In a claim for personal injury compensation, it will be a partial defence to the claim to show that the claimant contributed to their injuries. This is known as contributory negligence. Where the claimant can prove that the defendant was negligence, but the defendant can prove contributory negligence on the part of the claimant. The defendant’s liability for compensation will be reduced accordingly. Courts often express a finding of contributory negligence as a percentage or fraction of the damages.
The assessment of contributory negligence is a question of fact judged objectively and by the application of judicial common sense. When considering an allegation of contributory negligence, the court is required to assess whether it is ‘just and equitable’ to reduce the damages having regard to the claimant’s share of responsibility for the damage. This requires consideration of both the causative potency and blameworthiness. This is a very open test that will depend on the particular facts of the case.
For example the court has provided specific guidelines as to the appropriate deduction for contributory negligence when the injured person fails to wear a seat belt. Where the injuries would have been prevented altogether by wearing a seat belt, the damages should be reduced by 25%. Where the seat belt would have made a ‘considerable difference’ or the injuries would have been ‘a good deal less severe’, the damages should be reduced by 15%.
Unsurprisingly there have been numerous authorities where findings of contributory negligence have been made:
- Pedestrians will rarely be found more responsible for an accident than motorists: the courts have consistently placed a higher burden on motorists to reflect the fact that a vehicle is potentially a ‘dangerous weapon’ Eagle v Chambers .
- If a passenger gets into a car with a motorist they know to be intoxicated, a finding of contributory negligence may be made against them Donelan v Donelan . The size of the percentage deduction can vary according to the age and experience of the passenger relative to the motorist.
The High Court recently provided helpful guidance in the case of Hernandez v Acar 2019 on the issue of liability where a vehicle exiting a minor road had collided with a motorcycle which was exceeding the speed limit on the major road approaching the junction.
The Claimant submitted that the Defendant had pulled out without having a clear view or looking properly. The Defendant alleged that the Claimant had ridden his motorcycle at approximately 50mph in a 30mph speed limit zone, and that he could not reasonably have seen the Claimant or avoided the collision.
In reaching his conclusion having consider expert evidence relating to the speed of the defendant, the Court found the accident was the product of fault on both sides, the Claimant’s was going too fast and the Defendant’s was not getting a proper view before pulling out.
When determining the apportionment of liability, the Court placed a “little bit more blame on the Claimant than the Defendant.” However, he held that the Claimant was a vulnerable road user, being a motorcyclist, this tilted the balance back in favour of the Claimant. The Court gave judgement for 60% of the Claimant’s claim and 40% of the Defendant’s counterclaim.
Although the decision is fact specific, this judgement does provide helpful guidance when balancing the respective duties of different categories of road users and evaluating liability apportionment in road traffic accident cases.