Contributory negligence needs some explanation.
Contributory negligence is sometimes called partial fault, but this is confusing. The concept is based on a claimant being partly responsible for the damage. I am asked about 50:50 offers to settle personal injury cases. They are usually just compromise offers which have no real basis in law.
A good example to start with is a car driver or passenger who does not wear a seat belt. Not wearing the seat belt does not cause the accident, but it contributes to the damage (the injury in this example). Another example is where an employee has failed to wear safety equipment. An accident occurs for other reasons, but the failure to wear safety equipment contributes to the injury, not the accident. If this claim is upheld by the court, the employer can suggest that any damages awarded to the complainant should be reduced by an amount that represents the portion of the blame assumed by the employee. If a claimant is found to have contributed by 20 per cent, that same 20 per cent will be deducted from the compensation received.
You could imagine a situation involving an accident at work where both claimant and defendant are to blame, and the outcome is divided in the same proportion as each party is to blame.
One more example to help. A driver who drives too fast for the road conditions will be found negligent if he hits a pedestrian. If that pedestrian did not check the traffic the pedestrian will be found to have contributed, and the proportion will depend on how much time was available to the driver to avoid the pedestrian.
Until 1945 contributory negligence was a complete defence to a claim for compensation. The Law Reform (Contributory Negligence) Act 1945 means contributory negligence is no longer a complete defence, although if you are found to have contributed by 100 per cent your case will fail.
A Court is given rather vague guidance as it can reduce damages “to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…” I could set out 101 examples of court decisions, but each case depends on its particular circumstances so I will paint the picture for you.
There are a few technicalities to weigh up. The words above from the 1945 law say “..suffer damage as the result..” so for the claimant’s compensation to be reduced their fault must be part of the cause of the damage. If the claimant’s fault is the only fault then the action fails. “Fault” is the same fault used to show a defendant is to blame. Fault is proved by showing negligence or breach of statutory duty.
The “claimant’s share of responsibility” means the link between the fault and the damage, and also the amount of blame which attaches to the conduct. The more blameworthy the conduct the greater the share of responsibility.
Contributory negligence is very important for two reasons:
- The percentage by which you are found to contribute is the percentage deducted from your compensation. So if you are found 50 per cent to blame you lose 50 per cent of the compensation.
- An admission of liability does not mean contributory negligence cannot be argued against you. So just because a Defendant has admitted liability does not mean you will get 100 per cent of your compensation. Ask for an admission of liability and agreement that contributory negligence will not be argued against you.
The concept of “fair and equitable” comes into play to take account of a cyclist’s age, for example. In a 2003 case called Russell v Smith a 10-year-old cyclist was seen as a vulnerable road user, and compensation was reduced by 50 per cent rather than 75 per cent which would have been found against an older cyclist. A similar approach is likely for a young or inexperienced worker.
I started by explaining the contribution is to the damage, that is the injury, and not the happening of the event that caused the injury. Let’s go back again to the seat belt example. Not wearing a belt does not cause an accident, but it can contribute to the extent of the injury. In a famous 1976 case called Froom v Butcher the decision was:
- No contribution if failure to wear belt played no part in injury,
- contributed to some degree then 15 per cent contribution, and
- If belt would have reduced injury substantially then 25 per cent contribution.
This decision was made before seat belt wearing became law. It is often challenged but it stands firm.
The argument for contributory negligence must be made by the defendant. If Court proceedings have been started a Defendant must put forward its argument of contribution in its Defence.
Even if liability is admitted, or you have a technical judgment, contributory negligence can still be argued. It always confused me, but contributory negligence is an issue relevant to the amount of compensation, and not a defence to a finding of fault.
A few examples will help, and hopefully not confuse.
Trial judge found the claimant’s contributory negligence was 100 per cent responsible when he tripped over a blackboard, despite there being a statutory duty which applied to the employer. The claimant appealed and the decision was put right. As there was a clear breach of the employer’s duty, then some responsibility must be attached to the Defendant. The employer should not have allowed the obstruction in the first place, but the claimant was found 50 per cent to blame for not looking where he was going.
A claimant got out of a car in a bus lay by and crossed the road, and was hit by the defendant’s car. The first decision was that the driver was completely to blame for driving too fast, and using side lights rather than headlights in the dark. The case was appealed and it was confirmed the driver was to blame, but so was the pedestrian. Just as the driver had not seen the pedestrian, the pedestrian had not seen the car, and both were there to be seen. The driver had a greater duty as he was in charge of a potentially dangerous equipment (a car) so the reduction for contributory negligence was 25 per cent.
A cyclist was not found to have contributed when a driver who had just pulled into the side of the road opened his door.
A very lucky claimant (he survived) was caught in the gap between platform a train, and the guard did not see him, and the train pulled off. The claimant was drunk and behaving “idiotically” on the platform. The rail company was responsible for the guard’s failure to see the passenger, and the passenger was found to have contributed by 50 per cent.
I look separately at the complex issue of motorcycles filtering through traffic. That is an area of law where contributory negligence is often a very important argument.
Enough examples, and I hope you have got the picture. You will rarely find a decided case exactly like yours, so to advise various decided cases will be looked at and your case will be slotted between them.
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