Contributory negligence and its practical application in the courts - a research review
Intriguingly for me as a personal injury practitioner, the Faculty of Law at the University of Oxford conducted relevant contributory negligence research in an academic context within the last five years, and specifically reviewed the application of contributory negligence in court decisions at all tiers. It was apparently inspired by the greater ease of access due to the now common availability of online judgments.
Readers may not be aware that contributory negligence in civil law is applied quite commonly in English civil law cases, such as personal injury cases. It is not unusual for a practitioner to encounter allegations of contributory negligence and have to explain its applications to lay clients.
Contributory negligence in civil law cases
Briefly, in common law, contributory negligence was used as a complete defence. However, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence operates as a partial defence whereby the courts can apportion loss between the parties. Broadly speaking, the burden of proof is on the defendant to demonstrate that:
1. A claimant failed to take proper care in the circumstances for their own safety
2. The failure to take care was a contributory cause of the damage suffered.
Practitioners will usually consult case law and then apply these to the facts of the case and make a judgement call based on experience and their research.
For instance, Froom v Butcher [1976] QB 286 looks at the failure to wear a seatbelt and how this may result in contributory negligence on the claimant’s part. Any split liability agreement or judgment will then result in a corresponding deduction from a claimant’s damages. A liability split of 80/20 in the claimant’s favour would therefore end up with a 20% deduction to the agreed or ordered damages.
The research papers
The authors treated the research as a long-term project and investigated how frequently claims are “found guilty” of contributory negligence and by what amount.
An analysis of an initial tranche of 368 cases decided from 2000 to 2014 was publicised as a paper in the Modern Law Review: (2016) 79 MLR 575, 21 February 2017. A second research paper was then also publicised on 1 January, 2018.
In their second paper, the authors reviewed all Court of Appeal decisions involving contributory negligence decided between 2000 and 2015 which were available online. Of the 112 claims in the reviewed data set, 42% concerned appeals from the High Court and 58% appeals from a county court.
They state that the vast majority of the claims were for personal injury (92%), with 7% being for property damage and 1% involving pure economic loss.
I found the research fascinating in understanding whether there are any underlying patterns or trends at work.
The second paper ultimately came to the conclusion that “appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50%.”
More specifically, the following findings were made:
- 59% of the appeals were brought by the defendants.
- In only 38% of cases were the verdicts overturned.
- The Court of Appeal was more likely find the need to revise the existence of any contributory negligence, than grant an appeal on the split/apportionment although 56% of the appeals were about the split/apportionment. It was stated that “the chances of a successful appeal on the discount amount were similar for claimants and defendants, but claimants were almost twice as likely as defendants to succeed in appeals” on the existence of contributory negligence.
- Reductions in favour of the claimant in terms of split/apportionment tended to be bigger than increases, when changes to those splits/apportionments were made, which the authors state is suggestive of the Court of Appeal tending to look more favourably upon claimants in contributory negligence cases. They state that “the Court of Appeal was much more likely to interfere with respect to the discount where the claimant was a child, and much more likely to interfere in relation to the existence of contributory negligence where the claimant was female”.
- As mentioned above, they specifically stated that “the average and most popular discount to sums awarded following an appeal was 50%”.
Follow on research and publications
The university also went on to state that “at least two further papers are planned, examining the operation of the contributory negligence doctrine in two particular contexts of special importance, namely road traffic accident cases and employment cases. Data collection for those papers is near completion.”
The ultimate aim, however, was stated to be the publishing of two books – one of which to be a slimline volume for use for practitioners. These were indeed published by OUP and the first volume was titled ‘Contributory Negligence in the Twenty-First Century’ and offered a comprehensive empirical survey of the contributory negligence doctrine. The second book was titled ‘The Reduction of Damages for Contributory Negligence’ and explores how the courts discount damages for contributory negligence in certain frequently recurring situations and with a practical focus.
Much food for thought for us personal injury practitioners, and our risk assessments.
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