Introduction

• partial defence of contributory negligence: may be raised by defendant (D) if claimant (C) has acted carelessly & this contributed to C's damage
• if third party contributed to damage they will be joint tortfeasors
• statutory provision covering law of contributory negligence

  The Law Reform (Contributory Negligence) Act 1945

  S1 Apportionment of liability in case of contributory negligence

  • S1(1): Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

  S4 Interpretation

  • damage includes loss of life and personal injury
  • fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence

Negligence

• for contributory negligence C does not have to owe D any duty of care

  Jones v Livox Quarries Ltd [1952] 2 QB 608

  Facts:

  • plaintiff (P) suffered injuries, when riding on back of vehicle (he had been warned not to) & fellow worker negligently drove into vehicle

  Issue:

  • was there contributory negligence?

  Held:

  • P contributed his own injuries: reasonably foreseeable his carelessness exposed him to risk of injury
  • Denning LJ: .. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. 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...
• courts tend to adopt more subjective approach to standard of care required for contributory negligence: Ds usually insured but C will suffer loss personally

Children

• generally: the younger the child the less likely contributory negligence would apply

  Gough v Thorne [1966] 1 WLR 1387

  Facts:

  • P, 13 yr old, injured when hit by a car
  • P waiting to cross road, lorry stopped to let her cross, D was overtaking & hit P

  Issue:

  • was there contributory negligence?

  Held:

  • defence of contributory negligence failed: P reached standard of care expected of ordinary 13 yr old in circumstances
• relevant factor is child's age & whether C took care of an ordinary child of that age

  Morales v Eccleston [1991] RTR 151

  Facts:

  • P, 11 yr old, injured when hit by a bus
  • P playing football on pavement & did not look before going to retrieve ball from busy London road

  Issue:

  • was there contributory negligence?

  Held:

  • 75% contributory negligence against P: reckless as to his own safety, even for his age
• some cases involving child Cs, D may argue negligent parents are joint tortfeasors

Rescuers

• rescuers are encouraged: standard of care applied is a reasonable rescuer, taking account of emergency nature of situation

  Baker v TE Hopkins [1959] 1 WLR 966

  Facts:

  • doctor killed when he entered a well to rescue D's workers

  Issue:

  • was there contributory negligence?

  Held:

  • contributory negligence defence failed: situation was dangerous but V's conduct not amount to contributory negligence
  • Willmer LJ: .. [the defendant] would have to show that the conduct of [the plaintiff] was so foolhardy as to amount to a wholly unreasonable disregard for his own safety... [the plaintiff] is entitled to be judged in the light of the situation as it appeared to him at the time, ie. in a context of immediate and pressing emergency...
• C's conduct will only amount to contributory negligence if it demonstrateswholly unreasonable disregard for his own safety

Dilemma cases

• dilemma situations arise when C placed in imminent danger by D's negligence

  Jones v Boyce (1816) 1 Stark 493

  Facts:

  • P broke leg after jumping from D's coach
  • P jumped after realising coupling mechanism had broken & anticipated coach crash, in fact it did not

  Issue:

  • was there contributory negligence?

  Held:

  • contributory negligence defence failed: P acted reasonably in perilous situation
  • Lord Ellenborough: .. I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences...

  Adams v Lancashire & Yorkshire Railway Co (1869) 4 LR CP 739

  Facts:

  • P injured by falling from D's moving train
  • P was attempting to close the door, but he had room to sit away from open door & train due at next stop shortly

  Issue:

  • was there contributory negligence?

  Held:

  • contributory negligence defence succeeded: P taken unnecessary risk
  • distinguished from Jones v Boyce (1816) as P not in immediate danger
• courts will determine whether degree of inconvenience or danger justified the action C takes to avoid risk

Workers

• if injury at work, caused partly by C's carelessness & partly due to employer's fault: circumstances of work & employer's statutory responsibilities considered

  Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722

  • Lord Atkin: .. the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain and manifold risks of factory or mine...

  Jones v Livox Quarries Ltd [1952] 2 QB 608

  Facts:

  • P was employed by D & suffered crush injuries at work, when riding on the back of a vehicle (against D's instructions)

  Issue:

  • was there contributory negligence?

  Held:

  • 20% contributory negligence: P decided to ride dangerously on vehicle, despite warnings

Reduction of damages

• finding of contributory negligence means damages may be reduced, reduction calculated on a case by case basis

  The Law Reform (Contributory Negligence) Act 1945

  S1 Apportionment of liability in case of contributory negligence

  • S1(1): .. the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
• reduction reflects extent C's carelessness caused or contributed to damage (causation) & blameworthiness of parties (culpability)

  Stapley v Gypsum Mines Ltd [1953] AC 663

  • Lord Reid: .. A Court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but the claimant's share in the responsibility for the damage cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness...
• court will calculate damages if no contributory negligence & % for responsibility of C, then deduct proportionately from total damages
• if C's responsibility less than 10%, usually no reduction in damages

  Johnson v Tennant Bros Ltd 1954, unreported

  • small percentages of apportionment ought not to be made & contribution of less than 10% should be disregarded

Burden

• D must prove C failed to take reasonable care of himself & this contributed to C's loss

  St George v Home Office [2008] EWCA Civ 1068

  Facts:

  • C suffered permanent severe injury after falling from bed in D's prison, on first night, after epileptic seizure
  • D knew C prone to epilepsy as result of drug & alcohol withdrawal, but allocated C high bunk bed

  Issue:

  • was there contributory negligence?

  Held:

  • contributory negligence defence failed: C's addictions not the cause of his injury
  • Dyson LJ: .. claimant's fault in becoming addicted to drugs and alcohol... was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff... to be properly regarded as a cause of the injury...

Road traffic accidents

• causal link must be established between C's careless conduct & his loss
• C may be passenger who did not contribute to accident but through carelessness did contribute to his injuries

Seat belts

• passenger's deciding not to wear seat belt may amount to contributory negligence, even prior to regulations making it compulsory

  Froom v Butcher [1976] QB 286

  Facts:

  • P injured in car accident, caused by D's negligence, but P not wearing a seat belt

  Issue:

  • was there contributory negligence?

  Held:

  • Court of Appeal: general rules for apportioning responsibility where C did not wear seat belt:
    if wearing a seat belt would have made no difference: 0% reduction in damages
    if wearing a seat belt would have made the injuries less severe: 15% reduction in damages
    if wearing a seat belt would have avoided injury: 25% reduction in damages
• courts reluctant to hear arguments about potential worse injuries (if seat belt worn)

  Patience v Andrews [1983] RTR 447

  • Croom-Johnson J: .. one cannot reduce the appropriate percentage of contributory negligence - that is to say - the degree of blameworthiness - by investigating what injuries might have been, but were not, caused in circumstances which did not arise. That is pure speculation...

  Stanton v Collinson [2010] EWCA Civ 81

  • D must show C not wearing seat belt made difference to loss suffered
• contributory negligence unlikely to apply to people exempt from wearing seat belts (taxi drivers, reversing drivers & medically certified)

Crash helmets

• D must establish causal link between C's failure to wear crash helmet & his injuries

  O'Connell v Jackson [1972] 1 QB 270

  Facts:

  • P suffered head injuries in motorcycle accident, caused by D's negligence, but P not wearing crash helmet

  Issue:

  • was there contributory negligence?

  Held:

  • 15% reduction in P's damages for contributory negligence

  Capps v Miller [1989] 2 All ER 333

  • Court of Appeal adopted same tariff for failure to wear crash helmet as laid down in Froom v Butcher [1976] for seat belts

Intoxicated drivers

• if C decides to travel as passenger in vehicle with driver he knows has been drinking, damages likely to be reduced if he is injured in accident caused, at least partly, by driver's intoxication
• Cs own drunkenness is not sufficient excuse for failing to take reasonable care of himself

No lights or brakes

• if C decides to travel as passenger in vehicle he knows has no lights or brakes, damages likely to be reduced if he is injured in accident caused, at least partly, by lack of lights or brakes