Historical background
Until the Act was passed, English tort law had held that contributory negligence was a full defence to negligence. This rule composed what is sometimes called the "unholy trinity" of defences to negligence which wrought particular hardship on 19th century workers, and barred them from any compensation for ghastly workplace injuries (the other two are common employment [1] and volenti non fit injuria ). It meant that if an employer was 99% at fault for his worker being mangled in his machinery, but the worker was 1% at fault, then the worker could recover nothing in compensation for injuries. Outside the workplace, an example of the defence is found in Waite v North-Eastern Railway Co [2] where a grandmother and an infant that were hit by a negligently driven train were barred from any claim.
The Act was passed by the new Labour government following World War II, along with a number of other workplace safety and common law reforms (e.g., Law Reform (Personal Injuries) Act 1948).
This harsh common law defence subsisted longer in other countries than in the United Kingdom. An example is seen in The Wagon Mound (No 1) where the claimant conceded that a burning ship accident was unforeseeable in order to avoid the contemporary Australian contributory negligence bar.
This 1945 Act was not based on entirely new principles: the Collision Convention of 1910 had already provided that where two ships collide, blame may be apportioned between the two, so that each's contribution to the accident may be calculated to determine the settlement by way of damages. Often, blameworthiness reflected each party's degree of breach of the COLREGS. Normally blame would be apportioned in simple ratios; 50:50, 60:40, 75:25, etc.) Only rarely would the proportion be 100:0, as in The Oropesa . [3] [4]
in the UK, before the wearing of car seatbelts become obligatory, difficult legal questions arose when a passenger who failed to wear a seatbelt was injured. If the passenger had voluntarily chosen not to wear a seatbelt, was that person volenti to the injury? If so, volenti being a complete defence, the passenger would fail in a claim for negligence. In Froom v Butcher, [5] [6] Lord Denning MR sliced the Gordian knot by declaring that such a passenger was NOT volenti but rather was 20% contributorily negligent in the matter. Denning MR declared that "determining whether one is guilty of contributory negligence is a matter not of the cause of the accident, but of the cause of the damage", and he thereby ensured that the injured passenger could successfully claim against the driver's insurance, albeit that the claim would be only 80% of the loss.
Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.
This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Comparative negligence, called non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the factfinder, usually a jury, must decide the degree to which the plaintiff's negligence and the combined negligence of all other relevant actors all contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence that disallows any recovery by a plaintiff whose negligence contributed even minimally to causing the damages.
Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk".
Ex turpi causa non oritur actio is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. Particularly relevant in the law of contract, tort and trusts, ex turpi causa is also known as the illegality defence, since a defendant may plead that even though, for instance, he broke a contract, conducted himself negligently or broke an equitable duty, nevertheless a claimant by reason of his own illegality cannot sue. The UK Supreme Court provided a thorough reconsideration of the doctrine in 2016 in Patel v Mirza.
Comparative responsibility is a doctrine of tort law that compares the fault of each party in a lawsuit for a single injury. Comparative responsibility may apply to intentional torts as well as negligence and encompasses the doctrine of comparative negligence.
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.
Breaking the chain refers in English law to the idea that causal connections are deemed to finish. Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained by the claimant.
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.
Letang v Cooper[1964] EWCA Civ 5 is an English Court of Appeal judgment, by which it was decided that negligently caused personal injury cannot be recovered under the trespass to the person, but the tort of negligence must be tried instead.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
Farwell v. Boston & Worcester R.R. Corp, 45 Mass. 49, Massachusetts Chief Justice Lemuel Shaw used a contract rationale to prevent a railroad worker from recovering from his employer, Boston and Worcester Railroad, for an injury due to the negligence of a switch tender employed by the same company, even though a third party or passenger would likely have been able to recover for the same injury. Shaw believed that the injured worker was in an equally good—if not better—position to oversee the work of his coworkers than his employer had been. It followed that to allow Farwell to recover compensatory damages would have been to create a moral hazard in the workplace, softening the blow of employee carelessness for those best able to prevent it.
Common employment was an historical defence in English tort law that said workers implicitly undertook the risks of being injured by their co-workers, with whom they were in "common employment". The US labor law terminology was the "fellow servant rule".
Vorster v Santam Insurance Co Ltd and Another is an important case in South African law, in particular the law of delict. It was heard from 17 to 19 November, 1972, with judgment handed down on 22 November.
Hall v Hebert is a leading tort law case decided by the Supreme Court of Canada on the defences of contributory negligence and ex turpi causa non oritur actio.
Venning v Chin (1974) 10 SASR 299 is a Supreme Court of South Australia full court judgment, by which it was decided that in trespass cases, the onus lies on the defendant to disprove fault. However, for injuries caused in highway accidents, the onus is on the plaintiff to prove fault on the part of the defendant.
