#19869 - Contributory Negligence - Tort Law

Contributory Negligence

This isn’t really a defence, more of a reduction in damages.

s.1(1) Law Reform (Contributory Negligence) Act 1945 says if C suffers damage and it’s partly D’s fault but partly the fault of someone else (could be C), damages are reduced to how much the courts think it just and equitable.

s.4 says ‘fault’ means negligence, breach of statutory duty or any other act/omission which would hive rise to tort liability. Some torts are excluded though:

- intentional trespass to C’s goods

- where D commits deceit (Alliance and Leicester Building Society v Edgestop) or uses any deceit (Corporacion Nacional de Cobra v Sogemin)

- where D intended to harm C (Standard Chartered Bank v Pakistan National Shipping). Although technically assault and battery don’t need intent to harm, CA in Pritchard v Co-operative Group said contributory negligence can’t be used in assault and battery claims

What does C have to do?

If it was partly C’s fault, damages are reduced. HL in Reeves v Commissioner of Police of the Metropolis said ‘fault’ covers inadvertent acts and deliberate acts by C that contributed to the losses caused by the tort.

If C did something that contributed to the losses, we then ask if a reasonable person of her age (Yachuk v Oliver Blais) and in her physical condition (Daly v Liverpool Corp) would have acted thus. Generally if C didn’t act reasonably and contributed to the losses, contributory negligence will work.

It gets more difficult where C suffers from a psychiatric illness which makes her do something that contributes to the losses suffered because of the tort.

Consider the following:

Teen has a mental illness which means she can’t stand the feeling of wearing a seatbelt. One day she was in the back of a car and a driver negligently crashed into it from behind. Had Teen been wearing a seatbelt, her injuries would have been much less severe.

Corr v IBC Vehicles says if Teen physically could not wear a seatbelt because of her mental illness, contributory negligence won’t reduce the damages. If the mental illness meant Teen could have worn it, even if it was very difficult, then damages will be reduced by contributory negligence (although the damages will be reduced less than they would have had Teen suffered from no mental illness and hence had no reason not to wear the seatbelt).

What does this do to the damages in practice?

Where there are 2 parties, it’s simple. Say C was 50% to blame for the damages from D’s tort, and D was 50% to blame. The damages C gets from D are reduced 50%. This scales.

It’s more difficult where there are multiple tortfeasors and a claimant. In Fitgerald v Lane, D1 was 25% to blame, D2 25% to blame and C 50% to blame. C’s damages were reduced 50% because we lump the chances together from the multiple defendants and use the approach where there’s 2 parties.

Hard cases: self-harm

In Corr v IBC Vehicles, an employee was injured because of his employer’s negligence. He developed PTSD and eventually killed himself. Do we reduce damages because employee killed himself? Lords Bingham and Walker thought no – the causation link is intact and employee killed himself because he developed PTSD which was a result of employer’s tort. Lords Scott, Mance and Neuberger disagreed – employee chose to kill himself meaning he is partly responsible. (in this case because of a lack of evidence as to how much employee was to blame or his own death there was no contributory negligence).

Hard cases: the Hedley Byrne v Heller principle

1. Will D, owing a duty of care because of Hedley Byrne, having breached his duty be allowed to rely on contributory negligence?

2. If so, how does this interact with the SAAMCO limit on what damages can be claimed using Hedley Byrne principles?

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If D tells C a car C’s looking at buying is in good condition and D tells C she...