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 three themes which come out of the Law Reform (Contributory Negligence) Act (LR(CN)A) 1945, namely:
The standard of care, where a defendant alleges the claimant is contributorily negligent, is the same as the standard of care required in negligence, ie, the standard of the reasonable person who is involved in the relevant activity. It is the objective test. Thus, in Commissioners of Police for the Metropolis v Reeves (joint administratix of the estate of Martin Lynch deceased) [1999] 3 All ER 897, where a prisoner committed suicide while in police custody, it was held that although the police were negligent in allowing the prisoner to take his life, he was 50% contributorily negligent in acting as he did, ie, the prisoner did not take reasonable care in looking after his own safety. (See also Barrett (suing on her own behalf and as executrix of the estate of Barrett) v Ministry of Defence [1995] 3 All ER 87; [1995] 13 January, The Times, CA.)
However, a lower standard of care is expected of children in general. Here, account is taken of their age and development. So, where a child is of tender age (generally regarded as the age of four and under), they cannot be contributorily negligent whereas an older child may be.
Thus, in Yachuk and another v Oliver Blais Company Ltd v Oliver Blais Company Ltd v Yachuk and another (Canada) (Appeal No 88 of 1946) [1949] UKPC 21, 11 April 1949, a nine-year-old boy was held not contributorily negligent. However, see Morales v Eccleston [1991] RTR 151, CA, where an 11-year-old boy was struck by the defendant driver. The boy was playing with a football adjacent to a busy street. He lost control of the ball and followed it into the street without looking in either direction. It was held that the boy was 75% contributorily negligent. There was also contributory negligence on the part of a 13-year-old girl in Jackson v Murray and another [2015] UKSC 5, an account of which is given below. Therefore, the older the child, the more likely they are to be held contributorily negligent.
Having said that, it is always a question of fact whether the child in question is contributorily negligent. For example, in Gouge (an infant suing by her next friend and father John Henry Gough) v Thorns [1966 ] 3 All ER 398; [1966] 1 WLR 1387, a 13-anda-half-year-old girl was held not contributorily negligent because of the particular circumstances. In that case, the girl was injured while crossing the road. A lorry driver had stopped in order to allow her and her brothers to cross the road, and had given her a signal to cross. On the facts, the court held that she was not contributorily negligent because she had not fallen below the standard of care expected in those circumstances. This series of articles on contributory negligence as a defence to negligence... aim to update readers about the law [and] increase their awareness of it
One pertinent question here is whether the standard of care should also be reduced for people with some disability that makes it impossible for them to reach the standard required. Corr (administratix of the estate of Thomas Corr (deceased)) v IBC Vehicles Ltd [2008] 1 AC 884; [2008] UKHL 13 is instructive on this point. In this case, negligence on the part of the defendants had caused the claimant’s husband, in June 1996, to suffer severe head injuries and, afterwards, post-traumatic stress disorder and depression. In February 2002, Thomas Corr was admitted to hospital after taking an overdose of drugs. In March 2002, he was diagnosed as significantly suicidal. In May 2002, he committed suicide.
When the claimant (who was the widow of the deceased and administratrix of the deceased’s estate) sued the employer, the latter pleaded, among other things, contributory negligence on the part of Thomas Corr. The House of Lords held, inter alia, that:
In other words, on the facts, it would be unfair and, consequently, inappropriate to hold the deceased to have been contributorily negligent for killing himself and, therefore, to reduce the damages awarded to the claimant.
Section 1(1) of the LR(CN)A mentions ‘fault’. Therefore, for a claimant to be contributorily negligent, their action must have helped to cause their damage/injury, ie, there must be a causal connection between their failure to observe a reasonable standard of care for their own safety and the injury.
So, this causal nexus runs from the claimant’s fault to their injury, and not as such to the accident. Accordingly, a claimant who contributed to the accident will be taken to have also contributed to their injury, if the injury was more likely than not as a result of the accident. Conversely, it is possible for a claimant to be contributorily negligent without in any way causing the accident in question, as illustrated by Froom, Froom (his wife), North (married woman) and H J Froom Ltd v Butcher [1976] QB 286, CA. The plaintiff driver in this case was not wearing a seat belt when he was injured in a collision caused by the negligence of the defendant, another driver.
The Court of Appeal held that the plaintiff was partly to blame for his injury because he failed to take reasonable precautions, in that by not wearing a seat belt he had placed himself in a position which, although in itself was not dangerous, had increased his risk of injury. Lord Denning said:
The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable (para 4, emphasis in original).
In a similar way, a person who rides a motorcycle with their crash helmet unfastened, or who fails to wear one, may be guilty of conduct amounting to contributory negligence (see Capps (suing by his next friend David Graham Capps) v Miller [1989] 2 All ER 333 and O’Connell v Jackson [1972] 1 QB 270 respectively). It is important here, however, to note that though the Road Traffic Act (RTA) 1988 makes wearing a seat belt compulsory, the Act also grants exemption from this requirement to certain persons (for example, on medical grounds under RTA 14(2)( b)).
In the case of motorcycle riders, exemption from wearing a protective headgear is also given under RTA s16(2) and imposed by regulations under this section. However, this exemption relates to only the criminal sanctions under the RTA. Therefore, whether a claimant, who is exempt from wearing a seat belt or protective headgear, may not be contributorily negligent if such failure results in their suffering more or greater injuries in an accident is an open question.
Section 1(1) of the LR(CN)A, as stated previously, provides that damages recoverable shall be reduced, as the court thinks appropriate, having regard to the plaintiff’s share in the responsibility for any damage. ‘Share in the responsibility’ implies that there cannot be 100% contributory negligence (see Pitts v the personal representatives of Mark James Hunt (deceased) and Jewell [1990] 3 All ER 344). Thus, for example, if the claimant’s (C’s ) car collides with the defendant’s (D’s ) car, and C is 25% responsible but D is 75% responsible, C’s damages will be reduced by 25%. This has the practical effect that, in order to allocate proportionate blame to the parties, the courts take into account not only the respective blameworthiness of their
conduct, but also the extent to which the claimant’s conduct caused or increased their injuries, ie, the conduct’s ‘causative potency’ (see, for example, Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 per Denning LJ). Another illustration of this is where, as in Froom above, the claimant’s driving did not cause the accident, but their failure to wear a seat belt increased the injuries sustained. If both blameworthiness and ‘causative potency’ had not been considered there, the claimant would not have been held contributorily negligent.
Apportionment was also at issue in Smith v Chief Constable of Nottinghamshire Police [2012] EWCA Civ 161, where the appellant’s contributory negligence was reduced from 75% to 33% because the police car in question was travelling at an excessive speed: it was being driven at 45 mph as it approached a junction where the driver could have expected pedestrians to be crossing the road. Similarly, in Rehill v Rider Holdings Ltd [2012] EWCA Civ 628, where the claimant was held 50% contributorily negligent for crossing the road at a pedestrian crossing when the lights were showing red rather than green.
Another illustration is Jackson v Murray and another [2015] UKSC 5. The case concerned a 13-year-old schoolgirl, who sustained severe injuries after being hit by a car driven negligently by the defendant. She got off a school minibus on a country road. It was then about 40 minutes after sunset, and the light was waning. The hazard lights of the minibus were illuminated. She stepped out from behind the minibus into the path of a car that was approaching at 50 mph. The driver of the car did not make any allowance for the possibility of a child attempting to cross the road in front of him.
When the pursuer sued the driver, alleging negligence on his part, the judge found that although the defendant did not drive with reasonable care, the principal cause of the accident was the pursuer’s recklessness in trying to cross the road without taking proper care to check that it was safe to do so. The judge, therefore, held that she was 90% contributorily negligent. She appealed to the Inner House of the Court of Session, which reduced her contributory negligence to 70% ([ 2012] CSIH 100). She then appealed further to the Supreme Court.
The Supreme Court held, inter alia, that:
when applying LR(CN)A s1(1), it was necessary to consider not only the parties’ blameworthiness, but also the causative potency of their acts;
on the facts, the ‘causative potency’ of the defendant’s conduct was not lower than that of the claimant’s because the causation of the injury hinged on the combination of the claimant trying to cross the road when she did and the defendant’s driving without reasonable care (ie, driving at an excessive speed without keeping a proper lookout); and
since the defendant’s conduct had played a role at least equal to that of the claimant in the responsibility for the injury, the lower court was wrong to attribute the major share of the responsibility to the claimant. The claimant’s contributory negligence was, accordingly, reduced to 50%.
Jackson was followed by the Court of Appeal in Sabir (suing by her Litigation Friend, the Official Solicitor) v Osei-Kwabena [2015] EWCA Civ 1213), although in the latter case the causal potency and blameworthiness of the driver’s conduct substantially exceeded the pedestrian’s. In Sabir, the claimant, after getting out of a car that was parked some metres beyond a pedestrian crossing on a busy road, moved to the back of the parked car. She then saw the motorist’s car approaching at normal speed, but thought mistakenly that there was enough time for her to cross the road. The defendant. who had a clear view of the pedestrian but did not see her as he approached, hit the claimant with the front offside of his car when she was about four metres into the carriageway. As a result, the claimant sustained serious injuries, which included a traumatic brain injury.
The first-instance judge found that the defendant’s failure to take proper care had been the cause of the accident, and that the claimant was 25% contributorily negligent. The defendant’s appeal was that the judge should have found her share in the responsibility to be 50% or ‘something close thereto’ was dismissed by the Court of Appeal (para 1). The court ruled, inter alia, that since a car usually inflicted more damage on a person than a person inflicted on a car, a motorist had a high burden of causative potency, and to drive a car without keeping a proper lookout where it was reasonable to expect the presence of pedestrians showed a significant level of blameworthiness.
As stated earlier, contributory negligence may be pleaded successfully against a claimant whose carelessness for their safety contributes materially to any injury suffered partly because of their own fault and partly because of the fault of another person(s).
This series of articles on contributory negligence as a defence to negligence has, apart from defining the defence, identified the justification for it, noted its applicability or coverage, looked at the position before and after 1945, and illustrated the applicability of the defence by reference to the LR(CN)A and to several significant decisions. The articles have aimed to update readers about the law on the defence in relation to negligence, as well as to increase their awareness of same.
* See Benjamin Andoh, ‘The defence of contributory negligence – Part 1‘ (2017) July CILExJ pp47–48