Personal Injury, Serious Injury & Clinical Negligence

Motor Liability Update – Contributory Negligence

April saw a couple of interesting cases on the apportionment of liability in road traffic accidents.

Contributory Negligence

In some circumstances someone may suffer injury that results partly from their own fault and partly from the fault of someone else.  A claim is not defeated as a result of the claimant partially causing the damage themselves.  Instead, a Court reduces the damages recoverable according to the proportion of the claimant’s responsibility for the damage.

The pre-requisite for contributory negligence is causative fault on both sides.  The Court must apportion to fairly reflect respective responsibility.  This can be sub-divided into two parts:

  1. the comparative blameworthiness of the parties’ actions;
  2. the comparative cause or potency of the parties’ actions.

A finding of contributory negligence would therefore depend on the facts of each case.


In the case of Hicks v Young, the claimant sustained a very severe brain injury when he fell from a moving taxi and hit the road surface.  He brought a claim in negligence and false imprisonment against the defendant taxi driver.

The claimant submitted that he had made use of the defendant’s taxi to go home with his girlfriend. When they reached the home address, as he was moving to stand up to leave the taxi, the defendant had driven off with the door open.  The defendant ignored the claimant’s protests, so the claimant jumped from the taxi and sustained his injuries.  The defendant submitted that he had behaved as he had done because he had formed the view that the claimant and his girlfriend had been intending to run off without paying.

The Court held that, on the evidence, the defendant had driven away from the claimant’s house with the claimant in the back when he had no right to do so.  That had caused the claimant to try to escape and he had done so, making a serious error of judgement about the level of risk to himself in jumping out of the taxi at 20mph.  It was clear that the defendant had been negligent – he had breached his duty to drive his taxi with reasonable care for the safety of the claimant.  However, whatever the reason for the claimant jumping from the taxi, it had been a grave misjudgement.

In the circumstances, the compensation payable in negligence would be reduced by 50%, the Court finding that the parties were equally to blame.

The Court also found that the adverse consequences of an escape attempt were only recoverable if they were the direct result of the tort of unlawful imprisonment.  To satisfy that test they had to be the consequence of a reasonable and necessary act intending to bring the unlawful imprisonment to an end.

There was no doubt that the claimant has been unlawfully imprisoned by the defendant.  The false imprisonment had been an abduction and the defendant had to pay damages for the direct consequences of that deliberate act.  However, on the evidence, the injuries sustained by the claimant had been too remote as a matter of law from his unlawful imprisonment by the defendant to found a claim for damages for that form of trespass.

Judgment was therefore given for the claimant for 50% of his damages for the consequence of his injuries.

In McCracken v Smith, a pillion passenger sought damages for injury and financial losses arising from a collision with a minibus.  A trials bike, which had been stolen or unlawfully taken and was not allowed on normal roads, was being ridden far too fast on a path reserved for cyclists.  The rider, who did not have a driving licence or insurance, was carrying a pillion passenger (the claimant), even though the bike was not designed for passengers.  The bike collided with a minibus as it turned right and both the bike rider and the pillion passenger were seriously injured.

The Judge at first instance found that the trials bike rider was liable in negligence to the pillion passenger.  His representatives argued that he had a complete defence to the claim on the basis that the cause of action arose out of the pillion passenger’s own illegal act (a relatively unusual defence).

The defence ultimately failed and the bike rider was found to have driven negligently, however the pillion passenger’s compensation was reduced by 45% (including the agreed 15% for failure to wear a helmet) to reflect his own responsibility for his injuries.

The issues before the Court of Appeal were:

  1. had the Judge been wrong in his characterisation of the pillion passenger’s role including, in particular, whether he had been wrong to characterise the activity as “just going for a ride”, rather than going for a joy ride, and whether he should have found that the pillion passenger had been participating in a joint enterprise with the rider to ride the bike dangerously;
  2. whether the Judge was wrong in rejecting the defence based on the pillion passenger’s illegal activity;
  3. whether the Judge was wrong in finding that the minibus driver had also been negligent; and
  4. whether the Judge had been wrong in reducing the pillion passenger’s damages by 45%, rather than a substantially higher figure, on account of his contributory negligence.

The Court of Appeal ruled that the Judge at first instance had been unduly generous to the pillion passenger in distancing him as he had from the bike rider’s dangerous riding. The only realistic interpretation of the facts was that the pillion passenger and bike rider had embarked upon a joint enterprise, the essence of which was that the bike was to be ridden dangerously.

The Court refused to interfere with the finding of partial negligence on the part of the minibus driver (who was found 20% to blame for the collision), but did find that the Judge at first instance was wrong in his characterisation of the claimant’s role. The claimant’s fault had gone beyond allowing himself to be a pillion passenger on the bike; it extended to his participation with the rider in a criminal joint enterprise to ride the bike dangerously.  The passenger had, therefore, been the author of his own misfortune to a greater extent than had been allowed by the Judge.  A fair reflection of that greater degree of blameworthiness and causative potency of the passenger’s conduct would be an overall deduction of 65% in his damages (namely, 50% plus the agreed deduction of 15% for the failure to wear a helmet), as compared with the overall deduction of 45% ordered by the Judge.

Clarke Willmott has experienced and expert lawyers who specialise in road traffic accidents.  If you would like to discuss any issues arising from a road traffic accident, or indeed any other claim for personal injury, please contact one of the team.