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’. James Goudkamp and Donal Nolan are engaged in a large-scale research project that is intended to fill this significant gap in our understanding of the law in this area.

They have recently published a second paper from their research. This paper reports the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. It follows an earlier paper from the same research project, which concerned trial courts.

In their second paper, James and Donal looked at all Court of Appeal decisions on contributory negligence handed down between 2000 and 2015 that were accessible online. Of the 112 claims in the dataset, 42% concerned appeals from the High Court and 58% appeals from a county court. The vast majority of the claims (92%) were for personal injury, with 7% being for property damage, and only 1% being for pure economic loss.

Findings

James and Donal made the following findings:

Findings of the research on contributory negligence in appeals

  • More appeals (56%) were about the discount rather than whether the claimant was guilty of contributory negligence (44%). 
  • Claimants brought 41% of the appeals, and defendants 59%.
  • The Court of Appeal was more likely to interference in relation to guilt than on discount.
  • The chances of a successful appeal on the discount amount were similar for claimants and defendants, but claimants were almost twice as likely as defendants to succeed in appeals on guilt.
  • Reductions in discounts awarded tended to be bigger than increases, when changes to discounts were made, suggesting that the Court of Appeal tends to look favourably upon claimants in contributory negligence cases.
  • The average and most popular discount to sums awarded following an appeal was 50%.

The Court of Appeal was much more likely to interfere with respect to the discount where the claimant was a child, and much more likely to interfere in relation to the existence of contributory negligence where the claimant was female.

Further work

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’. That book will explore how the courts discount damages for contributory negligence in certain frequently recurring situations and it will have a practical focus. 

James and Donal commented:

The project was inspired by the explosion in the online availability of judgments, which has made empirical analysis of court decisions much more feasible than it used to be. Empirical analysis of this kind is very time-consuming, and our research would not have been possible without a grant from the John Fell (OUP) Fund, which enabled the researchers to employ research assistants and a statistician.

Read the paper