• In the case of Fitzgerald v Lane [1989] A.C. 328, it was held that, where the claimant is struck by multiple vehicles while crossing the road on a green light (for cars) and it cannot be shown which impact did the damage, then all responsible vehicles should bear liability equally. The claimant would be guilty of contributory negligence, resulting in a 50% reduction in damages.

Facts of the Case

  • On 21st March 1983, C attempted to cross a road along a pelican crossing.
  • Although the traffic lights were green to road traffic and red for civilians, C continued across the road.
  • C passed in front of a stationary car in one line and into the path of D1’s oncoming car. He was struck, thrown onto the bonnet, into the windshield and then forward into the offside of the road.
  • C was then struck by D2’s car, which was travelling in the opposite direction.
  • As a result of both collisions, C sustained multiple injuries and a dislocation of the spine. C was left partially tetraplegic.

Issues

  • How should liability be apportioned between D1, D2 and C, assuming C was guilty of contributory negligence?

Held by the House of Lords

  • Finding for D1 and D2, that C’s damages should be reduced by 50% as C was, to a significant extent, the creator of his own fortune.
  • D1 and D2 would bear the remaining damages in equal proportions since it was unclear which one of them had caused C’s significant injuries.

Lord Ackner

  • It is unquestioned that whether C is suing one or more Ds for damages for personal injuries, the judge must determine the following factors.
  • Whether C has established liability against one or other or all Ds.
  • Once liability has been established, the total of the damage that C has sustained as a result of established negligence must be assessed.
  • It is only after these two decisions have been made that the next question arises, namely, whether the Ds have established (for the onus is on them) that C, by his own negligence, contributed to the damage which he suffered.
  • If, and only if, contributory negligence is established does the court then have to decide, under the Law Reform (Contributory Negligence) Act 1945, to what extent it is just and equitable to reduce the damages which would otherwise be recoverable by C, having regard to his ‘share in the responsibility for the damage.’
  • The judge at first instance, misdirected himself by not separating the two stages; determining whether C was contributorily negligent and to what extent the damages be reduced, and secondly the amount recoverable between D1 and D2 to the extent of their responsibility, which in no way involves C.
  • “Clearly C ought to have known that the lights were showing green in favour of the traffic approaching the crossing and that the vehicles in the outer of the two lanes going south were travelling freely. That C was substantially the author of his own misfortune cannot be gainsaid. The negligence found against D1 was that at 30 miles per hour he was travelling too fast and that he was not keeping a proper lookout for pedestrians trying to cross the road, albeit against the traffic lights. The negligence found against the D2 was that he too was travelling too fast/failing to keep a proper lookout. In my judgment, to rate the negligence of either of D1 or D2 as being twice as bad as that of C is clearly wrong and must have resulted from the judge misdirecting himself in the manner which I have described” [340E].

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