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Contributory negligence


At common law, contributory negligence acted 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. This makes it a more attractive option to the courts than other defences which can operate harshly and absolve a defendant of liability no matter how much at fault they may be. Consequently the defences of volenti non fit injuria and ex turpi causa are perhaps of less significance. Contributory negligence will often succeed where other defences fail. For example Revill v Newbery [1996] 2 WLR 239 Case summary, Nettleship v Weston [1971] 3 WLR 370    Case summary.
S.1(1) Law Reform (Contributory Negligence) Act 1945 provides that 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. Thus contributory negligence operates as a partial defence. At first instance in Pitts v Hunt [1990] 3 All ER 344 (Case summary) the court used this section to find that the Claimant was 100% contributory negligent. However, this was held to be illogical and inconsistent with the wording of the Act which requires the damage to be partly the fault of both parties.
Requirements of contributory negligence
The burden of proof is on the defendant to demonstrate:
1. The 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
1. The claimant failed to take proper care in the circumstances for their own safety
Lack of proper care for own safety differs from the standard for breach of duty:
Davies v Swan Motor co [1949] 2 KB 291   Case summary
The standard is variable and all circumstances are taken into account
Children, particularly young children are unlikely to be found to have failed to take proper care:
2. The failure to take care was a contributory cause of the damage suffered
Note that the failure to take care must be a contributory cause to the damage suffered as oppose to the causing the incident that resulted in damage. This point was made clear in Capps v Miller [1989] 1 WLR 839 Case summary.
Common examples of what constitutes failing to take care for own safety include:
Failure to wear a seat belt:
Failure to wear or fasten a crash helmet on a motorcycle:
O'Connell v Jackson [1971] 3 WLR 463
Capps v Miller [1989] 1 WLR 839    Case summary.
Exposing oneself to danger:
Davies v Swan Motor co [1949] 2 KB 291 Case summary 
Contributory negligence and joint tortfeasors
Contributory negligence can operate in three party situations. The courts must, however, always assess the degree to which the Claimant contributed to his own injury before assessing the responsibility of the tortfeasors:
Fitzgerald v Lane [1989] 1 AC 328    Case summary

Contributory negligence and other defences
Contributory negligence may be raised and often is raised in conjunction with other defences. There is also an overlap with causation issues particularly where the defence raises the act of the claimant as novus actus interveniens. The courts are generally more amenable to a finding of contributory negligence than other defences as it allows them to apportion loss between the parties to reach a more just result rather than the all or nothing approach of other defences.
The courts are reluctant to make a finding of ex turpi causa preferring the defence of contributory negligence:




Similarly the courts would prefer to make a finding of contributory negligence than volenti non fit injuria:

Stapley v Gypsum Mines [1953] AC 663 Case summary

The courts are less likely to find that the act of the claimant breaks the chain of causation, prefering a finding of contributory negligence:
Sayers v Harlow UDC [1958] 1 WLR 623    Case summary