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In England, contributory
negligence cannot act as a complete defense. However, the Law Reform
(Contributory Negligence) Act allows a judge to apportion liability for
compensatory damages as he feels to be fair and reasonable between a tortfeasor
and a claimant who was partly to blame. S.1(1) of the Act explains that a claim
of compensation for a damage that is partly his own fault and partly the fault
of the
tortfeasor, will not be totally denied due to the fault of the person suffering
the damage, but the damages
recoverable will be reduced to an extent as the court thinks fit with regards
to the claimant’s share in the responsibility for the damage.1
Therefore, it can only be used as a partial defense.

 

Whenever
contributory negligence becomes a question in court, the burden of proof is on
the defendant where he has to prove the claimant’s negligent act. The first
element is to prove that the claimant failed to exercise proper care in the
circumstances for his own safety. The second element is to prove that the
failure on the part of the claimant to take care was a contributory cause of
the damage suffered.

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In Gough v Thorns2,
Two brothers and a sister with the age of 17, 10 and 13 respectively, were crossing
a road where a lorry slowed down and allowed them to cross. Then, a car driven
by the defendant, came through a narrow gap and barely missed the oldest
brother, hit the younger brother and collided with the sister causing her
serious injury. At the trial, the judge held that the young girl was 1/3 to
blame for the incident and reduced her damages accordingly so the appellant
appealed against the decision in relation to contributory negligence. It was
held that whilst young children cannot be held to be contributory negligent, an
older child may but only if they can in some way be held to be blameworthy. However,
the girl had acted in accordance with what could reasonably be expected of a 13
year old girl. The appeal was allowed.

 

In Oliver v Birmingham and Midland Motor
Omnibus Co. Ltd.3,
the infant plaintiff was crossing road in the care of his grandfather. In the
middle of the road, the grandfather, startled by the approach of the
defendant’s company’s bus, released the infant’s hand, and the infant was
struck by the bus and injured. It was held that the infant was entitled to
recover against the company but the damages would be reduced due to the
contributory negligence on the part of the infant’s grandfather.

 

In Korn v Isaacson4,
a child was riding his bicycle along some shops was hit by a motor vehicle as he
turned at an intersection where the driver knew that there were children
playing in the area near the point of the accident. It was held that the driver
failed to keep a proper look out, but the child was also guilty of contributory
negligence. The damages were assessed according to the standard of a child of
the same age and experience where any ordinary child of 11 years of age could
be expected to have kept a lookout for cars at an intersection. Therefore, the
child was liable for 10% of the damages.

 

In Griffiths V Wood By His Next Friend Wood5,
the respondent, a 6 years old boy, was seriously injured in an accident when a
bicycle he was riding was struck by a semi-trailer driven by the appellant, so
the victim made a claim against him and he appealed. It was held that the
appellant was negligent and acquitted the respondent of contributory negligence
as he was too young to sense danger. The appeal was dismissed.

 

 

 

1 Section 1 of the Law
Reform (Contributory Negligence) Act 1945

2 1966 1 WLR 1387

3 1933 1 K.B. 35

4 BC9405583
(Unreported)

5 BC9405575
(Unreported)

 

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