S 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides as follows:
‘When any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.’
S 4 of the same Act provides that ‘“fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.’
Following the decision of the Court of Appeal in the Pritchard case, it seems clear that contributory defence is not available as a partial defence to a claim for either battery, assault or false imprisonment.
Mrs Pritchard (P) worked at a Co-op store in Bristol. Feeling unwell, P rang her store manager, Mr Wilkinson (W), and asked to take the day off work as holiday. W refused the request. P went to the store to confront him. Following an angry verbal exchange, W took hold of P’s arms firmly and held them in front of her. A struggle ensued in which P bit W. P then stumbled on the step at the store entrance and hurt herself. P subsequently brought an action against D claiming damages for, inter alia, assault and battery by W. The judge found that while there had been a degree of provocation by P, it was not open to him to reduce P’s damages under the LR(CN)A 1945. The CA dismissed D’s appeal on this point: ‘the 1945 Act cannot, in principle, be used to reduce damages in cases where claims are based on assault and battery’ (Aikens LJ at [63]).
The CA held that it was now established following the decisions of the House of Lords in Reeves v Commissioner of Police and Standard Chartered Bank v Pakistan National Shipping Corpn (Nos 1 & 2) that for the purposes of s 4 fault in the case of the claimant meant ‘negligence, breach of statutory duty or other act or omission’ which at common law would prior to the Act would have given rise to a complete defence of contributory negligence. This construction recognised that the purpose of the Act was to relieve claimants whose claims would previously have failed rather than to reduce the damages which would previously have been awarded to claimants.
Aikens LJ held that cases since 1945 in which the court had either suggested that damages in trespass to the person cases might be reduced or had actually reduced damages must be viewed as wrongly decided.
While Smith LJ agreed that those decisions in which damages for trespass to the person had been reduced on account of contributory negligence were wrongly decided, she thought that the court ought in appropriate cases to have the power to reduce the claimant’s damages. Smith LJ accepted that such a change in the law could only be brought about by Parliament.
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