It is quite common for the third-party to raise the Defence of contributory negligence against a Client where they have failed to wear a seatbelt and/or get into vehicles where the driver is under the influence.
If successfully raised, the Client will face a deduction to the amount of settlement they receive. It is important to understand what Contributory Negligence is and when it can be raised.
Contributory Negligence is a Defence which is raised by the third-party in a Road Traffic Accident claim against the person who is injured, but also to blame.
S.1(1) Law Reform (Contributory Negligence) Act 1945, provides that where a person suffers damage as a result of his own fault and partly the fault of another(s), a claim in respect of damages shall not be defeated by reason of the fault of the person suffering damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Courts thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage.
Failure To Wear a Seatbelt
Should the third-party successfully raise this Defence the Client will receive a deduction to the amount of settlement awarded to them. The case of Froom v Butcher [1976] QB 286 assisted in clarifying the issue on whether contributory negligence should arise for the failure of wearing a seatbelt and to what extent.
HHJ Lord Denning set out guidelines, which are regularly used by Personal Injury Solicitors in determining contributory negligence:
- The Claimant not wearing a seatbelt did not cause the accident, but it is what may have caused the damage.
- Everyone must wear a seatbelt.
- The responsibility of wearing a seatbelt is that of the passenger and not the driver.
- Whenever there is an accident, the driver must bear by far the greater share of responsibility. But insofar as the damage might have been avoided or lessened by wearing a seatbelt, the injured person must bear some share.
- The question on what is just and equitable to deduct should be approached practically and in majority of claims:
- 25% deduction if wearing a seatbelt would prevent all injuries.
- 15% deduction if injuries would have been reduced by wearing a seatbelt.
Drivers Under the Influence
The case of Owens v Brimmell [1977] QB 859 considered the amount of deduction to be made to the Client’s damages for getting into a vehicle with a driver under the influence.
Watkins J held that the Client was found liable for contributory negligence as they get into a vehicle with a person who they know is likely to have their ability to drive impaired by alcohol. The Client was found 20% at fault for their injuries.
Deductions made in drunk driver cases varies compared to that in seatbelt cases. In some cases, the Client can be deducted 20% in others 75%.
This was the case in Donelan v General Accident Fire and Life Assurance [1993] PIQR P205. Both the Client and third-party were heavily drunk, the Client who is twice the age of the third-party demanded that she drives his vehicle.
This provides an example of how the amount to be deducted can vary depending on the facts of the case.
Conclusion
When deciding the amount to be deducted, the Court will take into consideration the Client’s responsibility for the injuries they have suffered.
The above should act as a reminder of the importance of wearing a seatbelt, entering a vehicle where the driver is under the influence, and the consequences for doing so.
Written by:
Jai Singh
Trainee Solicitor