Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions
| Author | James Goudkamp,Donal Nolan |
| Date | 01 July 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12202 |
| Published date | 01 July 2016 |
bs_bs_banner
Contributory Negligence in the Twenty-First Century:
An Empirical Study of First Instance Decisions
James Goudkamp∗and Donal Nolan∗∗
In this article we report the results of an empirical study of 368 first instance decisions on
the contributory negligence doctrine handed down in England and Wales between 2000 and
2014. The two central questions at which we looked were: how often a defendant’s plea of
contributory negligence was successful; and by how much a claimant’s damages were reduced
when a finding of contributory negligence was made. We also considered the extent to which
the answers to these questions depended on the following variables: the claimant’s age; the
claimant’s gender; the type of damage suffered by the claimant; the contextual setting of the
claim; and the year of the decision. Our study uncovered several important truths about the
contributory negligence doctrine hidden in this mass of case law, some of which cast significant
doubt on the accuracy of widely held views about the doctrine’s operation.
INTRODUCTION
The doctrine of contributory negligence reduces the compensation which the
victim of a wrong receives where the victim was partly to blame for his or
her own damage. Paradigmatic examples of conduct that is likely to constitute
contributory negligence include failing to wear a seatbelt while a passenger in
a motor vehicle, failing to check the depth of a swimming pool before diving
into it, and crossing a road without looking for oncoming traffic. It is clear
that the contributory negligence doctrine is one of the most impor tant rules
in English private law.1The doctrine is frequently relied on by defendants
∗Associate Professor of Law, University of Oxford; Fellow and Tutorin Law, Keble College, Oxford;
Academic Fellow, Inner Temple; Senior Honorary Research Fellow, University of Western Australia;
Honorary Principal Fellow, University of Wollongong; Barrister, 7 King’s Bench Walk.
∗∗Professor of Private Law,University of Oxford; Francis Reynolds and Clarendon Fellow and Tutor
in Law, WorcesterCollege, Oxford. We are immensely grateful to Charles Austin, who bore primary
responsibility for collecting and coding the data on which this paper is based, to Mengfei Ying, who
worked tirelessly to check the accuracy of the data and to collect information regarding contributory
negligence and apportionment from primary and secondary sources, and to Lindsay Lee, who carried
out the statistical analysis. Weare also greatly indebted to James Plunkett for providingus with valuable
comments on a draft of this article, and to the two MLR refereesfor their thoughtful and constr uctive
observations. Some of the results of this study were presented in a lecture in the Reader’s Lecture
Series at the Inner Temple in January 2016, and we are grateful to the audience for their helpful
remarks. This research was funded by the John Fell Oxford University Press (OUP) Research Fund.
1 ‘[T]he defence [of contr ibutory negligence] is used on a daily basis’: J. Steele, ‘Law Reform
(Contributory Negligence) Act 1945: Collisions of a Different Sort’ in T. T. Arvind and J. Steele
(eds), TortLaw and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Oxford:
Hart Publishing, 2013) 165.
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited. (2016)79(4) MLR 575–622
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Contributory Negligence in the Twenty-First Century
both in litigation and in negotiating settlements,2and damages are regularly
discounted for contributory negligence by substantial amounts (often as much
as 50 percent3). With regard to settlements, it has been said that ‘much of the
negotiation’ may involve trying to agree a discount to reflect the possibility
of a finding of contributory negligence were the case to go to court.4Tw o
further points attest to the practical significance of the contributory negligence
doctrine. One is that in personal injury cases, the doctrine has a per sonal impact
on claimants, as it usually leaves them with uninsured losses.5And the other is
that the operation of the doctrine probably affects the public generally, through
its impact on liability insurance premiums (it is plausible to think that premiums
would be higher without the doctrine, perhaps significantly so6). Nevertheless,
despite the importance of the contributory negligence doctr ine, remarkably
little is known about how it works ‘on the ground’.7In order to help fill
this gap, we studied 368 first instance decisions in England and Wales decided
between 2000 and 2014. This sample comprised every first instance decision
(both High Court and County Court) in which contributory negligence was
pleaded that was handed down during the study period and which we were able
to access electronically.8This article reports and discusses our findings. It tests
a range of received opinions about the judicial application of the contributory
negligence doctrine against hard empirical data.
The two central questions at which we looked were: how often a defendant’s
plea of contributory negligence was successful; and the quantum by which a
claimant’s damages were reduced when a finding of contributory negligence
was made. We considered the extent to which the answers to these questions
depended on the following variables: the claimant’s age; the claimant’s gender;
the type of damage suffered by the claimant (personal injury, property damage
or pure economic loss); the contextual setting of the claim; and the year
of the decision. We also explored various other matters. These included the
2 An Amer ican study found that defendants pleaded claimant negligence in 63 percent of the
automobile accident trials surveyed: M. G. Shanley, Comparative Negligence and Jury Behavior
(Santa Monica: Rand Graduate Institute, 1985) 39.
3 See the text to notes 81 and 94 below.
4P.Cane,Atiyah’s Accidents, Compensation and the Law (Cambridge: CUP, 8th ed, 2013) 269.
5 Where the claimant has first-party insurance – as will frequently be the case in a property damage
claim – his or her contributory fault is unlikely as such to affect any insurance claim, although
some types of behaviour that might amount to contributory negligence (such as drink driving)
may have this effect: see ibid, 295-296.
6 It has frequently been argued in the United States that the doctrine of contributory negligence
should not be watered downbecause doing so would result in an increase in insurance premiums.
The suggestion that the doctrine has some effect on insurance premiums seems to be tenable.
The precise nature of any link is something with which we cannot engage properly here. For
discussion, see C. J. Peck,‘Comparative Negligence and Automobile Liability Insurance’ (1960)
58 Mich L Rev 689; J. G. Fleming, ‘Comparative Fault at Last – By Judicial Choice’ (1976) 64
Calif LR 239, 243-244; V. Schwartz, Comparative Negligence (New Providence: LexisNexis, 5th
ed, 2012) para 2.04.
7 ‘Little is known about the quantitative effect of the law of contributory negligence’: Cane,
n 4 above, 56. See also L. Barnes, ‘Contributory Negligence and the Child’ [2010] Jur Rev
195, 201n, remarking that there has been ‘little in the way of recent studies’ of the doctrine’s
operation.
8 We explain in detail later whywe focused on first instance decisions, and the impor tance of this
methodological choice: see the text to n 44 below.
576 C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(4) MLR 575–622
James Goudkamp and Donal Nolan
distribution of discounts that the courts made for contributor y negligence, and
the ages of the youngest and oldest claimants found guilty of contributory
negligence.
Although the apportionment legislation that moulded the law of contrib-
utory negligence into its current shape was enacted throughout much of the
Commonwealth in the first half of the twentieth century,9there have been only
four previous empirical investigations of the doctrine in Commonwealth juris-
dictions, the most recent of which was conducted two decades ago. It is worth
briefly reviewing these studies, in order to set the scene for our investigation,
and to demonstrate why it is distinct. The first such study was a 1973 survey of
insurance claims in the UK (excluding Northern Ireland) conducted on behalf
of the Royal Commission on Civil Liability and Compensation for Personal
Injury (the Pearson Commission). According to this survey, 26 percent of the
settled personal injury claims were disposed of on the basis that the claimant
had been guilty of contributory negligence.10 The second study was conducted
for the National Committee of Inquiry on Compensation and Rehabilitation
in Australia. It surveyed 2,200 personal injury liability insurance files that had
been closed in four Australian states in 1972 and 1973. According to this survey,
‘a significant number’ of all claimants had their compensation reduced by ‘sub-
stantial sums’ because of contributory negligence, with more than one-fifth of
all payments in cases of permanent disability being reduced.11 It was also found
that when a deduction was made for contributory negligence, the average de-
duction was 39.5 percent.12 The third study was a survey of settlements of
personal injury claims conducted by the Oxford Centre for Socio-Legal Stud-
ies, the results of which were published in 1984.13 According to this survey,
the doctrine of contributory negligence placed ‘a powerful negotiating weapon
in the hands of the defendant’s solicitors or insurance company’, which was
‘extensively used’, and taken into account in 45 percent of the 51 settlements
surveyed.14 Furthermore, it was found that in about a quarter of the settlements
surveyed the contributory negligence doctrine had caused difficulties in the ne-
gotiation process.15 The final study was conducted by the Law Commission in
1994. The Commission surveyed victims of personal injury who had obtained
compensation in settlements.16 In lower value claims, 8–10 percent of the 761
victims surveyed said that they had been held partly to blame for their injury,
9 The legislation that applies in England, Wales and Scotland is the Law Reform (Contributory
Negligence) Act 1945. Legislation in many other jurisdictions is closely based on this statute.
10 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury Cmnd 7054
(1978) vol 2, 163 (Table 117).
11 Report of the National Committee of Inquiry on Compensation and Rehabilitation in Australia (Canberra:
Australian Government Publishing Service, 1974) vol 1, paras 129-130. The percentage of all
cases in which deductions were made for contributory negligence was however somewhat lower:
ibid, vol 3, 97 (Table 13).
12 ibid, para 131.
13 D. Harris et al,Compensation and Support for Illness and Injury (Oxford: Clarendon Press, 1984).
14 ibid, 91.
15 ibid, 111.
16 Law Commission, Personal Injury Compensation: How Much is Enough? A Study of the Compensation
Experiences of Victims of Personal Injury Law Com No 225 (1994). About half the settlements arose
out of work-related accidents or disease, and most of the remainder arose out of road accidents
(ibid,para2.1).
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(4) MLR 575–622 577
To continue reading
Request your trial