Contributory Negligence (Contributory Conduct or Activity)
by Nils Jansen
1. Functions of rules on contributory negligence; terminology
Often, a damaging event is not only attributable to the defendant tortfeasor’s behaviour or sphere of responsibility, but also to the victim’s conduct or activity. Hence, the question arises whether the losses should be borne by either the defendant or the victim alone, or whether they should be apportioned between the parties. European legal systems have traditionally addressed such problems under the heading of the victim’s ‘contributory negligence’ (Mitverschulden; faute de la victime; concorso di colpa della vittima). Nevertheless, for a variety of different reasons, this terminology appears misleading. On the one hand, it seems to presuppose a duty on the part of the victim vis-à-vis him- or herself, and, on the other hand, it conceptually offers no room for a ‘vicarious’ responsibility for third persons and for some kind of strict responsibility for dangerous, though not wrongful, conduct contributing to the damaging event. In substance, the main question concerns the relevance of a legal co-responsibility on the victim’s side on a legal claim for damages. Hence, all European legal systems apply the rules on contributory conduct in the context of all contractual and non-contractual claims for damages (including pain and suffering); these rules are not applied, however, in the context of claims of a different legal nature, such as in the fields of restitution or property law.
The modern rules presuppose a common responsibility of victims and defendants for a given loss. Hence, it is necessary, at least intellectually, to determine the independent contributions of the persons concerned before then, in a second step, addressing the questions of whether and to which extent the defendant should be made liable. Even if there are apparently no alternatives to this approach, today, it is anything but evident in historical perspective. Indeed, Roman lawyers (Roman law) only exceptionally asked such questions, if at all. Rather their discussions were based on the assumption that either the defendant or the victim was alone responsible for the loss in question; hence, they looked for some sort of fault on only one party’s side. True, there is a regula iuris in the Digest giving expression to a rule (D. 50, 17, 203), according to which contributory negligence was a complete defence defeating the victim’s recovery entirely. The underlying principle was apparently that a person incurring loss as a result of her own fault should legally not be regarded as incurring loss. However, this principle, which for centuries set the parameters for the European discussion on contributory negligence, did not have its origin in the Roman law of delict, but rather in the law of legacies; in the Digest it was handed down out of its original context. It is only since medieval times that jurists spoke of a common responsibility (culpa communis viz culpa admixta) regarding some loss. Contributory negligence was now put on par with negligence as unlawful behaviour, for which the victim was to be blamed and which should be sanctioned by denying the victim’s claim for damages. The later discussion concerning a fair apportionment of losses could take this approach as a starting point.
Even if the possibility of the defendant’s and victim’s common responsibility for some loss is thus acknowledged, this does not necessarily entail that the losses should be apportioned between the parties. Rather, up until the 20th century, all-or-nothing solutions prevailed according to which the loss was borne as a whole either by the defendant or by the victim. Often, the argumentation related to the doctrine of causation. Thus, it was seen as decisive whether the defendant or the victim had set the ultimate factor in the chain of causation. An example for such an approach was the English last-clear-chance test, according to which the last chance of avoiding the loss was decisive. Another theory, favoured in civilian systems, was based on the metaphorical idea of fault compensation (compensatio culpae). According to these doctrines, loss which had been caused by both parties had to be borne by the victim alone: either, because his fault was seen to cancel the defendant’s fault or—this was a more differentiated balancing approach—if the victim’s fault was on balance of greater weight.
In contrast to these approaches, the modern European systems of private law usually assume that the loss will be divided between the parties if both the defendant and the victim are responsible for it. Often, however, a single part of the loss resulting from the damaging event is as a whole attributed to one of the parties; this is especially true if an interruption of the chain of attribution is assumed with regard to one part of the consequential loss. With regard to the damaging event and the injury or damage directly resulting therefrom, it is generally acknowledged, however, that the parties must each bear a proportional share of the overall loss, such solutions going back to the natural lawyer Christian Wolff. All those approaches make a division of the overall loss according to a specific quota; guiding ideas are the equal treatment of both parties on the one hand, and the proportionality between liability and factors of legal responsibility on the other (see now explicitly Art 8:101(1) PETL). Even if a victim cannot normally be said to be genuinely at fault, it is a maxim of legal fairness to determine the responsibility for one’s own and for other persons’ loss according to the same criteria. Thus, factors justifying the imposition of liability, such as negligence, must be treated correspondingly as factors that reduce the victim’s recovery. Only where one party’s responsibility clearly outweighs the other party’s contribution, most notably in cases of intentional wrongdoing, the unilateral assignment, rather than a proportional share, of the damages can be justified.
Nevertheless, the value basis of the reduction of recovery does not consist in the violation of genuine legal duties. The relevant standards of conduct are not determined with regard to reasonable behaviour in one’s own interest. Rather, the law asks whether the defendant was entitled to expect the victim to take some precautionary or mitigating measures. Thus, thieves can never refer to the inadvertence of their victims; and in case of incorrect professional advice provided by physicians or lawyers, the argument will not be heard that the victim should have realized that the advice was wrong. This approach has become especially relevant in the context of professional re-training or a medical operation. Of course, while there can never be a genuine legal duty on the victim’s side to undergo such an operation, damages may be reduced, nevertheless, if the victim refuses reasonable measures to cure the injury suffered.
2. General developments
The replacement of the old all-or-nothing approaches with the modern proportional apportionment of the damages has been the most important aspect of the development of the rules on contributory conduct. During the 19th and 20th centuries, the modern solution has been acknowledged everywhere; it has also found its way into the modern principles of European private law (Art 9:504 PECL; Art 7.4.7 UNIDROIT PICC; Art 8:101 PETL; Art 8:403 Acquis Principles) and into the acquis communautaire; see, for instance, Art 8(2) Dir 85/374 concerning liability for defective products; ECJ Case 145/83 – Adams  ECR I-3539, 3592, n 53. Since the second half of the 20th century, this development was accompanied by a parallel restriction of competing doctrinal institutions imposing unilateral burdens on victims. Inadvertently endangering oneself is therefore no longer treated as a waiver of damages, or consent; instead, inadvertence is generally treated in the context of contributory conduct.
Although the questions to be answered in the context of contributory conduct largely parallel those to be answered by the law of torts or delict, most legal systems devote only one or two provisions to this area; this is also true for the modern European Principles. In effect, the legal development has thus been entrusted to the judiciary. Yet, in more recent times, the development of the law of contributory conduct generally mirrors the general developments in the law of torts, as it has been acknowledged that the responsibility for one’s own loss corresponds to the responsibility for the loss of others. Hence, the value basis of contributory conduct is built on the same principles that also underlie the law of torts. Thus, the capacity to understand what is right or wrong and the responsibility for third persons are usually regulated in the law of torts (explicitly, for example, in Art 8(2) Dir 85/374 concerning liability for defective products). More importantly, this correspondence can be clearly seen with regard to the development in the 20th century of liability without fault. This development has been mirrored by a parallel extension of factors justifying a reduction of recovery on the victim’s side (see now explicitly Art 8:101(1) PETL).
Since the 1980s, it has been generally understood that children and elderly persons cannot fully cope with the dangers of modern traffic; at the same time, there is an apparent social need to ensure that the victims of traffic accidents will normally receive compensation from the driver’s insurance. Many countries have therefore introduced new rules privileging those classes of victims. While all those rules are based on similar considerations of policy, details of formulation and doctrinal approach significantly diverge.
3. Legal development: contributory conduct after the damaging event
From a comparative law and legal unification perspective, the main problem in the context of contributory negligence today concerns the question of which rules to apply when the contributory responsibility did not consist in some conduct contributing to the damaging event, but rather relates to some consequential loss in the subsequent development. Many legal systems apply the general rules on the apportionment of damages in this constellation as well (see Art 44(1) OR; Art 6:101(1) Burgerlijk Wetboek (BW); § 254(2)(1) Alt 2 Bürgerliches Gesetzbuch (BGB)), thus regarding all cases of contributory conduct as aspects of one larger problem. In contrast, the common law treats those cases differently; the same is true for some other legal systems (see especially Art 1227(2) Codice civile, for a long time French jurisprudence took the same view; and so, incidentally, did the Roman lawyers). Subsequent loss is not attributed to the defendant’s conduct if it develops within the victim’s sphere of responsibility. Thus, ‘contributory negligence’ only concerns the damaging event, because conduct contributing to the further development of the (consequential) loss is treated as a ‘duty to mitigate the loss’ last-clear-chance test, which is an expression of the general duty to mitigate possible loss resulting from a breach of contract. Thus, as far as this ‘duty to mitigate’ is violated, there is no room for the idea of an apportionment of damages. Rather, the losses must be borne by the victim because it is assumed that the defendant cannot be made responsible for such consequences of the damaging event. Correspondingly, the costs of averting the damage must be borne by the defendant if they are not wholly unreasonable.
A decision between those two approaches is difficult. On the one hand, the common law’s solution is clear and easy to apply. Moreover, it is not easy to understand loss developing exclusively in the victim’s sphere in analogy to delictual responsibility; yet the apportionment of damages can only be supported by this analogy. On the other hand, however, the fact that the subsequent loss developed in the victim’s sphere of responsibility does not negate the defendant’s original contribution; many authors therefore regard it as unfair to make the victim bear the whole loss alone. At present, European lawyers appear to be favouring the common-law approach, but legal development is not yet very clear. While the PETL (Art 8:101(1)) and also the Acquis Principles (Art 8:403) have chosen the approach of the German legal tradition (Austria, Germany and Switzerland), the common-law approach has been followed by Art 77 CISG (sale of goods, international) and subsequently also by the PECL (Art 9:505(1) with Comment A to Art 9:504 and the Comments and Notes to Art 9:505; now also Art III – 3:705(1) DCFR) and by the UNIDROIT PICC (Art 7.4.8(1)). What is more, even in national legal systems following the apportionment-approach, courts may be reluctant to attribute specific types of consequential loss, such as unnecessary expenses for legal advice, to the defendant’s behaviour; thus, they do not even raise the question of common responsibility.
Tony Honoré, ‘Causation and Remoteness of Damage’ in IECL XI/1 (1983) ch 7, paras 144 ff; Helmut Koziol, ‘Rechtsfolgen der Verletzung einer Schadensminderungspflicht—Rückkehr der archaischen Kulpakompensation?’ (1998) 6 ZEuP 593; Dirk Looschelders, Die Mitverantwortlichkeit des Geschädigten im Privatrecht (1999); Athina Kontogianni, ‘Gemeinsame Prinzipien des Europäischen Privatrechts zum Mitverschulden des Geschädigten im Schadensersatzrecht’ in R Schulze and G Ajani (eds), Gemeinsame Prinzipien des Europäischen Privatrechts (2003) 145; Wolfgang Wurmnest, Grundzüge eines europäischen Haftungsrechts (2003) 304-18; Nils Jansen, ‘§ 254. Mitverantwortlichkeit des Geschädigten’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol II/2 (2007).