James Goudkamp is a professor of the Law of Obligations at Oxford University.  James has published over 100 written works and has recently published, with co-author Donal Nolan a book entitled ‘Contributory Negligence in the Twenty-first century’.

This is not just another book on the legal principle of contributory negligence and how it has been applied through the years by the courts, although chapter 2 contains a very good summary of the basic concepts surrounding contributory negligence and the assessment of it. This is a distinctive book because it documents a study of 572 first instance decisions and 129 appellate decisions on contributory negligence handed down by UK courts between 200 and 2016. The study considers two primary questions, how often a contributory negligence argument is successful and the degree of contributory negligence applied. The data from those two enquiries was analysed further by age, gender, type of damage, type of claim (road accident, work accident, public liability) and so on.

This is of course a study of UK decisions not Australian decisions, of judicial decisions not decisions of tribunals such as the Claims Assessment and Resolution Service (operating in New South Wales). The study does not take into account the cases which may have settled with some discount for contributory negligence or cases where primary negligence was denied but then compromised in lower overall settlement sum.

The study considered 498 personal injury claims of which 199 were road accident claims. Contributory negligence was successfully pleaded in 60% of personal injury cases (65% in road accident cases) and the average discount was 40% in personal injury claims generally and 43% in road accident cases. Further analysis of first instance decisions is contained in chapter 4 and appellate decisions in chapter 5. Chapter 6 looks at the data relevant to road accidents, chapter 7 considers work related accidents and chapter 8 deals with professional negligence actions.

In conclusion, the authors note the difficulties in their study and observe the ‘sea-change’ in the way court decisions are studied from precedents to be analysed in terms of their doctrine to empirical analysis of them as data.  Despite legislative change abolishing or restricting the availability of negligence actions the authors suggest that contributory negligence ‘will continue to be a significant feature of the private law landscape, and a fruitful subject of scholarly enquiry, for some time to come’.

I would add to those sentiments in that in New South Wales following the recent introduction of the statutory benefits scheme, issues of contributory negligence have been brought to the fore. For example, the entitlement to continued statutory benefits ends 26 weeks after the accident if contributory negligence is assessed at more than 61% (ss 3.11 and 3.28) and weekly benefits can be reduced for contributory negligence after the first 26 weeks (s 3.38). When you consider the availability of data from the regulator and the Dispute Resolution Service, I feel it will not be long before the Motor Accident Injuries scheme provides fertile ground for such a study.

Published by Oxford University Press, ‘Contributory negligence in the twenty-first century’ is a good read and available from the publisher, international internet bookshops and, after 20 May 2019, in all good Australian (legal) bookstores.

Written by Belinda Cassidy

Belinda Cassidy holds the position of Special Counsel at Stacks Goudkamp. She had previously held the position of Principal Claims Assessor at the State Insurance Regulatory Authority (SIRA) for 18 years, and currently holds an appointment as a Claims Assessor under the Motor Accidents Compensation Act.