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James Bell: Contributory negligence

By Principal Lawyer, Clinical Negligence

A concept familiar to personal injury lawyers - contributory negligence - is a rare one in clinical negligence claims.Contributory negligence is an allegation that Defendants raise to reduce the value of a claim. It is commonly alleged in road traffic accident claims when one party admits primary liability but alleges that the other driver (the Claimant) was also at fault in some way e.g. Drove too fast, did not brake quickly enough etc.Contributory negligence can easily be alleged in this type of claim as both drivers (should) have the same level of expertise in driving a car.Contributory negligence is a different story when one party is a professional and the other party is a non expert. In that situation the professional is almost always at fault on a 100% basis.For example, if an A and E doctor negligently advises a patient that their foot is not broken and the patient suffers in pain for 5 months, the doctor cannot allege that the patient contributed to the situation by failing to get a second opinion after 2 weeks.Public policy dictates that the professional is negligent and is 100% liable. The buck has to stop somewhere and it stops with the professional.One case where the patient was at fault is the case of poor Mrs Pidgeon.
The Claimant, Miss Pidgeon, sought damages in respect of a cervical smear which was wrongly reported as normal by the Defendant in 1988. In 1997 Ms Pidgeon was diagnosed with cervical cancer. The Defendant argued that Ms Pidgeon’s conduct in failing to undergo routine cervical smear tests, despite repeated requests to do so, amounted to a break in the chain of causation, thus absolving the Defendant from liability altogether or alternatively amounted to contributory negligence by Ms Pidgeon. On considering the evidence the Court was satisfied that Ms Pidgeon, although unaware of the incorrect 1998 result, was spoken to on no less than seven occasions by her doctors about the need for her to have a smear and in 1991 and 1994 she received two letters from the cervical cancer screening programme urging her to undergo smear tests.The Court found that Ms Pidgeon’s conduct did not break the chain of causation but she was two-thirds responsible for her injury and thus she was entitled only to one third of the assessed damages.James Bell is a Partner in the Russell Jones & Walker clinical negligence team. If you or a member of your family have a clinical negligence enquiry please call our expert clinical negligence solicitors on 0800 916 9049, fill in our short online claim form or email and one of our specialist clinical negligence team will be in touch.