Page 29 - Insurance Times October 2023

The Court affirmed the well-established Contributory Negligence: Indian Per-
principles that: spective

1) a car is more causatively potent of damage than a Trials of motor accident compensation cases are conducted
pedestrian; and in specially constituted tribunal under Motor Vehicle Act,
2) a pedestrian will rarely be more to blame than the 1988 and the trials are conducted on the cornerstone of
motorist. twin theory of welfare legislation and summary proceeding.
The yardsticks of 'causative potency' and 'blameworthiness'
The majority, which included Lady Hale, drew heavily on the have never ever been applied in India. The objectivity in
analysis of Hale LJ (as she was then) in Eagle v Chambers 'foreseeability' of harm to himself which becomes the
[2004] WLR 3081, where it had been observed that the touchstone to decide the issue of contributory negligence
"destructive disparity" between the parties could be taken in foreign jurisdiction is usually discarded when pitted against
into account as an aspect of blameworthiness, contributory the notion of welfare legislation and summary trial.
negligence being a function of relative blameworthiness and
causative potency. It was noted that the courts have There is misconception that claim in motor accident case is
consistently imposed a high burden on car drivers to reflect filed for causing the accident. Rather, it is filed for the
the potentially dangerous nature of driving and the fact that damage/injury caused by the accident i.e. resultant injuries/
"a car is potentially a dangerous weapon". Hale LJ is often damage. Hence, all the factors responsible for causing
quoted on this issue: injuries must be taken into account in apportioning the
"It is rare indeed for a pedestrian to be found more contributory negligence and for that twin theory of
responsible than a driver unless the pedestrian has 'causative potency' and 'blameworthiness' appears to be
suddenly moved into the path of an oncoming vehicle." more scientific and evolved.

Apportionment in Composite & Con- Conclusion
tributory Negligence In modern days, the apportionment of liability is fixed on
In multiple defendants' cases where the claimant was not the basis on the function of respective 'causative potency'
at fault, he can recover his full loss against any of the and 'blameworthiness' of the parties - plaintiffs and
defendants. That person will then have to seek a defendants in major jurisdictions. The trend of recent
contribution from the other defendants under the Civil judgments are departing from the earlier view expressed in
Liability (Contribution) Act 1978. Davies that causation is the decisive factor and now both
respective 'causative potency' and 'blameworthiness' are
In Fitzgerald v Lane [1987] QB 781, the plaintiff stepped out being given equal importance in apportionment of liability
into the traffic on a busy road. He was struck by a vehicle in developed countries.
driven by the first defendant. This pushed him into the path
of an oncoming vehicle driven by the second defendant. Now slowly, it has startedgaining traction with the judiciary
Both defendants were accepted to be negligent and the in India also that action is filed for compensation for the
plaintiff was contributorily negligent. At first instance the injury caused by the accident and not for the factors
three parties were held equally to blame and the plaintiff's responsible for causing the accident. Therefore, if wearing
damages were therefore reduced by one-third. This was held a seat belt while travelling in a car or wearing a crash helmet
to be the wrong approach by the House of Lords. while riding motor cycle could have prevented the injuries
the plaintiff have suffered in a road accident, the
It was necessary to distinguish two questions. First, the
contributory negligence of the plaintiff and the amount by compensation amount must be reduced proportionately for
which his damages should be reduced. Second, the amount plaintiff's failure to wear these protective gears.
of contribution recoverable between the two defendants.
The plaintiff's culpability was in setting the scene for the References:
accident. The response of the defendants then had to be 1. Jones v Livox Quarries Ltd[1952] 2 QB 608
looked at. The plaintiff's conduct and the totality of the 2. Eagle v Chambers: CA 24 JUL 2003
tortious conduct of the defendants were compared. As the 3. Froom v Butcher [1976] QB 286
plaintiff was as much to blame for his injuries as the 4. Eagle v Chambers [2004] WLR 3081
defendants, his damages were reduced by 50 per cent. 5. Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291

28 October 2023 The Insurance Times