Discussion of the principles open which the doctrine of contributory negligence found


  Assume that the manufacturer of an industrial grinder states that in its instruction manual that the grinder’s operator should wear safety goggles. The owner of a machine tool repair shop purchases a grinder, has her employees read the manufacturer’s instructions, and reminds them to wear safety goggles when they use the machine. Employee Joe Kidd chooses to ignore the warnings. As Kidd begins using the grinder to sharpen a sawblade’s cutting edge, a tiny spark of hot metal flies into and causes the loss of his right eye. Kidd files suit, claiming the manufacturer was negligent in failing to warn the grinder might throw off hot metal sparks. The manufacturer defendant would claim that the plaintiff contributed to causing the injuries. The claim is that the plaintiff’s negligence offsets the negligence of the manufacturer or seller.[1] This claim is known as contributory negligence which will reduce the amount of damage compensation on the ground of lack of sufficient carefulness by the plaintiff.


            All individuals are expected to exercise a reasonable degree of care in looking out for themselves. In some jurisdictions, a person who has failed to exercise such care cannot recover for an injury resulting from the negligence. This is the doctrine of contributory negligence, according to which both parties have been negligent and their negligence has combined to cause the injury. When one party sues the other in tort for damages for negligence, the defendant can claim contributory negligence which is a complete defense under common law rules.[2] Under the contributory negligence rule, if the plaintiff’s negligence contributed in any way-no matter how slight to his injuries, the plaintiff could not recover from a negligent defendant. Suppose Paul is driving north on North Street and Dorie is driving south. They reach a red light at the same time. Paul’s car stops slightly left of the centre line. Dorie runs the red light and her car side-swipes the left side of Paul’s car. Under the contributory negligence rule, neither could recover from the other.[3]

            Contributory Negligence is conduct of a party that helps to cause one’s injuries and, as a result, serves to bar recovery. Paragraph 463 of the Restatement of the Law of Torts defines contributory negligence as

Conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.”

The standard of self care to be met by a plaintiff is that of the reasonable person or that behavior required by statute. Contributory negligence alone serves as a defense, and, unless other factors are present, the contributory negligence bars recovery. If the defendant had the last clear chance of knowingly avoiding the accident and did not, plaintiff would not be barred, despite negligence of the plaintiff.[4]

Contributory negligence, however, can produce harsh results. Slightly negligent persons might not recover anything for very serious injuries caused by defendant’s greater negligence. To ease the harshness of this result, a number of courts adopted the doctrine of last clear chance. This doctrine holds that even though plaintiff was negligent, he or she can still recover if it can be shown that the defendant had the “last clear chance” to avoid the harm.[5] The contributory negligence defense absolutely barred the plaintiff from recovery if the plaintiff’s own fault contributed to the injury “in any degree, however slight.” The trend today, however, in the great majority of states of America is to offset the harsh rule of contributory negligence with the doctrine of comparative responsibility (also called comparative negligence). Under comparative principles, the plaintiff’s contributory negligence does not bar recovery. It merely compares the plaintiff’s fault with the defendant’s and reduces the damage award proportionately. Under comparative responsibility, injury damages of $100,000 would be reduced by the jury to $80,000 if the jury determined that the plaintiff’s own fault contributed 20 percent to the injury.[6]


                A tort is a civil wrong according to the common law jurisdictions.[7] Tort law deals with situations where a person’s behavior has unduly caused someone else to undergo loss or harm. A tort is not essentially an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss. Tort is not any criminal act and it is also different from equity. A person who suffers a tortious injury is allowed to receive “damages”, usually monetary compensation, from the person or people responsible — or liable — for those injuries. This is called tort liability which implies an insurance coverage that provides remedies for persons sued for damages when they injure or kill someone else through their own negligence.

            The concept of negligence is central to the tort system of liability. The negligence concept is centered on the principle that every individual should exercise a minimum degree of ordinary care so as not to cause harm to others.[8] “Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong.”[9] One of the defenses against such complains is the contributory negligence which also stands upon the same principle of tort liability. It considers the breach of duty of care by the plaintiff and thus reduces the damage claim to a certain level as per the contributions of each party. But is has some contradictory parts with the tort principle as well. Even if it finds out a small percentage of negligence on behalf of the plaintiff, it may reduce the damage claim to the lowest level which actually ignores the actual liability of the defendant. So the wrong doing of the defendant gets completely ignored in this scenario which is against the principle of tort. So to remove this contradiction, comparative negligence has been brought into light which considers the negligence of both parties.


  The doctrine of contributory negligence is one that those who practice in the field of personal injury litigation and (to a slightly lesser extent) clinical negligence litigation have to consider regularly. The principles are easily set out.

  • Before the formation of Law Reform (Contributory Negligence) Act 1945, the contributory negligence of a claimant was a complete defense to a claim. The award of damages in tort was either all or nothing.

  • The wording of the statute is important. Section 1 of the Law Reform (Contributory Negligence) Act provides:

“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 for the damage.”[10]

  • The concept of contributory negligence therefore has three elements
    • The claimant was in some way at fault in his behavior.
    • Such behavior was partly causative of the damage that was suffered.
    • It is just and equitable for damages to be reduced (in which case they are reduced to the extent which is just and equitable).

All individuals are expected to exercise reasonable degree of care in looking out from themselves. When one party sues the other in tort for damages from negligence, the defendant can claim contributory negligence, which is a complete defense under common law rules.[11]

  • It needs to be seen that the relevant contribution of the claimant is to the damage, not merely to the accident that causes the damage. This difference is most prominent regarding accidents involving a failure to use protective equipment. For example,
    • D and C are driving cars and are involved in a collision which is caused by the fault of them both. C is wearing a seatbelt. He is injured. C has contributed to the damage by contributing to the accident.
    • D and C are driving cars and are involved in a collision which is caused by the fault of them both. C is not wearing a seat belt. He is injured in a manner which would have been avoided had he been wearing a seatbelt. C has contributed to the damage both by contributing to the accident and by his failure to wear protective equipment.
    • D and C are driving cars and are involved in a collision which is caused by the fault exclusively of D. C is not wearing a seat belt. He is injured in a manner which would have been avoided had he been wearing a seatbelt. C has contributed to the damage solely by his failure to wear protective equipment.[12]
    • In every scenario, there is a possibility of a deduction for contributory negligence, but the amounts would vary, according to the blameworthiness and causative potency of the claimant’s fault in each case.
    • The reduction of damages works on the basis of a proportion reduction – 25% contributory negligence equates to a 25% deduction in damages. Accordingly, the reduction has a knock on effect on the award of damages.
    • The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence[13] and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.[14]
    • However, a finding of contributory negligence has no effect on how damages are considered, only on the lessening (if any) to be made to the total as calculated. This principle, recognized in Kelly v Stockport Corporation [1949] 1 All ER 893, was re-affirmed in Sowden v Lodge [2004] EWCA Civ 1370.


            The responsibility of proving contributory negligence is rested upon the Defendant. The person who bears the burden of leads his evidence first. If violation of obligation is admitted but the Defendant wishes to assert contributory negligence, he calls his evidence first. If he has no considerable evidence to support a finding of contributory negligence, a Claimant might turn down to call evidence, leaving the Defendant with a mounting struggle to establish fault on the Claimant’s part. If on the other hand liability had been in dispute, the Claimant would have been forced to adduce evidence in support yet this evidence might have led to a conclusion of some fault on the part of the Claimant without the Defendant adducing any evidence. In consequence, a Defendant may be reluctant to concede liability so as to preserve the opportunity to argue contributory negligence effectively.[15]


            The consequences of contributory negligence can be either the clemency of the person or the persons which was or were prima facie considered to be legally responsible, if the contribution of the wounded person or of a person for whom the latter is responsible is extreme enough to cut the prima facie link of imputation, or in cases of minor intensity of the contributory fact- a lessening of reimbursement, which will be assessed taking into account all state of affairs.[16] This reduction, respectively the attribution of parts of the prejudice to the (extraneous) tortfeasor on the one side and the (partial) victim on the other side, is regularly expressed in percentages. But as these parts are fixed for each individual case according to all relevant circumstances, it is not possible to indicate any schematic or typical figures;[17] the only stereotype one can observe is that the reduction quota is usually established at ‘round’ percentages or fractions such as 10, 25 or 33.3% or ½, 1/3, ¼, 1/10 and so on.


            It is an undisputed position in jurisprudence and doctrine that, insofar as the injured person would be (vicariously) responsible for other people (employees, agents, etc.) if they had caused damage to third persons, their contribution to the occurrence or the aggravation of the damage suffered by their ‘principal’ himself is imputed to him as if it had been its own contributory negligence.[18] The conditions are the same as they would be in respect of damage caused to a third party; this means in particular that it is irrelevant whether the auxiliary himself is capable of discernment.[19]


            It is not contested either that people who were entitled to maintenance towards the victim of a fatal accident have to accept a reduction of their right to compensation if the deceased had to assume any form of contributory negligence.[20] The reason why this solution is considered correct is that the dependant’s right to compensation is regarded as derivative, i.e. as an exception to the principle that indirect or reflexive losses are not compensable.


            This is a debatable topic. One opinion which has lost support in doctrine in recent times but is still preferred by the federal court is the consideration of that whenever several tortfeasors are jointly and severally liable; each of them has to guarantee the payment of the amount that has been fixed as the maximum compensation. This may be a reduced amount compared to the full loss where a circumstance or contributory negligence for which the injured person is responsible towards all other tortfeasors has been taken into account. However, the federal court in particular has regularly refused to differentiate in the external relationship between the injured person and several co-responsible wrongdoers and thus to admit that one of them might invoke a larger contributory negligence of the victim than his fellow tortfeasors.[21]


  • Badger v Ministry of Defense [2005] QBD

Ministry of Defense employed Reginald Badger who died at the age of 63 from lungs cancer. During the course of his employment, he had been exposed to asbestos, which caused him to develop asbestosis which resulted into lung cancer. He also used to smoke. So the widow of Mr. Badger brought the claim for compensation which was reduced by 20% by the court saying that Mr. Badger did not take reasonable care for his own safety as continuing to smoke amounted to contributory negligence which was causative of lung cancer.

Alexander sued Kramer Brothers after he suffered personal injuries in an accident with the defendant’s truck and Kramer Brothers asserted contributory negligence as a defense. The court held that the plaintiff has the burden of proof to show that he or she was not contributorily negligent.[22]

Smithwick was told not to work on a stage but was not told that the wall was about to fall down. He worked on stage despite the warning because he thought the risk of falling was the only hazard. The court held that the failure to listen to a caution is not contributory negligence if the injury was the consequence of a diverse source of risk caused by the defendant, and the wounded party was ignorant of that risk.


            In any action based on negligence, contributory negligence of the injured party either completely barred the recovery or reduced the amount of recovery under the rule of comparative negligence. In principle, contributory negligence is immaterial in any action based on the theory of strict liability in tort and in fact has been abolished as a defense by most courts.

Recent developments in the area of comparative negligence are affecting the doctrine of strict liability. Whereas previously the plaintiff’s conduct was not a defense to strict liability, today a growing number of jurisdictions consider the negligent or intentional actions of the plaintiff in the apportionment of liability and damages. This “comparing” of the plaintiff’s conduct to the defendant’s strict liability results in an application of the doctrine of comparative negligence. Thus, for example, failure to take precaution against a known defect will reduce a plaintiff’s recovery. The majority of states have adopted this doctrine, either legislatively or through court decisions. Its recent growth may have a pervasive effect on strict liability as well.[23]

[1] Kenneth W. Clarkson, Gaylord A. Jentz, Roger LeRoy Miller, Frank B. Cross, “WEST’S BUSINESS LAW” 1992, West Publication Company, Page 454, Para 5

[2]Kenneth W. Clarkson, Gaylord A. Jentz, Roger LeRoy Miller, Frank B. Cross, “WEST’S BUSINESS LAW” 1992, West Publication Company, Page 16, Para 6

[3] Lawrence S. Clarke, Peter D. Kinder, “LAW AND BUSINESS The Regulatory Environment,” 1988, McGraw Hill Inc. Page 85, Para 3.

[4] Blair J. Kolasa, “THE LEGAL ENVIRONMENT OF BUSINESS,” 1984, Addison-Wesley Publishing Company, Page 267, Para 4.

[5] James Barnes, Terry Morehead Dworkin, Eric L. Richards, “LAW FOR BUSINESS,” 2000, Irwin McGraw-Hill Inc. Page 102, Para 2.

[6] Robert N. Corley, O. Lee Reed, Peter J. Shedd, “THE LEGAL ENVIRONMENT OF BUSINESS,” 1990, McGraw-Hill Inc., Page 302-304, Para 6.

[7] Gianville Williams, “LEARNING THE LAW,” Eleventh Edition, Stevens, 1982, P 9.

[8] Craig A. Smith, “Torts Negligence,” Retrieved at 31.3.2012 from www.lawschoolhelp.com.

[9] See (Stephenson v. Southern Pac. Co. (1894) 102 Cal. 143, 147.)

 [10] “Contributory negligence in Personal Injury and Clinical Negligence” Retrieved from www.byromstreet.com.

[11] Herbert M. Bohlman, Mary Jane Dundas, Gaylord A. Jentz, “THE LEGAL ENVIRONMENT OF BUSINESS,” 1989, West Publishing Company, Page 295, Para 4.

[12] “Contributory negligence in Personal Injury and Clinical Negligence” Retrieved from www.byromstreet.com.

[13] which percentage shall be determined pursuant to subsection (f) of Sec 52-572h of Chapter 925, Statutory Rights of Actions and Defenses of Title 52 Civil Actions of 2011 Connecticut Code.

[14] “2011 Connecticut Code, Title 52 Civil Actions, Chapter 925 Statutory Rights of Action and Defenses, Sec. 52-572h. Negligence Actions. Doctrines Applicable. Liability of Multiple Tortfeasors for Damages.”

[15] Richard Pearce, Byrom Street Chambers, Manchester, Retrieved from www.byromstreet.com.

[16] Ulrich Magnus, Miquel Martin-Casals, V. H. van Boom, “UNIFICATION OF TORT LAW: CONTRIBUTORY NEGLIGENCE.”

[17] A very complete survey of court decisions and percentages applied in different cases is given in K. Oftinger/E.W. Stark (supra note 1), & 7 nos, 32 et seq., 393 et seq,; see also R. Brehm (supra note 1), no. 21 ad art. 44 SCO and A. Keller (supra note 1), 128; this last author gives further examples with respect to each single kind of liability he treats in his book.

[18] K. Oftinger and E.W. Stark (supra note 1), & 7 nos. 32 et seq., 393 et seq; R. Brehm (supra note 1), no. 40 ad art, 44 and nos, 51/51 ad art, 54 SCO; H. Rey (supra note 1), no. 563, 126; H. Honsell (supra note 1), & 9 nos. 16,100.

[19] See P. Widmer, Liability for Damage Caused by Others under Swiss Law, in: J. Spier (ed.), Unification of Tort Law: Liability for Damage Caused by Others (2003) B 1 [17] and E Id [35].

[20] K. Oftinger and E.W. Stark (supra note 1), & 5 II B/2c no. 160, 236; R. Brehm (supra note 1), no. 21a ad art, 44; H. Rey (supra note 1), nos. 108, 89.

[21] Ulrich Magnus, Miquel Martin-Casals, V.H. Boom, “Unification of Tort Law; Contributory Negligence” Page 218, Para 3.

[22] “Alexander v. Kramer Bros.” Retrieved from http://www.lawnix.com/cases/alexander-kramer.html.

[23] Kenneth W. Clarkson, Gaylord A. Jentz, Roger LeRoy Miller, Frank B. Cross, “WEST’S BUSINESS LAW” 1992, West Publication Company, Page 465, Para 5