Tort - Contributory negligence V

In Green v Gaymer (1999) the plaintiff got on the back of a motorbike with the defendant who was drunk at the time on the throttle. The motorbike subsequently crashed into a lamppost and in the accident that followed, the defendant was killed while the plaintiff was injured. The plaintiff sued.

It is worth comparing the facts of Green v Gaymer (1999) with that of Pitt v Hunt (1990). There, the defendant aged 16 gave the plaintiff aged 18 a ride on his motorbike. The defendant neither had insurance nor had he paid road tax and he was on a bike with a much bigger engine than someone his age was allowed to be on.

In addition to that both the plaintiff and the defendant were drunk and witnesses gave evidence that they were riding recklessly on the road at the time. There was an accident and the defendant was killed while the plaintiff suffered serious injuries.

Whereas in Pitt v Hunt (1990) the maxim of ex turpi causa prevented a duty of care from arising the court in Green v Gaymer (1999) decided that the defendant owed the plaintiff a duty of care and accordingly awarded damages to the plaintiff because the duty had been breached and had resulted in an injury. The damages however were reduced by 20% because the court found that the plaintiff was contributorily negligent.

Could the defendant have raised the defense of volenti i.e. that the plaintiff had consented to accepting the risk? In Dann v Hamilton (1939) the courts determined that in order for volenti to apply in instances where passengers had gotten into a vehicle with the knowledge that the driver was drunk, the condition of the driver must be so striking or glaring that it is akin to waiting for a bomb to explode or walking on the edge of a cliff.

In Fairchild v Glenhaven Funeral Services (2001) the plaintiffs were independent contracts who were exposed to asbestos dust during the course of their employment and as a result contracted mesothelioma, a cancer of the mesothelial tissue, which is commonly caused by exposure to asbestos. The plaintiffs sued.

The court in line with the decisions in Margereson & Hancock v JW Roberts Ltd (1996) and Holtby v Brigham & Cowan (2000) held that the defendants were liable but the damages were reduced. The court took into account the numerous times the plaintiffs had willingly exposed themselves to asbestos dust, in accordance with the Law Reform (Contributory Negligence) Act 1945.

In Booth v White (2003) the plaintiff and the defendant were drinking together in a pub. The plaintiff then left the pub to watch a football match and returned later to find the defendant still in the pub.

At the time, there was nothing to indicate that the defendant was drunk and the plaintiff’s wife herself who had met the plaintiff and the defendant in the pub while they were drinking testified that the defendant appeared perfectly normal and looked to be in complete control of things.

The plaintiff and the defendant later got into a car with the defendant behind the wheel. The car crashed and the plaintiff was injured. The plaintiff sued and the defendant raised the defense of contributory negligence.

The court in line with Dann v Hamilton (1939) decided that in order for the court to find that the plaintiff was contributorily negligent, the defendant must not only be drunk but must appear to be so i.e. it must be fairly obvious to the plaintiff or anyone else around him that the defendant was drunk.

In Badger v Ministry of Defense (2005) the plaintiff was the widow of a former employee of the Ministry of Defense who died at the age of 63, as a result of lung cancer or cancer of the lungs. At the trial, it was found that, the cancer had been caused by continuous exposure to asbestos dust.

However, despite knowing that he had lung cancer the plaintiff’s husband continued to smoke. The plaintiff brought an action against the Ministry of Defense for causing the death of her husband by exposing him to asbestos dust.

The plaintiff was successful. It was found that the Ministry of Defense owed the plaintiff’s husband a duty of care. However, the court also found that the fact that the plaintiff’s husband continued to smoke after it was discovered that he had lung cancer aggravated the illness and therefore the damages that were awarded were reduced by 20%.

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