EWJ June 2024 web - Journal - Page 10
An Unhelpfully Catastrophic
Contribution
What is contributory negligence?
by Ben Simons - Ben.simons@anthonygold.co.uk
In the early stages of a personal injury claim,
particularly road traffic accident (RTA) claims, whilst
the insurers are investigating liability, they will often
allege that the claimant has contributed in some way
to the accident occurring. This known as “contributory negligence” and if established, will mean that a
claimant’s compensation is reduced by the percentage
that is attributed to them either by agreement between
the parties or by the Judge at trial. In a case involving
the most serious of injuries, even the smallest reductions of 5 to 10% would have a significant impact on
the overall value of the claim.
In a case involving the claimant not wearing a
seatbelt, this would not go towards whether or not the
accident could have been prevented, but rather
whether the injuries suffered might have been less serious. In the vast majority of serious RTA’s, particularly those involving brain injuries, amputations or in
the most extreme of cases, fatality, that will undoubtedly be the case. However, in all of the other examples listed above, these are factors which, if established
and proven with evidence, would lead the Court to
conclude that the claimant’s actions have indeed
contributed in some way to the accident occurring.
Whilst 10% might seem fairly insignificant when
expressed as a percentage, a claimant who is awarded
£10,000,000 for example would face losing
£1,000,000 of that settlement. This is not an insignificant amount.
Motorcyclists and cyclists
Whilst all of the factors listed above under drivers will
automatically apply to motorcyclists, one of the first
questions I will always ask a client who was injured
whilst riding a motorbike or a bicycle is whether or not
they were wearing a helmet. Given how exposed this
particular category of road user is and when taking
into account the high speeds that a motorbike in particular can reach, it has been a legal requirement since
the 1970’s for a motorcyclist to wear a helmet. Whilst
there is no legal requirement on a cyclist to do so, the
Highway Code recommends that you do and in the
event that you are involved in a serious accident whilst
riding a bicycle and are not wearing a helmet and if
you suffer a traumatic brain injury as a result, there is
likely to be a finding of contributory negligence and
your damages will be reduced to account for this.
There will be cases in which the defendant insurers
are well aware that there will be a finding of primary
liability against their insured driver, so they will look
for any evidence that might give them an opportunity
to reduce the overall award of damages in the event
that they are successfully able to argue that contributory negligence should apply. Primarily, they will reserve judgement on a final decision on liability until
they have seen the police report, CCTV footage, witness statements, dashcam footage of the accident and
anything else that might assist them.
So what sort of arguments will insurers look to raise in
cases where they believe that contributory negligence
should apply? In order to consider this further, we
must look at each type of claimant who might have
been involved in a very serious accident.
Whether or not the wearing of a helmet would have
reduced the severity of a traumatic brain injury or indeed prevented it entirely would be a matter for medical expert evidence. However, in the most serious
RTA cases involving at least moderate to severe brain
injury, it would be highly likely that the wearing of a
helmet would have reduced the severity of the brain
injury to some extent and damages would be reduced
to reflect this.
Drivers
Some of the main factors that an insurer will very
closely scrutinise in the case of the claimant being a
driver involved in an accident with another driver
include:-
Changes to the Highway Code in 2022 increased
duties on vehicle drivers over cyclists, who are deemed
to be vulnerable road users and who are more exposed
and less protected than motorcyclists. However, they
still have duties to ride with due care and attention and
in accordance with specific rules of the road, such as
using a bicycle lane if there is one and stopping at red
lights just as vehicles have to do, a particular rule which
I have seen often ignored by many cyclists in London.
It is also just as important that a cyclist wear a helmet,
even if it is not a legal requirement.
l Was the claimant under the influence of drugs
or alcohol?
l Was the claimant exceeding the speed limit?
l Was the claimant wearing their seatbelt?
l Did the claimant have their lights on?
l Was the claimant on their phone at the time?
This is not an exhaustive list, but these are all factors
which if established and proven with evidence, will impact on liability and reduce a claimant’s award of damages. It then falls to be determined how much the
claimant’s actions contributed to the accident occurring and consequently, by how much their award of
damages should be reduced.
EXPERT WITNESS JOURNAL
Should a cyclist fail to comply with their duties as a
road user and be involved in a serious accident, they
too would face arguments of contributory negligence.
8
JUNE 2024