Contributory Negligence in the Twenty-First Century: An Empirical Study

Few rules are as central in tort litigation as the doctrine of contributory negligence. It is considered on a daily basis by courts in all parts of the United Kingdom. The law is one of the United Kingdom’s most prominent exports, with the Law Reform (Contributory Negligence) Act 1945 being replicated throughout the Commonwealth. Although the doctrine is primarily relevant to personal injury litigation, it is certainly not confined to that context. It has significant implications for business law too. Most obviously, it is frequently invoked in professional negligence and employers’ liability cases. Furthermore, the doctrine may be relevant to contractual disputes. Where a defendant is held concurrently liable in the tort of negligence and for breach of a contractual term that requires the exercise of reasonable care, the law of contributory negligence will apply to both causes of action.

Despite its importance, however, little is known about how the courts apply the contributory negligence doctrine in practice. How frequently are claimants found guilty of contributory negligence? And by what amount are the claimant’s damages discounted when contributory negligence is found? The absence of answers to these and related questions prompted us to embark on an (ongoing) empirical study of the operation of the doctrine of contributory negligence in the courts.

The first article generated by our research reports the results of an analysis of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The article was recently published in the Modern Law Review, and is available for download here. Some of the most important findings reported in the article relevant to business lawyers were the following:

1. The plea of contributory negligence succeeded in 60 percent of the claims.
2. Where a finding of contributory negligence was made, the average discount was 40.5 percent.
3. The most popular discounts were fractions that are commonly used in everyday life, namely, one-half, one-third and one-quarter. Although judges use essentially the full spectrum of discounts, discounts at the higher end of the spectrum are relatively infrequent. This latter finding is consistent with frequently expressed views to the same effect.
4. Contrary to frequent and strident judicial statements to the contrary, it is doubtful that judges are especially reluctant to find claimants guilty of contributory negligence in employers’ liability claims. We found no evidence of such reticence. However, when contributory negligence was found in this category of claim, the discount tended to be relatively small.
5. Judges are very slow to find contributory negligence in professional negligence claims. However, when contributory negligence is found in such claims, the discount tends to be relatively high.

Further details of our empirical study of contributory negligence in practice can be found on the Oxford Law Faculty’s microsite for the project.

James Goudkamp is an Associate Professor in the Oxford Law Faculty and Fellow of Keble College.

Donal Nolan is Professor of Private Law in the Oxford Law Faculty and Francis Reynolds and Clarendon Fellow and Tutor in Law at Worcester College.