Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions
James Goudkamp, Associate Professor of Law and Donal Nolan, Professor of Private Law have recently published an article in the Modern Law Review entitled ‘Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions’. The research was funded by the University of Oxford's John Fell Fund.
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'.
In their article, Goudkamp and Nolan report the results of an empirical study of 368 first instance decisions handed down in England and Wales between 2000 and 2014. The two central questions at which they looked were: how often a defendant's plea of contributory negligence was successful; and by how much a claimant's damages were reduced when a finding of contributory negligence was made. They also considered the extent to which the answers to these questions depended on the following variables: the claimant's age; the claimant's gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. The study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine's operation.
The article is the first product of a wide-ranging empirical investigation of the operation of the contributory negligence doctrine in the courts.