ISSUES OF CONTRIBUTORY NEGLIGENCE: ONE BAD DECISION, NOT THREE POOR ONES

There is an interesting discussion on the principles of contributory negligence in the judgment of HHJ Keyser KC in Owens v Lewis [2024] EWHC 609 (KB).

“(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.”

WEBINAR ON RECENT CASES ON CONTRIBUTORY NEGLIGENCE

On the 4th July 2024 I am considering this case, and other recent cases on contributory negligence, in a webinar.  Booking details are available here. 

The webinar considers the law and practice in relation to contributory negligence.  It then considers the implications for litigators and their clients and:

• The legal principles relating to contributory negligence.
• Pleading contributory negligence
• Where contributory negligence has been established
• Where allegations of contributory negligence have not been successful
• How claimants have responded to allegations of contributory negligence. The importance of witness evidence
• The “reverse allegation of contributory negligence” – using allegations of contributory negligence against the defendant

It also looks at recent cases as practical examples of how the principles are applied.  Cases to be looked at include:

• Owens -v- Lewis – contributory negligence of a passenger on a quad bike
• James -v- Shaw – contributory negligence in a fall from height
• Zgonec-Rojez -v- Pereira – contributory negligence in clinical negligence/psychiatric care context
• FLR -v- Chandran – contributory negligence and the child pedestrian

THE CASE

The claimant, then aged 16 1/2 arrived at a friend’s house intending to go rabbiting.  The met at the farm where the defendant  (then aged 15) lived. the defendant suggested they travel to their destination by quad bike.  The claimant travelled on the back, with another passenger and holding a dog.  The claimant believed they would travel across the fields to their destination. The defendant took the bike out onto the main road. No helmets were worn.  The quad bike was designed for the use of one driver only.   The defendant drove at speed along the highway when the claimant came off the bike and suffered serious injury.

THE ISSUE OF CONTRIBUTORY NEGLIGENCE

Primary liability was admitted. The court was concerned only with the issue of contributory negligence.  The defendant advocated for contributory negligence of more than 50%, the claimant of less than 20%.  The judge made a finding of 30%.

THE JUDGMENT ON CONTRIBUTORY NEGLIGENCE

1. 1. In performing the exercise required by section 1(1) of the 1945 Act I bear in mind that it is fact-sensitive. Previous cases give helpful guidance as to the approach and occasionally, especially where they seek to provide standard figures for certain situations (such as failure to wear a seat belt or a helmet), even as to the appropriate reduction. But each case requires consideration of what is just and equitable on its own particular facts.

1. 1. Although primary liability has been admitted, it is necessary to begin by considering the fault of the defendant. The admission of liability was on the basis that the defendant was in breach of duty “in permitting the claimant to travel as a passenger on the quad bike in circumstances where the quad bike was not intended to carry passengers” (amended defence, paragraph 11). I add two points.

1) The admission requires unpacking. The carrying of passengers was particularly negligent in circumstances where (a) each passenger would have at least one hand full with a dog, (b) no passenger was properly secured to the quad bike, and those on the rear rack were perched with at least one leg over the side and only the bar on the rack to hold onto with one hand, (c) no passenger had a helmet, and (d) the quad bike was to be driven on the public highway.

2) I find that there was a further particular of negligence, namely driving at an excessive speed in the circumstances. Of course, the defendant ought not to have been driving on the road or with passengers at all. But if he did so he ought at least to have driven at a speed that presented the minimum possible risk of injury to the passengers. As I have mentioned, the claimant would have been highly unlikely to suffer a significant injury by falling from the quad bike if it had been proceeding at walking speed. But if (as was almost inevitable once it joined the public highway, and as I find as a fact to have been the case) it was proceeding at a speed of or near to 30 mph, the risk both of coming off the quad bike and of suffering serious injury in that event was obvious.

1. 1. In the course of argument, I raised the question of the relevance of the defendant’s age to the standard of care required of him. Ms McTague submitted that the defendant was to be judged by the standard of the reasonable and prudent 15-year-old. Mr Barnes, to the contrary, submitted that the standard took no account of the particular circumstances or characteristics of the specific defendant but was the same for all defendants; he referred to Nettleship v Weston [1971] 2 QB 691, the case of the learner driver who was held to the standard of the driver of skill, experience and care.

1. 1. In the present case, I do not think that anything turns on the answer to my question. Having said that, I can add that I think that, in their way, both counsel were right. The general position is that the standard of care required of a child is that of an ordinarily reasonable and prudent child of the same age: see Mullin v Richards [1998] 1 WLR 1304 and Orchard v Lee [2009] EWCA Civ 295. This is an example of the nuanced refinements that are recognised to the general position that the standard of care is impersonal and activity-based rather than actor-based; the overarching consideration is that the standard reflects what is reasonably to be expected in the circumstances. (It is unnecessary to explore this point further here.) Nettleship v Weston is an illustration of the activity-based standard of care and, as Lord Denning MR observed at 699, also reflects the policy that every driver is required to be insured. In the present case, it seems to me that the defendant’s decision to give a lift to his passengers in the circumstances described above is to be judged according to what is to be expected of the ordinarily reasonable and prudent 15-year-old boy. Even on that basis, his actions were clearly negligent. The manner of driving on the public highway is to be judged according to the standard of the driver of skill, experience and care, because those who choose to drive on the public highway are reasonably expected to attain no lesser standard. But even were one to assess the defendant’s standard of driving against some lower standard (such as that to be expected of an ordinarily reasonable and prudent 15-year-old boy) he would still be regarded as negligent, because the speed at which he was driving was unsafe, as would be obvious to anyone who gave the matter a moment’s thought.

1. 1. As for the claimant’s position, I have already set out the realistic acceptance on his behalf that he was contributorily negligent. In my view it is more rational to think of the three allegations against him as aspects of one complaint than as three individual complaints. The claimant did not make three bad decisions: first, to take a ride on the quad bike; second, to adopt an unsafe position on the quad bike; third, not to wear a helmet. Taking a ride on the quad bike necessarily involved being in the unsafe position (because he could be in no other position) and being there without a helmet (as there were no helmets). So the one decision was bad in a threefold way: it was unsafe to take a ride on the quad bike at all, but especially when he would be doing so when seated on the rack and holding on with only one hand and when he would not have a helmet. Both the fact that this was a bad decision and the reasons why it was bad ought to have been obvious to an ordinarily prudent and reasonable 16-year-old boy; by the standards of such a boy it was negligent to have done what the claimant did.

1. 1. In Eagle v Chambers, which was cited with evident approval by Lord Reed in Jackson v Murray at [25]-[26], the Court of Appeal pointed out that section 1(1) of the 1945 Act is premised on both parties being at fault and that it refers to responsibility “for the damage”, not for “the accident”. The Court of Appeal also made clear that “causative potency” is different from “but for” causation: see in particular at [13] and [17]. The accident in that case could, in one sense, be said to have been caused equally by the negligent presence of the pedestrian in the road and by the negligent driving of the motorist; however, the latter was “very much more causatively potent” than the former, essentially (as I interpret it) because the pedestrian is not independently dangerous but is, in the circumstances, on the receiving end of “potentially a dangerous weapon”. The “potential ‘destructive disparity'” between a car and a pedestrian could also be relevant to the issue of relative blameworthiness: see [15]. These observations indicate to me that the two components of the assessment under section 1(1) are not separated by watertight compartments; the decision as to what is “just and equitable” must rest on a holistic consideration having regard to all matters regarding both components.

1. 1. In my judgment, the preponderance of fault lies with the defendant and not with the claimant. Although the claimant went along with the proposal to travel by quad bike, the initiative lay with the defendant; the claimant accepted what was offered to him. It is true, and I bear firmly in mind, that the claimant was older than the defendant and had recently completed his schooling. But the defendant was familiar with quad bikes in a way that the claimant was not, as he had been brought up with them from a young age. The claimant was therefore liable to take his lead from the defendant and, although the risks in what he was doing ought to have been obvious to him, the claimant can hardly have been uninfluenced by the defendant’s blasé approach. Further, without exonerating the claimant’s accepted negligence, I think that some realism is required concerning the position in which he was placed. He had agreed to go rabbiting with two friends and had been given a lift by his sister to the defendant’s home. He expected to walk to the intended destination but, on arrival at the defendant’s home, he was told that they were going by quad bike. The proper and sensible thing for the claimant to have done was decline to travel in that manner. But it is not entirely surprising that, whether from a reluctance to appear timid in the face of friends^[4] or from the all-too-common disregard by male youths of their own safety (alluded to by Yip J in Clark v Farley, above), or from both of those reasons, he went along with the proposal. A further consideration is that this case is not at all to be compared with cases involving joint criminal enterprise, such as are relied on by Ms McTague. As is reflected in the drink-driving cases and in Eagle v Chambers, the primary blameworthiness (as well as the primary causative potency) lies with the driver of the vehicle rather than the person at risk of injury by reason of the driving of the vehicle. This is especially so where, as I find in this case, the defendant drove at excessive speed in the circumstances.

1. 1. The principle against simply aggregating the discounts that would be appropriate to each of several elements of negligence applies in full force in the present case. This is so with respect to the allegation of being negligently positioned on the quad bike and even more forcefully, perhaps, to the allegation of failing to wear a helmet. As I have made clear, I regard the claimant as having made a single bad decision, though it was bad for cumulative reasons: the quad bike was not designed for passengers; he would not be able to sit securely on it; and there was no helmet to be had. An example by way of contrast makes the point. If I get into a car that is to be driven by a person under the adverse influence of alcohol, I can at least put the seat belt on. If I choose not to do so, that is a separate decision and not required by my decision to be carried in the first place. In the present case, the claimant did not decide not to wear a helmet: the matter did not arise, because there were no helmets on offer. To ride on the quad bike unsecured and without a helmet was, so to speak, presented as a job lot. The folly of the one decision was the greater because there was no helmet.

1. 1. As regards the respective causative potency of what the claimant did and what the defendant did, the preponderance again lies with the defendant, as it was he and not the claimant who both provided and drove the source of the danger, namely the quad bike, and moreover made it more dangerous by driving it at significant speed. The fact that the claimant would not have been injured “but for” his decision to ride on the vehicle does not make him equally causatively potent, as I have explained.

1. 1. Looking at the matter in the round, I do not consider Ms McTague’s starting point of a 50% reduction for contributory negligence to be at all appropriate. That figure comes from two cases of joint criminal enterprise, namely Joyce v O’Brien and McCracken v Smith. That is a world away from the facts of the present case, and the facts of both of those cases (not set out in detail above) were striking. Further, I should regard it as contrary to sound principle, at least in most cases and in this case, to simply add on a further figure for a supposedly discrete part of the negligent conduct (e.g. 15% for failure to wear a helmet).

1. 1. I am, however, not persuaded by Mr Barnes’ submission that, leaving aside the matter of the helmet, the facts of the present case indicate the need for a reduction less than the 20% reduction in the case of a passenger of an inebriated driver. Mr Barnes focused on the lack of blame of the present claimant in comparison with, say, someone who agrees to be driven by his friend after they have both drunk large quantities of alcohol. However, that leaves out of the equation the massive culpability of the driver in such a case.

1. Having regard to the matters that I have discussed and to the arguments presented to me by counsel, I have come to the conclusion that a reduction of 30% for contributory negligence is appropriate.