Two Oxford academics have carried out a comprehensive survey of outcomes in 368 cases where contributory negligence was raised by the Defendant at trial. The survey related to Court decisions between 2000 and 2014.

Overall, contributory negligence succeeded in 60% of cases. Are these odds good enough to warrant the additional costs of fighting the case to trial? That will, of course, depend upon the value of the case and the level of reduction.

The survey findings are placed into the context of Professional negligence, RTA, Public Liability, Occupiers Liability and Employer Liability claims. The gender and ages of the claimants were also analysed.

The survey found that whilst the average reduction at trial was 40.5% the most commonly used discount (i.e. the median average) is 50%, followed by 33.3% and 25% on an equal footing. Discounts proposed at the extreme ends of the scale (10-15% or 85-90% in each direction) are much less common.

Not surprisingly, a higher percentage of cases succeed in claiming contributory negligence where the Clamant is a child over the age of 10 and also the level of contribution was higher in those cases. Men were more likely to be found contributorily negligent than women, but did also make up the majority of the Claimants.

In professional negligence cases is was harder to obtain a finding of contributory negligence but, where that did succeed, the level of contribution was higher than the 40.5% average. Alongside this higher risk comes the potential for larger savings for the compensator if the risk pays off.

The cases surveyed will most likely have applied to cases running under the "old" costs regime and were mainly high court cases (and so likely to exceed the £25,000 fixed costs cap which has applied to injury cases since July 2013). It would be interesting to run a new survey of cases from 2015 running under the fixed costs regime to see if these outcomes are different. Fixed costs are likely to apply to commercial cases soon.

Commercial decisions and the desire to settle cases in the early fixed costs phases will all play a part in the compensator's decision to raise the Claimant's own negligence as an issue worth fighting for.

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