Tort-Contributory negligence II
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.
Copyright
© 2019 by Dyarne Ward
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