to his share in the responsibility for the
    damage (section 1(1)). But that share can only be
    estimated by weighing his fault against that of the
    defendant or, if there are two defendants, against
    that of each defendant. It is true that apportionment
    as between the defendants comes theoretically at a
    later stage (under the Law Reform (Married Women
    and Tortfeasors) Act 1935). But as a matter of
    practice the whole matter is decided at one time and
    the court weighs up the fault of each in assessing
    liability as between plaintiff and defendants
    themselves. And I see nothing in the Act of 1945 to
    show that it intends the court to treat the joint
    defendants as a unit whose joint blameworthiness
    could only, one presumes, be the aggregate
    blameworthiness of its differing components’

    Let us assume that the first defendant had suffered injury
    from the flying glass of his windscreen and that he had
    counterclaimed against the plaintiff for damages. Would he,
    too, have been entitled to two-thirds of his damages against
    the plaintiff? The illogicality of two parties equally to
    blame being found liable for two-thirds of each others
    damages is too obvious. I would allow the appeal of each
    of the defendants in relation to the apportionment and order
    judgment for the plaintiff against each defendant for 50 per
    cent, of the plaintiff's claim and order contribution between
    the defendants on a fifty-fifty basis."

    Slade L.J., having earlier in his judgment dealt with (1) the
    liability of the first defendant; (2) the liability of the second
    defendant; (3) causation, then said [1987] Q.B. 812-814:

    "At the trial the plaintiff's counsel conceded that he was
    guilty of contributory negligence. In these circumstances,
    the judge, having decided issues (1), (2) and (3) above in
    favour of the plaintiff, had two further decisions to make,
    apart from those relating to the quantum of damage. First,
    he had to decide the extent to which the damage
    recoverable should be reduced by reason of the plaintiff's
    own fault under section 1(1) of the Law Reform
    (Contributory Negligence) Act 1945. Secondly, he had to
    decide how great a contribution in respect of the damage
    each defendant should recover from the other under section
    1(1) of the Civil Liability (Contribution) Act 1978. The
    judge dealt very briefly with the questions of contributory
    negligence and contribution together in the passages cited or
    referred to by Sir Edward Eveleigh in his judgment. As Sir
    Edward Eveleigh has said, the judge's finding indicated that
    he considered each of the three parties to be equally at
    fault. Section 1(1) of the Act of 1945 requires the damages

    - 4 -

    recoverable to be reduced 'to such extent as the court
    thinks just and equitable, having regard to the claimant's
    share in the responsibility for the damage. Counsel on
    behalf of each of the respective defendants has submitted in
    effect that on any footing the plaintiff's share in the
    responsibility for the damages was, on the facts, greater
    than that of his client and the judge should have applied the
    subsection accordingly.

    "I have considerable sympathy with this submission.
    There can be no doubt that the plaintiff was, to a
    significant extent, the creator of his own great misfortune.
    It was he who set in motion the whole train of events, by
    carelessly and unnecessarily hurrying into a busy road at a
    pelican crossing at a time when the lights were red for
    pedestrians and green for traffic, and when a line of more
    or less stationary traffic in the nearside lane increased the
    risk of injury from traffic approaching from the offside
    lane. In contrast, each of the defendants, as a result of
    the plaintiff's negligence, found himself confronted by a
    quite unexpected emergency. If hearing the case at the
    trial, I might well have held that the plaintiff's share in the
    responsibility for his injuries must be regarded as larger
    than that of either of the defendants. However, this court
    is always slow to interfere with the decision of a judge of
    first instance on a question of apportionment such as this,
    and subject to what is said below, I see no sufficient
    grounds to interfere with the decision of the judge in this
    context.

    "Nevertheless, I do not think that the form of order
    actually made by the judge gave effect to his clear
    conclusion that the plaintiff's responsibility for the injury
    was no less (though no greater) than that of either of the
    defendants. If only one of the defendants had appeared
    before him, this conclusion must, more or less inevitably,
    have led to a ruling that the damages recoverable by the
    plaintiff against that defendant should be reduced by 50 per
    cent, (not 33 1/3 per cent.) under section 1(1) of the Act of
    1945. I can see no possible grounds in principle or logic
    why the amount of the reduction should be less, merely
    because two defendants were parties to the action instead
    of one. On the issue of contributory negligence, the judge,
    with respect to him, was, in my opinion, led into error by
    considering the share of the responsibility of the plaintiff
    for his injury vis-à-vis the defendants conjunctively instead
    of individually; 'that share can only be estimated by
    weighing his fault . . . against that of each defendant: see
    The Miraflores and The Abadesa [1967] 1 A.C. 826, per Lord
    Pearce at p. 846. (The emphasis is mine.) If the judge had
    taken the latter course, it seems clear that he would have
    regarded the responsibility of the plaintiff vis-à-vis each
    defendant as being 50 per cent.

    "Section 2(1) of the Act of 1978 requires that, as
    between the two defendants, the amounts of their respective
    contributions 'shall be such as may be found by the court to
    be just and equitable having regard to the extent of that
    person's responsibility for the damage in question. I see no

    - 5 -

    sufficient grounds for differing from the judge's conclusion
    that the responsibility of each of the two defendants for
    that part of the injury for which the plaintiff was not
    responsible was equal. I therefore agree that the appeal of
    each of the defendants should be allowed on the limited
    issue of apportionment, and that the judge's order should be
    varied by giving judgment for the plaintiff against each
    defendant for 50 per cent, (instead of two-thirds) of the
    plaintiff's claim and by ordering contribution between the
    defendants on a fifty-fifty basis."

    Nourse L.J. agreed with the views of Sir Edward Eveleigh and
    Slade L.J. as set out above [1987] Q.B. 781, 800.

    The Correct Approach to the Determination of Contributory
    Negligence, Apportionment and Contribution

    It is axiomatic that whether the plaintiff is suing one or
    more defendants, for damages for personal injuries, the first
    question which the judge has to determine is whether the plaintiff
    has established liability against one or other or all the defendants
    i.e. that they, or one or more of them, were negligent (or in
    breach of statutory duty) and that that negligence (or breach of
    statutory duty) caused or materially contributed to his injuries.
    The next step, of course, once liability has been established, is to
    assess what is the total of the damage that the plaintiff has
    sustained as a result of the established negligence. It is only
    after these two decisions have been made that the next question
    arises, namely, whether the defendant or defendants have
    established (for the onus is upon them) that the plaintiff, by his
    own negligence, contributed to the damage which he suffered. If,
    and only if, contributory negligence is established does the court
    then have to decide, pursuant to section 1 of the Law Reform
    (Contributory Negligence) Act 1945, to what extent it is just and
    equitable to reduce the damages which would otherwise be
    recoverable by the plaintiff, having regard to his "share in the
    responsibility for the damage."

    All the decisions referred to above are made in the main
    action. Apportionment of liability in a case of contributory
    negligence between plaintiff and defendants must be kept separate
    from apportionment of contribution between the defendants inter
    se. Although the defendants are each liable to the plaintiff for
    the whole amount for which he has obtained judgment, the
    proportions in which, as between themselves, the defendants must
    meet the plaintiff's claim, do not have any direct relationship to
    the extent to which the total damages has been reduced by the
    contributory negligence, although the facts of any given case may
    justify the proportions being the same.

    Once the questions referred to above in the main action
    have been determined in favour of the plaintiff to the extent that
    he has obtained a judgment against two or more defendants, then
    and only then should the court focus its attention on the claims
    which may be made between those defendants for contribution
    pursuant to the Civil Liability (Contribution) Act 1978, re-enacting
    and extending the court's powers under section 6 of the Law
    Reform (Married Women and Tortfeasors) Act 1935. In the
    contribution proceedings, whether or not they are heard during the

    - 6 -


    trial of the main action or by separate proceedings, the court is
    concerned to discover what contribution is just and equitable,
    having regard to the responsibility between the tortfeasors inter
    se, for the damage which the plaintiff has been adjudged entitled
    to recover. That damage may, of course, have been subject to a
    reduction as a result of the decision in the main action that the
    plaintiff, by his own negligence, contributed to the damage which
    he sustained.

    Thus, where the plaintiff successfully sues more than one
    defendant for damages for personal injuries, and there is a claim
    between co-defendants for contribution, there are two distinct and
    different stages in the decision-making process - the one in the
    main action and the other in the contribution proceedings.

    The Trial Judge's Error

    Mr. Stewart accepts that the judge telescoped or elided the
    two separate stages referred to above into one when he said:

    "I find that it is impossible to say that one of the parties is
    more or less to blame than the other and hold that the
    responsibility should be borne equally by all three."

    The judge, in my judgment, misdirected himself by thinking in
    tripartite terms, instead of pursuing separately the two stages -
    phase 1: was the plaintiff guilty of contributory negligence and, if
    so, to what extent should the recoverable damages be reduced,
    issues which concerned the plaintiff on the one hand and the
    defendants jointly on the other hand; and phase 2: the amount of
    the contribution recoverable between the two defendants having
    regard to the extent of their responsibility for the damage
    recovered by the plaintiff - an issue which affected only the
    defendants inter se and in no way involved the plaintiff.

    The vice of this misdirection is that it can, and, in my
    judgment for reasons which I shall explain, in this case it did,
    result in the judge taking into account the proportions in which
    the defendants between themselves were liable for the plaintiff's
    recoverable damages, in deciding on the degree of contributory
    negligence of which the plaintiff was guilty. He allowed his
    judgment on the issue of contributory negligence to be coloured by
    his decision as to the proper apportionment of blame between the
    defendants. While stating in substance on the one hand that the
    plaintiff's responsibility was no more and no less than of either of
    the defendants, his ultimate conclusion, as mirrored in his order,
    was that each of the defendants was twice as much to blame as
    the plaintiff. This could not be right on the facts. Sir Edward
    Eveleigh [1987] Q.B. 781, 792H, had difficulty in seeing where the
    second defendant was to blame at all and, as stated above, Slade
    L.J. said, at p. 813D, he had considerable sympathy with the
    submission made on behalf of each of the defendants "that on any
    footing the plaintiff's share in the responsibility for the damage
    was, on the facts, greater than that of his client." As previously
    stated, this was a case in which at the trial Mr. Stewart, with
    characteristic sense of reality, conceded that his client was guilty
    of contributory negligence. As the trial judge observed:

    - 7 -

    There is no doubt that the plaintiff failed to heed the
    obvious advice given in the Highway Code, namely, 'When
    the red man signal shows, don't cross. Press the button on
    the box and wait.'"

    Clearly the plaintiff ought to have known that the lights were
    showing green in favour of the traffic approaching the crossing and
    that the vehicles in the outer of the two lanes going south were
    travelling freely. That he was substantially the author of his own
    sad misfortune cannot be gainsaid. The negligence found against
    the first defendant was that at 30 miles per hour he was
    travelling too fast and that he was not keeping a proper lookout
    for pedestrians trying to cross the road, albeit against the traffic
    lights. The negligence found against the second defendant was
    that he too was travelling too fast or failing to keep a proper
    lookout. In my judgment, to rate the negligence of either of the
    two defendants as being twice as bad as that of the plaintiff is
    clearly wrong and must have resulted from the judge misdirecting
    himself in the manner which I have described.

    Such being the situation the question as to what is the just
    and equitable deduction to make from the plaintiff's damages is at
    large for your Lordships' consideration. Like Slade L.J., if I had
    had to try the case at first instance, I might have well have held
    that the plaintiff's share in the responsibility for his injuries was
    larger than that of either of the defendants. There may therefore
    be, I hope, some small comfort for the plaintiff that I view the
    order of the Court of Appeal, that he is to have judgment against
    each defendant for 50 per cent, of his claim, as achieving, in the
    circumstances, a generous award from his point of view.

    My Lords, in view of the opinion which I have expressed
    above, there is a strong temptation to say no more. However, out
    of deference to Mr. Stewart's able argument I feel I should
    express my view as to his main criticism of the judgment of the
    Court of Appeal and, because it raises a point of some
    importance, comment on the dictum of Lord Pearce in The
    Miraflores and The Abadesa
    [1967] 1 A.C. 826, 845, 846 upon
    which the Court of Appeal strongly relied.

    The Court of Appeal's Interpretation of the Judge's Decision

    In the quotation from Sir Edward Eveleigh's judgment [1987]
    Q.B. 781, 793 set out above there is to be found the statement
    "The judge's finding indicates that he thought that each of the
    three parties was equally at fault. That being so, the correct
    form of judgment should be 'judgment for the plaintiff for 50 per
    cent, of his claim against each defendant.'" With respect I cannot
    agree. I concur in the view expressed by Moffitt P. in the Court
    of Appeal of New South Wales in Barisic v. Devenport [1978] 2
    N.S.W.L.R. 111 at 121-122 that:

    "In ordinary language, if three persons are severally and
    equally responsible for an event 'the share of the
    responsibility' for the event of any one would be one-third,
    not one-half."

    Nor, with respect, can I agree with Slade L.J. [1987] Q.B. 781, 813
    that "the form of the order actually made by the judge [did not

    - 8 -

    give] effect to his clear conclusion that the plaintiff's
    responsibility for the injury was no less (though no greater) than
    that of either of the defendants." If there was any doubt as to
    the true construction of what the judge said initially in his
    judgment as to the apportionment of the liability, it was
    subsequently made clear, not only by his statement at the end of
    his judgment, "one-third of the amount of the award will be paid
    by each of the defendants," but also by his acceptance of Mr.
    Stewart's submission that the proper form of the judgment was,
    judgment for the plaintiffs against both defendants for two- thirds
    of the total damages. Indeed, as previously stated, no suggestion
    was made either in the notices of appeal or in their initial
    submissions by counsel for the defendants in the Court of Appeal,
    that the order he made was inconsistent with the true
    interpretation of the judge's decision. I am quite satisfied that
    the judge, as a result of the misdirection to which I have made
    reference above, did intend to reduce the damages recoverable by
    the plaintiff by only one-third, a decision which I have already
    characterised as being clearly wrong.

    The Miraflores and The Abadesa [1967] 1 A.C. 826

    The claim in that case arose out of a collision between two
    ships, the steam tankers Miraflores and the Abadesa. In avoiding
    becoming involved in that collision, the steam tanker George
    Livanos
    ran aground and sustained damages. The owners of the
    George Livanos brought an action against the owners of both the
    Miraflores and the Abadesa in respect of her grounding. In a
    separate action the owners of the Miraflores had brought an action
    against the owners of the Abadesa in respect of their collision.
    The actions were heard together by Hewson J. who held in respect
    of the collision action that the Miraflores had been one-third and
    the Abadesa two-thirds to blame for the collision. In respect of
    the grounding action he held that the George Livanos had herself
    been negligent. However, he treated the negligence which led to
    the collision as "one unit," in respect of the grounding and the
    negligence of the George Livanos as the other unit. He found it
    impossible to distinguish between the degrees of fault of the two
    units and therefore held that the George Livanos was 50 per cent.
    to blame for the grounding and entitled to recover the remaining
    50 per cent, from the Abadesa and the Miraflores in the
    proportion of two-thirds and one-third respectively. The House of
    Lords held that the "unit approach" was wrong, having regard to
    the terms of section 1 of the Maritime Conventions Act 1911
    which provides:

    "Where, by the fault of two or more vessels, damage or loss
    is caused to one or more of those vessels, to their cargos
    or freight, or to any property on board, the liability to
    make good the damage or loss shall be in proportion to the
    degree in which each vessel was in fault . . ."

    In his speech Lord Morris of Borth-y-Gest said, at p. 841-
    842:


    "The section calls for inquiry as to fault, and inquiry as to
    damage or loss, and inquiry as to causation. As applied to
    the claim made by the George Livanos it becomes necessary
    to decide whether the damage or loss to the George Livanos

    - 9 -


    (or her cargo or freight) was caused by the fault of two or
    more vessels. The decision of the learned judge being that
    such loss or damage was caused by the fault of all three
    vessels, that is, the fault of herself, the fault of the
    Miraflores and the fault of the Abadesa, it followed that
    the liability to make good the damage or loss had to be 'in
    proportion to the degree in which each vessel was at fault,’
    which I think means the degree in which the fault of each
    vessel caused the loss or damage. Consequently three
    inquiries were involved. To what extent as a matter of
    causation did the fault of the Abadesa bring about the
    grounding of the George Livanos? To what extent as a
    matter of causation did the fault of the Miraflores bring
    about the grounding of the George Livanos? To what extent
    as a matter of causation did the fault of the George
    Livanos
    bring about her grounding? The liability to make
    good the damage or loss caused by the grounding would be
    in the proportions shown by the answers to those questions.

    "In performing the task directed by section 1, I think
    that it may lead to confusion if it is sought to link the
    faults of two separate vessels into one 'unit.' I think that
    it is preferable to follow the wording of the section without
    introducing the complication of 'units.' As applicable in the
    present case, once it was established that there was fault in
    each one of the three vessels and also that the damage or
    loss of the George Livanos was caused to some extent by
    the fault of each one of the three vessels, then it became
    necessary to apportion the liability for the damage or loss
    by deciding separately in reference to each one of the three
    vessels what was the degree in which the fault of each one
    caused the damage or loss to the George Livanos. The
    process necessarily involved comparisons and it required an
    assessment of the inter-relation of the respective faults of
    the three vessels as contributing causes of the damage or
    loss. If the faults of two vessels out of three are being
    grouped together there may be risk of making it difficult to
    make separate comparisons and assessments as between the
    three."

    It is thus clear that section 1 of the Act of 1911
    contemplates the individual assessment of the fault of each vessel
    liable for the damage. It makes no provision for contribution
    over, since ex hypothesi, the extent to which each vessel must
    contribute to the loss has already been determined. That,
    however, is not the scheme of the Law Reform (Contributory
    Negligence) Act 1945 which by section 1(3) specifically provides
    that section 6 of the Law Reform (Married Women and
    Tortfeasors) Act 1935 shall apply in any case where two or more
    persons are liable or would, if they had been sued, be liable by
    virtue of section 1(1) of the Act of 1945 in respect of the damage
    suffered by any person. Indeed, it is specifically provided by
    virtue of section 3 that the Act shall not apply to any claim to
    which section 1 of the Maritime Conventions Act 1911 applies.

    Lord Pearce, with whom Lord Reid and Lord Hodson agreed,
    also concluded that the "unit approach" was wrong. He said, at p.
    844:

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    "First, it does not accord with section 1 of the Maritime
    Conventions Act 1911, which requires that liability shall be
    assessed 'in proportion to the degree in which each vessel
    was at fault’ For on the 'unit approach there is not an
    assessment of the degree in which each vessel was at fault.
    Secondly, and in consequence, the judge assessed at too high
    a figure the fault of the George Livanos in proportion to
    the respective individual faults of the Abadesa and the
    Miraflores."

    That part of Lord Pearce's speech, at p. 846, which Sir
    Edward Eveleigh and Slade L.J. quoted [1987] Q.B. 781, 794, 813,
    is obiter since it was directed to the Law Reform (Contributory
    Negligence) Act 1945.

    Although the decision of the Court of Appeal in Davies v.
    Swan Motor Co. (Swansea) Ltd.
    [1949] 2 K.B. 291 was referred to
    in the course of argument, Lord Pearce makes no reference to it
    in his speech. In his judgment Denning L.J. in Davies's case when
    considering how the Law Reform (Contributory Negligence) Act
    1945 operated, where a plaintiff brought an action against the
    driver of two vehicles said, at p. 325:

    "If they were both found guilty of 'fault' which caused the
    damage, could it possibly be said that the plaintiff's
    damages were to be reduced as against one and not as
    against the other? And even if that were possible, what
    would be the proportions as between the two drivers?
    Would contributions be assessed on the higher or lower
    figure of damages? If the Act of 1945 were to involve
    such questions, it would introduce many complications into
    the law. The Act seems to contemplate that, if the
    plaintiff's own fault was one of the causes of the accident,
    his damages are to be reduced by the self-same amount as
    against any of the others whose fault was a cause of the
    accident, whether he sues one or more of them, and they
    bear the amount so reduced in the appropriate proportions
    as between themselves."

    Clearly the two dicta cannot stand together. Further, I have
    difficulty in following why the claimant's share in the
    responsibility for the damage which he has suffered can only be
    estimated by weighing his fault against each of the defendants,
    where there is more than one defendant. Nor am I aware that, as
    a matter of practice "the court weighs up the fault of each
    (original emphasis) in assessing liability as between the plaintiff
    and defendants themselves." Where liability is established against
    joint tortfeasors, judgments are entered against each of them in
    respect of the same sum - the total recoverable damages reduced
    by the appropriate sum to reflect the plaintiff's share, if any, in
    the responsibility for the damage. This course is wholly consistent
    with the words of section 1(1) of the Act of 1945 which provides
    that the "damages recoverable" by the plaintiff are to be reduced
    by his share in the responsibility for the damage, thus
    contemplating one sum of damages as the subject matter of a
    number of judgments, and not a number of judgments in respect of
    different sums. As stated above section 1(3) of the Act of 1945
    expressly applies the contribution procedure provided by the Act of
    1935 to cases of multiple defendants liable by virtue of section

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    1(1). If the responsibility of each party at fault is to be weighed
    against each of the others and several judgments in different sums
    are to be entered, there would be no call for contribution
    proceedings, because the responsibility for the damage would have
    been directly apportioned amongst all parties at fault, as under
    section 1 of the Maritime Conventions Act 1911.

    In my judgment, in order to assess the "claimant's share in
    the responsibility for the damage" which he has suffered as a
    result of the defendants' established negligence, the judge must ask
    himself to what extent, if at all, the plaintiff has also been part
    author of his own damage. This obviously requires careful
    evaluation of the plaintiff's conduct in the light of all the
    circumstances of the accident and those circumstances, of course,
    include the conduct of all the defendants who have been found
    guilty of causative negligence. Circumstances will, naturally,
    differ infinitely. In the instant case the plaintiff's conduct set in
    motion the chain of events that led to the accident. If the
    plaintiff had not ignored or failed to observe that the lights were
    against him and in favour of the traffic, when he decided to cross
    the pelican crossing, then the accident would never have happened.
    It was the negligent response of each of the defendants to the
    dangerous situation thus created by the plaintiff which established
    their joint and several liability.

    In other situations it might be the defendants, who, for
    example, through their negligent driving, or negligent operation of
    a factory or building site, create the initial danger and it is then
    the response of the plaintiff to that dangerous situation that has
    to be assessed. What accounted for the reduction in the damages
    awarded to the plaintiff was his degree of culpability in setting
    the scene for the collision. In different circumstances, where the
    initial danger of injury is created by the negligence of the
    defendants, then it is the plaintiff's response to that situation
    which has to be assessed. In neither event does the exercise of
    assessing the plaintiff's share in the responsibility for the damage
    which he has sustained necessitate the determination of the extent
    of the individual culpability of each of the defendants, once the
    judge is satisfied that the defendants each caused or materially
    contributed to the plaintiff's damage. While the plaintiff's conduct
    has to be contrasted with that of the defendants in order to
    decide to what extent it is just and equitable to reduce the
    damages, which would be awarded to him if the defendants were
    solely liable, it does not involve an assessment of the extent to
    which the fault of each of the defendants contributed to that
    damage. What is being contrasted is the plaintiff's conduct on the
    one hand, with the totality of the tortious conduct of the
    defendants on the other. As previously stated, the determination
    of the extent of each of the defendants' responsibility for the
    damage is not made in the main action but in the contribution
    proceedings between the defendants, inter se, and this does not
    concern the plaintiff.

    I accordingly take the view that the dictum of Denning L.J.
    in Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291,
    325, cited above is correct and that the observations made by
    Lord Pearce in The Miraflores cited above as to the practice and
    procedure which should be adopted in relation to the Law Reform
    (Contributory Negligence) Act 1945 and the Law Reform (Married

    - 12 -

    Woman and Tortfeasors) Act 1935 (now the Civil Liability
    (Contributions) Act 1978) should not be followed.

    I should add that in reaching my decision, I have derived
    considerable assistance from the judgment of Samuels J.A. in the
    Australian case of Barisic v. Devenport [1978] 2 N.S.W.L.R. 111
    referred to above.

    I accordingly would dismiss this appeal with costs.

    LORD OLIVER OF AYLMERTON

    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Ackner. I agree
    with it and would dismiss the appeal for the reasons which he has
    given.















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