Week 9- Defences and remedies Flashcards
Jackson v Murray 2015 UKSC facts and significance regarding contributory negligence?
Facts- The plaintiff had stepped out from behind a minibus, and was hit by a car travelling at considerable speed. The plaintiff appealed the finding that she was 70% contributorily negligent for her own injuries.
Significance- the UKSC disputed the decision of the inner house, on the basis that previous authorities considered that the potency of the fast travelling car was much greater than that of a pedestrian, who clearly poses a much lower risk to the car driver than vice versa. In finding this, along with the fact that the driver only had to look straight ahead, whilst there were a number of factors which the pedestrian had to consider when crossing the road, the SC held that the two parties were equally liable. It made no sense to hold that the pedestrian was more negligent than the car driver, who was excessively speeding past a mini bus full of children, creating the danger. The damages still had to be reduced and liability apportioned on account of the pedestrians failure to see the car and look left behind the bus.
Froom v Butcher 1976 facts and significance regarding contributory negligence?
Facts- The Claimant was injured in a car accident due to the negligence of the Defendant. The Claimant was not wearing a seat belt. There was disagreement as to the apportionment of loss under the Law Reform (Contributory Negligence) Act 1945. Lord Denning set out guidance as to apportionment of damages in such cases.
Lord Denning- “But we live in a practical world. In most of these cases the liability of the driver is admitted, the failure to wear a seat belt is admitted, the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent.”
Law reform contributory negligence act 1945?
S1(1)- Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:
Provided that—
(a) this subsection shall not operate to defeat any defence arising under a contract;
(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.
(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.
