Contributory Negligence in the 21st century: perception and reality

James Goudkamp and Donal Nolan, funded by the University of Oxford's John Fell Fund, from April 2014 to April 2016

The doctrine of contributory negligence is one of the most important rules in English law. It reduces the amount of compensation payable to victims of wrongs by a percentage of the total award where the victim is partly to blame for his or her own injury.

Examples of conduct that is likely to constitute contributory negligence include failing to wear a seatbelt while a passenger in a motor vehicle, failing to check the depth of a swimming pool before diving into it, and crossing a road without looking for oncoming traffic.

Because the doctrine of contributory negligence deals with everyday situations, it is frequently considered by the courts, and relatively small adjustments in its scope can have sizeable financial consequences, most obviously for wrongdoers and victims, but also for the size of the liability insurance premiums that people generally have to pay. Although academic writing and judicial decision-making regarding the contributory negligence doctrine are often heavily influenced by perceptions about its practical operation, remarkably little is known about how it works 'on the ground'.

Thus, the purpose of the proposed research is to investigate how the doctrine is applied in the English courts. Specifically, we want to discover: (1) how frequently the doctrine applies; (2) the precise extent to which compensation is reduced when it applies; (3) whether the doctrine operates differently in different contextual settings (for example, is the doctrine handled in the same way by the courts in medical negligence cases as it is in workplace accident cases?); and (4) the degree of control that appellate courts exert over trial judges' deployment of the doctrine. These are all important issues regarding the doctrine of contributory negligence about which next to nothing is known.

The first stage of this project concerns contributory negligence in trial courts. An article based on this part of the project is available: James Goudkamp and Donal Nolan, ‘Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions’ (2016) 79 Modern Law Review 575–622.

The second stage of the project is now available: James Goudkamp and Donal Nolan, ‘Contributory Negligence in the Court of Appeal: An Empirical Study’ (2017) Legal Studies. Two books based on this research are forthcoming, to be published by Oxford University Press. The first volume will be entitled ‘Contributory Negligence in the Twenty-First Century’ and it will offer a comprehensive empirical survey of the contributory negligence doctrine. The second book will be entitled ‘The Reduction of Damages for Contributory Negligence’. This book will explore how the courts discount damages for contributory negligence in certain frequently recurring situations and it will have a practical focus.