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Apportionment of damages for contributory negligence: a fixed or discretionary approach?

Published online by Cambridge University Press:  02 January 2018

James Goudkamp*
Keble College, Oxford
James Goudkamp, Keble College, Oxford OX1 3PG, UK. Email:


In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules.

Research Article
Legal Studies , Volume 35 , Issue 4 , December 2015 , pp. 621 - 647
Copyright © Society of Legal Scholars 2015 

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Fellow, Keble College, Oxford; Associate Professor, Oxford Law Faculty. I am grateful to John Murphy, Donal Nolan and Prince Saprai for their helpful comments on early drafts of this paper. I am also indebted to the participants in the University of Sydney Forum on Apportionment and the Attribution of Liability (especially to Peter Cane), the Moral Values and Private Law III workshop at King’s College London (particularly to Andrew Dyson, John Goldberg, Victor Tadros and Benjamin Zipursky) and the tort strand of the Society of Legal Scholars’ Annual Conference 2014 (especially to Jenny Steele and Stephen Todd). Many thanks are due to Ellen Bublick for reviewing my use of US sources and also to Eleanor Mitchell for her research assistance. Finally, I wish to record the debt that I owe to the anonymous referees, for putting a range of suggestions to me. These suggestions enabled me to make several significant adjustments to the analysis.


1. ‘ “Contributory negligence” … is raised very frequently, and has a great impact on the operation of the law’: Weir, T An Introduction to Tort Law (Oxford: Clarendon Press, 2nd edn, 2006) p 123. ‘Contributory negligence is a core element in tort law in England (and other common-law countries)’:CrossRefGoogle Scholar Rogers, WVHContributory negligence under English law’ in Magnus, U and Martín-Casals, M (eds) Unification of Tort Law: Contributory Negligence (The Hague: Kluwer, 2004) p 57.Google Scholar

2. ‘[It] is used on a daily basis. It is applied regularly by courts, but it is used much more frequently by parties (including of course insurers) negotiating settlements’: Steele, JLaw Reform (Contributory Negligence) Act 1945: collisions of a different sort’ in Arvind, TT and Steele, J (eds) Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Oxford: Hart Publishing, 2013) p 165. ‘[I]t is extensively used’:Google Scholar Harris, DClaims for damages: negotiating, settling or abandoning’ in Harris, D et al (eds) Compensation and Support for Illness and Injury (Oxford: Clarendon Press, 1984) p 91.Google Scholar

3. Most of the Act extends to Scotland. The Act does not extend to Northern Ireland, which has its own legislation: Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948. The statute in Northern Ireland is extremely similar to the British legislation.

4. Williams, GL Joints Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions (London: Stevens & Sons, 1951).Google Scholar

5. ‘Glanville Williams['s] … text on contributory negligence … remains, arguably, the best analysis available today’ of the law in this area: Chae v Min [2001] ABQB 1071 at [14]. ‘Although now over 50 years old, Williams, G Joint Torts and Contributory Negligence (London: Stevens & Sons, 1951) is still the leading treatment’: Rogers, above 0001, p 57 Google Scholar, fn 1.

6. See eg Motor Accidents Compensation Act 1999 (NSW), s 138(2); Civil Liability Act 2002 (NSW), s 50(3).

7. See section 4(b) below.

8. See section 4(a)(ii) below.

9. ‘In order to establish the defence of contributory negligence, the defendant must prove, first, that the plaintiff failed to take “ordinary care for himself,” or, in other words, such care as a reasonable man would take for his own safety, and secondly, that his failure to take care was a contributory cause of the accident’: Lewis v Denye [1939] 1 KB 540 (CA) 554 (Du Parcq LJ).

10. If the claimant is guilty of contributory negligence, the courts have no discretion not to reduce damages: Boothman v British Northrop Ltd [1972] 13 KIR 112 (CA) 121–122; Bagder v Ministry of Defence [2005] EWHC 2941 (QB); [2006] 3 All ER 173 at [15].

11. Stapley v Gypsum Mines Ltd [1953] AC 663 (HL) 682; Podredersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (HCA) 494. The position in Canada might be different in this connection. Consider Cempel v Harrison Hot Springs Hotel Ltd (1997) 43 BCLR (3d) 219 at [19], where it is opined that the parties' fault only should be compared. See also Heller v Martens [2002] ABCA 122; (2002) 4 Alta LR (4th) 51.

12. Regarding the jurisdictions that accept pure and modified comparative responsibility, and the small number of jurisdictions that withhold apportionment altogether, see the Restatement (Third) Torts: Apportionment of Liability §7 cmt a.

13. In 1974 one writer justifiably complained that ‘In England most standard textbooks have little or nothing to say’ about contributory negligence: Hicks, JCSeat belts and crash helmets’ (1974) 37 Mod L Rev 308 at 313. This complaint remains valid today.CrossRefGoogle Scholar

14. For rare exceptions, see Williams, GThe Law Reform (Contributory Negligence) Act 1945’ (1946) 9 Mod L Rev 105;CrossRefGoogle Scholar Wright, LordContributory negligence’ (1950) 13 Mod L Rev 2;Google ScholarHicks, above 0013; Gravells, NThree heads of contributory negligence’ (1977) 93 Law Q Rev 581 Google Scholar.

15. Williams, above 0004.

16. As HLA Hart observed in his ‘lost’ essay on discretion (Hart, HLADiscretion’ (2013) 127 Harv L Rev 652 at 657): ‘When we are considering the use of discretion in the Law we are considering its use by officials who are holding a responsible public office. It is therefore understood that if what officials are to do is not rigidly determined by specific rules but a choice is left to them, they will choose responsibly having regard to their office and not indulge in fancy or mere whim …’.Google Scholar

17. Statements regarding this obligation made at the highest level include Matadeen v Pointu [1999] 1 AC 98 (PC) 109; Cinar Corporation v Robinson [2013] SCC 73; [2013] 3 SCR 1168 at 1212 [106].

18. Hart, above 0016, at 657.

19. Civil Liability Act 1936 (SA), s 47.(1)(a)(ii). This provision is discussed below in section 4(a)(ii).

20. See eg Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9; Contributory Negligence Act 1947 (NZ), s 3.

21. ‘It is clear that the Act intends to give a very wide discretion to the judge or jury entrusted with the … task of making the apportionment. Much latitude must be allowed to the … tribunal in arriving at a judgment as to what is just and equitable’: Pennington v Norris (1956) 96 CLR 10 (HCA) 15–16. See also Stanton v Collinson [2010] EWCA Civ 81; [2010] RTR 26 at [26].

22. ‘The significance of the various elements involved in [the determination of the appropriate apportionment] will vary from case to case’: Podrebersek v Australian Iron & Steel Pty Ltd (1885) 59 ALJR 492 (HCA) 494; ‘[I]t is important to remember that every case depends upon its own facts’: Phethean-Hubble v Coles [2012] EWCA Civ 349; [2012] RTR 31 at [80].

23. Phethean-Hubble v Coles [2012] EWCA Civ 349 at [86].

24. Dixon v Clement Jones Solicitors (a firm) [2004] EWCA Civ 1005 at [51].

25. Kerry v Carter [1969] 1 WLR 1372 (CA) 1376.

26. Law Reform (Contributory Negligence) Act 1945, s 1(1).

27. This is clear from the opening words of s 1(1): ‘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 …’.

28. Williams, above 0004, p 390.

29. [2003] EWCA Civ 1107; [2004] RTR 9 at [14].

30. See the sources cited in 11.

31. [1976] QB 286 (CA). A perceptive note on Froom is Spencer, JRBelt up! – the widening scope of contributory negligence’ [1976] Camb L J 44.CrossRefGoogle Scholar

32. Froom v Butcher [1974] 1 WLR 1297 (QBD).

33. [1976] QB 286 (CA) 296.

34. The claimant suffered injuries to his head, chest and one of his fingers. The head and chest injuries would have been avoided if the claimant had worn a seat belt. The claimant's finger would have been injured regardless of whether he had used a seat belt: Froom v Butcher [1976] QB 286 (CA) 296.

35. Froom v Butcher [1976] QB 286 (CA) 296.

36. Froom v Butcher [1974] 1 WLR 1297 (QBD) 1300.

37. Froom v Butcher [1976] QB 286 (CA) 296.

38. In Caswell v Powell Duffryn Associate Collieries Ltd [1940] AC 152 (HL) 165, Lord Atkin said ‘[i]f the plaintiff were negligent but his negligence was not a cause operating to produce the damage there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation.’

39. See the text accompanying 0033.

40. See eg Patience v Andrew [1983] RTR 447 (QBD); Palmer v Kitley [2008] EWHC 2819 (QB); Mabiriizi v HSBC Insurance (UK) Ltd [2011] EWHC 12080 (QB) at [10].

41. See eg the unsuccessful attempts made in Gawler v Raettig [2007] EWHC 373 (QB) at [39]–[46]; Stanton v Collinson [2010] EWCA Civ 81; [2010] RTR 284 at [26].

42. This message is made particularly clear in Stanton v Collinson [2010] EWCA Civ 81 at [27].

43. Capps v Miller [1989] 2 All ER 333; [1989] 1 WLR 839 (CA).

44. Smith v Finch [2009] EWHC 53 (QB).

45. For discussion, see J Fulbrook ‘Cycle helmets and contributory negligence’ [2004] J Pers Injury L 171. The rules were not extended to riding in the boot of a car: Gleeson v Court [2007] EWHC 2397 (QB); [2008] RTR 10 at [25] (30%).

46. See eg Madden v Quirk [1989] 1 WLR 702 (QBD) (5%); Hitchens v Berkshire Council (unreported, Court of Appeal of England and Wales, 21 June 2000) (50%); Demetriou v Holdsworth (unreported, High Court of England and Wales, 11 May 2001, WL 949928) (10%).

47. See eg Sloan v Triplett 1985 SLT 294 (OH) (33.3%); Hill v Chivers 1987 SLT 323 (OH) (33.3%).

48. See eg Gregory v Kelly [1978] RTR 426 (QBD) (40%).

49. See eg Gleeson v Court [2007] EWHC 2397 (QB); [2008] RTR 10 (30%).

50. Gawler v Raettig [2007] EWHC 373 (QB) at [26]. See also Jones v Wilkins [2001] RTR 19 (CA) [18].

51. Capps v Miller [1989] 2 All ER 333 (CA) 341; [1989] 1 WLR 839, 849–850 (Croom-Johnson LJ).

52. Gawler v Raettig [2007] EWHC 373 QB at [25]; contra Jones v Wilkins [2001] RTR 19 (CA) [17] (Lord Denning MR ‘was not there seeking to put forward the figure of 25 per cent contribution as an absolute and immutable ceiling in every single case’) (Keene LJ (dicta)); Chae v Min [2001] ABQB 1071 at [25] (‘[Lord Denning MR] proposed a mere guideline’) (Veit J).

53. See eg Roberts v Sparks [1977] CLY 2643 (20%); Salmon v Newland (1983) The Times 16 May (20%); Capps v Miller [1989] 2 All ER 333; [1989] 1 WLR 839 (CA) (10%); Hazlett v Robinson [2014] NIQB 17 (20%).

54. Gawler v Raettig [2007] EWHC 373 (QB) at [31] (suggesting that a discount above 25% might be warranted where the claimant deliberately ignored an instruction given by a police officer to use a seat belt). See also Jones v Wilkins [2001] RTR 19 (CA) [19] (a contribution claim).

55. Including Scotland: see eg Smith v Donald McLaren Ltd 1977 SLT (Notes) 51 (OH) (20%); Sloan v Triplett 1985 SLT 294 (OH) 297 (20%).

56. See eg Hallowell v The Nominal Defendant (Queensland) [1983] 2 Qd R 266 (Full Ct) 268; Ferrett v Worsley (1993) 61 SASR 234 (Full Ct) 242; Richard v Mills [2003] WASCA 97 at [26].

57.Froom v Butcher … has been widely accepted and approved in Canada and has acquired a settled place in our jurisprudence’: Fowler v Schneider National Carries Ltd [2001] NSCA 55; (2001) 193 NSR (2d) 206 at [52]; ‘Many Canadian courts have relied on Lord Denning's 1975 decision in Froom v Butcher’: Chae v Min [2001] ABQB 1071 at [24]; ‘Lord Denning's judgment in Froom has been cited consistently in Canadian cases’: Snushall v Fulsang (2005) 258 DLR (4th) 425 (ONCA) [36].

58. (2005) 258 DLR (4th) 425 (ONCA) [36].

59. [2002] ABCA 122; (2002) 4 Alta LR (4th) 51 at [38].

60. [2010] EWHC 1541 (QB) at [12]. See also Gleeson v Court [2007] EWHC 2397 (QB); [2008] RTR 10 at [22].

61. Stinton v Stinton [1993] PIQR P135 (QBD) 140; Currie v Clamp's Executor 2002 SLT 196 (OH) [22].

62. See eg Meah v McCreamer [1985] 1 All ER 367 (QBD) (25%); Stinton v Stinton [1993] PIQR P135 (QBD) (33.3%); Donelan v Donelan [1993] PIQR P205 (QBD) (75%) (however, it was said that ‘the fact of this case [were] wholly exceptional’ (at 210)); Currie v Clamp's Executor 2002 SLT 196 (OH) [22] (33.3%).

63. Motor Accidents (Compensation) Act (NT), s 11(1); Civil Liability Act 1936 (SA), s 49(3).

64. Insurance Act, RSNB 1973, c I-12, s 265.2(1); Automobile Insurance Act, FSNL 1990, c A-22, s 28.1.

65. The Northern Territory and South Australian legislation extends to a failure to wear a safety helmet. The legislation in South Australia also applies if the claimant travelled in a compartment of a vehicle other than the passenger compartment.

66. Civil Liability Act 1936 (SA), s 47(3) and (6).

67. One jurisdiction in Australia has a minimum reduction rule that applies in the seat belt context. Section 22(4) of the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) provides for a minimum reduction of 15% for failing to wear a seat belt.

68. Civil Liability Act 2002 (NSW), s 50; Civil Liability Act 2003 (Qld), s 47; Civil Liability Act 1936 (SA), s 46.

69. Civil Liability Act 2003 (Qld), s 48(4).

70. Civil Liability Act 2003 (Qld) s 47(5); Civil Liability Act 1936 (SA), s 46(4).

71. Civil Liability Act 2003 (Qld), ss 48–49; Civil Liability Act 1936 (SA), s 47.

72. Insurance Act, RSNB 1973, c I-12, s 265.2(2); Automobile Insurance Act, RSNL 1990, c A-22, s 28.1(2); Automobile Insurance Contract Mandatory Conditions Regulations, NS Reg 181/2003, s 10(1).

73. Snushall v Fulsang (2005) 258 DLR (4th) 425 (ONCA) [44].

74. ‘Never say never’ is often an appropriate catchphrase for a judge to have in mind’: Al Rawi v Security Service [2010] EWCA Civ 482 at [69].

75. Snushall v Fulsang (2005) 258 DLR (4th) 425 (ONCA) [44].

76. [2006] SKCA 47 at [102].

77. MCL 257.710e(6). A 5% cap also applies in Iowa (Iowa Code Ann, § 321.445(4)), Nebraska (Neb Rev Stat, § 60–6,273) and Oregon (Or Rev Stat Ann, § 31.760). In Missouri, the cap is 1% (Mo Ann Stat, § 307.178(4)), while in Wisconsin it is 15% (Wisconsin Stat, § 347.48(2m)(g)). These caps (with the exception of the Wisconsin cap) are so low that they are, paradoxically, minimum reduction rules too. For example, the cap of 1% in Missouri is so low that it is also a minimum reduction rule, as courts cannot reduce damages by less than 1% (at least not justifiably, since a reduction of less than this amount means that there is no responsibility on the part of the claimant, with the result that the doctrine of contributory negligence should not be engaged in the first place, and the issue of apportionment should not arise).

78. Buyukardicli v Hammerson UK Properties plc [2002] EWCA Civ 683 at [7].

79. See further Goudkamp, JRethinking contributory negligence’ in Chamberlain, E, Neyers, J and Pitel, S (eds) Challenging Orthodoxy in Tort Law (Oxford: Hart Publishing, 2013) pp 344346.Google Scholar

80. ‘[O]ne does not get to the question of contributory negligence until liability is established’: Sharpe v Addison [2003] EWCA Civ 1189, [2007] Lloyd's Rep PN 12 at [32].

81. It is arguable that this is not a separate type of fixed apportionment rule on two grounds. First, rules that restrict the court to discounts within a particular range can be broken down into minimum reduction rules and maximum reduction rules. The second reason has to do with the fact that both minimum reduction rules and maximum reduction rules restrict the court to a particular range too. For example, a rule that requires a minimum 25% discount in damages restricts the court to discounts that fall between that discount and the upper end of the spectrum.

82. [1994] 1 SCR 670 (SCC) 682.

83. See the text above accompanying nn 50-53..

84. See the text accompanying nn 50-53..

85. See eg Robbins v Skouboudis [2013] QSC 101 at [52]; Hawira v Connolly [2008] QSC 4 at [53].

86. John Spencer seemed to hint at this in a note in Froom. Referring to ‘the way in which the Court of Appeal tried to prescribed in advance the percentage by which a plaintiff's damage should be reduced’, Spencer wrote, ‘As the apportionment of damages for contributory negligence is usually treated as a matter for the discretion of the court in question, it is possible to raise academic objections to this’: Spencer, above 0031, at 45. Robert Stevens is explicit. He contends that the fixed reduction rules laid down in Froom ‘flagrantly ignor[e] the statutory language’: Stevens, RShould contributory fault be analogue or digital?’ in Dyson, A, Goudkamp, J and Wilmot-Smith, F (eds) Defences in Tort (Oxford: Hart Publishing, 2015) ch 13. CfGoogle Scholar Stanton v Collinson [2010] EWCA Civ 81; [2010] RTR 26 at [26] where Hughes LJ said that the fact that the apportionment legislation gives great discretion to judges ‘permits an approach such as adopted in Froom v Butcher’.

87. It is set out in Morelle Ltd v Wakeling [1995] 2 QB 379 (CA) 408.

88. See 0086.

89. See 0041.

90. See the text accompanying 0011.

91. [2006] SKCA 47 at [98]. See also Gleeson v Court [2007] EWHC 2397 (QB); [2008] RTR 10 at [24].

92. [1976] QB 286 (CA) 296 (emphasis added).

93. See section 4(a)(i) above.

94. I have found particularly insightful the treatment in Tapper, CThe law of evidence and the rule of law’ (2009) 68 Camb L J 67 CrossRefGoogle Scholar.

95. See the penetrating analysis in Ashworth, A Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 4th edn, 2005) pp 3031, 41–42, 51–54, 72–74.CrossRefGoogle Scholar

96. Commonwealth of Australia Review of the Law of Negligence: Final Report (Canberra: Canprint Communications, 2002).

97. Ibid, p 126 [8.16].

98. Prosser, WLComparative negligence’ (1953) 41 Cal L Rev 1 at 9.CrossRefGoogle Scholar See also Williams, above 0004, p 158 (‘It must be admitted that in attempting to assess degrees of negligence the judge is trying to measure the immeasurable’).

99. Epstein, RAPlaintiff's conduct in products liability actions: comparative negligence, automatic division and multiple parties’ (1979) 45 J Air L & Comm 87 at 109–110.Google Scholar

100. See section 4(a)(i) above.

101. ‘[T]here is a powerful public interest in there being no [prolonged or intensive enquiry into] fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which entail trial do not mushroom out of control’: Stanton v Collinson [2010] EWCA Civ 81; [2010] RTR 284 at [26]; ‘There is value in having clear guidelines normally applicable, so as to aid parties in arriving at sensible settlements’: Jones v Wilkins [2001] RTR 19 (CA) [18].

102. See the text accompanying 0011.

103. Froom v Butcher [1976] QB 286 (CA) 296. It may well have been important that Froom was a low-value case. The trial judge assessed damages at £450, which equates to approximately £4,000 today. The cost of trying the issue of apportionment will be disproportionate to what is at stake in many cases.

104. Consistency was clearly a central concern of Lord Denning MR in Froom v Butcher [1976] QB 286 (CA). He was particularly vexed by the divergent views that the courts had taken on the issue of whether a claimant who failed to wear a seat belt was guilty of contributory negligence (at 290–291, 294). His Lordship was eager to lay down a firm rule in this regard; namely, that a failure to wear a seat belt would constitute contributory negligence, save in exceptional cases. However, it is plain that Lord Denning MR was also concerned about the disparate reductions that had been imposed in seat belt cases in those matters in which the judge had found that the claimant was guilty of contributory negligence in failing to wear a seat belt. His Lordship canvassed the wide range of discounts that judges had adopted in apparently similar cases (at 290).

105. Most cases in which apportionment for contributory negligence is in issue are plainly personal injury cases. The vast majority of such cases are brought in the county courts: Cane, P Atiyah's Accidents, Compensation and the Law (Cambridge: Cambridge University Press, 8th edn, 2013) pp 201202.CrossRefGoogle Scholar

106. See section 3 above.

107. See the classic discussion in Fuller, LL The Morality of Law (New Haven, CT: Yale University Press, rev edn, 1969) ch 1.Google Scholar

108. See section 3 above.

109. See above section 6(b).

110. See section 2 above.

111. Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (Oxford: Oxford University Press, 11th edn, 2012).Google Scholar

112. Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB) at [16].

113. Simmons v Castle [2012] EWCA Civ 1039; [2013] 1 WLR 1239, 1241 [10].

114. Heil v Rankin [2001] QB 272, 294 [25].

115. Choudhary v Martins [2007] EWCA Civ 1379; [2008] 1 WLR 617, 621 [10].

116. Wall v Hutuelle de Poitiers Assurances [2014] EWCA Civ 138 at [24]. Cf the sentencing guidelines that are published by the Sentencing Council pursuant to Pt 4 Ch 1 of the Coroners and Justice Act 2009. These guidelines specify the range of sentences that are thought to be appropriate for particular categories of offence (s 121(4)), and they ‘must’ be followed by the courts unless the court is satisfied that doing so would be contrary to the interests of justice (s 125).

117. See section 4 above.

118. See section 4(a) above.

119. See section 4(a)(i) above.

120. See section 6(b) above.

121. See section 4(a)(i) above.

122. Walton, C et al (eds) Charlesworth and Percy on Negligence (London: Sweet & Maxwell, 13th edn, 2014) ch 4 contains an extensive and valuable list of apportionment cases. See the numerous intoxication cases involving passengers mentioned in [4-50]. Cases concerning pedestrians are detailed in [4-50] and [4-54]. There is a litany of employment cases contained in [4-69]–[4-73], several of which involve a failure to wear protective clothing.Google Scholar

123. Williams, above 0004, p 393. Technically, Williams is only half right given that in very high-value cases every percentage point is potentially highly significant. However, high-value cases are rare relative to the number of low-value cases, where minute adjustments to the size of the discount for contributory negligence have only a very small impact on the quantum of the award.

124. See above the text accompanying 0098.

125. See section 3 above.

126. See section 5 above.

127. See section 5(c) above.

128. It has been attacked on other bases: see section 4(a)(i) above.

129. See eg Manderson, D and Sharp, NMandatory sentences and the constitution: discretion, responsibility, and judicial process’ (2000) 22 Sydney L Rev 585.Google Scholar

130. See Ashworth, above 0095, pp 50-54.

131. ‘[T]he rule of law is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls’: Cayzer, Irvine & Co v Carron Co (1884) 9 App Cas 873 (HL) 881 (Lord Blackburn).

132. See eg Civil Liability (Contribution) Act 1978.

133. Civil Liability (Contribution) Act 1978, s 2(1).

134. Jones v Wilkins [2001] RTR 19 at [13]–[14] (CA) (parent liable for 25% of the damages); Hughes v Williams [2013] EWCA Civ 455; [2013] PIQR P17 (same).

135. [2013] NZHC 2023 at [61].