Case Summary of Butterfield V Forrester (1809) 103 E.R. 926
To some commentators, contributory negligence is a fundamental principle in the British legal system that tends to be misleading when not properly understood.1 It was in the Butterfield case that contributory negligence was established. As a result of Butterfield, contributory negligence became a defence that could be relied upon in tortious claims by defendants.2 According to Butterfield, contributory negligence is fulfilled when there is the existence of an act or omission on the claimant's part which has substantially contributed to the damage suffered. When the conduct is of such nature the claimant would be barred from a remedy.3 The creation of this defence by Butterfield heightened the tension surrounding whom judgement should be given to; as historically, judgement could only be awarded to only one of the parties.4
The Defendant, Forrester whose house was close to the road side was making repairs to his house. In the course of the repairs he placed a pole (obstruction) on the path of this road side. At about 8pm twilight, the plaintiff, Butterfield was riding along the road at break-neck speed. Upon making contact with the obstructed pathway he was thrown down from his horse and injured. Butterfield sued Forrester for damages. Evidence given at trial suggested that Butterfield was not intoxicated during this ride. However, there was a witness to prove that had he not been riding at break-neck speed he would have been able to see and avoid the obstruction. At trial the judge directed the jury that if a person riding with reasonable care could have avoided the pole; and if they were satisfied that Butterfield was riding at break-neck speed, and without ordinary care, they should find a verdict for Forrester; the jury did accordingly and Butterfield appealed.
The issue in Butterfield was whether a defendant, whose negligent conduct led to injury or damage upon the plaintiff, should be held liable for the injury when the plaintiff could have avoided the damage by riding with reasonable ordinary standard of care.
The Kings Bench Court upon appeal found for Forrester and dismissed the case. Bayley J held that the fault of the accident laid squarely with Butterfield because he was riding at a violent speed; and if he had applied reasonable care he would have avoided the obstruction.5
Lord Ellenborough C.J concurred with Bayley J and delivered the rule on contributory negligence, he said: "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right."6
Thus, the Court held that a plaintiff whose contribution to the accident through his lack of reasonable care could not be allowed a remedy. The Rule that "if a man lay logs of wood across a highway; though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action"7 was refused.
The ramification of Butterfield was that it made the defence of contributory negligence a complete ban to an action for damages irrespective of how little the fault the claimant was at in the accident. Thus in a case where there was negligence on both opposing parties, if there was a successful plea of contributory negligence the defendant would be acquitted.8
In the course of time, as a result of the strictness of contributory negligence principle, the courts developed the rule in Davies v Mann9 to curtail the effects of the principle. Here the Court stated that "unless the plaintiff might, by exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover........were this not so, a man might justify the driving over goods left on a public highway, or even a man lying asleep there."10 This development became known as the last opportunity test.11
Further, the scope of Butterfield (contributory negligence) was far-reaching as it could be relied upon in cases of suicide and self-harm,12 and where children were involved.13 In regards to the later, children as young as five14 and six years old15 have been found to have been contributorily negligent.
To some the rule's position that a complete ban be provided was harsh and did not always yield a just decision. Prima facie the courts were also aware of this issue and appeared to wriggle from the rule.16 In Davies v Swan, Denning LJ said that in order to mitigate the harshness of the doctrine of contributory negligence, the courts, in practice, sought to select, from a number of competing causes, which was the cause."17
Lord Porter in appreciation of the reform of the Butterfield rule by the Law Reform (Contributory Negligence) Act ("the Act")18 stated that the Act "enables the Court.....to seek less strenuously to find some ground for holding the plaintiff free from blame".19
Following the supposed injustice of the rule, Section 1 of the Act20 provides that when the courts are satisfied that both parties are at fault for the damage, they are obligated to apportion the damages according to the degree of each side's fault. This means that the Butterfield rule - the complete ban on remedy for the claimant, has been scrapped as it was argued that it would be illogical and unjust for the claimant's damages to be reduced by 100 percent.21 However, it is noteworthy that there have been cases where a judgement of 100 percent contributory negligence has been reached.22
Because of the Act, it is noted that the question of the relevance of Butterfields v Forrester in the present legal system is academic as it has been suggested that the Act rendered the contributory negligence and its pre 1945 development dead.23 However, it will be unwise to fail to pay due respect to the decision reached in Butterfields.
1 Christopher Walton and Others, Charlesworth & Percy on Negligence (13th ed, Sweet & Maxwell 2015) - Part I - General Principles Chapter 4 - Principal Defences and Discharges from Liability Section 1 - Contributory Negligence
2 Michael Jones and Others, Clerk & Lindsell on Torts (21st ed, Sweet & Maxwell Ltd 2015) - Chapter 3 - General Defences Section 3 - Contributory Negligence, Sub-section (b) - Contribution to Damage
3 (n 2) Charlesworth & Percy on Negligence , Chapter 4 - Section 1 - Contributory Negligence
4 Ibid para 4-15
5 (n 1) Butterfield, Bayley at 61
6 Ibid Lord Ellenborough at 61
7 (n 1) Butterfield, Vaughan Serjt referring to Buller's Ni. Pri. 26
8 (n 3) Clerk & Lindsell on Torts, Chapter 3 - Section 3 - Sub-section (c) Scope of Contributory Negligence
9 (1842) 10 Meeson and Welsby 546 152 E.R. 588
10 Ibid Parke, B at 549
11 Swadling v Cooper 1931 A.C. 1,
12 Reeves v Commissioner of Police of the Metropolis 2008 2 W.L.R. 499, HL.
13 Fraser v Edinburgh Street Tramways Co (1882) 10 R. 264)
14 McKinnell v White, 1971 S.L.T.
15 Harvey v Cairns, 1989 S.L.T. 107
16 Davies v Swan Motor Co (Swansea) Ltd 1949 2 K.B. 291
17 Ibid Denning LJ (at p.322
18 1945 c.28 (hereinafter referred to as the Act)
19 Stapley v Gypsum Mines Ltd 1953 A.C. 663; 1953 3 W.L.R. 279 at p. 677.
20 (n 17) The Act
21 Brumder v Motornet Service and Repairs Ltd 2013 EWCA Civ 195; 2013 1 W.L.R. 2783 at 4
22 McMullen v NCB 1982 I.C.R. 148; Jayes v IMI (Kynoch) Ltd 1985 I.C.R. 155
23 Jones v Livox Quarries Ltd 1952 2 Q.B. 608 at 615