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Tort-Contributory negligence IV

Updated on July 17, 2017

In Fitzgerald v Lane (1987) the plaintiff was walking down a pelican crossing when the light for pedestrians turned red. He was hit by the first defendant’s car and thrown on to the path of the second defendant’s car. The plaintiff suffered severe injuries especially to the neck resulting in partial tetraplegia. Because it was impossible to determine which of the defendants caused the injury an action was brought against both defendants.

It was held that because it was impossible to determine which of the defendants had caused the injury, the defendants were jointly liable. The damages were however reduced by 1/3 in line with s1 (1) of the Law Reform (Contributory Negligence) Act 1945.

In Capps v Miller (1989) the plaintiff, a motorcyclist, was in the middle of the road, on his bike, waiting to make a right turn. He was waiting for the right time to make the turn when the defendant, who was drunk at the time, crashed into him with his car from the rear. The plaintiff was injured. Though the plaintiff was wearing a helmet at the time, the strap was not fastened and that aggravated his injuries because as soon as he was hit by the car, he was thrown onto the road and the helmet flew off. The plaintiff sued.

The defendant raised the defense of contributory negligence asserting that had the helmet been fastened in the proper or appropriate manner the resulting injuries would not have been so severe. The court in the first instance found for the plaintiff and ruled out contributory negligence. The defendant appealed.

The Court of Appeal allowed the appeal and reduced the damages that were awarded to the plaintiff by 10% on the basis that had the plaintiff been wearing his helmet in the prescribed manner, the extent of the injuries might not have been so severe.

There may have been a public policy reason for the Court of Appeal’s decision, in that, it is just not sufficient to have a helmet on because the law requires people to do so. The helmet must be worn in the proper manner or in the manner that is prescribed.

In Barrett v Ministry of Defense (1995) the plaintiff’s husband was working in the navy and was stationed in Norway. On the night of the incident he’d been drinking heavily and caught the attention of a senior officer who then instructed a petty officer to make sure he was well and to get him back to his bunk. The petty officer did as he was instructed and checked on him on a few occasions but despite that, he died during the night. His wife, the plaintiff brought an action in court alleging that her husband’s death could have been prevented had it not been for the defendants’ negligence.

The court held that under normal circumstances the navy did not owe her husband a duty of care but the court decided that a duty of care was owed in this instance because a senior officer had taken charge of matters. The duty arose as soon as the senior officer had assumed responsibility.

The damages awarded to the plaintiff were however reduced by 25% because the court found that the plaintiff’s husband had contributed partly to his own death by drinking excessively or by drinking more than what was allowed or recommended.

In Revill v Newbery (1996) the defendant was an elderly man, aged 76 at the time, who’d taken to sleeping in his shed where he kept certain valuable items. He was in the habit of sleeping with a loaded shotgun next to him.

The plaintiff, tried to break into the shed at 2 am in the morning, with his friend and the defendant who was woken up by the sounds of the break in, fired his shotgun, through a small hole in the shed and the plaintiff was hit. The plaintiff and his friend admitted their wrongdoing and were convicted but the plaintiff later brought a civil action against the defendant.

The court took into account s.1 of the Occupiers Liability Act 1984 and decided that a burglar cannot be treated as an outlaw and the plaintiff was successful. However, the damages that were awarded to him were reduced by 2/3 as per the Law Reform (Contributory Negligence) Act 1945. The judge did not consider it necessary to take into account the principle of ex turpi causa.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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