James Goudkamp, ‘Apportionment of Damages for Contributory Negligence: Fixed or Discretionary?’

Legislation that provides for the apportionment of damages for contributory negligence exists in most of the common-law world. This legislation imposes a system of discretionary apportionment. Judges are given considerable latitude to determine the extent to which damages should be discounted for contributory negligence. This article draws attention to the fact that many, varied departures from this system of discretionary apportionment have infiltrated the law (some statutory in origin and some judicially crafted). These departures – which are called ‘fixed apportionment rules’ – are incompatible, it is argued, with the apportionment legislation, with the result being that some landmark cases have been decided per incuriam. This article then considers the arguments for and against a discretionary system of apportionment and a system that incorporates more fixed apportionment rules. It contends that there are significant disadvantages to the present, discretionary system and that much stands to be gained from introducing more fixed apportionment rules.

Goudkamp, James, Apportionment of Damages for Contributory Negligence: Fixed or Discretionary? (September 9, 2014). Oxford Legal Studies Research Paper No 61/2014.

First posted 2014-09-11 07:14:01

Leave a Reply