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