It has always been something of a rarity to find an allegation of contributory negligence in a defence to a clinical negligence claim. One of the better known cases where the court did find contributory negligence is the case of Pidgeon-v-Doncaster HA, 23 October 2001, judgment of HHJ Bullimore. It is reported on Lawtel but not in the law reports. The defendant had negligently reported a cervical smear test result as negative but the claimant had then failed to respond to a number of requests for further tests. The defendant sought to avoid liability, contending that the claimant's failures broke the chain of causation between its initial negligence and the claimant's injury. The judge rejected that contention but found that the claimant had been contributorily negligent and found her two-thirds responsible for her injuries.
In P, deceased-v-Sedar, unreported, 11 March 2011 but available on Lawtel, HHJ Mitchell distinguished Pidgeon. The defendant had negligently reassured the claimant following an examination for breast cancer. Two follow up letters were not answered because the claimant had moved. The court found that it was difficult to find her at fault for that and it was not a case for a finding of contributory negligence.
In the past 12 months I can think of six clinical negligence cases which I have handled on behalf of claimants in which contributory negligence has been pleaded against them.
I will only cite examples from the recent cases of mine where liability has been resolved.
- The claimant had been wrongly prescribed a drug which was contra-indicated by reason of her history of a particular condition. The defendant denied negligence, saying that she had asked the claimant about that condition and had been given reassuring answers. The claimant denied that. The defendant pleaded that the claimant had been contributorily negligent in not giving accurate information about her history to the defendant.
- The claimant was being treated for a severe depression, was known to be at risk of suicide and was wrongly allowed home without adequate protection for his safety. He shot himself. The defendant pleaded contributory negligence against the claimant for shooting himself.
- The defendant alleged contributory negligence because the claimant had drunk excessive amounts of alcohol, thereby exacerbating his loss of function, incapacity for work and need for care.
I do not have neat answers as to whether in these cases the allegation of contributory negligence ought to have been made or was likely to succeed. Certainly in the first case I wondered how, if the defendant was found negligent in not eliciting the information, the claimant could be contributorily negligent in not providing it.
In relation to the suicide attempt case, there is authority that a finding of contributory negligence may be appropriate, even though the actions of the deceased were deliberate and even when the defendant's duty of care was to guard against suicide. In Commissioners of Police for the Metropolis-v-Reeves  AC 360, the House of Lords held that a finding of contributory negligence of 50% was appropriate where a detained man of "sound mind" had taken his own life when in the custody of the (negligent) police.
In Corr-v-IBC Vehicles Limited  1 AC 884 the House of Lords considered a case where an employer's breach of duty had caused the employee psychiatric injury, namely depression, and his later suicide. Lords Bingham and Walker considered it inappropriate to reduce damages for contributory negligence in that case. The majority - Lords Scott, Mance and Neuberger - thought that in principle a deduction for contributory negligence was appropriate. Lord Neuberger's speech is of particular interest as he suggested that there would be a range of cases from those where the person committing (or attempting) suicide was of sound mind and therefore fully responsible for his actions, to those where his will and understanding were so "overborne by his mental state" that it would be wrong to regard him as having responsibility for his actions. Some cases would lie in between. He thought that the principle of autonomy was sufficiently important that it would be wrong to rule out a finding of contributory negligence - and thus, responsibility - is every case where the person committing suicide was not of "sound mind".
Note that neither case was a clinical negligence case. In a case where the health authorities have wrongly allowed a patient to leave a hospital and that patient has then taken or has tried to take their own life, the claimant/deceased's mental condition will be highly relevant to the question of liability, as well as any question of contributory negligence. The more severe the patient's mental illness or condition, the more easier it might be to establish primary liability and the more difficult to establish contributory negligence. In contrast, the less severe the condition, the harder it will to establish primary liability but the easier it might be to establish contributory negligence. That said, it is of course possible in principle that a court could make findings both of liability against the defendant and contributory negligence in a clinical negligence case where the deceased had committed suicide and the defendant's duty was to treat that condition with skill and care.
In relation to what might euphemistically be called lifestyle issues, the use of allegations of contributory negligence is potentially controversial and far-reaching. Clearly a claimant who is a lifelong smoker might have a shortened life expectancy below the "normal" range. Therefore their smoking is relevant to causation and to the quantum of the claim. Can it ever be regarded as negligent? Is drinking too much alcohol negligent? Is being obese negligent? Is participation in dangerous sports negligent?
Suppose a patient's smoking has caused or made a significant contribution to ischaemia in his right leg. Due to negligent delays he suffers an amputation which would probably have been avoided but for the delay but would certainly have been avoided had he not smoked so much over many years. Is contributory negligence an appropriate (partial) defence in such a case? Medical professionals are daily dealing with patients whose own choices have led to their requiring help, be it drinking too much, a choice to intervene in a fight, to play rugby or to do some DIY without the appropriate tools (a personal recollection!). If negligently treated, are they to have their compensation reduced because they bore responsibility for the injury?
In Ryan St George-v-Home Office  4 All ER 1039 ,  1 WLR 1670 the claimant had a withdrawal seizure and fell from a prison bunk suffering brain damage. Although, it was held, he was at fault, within the meaning of the Law Reform (Contributory Negligence) Act 1945, for becoming addicted to drugs in his teens, that was not a potent cause of the accident. The Court of Appeal held that the prisoner's position was analogous to a patient admitted to a clinic for rehabilitation - he would not be held contributorily negligent.
As the older case of Pidgeon shows, the courts have been willing to find contributory negligence for failing to abide by medical advice or failing to attend for appointments (without adequate reason). If a defendant has good evidence that an appointment letter was sent/received but not acted on, and there were no further reasonable opportunities for medical intervention because of the claimant's non-attendance, and the non-attendance was crucial in terms of causation, then an allegation of contributory negligence might have some traction.
I would be interested to know if other practitioners have had a similar experience to mine - is there a rise in the number of allegations of contributory negligence in clinical negligence cases?