Thursday Thinkpiece: Goudkamp on Contributory Negligence

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“Rethinking Contributory Negligence,” in Tort Law: Challenging Orthodoxy, Stephen GA Pitel, Jason W Neyers and Erika Chamberlain Eds.
James Goudkamp
Oxford: Hart Publishing, 2013

Note: The book is based on papers that were presented at the Sixth Biennial Conference on the Law of Obligations at Western University in London, Ontario in July 2012.

(Slaw readers are offered a 20% discount on the price of the book.)

I. INTRODUCTION

The doctrine of contributory negligence is one of the most important rules in the law of torts, both in practical and in theoretical terms. It is significant for practical reasons because of the frequent and often powerful effect that it exerts on claims and litigation.[1] The evidence suggests that damages awards and monies paid pursuant to settlements are reduced for contributory negligence in between 25% and 40% of cases. The doctrine is of theoretical importance for several reasons, but primarily because it shows clearly that tort law is concerned not only with the quality of the defendant’s behaviour but also with the nature of the claimant’s conduct.[2] Despite its significance, legal writers have shown relatively little interest in contributory negligence. Fairly modest progress has been made in terms of advancing our understanding in this connection since Williams published his seminal treatise Joint Torts and Contributory Negligence.[3] That monograph, despite being over 60 years old and written when the apportionment legislation was in its infancy, remains by a significant margin the leading analysis in the field.

What is the reason for the lack of scholarly interest in the doctrine of contributory negligence? The most plausible explanation lies in the very limited scope that exists for appellate review in this area. Appellate judges are reluctant to disturb a trial judge’s conclusion as to whether a claimant is guilty of contributory negligence. Appellate intervention will be warranted in this connection only if the trial judge’s determination is ‘manifestly wrong’.[4] This test sets a high bar. The circumstances in which a trial judge’s apportionment of damages will be adjusted on appeal are also severely constrained. A trial judge’s holding in this regard must be ‘plainly’,[5] ‘fundamentally’[6] or ‘clearly’[7] incorrect before appellate interference will be justifiable. Because the role of appellate courts in the day-to-day application of the doctrine of contributory negligence is so limited, scholars may be under the impression that it does not raise especially difficult or important points of law. This impression may lurk behind the lack of academic interest in it.

Possibly as a result of the general juristic neglect of the doctrine of contributory negligence, many erroneous beliefs about it have flourished. The goal of this chapter is to identify and correct some of these mistakes. It will be argued that:

1. the traditional definition of the doctrine of contributory negligence is incomplete because it fails to account for the doctrine’s frequent exclusion for reasons of public policy;
2. contrary to widely held views, rules that specify the standard of care that defendants must achieve for the purposes of the tort of negligence should not be transplanted automatically to the contributory negligence context;
3. the doctrine of contributory negligence has often been conflated with various other rules including the defence of voluntary assumption of risk, the defence of illegality, the mitigation of damage principle and the doctrine of provocation;
4. in contrast with what some writers believe, post-tort fault on the part of the claimant should not result in, or be relevant to, the apportionment of damages;
5. the doctrine of contributory negligence is part of the law of remedies and not, as is widely thought, the law of liability;
6. scholars’ concentration on the direct effect of the apportionment legislation has meant that they have failed to notice the legislation’s significant indirect effects on many facets of the law of torts;
7. serious confusion exists as to the permissibility of apportioning responsibility in certain ways; and
8. in opposition to the views of some writers, the apportionment legislation does not apply, and should not apply, to awards of exemplary damages.

. . . . .

E. Contributory Negligence: A Liability Rule or a Remedial Rule?

Is the doctrine of contributory negligence part of the law of liability or the law of remedies? The overwhelming majority of tort law textbook writers apparently regard it as a liability rule. It is almost universally discussed alongside rules that, when enlivened, prevent liability from arising.[8] This reading of the prevailing opinion is arguably reinforced by the frequent description of the doctrine as a ‘defence’. A small minority of writers dissent

from this view. For example, McBride and Bagshaw take issue with characterising the doctrine as a liability rule[9] and place the discussion of it in their textbook in a chapter entitled ‘Compensatory Damages’.[10] Which view is correct?

Prior to 1945, there could not have been a serious argument as to how the doctrine of contributory negligence ought to have been classified. Before the 1945 Act was passed, the doctrine, when applicable, prevented liability from arising.[11] The doctrine was therefore part of the law governing liability. It is submitted that the issue of classification is equally clear today. The 1945 Act provides that contributory negligence does not defeat liability but merely reduces the claimant’s damages.[12] Therefore, the 1945 Act moved the doctrine of contributory negligence out of the law of liability and into the law of remedies. McBride and Bagshaw are therefore correct in refusing to follow the preponderance of writers who regard the doctrine as a liability rule.

McBride and Bagshaw seem to regard the way in which the doctrine of contributory negligence is classified as having only theoretical significance. But it also has practical ramifications. Three examples will be given. Consider, first, the general principle that the party who obtains a verdict in his or her favour is entitled to recover his or her costs from his or her opponent.[13] Because the doctrine of contributory negligence is a remedial rule, it does not affect the verdict, and is therefore of no significance in so far as the costs shifting rule is concerned. Provided that a verdict is entered in his or her favour, even a claimant who is responsible for almost all of his or her tortiously inflicted damage is entitled to a costs order.[14] Things would be different in this connection were the doctrine of contributory negligence a liability rule. Second, classifying the doctrine of contributory negligence as a remedial rule has implications for default judgments and summary judgments. Such judgments are final only as to liability. They leave the issue of quantum open. Accordingly, it is possible for a defendant to agitate the doctrine of contributory negligence despite having default judgment[15] or summary judgment[16] entered against him or her. This would not be the case were the doctrine of contributory negligence a liability rule. Third, an admission of liability by the defendant does not waive the issue of contributory negligence. Matters would be otherwise were the doctrine a liability rule.

In summary, most textbook writers need to relocate their treatment of the doctrine of contributory negligence. The doctrine is part of the law of remedies, not the law of liability. Accordingly, it is properly discussed in chapters concerned with the assessment of damages rather than alongside rules such as the defences of voluntary assumption of risk and illegality. Organising things properly in this connection is important for both theoretical and practical reasons.

[1] Some empirical studies are mentioned in P Cane, Atiyah’s Accidents, Compensation and the Law, 7th edn (Cambridge, Cambridge University Press, 2006) 59–60.

[2] An illuminating discussion of several philosophical questions presented by the doctrine of contributory negligence is offered in K Simons, ‘The Puzzling Doctrine of Contributory Negligence’ (1995) 16 Cardozo Law Review 1693.

[3] G Williams, Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions (London, Stevens & Sons Ltd, 1951).

[4] Kerley v Downes [1973] RTR 188 (CA) 193.

[5] Phethean-Hubble v Coles [2012] EWCA Civ 349, [86].

[6] Dixon v Clement Jones Solicitors (a firm) [2004] EWCA Civ 1005, [51].

[7] Kerry v Carter [1969] 1 WLR 1372 (CA) 1376.

[8] [cross-reference omitted]

[9] N McBride and R Bagshaw, Tort Law, 4th edn (Harlow, Pearson Education, 2012) 743.

[10] Ibid, at 773.

[11] [cross-reference omitted]

[12] It might be queried whether this claim is consistent with the concept of 100% contributory negligence. It is argued below that the idea of 100% contributory negligence is incoherent. A finding of 100% contributory negligence should never be made: see Part III.G.i.

[13] Civil Procedure Rules 1998 (UK), SI 1998/3132, r 44.3(2)(a).

[14] Onay v Brown [2009] EWCA Civ 775; Sonmez v Kebabery Wholesale Ltd [2009] EWCA Civ 1386.

[15] Maes Finance Ltd v AL Phillips & Co (1997) The Times, 25 March (Ch D); Lunnun v Singh (1999) The Times, 19 July (CA).

[16] See, eg, Pankhurst v White [2006] EWHC 2093 (QB).