If the plaintiff fails to meet the standard of care required

If the plaintiff fails to meet the standard of care required for his own protection, he is also a

contributory cause to his own injury

Keep calm and focus the presentation

As has been pointed out earlier, contributory negligence was in essence an absolute defence to defeat the plaintiff's claim.

The courts, disturbed by the harshness of this rule, found an escape route to ground liability on the defendant by inquiring as to what the `effective cause', `real cause' or `substantial cause' of the accident was. This led to the development of the `last opportunity rule', which saved the plaintiff's day. (REFER TO CASE DAVIES V MANN.)

The courts held that the imprudent lending policies of the time would amount to contributory negligence, whether the proceedings were brought in contract or tort.

(See Bristol & West Building Society v Fancy & Jackson [1997] 4 All ER 582

Platform Home Loans Ltd v Oyston Shipways Ltd [1999] 2 WLR 518 – valuers.)

CONTRIBUTORY NEGLIGENCE

Defendant has duty of care towards plaintiff. This duty of care is breach by the defendant. The breach of duty has resulted some injuries or damage to plaintiff.

Those are the elements of negligence. As the negligence is done on behalf of defendant, it gives the plaintiff the right of remedy such as compensation.

In Drinkwater & Anor v Kimber, the plaintiff, a passenger in a motor van driven by her husband, was involved in a collision with a motor car driven by the defendant.

The plaintiff claimed damages for personal injuries and her husband claimed for loss and expenses.

By his defence and counterclaim, the defendant denied negligence, alleged that the matters complained of were caused solely by the negligence of the plaintiff's husband, or, in the alternative, that the plaintiff's husband was guilty of contributory negligence.

The defendant then went on to plead: if, contrary to the defendant's contention, the defendant is held to have been guilty of negligence contributing towards the happening of the matter complained of, so that he is adjudged to pay damages to the plaintiff, the defendant will contend that he had suffered damages within the meaning of s 1 of the Law Reform (Contributory Negligence) Act 1945, caused partly by his own fault and partly by the fault of the plaintiff's husband

However, the plaintiff only can claim the remedies towards the defendant after he proves that he has done reasonable care towards his safety and property.

If not, the defendant may use this as his defence to mitigate the amount of compensation payable to the plaintiff or the plaintiff’s claim towards him will fail, if the plaintiff is found to have wholly contributed to his damage.

Devlin J found the plaintiff one-third and the defendant two-thirds to blame for the collision, and assessed the plaintiff's damages at £405.

The defendant contended that the plaintiff's husband, as a joint tortfeasor being in part responsible, should be ordered to contribute £135, being one-third of the damages of £405. Devlin J held that the defendant could not recover on his counterclaim.

Where there is concurrent liability and the claim in contract is co-extensive with an independent tort claim, the defence of contributory negligence will apply in a contract action. (Barclays Bank plc v Fairclough Building Ltd [1995] 1 All ER 289.)

This means that the claimant cannot avoid the defence by bringing proceedings in contract which could have been brought in negligence.

This issue has been clarified by the litigation which arose from the rise and fall of the property market in the late 1980s. Numerous actions were brought against valuers and solicitors who had acted on the transactions.

The defendant was convicted of the manslaughter of the plaintiff’s wife. A civil action for trespass to the person followed.

The defendant raised contributory negligence as a defence (among others), on the ground that he had been provoked.

The Court of Appeal considered that the defendant’s response was out of all proportion to the alleged provocation, but on appropriate facts contributory negligence could be relied on as a defence to battery.

The scope of the 1945 act

This is what we called contributory negligence. Contributory negligence means that the plaintiff has failed to use the reasonable care towards his safety and his property, which then gives rise to his damage or injury.

There is no contributory negligence under common law. The negligence itself under common law is already rigid inter alia; that there had to be a judgment either for the plaintiff or for the defendant.

The Act will apply only where a person has suffered damage. Damage is defined by section 4 as including loss of life and personal injury. Property damage would appear to be included as this was the case before the Act was passed.

The act will only apply only where the damage was caused partly by the fault of the defendant and partly by the fault of the claimant. In the absence of fault, the court therefore has no power under the Act to apportion damages.

Fault is defined by S4 negligence, breach of statutory duty or other act or omission which give rise to liability in tort or would, apart from the Act give rise to the defence of contributory negligence.

It must be remembered that fault is referred to in two contexts, the fault of the defendant and the fault of the claimant.

A narrow view would be that if contributory negligence was not a defence at common law, then it will not be available under the Act.

This would mean that the defence was not available for torts such as deceit and intentional trespass to the person. This view was applied by the House of Lords in a deceit case. (Standard Chartered Bank v Pakistan National Shipping Corp

A classic example is Butterfield v Forrester,

in which case the defendant had placed a pole across the highway. The plaintiff, riding as fast as his horse would go, collided with the pole and was injured. The plaintiff's action failed. Lord Ellenborough CJ, in upholding the judgment, said:

CURRENT LAW:

The other view is that where the conduct of the claimant would have given rise to the defense at common law they were suing for negligence, the defense is applicable.

What is clear is that the Act does not apply to conversion or intentional torts against goods by virtue of the Torts (Interference with Goods) Act 1977 s11

The Act does not apply to actions in deceit. It is unclear whether the Act applies to trespass to the person, but apparently it does.

“A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right. One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”

This common law position was altered by the English Law Reform (Contributory Negligence) Act 1945, sec.1 of which provided that where;

“any person suffers damage as the result of his own fault and partly of the fault of any 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 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 of the damage.”

Fault of the defendant means negligence, breach of statutory duty or other act or omission which give rises to liability in tort.

This causes no problem, as the defendant can be said to be at fault whenever they commit a tort. The fault of the claimant means an act or omission which would apart from the act, give rise to the defence of contributory negligence. This causes problems of interpretation.