Page 26 - Insurance Times October 2023

to others, so contributory negligence requires the Pedestrian's Negligence
foreseeability of harm to oneself. A person is guilty of In Capman v Hearse [1969] 3 All ER 1528, the plaintiff, a
contributory negligence if he ought reasonably to have pedestrian had been struck by the defendant's car while
foreseen that, if he did not act as a reasonable, prudent crossing the road. The plaintiff had negligently failed to see
man, he might be hurt himself; and in his reckonings he
the defendant's car approaching. The defendant had a clear
must take into account the possibility of others being view of the plaintiff prior to the collision, but was driving at
careless."
an excessive speed or failing to keep a proper look-out or
both. The judge found that the plaintiff was 25% to blame.
In this case the plaintiff was riding on the tow bar at the On appeal, the Court of Appeal increased that
back of a traxcavator when another vehicle hit it from
apportionment to 50%. On appeal to House of Lords
behind, causing injury to the plaintiff. The plaintiff's damages
restored the finding of the lower court of 25% contributory
were reduced proportionately to his contributory negligence.
negligence.
In Eagle v Chambers: CA 24 JUL 2003, the claimant was
Standard of care not uniform severely injured when run down by the defendant driving
In considering whether the claimant was contributorily his car. She was in Blackpool, and drunk and wandering in
negligent, the test is basically an objective one, although the highway. The defendant was himself at or near the drink
subjective factors are taken into account in case of children driving limit. She appealed against a finding that she was
and persons under a disability or dilemma. 60% to blame.

In Gough v Thorne [1966] 1 WLR 1387, the plaintiff was aged It was held that courts have consistently required drivers to
13 years. A lorry driver signalled to her to cross the road. recognise that they control dangerous machinery. It would
She did so without stopping to see if the road was clear. She be rare for a driver not to have greater responsibility than
was run over by a car travelling at excessive speed and a pedestrian for injury. In this case the claimant would be
overtaking on the wrong side. It was held that the plaintiff held 40% responsible.
was not guilty of contributory negligence. If she had been
an adult the position would have been different. Lord Lady Justice Hale said: 'The potential 'destructive disparity'
Denning stated: between the parties can readily be taken into account as
"A very young child cannot be guilty of contributory an aspect of blameworthiness' and 'It is rare indeed for a
negligence. An older child may be; but it depends on the pedestrian to be found more responsible than a driver unless
circumstances. A judge should only find a child guilty of the pedestrian has suddenly moved into the path of an
contributory negligence if he or she is of such an age as oncoming vehicle. That is not this case. The Court has
reasonably to be expected to take precautions for his or consistently imposed upon the drivers of cars a high burden
her own safety; and then he or she is only to be found to reflect the fact that the car is potentially a dangerous
guilty if blame should be attached to him or her.” weapon'.

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
plaintiff was 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

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