DEFENCES TO A NEGLIGENCE ACTION
1) Contributory negligence
Common law traditionally provided that anyone who was partly responsible for the harm done
to them could not recover in tort. Thus, before 1945, contributory negligence served as a
complete defence. Not surprisingly, this caused considerable injustice in some cases, and the
Law Reform (Contributory Negligence) Act 1945 now provides that in such cases the claim need
not fail but the defence of contributory negligence may apply. Where this defence applies,
damages can be reduced to take account of the fact that the fault was not entirely the
defendant’s. The trial judge will decide the amount that will be deducted from the damages that
could have been awarded. Hence contributory negligence is now a partial defence.
Where contributory negligence is proved, the claimant’s damages will 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’ (Law Reform (Contributory Negligence) Act 1945, s. 1(1)).
In many cases, the claimant’s negligent behaviour will contribute to causing the accident which
results in damage. An obvious example would be a pedestrian who walks out into the path of a
car without looking. However, contributory negligence can also apply where the claimant’s
behaviour does not cause the accident itself, but contributes to the amount of damage done and
increases the severity of damage that would have happened anyway. For this reason, damages
to drivers or passengers in road accidents are always reduced if seatbelts have not been worn,
since this negligence would usually increase the injuries suffered.
An example of the application of this defence can be seen in Baker v Willoughby in which the
claimant was run over by the defendant and then, in a separate incident, shot by a robber. In the
first incident he was crossing the road; the defendant was driving carelessly, but the claimant
had had a clear view of the road for the last 200 yards travelled by the car, and had taken no
evasive action. The Court of Appeal found that he was 50 per cent contributorily negligent – in
other words, that both parties were equally to blame. The result was that the claimant received
50 per cent of the damages he would have got if there had been no contributory negligence.
This principle can be seen clearly in economic loss cases.
The damage to which the claimant’s negligence has contributed must fall within the general scope of the
risk they were taking, but the courts have been willing to give this a fairly wide interpretation.
,The standard of care
The standard of care which the claimant must show for their own safety (or economic circumstances) in
order to avoid being found contributorily negligent is essentially the same as the standard of care
required of a defendant in negligence: that of the reasonable person involved in the relevant activity.
Like the standard of care in negligence, it is usually objective, but allowance is made for children, and
probably for people with some type of disability which makes it impossible for them to reach the
required standard.
A claimant will not be contributorily negligent where they have only fallen below the standard of care as
a result of an error of judgement: the courts have pointed out that reasonable people do make errors of
judgement from time to time, and especially in emergency situations
, The case of Reeves v Metropolitan Police Commissioner (1999) makes it clear that intentionally harming
yourself can be contributory negligence. This, you may remember, is the case where police were found
negligent in allowing a prisoner to commit suicide. The court found that the claimant’s death was caused
equally by two factors: the police negligence in allowing him to take his own life; and his action in doing
so. Therefore he was 50 per cent contributorily negligent.
Where the claimant is a child, the standard of care is that which could reasonably be expected, taking
into account the child’s age and development. Very young children are unlikely ever to be found
contributorily negligent, since they cannot be expected to have enough awareness and experience to
guard their own safety at all. Lord Denning has stated in Gough v Thorne that there is no age under
which a child cannot be held to be contributorily negligent. However, the expected knowledge and
awareness of a child at a particular age will be considered.
Contributory negligence and causation
Contributory negligence will only provide a defence it if helped to cause the accident, or the damage, or
made the damage worse. If a claimant does not take a reasonable standard of care for their own safety,
but the accident would have happened anyway, and the damage would have been just the same, there is
no defence.
1) Contributory negligence
Common law traditionally provided that anyone who was partly responsible for the harm done
to them could not recover in tort. Thus, before 1945, contributory negligence served as a
complete defence. Not surprisingly, this caused considerable injustice in some cases, and the
Law Reform (Contributory Negligence) Act 1945 now provides that in such cases the claim need
not fail but the defence of contributory negligence may apply. Where this defence applies,
damages can be reduced to take account of the fact that the fault was not entirely the
defendant’s. The trial judge will decide the amount that will be deducted from the damages that
could have been awarded. Hence contributory negligence is now a partial defence.
Where contributory negligence is proved, the claimant’s damages will 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’ (Law Reform (Contributory Negligence) Act 1945, s. 1(1)).
In many cases, the claimant’s negligent behaviour will contribute to causing the accident which
results in damage. An obvious example would be a pedestrian who walks out into the path of a
car without looking. However, contributory negligence can also apply where the claimant’s
behaviour does not cause the accident itself, but contributes to the amount of damage done and
increases the severity of damage that would have happened anyway. For this reason, damages
to drivers or passengers in road accidents are always reduced if seatbelts have not been worn,
since this negligence would usually increase the injuries suffered.
An example of the application of this defence can be seen in Baker v Willoughby in which the
claimant was run over by the defendant and then, in a separate incident, shot by a robber. In the
first incident he was crossing the road; the defendant was driving carelessly, but the claimant
had had a clear view of the road for the last 200 yards travelled by the car, and had taken no
evasive action. The Court of Appeal found that he was 50 per cent contributorily negligent – in
other words, that both parties were equally to blame. The result was that the claimant received
50 per cent of the damages he would have got if there had been no contributory negligence.
This principle can be seen clearly in economic loss cases.
The damage to which the claimant’s negligence has contributed must fall within the general scope of the
risk they were taking, but the courts have been willing to give this a fairly wide interpretation.
,The standard of care
The standard of care which the claimant must show for their own safety (or economic circumstances) in
order to avoid being found contributorily negligent is essentially the same as the standard of care
required of a defendant in negligence: that of the reasonable person involved in the relevant activity.
Like the standard of care in negligence, it is usually objective, but allowance is made for children, and
probably for people with some type of disability which makes it impossible for them to reach the
required standard.
A claimant will not be contributorily negligent where they have only fallen below the standard of care as
a result of an error of judgement: the courts have pointed out that reasonable people do make errors of
judgement from time to time, and especially in emergency situations
, The case of Reeves v Metropolitan Police Commissioner (1999) makes it clear that intentionally harming
yourself can be contributory negligence. This, you may remember, is the case where police were found
negligent in allowing a prisoner to commit suicide. The court found that the claimant’s death was caused
equally by two factors: the police negligence in allowing him to take his own life; and his action in doing
so. Therefore he was 50 per cent contributorily negligent.
Where the claimant is a child, the standard of care is that which could reasonably be expected, taking
into account the child’s age and development. Very young children are unlikely ever to be found
contributorily negligent, since they cannot be expected to have enough awareness and experience to
guard their own safety at all. Lord Denning has stated in Gough v Thorne that there is no age under
which a child cannot be held to be contributorily negligent. However, the expected knowledge and
awareness of a child at a particular age will be considered.
Contributory negligence and causation
Contributory negligence will only provide a defence it if helped to cause the accident, or the damage, or
made the damage worse. If a claimant does not take a reasonable standard of care for their own safety,
but the accident would have happened anyway, and the damage would have been just the same, there is
no defence.
