3.4 Collisions other than ship collisions – a non-maritime case
The case Njård II concerned ship collision, albeit with claims being made only in one direction, since only one of the ships suffered damage. We saw that it was questionably decided within the law of necessity under the MC, but it could have served as an example under the Torts Act s. 5-1.
With that as backdrop, we switch perspective to ask: if claims are made both ways in a situation of mutual infliction of harm other than in ship collisions, how would that fare? Is it the case that the one party’s portion of its own loss (as contributory liability) would serve as the portion of liability towards the other party’s loss? There seem to be no cases demonstrating the point, but we can still illustrate the questioning by playing with the facts of a real case.
In the Supreme Court case in Rt. 1994.1440 a bicyclist ran into the back of a car and was injured. The car liability insurer was held liable on account of the car’s brake light not working, which led the cyclist to miss the warning from the driver applying the brakes, and the requirement of the car ‘causing’ damage was thereby met.(1) Car liability Act 1961 s. 4. However, the cyclist was found to have negligently contributed to his loss by riding too close behind the car (the accident happened in a bike race), and his claim for losses was reduced by one third.
We could then ask – in light of e.g. Knoph’s proposition that the system of the MC reflected the general tort law position: what if damage was also inflicted on the car, and the car owner cross-claimed against the cyclist for such property loss, would then the same 33% of contributory negligence on the cyclist’s part serve as a basis for the cyclist’s liability towards the car owner? In other words, would the MC ship collision rules work in the same way outside the scope of ship collisions, as Knoph (and partly Øvergaard) argued they would?
Probably the answer would be no. Various factors would disrupt such a solution of symmetry between having to bear one’s own loss and being liable for the other party’s loss – such as the one claim being a property claim and the other a personal injury claim, where policy considerations could turn out differently – and that of the one, or both, injuries being covered by insurance.(2) See the Torts Act s 4-2: The car owner, if having the damage to the car covered by insurance, would be entitled to raise a claim only in case of gross negligence on the cyclist’s part.
One would probably adopt a more discretionary evaluation under the provisions of the Torts Act. In other words, the cyclist might not be held liable at all, despite him having to accept a reduction of his own claim by 33% – which again serves as a reminder of the earlier position taken by Platou when advocating a freer assessment of damages extending to the ship collision cases of that time.