From: Harrington Matthew P. <>
To: Neil Foster <>
CC: Lee, James <>
Date: 19/02/2015 13:30:26 UTC
Subject: Re: [Spam?] UK Supreme Court on Contributory Negligence and Apportionment

Thanks for this.
Interesting Australian conflict.
Are you suggesting that the approach taken in Boral Brick is a result of the peculiarities of the Australian statute or do you sense a real difference in approach?

On 19 Feb 2015 07:02, Neil Foster <> wrote:
Dear James (and colleagues);
Some interesting comments. I notice that Lord Reed says:

1. In relation to causation, the Extra Division based its view that “the attribution of causative potency to the driver must be greater than that to the pedestrian” on the fact that “a car is potentially a dangerous weapon”. Like the Court of Appeal in Eagle v Chambers, I would take the potentially dangerous nature of a car being driven at speed into account when assessing blameworthiness;

This question- whether the apportionment of contributory negligence in cases of collision between a car and a pedestrian should be in favour of the pedestrian because of the dangerous nature of the car- has come up on a few occasions recently in the NSW Court of Appeal. In a detailed analysis of the issue Basten JA suggested in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 (7 May 2014) that there may have been some warrant for such a view at common law, but it has now been removed with the introduction of s 5R of the Civil Liability Act 2002. The headnote captures it well:

1. Section 5R<> of the Civil Liability Act<> reflects the policy that people are to take responsibility for their own lives and safety. That the likely seriousness of harm caused by the driver's conduct is greater than the pedestrian's does not diminish the responsibility of either for the accident. If each were equally careless, liability should be shared equally. The approach taken in earlier authorities that the culpability of a person controlling a potentially dangerous heavy vehicle is necessarily greater no longer applies: [99]-[100]

Alford v Magee [1952] HCA 3<>; 85 CLR 437<>; Pennington v Norris [1956] HCA 26<>; 96 CLR 10<>; Watt v Bretag (1982) 56 ALJR 760<>; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34<>; 59 ALJR 492<>; Joslyn v Berryman [2003] HCA 34<>; 214 CLR 510; considered.

Cook v Cook [1986] HCA 73<>; 162 CLR 376<>; Imbree v McNeilly [2008] HCA 40<>; 236 CLR 510<>; Council of the City of Greater Taree v Wells [2010] NSWCA 147<>; 174 LGERA 208<>; Frost v Kourouche [2014] NSWCA 39<> referred to.

Talbot-Butt v Holloway (1990) 12 MVR 70<> distinguished.

(My bold emphasis.) Yet in another decision, Gordon v Truong; Truong v Gordon [2014] NSWCA 97 (4 April 2014), not long before the above, Macfarlan JA commented:

1. Relevant to the apportionment exercise in this case is in my view the fact that the appellant was in charge of a fast moving vehicle that had the potential to do great harm to people or things in its path, whereas the consequence of carelessness on the part of the plaintiff was more likely to be, as it was, only harm to himself (Pennington v Norris [1956] HCA 26<>; 96 CLR 10<> at 16; Anikin v Sierra [2004] HCA 64<>; 79 ALJR 452<> at [46]<>, [48] - [52]; Smith v Zhang [2012] NSWCA 142<>; 60 MVR 525<> at [12]<> - [16]).

So it may be that we will need the High Court of Australia to clarify this issue soon.

For those interested in a similar case involving a student darting out from behind a school bus, see Axiak v Ingram [2012] NSWCA 311 (27 September 2012), unfortunately mired in difficult statutory interpretation issues under the CLA/



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From: <Lee>, Jamie Lee <<>>
Date: Thursday, 19 February 2015 9:35 pm
To: "<>" <<>>
Subject: [Spam?] UK Supreme Court on Contributory Negligence and Apportionment

Dear Colleagues,

It may be of interest to note the relatively short Scots decision from the UK Supreme Court yesterday on apportionment under the Law Reform (Contributory Negligence) Act 1945: Jackson v Murray Lord Reed sets the scene:

1 A school minibus draws up on a country road on a winter’s evening. Two children get off. One of the children tries to cross the road. She steps out from behind the minibus, into the path of an oncoming car. The driver is driving too fast: he has seen the bus, but has made no allowance for the possibility that a child might attempt to cross in front of him. He is not keeping a proper look-out, and does not see her, but he is going too fast to have stopped in time even if he had seen her. His car hits the child, causing her to sustain severe injuries. If he had been driving at a reasonable speed, and had been keeping a proper look-out, he would not have hit her.

2 The trial judge finds that the accident was caused by the driver’s negligence, but that the child was also contributorily negligent. He assesses her contributory negligence at 90%, and reduces the award of damages accordingly. On appeal, the court reduces that assessment to 70%. On a further appeal, this court is invited to reduce the assessment further.

3 How should responsibility be apportioned in a case of this kind? What principles should govern the review of an apportionment by an appellate court? These are the central questions posed by this appeal.

By a majority, the Supreme Court allows the appeal and apportions responsibility equally between the parties. There is worthwhile discussion of causative potency and blameworthiness, and also the circumstances in which an appellate court can and should review such decisions (Lord Reed again):

27 It is not possible for a court to arrive at an apportionment which is demonstrably correct. The problem is not merely that the factors which the court is required to consider are incapable of precise measurement. More fundamentally, the blameworthiness of the pursuer and the defender are incommensurable. The defender has acted in breach of a duty (not necessarily a duty of care) which was owed to the pursuer; the pursuer, on the other hand, has acted with a want of regard for her own interests. The word “fault” in section 1(1), as applied to “the person suffering the damage” on the one hand, and the “other person or persons” on the other hand, is therefore being used in two different senses. The court is not comparing like with like.

28 It follows that the apportionment of responsibility is inevitably a somewhat rough and ready exercise (a feature reflected in the judicial preference for Page 11 round figures), and that a variety of possible answers can legitimately be given. That is consistent with the requirement under section 1(1) to arrive at a result which the court considers “just and equitable”. Since different judges may legitimately take different views of what would be just and equitable in particular circumstances, it follows that those differing views should be respected, within the limits of reasonable disagreement

Best wishes,



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