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Contributory Negligence

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In a claim for personal injury compensation, it will be a partial defence to the claim to show that the claimant contributed to their injuries. This is known as contributory negligence. Where the claimant can prove that the defendant was negligence, but the defendant can prove contributory negligence on the part of the claimant. The defendant’s liability for compensation will be reduced accordingly. Courts often express a finding of contributory negligence as a percentage or fraction of the damages.

The assessment of contributory negligence is a question of fact judged objectively and by the application of judicial common sense. When considering an allegation of contributory negligence, the court is required to assess whether it is ‘just and equitable’ to reduce the damages having regard to the claimant’s share of responsibility for the damage. This requires consideration of both the causative potency and blameworthiness. This is a very open test that will depend on the particular facts of the case.

For example the court has provided specific guidelines as to the appropriate deduction for contributory negligence when the injured person fails to wear a seat belt. Where the injuries would have been prevented altogether by wearing a seat belt, the damages should be reduced by 25%. Where the seat belt would have made a ‘considerable difference’ or the injuries would have been ‘a good deal less severe’, the damages should be reduced by 15%.

Unsurprisingly there have been numerous authorities where findings of contributory negligence have been made:

  • Pedestrians will rarely be found more responsible for an accident than motorists: the courts have consistently placed a higher burden on motorists to reflect the fact that a vehicle is potentially a ‘dangerous weapon’ Eagle v Chambers [2003].
  • If a passenger gets into a car with a motorist they know to be intoxicated, a finding of contributory negligence may be made against them Donelan v Donelan [1993]. The size of the percentage deduction can vary according to the age and experience of the passenger relative to the motorist.

The High Court recently provided helpful guidance in the case of Hernandez v Acar 2019 on the issue of liability where a vehicle exiting a minor road had collided with a motorcycle which was exceeding the speed limit on the major road approaching the junction.

The Claimant submitted that the Defendant had pulled out without having a clear view or looking properly. The Defendant alleged that the Claimant had ridden his motorcycle at approximately 50mph in a 30mph speed limit zone, and that he could not reasonably have seen the Claimant or avoided the collision.

In reaching his conclusion having consider expert evidence relating to the speed of the defendant, the Court found the accident was the product of fault on both sides, the Claimant’s was going too fast and the Defendant’s was not getting a proper view before pulling out.

When determining the apportionment of liability, the Court placed a “little bit more blame on the Claimant than the Defendant.” However, he held that the Claimant was a vulnerable road user, being a motorcyclist, this tilted the balance back in favour of the Claimant. The Court gave judgement for 60% of the Claimant’s claim and 40% of the Defendant’s counterclaim.

Although the decision is fact specific, this judgement does provide helpful guidance when balancing the respective duties of different categories of road users and evaluating liability apportionment in road traffic accident cases.

The Civil Liability Bill – What It Means For You.

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Parliament announced on the 5th July 2018 that legislation intended to reform the personal injury small claims sector looks set to be halted until at least September 2018.

Part of the proposed bill which is now due to come into force in April 2019 makes significant changes to the personal injury compensation system by introducing fixed tariffs to apply to Road Traffic Accident whiplash injuries. The insurance industry argue that these changes will result in savings for consumers in respect of car insurance premiums.

The draft order of the Civil Liability Bill sets outs the fixed tariffs for compensation for pain, suffering and loss of amenity payable for injuries lasting less than three months will be restricted to £225. That figure rises to £450 for injuries up to six months, and to £765 where the injuries last nine months. The maximum fixed tariff for a whiplash injury, applying where victims have suffered for up to 24 months, is only £3,725.

The draft order defines ‘whiplash injury’ very wide as a sprain, strain, tear or rupture of one or more of the muscles, tendons or ligaments in the neck or back. The effects may include, but are not limited to, pain in the neck, back, shoulders or arms, reduced mobility in the neck, back or shoulders, headaches, muscle spasms, or a swelling in the neck. Compensation can be awarded only where the claimant can produce evidence of the injury in a fixed cost medical report from an accredited medical expert.

Although not included in the bill, as it does not require primary legislation, is a rise in the small claims limits for personal injury cases. The government intends to raise the small claims limit for RTA cases from £1,000 to £5,000 and other personal injury cases, public or employer’s liability, from £1,000 to £2,000. This change can be made by secondary legislation and will be timed to coincide with introduction of the Civil Liability Bill. As a result of the fixed tariffs the vast majority of whiplash claims are likely to fall within the new £5,000 limit. These changes will result in claimant’s either dealing with the claim themselves, which the government think people can handle, or pay for a lawyer, if they want one from their limited damages.

We believe that changes need to be made to the Civil Liability Bill to stop injured people suffering the biggest hit to their rights in recent years. For now we will have to wait a bit longer to see whether or not the Bill will pass through Parliament. In the meantime we continue to support the campaigns against the changes proposed.

If you require assistance or advice regarding a personal injury claim then please contact Anton Bilinski.