Study area
The defence negligence of contributory – Part 1
This article sets out the law relating to contributory negligence as a defence to negligence, and aims to raise students’ general awareness of the defence.¹
About the author
Benjamin Andoh is a senior lecturer in law at Southampton Solent University.
The defence of contributory negligence is considered important and appealing, because it is based on a fair and reasonable common sense principle that a claimant whose fault has contributed to their injury, ought to have that fault taken into account when their claim is being determined by a court. This article will cover the following:
- The definition of the defence
- The reason for the defence
- The applicability of the defence
- The position before and after 1945
Contributory negligence is defined as ‘a person’s carelessness for his own safety or interests, which contributes materially to damage suffered by him as a result partly of his own fault and partly of the fault of another person or persons’ .² In Froom v Butcher [1976] QB 286, Lord Denning described contributory negligence as:
… a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might be hurt himself (para 291).
Today, it is a partial defence, unlike its previous status as a complete defence.
The defence has been justified on the ground that ‘if one man is to be held liable because of his fault, then the fault of him who seeks to enforce that liability should also be considered’ .³ This may be said to be deeply rooted in common sense, and fair and reasonable, and therefore satisfactory for the following reason: a person ought not to be allowed to claim fully, from a wrongdoer, damages for injury/loss to which they have, through their own fault, contributed materially or significantly; otherwise the law would get a bad name.
Contributory negligence is a general defence in tort. Thus, it applies to negligence and other torts, like nuisance. However, its application to tort has now been limited, in that it is no longer available where there is an intentional tort, such as trespass to the person, as decided by the Court of Appeal in Co-operative Group (CWS) Ltd v Pritchard [2011] 3 WLR 1272; [2011] EWCA Civ 329.
The reason for this part of the decision was that at the time the Law Reform (Contributory Negligence) Act (LR(CN)A) 1945 was passed, contributory negligence was not a defence to an intentional tort like assault and battery. So, in accordance with LR(CN)A ss1(1) and 4, contributory negligence could not be pleaded as a partial defence to the torts of assault and battery.4
.... a claimant whose fault has contributed to their injury, ought to have that fault taken into account when their claim is being determined by a court
After all, as has been said elsewhere, intentional wrongdoing - in its social consequences and in the level of resentment to which it leads - is much more serious than negligence, so that the need to deter and punish such wrongdoing is very strong indeed (see, for example, Moore v El Paso Chamber of Commerce 220 S W 2d 327, 329 (Tex Civ App 1949). As to whether the defence applies, or should apply, to breach of contract see respectively the Law Commission’s working paper and report of the same name, Contributory negligence as a defence in contract.5
Before 1945, at common law contributory negligence was a total defence. Thus, in Butterfield v Forrester 11 East 60, 103 Eng Rep 926 (KB 1809), where the defendant laid a pole negligently across the highway and the claimant ran into it, the claimant was held to have been the sole cause of his injury because he had been ‘riding violently’. So, the claim failed. Butterfield was often cited as authority for the proposition that: ‘… if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls’ (see Cayzer, Irvine & Co v Carron Co (1884) 9 App Cas 873 (HL) para 881 per Lord Blackburn).
However, because of the potential unfairness of this approach, the courts devised two exceptions to the principle. The first exception was known as the ‘last opportunity rule’, according to which the party with the last chance of avoiding the accident was considered to be solely responsible for the damage resulting from that accident. Thus, if the defendant had the last chance, the claimant would recover in full. The second exception was the principle of ‘constructive last opportunity’, whereby responsibility would lie with the party who, but for their own negligence, would have had the last chance of avoiding the accident (Davies v Mann (1842) 10 M&W 546; 152 Eng Report 588).
However, these modifications made the law complicated and did not remove the potential injustice of the former rule. Therefore, the LR(CN)A was passed to improve the law.
LR(CN)A (often referred to in the literature as the ‘apportionment legislation’) reformed the legal position by making contributory negligence a partial defence. Section 1(1) of the Act provides: ‘When 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.’ The three themes that come out of LR(CN)A s1(1), namely, the standard of care required; the link between the claimant’s own behaviour and their injury (‘the causal link’); and apportionment will be covered in Part 2 of this article, which will appear in (2017) September CILExJ.
1 Part 2 of this article will appear in (2017) September CILExJ.
2 Jonathan Law (editor), Oxford Dictionary of Law, 8th edition, OUP, 2015, p147
3 Fleming James Jr, ‘Contributory negligence’, 62 Yale LJ 691 (1953) at 704
4 Section 4 provides, regarding the defendant, that ‘“ fault” means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort’.
5 Law Commission working paper No 114, HMSO, 1990, available at: http://tinyurl.com/ya2gyrrc, and Law Commission report No 219, HC9, HMSO, 1993, available at: http://tinyurl.com/yccu6j6a
6 See, for example, James Goudkamp, Tort law defences, Hart Publishing, 2013 pp71 and 202