Why do we not simply treat questions of contributory negligence as if they were questions of causation? Contributory negligence is a failure by the claimant to take reasonable care for his (or her)
own safety that contributes to the damage about which he complains1. Such a definition
intuitively gives rise to the impression that there is more to the given concept than a causal
conceptualisation – whose primary relevance could be seen to lie in the aspect of the
definition relating to the contribution to the damage. This is so because the definition also
refers to an aspect of “reasonable care”, something which would more aptly be assessed in
comparison to the “duty of care” aspect as it exists in ordinary negligence cases. It is thus
submitted that the emphasis that one places on either of these two limbs of the definition will
be highly relevant to assessing whether one sees the doctrine of contributory negligence as
being a causal one. Moreover, it is also relevant to identify to what extent the latter, the
reasonable care, limb deviates from the ordinary approach to establishing a duty of care on
behalf of the defendant in negligence cases, as if there are, for instance, overwhelming
similarities this may lead one to the conclusion that a separate existence of the doctrine is not
warranted (at least in that context) and that it consequently ought to be dealt with under the
head of causation instead. The doctrine of contributory negligence can also be seen to have a
third stage in terms of the courts’ role in apportioning the damages. Identifying the
significance of causation in this context also is essential to establishing whether questions of
contributory negligence should simply be treated as questions of causation.
First it is perhaps useful to briefly examine the state of the law before the Law Reform
(Contributory Negligence) Act 1945 and draw comparisons to the modern law. The position
used to be that any contributory negligence on behalf of the claimant would be a total bar to
recovery for the defendant’s negligence. Quite apart from the obvious injustice to which this
led, it seems to override causal principles as outlined in Hotson2 for instance that if the
defendant can be shown to have caused certain damage on a balance of probabilities he/she
will be found liable for that damage. Conversely the introduction of the rules of last
1
Murphy, J and Witting, C (2012) Street on Torts (Thirteenth Edition) Oxford University Press (p.
188).
2
Hotson v East Berkshire Area Health Authority [1987] AC 750
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opportunity/constructive last opportunity seem to represent unwarranted, overly complex
attempts to mitigate the harshness of the former rule, and seem to have had little to do with a
principled analysis of causation. In contrast the position today is rather different, contributory
negligence only, arguably, being a total bar to recovery in the context of it constituting 100%.
This seems much more in tune with causal doctrines, as if the claimant is 100% contributorily
negligent then the claimants act is the sole cause of, or the novus actus interveniens in
relation to, the damage - either preventing the establishment of a causal connection, or
breaking it. Consequently, as the doctrine of contributory negligence is applied in modern
times there seems to be a greater conformity with causal principles, thus making for a
stronger case for merging the former into the latter and dealing with it under this head.
However, one should also consider Winfield and Jolowicz’s statement that “In practice the
court will not attempt a minute assessment of responsibility and even a finding of
contributory negligence of 10 per cent is apparently unusual”3. Thus in practice less than
100% of contributory negligence is in fact needed to offer a defendant a full defence and if
the courts’ whole assessment were to be based on causation this approach would surely be
anomalous. I will therefore consider further the reasoning involved in how the courts go
about apportioning damages below.
Next, it is necessary to assess the reasonable care limb which means that the claimant must
not fail to exercise reasonable care which would add to his injuries4. This is clearly to be
distinguished from the normal duty of care requirement in the sense that the claimant does
not owe, say the defendant, a duty of care. However, the objective assessment of what is
reasonable, for example, is similar – taking into account for instance only such features as
age and disability in determining what standard is reasonable. However, here it must be noted
that Stevens has convincingly argued that the courts have proved more lenient in determining
what factors are relevant to the reasonable claimant than the reasonable defendant. He
considers the two cases of Condon v Condon and Leahy v Beaumont as evidence for this. In
the former case the claimants phobia of being trapped in a car after wearing a seatbelt was to
be attributed to the reasonable person, in the latter it was held that “Every driver, even a…
driver suffering from fear of spiders, bees and moths in the car, .. must drive in as good a
manner as a driver of skill, experience and care”5. Such an analysis seems sound especially as
it seems to be, so Stevens argues, driven by the underlying policy considerations that the
3
Winfield, W.V.H. and Jolowicz, J.A. (2010) Tort (Eighteenth Edition) Thomas Reuters (p.379).
Giliker, P and Beckwith, S (2011) Tort (Fourth Edition) Thomas Reuters (p. 486).
5
Leahy v Beaumont cited in Murphy, J and Witting, C (2012) Street on Torts (Thirteenth Edition)
Oxford University Press (p. 192).
4
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defendant usually does not bear the cost of his negligence (many relevant areas where
liability may arise being covered by insurance). In contrast a reduction in terms of
contributory negligence is a loss a claimant will usually have to bear – having no way to
protect himself/insure against such a reduction. The notion, therefore, that the sufferer of
damage caused, at least in part, by another’s negligence should bear such a burden intuitively
appears unjust. Similarly, special policy considerations underlie the courts’ leniency in cases
where claimants are faced with an emergency created by negligence of the defendant or
where rescuers ‘voluntarily’ get involved to deal with such emergencies. The factors outlined
above thus indicate that there is a justified distinction between simply a reasonable care
standard, as it exists in negligence for instance, and the reasonable care standard in
contributory negligence which has evolved, and has been adapted, to suit the specific needs
of that concept. This militates against subordinating questions of contributory negligence to a
broader causation doctrine.
The area of contributory negligence which is most suited to be dealt with under wider
principles of causation is no doubt the requirement that the claimants conduct contributed to
his damage (note, this is a contribution to damage, not to the accident6). It has already been
commented above that the claimant’s fault may be found to be so great that he must bear the
whole loss (even below the 100% contributory negligence mark which would indicate the
claimant to be the sole cause). Winfield and Jolowicz usefully flesh out this argument further
through reference to a number cases of claimants (who were experienced workmen),
eclipsing the liability of their employers for breaches of strict statutory duty, through their
failure to carry out clear safety precautions in which they had been properly instructed7. Thus
one could perhaps say that such an approach could be governed under a special causation
doctrine (as has previously been created in cases such as Fairchild8), but it would be
anomalous and one should be careful before incorporating more exceptions under the broad
head of causation than absolutely necessary. Even in relation to the claimants contribution to
his damage a self-contained doctrine of contributory negligence must therefore be seen as
preferable.
Lastly, I will briefly look further into the apportionment of loss under contributory
negligence, in other words the courts’ role in reducing the claimants damage as they think
6
Winfield, W.V.H. and Jolowicz, J.A. (2010) Tort (Eighteenth Edition) Thomas Reuters (p.368).
Winfield, W.V.H. and Jolowicz, J.A. (2010) Tort (Eighteenth Edition) Thomas Reuters (p.370).
8
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22
7
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‘just and equitable having regard to the claimant’s share in responsibility for the damage’9 as
here there are two primary considerations involved: causation and blameworthiness. The
interrelated nature of these requirements is aptly illustrated (in this instance in the case of a
motoring accident) in the statement of the case of Froom v Butcher that “[w]henever there is
an accident, the negligent driver must bear by far the greater share of responsibility. It was his
negligence which caused the accident. It also was a prime cause of the whole of the damage.
But insofar as the damage might have been avoided or lessened by wearing a seat belt, the
injured person must bear some share”10. It is thus submitted that it would not be desirable to
bring this aspect of contributory negligence under the doctrines of causation as the causal
aspect, is but one of two similarly important factors which must be assessed. These factors
are interrelated and should both be considered contemporaneously in the independent context
of contributory negligence. Support for such an approach can also be found in how the court
in the Froom v Butcher dealt with the apportionment of damages for cases of contributory
negligence for not wearing a seatbelt. The fact that Lord Denning outlined specific guidelines
of when not wearing a seatbelt should lead to a loss of 25%, 15% or none at all, indicates that
dealing with such factors as questions of contributory negligence in and of itself has certain
practical benefits, which would potentially be lost if dealt with as questions under broader
concept of causation.
In conclusion therefore, it has been argued that the concept of contributory negligence has
central aspects, and is based on certain considerations, which do not relate to causation and
which warrant its existence as a separate doctrine. Particular emphasis should be placed, for
instance, on the distinct reasonable care requirement imposed on the claimant and, while
causation plays a central role in ascertaining the claimants contribution to the damage or in
the apportionment of loss, this does not warrant treating questions of contributory negligence
as questions of causation.
9
Law Reform (Contributory Negligence) Act 1945
Froom v Butcher [1976] QB 286
10
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