Learning Outcomes
This article outlines the defence of contributory negligence in tort law, specifically focusing on aspects relevant to the SQE1 assessments. It covers the statutory basis for the defence, the elements required to establish it, how liability is apportioned, and the special considerations that apply to certain claimants like children and rescuers. Understanding these principles will enable you to analyse factual scenarios and apply the correct legal rules in SQE1-style multiple-choice questions.
SQE1 Syllabus
For SQE1, you need to understand how contributory negligence operates as a partial defence to a negligence claim. This involves applying the principles of the Law Reform (Contributory Negligence) Act 1945 and relevant case law. Pay attention to:
- The effect of the Law Reform (Contributory Negligence) Act 1945.
- The elements required to establish contributory negligence (claimant's fault and contribution to harm).
- How courts apportion responsibility and reduce damages.
- The different standards of care applied to claimants, particularly children.
- The approach taken in emergency situations and rescue cases.
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.
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What is the primary effect of successfully pleading contributory negligence?
- The claimant's claim is completely defeated.
- The defendant is absolved of all liability.
- The claimant's damages are reduced.
- The burden of proof shifts to the claimant.
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Which statute governs the defence of contributory negligence in England and Wales?
- Occupiers' Liability Act 1957
- Civil Liability (Contribution) Act 1978
- Law Reform (Contributory Negligence) Act 1945
- Limitation Act 1980
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True or False? A young child is always held to the same standard of care for their own safety as an adult when assessing contributory negligence.
Introduction
When a defendant has been found negligent, they may still be able to reduce the amount of damages payable if they can successfully raise a defence. One of the most common defences argued in practice is contributory negligence. This is a partial defence, meaning it does not absolve the defendant entirely but can lead to a reduction in the damages awarded to the claimant. This article focuses on the key principles of contributory negligence as required for the SQE1 assessment, including special considerations for certain types of claimants.
The Law Reform (Contributory Negligence) Act 1945
Prior to 1945, any finding that the claimant had contributed to their own harm, however slightly, acted as a complete bar to their claim. The Law Reform (Contributory Negligence) Act 1945 changed this position significantly.
Key Term: Law Reform (Contributory Negligence) Act 1945 The statute that allows damages awarded to a claimant to be reduced if the claimant's own fault contributed to the damage they suffered.
Section 1(1) of the Act provides that where any person suffers damage partly as a result of their own fault and partly due to the fault of another, the claim shall not be defeated, but the damages recoverable 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.
Key Term: Contributory Negligence A partial defence where the claimant's failure to take reasonable care for their own safety has contributed to the damage suffered.
Establishing Contributory Negligence
For the defence to succeed, the defendant must prove two elements:
- The claimant failed to take reasonable care for their own safety.
- This failure contributed to the claimant's damage.
Failure to Take Reasonable Care
The standard of care expected of a claimant is that of a reasonable person in their circumstances. This is an objective test. The court assesses whether the claimant acted as a reasonably prudent person would have done for their own safety.
Contribution to the Damage
It is important to note that the claimant's fault does not need to have contributed to the accident itself, but rather to the damage (harm) they suffered.
Worked Example 1.1
Anya is injured when Ben negligently drives into the back of her stationary car at traffic lights. Anya was not wearing her seatbelt at the time. Medical evidence shows that if she had been wearing a seatbelt, her injuries would have been significantly less severe. Ben admits negligence for the collision. Can Ben argue contributory negligence?
Answer: Yes. Although Anya's failure to wear a seatbelt did not cause the collision, it contributed to the severity of her injuries. Therefore, her damages would likely be reduced under the principles established in Froom v Butcher [1976] QB 286 (CA). The typical reduction where injuries would have been less severe is 15%.
Apportionment of Responsibility
Once contributory negligence is established, the court must apportion responsibility between the claimant and the defendant. This involves considering the relative blameworthiness of each party and the causative potency of their actions.
Key Term: Apportionment The process by which the court divides responsibility between the claimant and defendant(s) based on fault, determining the percentage reduction in the claimant's damages.
The court will consider what reduction is ‘just and equitable’. This involves a broad assessment of culpability.
Worked Example 1.2
Carlos is crossing a road at a designated pedestrian crossing when he is hit by David, who is driving negligently. However, Carlos was looking at his phone and did not check for oncoming traffic before stepping onto the crossing. How might the court apportion responsibility?
Answer: The court would assess the relative blameworthiness. David's negligence in hitting a pedestrian on a crossing is significant. However, Carlos also failed to take reasonable care for his own safety by not checking for traffic. The court would determine a percentage reduction based on these factors, considering how much each party's actions contributed to the injury. For instance, the court might find Carlos 25% contributorily negligent, reducing his damages accordingly.
Special Considerations
The standard of care applied to the claimant is not always that of the ordinary reasonable adult. Specific rules apply in certain situations.
Children
The standard of care expected of a child claimant is that of a reasonable child of the same age. Courts are reluctant to find very young children contributorily negligent.
Worked Example 1.3
A six-year-old child runs out into the road from between parked cars and is hit by a speeding driver. Can the driver claim contributory negligence?
Answer: It is unlikely. A six-year-old cannot be expected to have the same road sense or appreciation of danger as an adult. The court would consider what level of care is reasonable for a child of that age (Gough v Thorne [1966] 1 WLR 1387 (CA)). Given the child's age, a finding of contributory negligence is improbable.
Emergency Situations
Where the claimant is placed in an emergency or dilemma due to the defendant's negligence, the courts are less likely to find contributory negligence if the claimant makes an error of judgment in the ‘agony of the moment’. The claimant's actions are judged against the standard of a reasonable person acting under the stress of the emergency.
Rescuers
Rescuers are generally treated leniently by the courts. A rescuer will be found contributorily negligent only if they showed a wholly unreasonable disregard for their own safety in the rescue attempt (Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 (CA)).
Exam Warning
Do not confuse contributory negligence (claimant's fault contributing to their own harm) with contribution between tortfeasors (where multiple defendants are liable for the same damage). Contributory negligence reduces the claimant's damages, while contribution deals with how liability is shared between defendants.
Revision Tip
When analysing a problem question, always check if the claimant's own actions might have fallen below the reasonable standard of care for their own safety and whether this carelessness contributed to the harm suffered, not necessarily the accident itself. Consider age and emergency situations as potential modifying factors.
Key Point Checklist
This article has covered the following key knowledge points:
- Contributory negligence is a partial defence governed by the Law Reform (Contributory Negligence) Act 1945.
- If successful, the claimant's damages are reduced to the extent the court considers just and equitable.
- The defendant must prove the claimant failed to take reasonable care for their own safety and this failure contributed to the damage.
- Apportionment considers relative blameworthiness and causative potency.
- The standard of care for children is that of a reasonable child of the same age.
- Allowances are made for claimants acting in the ‘agony of the moment’ during emergencies.
- Rescuers are unlikely to be found contributorily negligent unless they showed wholly unreasonable disregard for their safety.
Key Terms and Concepts
- Contributory Negligence
- Law Reform (Contributory Negligence) Act 1945
- Apportionment
