Defence of Contributory Negligence Flashcards
What is contributory negligence?
The most commonly raised and successful defence to the tort of negligence
Is it a complete defence?
No, but it allows D to limit their liability
Where is the basis for CN found?
s 1 Law Reform (Contributory Negligence) Act 1945
What does s 1 Law Reform (Contributory Negligence) Act 1945 say?
“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 plaintiff’s share in the responsibility for the damage. “
Case that established test for CN?
Jones v Livox [1952]
What was the test established in Jones v Livox [1952]?
For a finding of contributory negligence the defendant must establish that:
(a) The claimant failed to take reasonable steps for their own safety; and
(b) This failure contributed to the claimant’s damage.
Examples of C failing to take reasonable steps for their own safety?
Davies v Swan Motor Co [1949] the claimant had been standing on the steps of a lorry (rather than riding inside it) when it collided with a bus – he was contributorily negligent because he impudently placed himself in a dangerous position.
Sayers v Harlow UDC [1958] C got stuck in the D’s toilet cubicle. She unsuccessfully attempted to escape through the gap between the door and ceiling and on her way down stood on the toilet roll holder. As a result, she fell and was injured. Her damages were reduced by 25 per cent as she failed to take reasonable care by attempting to rely on the unstable toilet roll holder.
When will special considerations be made for C failing to take reasonable steps for their own safety?
Allowances have been made if C was in an emergency or a difficult dilemma - sometimes called the dilemma principle.
When C is a child
Generally towards rescuers as well
Where was the ‘dilemma principle’ established?
Dorning v PR of Paul Rigby [2007]
Confirming Jones v Boyce [1816] - run away horse pulling carriage, caused by D’s negligence, C jumped from the roof to avoid a worse injury and broke his leg. Held it was not contributory as he was attempting to avoid further danger caused by C
Case for C’s failure only having to add to the damage, not cause the accident?
Froom v Butcher [1979]
- Failure to wear a seatbelt is CN, as it would have reduced or prevented the injury
How does CN reduce liability?
The court has a discretion on how great a reduction to make. The claimant’s degree of culpability will generally be expressed in percentage terms, taking into account the respective culpability of the defendant and claimant. An equivalent percentage of the damages will then be deducted from the claimant’s award.
What does a court take into account when deciding the reduction in damages due to CN?
The court looks at what is just and equitable in all the circumstances of the case and will be likely to order a greater reduction if the claimant has contributed to the accident as well as his injury.
Froom v Butcher [1976], Lord Denning suggested a reduction of 25 % if the wearing of the seat belt would have avoided injury, 15 % if it would have reduced it and 0% if it would have made no difference. However, these figures are not cast in stone and vary depending on all the circumstances.
Why are the courts more willing to apply the defence of CN than that of consent?
Consent is full defence, which would free D of all liability, whereas CN is partial and continues to recognise some liability on D’s part
Which defence was applied in Reeves v CP for the Metropolis [2000]
CN, as consent could not apply where the police were in breach of duty to prevent a known suicide risk from killing themselves.
However, the act of suicide was deliberate = CN and damages reduced by 50%
