Commentary - Contributory negligence is not a deliberate defence clause

Although Tony Martin, the Norfolk farmer convicted of the manslaughter of Fred Barras and wounding o...

Although Tony Martin, the Norfolk farmer convicted of the manslaughter of Fred Barras and wounding of Brendan Fearon while they attempted to steal from his home, is no longer being sued by Mr Fearon for the injuries sustained during the burglary, it is interesting to look at the defences that would have been open to him if the action had gone ahead. One of these defences - perhaps surprisingly - would have been contributory negligence.

The term 'contributory negligence' is misleading in two respects. Firstly, it implies it is only a defence in respect of negligence claims; and secondly, it suggests the claimant will only suffer a reduction in their damages if their own behaviour itself amounts to negligence.

Contributory negligence is no defence to claims founded on most intentional torts, but it is available in assault and battery cases. Furthermore, the Law Reform (Contributory Negligence) Act 1945, which introduced contributory negligence refers to 'fault', rather than simply negligence.

There are precedents that would have supported a finding of contributory negligence on the part of Mr Fearon. In Revill v Newbery (1996), the Court of Appeal upheld a finding of two-thirds contributory negligence in respect of a burglar who suffered gunshot wounds in similar circumstances as Mr Fearon.

In any event, insurers need to check carefully that the relevant policy does have effect in respect of claims where injury has been caused deliberately, or even recklessly, rather than through negligence. 'Road-rage' cases are a good example of such claims.

Simon Morrow, BLM Manchester

These law reports are contributed by insurance law firm Berrymans Lace Mawer (http://www.blm-law.com).

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