Abstract
The pure contributory law theory where plaintiff would get nothing even if he was slightly negligence has few takers these days.The modern theory of contributory negligence is more evolved, scientific and logical and in tune with the changing needs of the society where compensation is reduced in proportion of negligence of plaintiff/victim.
Standard of care is objective but not uniform keeping in mind attaining circumstances like the mental faculty and physical agility of the victim. For example, a child is held guilty of contributory negligence only if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety.
The misconception that claimsin motor accident casesis filed for causing the accident. Rather, it is filed for the damage/injury caused by the accident i.e. resultant injuries/damage. Hence, all the factors responsible for causing injuries must be taken into account including not wearing seatbelt/helmet while travelling in a motor vehicle or riding a motorbike, in apportioning the contributory negligence in motor third party claims in India.
At common law in old days, contributory negligence operated as a complete defense. Once contributory negligencewas established plaintiff would get nothing. This is called pure contributory negligence. Even today in a few jurisdictions where this theory applies, plaintiff gets nothing even if he is partially negligent. Contrary to this, in modern daysin majority of jurisdictions even if contributory negligence is established, the claimant will get his damages but it will be reduced by the court in proportion to his fault. This is also called comparative negligence in few jurisdictions. The modern position is more evolved, matured and logical. The shift is not abrupt and dramatic but it has evolved over a period of time through judicial pronouncements and modern legislations, and has its foundation in sound logic and scientific reason.
Contributory Negligence: Foreseeability of harm to himself
What is “contributory negligence” has been aptly put in nutshell Lord Denning in following words:
“Although contributory negligence does not depend on a duty of care, it does depend on foresee ability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.”[1]
In this case the plaintiff was riding on the tow bar at the back of a traxcavator when another vehicle hit it from behind, causing injury to the plaintiff. The plaintiff’s damages were reduced proportionately to his contributory negligence.
Standard of care not uniform
In considering whether the claimant was contributorily negligent, the test is basically an objective one, although subjective factors are taken into account in case of children and persons under a disability or dilemma.
In Gough v Thorne [1966] 1 WLR 1387, the plaintiff was aged 13 years. A lorry driver signalled to her to cross the road. She did so without stopping to see if the road was clear. She was run over by a car travelling at excessive speed and overtaking on the wrong side. It was held that the plaintiff was not guilty of contributory negligence. If she had been an adult the position would have been different. Lord Denning stated:
“A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her.
Pedestrian’s Negligence
In Capman v Hearse [1969] 3 All ER 1528, the plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was driving at an excessive speed or failing to keep a proper look-out or both. The judge found that the plaintiff was 25% to blame. On appeal, the Court of Appeal increased that apportionment to 50%. On appeal to House of Lords restored the finding of the lower court of 25% contributory negligence.
In Eagle v Chambers: CA 24 JUL 2003, the claimant was severely injured when run down by the defendant driving his car. She was in Blackpool, and drunk and wandering in the highway. The defendant was himself at or near the drink driving limit. She appealed against a finding that she was 60% to blame.
It was held that courts have consistently required drivers to recognise that they control dangerous machinery. It would be rare for a driver not to have greater responsibilty than a pedestrian for injury. In this case the claimant would be held 40% responsible.
Lady Justice Hale said: ‘The potential ‘destructive disparity’ between the parties can readily be taken into account as an aspect of blameworthiness’ and ‘It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The Court has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon’.[2]
Helmet Defense
In O’Connell v Jackson_ [1971] 3 All ER 129, the plaintiff sought damages after an accident. The defendant car driver had negligently moved into the path of the plaintiff motor cyclist who was injured. The defendant argued that the plaintiffwas contributorily negligent in not wearing a crash helmet. It was held that once the court had established that the plaintiff was contibutorily negligent, it then had to allow both for the extent of his responsibility for the injury and the blameworthiness of his conduct in comparison to that of the defendant in order to assess the proper reduction in damages. It was held that the plaintiff was not guilty of contributory negligence because although wearing a helmet would have reduced the gravity of his injuries, his conduct was not unreasonable. The defendant appealed to the Court of Appeal.
Court of Appeal held:
- Applying Jones v Livox Quarries[1952] 2 QB 608, the plaintiff should have foreseen the possibility of being involved in an accident even though he was driving with care and at a reasonable speed.
- Although the defendant is solely responsible for the accident, the plaintiff’s negligence is relevant to the gravity of the injuries and damage sustained as injuries of such gravity would not have occurred, had he worn a helmet.
Therefore, the plaintiff must bear some of the responsibility for the consequences of the accident and the amount of damages is to be reduced by 15 per cent.
A motorcyclist does not owe a duty to other road users to wear a crash helmet, but in failing to do so he is guilty of contributory negligence if he suffers head injuries in an accident. He should foresee harm to himself, although there is no risk of harm to anyone else.
Similar reasoning will apply where the claimant puts himself in a position which is not dangerous in itself but he is aware of circumstances which make it more likely that he will suffer harm. This would explain the cases where the claimant accepts a lift with a driver who he knows is drunk. In these circumstances the courts will find that the claimant was guilty of contributory negligence but not volens to the risk.
Seatbet Defense
In Owensv Brimmell [1977] 2 WLR 943 the plaintiff and the defendant were friends and the defendant One night, they both went out with the car, visited several public houses and finally, a club. They had both drunk 8 to 9 pints of beer. At 2 am, the defendant was driving the plaintiff home, lost control of the car and crashed into a lamp post. The plaintiff was not wearing a seat belt at the time of accident. The plaintiff suffered very serious injuries, including intellect impairment. The defendant in plaintiff’s action for damages, alleged contributory negligence of the plaintiff for his failure to wear a seat belt and recklessness as to the possibility that the defendant’s ability to drive was impaired by alcohol. Damages were reduced by 20% for plaintiff’s contributory negligence.
Legal Reform for Contributory Negligence
In 1945 a general power to apportion damages was given to the courts by the Law Reform (Contributory Negligence) Act 1945. Section 1(1) provides:
“Where any person suffers damage as the result partly of his own fault and partly of the faultof any other person or persons, a claim in respect of that damage shall not be defeatedby reason of the fault of the person suffering the damage, but the damages recoverablein respect thereof shall be reduced to such an extent as the court thinks just and equitablehaving regard to the claimant’s share in the responsibility for the damage.”
To establish the defense of contributory negligence defendant must prove that the claimant failed to take reasonable care for his own safety and that this failure was a cause of his damage.
Modern Approach: ‘Causative Potency’ and ‘Blameworthiness’
The twin theory of ‘Causative Potency’ & ‘Blameworthiness’ propounded for the first time in Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, which was followed in many subsequent judgments in road accident cases and has become a guiding principle in apportioning damages in contributory negligence cases in major jurisdictions of the world. In apportioning liability between a plaintiff and defendant in an action for negligence, the respective causative potency of what they have done, and their respective blameworthiness are taken into account.
In Davies, the plaintiff’s husband rode on the offside step of a dust-cart. He was aware of the danger of such a practice. The dust-cart was being overtaken by one of the defendant’s buses when a collision occurred; the husband was killed. The driver of the dust-cart, the driver of the bus and the husband were all held to have been negligent, the husband because of the dangerous manner in which he was riding on the dust-cart. The deceased was therefore held to have been guilty of contributory negligence and the widow’s damages reduced proportionately.
Denning LJ opined that causation was the ‘decisive factor’ in the exercise. But that view has not been popular in more recent decisions. The modern approach is that blameworthiness and so-called ‘causal potency’ is equally important factors.
In Froom v Butcher [1976] QB 286, the plaintiff’s car was in a collision with the defendant’s car caused by the defendant’s negligence. At the time of the accident the plaintiff was not wearing a seat belt. His injuries were worse than they would have been if he had been wearing a seat belt. It was held by the Court of Appeal that his damages should be reduced by 20 per cent. The standard of care was to be judged objectively and the prudent man would wear a seat belt unless there were exceptional circumstances.
Lord Denning MR:
“The question is not what the cause of the accident was. It is rather what was the cause of the damage. In most accidents on the road the bad driving which causes the accident also causes the ensuing damage. But, in seatbelt cases, the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant and in part by the failure of the plaintiff to wear a seatbelt. If the plaintiff was to blame in not wearing a seatbelt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage and his damages fall to be reduced to such extent as the court thinks just and equitable.”[3]
The first test that must be passed is the ‘but for’ test for factual causation.
After this case law was amended in England and now it has been made a criminal offence not to wear a seat belt in the front seat of a car. There are certain exceptions to this, such as pregnant women.
Froom v Butcher was recently revisited in Pearson v Anwar 14th October 2014, the plaintiff was travelling as a front seat passenger in a taxi driven by the defendant who lost control of the vehicle when it skidded on ice and collided with another vehicle. Plaintiff’s head was propelled forward by the impact and struck a structural pillar beside the windscreen. This resulted in severe spinal fractures and rendered him tetraplegic. At the time of the accident plaintiff was not wearing a seatbelt. The claimant relied upon the guidance set out by Lord Denning in the landmark case of Froom v Butcher and argued that the deduction for contributory negligence should be limited to 15% as even with a seatbelt in use, the Claimant would have suffered some form of injury.
HHJ Platts disagreed and noted that it was agreed by both parties that the claimants head striking the pillar of the taxi would have been prevented if he had been wearing a seatbelt. He concluded that in that sense the injury sustained in the accident would have been prevented altogether and therefore that the appropriate deduction was 25%.
Lord Justice Kitchin upheld the decision made by HHJ Platts and refused permission to appeal. Lord Justice Kitchin concluded that the appeal had no reasonable prospect of success.
UK Supreme Court(3:2)in a recent decision ofJackson v Murray [2015] UKSC 5 has reduced the contributory negligence of a 13 year old girl to 50% who was severely injured when, stepping out from behind a minibus to cross a country road, struck by a car. The driver of the car, who had seen the minibus but had not contemplated anyone trying to alight from it and immediately cross the road, was driving too fast. He failed properly to observe the road conditions, and had not seen the girl when she stepped out. Had he been driving at a reasonable speed, and had he been properly observing the road conditions, he would not have hit the girl. Trial court attributed 90% contributory negligence to her, which on appeal was reduced to 70%, against which girl appealed to the Supreme Court.
The Court affirmed the well-established principles that:
1) a car is more causatively potent of damage than a pedestrian; and
2) a pedestrian will rarely be more to blame than the motorist.
The majority, which included Lady Hale, drew heavily on the analysis of Hale LJ (as she was then) in Eagle v Chambers [2004] WLR 3081, where it had been observed that the “destructive disparity” between the parties could be taken into account as an aspect of blameworthiness, contributory negligence being a function of relative blameworthiness and causative potency. It was noted that the courts have consistently imposed a high burden on car drivers to reflect the potentially dangerous nature of driving and the fact that “a car is potentially a dangerous weapon”. Hale LJ is often quoted on this issue:
“It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle.”[4]
Apportionment in Composite & Contributory Negligence
In multiple defendants’ cases where the claimant was not at fault, he can recover his full loss against any of the defendants. That person will then have to seek a contribution from the other defendants under the Civil Liability (Contribution) Act 1978.
In Fitzgerald v Lane [1987] QB 781, the plaintiff stepped out into the traffic on a busy road. He was struck by a vehicle driven by the first defendant. This pushed him into the path of an oncoming vehicle driven by the second defendant. Both defendants were accepted to be negligent and the plaintiff was contributorily negligent. At first instance the three parties were held equally to blame and the plaintiff’s damages were therefore reduced by one-third. This was held to be the wrong approach by the House of Lords. It was necessary to distinguish two questions. First, the contributory negligence of the plaintiff and the amount by which his damages should be reduced.Second, the amount of contribution recoverable between the two defendants. The plaintiff’s culpability was in setting the scene for the accident. The response of the defendants then had to be looked at. The plaintiff’s conduct and the totality of the tortious conduct of the defendants were compared. As the plaintiff was as much to blame for his injuries as the defendants, his damageswere reduced by 50 per cent.
Contributory Negligence: Indian Perspective
Trials of motor accident compensation casesare conducted in specially constituted tribunal under Motor Vehicle Act, 1988 and the trials are conducted on the cornerstone of twin theory of welfare legislation and summary proceeding. The yardsticks of ‘causative potency’ and ‘blameworthiness’ have never ever been applied in India. The objectivity in ‘forseeability’ of harm to himself which becomes the touchstone to decide the issue of contributory negligence in foreign jurisdiction is usually discarded when pitted against the notion of welfare legislation and summary trial.
There is misconception that claim in motor accident case is filed for causing the accident. Rather, it is filed for the damage/injury caused by the accident i.e. resultant injuries/damage. Hence, all the factors responsible for causing injuries must be taken into account in apportioning the contributory negligence and for that twin theory of ‘causative potency’ and ‘blameworthiness’ appears to be more scientific and evolved.
Conclusion
In modern days, the apportionment of liability is fixed on the basis on the function of respective ‘causative potency’ and ‘blameworthiness’ of the parties – plaintiffs and defendants in major jurisdictions. The trend of recent judgments are departing from the earlier view expressed in Davies[5]that causation is the decisive factor and now both respective ‘causative potency’ and ‘blameworthiness’ are being given equal importance in apportionment of liability in developed countries.
Now slowly, it has startedgaining traction with the judiciary in India also that action is filed for compensation for the injury caused by the accident and not for the factors responsible for causing the accident. Therefore, if wearing a seat belt while travelling in a car or wearing a crash helmet while riding motor cycle could have prevented the injuries the plaintiff have suffered in a road accident, the compensation amount must be reduced proportionately for plaintiff’s failure to wear these protective gears.
