Introduction

The partial defence of contributory negligence may be raised by the defendant if a claimant has acted carelessly and this has contributed to the claimant's damage. However, if a third party has contributed to the damage they will be joint tortfeasors. There is statutory provision covering the law of contributory negligence.

Negligence

The meaning of negligence differs for contributory negligence and the tort of Negligence. The key difference is that for contributory negligence the claimant does not have to owe the defendant any duty of care.

The courts tend to adopt a more subjective approach to the standard of care required for contributory negligence. The courts recognise that in most personal injury Negligence claims the defendant will be insured, however, if a claimant is held to be contributory negligent, his damages will be reduced and he will suffer that loss personally.

Children

Generally, a child's conduct may be found to amount to contributory negligence. However, more generally the younger the child the less likely contributory negligence would apply.

• Gough v Thorne [1966] 1 WLR 1387

  Facts:

  The plaintiff, a 13 year old child, was injured when struck by a car. The plaintiff had been waiting to cross the road when a lorry stopped to let her cross. However, the defendant was overtaking the lorry and hit the plaintiff.

  Issue:

  was there contributory negligence?

  Held:

  The plaintiff had reached the standard of care expected of an ordinary child of 13 year old in the circumstances and therefore, the partial defence of contributory negligence did not apply.

  Lord Denning: .. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety....

Therefore, the relevant factor is the child's age. The court will judge whether an ordinary child of the claimant's age would have taken more care than the claimant.

• Morales v Eccleston [1991] RTR 151

  Facts:

  The plaintiff, an 11 year old, was injured when he was hit by a bus. The plaintiff had been playing football on the pavement and he had not looked before going to retrieve the ball from the busy London road.

  Issue:

  was there contributory negligence?

  Held:

  The plaintiff had been reckless as to his own safety, even for his age. There was a finding of 75% contributory negligence against the plaintiff.

In some cases involving child claimants, a defendant, may succeed in arguing negligent parents are joint tortfeasors.

Rescuers

Generally rescuers are encouraged. Therefore, the absolute defence of consent will not often succeed against a claimant who was acting as a rescuer, in an emergency situation caused by the defendant's negligence. Similarly, with contributory negligence the standard of care applied is that of a reasonable rescuer, taking into account the emergency nature of the situation.

Therefore, a claimant's conduct will only amount to contributory negligence if it demonstrates a wholly unreasonable disregard for his own safety.

Dilemma cases

Dilemma situations arise when the claimant has been placed in imminent danger by the defendant's negligence.

• Jones v Boyce (1816) 1 Stark 493

  Facts:

  The plaintiff suffered a broken leg after jumping from the defendant's coach. The plaintiff jumped after realising that the coupling mechanism had broken and he anticipated the coach may crash, in fact it did not.

  Issue:

  was there contributory negligence?

  Held:

  The defence of contributory negligence failed, the plaintiff had acted reasonably in the perilous situation.

  Lord Ellenborough : .. it is sufficient if [the plaintiff] was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at certain peril... If 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:

  The plaintiff was injured when he fell from the defendant's moving train, when attempting to close the door. However, the plaintiff had plenty of room to sit away from the open door and the train was due at the next stop shortly.

  Issue:

  was there contributory negligence?

  Held:

  The plaintiff had taken an unnecessary risk and therefore the defence of contributory negligence applied. The case was distinguished from Jones v Boyce (1816) as the plaintiff was not in immediate danger.

Therefore, the courts will look at the facts of the case and determine whether the degree of inconvenience or danger justified the action a claimant takes to avoid the risk.

Workers

The circumstances of the work and the employer's statutory responsibilities will be taken into account, if an injury at work has been caused partly by the claimant's carelessness and is partly due to the employer's fault.

• 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:

  The plaintiff, an employee of the defendant, suffered crush injuries when he was riding on the back of a vehicle at work. Another employee negligently drove into the vehicle. However, the plaintiff had been warned not to ride on the back of the vehicle by the defendant.

  Issue:

  was there contributory negligence?

  Held:

  There was 20 per cent contributory negligence on the part of the plaintiff. The plaintiff had decided to ride dangerously on the vehicle, despite warnings.

Reduction of damages

A finding of contributory negligence means that damages may be reduced. The reduction is 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.

The reduction reflects the extent to which the claimant's carelessness caused or contributed to the damage (causation) and the blameworthiness of the 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....

Firstly, the court will calculate the total damages that would have been awarded, if there was no contributory negligence. The court will then determine the responsibility of the claimant, as a percentage, and deduct this proportionately from the total damages. If the claimant's responsibility is less than ten percent there will usually be no reduction and the claimant can recover the damages in full.

• Johnson v Tennant Bros Ltd 1954, unreported

  Small percentages of apportionment ought not to be made and contribution of less than ten percent is to be disregarded.

Burden

The partial defence of contributory negligence may be raised by a defendant. A defendant must prove that the claimant failed to take reasonable care of himself and that this contributed to the claimant's loss.

Road traffic accidents

A causal link must be established between the claimant's careless conduct and the his loss. Therefore, as a passenger, the claimant may have not in any way contributed to the accident but due to his own carelessness he may still have contributed to his injuries.

Seat belts

• Courts have always taken the view that passenger's deciding not to wear a seat belt may amount to contributory negligence, even prior to regulations making it compulsory to do so.

  Froom v Butcher [1976] QB 286

  Facts:

  The plaintiff was injured in a car accident, caused by the defendant's negligence. However, the plaintiff was not wearing a seat belt.

  Issue:

  was there contributory negligence?

  Held:

  The Court of Appeal established general rules for apportioning responsibility in cases where the claimant did not wear a 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.

  In some cases, a claimant may have been injured more seriously if he had been wearing a seat belt. However, the courts are reluctant to be swayed by such arguments.

  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

  A defendant must show that the claimant not wearing a seat belt made a difference to the loss suffered.

  However, there are some people who are exempt from wearing seat belts under the regulations, such as taxi drivers, reversing drivers and those certified as medically exempt. Therefore, contributory negligence is unlikely to apply to such claimants

Crash helmets

• A defendant must establish a causal link between the claimant's failure to wear a crash helmet and his injuries. Claimants not wearing a crash helmet when travelling on a motorbike will have their damages reduced for contributory negligence in relation to head injuries sustained.

  O'Connell v Jackson [1972] 1 QB 270

  Facts:

  The plaintiff suffered head injuries in a motorcycle accident, caused by the defendant's negligence. The plaintiff was not wearing a crash helmet.

  Issue:

  was there contributory negligence?

  Held:

  The plaintiff's damages were reduced by fifteen percent, for contributory negligence.

  Edmund-Davies LJ: .. for so much of the injuries and damage as would have resulted from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and the plaintiff not at all. For the additional injuries and damage which would not have occurred if a crash helmet had been worn, the defendant, as solely responsible for the accident, must continue in substantial measure to be held liable, and it is only in that last field of additional injuries and damage that the contributory negligence of the plaintiff has any relevance....

  Capps v Miller [1989] 2 All ER 333

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

Intoxicated drivers

• If a claimant decides to travel as a passenger in a vehicle with a driver he knows has been drinking, then damages are likely to be reduced if he is injured in an accident caused, at least partly, by the driver's intoxication. Generally, the claimants own drunkenness is not a sufficient excuse for failing to take reasonable care of himself.

No lights or brakes

• If a claimant decides to travel as a passenger in a vehicle, which he knows has no lights or brakes, then damages are likely to be reduced if he is injured in an accident caused, at least partly, by the lack of lights or brakes.