NEGLIGENCE: DEFENCES
CONTRIBUTORY NEGLIGENCE
Statutory defence Law reform (contributory negligence) Act 1945
S1(1) where contributory negligence arises 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
s4 – definitions of fault and damage.
Objective test
Reasonable foreseeability of harm tooneself.
Badger v MOD
1. C was partly at fault in bringing about his own injury or harm
o Apply reasonable foreseeability Jones v Livox Quarries
o Meaning of ‘fault’
i. Under the wide definition of ‘fault’ in s 4 of that Act, that fault may be
negligence, but it may equally be some other tort such as breach of
statutory duty, battery or assault. Given that the definition encompasses an
‘act or omission which gives rise to liability in tort.
o C’s fault has encompassed both a lack of reasonable care on C’s
part, as weak as C’s intentional act
o Murphy v Culhane
o Proving Breach:
i. Did C’s conduct fall below the standard expeted of a person of ordinary
prudence? Badger v MOD
2. There must be a causal link between C’s CN and his injury
o Burden of proving that link rests with D King v Mdical services intl Ltd
3. The appointment of CN must take into account the relative blameworthiness of C’s and D’s
conduct, and the extent of their fault in causing C’s damage.
o Relative importance of the acts of C and D in causing C’s damage Stapley v Gypsum
Mines Ltd
o Not a comparison of like for like Jackson v Murray SC
o Comparing D’s breach of duty, with C’s lack of reasonable care for his own
interests.
4. C’s damages must be reduced by an amount which is just and equitable.
not a full defence. pitts v hunt. Law reform contrib neg act
C’s acts or omissions may amount to:
o An intervening act, brought about by C’s own carelessness Sabri-Tobriz v Lothian
Health Board
o An ability on C’s part to prove any breach on D’s part, given C’s acts or omissions
Venner v North East Essex
Partial Defence: Pitts v Hunt and Anderson v Newham college 100% attribution of negligence
to C is not correct.
o 100% contributory negligence sits very uneasily with the inherent trust and
confidence, or imbalance of power and bargaining position, which the relationship
between C and D may entail ( e.g., the police–prisoner relationship in Reeves v
Commr of Police).
Last opportunity rule (overruled by the 1945 act) Davies v Mann the last opportunity to
prevent C’s harm rested with D, then sole cause of C’s harm was D’s own fault.
CONTRIBUTORY NEGLIGENCE
Statutory defence Law reform (contributory negligence) Act 1945
S1(1) where contributory negligence arises 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
s4 – definitions of fault and damage.
Objective test
Reasonable foreseeability of harm tooneself.
Badger v MOD
1. C was partly at fault in bringing about his own injury or harm
o Apply reasonable foreseeability Jones v Livox Quarries
o Meaning of ‘fault’
i. Under the wide definition of ‘fault’ in s 4 of that Act, that fault may be
negligence, but it may equally be some other tort such as breach of
statutory duty, battery or assault. Given that the definition encompasses an
‘act or omission which gives rise to liability in tort.
o C’s fault has encompassed both a lack of reasonable care on C’s
part, as weak as C’s intentional act
o Murphy v Culhane
o Proving Breach:
i. Did C’s conduct fall below the standard expeted of a person of ordinary
prudence? Badger v MOD
2. There must be a causal link between C’s CN and his injury
o Burden of proving that link rests with D King v Mdical services intl Ltd
3. The appointment of CN must take into account the relative blameworthiness of C’s and D’s
conduct, and the extent of their fault in causing C’s damage.
o Relative importance of the acts of C and D in causing C’s damage Stapley v Gypsum
Mines Ltd
o Not a comparison of like for like Jackson v Murray SC
o Comparing D’s breach of duty, with C’s lack of reasonable care for his own
interests.
4. C’s damages must be reduced by an amount which is just and equitable.
not a full defence. pitts v hunt. Law reform contrib neg act
C’s acts or omissions may amount to:
o An intervening act, brought about by C’s own carelessness Sabri-Tobriz v Lothian
Health Board
o An ability on C’s part to prove any breach on D’s part, given C’s acts or omissions
Venner v North East Essex
Partial Defence: Pitts v Hunt and Anderson v Newham college 100% attribution of negligence
to C is not correct.
o 100% contributory negligence sits very uneasily with the inherent trust and
confidence, or imbalance of power and bargaining position, which the relationship
between C and D may entail ( e.g., the police–prisoner relationship in Reeves v
Commr of Police).
Last opportunity rule (overruled by the 1945 act) Davies v Mann the last opportunity to
prevent C’s harm rested with D, then sole cause of C’s harm was D’s own fault.
