Contributory Negligence
Claimant Part Fault
Where a claimant is partly at fault, the damages he is entitled to recover is reduced in proportion to his relative fault. This issue arises most commonly in the context of negligence. Contributory negligence may arise as between defendants or as between the claimant and one or more defendants. The position is regulated by the Civil Liability Act.
Prior to the Civil Liability Act, a claimant who was at fault could be denied compensation entirely. At common law, if the claimant was at fault, he could not recover, notwithstanding that another person did not use ordinary care and caused loss or damage to him. Due to the unfair effect of the principle in many cases, further principles evolved, which sought to mitigate its harshness.
By the middle of the 19th century, the principle of last clear chance or opportunity arose. Even though both parties may be at fault in relation to the damage, if the defendant had the last chance to avoid the accident, but did not do so, due to his breach of duty or negligence, then he was held liable. The principle could apply, even if the defendant was unaware that there was a last opportunity or of the circumstances constituting the last opportunity.
Reform
The Civil Liability Act replaced the earlier common law principle. Contributory negligence is no longer a defence in itself. Instead, it is a basis upon which damages may be apportioned or reduced. The Act abolished the last opportunity rule. See the sections in relation to the Civil Liability Act provisions in respect of concurrent and independent wrongdoers.
In broad terms, a claimant may recover the whole of his loss or damage from any concurrent wrongdoer. A claimant may recover a proportionate part of his loss or damage from successive wrongdoers. Concurrent wrongdoers are left seek apportionment as between each other. The concurrent wrongdoer takes the risk he may have to satisfy the judgment in full circumstances where his fellow concurrent wrongdoers do not have the means to make a contribution. He may carry with the full burden of the judgment, irrespective of his degree of fault in the matter.
The Civil Liability Act provides that where in an action brought by a person for a wrong committed by another, it is proved that the damage suffered was caused partly by the negligence or want of care of the claimant or one or more for a person for whose acts he is responsible (so-called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the wrong are reduced by such amount as the court thinks just and equitable, having regard to the degrees of fault of the claimant and defendant. If having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, liability is apportioned equally.
The legislation does not affect any defence arising under a contract or the defence that the claimant before the act complained of, agreed to waive his legal rights in respect of it. Where a contract or legislation provides for the limitation of liability, the amount of damages awarded to the claimant is not to exceed the maximum applicable thereunder.
The Civil Liability provisions on contribution apply principally to negligence but also applies to civil liability generally including intentional wrongdoing. It applies to breaches of contract. In a contractual context, the reference to wrongdoer refers to the party in breach of contract, irrespective of fault.
Contributory Negligence
Contributory negligence is the absence of reasonable care in relation to ones’ own personal safety, property or economic interests. It is not a negligence in the legal sense, in that a person does not owe a duty of care to himself.
Contributory negligence has wider application than in the context the civil wrong of negligence. In some circumstances, a person’s contributory negligence may itself be a breach of duty to a third-party. In this case, he is liable in negligence to that third party.
Contributory negligence applies broadly. It is not limited to conduct at the moment of the act or incident, the subject to the claim. If a person places himself in danger such as by intoxication or undertaking a hazardous activity, this may be deemed contributory negligence.
Contributory negligence may apply to intentional wrongdoings so that a person who provokes an assault may be liable for contributory negligence.
The contributory negligence must be relevant to the particular breach of duty and risk concerned. It must relate to the risk which manifested itself in the accident. The defendant cannot invoke potential and hypothetical negligence on the part of the claimant as a defence.
A person who is negligent in a way that is unconnected with the act or incident that has caused loss or damage is not contributorily negligent in relation to it. However, it suffices that the negligence relates to a particular type of danger which in fact occurred, even if it is not specific to the exact manner or mode in which it occurred.
If the defendant’s negligence places on the claimant, the burden of having to react in short time to extricate himself from a sudden emergency for which he is not responsible, the claimant is not deemed contributorily negligent. This may occur, where In the so-called agony of the moment, the claimant aggravated the position.
Where a certain emergency arises whether due to either party’s fault or neither party’s fault, the general principles of negligence will apply. A person may avoid liability for negligence in circumstances where he acts in the agony of a moment, although it appears in hindsight that another choice or calmer reflection would have would have avoided or lessened the adverse consequences.
If a person unreasonably that believes he is in an emergency with no objective basis for so doing, no allowance will be made. If he contributed to the emergency or caused it, general negligence and contributory negligence principles apply and the agony of the moment principle does not apply.
Contributory Negligence and Mitigation
In accordance with general principles of damages, a failure to mitigate loss or damage may itself be contributory negligence under the Civil Liability Act. This is the case, notwithstanding that it occurs after the event or incident which was the principal cause of the loss concerned. Contributory negligence which increases the extent of the loss or damage incurred may overlap the requirement to mitigate loss.
The fact that contributory negligence may overlap the principle of mitigation of damages does not mean that it has swallowed it up entirely. There are many instances of failure to mitigate which are in no sense contributory negligence in relation to the matter concerned. The defendant must act reasonably in mitigating his loss and damages. The court will assess whether the defendant’s behaviour has been reasonable. If the claimant unreasonably fails to do something (e.g. undergo a particular treatment etc.) which may reduce his loss, damages will be assessed as if he had mitigated that loss.
In 1977, the wearing of motorcycle helmets and the use of seat belts was made compulsory under Road Traffic Act regulations. The failure to wear a seatbelt or helmet generally leads to a reduction in damages on the basis of contributory negligence. It must be shown that the failure to wear the seat belt contributed to the injury. In most cases, it will be presumed that wearing a seatbelt would have reduced injury.
Basis of Apportionment
The Civil Liability Act requires the assessment of damages to be made having regard to the relative degrees of fault on the part of the claimant and defendant. Fault in this context refers to blameworthiness and not to the role of the parties in causing the incident or accident. Regard is had to the moral blameworthiness of the respective causative contributions of the parties.
The concept of relative degrees of fault fits best in the context of negligence and contributory negligence. It is more difficult to apply where one party’s actions are intentional and the other’s is not. Equally, it is more problematic, where one party’s liability is based on the breach of a strict duty which is not fault based.
In such cases, the court may decide that it is just and equitable to apportion the whole of the liability to the person whose actions were intentional relative to the other’s negligence or to the person whose liability is strict, relative to the other party’s negligence. However, the courts are reluctant to radically reduce or eliminate one party’s liability where the law clearly makes that person liable, for the breach of duty concerned. The court may take the view that the breach of duty is blameworthy, in itself. In appropriate cases, however, the courts may impose full the loss on one party or the other.
The standards of blameworthiness may evolve over time in some contexts, in accordance with the general mores of society. At one stage, the failure to wear of a seatbelt was more readily excused, than is now the case. Similarly, accompanying a driver known to be drunk might formerly have resulted in a relatively modest reduction in damages, but now commonly results in a significant reduction in damages, reflecting society’s reduced toleration of intoxicated driving.
Identification and Representatives
In considering contributory negligence, persons are identified with those for which they are vicariously or otherwise liable in this case. The contributory negligence of the person concerned is imputed to the person who is vicariously liable. This is commonly an employer.
The Civil Liability Act goes further and provides that where the claimant is responsible for the acts of another, he is identified with that other for other purpose. If, for example an employee suffers personal injury and his employer’s property is damaged in an incident for which the employee was 10 percent at fault, the reduction will apply to recovery for the employee’s personal injury and the employer’s recovery in respect of loss or damage to the property (for example, a vehicle).
Where an action is brought for the recovery for the benefit of dependents of the deceased, the personal representative or dependents taking the claim are deemed responsible for the actions of the deceased. Generally, a personal representative is identified with the deceased for the purpose of the responsibility for his acts in legal actions where they are in issue.
Where a claimant sues as an assignee whether automatically by operation of law or otherwise, he is deemed responsible for the acts of that assignor. This accords with common sense and follows from the general principle that the assignee should not be in a better position than the assignor, in relation to the subject matter of the assignment.
Concurrent Wrongdoers
Where the claimant’s damage was caused by concurrent wrongdoers and before the occurrence of the damage the liability of one of such wrongdoers was limited by contract with the claimant to a sum less than that wrongdoer’s just share of liability between himself and the other wrongdoer as determined apart from such contract, the claimant shall be deemed to be responsible for the acts of that wrongdoer.
Where the claimant’s damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the claimant, while the liability of the other wrongdoers remains, the claimant shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged.
Where the claimant’s damage was caused by concurrent wrongdoers and the claimant’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the claimant shall be deemed to be responsible for the acts of such wrongdoer;
Where the claimant’s damage was caused by concurrent wrongdoers and, in an action against one of such wrongdoers, judgment is given for the defendant and the claimant then brings an action against another of such wrongdoers, the claimant shall be deemed to be responsible for the acts of the successful defendant if the defendant now sued can prove that he and the successful defendant were in fact concurrent wrongdoers;
A claimant who is responsible for the acts of another in the above cases, is responsible also for the acts of any other persons for whose acts the other person would be responsible above, if he was a claimant in the action.
Consent / Voluntary Assumption of Risk
At common law, there was a defence of voluntary assumption of risk, in a claim in tort. It was based on the principle that the claimant had consented to the risk or action concerned. The principles were applied in relation to industrial employment settings, where the courts deemed employee to have agreed to take workplace risks. The defence could cause hardship and the courts adopted principles which sought to mitigate its effect. The defence of voluntary assumption of risk in itself has been abolished by the Civil Liability Act. Issues of contributory negligence may arise in many such cases.
The Civil Liability Act provides that contributory negligence is not to operate to defeat any defence arising from contract or the defence that the claimant before the action agreed to waive his legal rights, whether or not for value. Subject to this, the provisions in relation to contributory negligence apply notwithstanding that the defendant might otherwise have the defence of voluntary assumption of risk available.
A defendant may limit or exclude his liability by a contract with the claimant. However, the courts interpret such contracts strictly against the interest of the defendant. In consumer contracts, such term may be invalidated as unfair.
An agreement which limits or excludes liability need not necessarily be contractual. There must be, at the least, communication between the parties in advance from which it can be inferred reasonably that the claimant has assured the defendant that he will waive his right of action in respect of negligence.
The communication may be verbalised in or it may be otherwise expressed or implied. A notice in a particular place may or may not be enough, depending on the circumstances. It must pre-exist the circumstances or conduct which caused the loss. It must emanate from the defendant.
It has been held by the Supreme Court that a soldier who enlists in the Army, does not agreed to accept all risks. He may accept risks inherent in the possibility of being involved in a conflict. This does not waive the risk of unnecessarily exposure to injury by negligence.
A defendant will be liable where he creates or induces a situation which causes another to take action, for example by way of rescue. The defendant owes a duty to a rescuer in respect of the predictable consequence of placing himself at risk.
“Good Samaritan” Relief
A so-called “good Samaritan” is a person who without expectation of payment or other reward provides assistance, advice or care to another person in an emergency. The Civil Liability (Miscellaneous Provisions) Act 2011 seeks to make so-called good Samaritans, immune from liability for negligence. The immunity applies, even where the emergency is caused by the good Samaritan. It does not apply to gross negligence or to acts done in bad faith. This special immunity do not cover medical, professional medical personnel.
Good Samaritans are immune from liability in an emergency where they provide assistance, advice or care to persons who are or appear to be in serious and imminent danger of being injured or further injured, persons who are injured or apparently injured or persons who are suffering or apparently suffering from an illness.
Separate provisions apply to a ‘volunteer’, which is defined as a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other reward. A volunteer is not personally liable for negligence for act done when carrying out voluntary works, save where the act is done by him in bad faith or was grossly negligent or the volunteer knew or ought to have known, that the act was outside the scope of the voluntary work authorised by the voluntary organisation concerned or was contrary to its instructions.
In determining whether a volunteer organisation owe the duty of care, the courts is to consider whether it would be just and reasonable to find the organisation owes such a duty, having regard to the social utility of the activities concerned.
Illegality
Under the Civil Liability Act, it is not a defence in an action merely to show that the claimant is in breach of the civil or criminal law. However, this does not abolish the general principle that illegality may be a defence. Mere technical illegality will not be enough.
In some cases, the courts may deny recovery where the parties are engaged in more serios forms of illegality If parties are engaged in a criminal activity or conspiracy, the courts deny a claim by one against another arising out of an accident or incident, in the course of their criminal conduct.
Cases of less serious illegality or wrongful conduct are more difficult. In some cases, the unlawfulness will be such that there is no duty of care. It may amount to a higher level of contributory negligence.
As a general principle, there is no liability where arising out of an illegal action or enterprise. The court will consider in the circumstances whether it is in accordance with fairness, justice, and reasonableness to impose a duty. In many cases, no duty of care will be owed to a person undertaking an unlawful enterprise. In other cases, the claim may fail on the grounds of the modern more limited “voluntary assumption of risk” defence under the Civil Liability Act.