Negligence - DEFENCES: Contributory Negligence Flashcards
Burden and Standard of Proof
D has the burden of proving any defence against the claimant.
The standard of proof is the balance of probabilities.
Defences may be FULL and DEFEAT the claimant’s claim in its entirety (volenti non fit injuria & illegality)
OR
PARTIAL and operate to REDUCE the claimant’s claim (contributory negligence)
Contributory Negligence
The Law Reform (Contributory Negligence) Act 1945 s.1(1) –> (cite this)
Partial defence
Looks at C’s conduct and the effect on the harm that C has sustained
Accident or Damage? (Froom v Butcher)
If C’s fault contributed to the damage that they have sustained –> then DAMAGES CAN BE REDUCED IN PROPORTION TO THE CLAIMANT’S FAULT, USING THE DEFENCE OF CONTRIBUTORY NEGLIGENCE, e.g. C’s damages are reduced by 40%
FROOM v BUTCHER 1976:
‘The question is not what was the cause of the accident. It is rather what was the cause of the damage.’
Contributory Negligence - FAULT
‘Fault means negligence’ –> Reform (Contributory Negligence) Act 1945, s.4
Nance v British Columbia Electric Railway:
> ‘the injured party did not in his own interest take reasonable care of himself’
Fault is essentially the failure to take reasonable care for the claimant’s own safety
Fault requires foreseeability
Jones v Livox Quarries Ltd:
Contributory negligence DOES DEPEND ON FORESEEABILITY…contributory negligence requires the foreseeability of harm to oneself.’
Fault is judged objectively
C. should take ‘reasonable’ care for his own safety ⇨objective standard ⇨ C. is normally judged by the standard of a reasonable person
Froom v Butcher 1976:
> ‘In determinign responsibility…It requires everyone to exercise all such precautions as a man of ordinary prudence would observe.’
Juding the fault of children
THE TEST:
What care would a reasonable child of the same age as the claimant have taken for their own safety?
Gough v Thorne –> ‘A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances.
A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then … only if blame should be attached to him or her.’
Contributory Negligence - Examples of Fault (Seatbelts & Helmets)
Froom v Butcher:
> ‘Everyone [in the front seats of cars] should wear a seat belt. Not only on long trips, but also on short ones.
Stanton v Collinson:
> ‘…there should be no reduction where the injury would not have been reduced “to a considerable extent” by the seat belt.’
Failure to wear a helmet is treated in a similar way to failing to wear a seat belt:
> O’Connell v Jackson (1972) CA - where injuries would have been less severe – 15% reduction
Contributory Negligence - Examples of Fault (Intoxication)
A claimant who is affected by alcohol/drugs will still be assessed against the standard of reasonable care expected of an objective reasonable person.
Getting into a car with a drunken driver:
> Owens v Brimmell (1977) CA - Even if C. is too drunk himself to know whether D. is drunk (20% reduction to C damages)
Barrett v Ministry of Defence:
> Barett getting intoxicated and becoming in a vulnerable position where he ended up choking and died (his widows damages were reduced)
Contributory Negligence - Examples of Fault (Emergency Action)
The court will assess the claimant’s behaviour in an emergency against the objective standard of the reasonable person in the emergency circumstances, who has to act in the heat of the moment
Jones v Boyce (1816) (leaping from a coach running out of control)
Contributory Negligence - Examples of Fault (Rescuers, Tolley v Carr)
C. is judged against a lower standard of care for their own safety where C. is intervening to rescue someone who is injured or imperilled as a result of D.’s conduct.
Tolley v Carr 2010:
> ‘the law is slow and cautious in finding those who imperil themselves to save persons from risks caused by the negligence of others.’
> the greater the risk to others that he is trying to avert, the greater the imperilment to his safety the law will accept as reasonable.’
Contributory Negligence - Examples of Fault (Self-harm and Suicide)
A claimant who self-harms or takes their own life may be regarded as failing to take reasonable care for their own safety.
It depends on the degree to which the claimant has mental capacity to make decisions
Reeves v Metropolitan Police Commissioner (1999) HL –> Reeves took his own life in police custody due to police not providing mental health services –> (50% reduction in damages to his widow)
Contributory Negligence - Examples of Fault (Lifestyle Choices)
A claimant may engage in lifestyle choices which result in harm. Those lifestyle choices may be regarded as potentially amounting to a failure to take reasonable care for their own safety.
St. George v Home Office:
> Heroin addict in prison and he advised officers of him potentially suffering fits because of his withdrawal and asked to be put in lower bunks HOWEVER officers placed him in a top bunk. Fell out. Sustained head injury from fit. —-> (his damages were reduced by 15% because of his fault for becoming an addict)
Causative Potency
For contributory negligence to apply, the Claimant’s fault must contribute to the damage.
Causative Potency - Sole or contributory cause?
If the Claimant’s fault is regarded as:
1 - the sole cause, the claim will fail on causation: his own act may SO HIGHLY UNREASONABLE AS TO AMOUNT TO A NOVUS ACTUS INTERVENIENS: McKew v Holland & Hannen & Cubitts
2 - a contributory cause of the harm, courts are sometimes more persuaded to find fault which falls short of a novus actus interveniens, to allow for a finding of contributory negligence (and a percentage reduction of liability) rather than an ‘all or nothing’ break in the chain of causation.
Just and equitable to reduce damages
The courts consider relative blameworthiness.
Stapley v Gypsum Mines Ltd (1953):
> ‘…what is just and equitable must have regard to the blameworthiness of each party, but the claimant’s share in the responsibility for the damage cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness.’
Percentage-based reduction in damages:
> Seatbelts/helmets - 25% reduction if injury would have been completely avoided AND 15% if injury would have been less severe OR 0% if no difference made to the injury
Need to consider what is just and equitable as a reduction for C
