Contributory Negligence
Contributory negligence is a legal concept that holds individuals partially responsible for their own injuries or damages if they are found to have contributed to the situation through their own negligence. In cases where contributory negligence is proven, the individual's compensation or damages may be reduced in proportion to their level of fault. This principle is used in determining liability in legal disputes.
8 Key excerpts on "Contributory Negligence"
...5 Negligence – defences, remedies and policy issues Defences Contributory Negligence The doctrine Common sense suggests that, in some cases, the alleged victims of an accident have only themselves to blame, or they are at least partly responsible for their own loss. It might seem that this should already have been considered in relation to ‘intervening acts’ but the law does in fact make specific provision for such issues. Historically, if a victim could be shown to have contributed to or increased his own misfortune, no compensation would be due from a defendant who had actually been negligent despite the injustice that this might cause. There was no means whereby the courts could say that both parties were somewhat to blame and apportion the damages to reflect the appropriate degree of blameworthiness. The position was eventually remedied by Parliament which passed the Law Reform (Contributory Negligence) Act 1945. In s.1 the Act provides: 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 claimant’s share in the responsibility for the damage The practical effect of the Act is to enable judges to work out the total sum to which the claimant would be entitled were the defendant wholly to blame, and then to reduce that sum by a percentage which fairly reflects the degree of blame which attaches to the claimant. The Act uses the phrase ‘Contributory Negligence’ and it might be thought that the rules discussed in Chapter 2 would apply to set a standard by which the claimant’s actions might be judged...
eBook - ePub- Timon Hughes-Davies, Nathan Tamblyn(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...Claimants can also recover any financial costs caused by the personal injury, such as the loss of earnings and future care costs. Other remedies include court orders, or injunctions, to make the defendant do something or to prevent him or her from doing something. These are rarely used in negligence, but are commonly granted in other torts, such as trespass to land. As you read Understand the defences of Contributory Negligence, voluntary assumption of risk and illegality, and the circumstances in which they apply. Understand the remedies available in negligence, and the principles on which they are awarded. ____________ 9.2 Contributory Negligence Contributory Negligence can be pleaded by the defendant where the claimant’s own actions have contributed to the harm caused: where the claimant has failed to take reasonable care for his or her own well-being, and that lack of care is one of the factors that has caused the damage, the claimant is contributorily negligent. The claimant’s lack of care may contribute to the incident causing the damage, or it may make the damage more severe. Key learning point Contributory Negligence is a defence where the claimant’s failure to take reasonable care for his or her own safety: was one of the factors causing the incident; or did not cause the incident, but did contribute to the severity of the injury. Contributory Negligence was, until 1945, a complete defence. If the claimant was partially responsible for the injury that he or she suffered, then the defendant was not liable for causing the injury. This was particularly significant in industrial injuries, where an employer, by showing that the worker had not taken reasonable care for his or her own safety and had substantially contributed 1 to the harm caused, could completely avoid any obligation to compensate the worker. In Lewis v Denye, 2 for example, a worker suffered injuries to his hand when working on a circular saw...
eBook - ePub- Brendan Greene(Author)
- 2017(Publication Date)
- Routledge(Publisher)
...If the defendant raises a defence it is up to the defendant to establish that defence. This chapter will explain the general defences which are available in tort. These are in addition to the specific defences which are available for particular torts, for example, self-defence is available to a claim for battery. The law imposes time limits for people bringing claims in tort and the rules on this will also be explained in the section on limitation. Contributory Negligence The original common-law rule was that if the defendant could show that the claimant was partly to blame for the accident this was a complete defence and the defendant was not liable in negligence. The law was changed by the Law Reform (Contributory Negligence) Act 1945 (hereinafter LR(CN) Act 1945) s1(1) which provides that if a person suffers harm partly through their own fault and partly through the fault of another, the damages which that person can recover will be reduced to the extent the court thinks ‘just and equitable’ taking into account the claimant’s share in responsibility for the damage. ❖ Damage covers death, injury, property damage and economic loss. ❖ Contributory Negligence is only a partial defence which means that the defendant will still have to pay some damages. Common Pitfall Contributory Negligence only applies to the claimant and not to any other party involved in an accident, for example, the defendant or a third party. The defendant must prove: The claimant acted negligently It does not have to be shown that the claimant owes a duty of care in negligence to the defendant but simply that the claimant acted carelessly. The courts apply an objective standard to determine this. Children The law does not apply the same standard to children. Children are judged by an ordinary child of that age. In Yachuk v Oliver Blais & Co Ltd [1949] AC 386 the defendants sold petrol to the claimant who was nine years old...
eBook - ePubEconomic Analysis of Tort Law
The Negligence Determination
- Malabika Pal(Author)
- 2019(Publication Date)
- Routledge India(Publisher)
...1 Introduction Negligence is a central concept in tort law. It has been widely accepted that as a matter of doctrine, the expansion of liability in modern tort law took place within the framework of the concept of negligence. Broadly, “negligence” refers to the failure of an actor to take reasonable care to prevent harm caused by the actor’s conduct. 1 One close contender for being the fundamental tort principle is strict liability. It refers to liability imposed on an actor for harm the actor causes, whether or not the actor is negligent. 2 The concept of “fault” includes negligence and intentional wrongful infliction of harm on others. With respect to only unintentional torts, with which this study is concerned, the concept of fault becomes synonymous with negligence. According to the Restatement (Third) of Torts, the overarching and unifying normative principle of American tort law is fault. Although pockets of strict liability exist, unlike negligence, no overarching principle unifies them in an effective and coherent whole. 3 The rule of negligence with the defense of Contributory Negligence was the dominant rule of tort law not only in America but also in most common law jurisdictions since its inception into English law in the case of Butterfield v Forrester 4 in 1809 and its espousal in the leading American case of Brown v Kendall. 5 In the latter case, the defendant took up a stick to separate fighting dogs belonging to the plaintiff and the defendant and during the attempt accidently hit the plaintiff in the eye, injuring him severely...
eBook - ePub- Sanmeet Kaur Dua, Chris Turner(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
...The driver was unaware of the claimant and when another vehicle collided with the traxcavator the claimant was injured. It was however held that as he had exposed himself to the risk of injury from the traxcavator being run into from behind, that his damages should be reduced because of his Contributory Negligence. The court reduced his damages by 5 per cent. Lord Denning stated: JUDGMENT ‘A person is guilty of Contributory Negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.’ So for a successful claim a defendant must prove: ■ fault on the part of the claimant (that he failed to take reasonable care for his own safety); and ■ that negligence by the claimant (i.e. a failure to take reasonable care) was a cause of the damage suffered. Fault on the part of the claimant A claimant is under a duty to take care for himself. The appropriate standard of care is the same as that generally applied in negligence and is basically objective. A failure, by the claimant, to take care for his own safety may be a cause of the damage. For example, where the claimant is injured in an accident but both the claimant and defendant are equally to blame. Alternatively a claimant may be injured in an accident where he has placed himself in a dangerous position and therefore at risk of injury. CASE EXAMPLE Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 The claimant’s husband had ridden on the step of a dustcart and was well aware of the dangers involved in doing so. One of the defendant’s buses overtook the dustcart and the husband was killed in a collision...
eBook - ePub- Kenny Chin(Author)
- 2014(Publication Date)
- Routledge-Cavendish(Publisher)
...Such defences will be discussed in the sections regarding the relevant torts. Negligence Negligence in a general sense could mean carelessness causing personal injury, damage to property or financial losses. Contractual obligations have been well established. Students will note that most contract law cases date back to the 19th century. The duty of care in negligence is a relatively new concept. Since the classic case of Donoghue v Stevenson (1932), the courts recognise that citizens living amongst each other have a legal duty to take care when they go about their business and to avoid causing harm to others. There is a standard of care we should take and if we fall foul of this generally accepted standard (that is, breach of the duty) and cause damage to another then we are liable to pay compensation. This concept of duty of care is not very different from that of obligation arising from an agreement. Maybe we can say that the courts have ‘stolen’ the idea in contract to be used in tort. As mentioned in earlier sections, tort requires fault and harm. The fault elements in negligence are the duty of care and a breach of that duty. A successful claimant in negligence must therefore prove three things: (a) that the defendant owes him a duty of care; (b) that the defendant has breached that duty (that is, fallen foul of the standard of care); (c) that he has suffered damage caused by the breach and are not too remote. Duty of care Before the case of Donoghue v Stevenson (1932), it was difficult to claim compensation in a civil court without relying on a contract or on other established tort like nuisance and trespass. Mrs Donoghue’s friend bought her a bottle of ginger beer and after she drank it she discovered the remnants of a decomposing snail in the bottle. She was ill afterwards. Mrs Donoghue had not bought the beer, so she was not a party to the contract and, therefore, could not sue the manufacturer under contract. She sued for negligence...
eBook - ePub- Gary Slapper, David Kelly(Authors)
- 2009(Publication Date)
- Routledge-Cavendish(Publisher)
...Chapter 7 The tort of negligence 7.1 Introduction Negligence is a tort. It is, however, necessary to define what is meant by ‘a tort’ before considering the essentials of negligence. A tort is a wrongful act against an individual or body corporate or his, her or its property, which gives rise to a civil claim (usually for damages, although other remedies are available). Principally, liability is based on fault, although there are exceptions to this such as breach of statutory duty, vicarious liability and the tort established in Rylands v Fletcher (1865). The motive of the defendant in committing the tort is generally irrelevant. Negligence is the most important of all the torts, not only because an understanding of it is vital to the comprehension of other torts, such as employers’ and occupiers’ liability, but also because it is the one tort which is constantly developing in the light of social and economic change. This can be seen by reference to product liability, professional negligence and economic loss, all of which were originally only compensated if there was in existence a valid contract; in other words, ‘no contract, no claim’. After a period of continual development in the scope and application of this tort, there are signs that the courts are beginning to be more cautious. They are aware of the economic implications for the public and private sectors if they continue to extend the scope of actions in negligence. Whether this should be an issue for the courts is always open to debate, but if the courts are to be pragmatic, then they may have no choice but to be restrained in the current economic climate. A professional person, such as an auditor, accountant, lawyer or doctor, may find themself in a non-contractual relationship with another who will have little choice but to pursue a claim in negligence if they are injured as a result of professional malpractice...
eBook - ePub- Chris Monaghan(Author)
- 2015(Publication Date)
- Routledge(Publisher)
...However, you should note that where there is a latent defect, which is where the claimant does not know that the defendant has been negligent, then the time limit will be three years from where the claimant had knowledge that there was a defect (s.14A). Section 14A does not apply where the defect causes personal injury. Section 14B imposes an overriding time limit of fifteen years. Defences There are a number of defences that the defendant can rely upon. These include where the claimant has consented to the risk, was committing an illegal act or was contributorily negligent. Examples of Contributory Negligence include where the defendant’s negligent driving injured the claimant, but at the time of the accident the claimant was not wearing his seatbelt. In Froom v Butcher [1976] QB 286 the Court of Appeal held that as the injuries suffered would have been reduced or would not have occurred had a seatbelt be worn, the damages awarded should be reduced to reflect this. In Froom the damages were reduced by 20 per cent. NEGLIGENCE We will now look at the tort of negligence and explore the elements that must be established in order for the defendant to be liable. The tort of negligence requires a number of elements to be established in order for the defendant to be liable. First, there must be a duty of care owed by the defendant to the claimant, which the defendant has breached. Second, the defendant’s breach of that duty of care must cause the claimant’s loss. This is the causation requirement. Finally, the loss, which the claimant is attempting to recover, must not be too remote. Establishing a duty of care The key case that established a general duty of care was Donoghue v Stevenson [1932] AC 562. KEY CASE ANALYSIS: Donoghue v Stevenson [1932] AC 562 Background The claimant’s friend bought her an opaque bottle of ginger beer from a shop. She drank most of the ginger beer and found a decomposed snail at the bottom...
