What is “contributory negligence”?

When bringing a personal injury claim it is the responsibility of the injured party, the claimant, to establish the claim and prove that the injury suffered was caused by the defendant’s negligence.

Contributory negligence is a partial defence argued by defendants’ insurers when addressing the issue of who is to blame for the accident. Insurers may argue that unreasonable claimant conduct occurred at the time of the accident and this contributed to the loss or damage. The is an allegation of contributory negligence.

The Law Reform (Contributory Negligence) Act 1945 sets out the rules surrounding the application of contributory negligence in tort. Below is an abstract from section 1 of this Act:

1. Apportionment of liability in case of contributory negligence.

(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 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 for the damage:

Provided that—

(a) this subsection shall not operate to defeat any defence arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

If contributory negligence is conceded between the parties, it is agreed on a percentage basis. For example, if both parties were equally to blame, the insurer’s liability will be 50% of the sum which the claimant would have received if the accident had been wholly the defendant’s fault. A claimant or defendant may bear a higher or lower percentage responsibility depending on the circumstances of the accident and who was more at fault.

Here are a few case examples of where contributory negligence has been argued on my cases:

Pedestrian road traffic collision: My client was struck by a car when crossing a main road. He was crossing next to a junction and was not using a pedestrian crossing. The insurers argued that my client chose to cross at an unsafe place (a pedestrian crossing was available further down the highway) and therefore my client contributed to the accident. Liability was settled on a 70/30 basis in my client’s favour.

Cyclist road traffic collision: My client was a cyclist who was struck by a van at 8 o’clock in the evening in August. My client as not wearing a helmet or safety clothing. He suffered significant injuries as a result of the accident including dental injuries. The van’s insurers alleged contributory negligence as my client was not correct wearing safety equipment. My client’s case settled for £35,000. Before accepting this offer our barrister had advised that should the case proceed to trial there was a risk that our client could be found to be as high as 40% responsible for the accident and this was taken into account when agreeing the settlement.

Trip/slip: My client tripped over a raised paving slab on a residential street. The paving slab was raised to an alarming height and there is no dispute that it was a risk to public safety. After initially denying liability, upon request and inspection of their records, the local council eventually conceded liability but have alleged 30% contributory negligence, arguing that my client knew the road well and ought to have seen the defect, because it was so obvious, and stepped over it. This case is ongoing and I anticipate that further negotiations will ensue before we can settle the liability dispute.