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258 NEGLICENCE: CAUSATION AND CONTR1BUTORY NEGLIGENCE

statutory duły.³⁶ Furthermore, even if the worker's negligence involves him in breach of his own statutory duty³⁷ his claim is not defeated by maxim ex turpi causa non oritur actio.^w On the other hand, given the naturę of some statutory duties, it can happen that the defendant's breach i_s brought about wholly and exclusively by the claimant's own breach of hj_s duty and in such a case the claimant can recover nothing.³⁹

Apportionment of loss

6.49 In a case of contributory negligence the damages recoverable by the claimant are 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."⁴*’ This may seem simple enough at first sight, though the problem may be complex when there are successive accidents which are causally connected with one another,⁴¹ and in the majority of cases the judges give little by way of reason for their assessments of the extent to which the daimanfs damages should be reduced. The matter is com-monly treated as one of fact, and appellate courts will only vary an assessment in extreme cases unless the trial judge can be said to have erred in principle or failed to take some relevant factor into account.⁴²

Broadly speaking, two principal criteria of "responsibility" suggest themselves, causation and blameworthiness or culpability and there is high authority for the view that both causation and blameworthiness rnust be taken into account.⁴³ It would seem, however, that no hard-and-

^v’ See, c.g. John Summers & Sons Ltd v. Frost 11955] A.C. 740. Neverthele$s, cases in which workers are held partlv and even substantially to blame for their own injuries are common. See, c.g. Cork r. Kir bu Maclean Ltd (19521 2 Ali E R. 402; Jones v. Richards 119551 1 W.L.R. 444; Hodkinson v. H. Walluork & Co. lid 119551 1 W.L.R. 1195 (claimant 90% to blame); Uddin v. Associated Partiami Cement Manufacturers Ltd [19651 2 Q.B. 582; Thomton v. Szpan Hunter (Shifdmilders) Ud 1197111 W.L.R. 1759; King v. Smith [199511.C.R. 339; Jrfekw v. M.o.D. [20001 1 W.L.R. 2055 (far removed from the typical employment case).

’^r For examples of statutory' duties imposed directly on w'orkers see Management of Health and Safety at Work Regulations 1992, reg. 12, Personal Protective Equipment at Work Regulations 1992, reg. 10, Manuał Handling Regulations 1992, reg. 5.

** National Coal Board v. England (19541 A.C. 403. See para. 25.18, belo w. ^w See para. 7.13, below.

•"Law Reform (Contributory Negligence) Act 1945. s.l(l). The equivalent provision in the Merchant Shipping Act 1995. s. 187(1) lays down that "the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault" For apportionment between defendants under the Civil Liability (Contribution) Act 1978, see Chap. 21, below ¹¹ ln The Calliope [1970] P. 172 Brandon J. held that where the first aeddent is caused partly by the negligence of the defendant and partly by the negligence of the claimant and then the claimant sufters further, consequential, damage which is caused partly by the first accident and partly by his own further negligence, there must be a sub-apportionment of responsibility for that consequential damage.

⁴² Of the many authorities, see TJte Macgrcgor [19431 A.C. 197 at 200-201, per Lord Wright; Brown > Thompson [19681 1 W L R. 1003 at 1009-1011, per Winn L.J.; Vie Jan Umrcnz [19731 1 Lloyds Rep. 32« Hannom v. Mann [19841 R.T.R 252 (only when "clearly wrong"). Nevertheless appellate courts, and especially the House ot l.ords, have from time to time varied apportionments ot damages quite tret*lN Stapley v. Gypsum Mines Ud [19531 A.C. 663; National Coal Board v. England [19541 A.C. 403; Quintas . National Smelting Co. [19611 1 W.LR. 401; Barrett v. M.o.D. 119951 1 W.L.R. 1217; Brannan v. Airtours pL The limes. February 1, 1999.

° Dauies v. Szpan Motor Co. 1194912 K B. 29 at 326. per Denning LJ.; Stapley v. Gyfrsum Mines Ud [ 1953) A.C 663 at 682, jwr Lord Reid; The British Amator [1965) 1 Lloyd's Rep 271; The Mira/Jores and The Abadcsa 1196711 A.C. 826, especially f*er Lord Pearce at 845; Brown v. Thompson abtne at 1008, pr Winn LJ.; Pride \'ality Foods Ud v. Hall & Partner* [20011 EWCA Civ 1001, (2001) 76 Con. L.R 1 at 1511 fg_St rule can be laid down, for the exercise is not a science.⁴⁴ Degrees of causation may be impossible of rational assessment, but concentration exclusively upon comparative blameworthiness will tend in some cases to defeat the purpose of the Contributory Negligence Act. Where the defendant's liability is based upon breach of a strict common law or statutory duty he may have been guilty of no blameworthy behaviour at _all, in which case if comparative blameworthiness were the sole criterion, _even slight contributory negligence would prevent the claimant from ^covering any damages. Naturally the courts have been unwilling to reach such a conclusion; on the contrary, as has been stated, the protection intended to be given by strict statutory duties must not be emasculated by the "side-wind of apportionment".⁴⁵ It has been persuasively argued, therefore, that once the liability of the defendant has been established, regard should be had only to the claimant's conduct in assessing the extent to which the damages should be reduced.⁴⁸ Comparative blameworthiness cannot be assessed when the defendant's liability is not based upon morał fault, but "the legał effects of contributory negligence follow only from morally culpable conduct".⁴⁷ This may, in fact, very possibly explain the way in which judges often approach the problem of apportionment, but it is not in truth always possible to ignore the naturę of the defendanfs liability. In Qumtas v. National Smelting Co. Devlin J.⁴⁸ held that the defendants had not been guilty of negligence but had broken their statutory duty and assessed the claimant's contributory negligence at 75 per cent. The Court of Appeal, by a majority, held that the defendants were not guilty of breach of statutory duty but had been guilty of negligence and therefore reduced Devlin J.'s assessment to 50 per cent:

'The respective responsibilities of the parties, and what is just and equitable having regard thereto, can only properly be assessed when it has been found what the plaintiff in fact did and what the defendants failed in their duty to do. The naturę and extent of the defendants' duty is, in my view, highly important in assessing the ettect of the breach of failure of duty on the happening of the accident giving rise to the plaintiff's claim and on the conduct of the plaintiff. There is an interaction of factors, acts and omissions to be considered."⁴⁹

Comparative blameworthiness becomes even morę difficult where the claimant's conduct in no way contributes to the accident but consists in failure to take some safety precaution which would have eliminated or ** Pride Valley Foods, above, at (53J.

** Mulimi v. Ben Linę Steamers Ltd 11970] 1 W.LR. 1414 at 1418, per Sachs L.J.; McGuimiess r. Kii/ Markets ^ Ud (1973) 13 K I R. 249; Reenes v. M.P.C 120001 1 A.C 360 at 371.

Payne "Reduction of Damages for Contributory Negligence" (1953) 18 M LR. 344 ⁴⁷ Ibid., at 347. cf. the vie\v of "morally culpable" in Pemiington v. Harris (1956) % C.L.R. 10.

** 11960) 1 W.LR. 217 (19611 1 W LR. 401. See also the example given by Lord Pearce in The Mira flores and The Abadesa |1%7] 1 A.C. 826 at 845.

* ll%l I 1 W.L.R. 401 at 408, per Scllers L.J.