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Tort-Contributory negligence III

Updated on July 16, 2017

In Froom v Butcher (1975) the plaintiff was involved in a car accident which was caused by the defendant’s negligence. While the defendant was held liable, the claimant was not wearing her seat belt at that time of the accident. The law that made the wearing of seatbelts mandatory only came into force on the 31st of January 1983 - prior to that it was recommended that passengers in a car wear seatbelts. Fitting of seatbelt anchorage points in all new cars was made compulsory in 1967.

Therefore it is possible to surmise that the government was quite serious about making the public aware of the benefits of wearing seatbelts and it was only a matter of time before the law came into effect.

It was held that the plaintiff would not have been injured but for the defendants negligence but the plaintiff also had a duty to take the necessary precautions to mitigate or reduce any injury he or she may incur by taking recommended precautionary steps and therefore the damages that the plaintiff received were reduced in proportion to the amount that he or she was deemed to have contributed to his or her own injury.

In Owens v Brimmell (1977) both the plaintiff and the defendant were out drinking and after they’d had about 8 pints each got into a car to drive home. During the journey, the driver lost control of the car and the car crashed into a lamppost resulting in injuries to both the driver and the passenger. The plaintiff, who was the passenger sued.

The court acknowledged that the accident was caused by the recklessness of the driver but the plaintiff was not entirely without fault. He had made the conscious decision of getting into a car with someone who was drunk behind the steering wheel and therefore the damages that were awarded to him were reduced by 20% and he was found to be contributorily negligent.

It is worth comparing the decision in Owens v Brimmell (1977) with the decision in Traynor v Donovan (1978). In Traynor v Donovan (1978) the plaintiff got into a car with the defendant, who was drunk, behind the wheel. Though he was above the alcohol limit for drivers, the defendant’s condition was not obvious or apparent. The car subsequently crashed and the plaintiff sued. The defendant contended that the damages awarded to the plaintiff should be reduced because the plaintiff had knowingly got into a car with a driver who’d been drinking.

The defendant was unsuccessful. The court held that the defendant was liable and the plaintiff would only be contributorily negligent if he or she knew that the defendant had been drinking. In this instance the court found that there was nothing to indicate that the plaintiff was aware of the fact that the defendant had been drinking and therefore the plaintiff was not contributorily negligent.

The decision in Traynor v Donovan (1978) was reaffirmed in Malone v Rowan (1984). The plaintiff’s husband got into a car with a driver who was drunk. The car subsequently crashed and the plaintiff’s husband was killed in the accident. The plaintiff sued.

The court in line with the decision in Traynor v Donovan (1978) found that in a situation where the plaintiff gets into a car with a driver who is drunk but there is nothing to indicate that the driver is drunk or the plaintiff has no reason to believe that the driver is drunk, then the plaintiff cannot be found contributorily negligent if an accident were to occur.

In order for any defendant to successfully raise contributory negligence the plaintiff in most instances, though there may be exceptions, must be aware of all the facts. Let us go back briefly to the situation where the plaintiff and his friend entered a mine with the unstable roof and the employers were about to bring the roof down. The plaintiff in that instance was found to be contributorily negligent because he was aware of all the facts.

If the plaintiff wasn’t aware that the roof of the cavern was unstable or if he wasn’t told to avoid the mine, shaft or cavern because the employers were about to bring the roof down and if he had entered it in the normal course of employment than he would not have been contributorily negligent.

Likewise in the case of the motorcyclist who was involved in an accident and found to be contributorily negligent because he wasn’t wearing a helmet, most people would know that riding a bike without a helmet is dangerous and any injury that was incurred as a result of an accident, while riding a bike, will be aggravated if the rider does not wear a helmet.

Similarly in the case of the driving instructor who got into the car with Mrs. Weston, he was aware that Mrs. Weston was not a diligent driver.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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