Contributory negligence
Sharing the blame
Th
ree recent
RT
A cases sh
ow
that the law of
co
ntributory negligence
cont
in
ues to
ra
ise difficult and ch
al
lenging ques
ti
ons about personal
responsib
ili
ty.
Azmina Gulamhusein repo
rt
s
In
the
famous
case
of
Froom v
Butcher
[1976[
08
286
CA, Lord Denning
defined contributory negligence
as
"a
man's carelessness in looking after
his
own
safety"
and
commented
that this
issue can create a "remarkable conflict
of
opinion'~
When
deciding
whether
a claimant
must
share
the
responsibility for damage suffered
and have his compensation reduced
to
an
extent that
is
"just
and
equitable" under
the
Law Reform (Contributory Negligence)
Act 1945, the court must perform a delicate
balancing exercise. This may involve
weighing
up multiple factors, such
as
safety
developments, shifting attitudes
to
risk-
taking, expert evidence on the causation
of
injury and public policy arguments.
Three recent road traffic accident cases
show
that the law
of
contributory negligence
continues
to
raise difficult and challenging
questions about personal responsibility.
Pedestrian safety
Important issues about pedestrian safety
•
are highlighted
in
Osei-Antwi v South East
London & Kent Bus Company Ltd[2010[
EWCA Civ 132. This case involved a claimant
who
was hit by a bus
when
travelling
to
work
on
15
June 2005.
While the claimant waited
to
cross over
the road at the junction
of
the main road and
a bus depot, the bus driver attempted
to
execute a sharp left-hand turn into the depot.
During this manoeuvre, the rear
of
the
vehicle mounted the pavement and struck
the claimant. She
was
crushed against
some
safety railings and suffered both a broken
ankle and a damaged knee.
Although the trial judge accepted that the
claimant had been standing on the pavement
rather than the road, he ruled that some
criticism could be made
of
her position very
close
to
the kerb.
The defendant bus company
was
held liable
in
negligence, but the claimant was found
one-third
to
blame for failing
to
keep a proper
lookout and take evasive action
when
the bus
came round the corner. She appealed against
this finding
of
contributory negligence.
The Court
of
Appeal allowed the appeal
and quashed the finding of contributory
negligence
in
its entirety, finding that the
claimant had been standing on a studded
area
of
the pavement that
was
designated
for pedestrians. The defendant admitted that
buses did not normally cross the pedestrian
area, and that the bus
must
have missed the
claimant by a safe margin at the beginning
and
in
the middle of its turn because only the
rear of the vehicle hit
her.
In
the circumstances, it was not clear
what
the claimant had done wrong that caused and!
or
contributed to the accident. She
knew
that
the bus was about
to
turn the corner,
but
this
did not make her obliged
to
move further back
from
the road because the area
was
intended
to
be vehicle-free.
As
the claimant had not been standing
in
an inherently dangerous position and
her only fault was "failing
to
realise until
the very last minute that the driver had
got
16~~
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