#2278 - Contributory Negligence - Tort Law

Defences to Liability

Contributory Negligence

• Is by no means a complete defence

  • But can substantially decrease amount of damages that need to be paid out – although not to 100%, naturally.

  • Giliker: more popular among the Courts because it is less drastic than extinguishing the claim altogether such as with the other defences.

  • Principles enshrined in Law Reform (Contributory Negligence) Act 1945 s.1(1)

    • Where any person suffers damage as a result

      • partly of his own fault

      • and partly of the fault of another person(s)

        • the claim shall not be defeated by reason of C being at fault

          • but the damages will be reduced to the extent the court feels just and equitable

            • having regard to C’s share in the responsibility for the damage.

    • Giliker: damages will be reduced according to C’s responsibility for the damage (and not the accident)

      • E.g. Froom v Butcher [1976] – X, passenger in car, not wearing a seatbelt when D crashes the car owing to negligence and X suffers preventable extent of damage as a result.

• Definition of “Fault” of C

  • Law Reform (Contributory Negligence) Act 1945 s.4

    • Negligence,

    • breach of statutory duty

    • OR other act or omission that gives rise to liability in tort,

      • or would, apart from the Act, give rise to the defence of contributory negligence

    • DOES NOT APPLY WHERE NEGLIGENCE BY C WOULD NOT GIVE RISE TO DEFENCE AT COMMON LAW

      • E.g. Fraud/Deceit = not contributory negligence by C

  • Reeves v Metropolitan Police Commissioner [2000]:

    • Intentional acts included

      • Giliker: very generous interpretation of “fault” to say that it is “negligent” to deliberately commit suicide

      • Is rather artificial as well

• Questions to find claim of contributory negligence

  • IS a SEPERATE issue from duty of care

  • All we’re asking is whether C failed to exercise reasonable care and this contributed to his injury

  • Was C acting negligently?

    • Jones v Livox Quarries [1952]:

      • X rode on a lorry by hanging onto the back, expressly disobeying his employer. The lorry stopped, and was then negligently run into by a dumper, crushing X between the vehicles and causing serious injury.

    • Lord Denning:

      • A person is guilty of contributory negligence if he ought reasonably to have foreseen that,

        • if he did not act as a reasonable/prudent man he might be hurt himself;

          • and in his reckonings he must take into account the possibility of others being careless.

    • Giliker: objective test

      • But will give some allowance in cases of children (depending on age of child), aged or infirm

      • OR if in an emergency

    • Can apply to rescuers

      • Boreham J in Harrison v British Railways Board [1981]:

        • BUT rescuers should be treated leniently

          • Is distasteful to find a rescuer guilty of contributory negligence

          • Is rarely appropriate to do so

  • Did C’s actions contribute to the damage suffered?

    • C is only held contributory negligent where the negligence exposed him to the particular sort of damage suffered

      • Stapley v Gypsum Mines Ltd [1953]:

      • Lord Reid:

        • One may find that as a matter of history several people have been at fault

          • and that if any one of them had acted properly the accident would not have happened,

            • but that does not mean that the accident must be regarded as having been [legally] caused by the faults of all of them.

        • One must discriminate between those faults which must be regarded as too remote and those which must not.

      • St George v Home Office [2008]

        • C became addicted to drugs at 16, later had withdrawal symptoms in prison, was put on top bunk negligently, while asleep had seizure, fell out, suffered brain damage.

          • Dyson LJ: Is true that but for his addiction, C wouldn’t have been in that bunk and wouldn’t have fallen out.

            • But his addiction, taking a common sense, view was not a potent cause of injury

              • it was too remote in time, place and circumstance

      • Giliker:

        • E.g., If I don’t wear a seatbelt while driving a car

          • If I’m hit from behind and go through the windscreen, then I’m contributory negligent

        • Conversely, If I don’t wear a seatbelt in the car

          • And someone negligently fires a RPG in my direction

          • My negligence hasn’t exposed me to the risk of injury from the RPG

            • So I am not contributory negligent.

        • Jones v Livox Quarries [1952]:

          • Lord Denning:

            • If C had been harmed by a passing negligent sportsman who shot him in the eye

              • His act of negligence would be irrelevant and in no way the cause of his injury

            • BUT if his act of negligence is so caught up within the reason for the injury

              • So that it is not merely historical to it

                • Then C has partially caused his injury and his damages must be reduced accordingly.

  • To what extent should C’s damages be reduced? What is “just, fair and equitable” in these circumstances?

    • Giliker: wording of the act gives considerable flexibility to the court

      • But guidelines have been issued and will often be followed

      • E.g. Failure to wear a seatbelt

        • Froom v Butcher [1976]:

          • Denning LJ: Sometimes, especially with seatbelts, C is not the cause of the accident, D’s negligence is.

          • BUT, you don’t look at the cause of the accident itself for contributory negligence

            • Merely the cause of the damage

              • And where both D and C are partly responsible for the damage

              • C must have his damages reduced.

          • Court gave guidance about amount of damages to reduce for not wearing seatbelt:

            • 25% if injury prevented altogether

            • 15% if injury would be less severe

            • 0% if wearing seatbelt would not have prevented the injury

      • E.g. Failure to wear crash helmet

        • Road Traffic Act 1988: compulsory to wear helmet on motorbike

        • Court is free to assess damage however, and will never be 100% contributory negligence even though compulsory

          • (is an issue of causation and if it gets to damages, negligence on the part of D has already been proved)

• What do you do with multiple defendants?

  • Multiple Ds jointly and...