In England, contributorynegligence cannot act as a complete defense. However, the Law Reform(Contributory Negligence) Act allows a judge to apportion liability forcompensatory damages as he feels to be fair and reasonable between a tortfeasorand a claimant who was partly to blame.
S.1(1) of the Act explains that a claimof compensation for a damage that is partly his own fault and partly the faultof thetortfeasor, will not be totally denied due to the fault of the person sufferingthe damage, but the damagesrecoverable will be reduced to an extent as the court thinks fit with regardsto the claimant’s share in the responsibility for the damage.1Therefore, it can only be used as a partial defense. Whenevercontributory negligence becomes a question in court, the burden of proof is onthe defendant where he has to prove the claimant’s negligent act. The firstelement is to prove that the claimant failed to exercise proper care in thecircumstances for his own safety. The second element is to prove that thefailure on the part of the claimant to take care was a contributory cause ofthe damage suffered. In Gough v Thorns2,Two brothers and a sister with the age of 17, 10 and 13 respectively, were crossinga road where a lorry slowed down and allowed them to cross. Then, a car drivenby the defendant, came through a narrow gap and barely missed the oldestbrother, hit the younger brother and collided with the sister causing herserious injury.
At the trial, the judge held that the young girl was 1/3 toblame for the incident and reduced her damages accordingly so the appellantappealed against the decision in relation to contributory negligence. It washeld that whilst young children cannot be held to be contributory negligent, anolder 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 13year old girl. The appeal was allowed.
In Oliver v Birmingham and Midland MotorOmnibus Co. Ltd.3,the infant plaintiff was crossing road in the care of his grandfather.
In themiddle of the road, the grandfather, startled by the approach of thedefendant’s company’s bus, released the infant’s hand, and the infant wasstruck by the bus and injured. It was held that the infant was entitled torecover against the company but the damages would be reduced due to thecontributory 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 heturned at an intersection where the driver knew that there were childrenplaying in the area near the point of the accident. It was held that the driverfailed to keep a proper look out, but the child was also guilty of contributorynegligence. The damages were assessed according to the standard of a child ofthe same age and experience where any ordinary child of 11 years of age couldbe expected to have kept a lookout for cars at an intersection. Therefore, thechild 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 abicycle he was riding was struck by a semi-trailer driven by the appellant, sothe victim made a claim against him and he appealed. It was held that theappellant was negligent and acquitted the respondent of contributory negligenceas he was too young to sense danger. The appeal was dismissed. 1 Section 1 of the LawReform (Contributory Negligence) Act 19452 1966 1 WLR 13873 1933 1 K.B. 354 BC9405583(Unreported)5 BC9405575(Unreported)