What is ‘contributory negligence’?
In a negligence claim for personal injury compensation, it will be a partial defence to the claim to show that the claimant contributed to their injuries. This is known as ‘contributory negligence’.
Where the claimant can prove that the defendant was negligence, but the defendant can prove contributory negligence on the part of the claimant – the defendant’s liability for compensation will be reduced accordingly. The principle of contributory negligence also applies to other claims, including breach of contract.
When might there be contributory negligence?
Anyone seeking damages for personal injury – or other torts – could be found to have contributed to the damage through their own actions. Where the claimant is a child, the nature of the danger involved and their ability to appreciate danger will be factors taken into account.
Examples of contributory negligence include:
- A pedestrian is hit by a driver who was driving negligently by exceeding the speed limit. The pedestrian takes a risk crossing the road, and is found to be contributory negligent
- A cyclist not wearing a helmet suffers serious head injuries when colliding with a driver ignoring a red light may be found contributory negligent
- A passenger is injured in a road traffic accident caused by a driver who negligently failed to slow down to avoid a road hazard. Contributory negligence is found on the part of the passenger who was not wearing a seatbelt
- Last year, a cyclist was found 30% contributory negligent for cycling up the side of a stationary articulated HGV which had straddled two lanes preparing to turn left. She would not have seen the lorry indicating because she was undertaking. The evidence was that she would have been visible to the lorry driver for around 3 seconds before he moved off, but there was a duty on him to check his mirrors again after moving off, which he had not done
How is contributory negligence proved?
If the defendant raises contributory negligence, it is for them to prove, on the balance of probabilities, that the claimant was negligent. This means the defendant must show that the claimant’s actions (or omission) was a cause of the harm, or caused more serious harm, in addition to the harm suffered as a result of the defendant’s negligence. There is no requirement that the claimant owes a duty to the defendant for there to be contributory negligence. Causation is the key issue.
There must also be ‘reasonable foreseeability’. This means that the claimant ought to have reasonably foreseen that if he acted (or did not act) as a reasonable person would in those circumstances, they might sustain injuries. For example, a reasonable cyclist would foresee that there was a risk of injury if they did not wear a helmet.
How are damages assessed?
In circumstances where a claimant is found to be partially at fault, the compensation will be reduced proportionately. If the court rules on the issue of damages, it will decide what is just and equitable having regard to the claimant’s contributory negligence, and the defendant’s negligence – and apportion damages accordingly. So, for instance, if the claimant is found to be 25% responsible for their injuries, a final award for compensation will be reduced by 25%.
As for the costs issue, a partially successful claimant may still be entitled to recover the full extent of their costs. However, this is not a clear-cut issue and legal advice will be necessary.
What is the situation in cases where the claimant dies?
Where an individual has died following an incident for which both they and a third party were responsible, their personal representatives can make a compensation claim on behalf of the estate against that third party.
Any damages recovered in a negligence claim, and any damages recovered under the Fatal Accidents Act 1976 will be reduced proportionately.
Can a finding of contributory negligence be appealed?
There is a limited right to appeal the trial judge’s ruling, however, permission will be given only if there is a genuine prospect of succeeding, or there are other compelling grounds for an appeal.
A recent appeal was upheld by the Court of Appeal: a claimant was injured climbing a ladder when his hand become trapped whilst cleaning machinery. He was found to be 10% at fault. The appeal judges said that in this case, the judge was wrong in placing an exclusive reliance on the fact that the claimant had acknowledged, with hindsight, the risk of moving his hand close to the machinery. He was therefore able to secure the full amount of damages within deduction.