Kevin O'Hagan

CPD Session Warm Up Part 3: Contributory Negligence – a Definition?

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Ahead of McKinty and Wright’s annual CPD Session on 30th June 2017, Kevin discusses recent cases / points of interest for those dealing with claims litigation in Northern Ireland. The final part of the series focuses on Contributory Negligence in the context of the Judgment delivered in a Personal Injury/Casualty Motor claim dealt with by McKinty and Wright: -

Contributory Negligence is one of those hard to pin down principles in Law, but in the simplest terms, it is the portion of blame that rests with the injured party arising from the facts of a case. In practice, it is the apportionment by which the Plaintiff’s damages should be reduced in matters in which the Defendant is determined to have, or has accepted, some responsibility.

In some cases, it may be the only defence which a Defendant chooses to maintain and can often be a useful tool in either negotiations, or before the Court to appeal for the reduction of damages. However, take any set of facts to several random legal practitioners involving an issue of Contributory Negligence, and you will, more often than not, receive a varied response on what that apportionment should be.

The reason for this is that very often when a Court determines a level of Contributory Negligence to a set of facts, it does so in a vague and unpredictable way, which does not lend itself to repetition on the wider scale. As a result, the recent High Court decision of Glass v Donnelly [2016] NIQB 36 goes some way to assist with a legally defined thought process, if not a formula, to consider in terms of contributory negligence.

In that case, the Court was asked to consider the contributions of a Plaintiff who walked out, seemingly absentmindedly, onto the road, together with the actions of the Defendant driver who struck the Plaintiff. In considering the apportionment of negligence, the Court had reference to the Supreme Court case of Jackson v Murray & Anor [2015] UKSC 5, which involved broadly similar circumstances. In the case of Jackson, the Supreme Court attempted to deconstruct the issue of Contributory Negligence and follow the example set in the cases of Eagle v Chambers (2004) RTR 9 and Sabir v Osei-Kwabena (2015) EWCA Civ 1213, by breaking the thought process down into two factors:

a)              Blameworthiness – what has each party done to contribute to the incident

b)              Causative Potency – what level of their actions, outside of blameworthiness, contributed to the incident.

In consideration of both factors, the Supreme Court determined that the Destructive Disparity of the parties should be a factor which is considered under each heading – i.e. the destructive potential of a car on a pedestrian is much higher than that of a pedestrian on a car and therefore a driver will have a higher burden of responsibility on the road than the pedestrian will have. As a result, the Supreme Court, in the case of Jackson, found both parties liable on a 50/50 basis (down from 90/10, in favour of the Defendant Driver).

The matter of Glass v Donnelly in Northern Ireland, sought to take account of the principles of Blameworthiness, Causative Potency, and Destructive Disparity, when considering the facts of the case. The Court reminded itself that the driver had a much higher burden of responsibility on the road than that of the Plaintiff pedestrian. The Court thereby determined that the Defendant driver was negligent as a result of travelling too fast for the road (30mph rather than 20mph) and could not have been keeping a proper lookout, otherwise there would have been sufficient time for an emergency stop.

However, the Court also determined that the Plaintiff, by failing to have sufficient attention of her circumstances, walking into the road without looking for traffic, rushing, and walking into the Defendant driver’s lane of traffic was negligent to a greater extent than the Defendant, both having account of blameworthiness and causation, finding an equitable balance as two thirds responsibility with the pedestrian Plaintiff and one third for the Defendant driver.

This judgement was a welcome shift towards redressing an inequality of apportionment of blame on the drivers seen in recent years, by placing a greater emphasis on a Pedestrian’s contribution to the incident,  as well as a welcome approval of defining factors of Contributory Negligence. In adopting the approach of Jackson towards Contributory Negligence, the High Court has provided practitioners with a tool to assist in the valuation of apportionment of negligence.

 

For more information, contact Kevin

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