scholarly journals The Development of the Concept of Contributory Negligence in English Common Law

2016 ◽  
Vol 12 (1) ◽  
pp. 61 ◽  
Author(s):  
Emanuel G.D. van Dongen ◽  
Henriëtte P. Verdam
Keyword(s):  
Common Law ◽  
Contributory Negligence

scholarly journals Apportionment of damages for contributory negligence: a fixed or discretionary approach?

Legal Studies ◽  
2015 ◽  
Vol 35 (4) ◽  
pp. 621-647 ◽  
Author(s):  
James Goudkamp
Keyword(s):  
Common Law ◽  
Important Conclusion ◽  
Contributory Negligence ◽  
The Common

In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules.

scholarly journals Contributory negligence in the Court of Appeal: an empirical study

Legal Studies ◽  
2017 ◽  
Vol 37 (3) ◽  
pp. 437-467
Author(s):  
James Goudkamp ◽  
Donal Nolan
Keyword(s):  
Empirical Study ◽  
Common Law ◽  
England And Wales ◽  
High Court ◽  
Contributory Negligence ◽  
Court Of Appeal

In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine's operation in first instance courts. Our dataset comprised every appellate decision in which contributory negligence was an issue that was handed down during the study period and which we were able to access electronically. The most important findings include the fact that appeals succeed more frequently in relation to the existence of contributory negligence than with respect to apportionment; that the overall prospect of winning an appeal on contributory negligence does not depend on whether the first instance court is a county court or the High Court; that claimants are nearly twice as likely to win an appeal regarding the existence of contributory negligence as defendants; and that by far most common discount imposed following an appeal is 50%.

to read the accounts and, had he done so, he would probably have discovered the extent of the defendant’s misrepresentation. It was held, nonetheless, that the plaintiff had relied on the false statement and was therefore entitled to rescission of the contract. If Redgrave v Hurd was decided today, it might be necessary to reconsider whether the court was correct in reaching this conclusion. It is clear that the common law counterpart of a misrepresentation, namely the negligent misstatement, requires reasonableness of reliance. At the very least, this issue should be ‘centre stage’ today. How would it be resolved? Policy dictates that if the misrepresentation is fraudulent an opportunity of inspection (spurned or taken) should not bar reliance on the misrepresentation. To hold otherwise would be a green light for the more effective ‘con artist’! If, on the other hand, the misrepresentation is wholly innocent (particularly if greater expertise resides in the representee) reliance may not be reasonable. As regards negligent misrepresentation, the policy to be adopted is not clear; perhaps the answer lies in the respective skill and knowledge of the parties, particularly as it has now been recognised that at least for the purposes of an action under s2(1) of the Misrepresentation Act 1967, apportionment of damages for contributory negligence is a possibility.

1995 ◽  
pp. 233-233
Keyword(s):  
Common Law ◽  
Green Light ◽  
The Other ◽  
False Statement ◽  
Other Hand ◽  
Contributory Negligence ◽  
The Common ◽  
Con Artist

scholarly journals DRIFTING TOWARDS PROPORTIONATE LIABILITY: ETHICS AND PRAGMATICS

2015 ◽  
Vol 74 (1) ◽  
pp. 49-77 ◽  
Author(s):  
Kit Barker ◽  
Jenny Steele
Keyword(s):  
Common Law ◽  
Liability Rule ◽  
Pragmatic Argument ◽  
Joint And Several Liability ◽  
Contributory Negligence ◽  
Proportionate Liability ◽  
Logical Extension

AbstractThis article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

scholarly journals Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion

2016 ◽  
Author(s):  
James Goudkamp ◽  
Lewis Klar
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Contributory Negligence

The courts in several common law jurisdictions have adopted a causal potency criterion forthe purposes of apportioning damages for contributory negligence. It has recently beensuggested that Canadian courts should follow suit. This article explores the causal potencycriterion. It is argued that the criterion has been left unexplained with the result that it is anempty concept. Moreover, no compelling justification has been offered in support of takingcausal potency into account. Accordingly, adopting the causal potency criterion would bea retrograde step for Canadian tort law.

Contributory negligence as a defence to battery

Legal Studies ◽  
1984 ◽  
Vol 4 (3) ◽  
pp. 332-342
Author(s):  
A. H. Hudson
Keyword(s):  
Common Law ◽  
Contributory Negligence

At one time it would have been possible to say with firm confidence that contributory negligence was never a defence to battery except, perhaps when the conduct of the plaintiff was so clearly the cause of the harm that had befallen him that it could be treated as contributory intent.In more recent years, however, a number of qualifications to any such terse summary have appeared and somewhat surprising conflicts of opinion between various common law jurisdictions have arisen, both on the principal question and a number of associated problems.

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