Until the Act was passed, English tort law had held that contributory negligence was a full defence to negligence. This rule composed what is sometimes called the "unholy trinity" of defences to negligence which wrought particular hardship on 19th century workers, and barred them from any compensation for ghastly workplace injuries (the other two are common employment[1] and volenti non fit injuria). It meant that if an employer was 99% at fault for his worker being mangled in his machinery, but the worker was 1% at fault, then the worker could recover nothing in compensation for injuries. Outside the workplace, an example of the defence is found in Waite v North-Eastern Railway Co[2] where a grandmother and an infant that were hit by a negligently driven train were barred from any claim.
The Act was passed by the new Labour government following World War II, along with a number of other workplace safety and common law reforms (e.g., Law Reform (Personal Injuries) Act 1948).
This harsh common law defence subsisted longer in other countries than in the United Kingdom. An example is seen in The Wagon Mound (No 1) where the claimant conceded that a burning ship accident was unforeseeable in order to avoid the contemporary Australian contributory negligence bar.
This 1945 Act was not based on entirely new principles: the Collision Convention of 1910 had already provided that where two ships collide, blame may be apportioned between the two, so that each's contribution to the accident may be calculated to determine the settlement by way of damages. Often, blameworthiness reflected each party's degree of breach of the COLREGS. Normally blame would be apportioned in simple ratios; 50:50, 60:40, 75:25, etc.) Only rarely would the proportion be 100:0, as in The Oropesa.[3][4]
In the UK, before the wearing of car seatbelts become obligatory, difficult legal questions arose when a passenger who failed to wear a seatbelt was injured. If the passenger had voluntarily chosen not to wear a seatbelt, was that person volenti to the injury? If so, volenti being a complete defence, the passenger would fail in a claim for negligence. In Froom v Butcher,[5][6] Lord Denning MR sliced the Gordian knot by declaring that such a passenger was NOT volenti but rather was 20% contributorily negligent in the matter. Denning MR declared that "determining whether one is guilty of contributory negligence is a matter not of the cause of the accident, but of the cause of the damage", and he thereby ensured that the injured passenger could successfully claim against the driver's insurance, albeit that the claim would be only 80% of the loss.
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