Contributory Negligence October 2012

THE BLAME GAME
The incidence of contributory
negligence
OCTOBER 2012
BPP LAW SCHOOL OPINION PIECE – THE BLAME GAME – OCTOBER 2012
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‘THE BLAME GAME’ – the incidence of contributory
negligence
THE LAW
The law in this area is governed by the Law Reform (Contributory
Negligence) Act 1945 (‘the Act’), where it states as follows at
sn1(1):
‘Where any person suffers damage as a 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.’
Section 4 of the Act defines ‘fault’ as ‘negligence, breach of statutory duty or other act or
omission which gives rise to liability in tort or would, apart from this Act, give rise to the
defence of contributory negligence’.
In practice the section applies not to impose a duty, but to remove the bar that existed at
common law from any claim by the claimant when liability had been established on the part
of the defendant, but where the claimant had contributed to his own loss. This contribution
can be either by partly causing the incident in the first place (for example by driving too fast),
or where the conduct of the claimant has partly caused the loss, by making the damage
worse or more serious than it would have been otherwise (for example by not wearing a
seat-belt). In either case, causation of the damage suffered by the fault or ‘blameworthiness’
of the claimant, must be established. Contributory negligence is most accurately seen as a
question of causation rather than remoteness, so in an opinion it should always appear in the
liability, rather than the remedies section.
The Courts tend to take a common sense approach to this question. Lord Denning defined
contributory negligence as the following in Froom v. Butcher [1976] QB, 286:
‘...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...’
The Act gives the Court a wide discretion to determine the damages awarded in accordance
with what it considers to be ‘just and equitable’, by determining the percentage of
responsibility borne by the claimant for the incident and ensuing damage. Figures that
appear frequently are 20%, 25%, 40%. 5% is usually the lowest figure that is applied. The
burden of proving contributory negligence is on the defendant.
The application of the Act is trite law. As such there is no need to refer to the statute itself, in
an opinion, or to source the defence to statute in a draft. However, the defence of
contributory negligence must be specifically pleaded, if it is to be relied upon.
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WHEN WILL THE DEFENCE OF CONTRIBUTORY
NEGLIGENCE BE AVAILABLE?
It is available as a partial defence to all torts, except deceit,
conversion and assault and battery (for which see Co-operative
Group Ltd v. Pritchard [2011] EWCA Civ. 329). It is, therefore,
a (partial) defence to breach of statutory duty under legislation
such as Highways Act 1980, Occupiers Liability Act 1957 and
Consumer Protection Act 1987 (provided for in sn 6(4)).
As a defence to a breach of contract claim
Breach of contract is not ‘fault’ for the purposes of the Act, as it
does not give rise to liability in tort. Further, except where
liability arises for breach of an obligation to exercise reasonable
care and skill (or similar), liability for breach of contract is strict
and fault is irrelevant to it. However, whether or not contributory
negligence will operate as a defence in any given breach of
contract claim is not entirely straight-forward. In order to examine the law in this area, it is
helpful to consider it in relation to the three-fold categorisation of contractual obligations
suggested by Hobhouse J. in the case of Forsikringsaktieselskapet Vesta v.Butcher [1989]
AC 880 (HL). These were as follows:
i.
The defendant’s liability relies on a contractual provision which does not depend on
negligence on his part. Examples of this would include breach of an agreement
between seller and purchaser to deliver goods by a certain date, or breach of the
requirement that goods be fit for a particular purpose, pursuant to the Sale of Goods
Act 1979. No duty of care arises in tort in these examples, so contributory negligence
on the part of the claimant will not be available as a defence.
ii.
The defendant’s liability arises from a contractual obligation of care, which is
expressed in terms of a duty to take care (or similar), but does not correspond to a
tortious duty of care which would exist independently of the contract. The Law
Commission gives a number of examples of this situation in its report ‘Contributory
Negligence as a Defence in Contract Law’, Law Com. No. 219, 1993, one of which is
a company which engages an engineer to supply and fit a new transformer in its
factory. The company’s foreman and the engineer work together in checking the
circuitry and the foreman participates in the decision to go ahead with the installation.
In fact the main cable is unable to cope with the increased power requirements and
burns out leading to economic loss on the part of the company. The engineer was in
breach of his contractual duty to take reasonable care in carrying out the work, but
the foreman had also failed to take reasonable care in checking the circuitry. In the
report referred to, the Law Commission argues that the law in this area should be
reformed to alter the position, but currently contributory negligence would not be
relevant to this category of case.
iii.
The defendant’s liability in contract is the same as his liability in the tort of negligence
independently of the existence of any contract. For example, where work is carried
out by a garage on a car, co-extensive duties arise in contract to exercise reasonable
care and skill in carrying out the work pursuant to Supply of Goods and Services Act
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1982, and in tort to avoid personal injury or damage to other property arising from a
failure to carry out the work with reasonable care. As such where an accident takes
place which is caused by a breach of these duties, but contributed to, for example, by
the speed at which the claimant was travelling, contributory negligence will be
available to reduce the damages payable to the claimant.
When will co-extensive liability arise?
Scenario iii. is not as straight-forward as it could be in that the existence of
concurrent duties in tort and contract have been the subject of
consideration by the Courts over the years, in particular since the concept
of assumption of responsibility for economic loss was established in Hedley
Byrne v. Heller [1964] AC 465, and developed more recently in Henderson
v. Merrett Syndicates Ltd [1994] AC 145. In the very recent Court of Appeal
case of Robinson v. P.E Jones (Contractors) Ltd [2011] EWCA Civ 9 this
area was re-examined in detail, and it was held that liability in tort for
economic loss arising from a latent defect in a house by the builder, who
was also the vendor, did not arise in the absence of an assumption of
responsibility along the lines of Hedley Byrne (ibid). This is a developing
area, and the potential for co-extensive liability in contract and tort may be
diminishing. However, it remains settled law that a tortious duty to take
reasonable care to avoid personal injury or damage to other property is
owed by a builder or a vendor of goods to those who foreseeably own or
use them (see Jackson LJ in Robinson (ibid) at para 68). In relation to the
person who first acquires the building or chattel, the relationship between
the parties will primarily be governed by the contract they have entered
into, and contributory negligence will not operate to defeat any defence
arising under a contract. Further, the existence of concurrent duties in tort
and contract that arise in relation to professionals was clearly re-affirmed by
the Court of Appeal relatively recently in the case of UCB Bank Plc v.
Hepherd Winstanley & Pugh (a firm) [1999] The Times, 25 August 1999.
The same principle of co-extensive duties also extends to making
contributory negligence available as a defence in negligent
misrepresentation claims, where a cause of action in negligent
misstatement at common law would be available concurrently (Gran Gelato
Ltd v. Richcliff (Group) Ltd [1992] Ch 560).
Clearly, when drafting a defence, it is important to be able to determine which category of
case you are responding to: where there is a reasonably arguable case for co-extensive
liability in tort, contributory negligence should be pleaded.
RECENT DECISIONS
This is generally not a dynamic area of law, but recent cases of interest involving
contributory negligence include Anderson v. Newham College of Further Education [2002]
EWCA Civ 505 where the Court of Appeal held that it was unhelpful to refer to ‘100%
contributory negligence’ since in a case where the accident was entirely the fault of the
Claimant, it could not be said that the Defendant shared any responsibility for the damage.
In Badger v. Ministry of Defence [2006] 3 All ER 173, it was held that the defence could be
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triggered where the claimant continued to smoke cigarettes in the knowledge that this was
adverse to his health.
In Smith v. Finch [2009] EWHR 53 (QB) it was decided that failure of a cyclist to wear a
helmet could be subject to a finding of contributory negligence, if injuries would have been
reduced or prevented by wearing a helmet. However, in that case it was found that the
wearing of a helmet would have made no difference to the injuries sustained as the Claimant
hit the ground at a speed greater than 12 mph.
In Tolley v. Carr [2010] EWHC 2191 (QB), a motorist who was seriously injured when he
tried to move another motorist’s vehicle that had become stranded sideways and jutting out
into the fast lane after the driver lost control of it, was found not to have been contributorily
negligent in that his actions as an amateur rescuer “fell within the category of brave and
commendable, not the foolhardy and the unreasonable”.
In Hughes v. Williams [2012] EWHC 1078 (QB) contributory negligence principles were
applied where the relative contribution between joint tortfeasors had to be determined. A
mother was found 25 percent responsible for injuries to a child sustained in a car accident,
injuries which could have been avoided if she had placed the child in the child-seat with a
five-point harness, which was the correct seat for the child’s age and weight, rather than a
booster seat.
CONCLUSIONS
This in an area of law which is ubiquitous in civil claims, and which,
on the face of it, is often reduced to a question of where the Judge
feels true responsibility for the incident lies. However, the issue of
contributory negligence as a defence to breach of contract claims
brings it to the forefront of developments in the modern law of tort, in
particular in relation to co-extensive liability in tort and contract, and
the developing doctrine of assumption of responsibility for economic
loss.
BIBLIOGRAPHY
Clerk and Lindsell on Torts. 20th Ed, incl sup. Chapter 3, section 3.Sweet and Maxwell
Halsbury’s Laws of England. Vol 78, 2010. 5th Ed. Para 5(1). Butterworths
Lunney M. and Oliphant K., 2010. 4th Ed. Tort Law: Text and Materials , chapter 6, section III.
Oxford University Press
AUTHOR
Rebecca C. Bensted is an Associate Principal Lecturer at BPP Law School where she is
subject leader for Drafting on the Bar Professional Training Course. Her areas of interest
are opinion writing and drafting in a civil law context.
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