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Assessing Damages to Account to Contributory Negligence

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In court proceedings, fair and workable principles are imperative for the effective performance of judges. In light of this, some may excoriate ‘contributory negligence’ for its putative inaccuracy and unfairness; others may perceive it as a valuable and effective means of apportioning justice. With reference to Marien v Gardiner, I will argue that while the notion of assessing damages to account for contributory negligence is fair, it is impossible to accurately make such assessments. Implicit in the supposition that damages should be apportioned according to the negligence of both the plaintiff and defendant is the requisite balancing process. This process is exiguous, if not absent, in binary approaches that adhere to strict dichotomies like guilt and innocence. If one was to think in such absolutes, either the appellant or the respondent in Marien will be wholly liable despite the negligence of both parties. Based on the axiom that it is worse to endanger others than it is to endanger oneself, it may seem ‘fair’ to act in solicitude for the injured party by centralizing on the perpetrator’s negligence. However, such bias contravenes the rules of procedural fairness that are germane to the ‘culture of justification’. Hence a holistic approach that balances and considers the arguments of all parties should be taken. Marien evinces that even if a victim’s contributory negligence did not endanger the injurer or anybody else, the judge must follow fair and proper procedure
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