PastPaperHero | Defences to negligence - Failure to take reasonable care for one's own safety

Learning Outcomes

This article examines the defence of contributory negligence in the context of negligence claims. It clarifies the legal basis for the defence, the elements a defendant must prove for it to apply, and its effect on the damages awarded to a claimant. For the SQE1 assessment, you need to understand how contributory negligence operates as a partial defence, the standard of care expected from claimants, and how courts apportion responsibility for damage. This knowledge will allow you to apply the relevant principles to SQE1-style multiple-choice questions.

SQE1 Syllabus

For SQE1, you are required to understand the principles supporting defences to negligence, specifically contributory negligence. You should be prepared to analyse scenarios where a claimant's actions may have contributed to their own harm and assess the likely impact on their claim.

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 elements required to establish the defence: the claimant's failure to take reasonable care and the causal link between this failure and the damage suffered
the process of apportioning blame and reducing damages based on what is 'just and equitable'
the application of contributory negligence principles to specific situations, such as road traffic accidents involving failure to wear seatbelts or crash helmets, and cases involving children or rescuers.

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.

Which statute primarily governs the defence of contributory negligence in England and Wales?
1. Unfair Contract Terms Act 1977
2. Occupiers' Liability Act 1957
3. Law Reform (Contributory Negligence) Act 1945
4. Civil Liability (Contribution) Act 1978
If a court finds a claimant contributorily negligent, what is the usual effect on the damages awarded?
1. The claim is completely defeated.
2. The damages are reduced proportionally based on the claimant's share of responsibility.
3. The damages are increased to penalise the claimant.
4. The defendant is absolved of all liability.
True or False: For contributory negligence to apply, the claimant's fault must have contributed to the accident itself, not just the extent of their injuries.
In Froom v Butcher [1976], what percentage reduction was suggested if a claimant's failure to wear a seatbelt would have entirely prevented their injuries?
1. 10%
2. 15%
3. 25%
4. 50%

Introduction

When a defendant is found to have breached a duty of care owed to a claimant, resulting in damage, the defendant may still seek to reduce their liability by raising certain defences. This article focuses on one such defence: contributory negligence. This defence alleges that the claimant failed to take reasonable care for their own safety, and this failure contributed to the damage they suffered. Unlike complete defences such as consent (volenti non fit injuria) or illegality (ex turpi causa non oritur actio), contributory negligence, if successfully pleaded, operates as a partial defence, leading to a reduction in the damages awarded to the claimant.

The Nature and Effect of Contributory Negligence

Contributory negligence arises when the claimant's own lack of reasonable care for their safety contributes to the injury or loss they sustain due to the defendant's negligence. The legal basis for this defence is principally found in statute.

Key Term: Law Reform (Contributory Negligence) Act 1945 The statute that allows for the apportionment of liability in negligence cases where the claimant has partly contributed to their own damage through their fault. It provides that damages 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.

The effect of a successful plea of contributory negligence is not to defeat the claim entirely but to reduce the amount of damages recoverable by the claimant. The court assesses the degree of fault attributable to both the claimant and the defendant and reduces the claimant's damages proportionally.

Key Term: Contributory Negligence A partial defence in tort law where the claimant's failure to take reasonable care for their own safety has contributed to the damage suffered as a result of the defendant's negligence. It leads to a reduction in the damages awarded.

Elements of the Defence

To successfully raise the defence of contributory negligence, the defendant must prove two key elements:

Fault on the part of the claimant: The claimant failed to take reasonable care for their own safety.
Causation: The claimant's failure to take reasonable care contributed to the damage suffered.

1. Claimant's Failure to Take Reasonable Care

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

Special Categories of Claimants

The standard of care may be adjusted for certain categories of claimants:

Children: The standard applied is that of a reasonable child of the same age as the claimant (Gough v Thorne [1966]). Very young children are unlikely to be found contributorily negligent. The older the child, the more likely they are expected to take precautions for their own safety.
Rescuers: Courts are generally reluctant to find contributory negligence against rescuers, recognising that they often act under pressure or moral compulsion. A rescuer will only be found contributorily negligent if they showed a 'wholly unreasonable disregard' for their own safety (Baker v TE Hopkins & Son Ltd [1959]).
Employees: Courts may take into account the workplace environment (e.g., noise, repetition, fatigue) when assessing an employee's failure to take care (Caswell v Powell Duffryn Associated Collieries Ltd [1940]). However, disregarding clear safety instructions or acting recklessly can still lead to a finding of contributory negligence.
Emergency Situations: Allowances are made for claimants acting 'in the agony of the moment' when faced with imminent danger created by the defendant's negligence (Jones v Boyce [1816]). The claimant's actions are judged based on whether they were reasonable in the context of the emergency.

2. Contribution to the Damage

The claimant's fault must have contributed to the damage suffered, not necessarily to the accident itself. The classic example involves the failure to wear a seatbelt or crash helmet.

Worked Example 1.1

Anna is driving carefully when Ben negligently crashes into the back of her car. Anna suffers whiplash injuries. Anna was not wearing her seatbelt at the time. Medical evidence suggests her injuries would have been significantly less severe had she worn a seatbelt. Ben admits liability for causing the collision but argues Anna was contributorily negligent. Is Ben likely to succeed?

Answer: Yes, Ben is likely to succeed in arguing contributory negligence. Although Anna's failure to wear a seatbelt did not cause the accident, it contributed to the extent of her injuries. Following the principles in Froom v Butcher [1976], the court would likely reduce Anna's damages to reflect her share of responsibility for the severity of her injuries (likely a 15% reduction if the injuries would have been less severe, or 25% if they would have been prevented altogether).

Worked Example 1.2

Chris is cycling home at night without lights. David, driving negligently, fails to see Chris and collides with him, causing Chris serious injuries. Chris argues David was entirely at fault. David argues Chris was contributorily negligent by cycling without lights. Is David's argument likely to succeed?

Answer: Yes, David's argument is likely to succeed. Cycling without lights at night is a failure to take reasonable care for one's own safety. This failure contributed to the accident and resulting injuries, as it made Chris less visible to other road users, including David. The court would likely reduce Chris's damages to reflect his share of responsibility.

Apportionment of Responsibility

Once contributory negligence is established, the court must determine 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'.

This involves considering both the relative causative potency (how much each party's fault contributed to the damage) and the relative blameworthiness (the degree of fault) of the claimant and the defendant (Stapley v Gypsum Mines Ltd [1953]). The assessment is often expressed as a percentage reduction.

Exam Warning

Remember that contributory negligence is a partial defence. It reduces damages but does not defeat the claim entirely (unless the claimant is found 100% responsible, which is exceptionally rare and effectively means the defendant was not negligent at all). Contrast this with complete defences like volenti non fit injuria or illegality.

Revision Tip

When analysing a problem question, always check the claimant's actions. Did they do something (or fail to do something) that increased their risk or the severity of their harm? Even if the defendant was clearly negligent, the claimant's conduct might lead to reduced damages through contributory negligence. Consider common scenarios like failure to wear seatbelts/helmets, intoxication, or ignoring clear warnings.

Key Point Checklist

This article has covered the following key knowledge points:

Contributory negligence is a partial defence where the claimant's own fault contributes to their damage.
The defence is governed by the Law Reform (Contributory Negligence) Act 1945.
The defendant must prove the claimant failed to take reasonable care for their own safety and this failure contributed to the damage.
The standard of care for a claimant is generally objective (the reasonable person) but can be adjusted for children and in emergency situations.
The claimant's fault need only contribute to the damage, not necessarily the accident.
If established, damages are reduced to the extent the court considers just and equitable, reflecting the claimant's share of responsibility.
Apportionment considers both causative potency and relative blameworthiness.

Key Terms and Concepts

Law Reform (Contributory Negligence) Act 1945
Contributory Negligence

Defences to negligence - Failure to take reasonable care for one's own safety