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236 Chapter 8The tort of negligence

the future; loss of amenities, which means the loss of ability to do things due to physical or

mental disability (the younger the claimant the higher these damages are likely to be, espe-

cially if they prevented the claimant from pursuing a hobby or a sport which had previously

been enjoyed); and loss of future earnings.

Mitigation

A claimant has a duty to take all reasonable steps to mitigate (reduce) the loss suffered.

Damages cannot be claimed for a loss which could have been mitigated by taking reason-

able steps. However, if a reasonable attempt to mitigate the loss actually increases the loss,

the claimant can recover damages to cover this increased loss.

Defences to negligence

Contributory negligence

Contributory negligence is not a complete defence, but reduces the damages payable to the

claimant. Individual damages for personal injuries can run to several million pounds, and

so any percentage reduction could amount to a great deal of money.

The Law Reform (Contributory Negligence) Act 1945 s. 1 provides that:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any

other person...the damages recoverable...shall be reduced to such an extent as the court thinks

just and equitable having regard to the claimant’s share in the responsibility for the damage.

In Badger vMinistry of Defence (2005)an award to a widow in respect of her husband’s

death from lung cancer was reduced by 20 per cent because he had not given up smoking,

despite warnings that this was harming his health. The husband had died at 63. Exposure

to asbestos at work was the main cause of death but smoking was a contributory factor.

In Ehrari vCurry (2006)it was held that a child of nearly 14 who walked into a road

without first looking for traffic was 70 per cent responsible for the accident. She was hit by

a truck driving at 20 mph. The truck driver was negligent in that he had not seen the child

at all, even though he knew that children were in the area.

Contributory negligence is concerned with the claimant’s contribution to the injury

caused by the accident. The claimant’s behaviour after the tort has been committed cannot

amount to contributory negligence. However, if the claimant unreasonably makes matters

worse after the tort has been committed, the damages awarded can be reduced to take

account of this. For example, if a claimant suffered moderate injuries because of the

defendant’s negligence, but suffered much more serious injuries as a consequence of

Froom vButcher (1975) (Court of Appeal)

A motorist was injured by an accident which was not in any way his own fault. He suffered

injuries to his head, chest and finger. If he had been wearing a seat belt (which in those

days was not compulsory), the injuries to his head and chest would have been avoided

altogether.

HeldThe damages in respect of the head and chest injuries were reduced by 25 per cent.

The damages for injury to his finger were not reduced as these would have arisen even if

the claimant had been wearing a seat belt.