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NEGLIGENCE: DEFENCES
In Nettleship v Weston [1971] 2 QB 691 Lord Denning commented:
JUDGMENT
‘Nothing will suffice short of an agreement to waive any claim for negligence. The claimant must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant.’
Where a defendant tries to rely on an exclusion clause if the damage is death or personal injury the defence of volenti may fail because of s2(1) Unfair Contract Terms Act 1977 which states:
SECTION
‘s2(1) A person cannot by reference to any contract term or to a notice given to persons gener- ally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.’
In the case of other damage s2(2) may apply. This states:
SECTION
‘s2(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.’
In cases where there is no agreement and the claimant comes upon an already existing risk then s2(3) may apply:
SECTION
‘s2(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.’
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5.3 CONTRIBUTORY NEGLIGENCE
In the nineteenth century this was particularly harsh on people sustaining injuries while at work. Such a rule was hardly fair where a claimant’s negligence was only slight in comparison to the defendant’s negligence.
Where, however, a defendant had the last opportunity to avoid the damage to the claimant then the claimant, despite his own contributory negligence, could recover from the defendant. This was known as the rule of last opportunity.
CASE EXAMPLE
Davies v Mann [1842] 10 M & W 546
The claimant fettered a donkey’s feet and the donkey was then negligently turned loose on the highway. The defendant drove his wagon and horses too fast and the donkey was killed in the ensuing collision. It was held that the defendant was liable. He could have avoided the accident if he had driven more slowly.
The last opportunity rule was extended to cases of ‘constructive’ last opportunity. If the defendant would have had the last opportunity but for his own negligence, he would then be in the same position as if they had actually had the last opportunity. The claim- ant again recovered in full. So there were arguments as to who, in fact, had had the last opportunity to avoid the damage. A claimant either recovered damages or could recover nothing at all. Apportionment of damages was not available at common law.
The Law Reform (Contributory Negligence) Act 1945 changed the nature of the rule so that damages could be altered according to the extent to which the claimant had con- tributed to his own harm. Damages will then be reduced proportionately accordingly.
CASE EXAMPLE
Sayers v Harlow Urban District Council [1958] 1 WLR 623
A lady became trapped in a public lavatory when through negligent maintenance the door lock became jammed. She then stood on the toilet roll holder in an effort to climb out of the cubicle.
She had to catch a bus so it was reasonable for her to try to get out in the circumstances, and so her act did not break the chain of causation. The council was liable but the damages were reduced by 25 per cent because of the careless manner in which she tried to get out.
The Act states at s1(1):
SECTION
‘s1(1) 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 damage 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 Act only applies where the damage was caused partly by the fault of the defendant and partly by the fault of the claimant.
Section 4 – ‘Damage’ includes ‘loss of life and personal injury’ and also, it seems, property damage. Also by s4:
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NEGLIGENCE: DEFENCES
SECTION
‘s4 “Fault” means “negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from this Act, give rise to the defence of contributory negligence”.’
The defence has become a common aspect of claims for injuries or damage sustained in road traffic accidents, so that damages can be reduced where a motor cycle passenger fails to take the precaution of wearing a crash helmet.
CASE EXAMPLE
O’Connell v Jackson [1972] 1 QB 270
Here it was acknowledged that the passenger received much greater injuries because of not wearing a crash helmet. So damages were reduced accordingly.
The defence is also commonly applied to passengers of motor cars who fail to wear seat belts as required by law.
CASE EXAMPLE
Froom v Butcher [1976] QB 286
Again the passenger here suffered greater injuries than would have been the case if he had been wearing a seat belt. The court reduced the damages as a result of this.
As Lord Denning explained in the Court of Appeal:
JUDGMENT
‘Contributory negligence is a man’s carelessness in looking after his own safety. He 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 hurt himself.’
A successful claim of contributory negligence depends on the defendant showing that the claimant has been negligent himself and is therefore partly to blame. This will mean that use of the defence, just as in negligence, depends on showing that the behaviour of the claimant meant that harm was foreseeable.
CASE EXAMPLE
Jones v Livox Quarries Ltd [1952] 2 QB 608
The claimant was employed in a quarry and, in defiance of his employer’s express instructions, rode on the rear tow bar of a ‘traxcavator’. The driver was unaware of the claimant and when another vehicle collided with the traxcavator the claimant was injured. The court reduced his damages by 5 per cent.
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5.3 CONTRIBUTORY NEGLIGENCE
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:
J fault on the part of the claimant (that he failed to take reasonable care for his own safety); and
J 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. Both drivers were held to be negligent by the court but there was contributory negligence by the husband because of the dangerous manner in which he had ridden on the dustcart.
This inevitably applies even though the defendant has been negligent because the claim- ant has increased the risk of injury or suffered a worse injury as a result.
CASE EXAMPLE
Jones v Livox Quarries Ltd [1952] 2 QB 608
A vehicle was driven negligently into the back of a traxcavator. The claimant was riding on the traxcavator’s tow bar. The claimant was injured but he had exposed himself to the risk of injury from the traxcavator being run into from behind. The court reduced his damages because of his contributory negligence.
A claimant might also place himself in a position that is not dangerous but which involves circumstances making it more likely that he will suffer harm. An example is where a claim- ant knows that a driver is drunk but nevertheless accepts a lift. Volenti will not apply but there will be contributory negligence as in Owens v Brimmell [1977] 2 WLR 943.
Also a claimant might place himself in a position which is not dangerous in itself but then fails to take precautions to avoid danger and in doing so increases the amount of harm suffered.
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NEGLIGENCE: DEFENCES
CASE EXAMPLE
Froom v Butcher [1976] QB 286
A car accident was caused by the defendant’s negligence but the claimant was not wearing a seat belt as a result of which he suffered worse injuries. The court applied an objective standard of care. A prudent person would have worn a seat belt, so damages were reduced by 20 per cent.
Contributory negligence can also be applied to children even though we would expect a child to be less careful than an adult. However, it would be very difficult to show that a very young child was guilty of contributory negligence.
CASE EXAMPLE
Gough v Thorne [1966] 1 WLR 1387
A lorry driver signalled to the claimant, who was 13 years old, to cross a road. She did so but did not stop to see if the road was clear. A car, being driven negligently, injured the claimant, who was held not to be guilty of contributory negligence. The outcome would have been different if she had been an adult (see Lord Denning’s explanation in the judgment).
In the case of people at work there is legislation for their general protection and it appears that the courts consider that the prevention or reduction of an employee’s damages due to contributory negligence should not undermine such protection.
The courts are reluctant in any case to find contributory negligence where an employee pursues an action for breach of statutory duty and possibly where there is an action for negligence.
In assessing contributory negligence the court will take into account the influence, upon an employee, of long hours and fatigue, repetition leading to a slackening of attention, noise and pre- occupation in a task sometimes at the expense of personal safety.
Nevertheless it is possible to succeed in claiming contributory negligence against employees.
CASE EXAMPLE
Jayes v IMI (Kynoch) Ltd [1985] ICR 155
The claimant, who was an experienced workman, lost the tip of a finger when his hand was pulled into a machine while he was cleaning it after removing the safety guard. He accepted that what he had done was very foolish and, because of the claimant’s failure to take care of his own safety, the court held that he was 100 per cent contributorily negligent.
Where a rescuer is negligent in carrying out a rescue, then damages may also be reduced on the basis of contributory negligence.
CASE EXAMPLE
Harrison v British Railways Board [1981] 3 All ER 679
The defendant tried to board a moving train. The claimant guard saw the defendant but gave an incorrect signal to the train driver, to accelerate rather than to stop. The claimant guard then tried to pull the defendant on to the train but both fell and the claimant was injured. The court held that where someone places himself in danger and it is foreseeable that someone
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5.3 CONTRIBUTORY NEGLIGENCE
else will attempt a rescue then the rescued person owes a duty of care to the rescuer. As a result of the wrong signal the claimant was contributorily negligent and the court reduced his damages by 20 per cent. However, the court did point out that it would be rare for contributory negligence to be used against a rescuer.
Sometimes the defendant’s negligence causes a claimant to be in imminent danger. If the claimant acts to avoid a reasonably perceived greater danger but makes a wrong deci- sion, then the court may well have sympathy.
CASE EXAMPLE
Jones v Boyce [1816] 1 Stark 492
The claimant thought that the defendant’s coach was going to crash and so he jumped out of it and in doing so broke his leg. As the coach did not crash he would have suffered no harm if he had remained where he was. However, the court accepted that he acted as a prudent and reasonable person would in the circumstances and so there was no contributory negligence.
Negligence by the claimant contributing to the damage
A claimant’s contributory negligence must be a legal and factual cause of the harm to the claimant although it does not have to be a cause of the accident itself. An example of this is not wearing a seatbelt which may well cause more damage but not have been the cause of the accident itself, as in Froom v Butcher [1976] QB 286.
Factual causation involves the ‘but for’ test – would the alleged consequence have occurred but for the negligent cause?
CASE EXAMPLE
Jones v Livox Quarries Ltd [1952] 2 QB 608
Here the claimant riding on the towbar was one of the causes of his injury. Factual causation was established and the damage was not too remote. The court rejected an argument that the claimant’s negligence had not caused damage to himself because the only foreseeable injury was by falling off the traxcavator, as opposed to being struck from behind.
It should also be remembered that proving a claimant has contributed to his harm is not the same as proving fault but is to do with his relative blameworthiness.
CASE EXAMPLE
Badger v Ministry of Defence [2005] EWHC 2941 (QB); [2005] All ER (D) 248 The claimant died of lung cancer at age 63. The defendant admitted that it had breached a statutory duty in exposing the claimant to asbestos dust but argued that damages should be reduced because if the claimant had not smoked cigarettes he would also have been unlikely to die of lung cancer at such a young age. The facts were complex since the claimant died of lung cancer, attributable both to exposure to asbestos and to smoking, but also had asbestosis, attrib- utable to the exposure and also had heart disease and emphysema, attributable in part at least to his smoking. The claimant should have been aware by 1971 when the first health warnings appeared on cigarette packets of the risk of smoking to his health. He was also warned by doctors in 1968, 1991, 1992 and 1995 and advised to give up smoking. The court was satisfied that the claimant contributed to his harm and reduced damages by 20 per cent.
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NEGLIGENCE: DEFENCES
Apportioning damages
In deciding what apportionment is ‘just and equitable’ the courts consider the extent to which the claimant’s and defendant’s respective negligence caused the damage to the claimant and will also determine where blame lies.
On causation the courts will generally adopt a commonsense approach in order to reach an apportionment.
CASE EXAMPLE
Stapley v Gypsum Mines Ltd [1953] AC 663
Two miners disobeyed instructions and continued to work when they should have dealt with an unsafe part of the roof which was a danger to them. One of the miners died when the roof col- lapsed and his widow sued the defendants for negligence. The House of Lords took a common- sense approach and held that both miners were causes of the harm. The claimant’s action succeeded but damages were reduced by 80 per cent because of the contributory negligence.
In the case of blameworthiness the test is objective and is measured against the standard of behaviour of the reasonable man.
In claims where there are multiple defendants and the claimant is not at fault then the loss may be recovered from any of the defendants. That defendant will then seek a con- tribution from the others under the Civil Liability (Contribution) Act 1978. However, if there was contributory negligence by the claimant then the court must consider:
J the amount by which the claimant’s damages should be reduced as a result of his own contributory negligence; but also
J the amount of contribution recoverable from each defendant.
CASE EXAMPLE
Fitzgerald v Lane and Patel [1988] 2 All ER 961
The claimant stepped out on to a busy road and was then struck by the first defendant’s vehicle. This impact pushed the claimant into the path of the second defendant’s vehicle. Both defendants were found to be negligent but there was also contributory negligence by the claimant. Initially all three parties were held equally to blame and damages were reduced by one- third. However, the House of Lords indicated that this was the wrong approach. They suggested that there was a direct comparison between the negligence of both defendants and the negligence in the claimant’s conduct. As a result damages were reduced by 50 per cent because the claimant’s blame was equal to that of the defendants.
ACTIVITY
Self- assessment questions
1. What would a defendant have to prove about a claimant for a defence of volenti to suc- ceed?
2. Why was the case of ICI v Shatwell decided how it was?
3. Is the test for volenti to succeed objective or subjective?
4. When will a claimant injured during a sporting event be deemed to have consented to the risk of injury?
5. What are the basic differences between the defences of volenti and contributory negligence?
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5.3 CONTRIBUTORY NEGLIGENCE
6. What is the effect of a successful plea of contributory negligence?
7. What is the claimant’s standard of care in relation to contributory negligence?
8. Why exactly did the claimant fail in Livox?
9. Why is the defence of contributory negligence so commonplace in road traffic accidents?
ACTIVITY
Quick quiz
In the following situations say which defence a defendant might seek to apply, if at all, and why, and comment on the chances of using the defence successfully.
1. Morris was injured when he went for a flight in a light aeroplane with Peter, who Morris knows does not have a pilot’s licence.
2. Lee was injured when he was elbowed in the face by Danny during a professional football match.
3. Manjit lost a hand while trying to free a blockage in the machine that he works on. His foreman had told him not to turn the machine off at any time.
4. Marion fell off a horse and was badly injured during a show jumping contest when the horse pulled up at a large fence.
5. Derek was injured when he was a passenger in his friend Ali’s open top sports car. Derek was thrown out of the car when Ali, who Derek knew was almost too drunk to stand up, skidded and collided with a lamp post.
YES
The defendant has a complete defence There is no liability to the claimant
The defendant has a partial defence – but is still liable Damages will be reduced by the proportion to which the claimant was responsible for his own loss
Neither defence is available YES
YES
OR
Did the claimant:
fail to take reasonable care for his own safety;
and
this negligence was a cause of the damage?
Did the claimant:
appreciate the actual risk of harm to himself; and
freely accept the risk of harm?
NO Was the claimant responsible in some way for his injuries?
Figure 5.1 The availability of defences of volenti non fit injuria and contributory negligence and contrasting their effects.