van Dongen and Verdam on Contributory Negligence in England

Emanuel G.D. van Dongen and Henriëtte P. Verdam, Utrecht University ‘s Molengraaff Institute for Private Law, have posted The Development of the Concept of Contributory Negligence in English Common Law, which appears in the Utrecht Law Review 12 (2016):. 61-74:   

The injured party’s own conduct which has contributed to the damage that he has suffered has been a bar to the recovery of damages for centuries in the common law tradition. This article describes and analyses the historical development, from the early modern period until the Law Reform (Contributory Negligence) Act of 1945, of the way in which English common law dealt with cases in which the behaviour of the injured party contributed to the occurrence of his damage – nowadays called ‘contributory negligence’. Historically, contributory conduct was linked to the (broader) question of causation. The way in which cases involving contributory negligence were dealt with slowly developed from a very strict rule, depriving the injured party of his action even in the presence of the slightest degree of negligence on his part (leading to a so-called all-or-nothing approach), into a more lenient approach, in which attempts aimed at doing justice to the degree to which both parties contributed to the accident were made during the 19th century. Furthermore, juries regularly mitigated the damages they awarded, rather than applying the all-or-nothing rule. The idea of a partition of damages seems to have emerged in English common law around the end of the 19th century. In 1945, the possibility of a reduction, based on the respective degrees of the responsibility of the parties, was officially introduced with the Law Reform (Contributory Negligence) Act, which is still in force today.