In Personal Injury claims, it is common for a Defendant to allege that the Claimant has been contributorily negligent, meaning that they are partly to blame for the accident in question which caused the injury or condition for which they are claiming compensation. There are many ways in which a person may be contributorily negligent, and I will be exploring these over in a series of blog posts starting with this one.
The Law Reform (Contributory Negligence) Act 1945 provides:
“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.”
So what does this mean in layman’s terms?
If you are partly to blame for your injuries, you won’t get 100% of your damages. If matters are not agreed between the parties, then the Judge decides what is a reasonable deduction to make based on the particular facts of each case and by using precedents from past cases. If you are found 50% to blame for an accident, then you recover 50% of the full value of your claim.
But how is this proven?
It is up to the Defendant to prove that a Claimant has been contributory negligent, something I have been reminded of recently when dealing with a case on behalf of a cyclist who wasn’t wearing a helmet. His bike wheel jammed into a deep hole on a cycle path and he was thrown over his handlebars. He landed on the side of his head and sustained cuts, bruises and a damaged hand. He developed significant headaches for a long time afterwards and, sadly, he was later diagnosed with an acquired brain injury (‘ABI’).
The difficulty for my client is that he had taken the decision not to wear a helmet. He was on a regular morning route to work, which did not take him on any roads – only cycle paths. He was riding sensibly at the time and was only thrown from his bike because of the defect in the cycle path.
There are two sides to the argument: One view is that if it hadn’t been for the Defendant’s negligence in not repairing the defect in the cycle path, the accident would never have happened, and the Claimant would not have been injured at all; the opposing argument is that if the Claimant had worn a helmet, then his injuries would not have been as serious and he might not have suffered an ABI.
This is an emotive and far from straightforward subject. Whilst it seems obvious that wearing a helmet makes you less likely to be seriously injured, studies have shown that in countries that have made the wearing cycle helmets a legal requirement, the number of people cycling has decreased.
Whilst there is no legal requirement for a cyclist to wear a helmet, the Courts have developed the law to reflect that, in general, wearing a helmet is going to be make a person safer. In calculating whether to make any deduction from damages a Court will assess medical evidence to decide if wearing a helmet would have reduced or prevented injury. If a Court finds that wearing a helmet would have reduced or prevented a cyclist’s injuries, then the injured person can expect to have their damages reduced by a figure between 15 and 66 per cent.
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