Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

The defendant admits fault but then alleges you are also at fault: what does that mean?

Contributory negligence

If you have suffered personal injury or are the bereaved loved one following a fatal incident then you may pursue a claim against the party(s) who you hold at fault, the “defendant”

If the defendant, admits responsibility for primarily causing the incident but then alleges you should bear some of that responsibility it is called “contributory negligence”. An allegation which they are entitled to make if they believe that whilst they were the primary cause of the incident your action nevertheless contributed toward the occurrence of the event and the loss caused.

The Act of Parliament permitting the defendant to make an allegation of contributory negligence is:

Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945

“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 of the damage“.

 

What does this mean? 

If the defendant proves that you were contributory negligent then the amount of money you are awarded is reduced by the percentage you are found to be at fault.

It also could mean that if the defendant sustained a loss they could seek from you recovery of their loss up to the same percentage which is called a counterclaim. 

As an example, if you have sustained an amputation then your claim may be worth, say, £1,500,000 but if you are found to share responsibility with the defendant for causing the incident that is placed at 50% then you may only receive £750,000 being one half of the total value. 

Any reduction in compensation for a seriously injured person will have a profound impact on their outcome, for example they may not have sufficient monies left to buy all of the prosthetics they need or to buy the specially adapted house that may be required later on in life.  

It follows that the defendant insurer’s have a keen financial interest in every case to consider whether they can successfully argue for contributory negligence because it can, if proven, reduce the amount of money they pay. It also follows that every solicitor acting for an injured person must diligently explore and assess the merit of any such allegation with a view to fending off the same. 

I touch on below some examples of contributory negligence;

Seatbelts

In road traffic collisions if an occupant was not wearing a seat belt then the defendant insurer’s may argue that had they worn a seat belt then the degree of injury sustained would have been less severe and as such the amount of compensation to be paid should be less. 

The issue was extensively explored in the Judgment of Lord Denning, MR, in Froom -v- Butcher [1976] that set down guidelines summarised as follows:-

  1. No reduction for failure to wear a seatbelt if the evidence is that it made no difference to the severity of the injury sustained;

  2. 25% reduction if the evidence is shown that injury would altogether have been avoided had a seatbelt been worn; or

  3. 15% reduction if the evidence is that wearing a seatbelt would have caused less severe injuries but nonetheless injury would have been caused.

I previously acted for a man who was a passenger in an HGV that left the road and collided with a tree causing him serious lower limb injury. The passenger was extracted from the wreckage by the fire brigade. The passenger seatbelt clasp was found to be undone which the defendant through expert evidence argued that in a collision there would have been some stress markers on the seatbelt if worn that were not present and as such they alleged it had not been worn.  However, the passenger had sustained lower leg injury as opposed to upper body injuries therefore we argued that whether or not a seatbelt had been worn he would still have suffered the same level of injury.  The allegation of contributory negligence was withdrawn.

Pedestrians

As a general position on case law if a child is below 10 years of age it is unlikely that they will be found to be contributory negligent. 

Once a child attains 10 years of age then as they become older the more likely they are at risk of being found contributory negligent on the basis that they are expected to become more familiar with the rules of the road.

The most common allegations in my experience made of pedestrians for contributory negligence are:-

  1. Failure to look properly, if at all, for oncoming traffic;

  2. Failure to use a marked and designated nearby crossing,

  3. Failing to check for approaching traffic due to being distracted by a mobile phone / headphones;

  4. Entering the road giving the oncoming vehicle little opportunity to have avoided a collision.

  5. Walking on the road, where there is no pavement, with their back to the traffic

I have acted for a large number of pedestrians of all ages.  If an allegation of contributory negligence is made it is important to obtain a plan of the road where the incident happened, to understand the line of sight and also to consider the speed of the vehicle involved.  In some instances it could be argued that the vehicle was travelling so quickly that whatever the pedestrian had done the incident would still have happened. 

Vehicles

With regard to “vehicle” on “vehicle” collisions it is unlikely that contributory negligence will be argued in scenarios where one vehicle collides with the rear of the vehicle ahead unless that first vehicle had pulled out in front of the second vehicle affording little or no opportunity to avoid a collision.

The allegation of contributory negligence is often raised in collisions that occur on a roundabout where two vehicles come into offside/nearside contact, on the exit of roundabouts where one vehicle wrongly positioned collides with another vehicle that cut across their path, and at road junctions.

I acted for a young driver who was involved in a road traffic collision as he was looking to exit the Cooper Dean Roundabout in Bournemouth.  This is a large roundabout.  Our client, who was established on the roundabout, was struck on the offside by the defendant vehicle and he alleged that the defendant was in the incorrect lane for their intended exit therefore cut across into his vehicle.  The defendant resisted the claim and started a counterclaim against our client. Our client started court proceedings. The defendant made an offer of 50:50 whereby each party shared equal responsibility and if accepted would have paid the other 50% of their respective claims.  Our client rejected this offer and the matter proceeded to a trial at Bournemouth County Court.  On the morning of the trial a further offer of 75:25 in our client’s favour was made but this was again rejected.  The outcome of the trial was that the Judge found that the defendant had on the balance of probability been in the wrong lane and cut across into our client’s correctly proceeding vehicle.  Our client won in full. 

Accidents at work

An employee can sustain injuries in a number of different ways during the course of their employment whether it is work at height, lifting or walking down a pathway. 

It is in my experience frequent that a defendant insurer, having admitted primary responsibility, will seek to make an allegation of contributory negligence.  They may argue that the employee had been appropriately trained therefore should have known of the risk he was undertaking, that he should have used a piece of work equipment to lift the boxes instead of manually picking up the boxes, and that he should have seen on the floor the hazard that caused him to fall. 

Whatever the allegation may be, your solicitor should seek from the defendant disclosure of any documents in support of their allegation and then take appropriate steps to drill down into the robustness of the allegation made.

Pavement trips

The same principle as above in that if you trip on a pavement where the defendant admits responsibility but alleges you are partially responsible you should seek full reasons as to why along with any documentation upon which they rely.  There is a wealth of case law in this area in which an experienced solicitor can advise you upon.

Summary

It is important to recognise the financial benefit to a defendant insurance company to seek to settle on a contributory negligence basis because they pay less even when their insured was the primary cause of the incident.  As such in every case your solicitor should seek to secure from the defendant insurer an early full admission of fault, and if the defendant is seeking to make an allegation of contributory negligence then get them to make it early so that your solicitor can properly gather the evidence to resist the same. 

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Matthew Claxson is a solicitor and partner at Moore Blatch Solicitors specialising in serious injury and fatal incidents.  Tel 0800 157 7611  E-mail: matthew.claxson@mooreblatch.com  Profile available on LinkedIn. Twitter: @matthewclaxson

 


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