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