Page 27 - Insurance Times October 2023

was not unreasonable. The defendant appealed to the Court
of Appeal.

Court of Appeal held:
(1) 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.
(2) 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 Legal Reform for Contributory Negli-

for the consequences of the accident and the amount of gence
damages is to be reduced by 15 per cent.
In 1945 a general power to apportion damages was given
to the courts by the Law Reform (Contributory Negligence)
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 Act 1945. Section 1(1) provides:
contributory negligence if he suffers head injuries in an
accident. He should foresee harm to himself, although there "Where any person suffers damage as the result partly of
his own fault and partly of the fault of any other person or
is no risk of harm to anyone else.
persons, a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering the
Similar reasoning will apply where the claimant puts himself
damage, but the damages recoverable in respect thereof
in a position which is not dangerous in itself but he is aware shall be reduced to such an extent as the court thinks just
of circumstances which make it more likely that he will and equitable having regard to the claimant's share in the
suffer harm. This would explain the cases where the responsibility for the damage."
claimant accepts a lift with a driver who he knows is drunk.
In these circumstances the courts will find that the claimant
To establish the defense of contributory negligence
was guilty of contributory negligence but not volens to the
risk. 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.
Seatbet Defense
In Owensv Brimmell [1977] 2 WLR 943 the plaintiff and the Modern Approach: 'Causative Potency'
defendant were friends and the defendant One night, they
both went out with the car, visited several public houses and and 'Blameworthiness'
finally, a club. They had both drunk 8 to 9 pints of beer. At The twin theory of 'Causative Potency' & 'Blameworthiness'
2 am, the defendant was driving the plaintiff home, lost propounded for the first time in Davies v Swan Motor Co
control of the car and crashed into a lamp post. (Swansea) Ltd [1949] 2 KB 291, which was followed in many
subsequent judgments in road accident cases and has
The plaintiff was not wearing a seat belt at the time of become a guiding principle in apportioning damages in
accident. The plaintiff suffered very serious injuries, including contributory negligence cases in major jurisdictions of the
intellect impairment. The defendant in plaintiff's action for world. In apportioning liability between a plaintiff and
damages, alleged contributory negligence of the plaintiff for defendant in an action for negligence, the respective
his failure to wear a seat belt and recklessness as to the causative potency of what they have done, and their
possibility that the defendant's ability to drive was impaired respective blameworthiness are taken into account.
by alcohol. Damages were reduced by 20% for plaintiff's
contributory negligence. In Davies, the plaintiff's husband rode on the offside step of

26 October 2023 The Insurance Times