UK: Contributory Negligence – An Unsung Hero?

Last Updated: 29 October 2010
Article by John Goodman

When is and when is it not a good idea to argue contributory negligence?

Following on from the remarkable reductions for contributory negligence in Yetkin v LB Newham (2010) and in Russell v West Sussex County Council (2010), John Goodman provides an overview on the importance of properly considering contributory negligence and recent trends that may have slipped under the radar.

Challenging Conventional Wisdom in EL Cases

What happens when an EL claim is investigated? In the vast majority of cases, the person investigating, whether claims inspector, case handler or loss adjuster, sets out the various possible breaches of statutory duty and concludes by about page 4 that liability will probably attach. There may at the very end be a throwaway comment about the possibility of arguing contributory negligence.

In our view, we are all guilty of failing to put enough focus on arguments for contributory negligence. Given that the vast majority of EL claims are settled, we ought to be putting more effort into gathering better evidence to support arguments for contributory negligence. Employees have a duty to look after their own health and safety, and accidents very often occur not just because of some default by the employer but due to a combination of factors.

Conventional wisdom has it that contributory negligence is hard to achieve in EL claims.  There is some judicial support for that. As the Court of Appeal put it in Cooper v Carillion Plc, "to impose too strict a standard of care on the workman would defeat the object of the statutory requirement".

And yet, if you actually look at a range of EL cases decided in the higher courts, you will find the opposite is true. Take these three cases by way of example:

  • Home Office v Lowles (2004) – The claimant was a prison officer who tripped on an unmarked two inch step up in front of the doors to the side entrance as she was going to work. The Court of Appeal accepted the claim on the basis that people may well arrive for work deep in conversation and may not pay full attention to the step or even the notice warning of it, but at least damages were reduced by 50 per cent.
  • Sherlock v Chester City Council (2004) – The claimant was an experienced worker who was using a circular saw and lost his thumb due to a sloppy work practice. The Court of Appeal accepted there should have been a risk assessment process to enable both employer and employee to take stock of the situation and act as a reminder to the employee of good practice, but the Court of Appeal accepted that 60 per cent of the blame for the accident should fall on the employee.
  • Egan v Central Manchester NHS Trust (2008) – In this manual handling claim, the claimant jerked her back when manoeuvring a hoist which suddenly made contact with the plinth under a bath. The defendant was in breach of the Manual Handling Regulations, but the Court of Appeal found the claimant 50 per cent liable because she was an experienced nurse and she had been careless in manoeuvring the hoist.

The Downsizing Scalpel – Public Liability Leads the Way!

In the field of public liability, too, recent cases, even where they have gone the claimant's way, have not escaped the downsizing scalpel of contributory negligence. Take for example, the recent case of Yetkin v LB Newham (2010) where the claimant, a pedestrian, was run over as she crossed a dual carriageway, apparently because of a blocked sight line due to overgrown foliage. She crossed the carriageway with the lights against her. The Council was unlucky to lose this case on appeal, but at least the Court of Appeal accepted a massive reduction for contributory negligence: 75 per cent.

Another recent example is the case of Russell v West Sussex County Council (2010). The claimant crashed her car into a tree, suffering serious injuries, after losing control of her car while driving on a frosty road. She had driven onto a verge where there was a drop in height of between six and twelve inches from the carriageway and hit the tree while attempting to regain control. The Highways Authority was found to be in breach of its statutory duty since, although it had levelled the verge previously, it had failed to maintain it. However, the claimant's damages were reduced by 50 per cent because, although she was driving within the speed limit, she was travelling too fast in the icy conditions. Both parties appealed but the decision on contributory negligence was upheld by the Court of Appeal.

One drunken claimant found his damages slashed by 75 per cent in the case of Harvey v Plymouth City Council (2009). After an evening of drinking and frivolity, the claimant and his friends took a taxi to a local supermarket, when they decided to dodge the fare by running across a piece of open land. In doing so, the claimant tripped over a fence that was in disrepair and fell 5.5 metres onto the supermarket car park below, suffering brain injuries. Although it was held that the Council was responsible for ensuring the safety of the claimant while on its land, and should have foreseen his drunken conduct, the claimant was found to be 75 per cent contributorily negligent.

The Way Forward

So the moral of the story is clear: always consider contributory negligence. Check what evidence you have to support such an argument and, if there is hope, you should be putting more effort into obtaining better evidence. 

But a health warning goes with this article. There is no point in holding out for 10 per cent contributory negligence in a £10,000 claim to save £1,000, where an extra six months of delay will cost you £3,000 in claimant's costs. So, whilst contributory negligence is potentially a powerful weapon in your armoury to reduce the cost of claims, it is crucial in every case to undertake a sensible cost benefit analysis before you wield it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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