Acts of The Claimant - The Defence of Contributory Negligence

The Defence of Contributory Negligence

Contributory negligence used to be a complete defence, but the Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability for damages between the claimant and the defendant where the claimant's negligence has materially added to the loss or damage sustained. Section 1 provides:

(1) Where 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 reference in s1(1) to the claimant's share in the "responsibility for the damage" requires a court to consider what contribution the claimant made to their loss or damage, and the degree of blameworthiness. For these purposes, the only requirement is that the claimant's actions contribute to the damage. There is no requirement that the claimant must also have contributed to the initial sequence of events that caused the loss or damage. In Sayers v Harlow UDC (1958) 1 WLR 623 having paid to use a public toilet, a 36-year-old woman found herself trapped inside a cubicle that had no door handle. She attempted to climb out by stepping first on to the toilet and then on to the toilet-roll holder, which gave way. The court held that the injuries she suffered were a natural and probable consequence of the defendant's negligence, but that the damages would be reduced by 25% since the claimant had been careless in depending for support on the toilet-roll holder.

In some situations, the common law has been overtaken by statute. In Froom v Butcher (1976) QB 286 Denning MR assessed the percentage contribution made by a claimant who failed to wear a seat belt (at p295):

"Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage." Thus, at p296: "(At times) the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often the evidence will only show that the failure made a considerable difference...In such a case I would suggest that the damage attributable to the failure to wear a seat belt should be reduced by 15%."

The wearing of seat belts then became compulsory (see the Wearing of Seat Belts Regulations 1983 and the Motor Vehicles (Wearing of Seat Belts in Rear Seat by Adults) Regulations 1991). The current thinking would not support limiting damages by a figure of 25% and if, for example, the claimant was thrown out of the vehicle because no seat belt was worn, a substantial finding of contributory negligence should follow. Indeed, in Hitchens v Berkshire County Council the High Court expressed some difficulty in following the logic of Lord Denning's figure of 25% although the ratio decidendi was considered binding. There are two further principles to consider:

• Where the claimant has voluntarily taken on the risks that cause him injury, volenti non fit injuria may extinguish the cause of action.
• Where the claimant was engaged in illegal activity at the relevant time, the principle of ex turpi causa non oritur actio may extinguish the cause of action.