Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion

14 Pages Posted: 22 Apr 2016 Last revised: 16 Nov 2017

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Lewis Klar

University of Alberta

Date Written: 2016

Abstract

Given the undoubted and immense significance of the apportionment legislation, it is surprising how little is known about the process of apportionment, both as a matter of theory and practice. The subject rarely has been addressed in the literature and certainly not at any length. Scholars usually simply identify the factors that judges take into account in determining the extent to which damages should be reduced. It is widely accepted throughout the common law world that one relevant factor in this regard is the parties’ relative blameworthiness. This criterion requires consideration of the extent to which each party took less care than the reasonable person in their position would have taken. The purpose of this article is to assess the merits of an additional criterion that is also relevant in many jurisdictions: the causal potency of the parties’ respective acts. It will be argued that this criterion should never have been adopted. It is at best a mere surplus-age. At worst it is an unwelcome distraction which provokes barren disputes and which increases the already considerable uncertainty that afflicts the process of apportioning damages for contributory negligence.

Keywords: negligence; contributory negligence; apportionment of damages; Law Reform (Contributory Negligence) Act 1945; relative blameworthiness; causal potency

JEL Classification: K13

Suggested Citation

Goudkamp, James and Klar, Lewis, Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion (2016). Alberta Law Review, Vol. 53, pp. 1-14, 2016; Oxford Legal Studies Research Paper No. 62/2017. Available at SSRN: https://ssrn.com/abstract=2768101

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

Lewis Klar

University of Alberta ( email )

Edmonton, Alberta T6G 2R3
Canada

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