Contributory Negligence
Claimant Part Fault
Where a claimant is partly at fault, the damages he is entitled to recover are reduced in proportion to his relative fault. This issue arises most commonly in the context of negligence. Contributory negligence may arise between defendants or 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 to seek apportionment 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 contribute. He may carry 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 apply 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 one’s own personal safety, property or economic interests. It is not 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 of 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 for 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.
Relevant 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 that, in fact, occurred, even if it is not specific to the exact manner or mode in which it occurred.
Emergency
If the defendant’s negligence places on the claimant the burden of having to react in a 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 an 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 avoided or lessened the adverse consequences.
If a person unreasonably 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 were made compulsory under Road Traffic Act regulations. 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 a 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 the full 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 vicariously liable person. 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 another 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 also responsible for the acts of any other persons for whose acts the other person would be responsible above if he were a claimant in the action.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019