Travel back seven decades: the Law Reform (Contributory Negligence) Act 1945 was given Royal Assent on 15 June 1945; three years later, on 5 July 1948, the NHS was founded.

At the level of principle, the statute effected a radical change in the law by abolishing the position at common law by which any negligence of the Claimant, however slight, afforded a complete defence if it was part, even a small part, of the cause of the damage. Instead, to use the wording of s. 1:

“Where any person suffers damage as a result partly of his own fault … the damages recoverable 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.”

In practice though, as regards clinical negligence claims over the last 70 years, the defence of contributory negligence has been raised more in faint hope than any real expectation of success. Indeed, to date, there remains only one clinical negligence case in the jurisdiction of England and Wales where a judge has made a deduction for contributory negligence, namely HHJ Bullimore in Pidgeon v Doncaster HA [2002] Lloyd’s Rep Med 130. Is that now at risk of changing and, if so, why and how does one guard against it on behalf of claimants?

Some commentators have suggested that the seminal case of Montgomery v Lanarkshire Health Board [2015] AC 1430, which swung the pendulum in favour of claimants on the issue of consent, may have the effect of also breathing new life into the partial defence of contributory negligence. At [81], Lord Kerr and Lord Reed (with whom the other Justices agreed) stated this:

“The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.”

The argument goes that, by the Supreme Court insisting on a collaborative doctor-patient relationship, and thereby calling time on (in effect) a ‘doctor knows best’ culture, the concomitant reluctance to blame the patient if anything goes awry which that form of medical paternalism entailed, is and was also lessened. In short, the door is part-opened to arguments for contributory negligence getting through.

In the context of clinical negligence claims, allegations of contributory negligence may take different forms, such as failing to give a full history; or failing to re-attend when symptoms persist; or failing to undergo treatment or testing. It is instructive to view such allegation through the prism of Good Medical Practice (“GMP”) as published by the GMC, which came into effect now over seven years ago.

Take, for example, history taking and, on the other side of that coin, failing to give a full history, which may necessarily assume the patient has a true grasp of what is and is not relevant. Paragraph 15(a) of the GMP requires the clinician to: “adequately assess the patient’s conditions, taking account of their history (including the symptoms and psychological, spiritual, social and cultural factors), their views and values; where necessary, examine the patient”. To the extent that the patient explains the alleged failure to give a full history as a function of his or her “symptoms and psychological, spiritual, social and cultural factors” this rebounds, in the first instance, on the doctor.

Next, as potentially relevant both to meeting allegations of failure to provide a full history and failing to re-attend, note for example paragraph 21 of the GMP, which requires that:

“Clinical records should include:
(a) relevant clinical findings
(b) the decisions made and actions agreed, and who is making the decisions and agreeing the actions
(c) the information given to patients
(d) any drugs prescribed or other investigation or treatment
(e) who is making the record and when.”

Given that sometimes meeting these exacting requirements is honoured in the partial breach, they surely assist patients faced with such allegations of contributory negligence, given that the Court is ever likely to first scrutinize what the doctor said and did (and conversely what he or she did not say or did not do). In this regard, paragraphs 27 and 32 of the GMP should also be noted because they respectively make clear that doctors need to have regard to – and so first assess – the patient’s level of vulnerability and the ability to gauge information, both of which may provide an answer to why the patient acted (or omitted to act) in the ways challenged by allegations of contributory negligence.

Paragraph 49 of the GMP sets out quite the list of responsibilities (as to which see also paragraph 44 of the GMP), including to ensure the proper exchange of information not only as between doctor and patients but between medical practitioners:

“You must work in partnership with patients, sharing with them the information they will need to make decisions about their care, including: their condition, its likely progression and the options for treatment, including associated risks and uncertainties; the progress of their care, and your role and responsibilities in the team; who is responsible for each aspect of patient care, and how information is shared within teams and among those who will be providing their care”.

In short, reliance on these first principles of good medical practice is the way to keep the focus resolutely on the doctor, who after all, in raising any allegations of contributory negligence bears the burden of proof in seeking to establish them.

Lastly, go back (as ever) to the words of the 1945 Act: they include “… suffered as the result partly of his own fault …”. This means that in order for any given Claimant’s acts or omissions to entitle the Court to make a reduction for contributory negligence those acts or omission must have been part of the cause of the damage. The Claimant’s carelessness or unlawful behaviour, however reckless, which does not actually cause the damage claimed for cannot be the basis for a reduction in his damages. Holding fast to that proposition will provide the answer to allegations of contributory negligence based on, say, lifestyle.

For example, in Bryant St George v Home Office [2007] EWHC 2774 (QB), the Claimant entered prison addicted to drugs and alcohol and had suffered withdrawal seizures and epileptic fits in the past. A few days later, he fell from his bunk, suffered a head injury, had a prolonged epileptic fit, and was left with brain damage. He successfully contended that the prison, having been informed of his condition and history, had been in breach of their duty of care in allocating him a top bunk; and were also in breach as a result of a number of delays in treating him after his fall and by failing to clear his airway and administer oxygen leading to his brain damage. At first instance, Mackay J at [15] made a deduction of 15% for contributory negligence finding that:

“… the claimant must be taken to have foreseen a risk of harm to himself from his drug taking habits. It is not necessary to make this claim of contributory negligence good that the claimant should have foreseen the precise way in which the harm to him might come about. It is enough if he is aware that taking drugs was something that gave rise to a risk to his health. That is plainly something of which he must have been aware.”

This was though reversed by the Court of Appeal at [2009] 1 WLR 1670, which held that the Claimant’s “fault” (as the appellate court agreed it to be) in becoming addicted to drugs and alcohol in his mid-teens was not a potent cause of the status and the consequent brain damage that was triggered by his fall. It was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff to be properly regarded as a cause of the injury. Moreover, the Court of Appeal held that even if the Claimant’s injury had been partly the result of his fault in becoming addicted to drugs and alcohol, it would not have been just and equitable to reduce his damages having regard to his share in the responsibility for his injuries. He had told prison staff about his addiction and previous seizures. His position was analogous to that of a patient admitted to a rehabilitation clinic for the express purpose of being weaned off his addiction to drugs. If the same thing had happened to such a patient, his damages would not be reduced for contributory negligence.

Nothing was actually said in express terms about contributory negligence in Montgomery. Of course, the absence of a body of case-law in this jurisdiction supportive of arguments for contributory negligence may be a function of shrewd settlements where the potential sting in that issue has been drawn by sensible compromise before it reaches any trial judge.

However, for the reasons given above, it is still to be doubted that this will change soon. “Good Medical Practice” is likely to provide a good answer to allegations of contributory negligence.