PI Brief Update

Contributory Negligence: Are Claimants to Blame?

06/01/22. Dr. Mark Burgin BM BCh (oxon) MRCGP describes the emerging principles which guide how the issue ofcontributory negligencehas been approached.

The rulings on contributory negligence are still under development and at present often appear to be arbitrary or used to balance a decision that seems unduly harsh.

The general rule that ‘you must take your victim as you find them’ has been applied patchily in contributory negligence.

The three leading principles that are guiding decisions are the ability of one party to harm the other (power), the duty to create safe systems and vulnerabilities (disability).

The evidence required to argue these principles is largely absent because the relevant experts are more often found giving writing reports for criminal than civil courts.

Power Relations

It has been recognised in car v pedestrian cases that a car driver has a greater responsibility to drive safely than the pedestrian has to walk safely.

The reasoning given in court reports varies but appears to be generally based upon the ability of the one to cause harm to the other (see HGV v car cases).

In professional negligence cases there is usually a power difference between the professional and the claimant and this is reflected in the decisions.

Where the claimant has made an obviously foolish choice and the professional has made a more minor error the discount tends to be high.

Duty to Create Safe Systems

When the negligence occurred on the background of poor systems which have contributed to the risk, any contribution from the claimant is less important.

The professional knew (or should have known) about the poor systems and should have made adjustments to protect the claimant.

This additional failing does not protect the professional but makes the claimant’s negligence less significant as a safe system allows for imperfect claimants.

Whether the court should assume that the system would have been reasonable or only non-negligent when considering whether it would have protected the claimant is not clear.

Disability

Where the individual has disabilities the professional has additional responsibilities to make reasonable adjustments.

A claimant who suffers from memory problems might be unable to follow the professional’s instructions so they were not ‘at fault’.

Where the claimant does not fall under the Equality Act the professional can reasonably state that they were unaware of the disability.

The court is entitled to consider what reasonable adjustments could have been made for that claimant when considering whether the claimant should suffer a discount.

Conclusions

The three leading principles on contributory negligence can be supported with evidence from a disability analyst with an understanding of reasonable adjustments.

Disability analysts are commonly used as a cheap alternative to a multi-disciplinary team assessment because the disability report answers the material questions.

Criminal courts consider material the nature of the person whereas civil courts prefer to use general rules that do not consider the claimant’s nature.

It is unjust to ignore the claimant’s nature when considering whether they were partially to blame for their losses.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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