Q&As

Can you direct me to the guidance and case law on contributory negligence in a clinical negligence claim?

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Produced in partnership with James Tunley of Lamb Chambers
Published on LexisPSL on 22/01/2019

The following PI & Clinical Negligence Q&A Produced in partnership with James Tunley of Lamb Chambers provides comprehensive and up to date legal information covering:

  • Can you direct me to the guidance and case law on contributory negligence in a clinical negligence claim?

The Law Reform (Contributory Negligence) Act 1945 applies to clinical negligence cases in the same way that it does to other litigation. If a claimant has suffered damage partly due to their own fault, the damages recoverable can be reduced to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage.

Successful medical treatment is often dependent upon the patient co-operating, for example, by following the prescribed course of treatment or drawing any particular symptoms to the attention of a medical practitioner. That said, in contrast to cases involving road traffic accidents or slipping and tripping accidents, for example, it is unusual for claimants in clinical negligence claims to be held to be contributory negligent and therefore legally responsible for their actions. Rarely do medical practitioners plead or rely on such arguments, which means that there is only limited case law on the subject.

Practice Note: Loss of a chance and foreseeability of damage in clinical negligence claims includes further guidance on contributory negligence in clinical negligence claims.

In 2001, the County Court at Sheffield made a finding of contributory negligence in Pigeon v Doncaster Health Authority [2002

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