An Unhelpfully Catastrophic Contribution

What is contributory negligence?

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.

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.

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.

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:-

• Was the claimant under the influence of drugs or alcohol?
• Was the claimant exceeding the speed limit?
• Was the claimant wearing their seatbelt?
• Did the claimant have their lights on?
• 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.

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.

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.

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.

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.

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.

Pedestrians

The changes I refer to above made in 2022 to the Highway Code introduced a new hierarchy of road users who are most at risk in the event of a collision. At the top of that hierarchy are pedestrian, who it goes without saying are the most exposed and therefore the most vulnerable of road users. Whilst arguments of contributory negligence may be less likely in cases involving pedestrians, there is no doubt that it can still apply and examples of where this will be raised in such case might include:-

• Crossing a road on a red light;
• Crossing a road at a point other than a designated crossing;
• Crossing the road whilst on your phone;
• Stepping out from between parked cars to cross a road;
• Running across the road directly in front of an approaching vehicle;
• Wearing dark clothing at night.

Once again, this is not an exhaustive list, but we do see many cases where the above factors have played a part in an accident and that is particularly the case in claims involving children. There will always be a greater onus on a driver of a vehicle over a pedestrian by virtue of the fact that, as reported in the case of Eagle v Chambers (2003), Hale LJ noted that a car is “potentially a dangerous weapon”. However, whilst pedestrians are now afforded even more protection than ever following these changes to the Highway Code, they still have a duty of care to themselves to use and cross roads in as safe a manner as possible.

As a matter of course, I always explain to my clients at my very first meeting with them that, until I have seen all of the evidence, contributory negligence will remain a live issue and one which the insurers may well seek to raise. It is always advisable to inform your client of this possibility at the very first meeting so that it does not come as a surprise to them in the inevitable case that the insurers make such an allegation. It will then be a matter of closely analysing the evidence to determine whether contributory negligence should apply and if so, to what extent.