Contributory Negligence

The argument for contributory negligence

The Law Reform (Contributory Negligence) Act 1945 provides as follows:

Section 1: Apportionment of liability in case of contributory negligence

(1) 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.

Section 4: Interpretation

The following expressions have the meanings hereby respectively assigned to them, that is to say—

“damage” includes loss of life and personal injury;

“fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

A failure to comply with the advice in the Highway Code has been held to be sufficient to found a finding of contributory negligence. Froom v Butcher [1976] 1 QB 286 was decided when seat belts were recommended in the Highway Code but were not required by law; likewise, the earlier case O’Connell v Jackson [1972] 1 QB 270 in relation to moped riders’ helmets.

The current Highway Code recommends the use of helmets. Rule 59 is reproduced here:

“Rule 59 Clothing. You should wear

• a cycle helmet which conforms to current regulations, is the correct size and securely fastened

• appropriate clothes for cycling. Avoid clothes which may get tangled in the chain, or in a wheel or may obscure your lights

• light-coloured or fluorescent clothing which helps other road users to see you in daylight and poor light

• reflective clothing and/or accessories (belt, arm or ankle bands) in the dark

A helmet can protect against the severity of injury in some circumstances.

Therefore failure to wear a helmet is contributory negligence justifying a reduction in the damages where injury would have been avoided or reduced by a helmet.

Read next section ‘The Authorities’

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