Following on from our recent instruction in the matter of Brushett -v- Hazeldean, we look at contributory negligence and how it applies in Personal Injury claims.

What is contributory negligence?

Section 1 (1) of the Contributory Negligence Act 1954 states that the Defendant must show that:

  1. The Claimant was also at fault [for the accident]; and
  2. There is a causal link between the fault and the damage it is alleged that the Defendant caused.

To show the Claimant was at fault, the Defendant must establish that the Claimant did not take reasonable care to protect themselves and/or took an unreasonable step that exposed himself to loss, or a greater loss. Showing that the Claimant acted recklessly or carelessly is not enough. The Defendant must also establish that the careless/reckless act caused the damage/injuries that is being claimed.

Brushett v Hazeldean

An example of contributory negligence is the recent case of Brushett -v- Hazeldean. Here, Mr Hazeldean instructed us to defend a claim for personal injuries that Ms Brushett brought against him. The courts have decided liability and quantum, and will decide costs at summary assessment at a later date. Once this matter is concluded, we will publish a full write up on the case. You may have read about or seen about this case in the media. The claim involved an accident between Ms Brushett (a pedestrian) and Mr Hazeldean (a cyclist) on King William Street, London.

Mr Hazeldean was cycling north along King William Street. As he proceeded through the junction with Cannon Street, Ms Brushett crossed over the same street. The Judge accepted that Ms Brushett was looking at her phone as she crossed the road. Then, as she almost reached the pavement, the oncoming traffic seemingly startled her. Rather than continuing onto the pavement, Ms Brushett panicked and ran back towards the pedestrian island in the middle of the road. Mr Hazeldean tried to avoid Ms Brushett by braking and swerving to the right, but unfortunately the parties collided with each other.

The Judge’s decision

The Judge decided that both parties were equally at fault for the accident, and therefore she split liability 50/50. As part of her reasoning, the Judge decided that Ms Brushett was still established in the road. She further noted that cyclists should always be prepared for pedestrians to do the unexpected.

The Judge had the discretion to make a finding of 50/50 because Mr Hazeldean had raised the issue of contributory negligence as a partial defence. Mr Hazeldean had prepared his own defence (prior to our instruction) and did not explicitly use the word ‘contributed’. However, based within the whole context of his defence, the Judge recognised that Mr Hazeldean had intended to raise the issue of contributory negligence. Amongst other points, Mr Hazeldean argued that Ms Brushett had been looking at her phone rather than paying attention to the road and her surroundings. The Judge permitted the insertion of the words ‘contributed to’ into the defence. This meant that it could be open to her to make a finding of contributory negligence at her discretion.

How does contributory negligence work?

Defendants should raise contributory negligence as a partial defence to the claim at the outset of a matter, if appropriate, and expressly set it out within the defence. This can be as simple as inserting a sentence that says; “the Claimant contributed to the cause of their injuries by….”.

So what does it mean if a court splits liability 50/50, like in this case? Essentially, the Court will reduce the Claimant’s damages by 50% to reflect the Claimant’s contribution to their own injuries.

The courts will decide contributory negligence on a case by case basis, within the context of the facts of that particular case. It is difficult to predict what apportionment may be decided at trial. However, it is certainly worth pleading if the Defendant genuinely believes that the Claimant contributed to the cause of the accident. If a Defendant does not plead contributory negligence, this greatly limits the Judge’s discretion. This could lead to the Judge having to decide whether the Defendant is wholly liable, or not at all.

If you would like to discuss a potential personal injury claim, our team can help. Call us today on 0800 988 7756 for a free initial chat.

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