Contributory Negligence (OCR A-Level Law): Revision Notes
Contributory Negligence
Overview of defences in tort law
Defences in tort law are not assessed in isolation but must be applied alongside the relevant substantive tort (such as negligence, occupiers' liability, or nuisance). When you encounter a scenario in Paper 2, you will need to consider whether any defences are available to the defendant after establishing that a tort has been committed.
Defences are always considered after establishing that a tort has been committed. You must first prove the elements of the relevant tort before moving on to consider potential defences.
What is contributory negligence?
Contributory negligence is a partial defence available in tort law. This means that if the defence is successfully established, the court does not dismiss the claimant's claim entirely. Instead, the court can apportion loss between the claimant and defendant according to their respective degrees of fault.
Statutory basis
The defence is governed by the Law Reform (Contributory Negligence) Act 1945, which provides the legal framework for apportioning liability.
Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 states:
where a person suffers damage as a result partly of his own fault and partly the fault of another(s), a claim shall not be defeated by reason of the fault of the person suffering damage
This provision ensures that a claimant's own carelessness does not completely bar their claim, but it may reduce the damages they can recover.
Key case: Revill v Newbery (1996)
Case Example: Revill v Newbery (1996)
Facts: A homeowner shot a burglar who was attempting to break into his property. The burglar sued for damages relating to his injuries.
Held: The court found that the burglar was two-thirds responsible for his own injuries through contributory negligence. The homeowner was liable for the remaining one-third of the damages.
Significance: This case illustrates how contributory negligence allows the court to reach a fairer outcome by apportioning blame between parties, even in circumstances where the claimant was engaged in criminal activity.
Requirements of contributory negligence
The burden of proof rests on the defendant. The defendant must demonstrate two key elements to establish contributory negligence:
1. The claimant failed to take proper care for their own safety
The claimant must have failed to exercise reasonable care for their own safety in the circumstances. This is not the same as a breach of duty of care owed to others. The standard varies depending on all the circumstances of the case, including:
- The age of the claimant
- The nature of the danger
- The context in which the harm occurred
Case Example: Gough v Thorns (1966)
Facts: A lorry slowed down to allow children to cross a road. The defendant's car came through the gap and struck a child, causing serious injury.
Held: A very young child cannot be guilty of contributory negligence. An older child may be found contributorily negligent, but this depends on the specific circumstances, including the child's age and capacity to appreciate danger.
Significance: This case demonstrates that the court takes into account the claimant's age and capacity when assessing whether they failed to take proper care. Young children are not expected to exercise the same degree of caution as adults.
2. The failure to take care was a contributory cause of the damage suffered
The claimant's lack of care must have actually contributed to the damage they suffered. It does not need to be the sole cause, but it must be a causative factor in the harm.
Examples of contributory negligence
The courts have found contributory negligence in various situations, including:
Failure to wear safety equipment:
- Failure to wear a seat belt – Froom v Butcher (1976): The court established that failing to wear a seatbelt could reduce damages by 15-25%, depending on whether the injuries would have been prevented or merely reduced by wearing a seatbelt.
- Failure to wear a motorcycle helmet – O'Connell v Jackson (1971): A motorcyclist who failed to wear a helmet was found contributorily negligent.
- Failure to fasten a motorcycle helmet properly – Capps v Miller (1989): Even wearing a helmet is not sufficient if it is not properly secured.
Exposing oneself to danger:
- Inappropriate use of a vehicle – Davies v Swan Motor Co. (1949) and Jones v Livox Quarries (1952): The claimant put himself in danger by riding on the back of a vehicle in an unsafe manner.
- Suicide – Reeves v Commissioner of Police of the Metropolis (2000): Even where a defendant owed a duty to prevent suicide, the victim's act could amount to contributory negligence.
Failure to follow safety procedures:
- Failure to follow safety instructions – Stapley v Gypsum Mines (1953): An employee who failed to follow clear safety instructions at work was found contributorily negligent.
The courts will consider the reasonableness of the claimant's conduct in all the circumstances. What constitutes a failure to take proper care depends on factors such as the claimant's knowledge, experience, and ability to appreciate the risk.
Relationship between contributory negligence and volenti non fit injuria
There is considerable overlap between contributory negligence and volenti non fit injuria (consent), but they are distinct defences with different consequences:
| Contributory Negligence | Volenti Non Fit Injuria |
|---|---|
| Partial defence | Complete defence |
| Reduces damages awarded | Defeats the claim entirely |
| Loss is apportioned | Claimant receives nothing |
| Preferred by courts since 1945 | Applied rarely |
Since the Law Reform (Contributory Negligence) Act 1945 came into force, courts have been less willing to find that the defence of consent applies. Instead, they prefer to apportion loss between the parties using contributory negligence. This approach avoids the harsh "all or nothing" outcome of the consent defence and achieves a fairer, more proportionate result.
This preference reflects the principle of substantive justice – ensuring that outcomes are fair and reflect the actual degree of fault on each side, rather than applying rigid legal rules that may produce unjust results.
Exam guidance
When applying contributory negligence in a scenario question:
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Identify the defendant's argument: State that the defendant is raising contributory negligence as a partial defence.
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Explain the burden of proof: The defendant must prove both requirements.
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Apply the first requirement: Consider whether the claimant failed to take reasonable care for their own safety, taking into account all relevant circumstances (including age, the nature of the danger, etc.).
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Apply the second requirement: Identify whether the claimant's failure to take care actually contributed to their damage. Use relevant case law to support your analysis.
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Reach a conclusion: If both requirements are satisfied, explain that damages will be reduced in proportion to the claimant's degree of fault. You may suggest a possible percentage reduction based on similar cases, though the exact percentage is at the court's discretion.
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Consider alternative defences: Briefly consider whether volenti non fit injuria might apply, but explain why courts generally prefer contributory negligence as it produces a fairer outcome.
Remember: Contributory negligence reflects the principle of balancing conflicting interests and achieving substantive justice. It recognizes that both parties may be at fault and ensures that responsibility is shared fairly between them.
Remember!
Key Points to Remember:
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Contributory negligence is a partial defence governed by the Law Reform (Contributory Negligence) Act 1945, allowing courts to apportion loss between claimant and defendant.
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The burden of proof is on the defendant, who must show that: (1) the claimant failed to take proper care for their own safety, and (2) this failure contributed to the damage suffered.
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The standard varies with circumstances, particularly the age of the claimant (very young children cannot be contributorily negligent – Gough v Thorns).
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Common examples include failing to wear seatbelts or helmets, exposing oneself to danger through inappropriate use of vehicles, and failing to follow safety instructions.
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Courts prefer contributory negligence over volenti (consent) since 1945, as it allows for fair apportionment of blame rather than an "all or nothing" outcome, achieving substantive justice.