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Tort-Contributory negligence II

Updated on July 15, 2017

In Sayers v Harlow UDC (1958) the plaintiff used one of the public toilets provided by the defendants. When she tried to leave the cubicle, she realized that the door was without a knob or a handle or the knob or the handle had become undone. She tried fidgeting with the door and when that was unsuccessful she tried climbing out the window by standing on a toilet roll holder which gave way and the plaintiff was injured as a result. The plaintiff sued.

The court held that it was reasonable to expect that doors in public toilets would open both ways and the means to open the doors would always be readily available. It was also foreseeable that if someone was trapped in a public toilet they’d try, in some way or other, to get out and the longer a person is stuck or trapped in the toilet the more frantic or desperate he or she would become. The plaintiff was successful and the council was held to be liable.

The plaintiff’s damages were however reduced because the court found that, while trying to escape was by no means unreasonable, the court compared the situation to that of an unlawful detention, doing so while resting the plaintiff’s weight on a slender toilet roll holder was an act of foolishness. The damages awarded to the plaintiff were therefore reduced accordingly.

Contributory negligence while it applies to adults may not apply to children if the same situation were to occur. The law takes into account the plaintiff’s age and while a duty may be imposed on an adult to take reasonable care, that duty may be relaxed if it was a child that was injured.

In Gough (an infant) v Thorns (1966) three siblings, two boys and a girl, aged 17, 10 and 13 respectively, were waiting on the pavement to cross the road. A lorry approached and the driver slowed down signaling for the children to cross the road. Because of the size of the lorry, the siblings were unable to see a car behind the lorry and as they crossed the car crashed into the children and the girl aged 13 was seriously injured. The plaintiffs sued and the defendant argued that the children were contributorily negligent.

The court held that while the defense of contributory negligence may apply to adults in this instance, the same cannot be said for children because it is unreasonable to expect them to exercise the same skill and care as an adult. Furthermore, the defendant was under a duty to exercise due care and caution while overtaking. The plaintiffs were successful and were found not to be contributorily negligent.

In O'Connell v Jackson (1971) the plaintiff was a motorcyclist who crashed while on his motorbike into a car that was driving negligently. The plaintiff sued. The defendant contended that had the plaintiff been wearing a helmet the injuries might not have been so substantial.

The court held that the defendant was guilty but the damages that were awarded to the plaintiff were reduced by 15% because the plaintiff’s failure to wear a helmet had aggravated his injuries.

In Nettleship v Weston (1971) the defendant was a learner driver who employed the plaintiff to help her fine-tune her driving skills. While they were on the road the defendant turned a bend and the plaintiff told the defendant to straighten the wheel. The defendant failed to do so and in order to avoid an accident the plaintiff pulled on the handbrake but despite that the car ran over a pavement and hit a lamppost and the plaintiff was injured in the accident that followed.

The plaintiff sued. The defendant pleaded volenti and argued that by entering into the car the plaintiff had voluntarily accepted the risk. The court rejected this argument and the plaintiff was successful. The court held that despite the fact that the defendant was a learner driver the duty imposed on her was the same duty that was imposed on any other driver.

In this particular instance in order for the defendant to successfully plead volenti the plaintiff must have either impliedly or expressly waived his right to seek a legal remedy.

The plaintiff’s damages were however reduced by 50% because the court found that the plaintiff had been contributorily negligent and his failure to exercise due care and caution had exacerbated his injuries.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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