An in-depth summarised and collated notes regarding the three main defences in negligence which includes case summaries with annotations to important quotes and flow-charts for easy answering of PQ's.
It's where claimants negligence contributes to the harm the claimant suffers.
There is contributory negligence where the damage results partly from the
claimant’s own fault and partly from the fault of another person (the
defendant/tortfeasor)
Pre-1945 a total defence (eradicating the liability)
From 1945 on, a partial defence (reducing the damages)
It is applicable to negligence and most other torts (but not intentional torts: assault/battery,
deceit, etc)
Requirements of the defence
It has two requirements:
o Negligence [in defences ~ refers to the failure to take reasonable precautions] for one’s own
safety/interests…
o … which contributes (causally) to the damage
The negligence element
* A failure to take reasonable care to protect one’s own interests (typically, one’s safety)
~ Negligence towards oneself rather than others.
, * No breach of a duty of care (owed to others) is required - We don’t speak here of a duty
of care owed by the claimant to themselves ~ because a duty of care is owed to other
people
* An objective standard of care applies: ‘reasonable person’: the claimant must take care
for their own safety as a reasonable person would do in the same circumstances.
This is the mirror image of the objective standard of care applied to the defendant
* Just like assessing a defendant standard of care, you take into account the claimant’s age,
at least if they are a child.
Varies according to child’s age: Gough v Thorne (1966)
You don't take into account more subjective things like their degree of
coordination or their skill and experience in the activity they were engaged in.
The contributory element
The claimant’s negligence for their own safety must contribute to the damage [must be a
contributory cause of their injury, loss or damage]:
Contributary negligence is thus where both the defendant’s negligence (their breach of
their duty of care) and the claimant’s negligence (their failure to take reasonable care for
their own safety) are contributory causes of the claimant’s harm.
* But need not contribute to the accident causing the damage [harm] (e.g. failure to use a
seatbelt, helmet, PPE) – only contributory cause of their harm [injury, loss or damage]
* A question of causation ~ signifies a causal relationship
* Causes distinguished from “mere circumstances”
See Jones v Livox Quarries (1952)
Apportionment under the 1945 Act [effect of the defence when successfully raised]
Contributory negligence is unusual in that it provides partial defence
à It doesn’t completely eradicate the defendants liability ~ not at least since 1945
à Previously at common law, contributory negligence had been a complete defence.
Meaning that the injured claimant got no damages at all.
à In that year – 1945 – parliament passed the Law Reform (Contributory Negligence)
Act, which provides a great example of a statute that does exactly what it says.
It was an Act to reform the law on contributory negligence.
Under the statute, the claimant’s get at least something for their injury but
the damages are reduced. ~ that’s why partial defence. [more formally,
this process is called ‘apportionment’]
, Law Reform
(Contributory Section 1 of the 1945 Act is in fact entitled ‘apportionment of
Negligence) Act liability in case of contributory negligence’
1. Damage the result partly of the Section 1(1): Where any person suffers damage
claimant’s fault and partly the
tortfeasor’s as the result partly of his own fault and partly of
the fault of any other person or persons, a claim
2. Claim shall not be defeated in respect of that damage shall not be defeated
3. The damages shall be reduced by reason of the fault of the person suffering the
damage, but the damages recoverable in respect
(On what basis?) 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
Sec 1 introduced a new regime for the apportionment of liability in cases where the D
successfully pleads contributory negligence.
~ On what basis are the apportionment reduced?
“a claim in respect of that damage shall not be defeated by reason of the fault of the
person suffering the damage”
– it means that contributory negligence is no longer a complete defence. The claim is not
defeated.
“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”
– answers the question of ‘so what happens instead?’
– “just and equitable” indicate the court’s exercising a discretion
– “claimant’s share in the responsibility for the damage” indicated that this is a question
of balance. The court has to weigh the claimants share in the responsibility for the
damage with the defendants, who was more culpable, who played a more larger role in
bringing it about
~ The mechanics of apportionment
Blameworthiness
causative potency
“the relative importance of his acts in causing the damage apart from his
blameworthiness” (Stapley v Gypsum Mines Ltd, 1953, per Lord Reid)
Some illustrative cases
Froom v Butcher (1976): failure to wear seatbelt
The claimant was driving down the country lane when the defendant coming in the other
direction negligently pulled out from behind traffic in order to overtake. It was a head on
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