Defences to negligence - Contributory negligence

Learning Outcomes

This article examines the defence of contributory negligence in the context of negligence claims. It outlines the statutory basis for the defence and its effect on the damages awarded to a claimant. For the SQE1 assessments, you will need to understand the requirements for establishing contributory negligence, including the claimant's failure to take reasonable care and the causal link to the damage suffered. You should also understand how courts apportion responsibility and reduce damages based on what is 'just and equitable'. This knowledge will enable you to apply these principles to SQE1-style single best answer questions.

SQE1 Syllabus

For SQE1, you need to understand the operation of contributory negligence as a partial defence to a negligence claim. Revision should focus on how this defence differs from complete defences and its impact on the final compensation awarded to a claimant.

As you work through this article, remember to pay particular attention in your revision to:

• the statutory basis of contributory negligence under the Law Reform (Contributory Negligence) Act 1945
• the requirement for the claimant to have failed to take reasonable care for their own safety
• the need for the claimant's failure to contribute to the damage suffered, not necessarily the accident itself
• how damages are reduced on a 'just and equitable' basis, considering the claimant's share of responsibility.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the primary effect of the Law Reform (Contributory Negligence) Act 1945?
   1. It introduced contributory negligence as a complete defence.
   2. It abolished the defence of contributory negligence.
   3. It allows damages to be apportioned based on fault.
   4. It increased the damages awarded to negligent claimants.
2. For contributory negligence to apply, the claimant's fault must have contributed to:
   1. The defendant's breach of duty.
   2. The occurrence of the accident.
   3. The damage suffered by the claimant.
   4. The overall costs of the litigation.
3. A child claimant's conduct for contributory negligence purposes is judged against the standard of:
   1. A reasonable adult.
   2. A reasonable child of the same age.
   3. The specific child's own level of understanding.
   4. A professional standard of care.

Introduction

Where a claimant successfully establishes the elements of negligence – duty of care, breach of that duty, and causation of damage – the defendant may still seek to reduce their liability by raising a defence. One of the most significant defences in practice is contributory negligence. Unlike some defences which provide a complete bar to the claim (such as volenti non fit injuria), contributory negligence operates as a partial defence. If successfully pleaded, it results in a reduction of the claimant's damages.

The Legal Framework: Law Reform (Contributory Negligence) Act 1945

Prior to 1945, the common law position was that if a claimant was found to have contributed in any way to their own injuries, their claim in negligence would fail entirely. This ‘all-or-nothing’ approach often led to harsh outcomes. The Law Reform (Contributory Negligence) Act 1945 fundamentally changed this position.

Key Term: Law Reform (Contributory Negligence) Act 1945 The statute that governs the defence of contributory negligence in England and Wales, replacing the common law's complete bar with a system of apportioning damages based on fault.

Section 1(1) of the Act states:

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.

This provision means that a claimant's fault no longer defeats their claim entirely but leads to a reduction in the damages awarded.

Elements of Contributory Negligence

For the defence of contributory negligence to succeed, the defendant must prove two key elements:

1. The claimant failed to take reasonable care for their own safety (fault).
2. This failure contributed to the claimant's damage (causation).

Claimant's Fault: Failure to Take Reasonable Care

The standard of care expected of a claimant for their own safety is generally that of the reasonable person in the circumstances. This is an objective standard. The court considers what a reasonably prudent person in the claimant's position would have done to avoid being harmed.

Key Term: Contributory negligence A partial defence in negligence where the claimant's own failure to take reasonable care for their safety contributes to the damage they suffer, resulting in a reduction of damages awarded.

It is important to note that the claimant does not owe the defendant a duty of care in the same way the defendant owes one to the claimant. The focus is solely on whether the claimant failed to act reasonably in the interests of their own safety.

Specific Claimant Situations

The standard of the reasonable person may be adjusted in certain circumstances:

• Children: A child claimant is not judged by the standard of a reasonable adult. Instead, the standard is that of a reasonable child of the same age (Gough v Thorne). Very young children are unlikely to be found contributorily negligent.
• Emergencies: If the claimant is placed in an emergency situation or dilemma created by the defendant's negligence, the court will make allowances for actions taken 'in the agony of the moment'. The claimant's conduct is judged against that of a reasonable person in that dilemma.
• Rescuers: Courts are generally reluctant to find rescuers contributorily negligent, recognising that they may act under pressure or moral compulsion. They will only be found at fault if they show a "wholly unreasonable disregard" for their own safety (Baker v TE Hopkins & Son Ltd).
• Employees: While employees must take reasonable care, courts may consider the context of the workplace, such as noise, routine, or pressure, which might lead to momentary lapses in attention (Caswell v Powell Duffryn Associated Collieries Ltd).

Contribution to the Damage

The second key element is that the claimant's failure to take reasonable care must have contributed to the damage they suffered, not necessarily to the accident itself.

Worked Example 1.1

Anya is driving carefully when Ben negligently crashes into the back of her car. Anya suffers whiplash injuries. She was not wearing her seatbelt at the time. Medical evidence suggests her injuries would have been significantly less severe if she had worn the seatbelt. Can Ben raise the defence of contributory negligence?

Answer: Yes. Although Anya's failure to wear a seatbelt did not cause the accident, it contributed to the extent of her injuries. Therefore, her damages would likely be reduced for contributory negligence, following the principles in Froom v Butcher.

This principle is well-established in cases involving failure to wear seatbelts or crash helmets. The focus is on whether the claimant's carelessness made their injuries worse than they otherwise would have been.

Apportionment of Responsibility

Once contributory negligence is established, the court must decide the extent to which the claimant's damages should be reduced. Section 1(1) of the 1945 Act requires the reduction to be 'just and equitable having regard to the claimant’s share in the responsibility for the damage'.

Key Term: Apportionment The process by which a court divides responsibility for the damage between the claimant and the defendant(s) in cases of contributory negligence or between multiple defendants.

This involves considering two main factors:

1. Causative Potency: The relative importance of each party's acts in causing the damage.
2. Blameworthiness/Culpability: The degree of fault or blameworthiness of each party.

Worked Example 1.2

Chen negligently steps onto a pedestrian crossing without looking and is hit by David, who was driving significantly over the speed limit. Chen suffers serious injuries. Both parties were at fault. How might a court apportion responsibility?

Answer: The court would assess the relative blameworthiness and causative potency. David's speeding might be seen as highly blameworthy and potent in causing serious injury. Chen's failure to look is also blameworthy and causative. The court would make a percentage reduction based on what it considers 'just and equitable'. For example, it might find Chen 30% responsible and reduce damages accordingly.

Exam Warning

A finding of 100% contributory negligence is not possible under the 1945 Act. If the claimant is found to be entirely responsible for their own damage, their claim in negligence against the defendant fails at the causation stage; it is not defeated by contributory negligence itself.

Apportionment is ultimately a matter of judicial discretion based on the specific facts. Precedent cases offer guidance, particularly in recurring situations like failure to wear seatbelts, but each case turns on its own facts.

Key Point Checklist

This article has covered the following key knowledge points:

• Contributory negligence is a partial defence established by the Law Reform (Contributory Negligence) Act 1945.
• It applies where the claimant suffers damage partly due to their own fault and partly due to the defendant's fault.
• It results in a reduction of the claimant's damages, not a complete defeat of the claim.
• The defendant must prove the claimant failed to take reasonable care for their own safety.
• The claimant's failure must have contributed to the damage suffered, not necessarily the accident.
• The standard of care for claimants is generally objective but adjusted for children and emergencies.
• Damages are reduced to the extent the court considers 'just and equitable'.
• Apportionment involves assessing the relative blameworthiness and causative potency of each party's actions.

Key Terms and Concepts

• Contributory negligence
• Law Reform (Contributory Negligence) Act 1945
• Apportionment