Acts of the claimant
| Part of a series on common law |
| English tort law |
|---|
 |
| Negligence |
| Trespass |
| Occupiers' liability |
| Defamation |
| Strict liability |
| Nuisance |
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.
The principles
The defendant is liable if he or she owed a duty of care, breached that duty and either caused loss or damage to the claimant or exposed the claimant to the risk of loss or damage. Such a defendant will not be liable for any loss or damage subsequently sustained by the claimant if the claimant acted unreasonably in responding to the situation. In McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) 3 AER 1621 as a result of their negligence, the defendant caused an injury to the claimant's leg which significantly weakened it. When later attempting to descend a steep staircase without a handrail or assistance, the claimant broke the ankle in the same leg. Lord Reid said that once a person is injured and that injury produces a loss of mobility, he or she must act reasonably and carefully. It is, of course, possible that the disability may produce a situation in which further injury is caused. In such a case, the second injury fits into the chain of causation, the one following naturally from the other. But if the injured person acts unreasonably, this behaviour is novus actus interveniens (Latin for "some new act breaking in"). The chain of causation is considered broken and the new injuries will be regarded as caused by the claimant's own conduct and not by the defendant's fault or the disability caused by that first negligence. So in the particular case, the claimant knew that his left leg might give way suddenly. He could see that these steps were steep and that there was no handrail. If he had given the matter a moment's thought, he would have realised that he could only safely descend the stair if he went extremely slowly and carefully so that he could sit down if his leg gave way, or he waited for assistance. But he chose to descend recklessly, and when he fell, he could not stop himself. That was taking an unreasonable risk and, therefore, broke the chain of causation. Where the claimant’s response is not sufficiently unreasonable to break the chain of causation, the defendant will remain liable. In Wieland v Cyril Lord Carpets (1969) 3 AER 1006 the defendant's negligence caused an injury to the claimant's neck which necessitated the wearing of a surgical collar. The claimant wore bifocals and the collar inhibited the movement of her head. She fell down some steps sustaining further injury. It was held that her difficulties in seeing were within the risk created by the original negligence. Unlike McKew, Mrs. Wieland was not behaving unreasonably in descending the steps and so the chain of causation was not broken. Eveleigh J. said that "...one injury may affect a person's ability to cope with the vicissitudes of life" but all that arises reasonably in the ordinary course of events will not break the chain.
The defence of contributory negligence
Contributory negligence used to be a complete defence, but the Law Reform (Contributory Negligence) Act 1945 allows the court to apportion liability for damages between the claimant and the defendant where the claimant's negligence has materially added to the loss or damage sustained. Section 1 provides:
- (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..."
The reference in s1(1) to the claimant's share in the "responsibility for the damage" requires a court to consider what contribution the claimant made to his or her loss or damage, and the degree of blameworthiness. For these purposes, the only requirement is that the claimant's actions contribute to the damage. There is no requirement that the claimant must also have contributed to the initial sequence of events which caused the loss or damage. In some situations, the common law has been overtaken by statute. In Froom v Butcher (1976) QB 286 Lord Denning M.R. dealt with what contribution was made by a claimant who failed to wear a seat belt (at p295):
- "Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage." Thus, at p296: "(At times) the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often the evidence will only show that the failure made a considerable difference...In such a case I would suggest that the damage attributable to the failure to wear a seat belt should be reduced by 15%."
The wearing of seat belts then became compulsory (see the Wearing of Seat Belts Regulations 1983 and the Motor Vehicles (Wearing of Seat Belts in Rear Seat by Adults) Regulations 1991). The current thinking would not support limiting damages by a figure of 25% and if, for example, the claimant was thrown out of the vehicle because no seat belt was worn, a substantial finding of contributory negligence should follow. Indeed, in Hitchins v Berkshire County Council the High Court expressed some difficulty in following the logic of Lord Denning's figure of 25% although the ratio decidendi was considered binding. There are two further principles to consider:
- Where the claimant has voluntarily taken on the risks that cause him injury, volenti non fit injuria may extinguish the cause of action.
- Where the claimant was engaged in illegal activity at the relevant time, the principle of ex turpi causa non oritur actio may extinguish the cause of action.
Volenti
If a claimant is volens, he or she has willingly accepted the risk of being injured by the foreseeable behaviour of the defendant. This means that there is considerable overlap between contributory negligence and volenti. Because prior agreement may be taken to extinguish the cause of action, its application can sometimes result in injustice. Contributory negligence has the capacity to be more fair because instead of extinguishing the action, it merely reduces the award of damages by the percentage of contribution made to the loss or damage by the claimant. In Reeves v Commissioner of Police of the Metropolis (2000) 1 AC 360, after two failed attempts, the claimant committed suicide in his cell because of the defendant's failure to take proper precautions while the prisoner was on "suicide watch". The suicide was not a novus actus because preventing it was inevitably a part of the defendant's duty of care, and the court cannot equate a breach in the duty with a breach in the causal chain. The general rule remains that people of full age and full intellectual capacity must look after themselves and take responsibility for their actions. Hence, duties to safeguard people from causing harm to themselves will be very rare. But once it is obvious that this is one of those rare cases, the defendant cannot argue that the breach of the duty could not have been the cause of the harm because the victim caused it to himself. Thus, the defendant will be liable for the consequences of his or her negligence, however objectively unreasonable the claimant’s act may be, although damages may be reduced to take account of the claimant’s contributory negligence: in this case, damages were reduced by 50%.