Contributory negligence in public liability claims: 80 years of the law reform (contributory negligence) Act 1945

This year marks 80 years since the Law Reform (Contributory Negligence) Act 1945 (“the Act”) came into force. This important piece of legislation introduced a fairer approach, allowing courts to apportion responsibility and reduce damages “to such extent as the court thinks just and equitable.”

Our recent webinar on contributory negligence in Public Liability (“PL”) claims discussed:

• The legacy of the Act and the legal test for defenders
• How the courts have apportioned liability in PL claims; and
• Practical Tips to successfully argue contributory negligence in PL claims.

The legal test

For defenders, it is not enough to simply show that the pursuer was careless. Defenders require to demonstrate that the pursuer’s actions caused or contributed to the harm which occurred. The test is an objective one and it is fact sensitive.

If a defender can establish both fault and causation on the part of the pursuer the court will then consider what percentage of the damages awarded to that pursuer should be deducted – based on what is “just and equitable”.

Authorities

Our webinar included an interactive section in which we discussed the facts of some well known cases and our attendees voted as to what level of deduction for contributory negligence they thought had been made.

• McClafferty v British Telecommunications PLC [1978] SLT 327, was a tripping case in which the pursuer tripped on a manhole cover. Whilst the court held the protrusion (five eighths of an inch) was not the sort which would have prevented a reasonably foreseeable injury to people using the pavement, they stated that had liability been established, a 50% reduction for contributory negligence would have been appropriate, highlighting the pursuer’s failure to keep a good look out and to watch where she was placing her feet.
• Brown v City of Edinburgh DC [1998] GWD 32-1675 was another tripping case in which the pursuer tripped after stepping into a pothole. Contributory negligence was assessed at 20% on the basis that the pursuer was familiar with the road layout and had knowledge that there were potholes.
• In Tomlinson v Congleton Borough Council [2004] 1 A.C. 46 the claimant dived into a shallow lake in a country park owned by the defendant. Swimming was not permitted in the lake and there were warning notices stating, “dangerous water, no swimming”. The House of Lords determined that the defendant was not liable and that the risk had arisen due to the claimant’s own actions.
• Hodgson v Castlehill Housing Association Ltd [2023] SC Edin 5, is a decision of the All-Scotland Personal Injury Court. The pursuer lost her balance on a set of unlit stairs and fell. The court held the defender had been negligent and no deduction for contributory negligence was made. The Sheriff emphasised that the onus lies on the defender to prove that the pursuer’s actions fell below the standard of a reasonable person. The defender had not done so and the Sheriff accepted the pursuer’s account that she had descended the stairs carefully, step by step, using the handrail, for as long as she was able to do so.

Key takeaway

There is no fixed formula and apportionment is, very much, discretionary and fact specific. This means that the facts really do matter and early investigation is key to ensure, for example, that documents such as inspection/repair/maintenance records and physical evidence such as CCTV and locus photographs/measurements of any alleged defect are retained.

Conclusion

Eighty years on, the Act continues to underpin a balanced approach to fault and compensation in Scottish PL claims. Courts expect both occupiers and individuals to act reasonably, with each case turning on its own specific facts. Effective defences are built on prompt investigation and clear, evidence-based arguments - early investigation and contemporaneous evidence capture is key!

If you would like to receive a recording of our webinar or require advice/assistance with any public liability claims please get in touch with our insurance team.